Comparative Study of Amendability Provisions in Select World Constitutions | Thesis Law

CHAPTER 4 – COMARATIVE STUDY OF AMENDABILTY PROVISION IN

SELECTIVE CONSTITUTION OF THE WORLD

INTRODUCTION

Constitution of a country is a set of rules and regulation that governs the working of the

organs of government with in its spherical work or while discharging the function of checks

and balances. Constitution can be written or oral nature but its working is totally dependent

upon its adaptability of the country. As the oral constitutions laid it’s working upon its usages

and conventions on other hand the written one laid its working as according to its provisional

aspects. The essence of a written Constitution lies in its mode of amendment. The

amendment process is an opportunity to express democratic conceptions of basic

constitutional values without derogating from the fundamental constitutional principles.1 No

Written Constitution is complete without the incorporation of amending provisions, in some

respect, the amending provision is the most important part of the Constitution. A Constitution

is a system of fundamental book of laws or principles for the governance of a nation. The

Constitution clearly states the principles and framework of the law and its country

government. The amending provision in written constitution assumes great importance

because it gives chance to successive generation to use it as per their changing desires. It is

not possible for a written Constitution to specify all its objects and purposes or the means by

which amendments are to be carried into effect. Framers of a Constitution cannot anticipate

conditions which may arise in the near future in progress of a nation or establish all laws

which may be necessary from time to time to do justice to the changing conditions of a

society. The amending provisions were formulated by the Constituent Assembly after a

detailed debate and investigation of amending provisions of several Countries Constitution

viz., United States of America, Australia, France, Switzerland, South Africa,Canada etc2. In

order to avoid the problems which existed in rigid and flexibility provisions in amendment,

our constitution Framers adopt Art.368 as fine blend of rigidity and flexibility. Constitution

Framers were fully aware that, an unamendable Constitution has no value, in Written

Constitutions, the amending provisions are of greater importance that ensure smooth and

flexible on version record of the upcoming scenario. The constitution of US, Switzerland,

Australia, Canada, West Germany, South Africa, Yogoslavia, U.S.S.R., India, Malaysia and

Nigeria etc. would be called as federal constitution, as they have written constitutions as they

are intended to be work over the Legislatures and provisions of it cannot be altered by the

legislatures action through the ordinary process of legislation.

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CHAPTER 4 – COMARATIVE STUDY OF AMENDABILTY PROVISION IN

SELECTIVE CONSTITUTION OF THE WORLD

INTRODUCTION

Constitution of a country is a set of rules and regulation that governs the working of the organs of government with in its spherical work or while discharging the function of checks and balances. Constitution can be written or oral nature but its working is totally dependent upon its adaptability of the country. As the oral constitutions laid it’s working upon its usages and conventions on other hand the written one laid its working as according to its provisional aspects. The essence of a written Constitution lies in its mode of amendment. The amendment process is an opportunity to express democratic conceptions of basic constitutional values without derogating from the fundamental constitutional principles. 1 No Written Constitution is complete without the incorporation of amending provisions, in some respect, the amending provision is the most important part of the Constitution. A Constitution is a system of fundamental book of laws or principles for the governance of a nation. The Constitution clearly states the principles and framework of the law and its country government. The amending provision in written constitution assumes great importance because it gives chance to successive generation to use it as per their changing desires. It is not possible for a written Constitution to specify all its objects and purposes or the means by which amendments are to be carried into effect. Framers of a Constitution cannot anticipate conditions which may arise in the near future in progress of a nation or establish all laws which may be necessary from time to time to do justice to the changing conditions of a society. The amending provisions were formulated by the Constituent Assembly after a detailed debate and investigation of amending provisions of several Countries Constitution viz., United States of America, Australia, France, Switzerland, South Africa,Canada etc 2. In order to avoid the problems which existed in rigid and flexibility provisions in amendment, our constitution Framers adopt Art.368 as fine blend of rigidity and flexibility. Constitution Framers were fully aware that, an unamendable Constitution has no value, in Written Constitutions, the amending provisions are of greater importance that ensure smooth and flexible on version record of the upcoming scenario. The constitution of US, Switzerland, Australia, Canada, West Germany, South Africa, Yogoslavia, U.S.S.R., India, Malaysia and Nigeria etc. would be called as federal constitution, as they have written constitutions as they are intended to be work over the Legislatures and provisions of it cannot be altered by the legislatures action through the ordinary process of legislation.

Analyses of Different Constitution of World A Federal constitution is called rigid constitution, because it requires special procedure for its alteration or amendment. Rigid constitution is that one which enjoys an authority superior to that of the other statutory laws of the state and can be changed only by a method different from that whereby other laws that are enacted or repealed by legislature only. It can be changed only by a special procedure which is usually laid down in the constitution. Federal constitutions like, U.S.A. , Australia, Switzerland, Canada, South Africa, West Germany, U.S.S.R., Yugoslavia, India, Malaysia and Nigeria had been drafted by their constitutional Assembly and it has clearly lay down specific method of amendment under the provisions of their constitutions. In all the federal constitutions, there is a written constitution, which is known as a Supreme Law or Basic law or Fundamental law of the country, which has a fixed prescribed method for its amendment process. Usually, such amending process of federal constitution is different from the ordinary legislative process. Amending process given in the hands of legislative body, it may be federal legislative body or State legislative body or mixed form of the both bodies. In the U.S.A., the Amending Process provided in the constitution requires a joint collaboration by the Federal and its provincial units. Under Article V of U.S.A., there are two methods of amendments; first method is amendment by congress and second method is amendment through the conventions 3. Under the first method, amendment of the constitution may be proposed by the congress and proposed amendment must be subsequently be rectified by the State Legislatures. While the under the second method, the state Legislatures may request to congress summon a constitutional convention. Congress shall thereupon do so, having no option to refuse the proposal and then convention drafted and submitted to amendments. Then convention may be called in the several states and it may be ratified by them. In U.S.A. there is provision of the convention method, but there is no specified method for composing to the body of conventions. However convention method of amendment has been given in the U.S.A constitution, but on many of the occasions on which the amending power has been exercise first method of amendment has been employed and no drafting conventions of the whole union or ratifying conventions in the several states have ever been summoned 4 .Convention method of U.S.A. was not adopted by other countries, because that method would not get success in own country and it is a very long and complicated process of amendment. In convention methods both legislative bodies centre as well as states form a new amending body which takes enormous time.

to initiate a amending billwhen the concern of state is lacke and people also have no direct voice as citizen of Switzerland have. Only the parliament has only power to initiate a amending bill. In the constitution of Nigeria 1979, in the Matter of amendment section 9 itself and provisions relating to the creation of states or alteration of boundaries,37 states legislature consent are necessary with the central legislative body. Thus, No amendment can be made in Nigeria unless it is passed by two-third majority of federal legislature and two-third majority of States. In special case it is required that, it must be passed by four-fifth of federal. 9 Thus, it may be submitted that Switzerland is a best example for the direct voice of people, in which initiative power, in matter of partial or total revision is vests with the people. Switzerland established a representative institution in such a way in which a direct participation of the people is accepted which is a very distinctive characteristic of Swiss democracy. In other Federal constitution the power of initiating the amending bill is only vested in the hands of federal legislative only. However in Australia people are associated with the amending process by the permission through referendum but people have no power to initiate an amending bill. Rest of the federal constitution like constitution of West Germany, Constitution of South Africa and Constitution of U.S.S.R. etc., enjoys Amending powers that are exclusively vested in the hands of Federal legislative bodies and there is no necessity of ratification by the provincial states A special procedure for the amendment of the Indian constitution is given in the Article 368 of the Constitution. Under Article 368 (1), an amendment of Indian constitution may be initiated only by the introduction of a bill for the purpose of amedment in either house of Parliament and when the bill is passed in each House by Majority of the total membership of that house and by majority of Not less than two-thirds of the members of that House present and voting, it shall be presented to the president who shall give his assent to the bill and thereupon the constitution shall stand amended in accordance with the term of bill. For the amendment of these provisions no ratification by the States is necessary. But in relation to certain provisions consent of State Legislatures are necessary under Article 368(2) there may be amended by a majority of total membership of each House of Parliament and by a majority of not less than two-thirds of the members of each house present and voting and with the concurrence of the half of the Stated. Thus, according to article 368, it is required that an amendment bill should be passed in each House, by majority of the total membership of that House as well as by a majority of not less than two-thirds of members of that House

present and voting. This requirement of a double majority for constitution amendment bill distinguishes nature of bill from that an ordinary bill. This special double majority is to be had not only in anyone House of Parliament but in both houses of parliament. In certain matters, ratification. of one half of the state legislatures also require, with .the total memberShip' of both houses and two-third majority of the both houses under article 368. Thus, it may be submitted that for the federal constitution there must be special procedure for the amendment of the constitution and which must be given in the constitution itself Constitution of U.S.S.R., South Africa, West Germany, and Certain provision, of India constitution may be amended by the simple procedure and there is no necessity of special majority of the Federal constitution though they are also come within the family of federal constitution.The existence of federal government is totally depend on the co-relation of federal and Regional Units of federation without it nobody can think about federal Government so for maintaining to this element in the Federal constitution rigid amending process is adopted. 1 Chaturvedi : ‘ Amendment to the constitution’ 1985 2 Constitutional Assembly Debate Vol IX 2014 3 Basu, D.D: Comparative Constitutional Law 2014 4 Bhagwan, V; Bhushan, V, Mohla V: World Constituion :A Comparative Study 2017 5 Bhagwan, V; Bhushan, V, Mohla V: World Constituion :A Comparative Study 2017 6 Chaturvedi : ‘ Amendment to the constitution’ 1985 7 Bhagwan, V; Bhushan, V, Mohla V: World Constituion :A Comparative Study 2017 (^8) Bhagwan, V; Bhushan, V, Mohla V: World Constituion :A Comparative Study 2017 9 Bhagwan, V; Bhushan, V, Mohla V: World Constituion :A Comparative Study 2017

Comparative Study of Amendability Provisions in Select World Constitutions, Thesis of Law

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CHAPTER 4 – COMARATIVE STUDY OF AMENDABILTY PROVISION IN

SELECTIVE CONSTITUTION OF THE WORLD

INTRODUCTION