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1.14.2011

Amending the Unamendable Constitutional Clauses in Honduras?

The Honduran congress has passed, by the required supermajority, a reform to constitutional Article 5 that refers to the requisites to call for a plebiscite or a referendum as well as to the scope of issues that can be decided using those mechanisms of direct democracy. In order to successfully amend Article 5, however, a supermajority vote of the next Congress (whose first session is on January 25) is needed. The new Article 5 would make it easier to call for a plebiscite or a referendum, for instance lowering from 6 to 2% the required number of persons from the national census that can call for a popular consultation using one of those instruments. The new Article 5 would also extend the scope of issues on which the people can directly decide, arguably opening the possibility to amend the currently “unamendable” issues in Article 374 that literally states that “it is impossible to reform, under any circumstance, the previous article [that refers to the process to amend the constitution], the current article, and the constitutional articles that refer to the form of government, the national territory, the presidential term limits, and the impossibility of presidential reelection …”.

Readers of this blog will remember that former president Zelaya’s fate was marked by his intention to eliminate the prohibition to be reelected (see previous posts on this issue). Leaving aside for the moment the politics surrounding the attempt to amend Article 5 (which are being hotly debated in Honduras right now), it is interesting to ask whether a reform to the requisites and scope of the instruments of direct democracy would make possible to amend an eternal clause. Of course, it is possible to argue that the people, as the sovereign, can “directly” decide on a constitutional change. But eternal clauses delegate a substantial power to constitutional judges who could (should?) also declare that the initiative to reform an eternal clause is unconstitutional. Is it actually possible (theoretically) to amend an eternal constitutional clause? Or is it necessary to adopt a new constitution, presumably after a political crisis, that excludes such clauses? In any case, the next Honduran congress will first to ratify the amendment to Article 5. If that is the case, and if a part of the people decides to call for a plebiscite or a referendum to amend the unamendable clauses of Article 374, Honduras may be again in the road to a constitutional crisis.

JRF

3 comments:

  1. "Is it actually possible (theoretically) to amend an eternal constitutional clause? Or is it necessary to adopt a new constitution, presumably after a political crisis, that excludes such clauses?"

    That's a question discussed among German speaking scholars since the end of the 19th century. The standpoint I agree with says amending unamendable is legally impossible yet hardly to be stopped by judges if the people/government decides to ignore them. Such amendment would, in fact, adopt a new Constitution which the pouvoir constituant can do anytime, not only after a political crisis.

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  2. Politics is the art of taking decisions on behalf of other peoples. When a Constitution is adopted the power involved is of all the people. Amending power captures alesser quotient of the full power and so cannot reach to changing the basics. It has to be done only by applying the full political power of all the people either directly through a referendum or indirectly through a Constituent Assembly to draft a new Constitution.

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  3. It seems to me that the constitution is binding only because it was adopted by the people in 1982 (through a constituent assembly). In fact the preamble recognizes that the legitimacy of the constitution derives from the sovereign will of the Honduran people.

    So if the people make a clear, solemn decision to repudiate any part of their constitution then it's hard to see how they can be prevented from doing so.

    I think it's desirable to avoid situations in which there is this kind of conflict between popular sovereignty and the letter of the law. You end up either weakening democracy or respect for constitutionalism. So it is a lose-lose situation. For this reason I think eternity clauses (and to a lesser extent super-majority clauses) are best avoided, even if they can be overcome.

    There are plenty of other ways to create entrenchment that are consistent with majority rule.

    I'm also not convinced that it really matters whether you call a constitutional change an "amendment" or a new constitution. Any amendment, even a minor one, can be formulated as a 'new constitution' if that's considered necessary for it to be passed.

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