Introduction

However, several perspectives might be worth to be considered for the search of a proper balance and the one or the other option selected by other countries might support the search for the necessary individual approach.

Constitutions –especially deriving out of a conflict- are often the result of a carefully negotiated arrangement. And although the adoption of such a constitution might be the first step to a more tranquil live, not all stakeholders to the constitutional agreement feels comfortable with the compromise found. The temptation might be high to introduce hasty or retrogressive amendments, as soon as the opportunity might fit. Taking this perspective, an amendment of the constitution should only be allowed under rare circumstances with high thresholds to overcome.

On the other side, every political system needs to be modified over time as a result of some combination of (1) changes in the environment within which the political system operates (including economics, technology, foreign relations, demographics, etc.); (2) changes in the value system distributed across the population; (3) unwanted or unexpected institutional effects; and (4) the cumulative effect of decisions made by the legislature, executive, and judiciary. Again, especially in a society emerging from conflict, some provisions that were thought indispensible for stabilizing the country in the first place, might proof cumbersome at a later stage. If constitutional regulations become an insurmountable obstacle to adapt to changing circumstances, the constitution remains silent to the present needs of the society and departs from real live. It might get either ignored or becomes the source of new unrest. In other words, a constitution that will not bend might break.

Analyzing the vast variety of options selected / created by countries, two common denominators become obvious:

• the national legislature is generally involved in the constitutional amendment procedure;
• the threshold for amending the constitution is generally higher than the one required for passing a law, be it through a qualified majority within the legislature or / and through additional requirements as part of the amending procedure.

The need for a higher threshold for constitutional amendments is commonly shared, considering its sensitive implications: In contrast to ordinary legislation that embodies the policy decisions on which the majority ought to have its way, the constitution establishes more fundamental principles and institutions, including the procedures of ordinary legislation and limits on majoritarian power. If the power of ordinary legislation is exercised carelessly, no structural damage is done and its products may be repealed or corrected the next day. But if the principles and institutions of the constitution are carelessly revised, the channel of correction may itself have been removed or obstructed, and the only remedy may be a period in political purgatory while the nation establishes new, acceptable procedures.

Beyond the common denominators, several aspects have gained different attention in different countries. Basically, three major aspects are to be considered with specific care while drafting a provision for the amendment of the constitution:

• Who should be allowed to initiate a constitutional amendment? More

• Who should be involved in the amendment procedure beyond the national legislature? What kind of additional constraints might be required in the constitutional amendment process?

• Should all constitutional provisions be subject to the same amendment procedure or should there be different ways for amendment depending on the importance, the content or the sensitivity of the pertinent provision?