An entrenched clause or entrenchment clause of a basic law or constitution is a provision that makes certain amendments either more difficult or impossible to pass, making such amendments inadmissible. Overriding an entrenched clause may require a supermajority, a referendum, or the consent of the minority party.
Once adopted, a properly drafted entrenchment clause makes some portion of a basic law or constitution irrevocable except through the assertion of the right of revolution.
Any amendment to a basic law or constitution which would not satisfy the prerequisites enshrined in a valid entrenched clause would lead to so-called "unconstitutional constitutional law", that is, an amendment to constitutional law text that would appear to be constitutional law by its form, albeit unconstitutional due to the procedure used to enact it or due to the content of its provisions.
Entrenched clauses are, in some cases, justified as protecting the rights of a minority from the dangers of majoritarianism. In other cases, the objective may be to prevent amendments to the basic law or constitution which would pervert the fundamental principles enshrined in it. However, entrenched clauses are often challenged by their opponents as being undemocratic.
Eternity clauses are a type of entrenched clause.
As Australian Parliaments have inherited the British principle of parliamentary sovereignty, they may not entrench themselves by a regular act. Therefore, the entrenchment of the national flag in the Flags Act of 1953 is without force as the entrenchment clause could be removed (through normal legislative amendment) by later parliaments.
The Commonwealth Constitution is entrenched as it may only be amended by referendum; the amendment must gain the support of a majority of Australian voters nationwide, plus a majority of voters in a majority of states. These provisions are specified in section 128. The Imperial Parliament's power to amend it in Australian law was revoked by the Statute of Westminster Adoption Act 1942 and the Australia Act 1986.
State laws respecting the constitution, powers or procedure of the parliament of a state need to follow any restrictions specified in state law on such acts, by virtue of section 6 of the Australia Act. This power does not extend to the whole constitution of the state, and the Parliament of Queensland has ignored entrenchments in amending its constitution. Consequently, it is possible that the entrenchment clauses are unentrenchable, preventing state law from having effectively entrenching clauses.
Entrenched clauses of the Constitution of Brazil are listed in Article 60, Paragraph 4:
No proposal of amendment shall be considered which is aimed at abolishing:
I – the federative form of State;
II – the direct, secret, universal and periodic vote;
III – the separation of the Government Powers;
IV – individual rights and guarantees.
Bosnia and Herzegovina
Article X of the Constitution of Bosnia and Herzegovina, defining the amendment procedure, provides in paragraph 2 that the rights and freedoms as established in Article II of the Constitution may not be eliminated or diminished, and that the paragraph 2 itself may not be altered.
Article 9 of the Czech Constitution, which concerns supplementing and amending the Constitution, states that "the substantive requisites of the democratic, law-abiding State may not be amended." This provision was invoked in 2009 when the Constitutional Court of the Czech Republic abolished a Constitutional Act adopted to invoke one off early legislative election. The disputed act was seen as an individual decision in violation of then-effective constitutional procedure regulating early elections.
The French Constitution states in Title XVI, Article 89, On Amendments to the Constitution, "The republican form of government shall not be the object of any amendment" thus forbidding the restoration of the monarchy or the empire.
The Basic Law for the Federal Republic of Germany (Grundgesetz) provides in its eternity clause (Article 79 section 3) that any amendment would be "inadmissible" if such amendment would provide that the Federal Republic would not consist of states (Länder) any more, that the states would no longer be entitled to participate in the federal law-making procedures, or if "the basic principles" of Articles 1 and 20 would be affected. "The basic principles" are as follows:
- Duty of all state authority: "The dignity of man is inviolable. To respect and protect it is the duty of all state authority." (Article 1)
- Acknowledgement of human rights: "The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world." (Article 1 Paragraph 2)
- Directly enforceable law: "The following basic rights bind the legislature, the executive and judiciary as directly enforceable law." (Article 1 Paragraph 3)
- Republic (form of government): (Article 20 Paragraph 1)
- Federal state (Länder): (Article 20 Paragraph 1)
- Social state (welfare state): (Article 20 Paragraph 1)
- Sovereignty of the People: "All state authority emanates from the People." (Article 20 Paragraph 2)
- Democratic: "All state authority is exercised by the people by means of elections and voting and by specific legislative, executive and judicial organs." (Article 20 Paragraph 2)
- Rule of law (Rechtsstaat): "Legislation is subject to the constitutional order. The executive and judiciary are bound by the law." (Article 20 Paragraph 3)
- Separation of powers: "Specific legislative, executive and judicial organs," each "bound by the law." (Article 20 Paragraphs 2–3)
The original purpose of this eternity clause was to ensure that the establishment of any dictatorship in Germany would be clearly illegal; in legal practice the clause was used by plaintiffs at the Federal Constitutional Court challenging constitutional amendments that affected Articles 1, 10, 19, 101, and 103 regarding restrictions of legal recourse. Although these basic principles are protected from being repealed, their particular expression may still be amended; such as to clarify, extend or refine an entrenched principle.
The Constitution of Honduras has an article stating that the article itself and certain other articles cannot be changed in any circumstances. Article 374 of the Honduras Constitution asserts this unmodifiability, stating, "It is not possible to reform, in any case, the preceding article, the present article, the constitutional articles referring to the form of government, to the national territory, to the presidential period, the prohibition to serve again as President of the Republic, the citizen who has performed under any title in consequence of which she/he cannot be President of the Republic in the subsequent period." This unmodifiable article has played an important role in the 2009 Honduran constitutional crisis.
There are several examples of entrenched clauses which ultimately failed in their objectives, since their protections were undermined in unintended ways. The Constitution of the Irish Free State was required in parts to be consistent with the 1922 Anglo-Irish Treaty, including the Oath of Allegiance and the Governor-General. The checks to protect this were removed by, for example, the Irish taking control of advice to the Governor-General, and when the Senate proved obstructive, its abolition.
Article 139 of the Constitution of Italy, promulgated in 1947, provides that the republican form of government shall not be a matter for constitutional amendment.
Another example of entrenchment would be the entrenching of portions of the Malaysian Constitution related to the Malaysian social contract, which specifies that citizenship be granted to the substantial Chinese and Indian immigrant populations in return for the recognition of a special position for the indigenous Malay majority. The Constitution did not initially contain an entrenched clause; indeed, one of the articles later entrenched, Article 153, was initially intended to be subject to a sunset clause. However, after the May 13 incident of racial rioting in 1969, Parliament passed the Constitution (Amendment) Act 1971. The Act permitted criminalisation of the questioning of Articles 152, 153, 181, and Part III of the Constitution.
Article 152 designates the Malay language as the national language of Malaysia; Article 153 grants the Malays special privileges; Article 181 covers the position of the Malay rulers; and Part III deals with matters of citizenship. The restrictions, which even covered Members of Parliament, made the repeal of these sections of the Constitution unamendable or repealable by de facto; however, to entrench them further, the Act also amended Article 159(5), which covers Constitutional amendments, to prohibit the amending of the aforementioned Articles, as well as Article 159(5), without the consent of the Conference of Rulers — a non-elected body comprising the rulers of the Malay states and the governors of the other states.
In the Constitution of Morocco, eternity clauses exist that ensure certain provisions cannot be amended, including the role of Islam in the nation's law, and the role of the King of Morocco in law.
Section 268 of the Electoral Act (part of the Constitution of New Zealand) declares that the law governing the maximum term of Parliament, along with certain provisions of the Electoral Act relating to the redistribution of electoral boundaries, the voting age, and the secret ballot, may only be altered either by three-quarters of the entire membership of the House of Representatives, or by a majority of valid votes in a popular referendum. Section 268 itself is not protected by this provision, so a government could legally repeal Section 268 and go on to alter the entrenched portions of law, both with a mere simple majority in Parliament.
Another example of a failed entrenched clause was in the South Africa Act, the initial constitution of the Union of South Africa. The constitution's entrenched clauses protected voting rights in the Cape Province, including those of some Coloureds, but they lost their votes after the Government restructured the Senate and packed it with its sympathisers so that they were able to achieve the required supermajority in what is known as the Coloured vote constitutional crisis.
Article 4 of Part 1 of the Constitution of Turkey states that the "provision of Article 1 of the Constitution establishing the form of the state as a Republic, the provisions in Article 2 on the characteristics of the Republic, and the provision of Article 3 shall not be amended, nor shall their amendment be proposed."
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Articles I, II, and III of the United States Constitution create a separation of powers among the three branches of the federal government. Legislative power is granted exclusively to the bicameral Congress, executive power solely to the President, and judicial power to the federal judiciary alone. This doctrine is entrenched in the Constitution by a vesting clause in each of the articles.
Additionally, Article V temporarily shielded certain clauses in Article I from being amended. The first clause in Section 9, which prevented Congress from passing any law that would restrict the importation of slaves prior to 1808, and the fourth clause in that same section, a declaration that direct taxes must be apportioned according state populations, were explicitly shielded from Constitutional amendment prior to 1808. Article V also shields the first clause of Article I, Section 3, which provides for equal representation of the states in the United States Senate, from being amended, though not absolutely. This has been interpreted to require unanimous ratification of any amendment altering the composition of the United States Senate. However, the text of the clause would indicate that the size of the Senate could be changed by an ordinary amendment if each state continued to have equal representation.
Provisions may also be entrenched in the constitutions of legal bodies. An example is in the memoranda and articles of a company limited by guarantee, in which the principles of common ownership may be entrenched. This practice can make it almost impossible for the company's members to dissolve the company and distribute its assets among them. This idea has more recently been extended in the UK through the invention of the community interest company (CIC) which incorporates an asset lock.
Notes and references
- Speech by the Hon. David Jull, MP – Minister for Administrative Services 2001 
- Anne Twomey. Manner and Form
- "Republic of Honduras: Political Constitution of 1982 through 2005 reforms; Article 374", Political Database of the Americas (in Spanish), Georgetown University
- Khoo, Boo Teik (1995). Paradoxes of Mahathirism, pp. 104–106. Oxford University Press. ISBN 967-65-3094-8.
- Gerhard Robbers (2006). Encyclopedia of World Constitutions. p. 626. ISBN 978-0816060788.
- Young, Alison L. (2006). "Hunting Sovereignty: Jackson v Her Majesty's Attorney-General". Public Law. Sweet & Maxwell. 2006 (2): 187–196. ISSN 0033-3565.
- Spaulding, Matthew. "Essays on Article V: Prohibition on Amendment: Slave Trade". The Heritage Foundation.
- Rossum, Ralph Rossum. "Essays on Article V: Prohibition on Amendment: Equal Suffrage in the Senate". The Heritage Foundation.
- Chico State Inside: Alan Gibson, "It Is Broken, but No One Wants to Fix It: A Call for Reform of the United States Constitution", accessed July 18, 2011