Carlo's Think Pieces

Reflections of a Filipino in the Netherlands

Amendment by “simple” constituent assembly

Posted by butalidnl on 16 October 2006

In her Philippine Star column o f14 October 2006, on the topic of charter change,Carmen Pedrosa wrote that “other countries amend their constitutions by a simple constituent assembly.” I wondered if this was indeed the case, so I took a look at the constitutions of a number of countries.

What I found was that in countries with bicameral legislatures, proposed amendments needed to be passed by both chambers separately, often with a 2/3 majority. Thus, those who propose to only count the total number of legislators and get a 2/3 majority of this even if they only involve legislators from one house of congress/parliament are really proposing something unique.

And then, there is nothing “simple” about the way other countries’ amend their constitutions. In the US, after both the House of Representatives and the Senate pass the proposed amendment, this amendment needs to then be approved by 3/4 of the legislatures of all States. In Canada, the amendment also needs to be approved by 2/3 of all provincial legislatures and these provinces must represent at least 50% of the population.

The Netherlands has a formula to avoid hasty changes of the constitution. In their procedure, a constitutional amendment is first passed by a simple majority of both chambers of parliament. Then they have to wait till a new parliament is formed, i.e. usually after 4 years. The new parliament then has to pass the proposed amendment with at least 2/3 majority in both chambers.

And not all parts of the constitution is open to amendment either. In Germany, these non-amendable provisions include the “division of powers, essential structures of federalism, principles of democracy, social welfare and fundamental rights, and the principle of state power based on law”. If we apply this kind of restriction on the Philippine case, it would not be possible to abolish the Senate, since this was a basic component in our system of “division of powers”.

I haven’t found, so far, any country with a provision to amend their constitution by “people’s initiative”. This manner of amending the constitution may then be unique to the Philippines. Given this, we shouldn’t be too impatient with our present difficulties in finding out how to work with this mode of amendment.

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