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Greece’s Constitutional Revision Dilemmas

–Xenophon Contiades and Alkmene Fotiadou, Centre for European Constitutional Law

Greece is about to revise its Constitution. The question is why now and towards which direction. The timing is connected to the prerequisites of the amending formula, which sets a mandatory time lapse between revisions, that is, revision of the Constitution is not permitted within five years of the completion of the previous one. Thus, despite the fact that ever since the outbreak of the financial crisis discussions about constitutional reform have been ongoing, the initiation of the revision process cannot take place before May 2013.

What has always characterized the manner in which the Greek Constitution changes is distrust, in a political environment marked by conflict and veto-player strategies which are now even more likely to surface due to the enhancement of polarization. In the book Xenophon Contiades (ed.), Engineering Constitutional Change, A Comparative Perspective on Europe, Canada and the USA (Routledge, 2013) which attempts an holistic presentation of constitutional change in 18 countries (the 15 old member states of the EU, USA, Canada and Switzerland) five models of constitutional change are elaborated in the comparative chapter: the elastic model, the evolutionary model, the pragmatic model, the distrust model and the direct democratic model.[i] The distrust model, of which Greece offers a typical example, is characterized by complex amending formulas, political-elite-driven change and difficulty in reaching compromises in constitutional issues. This model is quite distinct from the pragmatic model which is efficiency oriented, as well as from the evolutionary model where difficult to formally change constitutions evolve like living organisms though informal change, mainly effected by the judge.[ii] Greece is now at constitutional crossroads and all political parties have elaborated revision proposals. The question is whether political actors shall be able to overcome distrust. For the first time since the restoration of democracy such major focus is placed on the revision of the Constitution. Still, it is hard to see why what had always blocked change, since the ratio of the formula demands a degree of consensus out of place within a polarized political system, will now give way.

The content of the forthcoming revision shall be determined by multiple parameters. To begin with, the stringent amending formula (Art. 110 Greek Const.) sets out a series of material limits that entrench the form of government and specific fundamental rights. Secondly, constitutional experts express two distinct tendencies: on one hand many support that no major modifications should be made to the text of the Constitution and are favourable to regular updating and maintenance as they believe that all necessary changes to the political system and fundamental rights should take place by way of informal change. On the other hand suggestions for major reforms are put forth, even reaching as far as the idea of convoking a Constituent Assembly that will enact a new Constitution marking the beginning of a new era. What’s more, a revision of the amending formula is highly likely to take place.  The relaxation of the procedural requirements it sets out, including the mandatory time lapse between revisions, and the infusion of more popular participation into the process are widely discussed. This tendency aims to control the impact of political distrust on the revision process: the way in which the required majorities are now laid down by the amending formula does not facilitate achieving consensual constitutional revisions.[iii] Inevitably such change shall impact the rigidity level of the Constitution at a time when sober reflection on constitutional issues is crucial.

The future will show whether the time-constraint, which blocked the way to any formal constitutional change during the previous years of the ongoing financial crisis, shall have a positive or negative effect. What is clear is that at the exact point when the initiation of a formal amendment process revision became constitutionally feasible the subject became top on the political agenda preoccupying constitutional and political dialogue. The determining factor is the stance the political class shall keep toward the forthcoming revision. The stakes are high since the political system is currently undergoing changes, while the last general elections in June resulted in unprecedented fragmentation as seven political parties entered Parliament, including for the first time a party of the extreme right, the ultra-nationalist Golden Dawn, which even employs neo-Nazi symbolisms. Is this the context for achieving major constitutional changes?

 

Suggested Citation: Xenophon Contiades & Alkmene Fotiadou, Greece’s Constitutional Revision Dilemmas, Int’l J. Const. L. Blog, Mar. 18, 2013, available at: http://www.iconnectblog.com/2013/03/greeces-constitutional-revision-dilemmas.


[i] X. Contiades and A. Fotiadou, Models of constitutional change, in X. Contiades (ed.), Engineering Constitutional Change, Routledge 2013, 417.

[ii] See the Canadian example in A. Hutchinson, Constitutional change and constitutional amendment: A Canadian Conundrum, in X. Contiades (ed.) op.cit., 51.

[iii] See X. Contiades and I. Tassopoulos, Constitutional change in Greece, in X. Contiades (ed.) op. cit., 160.

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Published on March 18, 2013
Author:          Filed under: Analysis
 

4 Responses

  1. My initial reaction to the question your interesting post raises–whether the current political and economic climate is conducive to sober constitutional reflection–is to say no, that these are not the optimal conditions within which to engage in a constitutional revision. I liken the situation in Greece to an emergency period. Many constitutions prohibit constitutional amendments during times of emergency because emergencies can distort priorities and incentives.

    But perhaps there is an equally-compelling argument to the contrary. I wonder if we might not argue that now–as Greece experiences serious pressures economically, politically and socially–is the best time to think about both how to adapt the constitution to respond to the current challenges and how to design the constitution to anticipate and weather future unforeseen challenges. This view of course assumes goodwill on the part of political actors as well as broad agreement on the road ahead.

  2. Thanks for your comment. The question is not an easy one to address. Indeed constitutional inertia attributable to the amendment formula is not optimal at a time when the country is faced with multiple challenges – some of which requiring constitutional responses. The procedural hurdles in combination with the material limits art. 110 Greek Const. sets out could perhaps be viewed as “constitutional handcuffs”. Still as constitutional revision in Greece is political-elite driven and the political situation is very fluid at this point, a broad agreement seems very difficult to achieve. What is certain is that the upcoming constitutional revision shall provide an ideal test area for the tension between constitutionalism and democracy.

  3. I’m grateful for your reference to “constitutional handcuffs.” Thank you!

    It will be interesting to see how things unfold in Greece, especially if the amendment procedures are triggered in May as the constitution allows.

    In some ways, the difficulty of formal amendment in Greece is similar to the situation in the United States. Many agree that there is a pressing need to amend the constitution, both in Greece and the United States, and for various reasons related to the economy (in the United States, a recurring amendment proposal concerns a balanced-budget amendment). Yet the political climate in both countries has made it difficult to imagine the requisite supermajorities ever agreeing on the details of any proposal.

  4. […] options being discussed is an amendment to relax the stringency of existing amendment procedures (discussed here). The flip side of avoiding rash constitutional change by a narrow majority of MPs acting for party […]

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