Entrenchment clause

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An entrenchment clause of a constitution is a provision which makes certain amendments either more difficult than others or impossible. It may require some form of supermajority, a referendum or the consent of some other party if it is allowed at all.

An entrenchment clause whose intent is to prevent subsequent amendments, will, once it is adopted, and provided that it is correctly drafted, make some portion of a constitution irrevocable except through the assertion of the right of revolution.

They are usually justified as protecting the rights of a minority from the dangers of majoritarianism, but they are often challenged by their opponents as being particularly undemocratic.

As examples of inadmissible constitutional amendments, Article Five of the United States Constitution contained two entrenchment clauses. One clause prohibited any constitutional amendment regarding the international slave trade. This clause expired in 1808. The other clause, still in effect, states that "no State, without its Consent, shall be deprived of its equal suffrage in the Senate". This has been interpreted to require unanimous ratification of any amendment altering the composition of the United States Senate.^{[citation needed]} 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. The unratified Corwin amendment would have amounted to another entrenchment clause, protecting states' rights to continue slavery.

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 entrenchment 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 (Amendment) Act 1971. The Act permitted criminalisation of the questioning of Articles 152, 153, 181, and Part III of the Constitution. Article 152 specifies 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 further entrench them, the Act also amended Article 159(5), which covers Constitutional amendments, to prohibit the amending of the aforementioned Articles, as well as Article 159(5), 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.^[1]

There are several examples of entrenchment clauses which ultimately failed in their objectives, since their protections were undermined in unintended ways. The Irish Free State Constitution was required in parts to be consistent with the 1922 Anglo-Irish Treaty, including an oath of allegiance and a representative of the Crown. The checks to protect this were removed by, for example, the Irish taking control of advice to the Governor-General, and when the Senate proved obstructive its abolition. Another example of a failed entrenchment clause is the initial constitution of the Union of South Africa. The constitution's entrenchment clauses protected voting rights, including those of some Coloureds, but they lost their votes after the Government packed the Senate and Supreme Court with its sympathisers.