Class 7: Amending European Constitutions

• Class 7 covers constitutional amendments in European legal systems.
• Flexible vs Rigid Constitutions are defined on pp. 7-11.
• Examples of flexible constitutions can be found on p. 46.
• Strengths and weaknesses of rigid constitutions are discussed on pp. 66-72.
• James Bryce (1838-1922) wrote ‘Flexible and Rigid Constitutions' in Studies in history and jurisprudence, New York, Oxford University Press, 1901.

Building Blocks of a Rigid Constitution:

• Multiple deliberations
• Time delays
• Qualified majority
• Referendum
• New elections
• Constitutional change often involves qualified majorities, multiple decisions, time delays, referendums, or a combination of factors.
• Amendment formulas vary greatly from country to country.

Ireland (Article 46):

• Any provision of the Constitution can be amended.
• Amendments are initiated in Dáil Éireann (lower house of Parliament) as a Bill.
• The bill must pass both Houses of the Oireachtas (Parliament).
• It is then submitted to a Referendum for the people's decision.
• An Act to amend the Constitution must be expressed as such.
• A bill for a constitutional amendment should not contain any other proposal.
• The President signs the bill if provisions are met and the people have approved it.
• Approval requires a majority of the votes cast.
• There have been 38 constitutional amendments since 1938; a list is available online

Belgium (Article 195):

• The federal legislative power declares reasons to revise the Constitution.
• Following the declaration, the two Houses are automatically dissolved.
• Two new Houses are convened, and they make decisions with the King's accord.
• Debates can only occur if at least two-thirds of the members of each House are present.
• Changes require support from at least two-thirds of the votes cast.
• No constitutional revision can occur during times of war or prevention of free meetings on federal territory.
• Declaration of revision by HoR & Senate (absolute majority) + the King.
• New elections, followed by a 2/3 majority (at least 2/3 present) in both Houses.
• Six state reforms have occurred since 1970.

Sweden (Chapter 8, Article 14):

• Fundamental law needs two decisions with identical wording for enactment.
• The first decision adopts the proposal, holding it in abeyance.
• The second decision cannot be taken until elections to the Riksdag occur.
• The newly-elected Riksdag must have convened.
• At least nine months must elapse between the first submission and the election date, unless the Committee on the Constitution grants an exception.
• A decision must be taken no later than the committee stage.
• At least five-sixths of the members must vote in favor.
• One or more constitutional amendments follow each election.

Sweden (Chapter 8, Article 16):

• A referendum must be held on a proposal concerning fundamental law held in abeyance over an election if 1/10th of the members motion for it; at least 1/3rd of the members must vote for the motion.
• The motion must be within 15 days of the Riksdag proposal being held in abeyance.
• The referendum is held simultaneously with the election.
• The proposal is rejected if a majority votes against it.
• If the number voting against exceeds half the number of registered valid votes in the election the proposal is rejected.
• Otherwise, it goes forward to the Riksdag for final consideration.
• Article 16 has never been applied.

Germany (Article 79 of the German Grundgesetz):

• The Basic Law can only be amended by a law expressly amending or supplementing its text.
• This law must be carried by two-thirds of the Members of the Bundestag and two-thirds of the votes of the Bundesrat.
• There have been over 60 amendments since 1949.

Poland (Article 235):

• A bill to amend the Constitution can be submitted by at least one-fifth of the statutory number of Deputies, the Senate, or the President of the Republic.
• Amendments are made by statute adopted by the Sejm and then by the Senate within 60 days in the same wording.
• The first reading of a bill to amend the Constitution can't occur sooner than 30 days after submission to the Sejm.
• The bill must be adopted by a majority of at least two-thirds of votes in the presence of at least half of the statutory number of Deputies in the Sejm.
• The Senate must adopt it by an absolute majority of votes with at least half of the statutory number of Senators present.
• The adoption by the Sejm of a bill that is amending the provisions of Chapters I, II or XII of the Constitution shall take place no sooner than 60 days after the first reading of the bill.
• If the bill relates to the provisions of Chapters I, II or XII, subjects may require a confirmatory referendum within 45 days of the bill's adoption by the Senate.
• The Marshal of the Sejm orders the holding of a referendum within 60 days of the application.
• The amendment to the Constitution is accepted if the majority expresses support in voting.
• This applies to Chapters I (=The Republic), II (= Freedoms, Rights), or XII (=Art. 235).
• There have been two constitutional amendments since the 1997 entry into force of the Constitution.
• 2006: Prohibition of extradition of Polish citizens
• 2009: Right to be elected to the Sejm or Senate

Italy (Article 138):

• Laws amending the Constitution are adopted in each House after two successive debates (at least three months apart).
• Approval requires absolute majority of the members of each House in the second voting.
• Said laws are submitted to a popular referendum if requested within three months of publication by:
• One-fifth of the members of a House
• Five hundred thousand voters
• Five Regional Councils
• The law cannot be promulgated if a majority doesn't approve the referendum.
• A referendum is not held if both Houses approve the law in the second voting by a two-thirds majority.
• There have been over 40 constitutional amendments since 1948 and 4 referendums.

France (Article 89):

• The President of the Republic, Prime Minister, and Members of Parliament can initiate amendments.
• A Government or Private Member's Bill must be passed by the two Houses in identical terms.
• The amendment takes effect after approval by referendum.
• However, the President can submit a Government Bill to Parliament convened in Congress.
• Government Bill to amend the Constitution must be approved if 3/5ths majority of the votes cast agree.
• France has had 21 amendments since 1958.
• In 2000, Presidential mandate was modified to 7=>5 years

France (Article 11):

• The President of the Republic, on recommendation from the Government or a joint motion of the two Houses, can submit to a referendum any Government Bill is session/ published in the Journal Official.
• Regarding; organization of the public authorities, or with reforms relating to the economic, social or environmental policy of the Nation, and to the public services; or which provides for authorization to ratify a treaty which, is affect the functioning of the institutions.
• If referendum outcome favors the Government Bill, the President must enact resulting statute within fifteen days.
• In 1962, there was direct election of the President of the Republic.
• In 1969, there was a failed attempt at territorial organization of the State and Senate reform.

Spain (Article 167):

• Bills on Constitutional amendment; requires approval by a 3/5 majority of the members of each House.
• If there is disagreement, a Joint Commission set up to submit a text voted on by the Congress and the Senate.
• If approval not obtained by the clause, Congress may pass the amendment by a 2/3 vote in favour, if the text has been passed by an absolute majority of the members of the Senate.
• Amendment then submitted to ratification by referendum, if 1/10 of the members of either House requests within fifteen days.

Spain (Article 168):

• If a total/partial revision to Fundamental principles, Fundamental Rights and Public Liberties, or The Crown, the principle approved by 2/3 majority of members of each House & Cortes immediately dissolved.
• The Houses elected must ratify the decision,new Constitutional text, ratified by approved by a 2/3 majority of the members of both Houses.
• Amendment passed by Cortes Generales, submitted to referendum.
• There have only been 2 constitutional amendments (no ref), both requested by the EU: 1992 Maastricht Treaty & 2011 Fiscal austerity.

Austria (Article 44):

• Constitutional laws passed by the National Council in the presence of half the members by a 2/3 majority of the votes cast are explicitly specified ("constitutional law”).
• Laws restricting the competence of the provinces require/ by a 2/3 majority from Federal Council.
• Any total revision of the Constitution is submitted to a referendum, unless a partial revision is demanded by 1/3 of the members in the Federal /National Council.
• Austria has had >100 constitutional amendments and constitutional laws respectively.
• There has been 1 Ref (1994 accession EU).

Constitutional Amendments Comparison:

• Does the Constitution distinguish between different types of amendments?
• Is a referendum possible or necessary?
• Is a supermajority necessary or can the constitution be amended also by a simple majority? (Does the opposition have a veto power?)
• How often has the Constitution been amended?

Constitutional Amendments in Context:

• Besides 'formal' constitutional amendment, 'the substantial contents of a constitution may be altered by judicial interpretation, by new constitutional conventions, by political adaptation, by disuse, or by irregular means'.
• Constitutional change > constitutional amendment.