Simone Lawson
The ability of a parliament to amend the constitution varies from country to country. For example, in India, Article 368 of the Constitution grants Parliament the power to amend the Constitution, but this power is limited by the Basic Structure Doctrine, which states that Parliament cannot alter or destroy the Constitution's fundamental structure. In South Africa, the Constitution can be amended by an Act of Parliament, but special procedures and requirements apply, such as the requirement for a two-thirds supermajority in the National Assembly. In some jurisdictions, such as Ireland, Estonia, and Australia, constitutional amendments originate as bills and become laws in the form of acts of parliament, but may also require approval through a referendum.
| Characteristics | Values |
|---|---|
| Country | India, Australia, Estonia, Ireland, United States, Ethiopia, South Africa, Germany |
| Amendment procedure | Bill introduced in either house of Parliament |
| Amendment requirements | Special majority, supermajority, simple majority, absolute majority |
| Additional requirements | Ratification by state legislatures, referendum |
| Limitations | Cannot alter or destroy the "basic structure" of the constitution, cannot alter fundamental rights |
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What You'll Learn
The Basic Structure Doctrine
The specific elements of the Basic Structure Doctrine have evolved over time and continue to be defined by the Supreme Court on a case-by-case basis. Commonly accepted elements include the supremacy of the Constitution, the rule of law, separation of powers, judicial review, federalism, and secularism. The doctrine has been reinforced by significant judgments from the Supreme Court, which have consistently upheld its importance in protecting the Constitution's integrity and ensuring its stability.
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Amendments in South Africa
The Constitution of South Africa can be amended by an Act of Parliament, but there are special procedures and requirements for the passage of constitutional amendments. A bill amending the Constitution must be introduced in the National Assembly and cannot contain any provisions other than constitutional amendments and directly related matters.
At least 30 days before a constitutional amendment bill is introduced in the National Assembly, the person or committee introducing the amendment must publish it for public comment, submit it to the provincial legislatures, and, if it does not need to be passed by the National Council of Provinces (NCOP), submit it to the NCOP for debate. When the bill is introduced, the comments received must be tabled in the National Assembly and, when appropriate, in the NCOP. All amendments must be passed by an absolute two-thirds supermajority in the National Assembly (requiring 267 votes out of 400 members).
Amendments to the Bill of Rights and amendments affecting the role of the NCOP, the "boundaries, powers, functions or institutions" of the provinces, or provisions "dealing specifically with provincial matters" must also be passed by the NCOP with a supermajority of at least six of the nine provinces. If an amendment affects a specific province, it must also be approved by the legislature of that province.
Section 1, which defines South Africa as "one, sovereign, democratic state" and lists its founding values, can only be amended by a three-quarters supermajority in the National Assembly and six of the provinces in the NCOP. Once an Act is passed by the National Assembly and, if necessary, the NCOP, it must be signed and assented to by the President. As with any other Act of Parliament, an amendment comes into effect when it is published in the Government Gazette.
Some examples of amendments to the Constitution of the Republic of South Africa include the recognition of South African Sign Language as an official language, the establishment of a National Security Council, and limiting the frequency of motions of no confidence in the Cabinet or the President.
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Amendments in Australia
The Australian Constitution is the set of rules by which Australia is governed. It outlines the structure, role, and powers of the Australian Parliament, as well as the rights of Australian citizens, such as religious freedom. The Constitution was drafted between 1891 and 1898 by representatives of the six self-governing British colonies in Australia and came into effect on 1 January 1901.
Amending the Australian Constitution is a complex and deliberate process, designed to be difficult. The framers of the Constitution wanted to ensure that any changes were carefully considered and had broad support. To amend the Constitution, a proposal must first be approved by an absolute majority in both houses of Parliament. Alternatively, it can be passed twice by an absolute majority in one house, with a three-month interval between votes. This step gives the federal government control over what is put to a referendum. Once a proposal has passed this stage, it must then be approved by a majority of voters in a referendum. This referendum requires a "double majority" to pass, meaning that a majority of voters nationally and a majority of voters in a majority of states must approve the change.
The Australian Constitution has been amended several times since its inception. For example, in 1967, Section 127, which excluded "aboriginal natives" from being counted in headcounts for electoral purposes, was removed by referendum. Additionally, the Constitution has been amended to include the Australian Capital Territory, with Canberra becoming the national capital in 1913.
The process of amending the Constitution in Australia is a robust and democratic one, ensuring that any changes have the support of both Parliament and the Australian people. This system of checks and balances helps to maintain the integrity and stability of the Constitution, which is the foundation of Australia's system of government.
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Amendments in India
The Indian Constitution is the most amended national constitution in the world, with 105 or 106 amendments since it was first enacted in 1950. The Constitution is amended roughly twice a year, with three types of amendments. The first type of amendment must be passed by a "simple majority" in each house of the Parliament of India. The second type of amendment must be passed by a prescribed "special majority" of each house of Parliament. The third type of amendment must be passed by a "special majority" in each house of Parliament and ratified by at least half of the State Legislatures.
The Parliament of India has the power to amend the Constitution under Article 368. This was debated in the Constituent Assembly on 17 September 1949, with the final decision granting Parliament the exclusive power to amend the Constitution. The Basic Structure Doctrine, established in the Kesavananda Bharati v. State of Kerala (1973) case, ruled that while Parliament has the power to amend the Constitution, it cannot alter its basic structure. This was in response to the government's aggressive constitutional amendments during that period, particularly the 24th and 25th Amendments, which sought to curtail judicial review and alter property rights.
The doctrine acts as a constitutional safeguard, ensuring that while the Constitution is flexible, its fundamental identity, core values, and principles remain intact. It prevents Parliament from transforming its amending power into an absolute power, protecting against authoritarianism. The Minerva Mills v. Union of India (1980) case is an example of this, where the Supreme Court invalidated parts of the 42nd Amendment, which sought to make judicial review non-justiciable and strengthen Parliament's power.
The amendment procedure varies depending on the types of changes required in the Indian Constitution. If the bill seeks to amend the federal provisions of the Constitution, it must be ratified by the legislatures of half of the states by a simple majority. After being passed by both Houses of Parliament and ratified by the state legislatures, the bill is presented to the President for assent.
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Amendments in the US
In the United States, a proposed amendment originates as a special joint resolution of Congress that does not require the President's signature and cannot be vetoed. The first ten Amendments to the US Constitution, known as the Bill of Rights, protect the basic freedoms of Americans. The most famous are perhaps the First, Second, and Fifth Amendments. The First Amendment guarantees freedom of speech, religion, and the press, as well as the right to assemble and petition the government. The Second Amendment, which is highly controversial, grants citizens the right to bear arms. The Fifth Amendment protects citizens from double jeopardy and self-incrimination, and ensures due process and compensation for private property.
The Twenty-seventh Amendment (Amendment XXVII), or the Congressional Compensation Act of 1789, is the most recently adopted amendment. It states that any law affecting the salaries of members of Congress can only take effect after the next election of the House of Representatives. The purpose of this amendment is to reduce corruption in the legislative branch by allowing the public to remove members of Congress from office before their salaries increase.
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Frequently asked questions
Yes, but it depends on the country and the procedures in place. For example, in India, the Parliament can amend the Constitution with a simple or special majority, depending on the type of amendment, but it cannot alter the "basic structure" of the Constitution.
The constituents of the "basic structure" are not clearly defined by the court, but it includes values like secularism, equality, federalism, separation of power, and an independent judiciary.
A "special majority" is when more than 50% of the total membership of the House approves, along with two-thirds of the members present and voting.
A "simple majority" is when more than 50% of the members present and voting approve.
Some countries that allow Parliament to amend the Constitution include India, South Africa, Australia, and the United States.
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