Entrenched clause
An entrenched clause or entrenchment clause of a constitution is a provision that makes certain amendments either more difficult or impossible to pass. Overriding an entrenched clause may require a supermajority, a referendum, or the consent of the minority party. The term eternity clause is used in a similar manner in the constitutions of Brazil, the Czech Republic, Germany, Greece, India, Iran, Italy, Morocco, Norway, and Turkey, but specifically applies to an entrenched clause that can never be overridden. However, if a constitution provides for a mechanism of its own abolition or replacement, like the German Basic Law does in Article 146, this by necessity provides a "back door" for getting rid of the "eternity clause", too.
Any amendment to a constitution that 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 appears constitutional 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, seen as 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 constitution that would pervert the fundamental principles it enshrines. However, entrenched clauses are often challenged by their opponents as being undemocratic.
Africa
Algeria
The Algerian Constitution of 2016 contains clauses about the term limit and the duration of the presidential term.Egypt
Article 226 of the Constitution of Egypt, defining the amendment procedure, ends with an entrenched clause stating that "In all cases, texts pertaining to the re-election of the president of the republic or the principles of freedom and equality stipulated in this Constitution may not be amended, unless the amendment brings more guarantees."This clause failed to block the 2019 amendments that replaced the hard two-term limit for presidents with a consecutive one, and the modification of the term's duration from four to six years. The article also failed to block a new article from being added that excludes incumbent president Abdel Fattah el-Sisi from the two consecutive terms constraint, enabling him to run for a third term.
Morocco
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.South Africa
There are several examples of entrenched clauses that ultimately failed in their objectives, since their protections were undermined in unintended ways. For instance, the South Africa Act 1909, the initial constitution of the Union of South Africa, contained entrenchment clauses protecting voting rights in the Cape Province, including those of some Coloureds, that required two-thirds of a joint session of parliament to be repealed. The Coloureds, however, later lost their voting rights after the Government restructured the Senate and packed it with its sympathisers so that they were able to achieve said supermajority in what is known as the Coloured vote constitutional crisis.Tunisia
The Tunisian Constitution of 2014 prohibits amending the constitution to change the duration of a presidential term or the maximum number of terms an individual can serve.Americas
Brazil
Entrenched clauses of the Constitution of Brazil are listed in Article 60, Paragraph 4:There are other clauses that implicitly cannot be amended, mostly because they are dependent of the subjects above.
Canada
The amendment formula for the Constitution of Canada contains multiple levels of entrenchment, but the issues most firmly entrenched under section 41 are the monarchy, each province's minimum allocation of representatives in Parliament, English-French bilingualism, the composition of the Supreme Court of Canada, and section 41 itself.Honduras
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 played an important role in the 2009 Honduran constitutional crisis.United States
of the United States Constitution 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 to the 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. This has been interpreted to require unanimous ratification of any amendment altering the composition of the 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. Alternatively, Article V theoretically could be amended to remove such an entrenched clause designation, and then the clause could be amended itself.
The Crittenden Compromise and Corwin Amendment, both proposed in the months leading up to the Civil War but never passed, would have enshrined slavery in the Constitution and prevented Congress from interfering with it.
Asia and Oceania
Australia
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 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 limited by the Statute of Westminster Adoption Act 1942 and terminated by 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 not entrenchable, preventing state law from having effectively entrenching clauses.
India
The Supreme Court in 1973 has developed the basic structure doctrine which holds that certain features of the constitution are fundamental in nature and cannot be modified through parliamentary amendment. The Supreme Court defined the constituents of the components of the basic structure as- Supremacy of the Constitution
- Republicanism & democratic system
- Secularism
- Separation of powers
- Federalism
- Mandate to build a welfare state
- Right to individual freedoms
- Manitainance of the unity & sovereignty of the country.
Indonesia
Iran
The final Article of the Constitution of the Islamic Republic of Iran, Art. 177, ensures that particular aspects of the Constitution are unalterable. These include the Islamic character of the government and laws, the objectives of the republic, the democratic character of the government, "the absolute wilayat al-'amr and the leadership of the Ummah", the administration of the country by referendum, and the role of Islam as the state religion.Malaysia
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 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, which covers Constitutional amendments, to prohibit the amending of the aforementioned Articles, as well as Article 159, 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.