CONSTITUTIONAL AMENDMENTS: COMPARATIVE (RE)VIEW IN CONTEMPORARY CONSTITUTIONALISM

Abstract

This article subsequently sheds light on existing political, legal, and legislative constitutional amending patterns in selected European countries. It primarily focuses on the (un)successful tools, mechanisms, and procedures for amending the Constitution (initiative, drafting, adoption, and implementation of high-stakes political, legal, and legislative decisions by Parliament and approval by the national referendum on constitutional amendments). We follow a thematic and methodological framework based on theoretical exploration and conceptualization of 'eternal' clauses (unamendable constitutional provisions). The article also provides a thorough analysis of differences in the constitutional amendment procedure in selected countries (Italy, Poland, and Ukraine) during a declared 'state of emergency' or other extraordinary regimes. Furthermore, it examines the outcomes of constitutional referendums aimed at modifying or altering the Constitution. This research aims to investigate whether the process of constitutional amendment (modification, alteration, abolishment, or supplement) depends on the form of government of a particular country. Or does it depend on the level of entrenchment of its Constitution? Is it simply an actual (successful) mechanism and a faultless primary political tool used by the pro-government ruling majority (or sometimes the parliamentary opposition) to 'win a game' or to be a real game-changer following the demand of citizenry? Properly conducted constitutional amendments can provide room for public and institutional debate, contribute to the Constitution's legitimacy, and develop and consolidate democratic constitutional traditions over time. This can be achieved by ensuring that the instruments, rules, mechanisms, and procedures on constitutional change (alteration, modification, abolishment) are open to interpretation and controversy. On the contrary, if applied in a rush or without proper democracy-based discourse (and civic society support), this may undermine in-country political stability and, eventually, the Constitution's legitimacy. It is probable that the end of the war in Ukraine, ongoing since 2014, and the full-scale invasion by Russia on February 24, 2022, will lead to a paradigm shift in constitutionalism. New constitutions may be adopted or existing ones revised to reflect the post-war world order, core values, and the level of development of the state and society where the rule of law prevails.

Keywords

• constitutional amendment
• 'eternity' clauses
• unamendable constitutional provisions
• constitutional referendum