Stone Clauses

An interesting legal debate has arisen regarding the constitutional reform proposed by President Louis Abinader, which, as part of a plan to protect the current presidential electoral formula, consists in inserting a clause in article 268 of the Constitution prohibiting constitutional reforms based on the said formula.

The controversy arises because Article 272 of the Constitution provides that “when reforms involve the reform procedure provided for in this Constitution, a referendum by a majority of citizens with the right to vote is required”. Some legal scholars believe that Article 268 is part of the constitutional reform procedure and therefore requires approval by a referendum, while other legal scholars believe that the article only stipulates the content of the prohibited reforms and does not constitute part of the constitutional reform procedure itself.

In this regard, as we have been doing since the beginning of this debate, we adhere to the doctrine of comparative constitutional law, such as Ignacio Columba Murúa, who established the “fundamental annotations that constitute the Constitution” in terms of intangible clauses. The characteristics of this type of clauses are: their explicit provision – that is, their explicit provision in the text of the Constitution – the declaration that certain contents cannot be amended – through them, the Constitution itself, in a self-referential way, stipulates that certain contents cannot be amended. Become the object of review. It is also important to understand that they constitute part of the reform procedure – these clauses must serve as an explicit limit to constitutional reform. “

In this sense, the location of Article 268 in the Constitutional headings is included under these headings (e.g., territorial planning).

It is important to emphasize that the procedural nature of the intangibles clause led the Spanish Principles to establish an aggravation procedure when it comes to intangibles clauses, when evaluating article 168 of the Spanish Constitution (a constitution without intangibles clauses) and the Comprehensive Reform, stating that “the aggravation procedure can in fact be considered an intangible clause in itself, since it is formulated as a set of requirements, which makes it difficult for constitutional reform to bear fruit in practice” (Nerea Grana Chevo).

It should be noted that the decision to make certain constitutional contents unreformable, depriving the majority of the power to exercise constitutional reform over them in the future, must be subsequently subject to the scrutiny of a referendum, especially with the general and democratic support of this fundamental political decision. Once the said content is petrified, in principle, at least for those of us who believe in the validity of stone clauses, any reform of it and any operation to separate it from the invisible scope of stone clauses is so ineffective that it is de-petrified and then reformed. If this requirement of the referendum is not met, the constitutional shield may disappear due to the uncertainty inherent in the judicial control of constitutionality.