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Ethiopian Civil Service University
School of Law and Federalism
Comparative Constitutional Law
Module Code: CPLG6031 Fasil Alemayehu, (LLB,LLM) Assistant Professor Chapter One: Introduction 1.1 What is a Constitution? Historically, the term was used to describe the body politic (a situation of a country as determined by its geography, climate, population and laws etc). In the 18th Century, its meaning was narrowed down to describe the state of a country as determined by its basic laws or legal structure (not the laws themselves as such). • Roman Law, the term ‘Constitutio’ referred to imperial decrees/ law issued by the emperor. • It also meant a settlement agreed upon by the disputants without a trial or the sum paid according to such settlement. • English Law, a statute/ an act or a provision of a statute/ act. • Modern Usage, a fundamental organic law of a state that establishes the organs/ institutions of govt, defines their powers and guarantees individual rights and liberties. • It also refers to the written instrument that embodies this fundamental law, together with any amendments. If it was used in a legal sense, it was used to describe certain types of laws enacted by the emperor, usually Criminal Codes (Ex Constitutio Criminalis Carolina of 1532 (Germany under the holy roman Empire) and CC Theresiana (Austrian Empire) of 1768). These laws regulated individual, not government, behavior. The laws that governed government behavior, the exercise of public power, were not conceived as constitution but as ‘Fundamental Laws’ or Basic Laws’ or ‘Governmental Compact’. These laws, as opposed to modern constitutions, lacked constitutive force and fail to provide complete regulation. They were called constitutions, by supporters of the old regimes and later by historians. In England, the term constitution was used to describe a formal law enacted by the emperor/king, which was later replaced by the term ‘statute’, i.e., laws enacted by the legislature. Oliver Cromwell’s written document/ law that constituted a republican govt after the revolution that removed the monarchy was called ‘instrument of govt’ not constitution. The same is true of the basic law that restored the monarchy in 1688 (after the Glorious Revolution of ) but with a power shift towards the parliament. In its modern sense (since the American and French Revolutions), the term constitution refers to the laws that constituted legitimate public power whose source is not the ruler himself, but the people. The legitimating principle of these modern constitutions was popular sovereignty instead of monarchical or parliamentary sovereignty. The governments that were established by these constitutions were limited (both in substance and in form) govts. Substantive limitations refer to the limitations on govt power by the provisions on fundamental rights and freedoms. Limitations in form refer to the principle of separation of powers, which was based on the idea that, freedom of individuals could best be served if govt powers are distributed among various organs (not concentrated in the hands of a single man or organ). 1.2 Characteristics of Modern Constitutions A modern constitution has the following main features/ characteristics. It is a set of legal norms that emanate from a political decision rather than some pre-established truth. The source of legitimacy of the constitution is the will of the people. Its aim is to regulate the establishment and exercise of public power (regulation implies limitation). Its regulation is comprehensive (no pre or extra constitutional bearers of public power/ and no pre or extra constitutional means to exercise these powers is recognized). It enjoys supremacy over all other laws. Laws and actions that are incompatible with the constitution shall be null and void. Written and enacted in a document. 1.3 Types of Constitutions Constitutions are categorised into various types based various grounds. The categories are not absolute or mutually exclusive, as a constitution may fall within several types at the same time. Some of the most common classifications include; A/ Written v Unwritten Constitutions British constitution; there is no single document that is adopted as a constitution. It is made up of several documents (as old as the 1689 bill of rights and recent acts as the human rights act of 1998)), and Unwritten norms/ rules Israeli Constitution, no written constitution b/se the first Knesset (which was elected as a constituent assembly failed to discharge this task). However, it has various basic laws that, according to the supreme court, form the constitution of the country. # codified vs uncodified constitutions; Austria, France and Germany have codified constitutions, but there are separate acts/ laws that regulate constitutional matters. Ex. The electoral law is considered as a constitutional law in Germany. In France, these laws are (Organic Law) enacted in a special procedure and rank above other ordinary laws. New Zealand, No written constitution. B/ Rigid vs Flexible Constitutions; Based on the rules of Constitutional amendment. Closely related to the principle of constitutional supremacy. In certain constitutions, certain provisions can not be amended, Ex, Germany, the principles of democracy, rule of law, federal structure and human dignity and equality, Similarly, in France and Italy, the provisions on republican form of govt can not be amended, In others, an election must be held between the initiation and approval/adoption of a constitutional amendment (Ex Belgium, Denmark, France…). Why? In others, more stringent requirements for amendment are provided. For Ex. US Constitution, the provision on equal representation of all states in the senate can only be amended with the agreement of all states. In Ethiopia, refer to art 104 and 105.
Flexible Constitutions; constitutions whose amendments do not
require special procedure or less stringent requirements. For Example, British constitution, the Netherlands… C/ Effective Vs Symbolic Many constitutions in the world remain on the paper, some are intended as a window dressing from the very start, Others are suspended soon after adoption and others are regularly violated/ disregarded when their norms conflict with political plans and measures. # Carl Loewenstin classifies constitutions into Normative, Nominal and Semantic. Normative Constitutions, political process takes place within the constitutional framework, political actors (the governors and the governed) usually comply with constitutional norms. The socio-political environment is conducive and the values of constitutionalism are enternalized. the constitution from being applied faithfully, regardless of the interests of the power holders. Ex, lack of democratic culture, poor/weak institutions, lack of awareness…, lack of human and financial resources. Semantic Constitutions, constitutions without limitations (both formal and substantive) and reflect the political reality. Ex. The 1931 and 1955 Ethiopian Constitutions. D/ With formal/ procedural limitation (US) and those with both formal and substantive limits on govt power. E/ Higher Law Vs Ordinary Law, in the past most European constitutions were understood as not binding on the legislature, which could enact laws that negate the constitutional provisions (particularly human rights). The Canadian Charter of Rights and Freedoms of 1982 does not mention the judiciary as bound by the fundamental rights provisions. In some countries, constitutional law/ ranked on the same level as ordinary laws. Constitutionalism The term constitutionalism means that the power of leaders and government bodies is limited, and that these limits can be enforced through established procedures. It refers to a government that is, in the first instance, devoted both to the good of the entire community and to the preservation of the rights of individual persons. That a government does not derive its power from itself, but gains its power from the people through the constitution, which is the supreme law of the land. This concept is in sharp opposition to monarchies, theocracies, and dictatorships, in which the power does not derive from a pre-drawn legal document. In a monarchy, the power is derived as an inalienable right of the king or queen. In a theocracy, all of the power of a ruler is derived from a set of religious beliefs, which are thought to derive from God, and in a dictatorship, the power is derived from the will of a single person or group of persons 1.4 Constitutional Devt in Ethiopia A/ The 1931 Constitution Granted by the emperor Aimed at centralization and consolidation of the emperor’s power and creating a unified nation state Drafted by a foreign educated Ethiopian, Bejirond Teklehawariat Teklegiorgis, Relied on Japanese constitution of 1889 (the Meiji Constitution) which was adopted after Japan opened its doors to the West. It attempted to preserve the centuries old monarchy and tradition and introduce parliamentary govt. The emperor was the source and repository of all state power and the sovereign, elect of God. It established the three branches of govt, but the emperor was the supreme leader/ head of all these branches. It established a bicameral parliament, the house/ council of representatives (the lower house) and the senate (upper house). Members of the senate were selected by the emperor from among the nobility, high ranking civil and military officers. Members of the lower house were selected by the nobility and local governors (until the people is able to elect its representatives) The parliament can not discuss an issue without the emperors The emperor could dismiss/ expel members of the lower house and dissolve parliament. Contained certain/ limited rights and freedoms, including, Right to participate in govt (civil, administrative, judicial and military positions) Freedom of movement Protection against arbitrary arrest Privacy and protection against arbitrary search and seizure Right to property. B/ The 1955 Revised Constitution Granted by the emperor who is the sovereign and above all law Required by the needs of the time, federation with Eritrea which had a modern constitution adopted by the UN. Provided for a bicameral parliament, Members of the lower house (House of Representatives) to be elected Members of the upper house (the Senate) appointed by the emperor from among the nobility, lords and former high ranking govt officials (Compare house of lords in the UK) Passing of laws requires the agreement of both houses The emperor may issue laws through decrees in cases where the parliament is not in session and is urgent, but must be approved/ when it returns to session The emperor had veto power over legislations The emperor may dissolve the parliament, Orthodox Christianity is the official state religion and the emperor must be an orthodox The emperor had the final say/ approval on appointment of church leaders (the patriarch and bishops) Provides for basic rights including freedom of religion (subject to public morals, security and non interference in politics) Inter’l treaties part of the constitution and had equal status Amendment by ¾ majority in each house and approval by the emperor, in two parliamentary session years (cooling period) How do you evaluate this constitution in light of modern constitution and the political system it creates? C/ 1974 Draft Constitution Was an attempt to address popular grievances against the emperor and his govt. It envisaged to limit the emperor’s absolute power (establish a constitutional monarchy) Recognized the peoples of Ethiopia as the sovereign and source of political power (popular sovereignty) Established a bicameral parliament, with elected members (lower house) and senators (upper house) appointed by the Council of minsters (15), by the provincial councils (60), by municipalities of major cities (15) which was intended to be the ultimate political organ of the country The executive (council of ministers) had very strong powers (Ex it had a limited legislative power to stop a legislation and return it parliament). The prime minister was to be appointed by the parliament and confirmed by the emperor. May the emperor refuse to do so? The pm shall appoint ministers with the approval of the emperor Judges were to be appointed by a judicial adm council Provided for conflict of interest rules for public officials and civil servants (prohibition of other paid jobs and involvement in business). It also required them to declare and register their assets Amendment by 2/3 majority in each house and three months cooling period. C/ Provisional Military Govt Establishment Pro No 1 1974 Deposed the emperor and put the crown prince (Merid Azmach Asfa Wosen) as the new king (in his absence). But he would have no political and adm roles. Abolished the parliament (for being undemocratic, failing to represent the people and addressing their problems ex land tenure). Suspended the 1955 constitution and promised a new democratic constitution soon. Established a provisional military govt until an election is held and a new govt is established. Prohibited opposition demonstrations/ strikes… Established a military court to try the cases of people who violate this and future laws and officials of former govt () No appeal against the decision of the court Existing laws remained in force in so far as they are consistent with this law D/ The 1987 (PDRE) Constitution A socialist constitution, adopted by a referendum in January 1987 Established a socialist govt (govt of the working people) under the vanguard of the WPE (Workers’ Party of Ethiopia) The working people was sovereign and ultimate source of power, represented by the national shengo/ council and local shengos. Socialist Ethiopia, a unitary state but recognizes diversity and equality of its nationalities, languages and cultures. A single party system and command economy (public ownership of means of production) and central planning. Compulsory national military service. Equality of women and recognition of their role in the revolution. Amendment by ¾ majority of the national shengo D/ The Transitional Charter June 1991 Established a transitional govt made of various political groups Two branches (the council of representatives and council of ministers) Incorporated the UDHR as part of the charter and the laws of the country Recognized the right to self determination of Ethiopian nationalities Provided for the establishment of constitution drafting commission (by the council of representatives) Provided for the establishment of national/ regional governments (by the council of representatives) Supreme law 1.5 Constitutional Law What is constitutional Law? The law contained in a written codified constitution or plausibly inferred from it. (‘Big C’ constitutional law/ PRIMARY meaning. Supreme, entrenched and enforced through judicial review. Content/subject matter does not matter/ formal constitution. ‘Small c’ (SECONDARY meaning) constitutional law, the subpart/ subset of the aggregate body of rules, practices and understandings determining the actual allocation of public power and its limits, having formal legal status. This meaning of the term has been limited to systems lacking written and codified constitution, such as the UK. Also possible in a system with a big C constitution Content/ subject matter is important. Ex, Super Statutes (Civil Rights Act of 1964, USA) and Constitutional statute (the Human rights Act of 1998,UK), udhr, iccpr… Since these are entrenched and recognized as higher laws, they represent a trend towards constitutionalization without ‘big C’ constitutions. The trend is that constitutional law is not limited to written constitutions, hence the notions of common law and statutory constitutions. A shift towards substantive aspects/ matters over formal aspects to determine what constitutional law is. 1.5.1 Views on the place/ role of const’l law Political constitutionalism; all moral, political, legal issues should be resolved politically through ordinary/ non constitutional laws enacted by the law maker (elected political body). The constraints on the legislature should be political and enforced through the political process (elections), not legal/ judicially enforced Removing rights from the political sphere/ legalizing rights/ is both ineffective and illegitimate means of upholding them Legal constitutionalism; constitutional law should (that is, its function is to) resolve some moral/political/legal issues and conflicts in society. (ex bill of rights vs govt structure and division of powers) typically those that might otherwise undermine or destabilize it—while leaving others to be resolved politically. Total Constitutionalism; constitutional law should it essentially resolve—or strongly influence—virtually all moral, legal, and political conflicts in a society. Through an expansive/ broad interpretation of constitutional rights The constitution should be comprehensive and so that little is left to the free, unmediated play of political forces. constitutional law is not only supreme but comprehensive; It does not simply resolve a few potentially destabilizing issues, but specifies almost all outcomes. Germany, South Africa, Colombia Argentina. 1.5.2 Govt’ structure vs rights protection; Prior to the WWII, the focus of constitutional law has been on the ground rules of govt and democratic govt, in particular, on the essential framework of electoral politics. Rights were typically either not included at all or deemed non-justiciable. By contrast since 1945, the incorporation of judicially enforceable bill of rights into constitutional law has been a standard feature, This is what has been referred to as the ‘rights revolution’ Rights are now a typical part of constitutional law, and Rights protection has come to be viewed as the central and primary function of constitutional law However, in recent years allocation of powers has become the centre of attention in some post conflict states. In Iraq, Bosnia, Kosovo, Sri Lanka, and Northern Ireland, structural issues concerning the allocation of power among rival ethnic or religious groups, and not bills of rights, have been at the heart of constitutional law and politics. 1.5.3 Constitutional law vs Private sphere Does constitutional law regulate the conduct of private actors or just public officials/ govt actors? Do constitutional rights provisions bind all govt actors or only some; and, if only some, which? In particular, do they bind the legislature and the courts? Secondly, does constitutional law apply to private law (and, in common law jurisdictions, to common law) as well as public law? Thirdly, does constitutional law apply to litigation between private individuals? There are three approaches; (a) Vertical effect/ approach, (liberal view) constitutional law’s proper role is regulating the conduct of govt actors in their exercise of public powers. Constitutional law should leave the private sphere to regulate itself. Based on the perceived desirability of privacy, autonomy, free market and federalism (in federations) Constitutional law’s critical function is to provide law for the govt, not private citizens. The Supreme Court of Canada (SCC) has held that Charter rights do not bind the country's courts. Courts in the two Australian states are not bound by the human rights provisions if the bill of rights. By contrast, the German Federal Constitutional Court (FCC) has held that the rights in the Basic Law do bind the courts. Under human rights acts in the UK and two Australian states, these rights do not bind the legislatures (parliamentary sovereignty) (b) Horizontal effect/ approach; Since a constitution is the expression of the fundamental values of the people, it should apply to all. The public-private divide is conceptually incoherent and impractical. Constitutional rights are threatened not just by govt actors, but by powerful persons/ corporations. (c) Indirect horizontal effect There are two different ways in which constitutional rights might regulate private actors, that is have horizontal effect: (1) directly, by governing their conduct; (by imposing constitutional duty) or (2) indirectly, by governing the private laws that regulate their legal relations with each other and that they rely on or invoke in civil disputes. 1.5.4 Constitutional Law and Positive Rights Two common types of constitutional positive rights, (a) Socio economic rights (education, health social security…) (b) Protective rights (protection against violence, right to life, expression and media freedom) • the constitutions of South Africa, Greece, Switzerland, and Ireland contain express rights to state protection. • Elsewhere, protective duties have been implied by the judiciary from certain textual rights that seem on their face negative. • Thus, the best known and most important protective duties in Germany concern the right to life and freedom of expression. • The FCC famously interpreted the former in the First Abortion Case to require the state to protect the lives of fetuses against such private actors as their mothers, presumptively through the criminal law. • The right to freedom of broadcasting was also interpreted by the FCC to require state regulation to ensure the protection of citizens’ access to the full range of political opinions necessary for them to make informed decisions at elections. 1.6 Comparative Constitutional Law Macro Comparison vs Micro Comparison The whole constitutional sys vs Specific aspects Why comparison? Functional approach; a) Developing better understanding of other systems b) Developing a better understanding of ones own system c) Responding to doctrinal or textual questions. d) Identifying best practices (systematic approach) Who does the comparison? Judges/courts Constitutional law practitioners/ lawyers Constitutional law Scholars, students Constitution drafters/ makers Challenges in comparison Time, accessibility, language barriers and the need to understand the broader context (social, political legal) What is normatively good, just is not easy to decide/ is complicated, because contexts differ Establishing causality is even more difficult (good constitution just society) Technical/ methodological challenges, Ex how to select the cases on the basis of which the comparison will be done. Approaches Universalist • the legal problems that confront all societies are essentially similar and that their solutions are fundamentally universal. • Specifically, some argue that basic principles of constitutional law are essentially the same throughout the world. • Accordingly, the principal goals of comparative analysis are; • to identify and highlight the common or universal principles and • to determine how particular constitutional jurisprudences do, or may be made to, conform to those principles. Relativists • all legal problems are so tied to a society's particular history and culture, • hence a solution that is relevant in one constitutional context cannot be relevant, or at least similarly relevant, in another society. • This position is encapsulated in Montesquieu's observation that; ‘the political and civil laws of each nation … should be so appropriate to the people for whom they are made, that it is very unlikely that the laws of one nation can suit another’ • Hence, the legitimate task for comparative analysis would be to; a) Explain how each constitutional system conforms to the singular needs, aspirations, and mores of the particular polity for which it has been designed b) Foster a systematic understanding of how law varies according to the particulars of its socio- political environment and Generally, the principal goal of comparison would be a negative one, i.e., learn what not to do/ from the failures of other systems. In other words, since no two polities are likely to share essentially similar circumstances, there ought to be a strong presumption against use or adaptation of constitutional norms originated beyond one's borders. Critical legal theorists, That comparative constitutional law has a colonizing and hegemonic edge, i.e., it tends to project the gloss of a dominant constitutional culture, such as that of the United States or Germany, onto constitutional systems operating in former colonies and other developing polities. • the function of comparative analysis should be the development of a more critical, reflexive analytical capacity. • Hence, the proper goal for comparative analysis would be the ‘debunking’ of the hegemonic tendencies spread throughout the discipline For Ex, Günther Frankenberg has criticized mainstream comparativists as; ‘Anglo-Eurocentric’ paternalists prone to imposing Western hegemonic approaches on the subject’ and has characterized comparative law as; ‘a postmodern form of conquest executed through legal transplants and harmonization strategies’. Constitution Making and Amendment It is a pre-eminently political act carried out by political actors responsible for selecting evaluating and enforcing societal choices. It is influenced by the socio-political order/environment in which it takes place. Two general ways (i) ex nihilo creation and (ii) CM by the rules. In the ex nihilo model, the process usually starts with the decision to abolish the existing constitutional system and establishment of a provisional govt. Followed by the (auto) determination of the entity/body that will constitute the constituents (constitutional assembly/ commission…) This (constituting) entity/ body may itself undertake the drafting or provide an interim set of rules/ guidelines and establish another body to draft and adopt the constitution. In a democracy, the preferred body to do the drafting and/or adoption is an elected or delegated constituent assembly. The source of the constituent power and legitimacy of the constitution making process is the will of the people. This will is expressed through a free and fair election of members of the assembly and in some cases popular referendum. The constituent assembly usually has a limited mandate /adopt the constitution/ and disbands upon the adoption. It shall not be involved in ordinary legislative task and its members are ineligible to run for parliament (in some systems) In some cases, (Israel 1948 and Romania 1989), a newly elected legislature is empowered to act as a constituent assembly. In Romania, this was followed by a referendum to ratify the constitution so adopted by the legislature. In some cases, constitution making may be an international effort. Either in the form of setting the rules and procedures for the election of the constituent assembly or even drafting. Japan constitution of 1945 (by the USA), German Basic Law of 1949 (by the allied powers) Bosnia and Herzegovina 1990s and Kosovo in the 2000s, where international organizations such as the UN, EU and other mediating bodies participated in the process. Constitution making by the rules, does not involve abolishing the existing system/order. It may take the form of a major amendment to an existing constitution or adopting a new constitution according to existing rules. It is relatively smooth and ensures continuity. It avoids political crisis and problem of legitimacy. It does not require (in most cases) a special constituent body (it is undertaken by the legislature) or adoption by referendum. Exceptions, Switzerland, Austria and Venezuela, . Initiation of the process is not open for the public/ popular initiation is not allowed in most systems/ for fear of populism. Successful in some cases (Spain and Portugal were transformed from fascist regimes to liberal democracies in the 1970s through constitutional amendment) Risks include regression to autocratic rule, examples Turkey, Venezuela, Zimbabwe, Uganda, Burundi and DR Congo… Adoption/Ratification and Certification The final/ last step in the process before its promulgation and coming to force. Often the CA itself has the power to adopt and promulgate the draft constitution. The prevailing contemporary finalizing act is consent of the people in the form of a referendum. Where the process/ CA is required to adhere to certain predefined principles in adoption, the constitution needs to be certified for conformity with such principles. The certification is done either by a court (South Africa) or other body. Amendment Modern constitutional theory holds that a constitution should be made amendable/ revisable to accommodate changes. No human norm should be perpetual, However, the constitution must also be protected from frequent changes/ amendments (as governments change) The nature of the amendment procedure reflects the protection given to the constitution and its supremacy/ popular sovereignty. Procedural limitations include; subjecting the amendment to referendum (Switzerland, Austria), qualified/ special majorities in the legislature and cooling down periods. Substantive limitations, constitutional provisions that prohibit amendment of certain fundamental ideas and principles of the constitution. Examples, in the German Basic Law, human dignity, separation of powers and federal state structure are un-amendable/ immutable. In France, the republican form of govt is immutable. The constitutions of Portugal, Romania, Austria… have such provisions protecting certain principles/ ideals. Implied limitations, not expressly declared immutable but assumed immutable (bills of rights, Indian constitution/ supreme court) Judicial protection, constitutional courts in some systems (Germany, Romania, Austria) are expressly authorized to review constitutionality of amendments. The Indian supreme court held that it has an unwritten mandate to protect the basic elements of the constitution against unconstitutional amendments. The supreme courts of Pakistan and Bangladesh have also adopted this position. Some argue that Immutable provisions pose challenge to the idea of constituent power of the people/ popular sovereignty. However, others (Benjamin Constant, constitutionalist doctrine) maintain that popular sovereignty is never absolute, and does not include the destruction of the fundamentals of its very existence by authorising despotism. Fundamental human rights can not be disposed of, even by the people. Further Reading; Constitution Making: Process and Substance, Claude Klein and Andreas Sajo. Chapter Two; Horizontal Structuring of Powers 2.1 Definition It refers to the allocation of state powers among the organs of govt within the same level of geographic organization. i.e., between the legislature, the executive and the judicial branches. It should be distinguished from vertical separation of powers (between organs of govt at different levels of geographic organization). Example, between federal and state govts, between central and local govts etc. Some systems employ a sharp distinction/ strong separation of legislative and executive powers (Ex, presidential systems, such as the USA) Others are characterised by weak separation of powers or fusion of powers (parliamentary systems such as the UK and Ethiopia) Legislative powers may be further divided by creating bicameral legislature Executive powers may be further divided between the president’s and prime minister’s office Why Separation of Powers? It inhibits/ restrains govt action and tyranny Specialization and division of labour; different govt bodies are more competent in certain tasks Ensures democratic legitimacy Checks and balances John Locke, (Second Treatise on Govt 1689) argued that human frailty/weakness leads men to grab all power. It is dangerous for the same person/s to make and execute laws. He maintained that the legislature is/ should be the supreme power, and that in all constitutional monarchies and well framed govts, the legislative and executive powers must be in distinct hands. Montesquieu (The Spirit of Laws, 1748) argues that despotic govts are undesirable, since the leave their subjects in poverty, insecurity and fear. Stable republican govts, on the other hand, create conditions of liberty and prosperity. He argues that power is susceptible to abuse. Hence it is necessary that such power be checked by another power. Public power should be divided between different persons/organs which would act as a check on each other. 2.2 Origin and Development Its origin can be traced back to ancient Greece and Rome Aristotle argued about the need to combine monarchy, aristocracy and democracy. Polybius and Cicero argued that the Roman Republic constituted a successful form of Mixed govt through its combination of monarchy (rule by one with his counsels), aristocracy (rule by few- the senate) and democracy (rule by many-the people, the assemblies) each of which checked and balanced the other. In England, the idea of functional separation/ division of powers emerged as a result of the struggle between the Crown and the Parliament in the 17th century. The law making power was the monopoly of the parliament The power of executing/ applying the law to particular cases was the domain of the crown. The Bill of Rights Act 1689 established some of the central principles of English constitutional monarchy and separation of powers by; Prohibiting the crown from suspending or executing laws without the consent of the parliament. making parliamentary consent necessary for the crown to raise revenue (impose taxes) and to maintain a standing army Making the election of MPs free (the crown shall have no role in the process and persons holding positions under the crown or receive pension there from were in illegible for election to the house of commons) Guaranteeing independence of the judiciary, (judges shall remain in office during good behaviour and only be removed by the parliament) 2.3 Executive and Legislative Powers in Parliamentary and Presidential Systems Basic Distinctions The chief executive (the president) is elected separately from the MPs While in parliamentary system, the Prime Minister is elected by the parliament from among its members (the party holding the majority seat) The PM could be removed from his/her post by the legislature by a no confidence vote The president’s tenure is not dependent on parliamentary approval (independent from parliament/ majority party) The president is the head of govt as well as the head of state, while the PM is the head of govt only The president may be from a party other than the one holding majority seat in the parliament The PM and his/her cabinet are from the majority party and are controlled by the latter The PM and ministers remain members of the parliament and play a greater role in shaping its legislative agenda. The PM controls the parliament through his party and his power to dissolve the parliament (call new elections) The president does not have such powers, but may veto legislations unless they are passed special majority (Ex USA, 2/3 majority) Presidential systems represent higher degree of separation of powers between the legislature and the executive Parliamentary systems, on the other hand, are characterised by greater fusion of these powers/ weak separation/ When the president lacks the support of the legislature, the system may face deadlock/ paralysis----frustration and even constitutional breakdown, ex Venezuela in 2015. Parliamentary systems, on the other hand, are less likely to face such deadlocks Some presidential systems/ constitutions try to address this issue by giving the president more legislative powers Ex, power to initiate laws or exclusive power to initiate laws on certain matters; power to make laws unless rejected by the parliament; independent power to appoint govt officials and power to declare state of emergency. Between these systems, other intermidiate forms of govt. Semi-parliamentarism (where the legislative power is more prominent, ex Germany) Federal Republic of Germany Legislature, bicameral The Budestag (directly elected by the people) and the Bundesrat (representatives of the Laenders) Each Land shall have at least three votes; Laender with more than two million inhabitants shall have four, Laender with more than six million inhabitants shall have five votes. Every Land may delegate as many members as it has votes. The votes of each Land may be given only as a block vote and only by members present or their representatives. The German Basic Law creates two executive offices, the president and the chancellor The president is the head of state, and has a non-partisan role He/she is elected by the Federal Convention, the Bundestag and representatives of the Laenders, chaired by the president of the Bundestag. The Federal President may not be a member of the Government nor of a legislative body of the Federation or a Land. The Federal President shall represent the Federation in matters concerning international law. He shall conclude treaties with foreign states on behalf of the Federation. He shall accredit and receive the envoys. The Federal President shall appoint and dismiss the federal judges and the federal officials unless otherwise determined by law. He shall exercise the right of pardon on behalf of the Federation in individual cases. He may delegate these powers to other authorities. The Bundestag or the Bundesrat may impeach the Federal President before the Federal Constitutional Court on account of wilful violation of the Basic Law or any other federal law. The motion for impeachment must be brought in by at least one-quarter of the members of the Bundestag or one-quarter of the votes of the Bundesrat. The decision to impeach shall require the majority of two-thirds of the members of the Bundestag or of two-thirds of the votes of the Bundesrat. The prosecution shall be conducted by a person commissioned by the impeaching body. If the Federal Constitutional Court finds that the Federal President is guilty of a wilful violation of the Basic Law or of any other federal law, it may declare him to have forfeited his office. After the institution of impeachment proceedings, the Federal Constitutional Court may, by interim order, determine that the Federal President is prevented from performing the duties of his office. The Federal Government shall consist of the Federal Chancellor and the Federal Ministers. The Federal Chancellor shall be elected by the Bundestag on the proposal of the Federal President. The person who has received the votes of the majority of the members of the Bundestag shall be elected. He shall be appointed by the Federal President. If the person nominated is not elected, the Bundestag may, within fourteen days after the ballot, elect a Federal Chancellor by more than one half of its members. If the Federal Chancellor is not elected within this time limit a new ballot shall take place immediately, in which the person who receives most votes shall be elected. If the person elected receives the votes of the majority of the members of the Bundestag the Federal President must, within 7 days after the election, appoint him. If the person elected does not obtain this majority the Federal President must, within seven days, either appoint him or dissolve the Bundestag. The Federal Ministers shall be appointed and dismissed by the Federal President upon the proposal of the Federal Chancellor. The Federal Chancellor shall conduct its business in accordance with Standing Orders (Rules of Procedure) adopted by the Federal Government and approved by the Federal President. The Bundestag may express its lack of confidence in the Federal Chancellor only by electing a successor with the majority of its members and submitting a request to the Federal President for the dismissal of the Federal Chancellor. The Federal President must comply with the request and appoint the person elected. There must be an interval of 48 hours between the motion and the election. If a motion of the Federal Chancellor to receive a vote of confidence does not obtain the support of the majority of the members of the Bundestag, the Federal President may, upon the proposal of the Federal Chancellor, dissolve the Bundestag within 21 days. The right of dissolution shall lapse as soon as the Bundestag, with the majority of its members, elects another Federal Chancellor. There must be an interval of 48 hours between the introduction of, and the vote on, the motion. Semi-presidentialism (where the executive power is more prominent, ex RSA). The president is appointed by parliament (the National Assembly), the council of provinces has no role The president is both the head of state and govt He/she may be impeached by a 2/3 majority of the NA France, executive power is divided between the president (directly elected, head of state) and The prime minister (appointed by the president, with the approval of the parliament, head of govt) Where the two are from different parties, the PM has more power/ control than usual on domestic matters The parliament is bicameral, (the National Assembly, directly elected by the people) and The senate (indirectly elected/ by provincial councils) Where the two couldn’t agree on a law, the NA has a final say The NA may dissolve the govt through no confidence vote or by refusing to approve/ support govt programs Switzerland Legislature (the Federal Parliament) Subject to the rights of the People and the Cantons, the Federal Parliament is the supreme authority of the Confederation. The Federal parliament comprises two chambers, the HR and the Senate; Both chambers shall be of equal standing. The HR (National Council) is composed of 200 representatives of the People (elected directly by the People according to a system of proportional representation. The seats are allocated to the Cantons according to their relative populations. Each Canton has at least one seat. The Senate (Council of States) is composed of 46 representatives of the Cantons. The Cantons of Obwalden, Nidwalden, Basel-Stadt, Basel-Landschaft, Appenzell Ausserrhoden and Appenzell Innerrhoden each elect one representative; the other Cantons each elect two representatives. The Cantons determine the rules for the election of their representatives to the Council of State The proceedings of the HR and the Senate take place separately. Decisions of the Federal Parliament require the agreement of both Chambers. The Executive Federal Council/ Government The Federal govt/Council is the supreme governing and executive authority of the Confederation. The Federal Council has seven members. The members of the Federal Council are elected by the Federal Parliament following each general election to the HR. They are elected for a term of office of four years. Any Swiss citizen eligible for election to the HR may be elected to the Federal Council/govt. In electing members of the Federal govt, care must be taken to ensure that the various geographical and language regions (German, French, Italian) of the country are appropriately represented. The Federal govt is organised into Departments/ ministries; Each Department is headed by a member of the Federal Council. The Federal Council reaches its decisions as a collegial/collective body. The Federal Council submits drafts of Federal Assembly legislation to the Federal Assembly. The Federal Council enacts legislative provisions in the form of ordinances, provided it has the authority to do so under the Constitution or the law. It ensures the implementation of legislation, the resolutions of the Federal parliament and the judgments of federal judicial authorities. The President of the Confederation chairs the Federal Council. The President and the Vice-President of the Federal Council are elected by the Federal parliament from the members of the Federal Council for a term of office of one year. Re-election for the following year is not permitted. The President may not be elected Vice-President for the following year. Separation of Powers and the Judiciary Independence of the judiciary Appointment appointed/ elected by the parliament (Switzerland, by the president (RSA), nominated by the president and confirmed by the senate (USA), the president (Germany) State court judges elected by popular vote (USA) Life time appointment unless impeached/ removed for incompetence, bribery, violation of the constitution or other law Regular courts vs administrative /specialized courts Delegation of legislative powers What does it mean? Why delegation? Limits/restrictions; The US supreme court has held that congress cannot delegate its entire legislative mandate, legislative reserve. It must at least enact a law that sets out intelligible principles to guide the agency/ department On the other hand, the UK, Australia (Parliamentary systems) recognize unlimited delegation Germany, the legislature must enact laws on fundamental normative areas which affect basic rights In regulatory programs/ issues/ it allows broad delegation. Electoral Systems Are systems that translate the votes cast in a general election into seats won by parties and candidates. The key variables are the electoral formula used (i.e., whether the system is majoritarian or proportional, and the district magnitude (how many members of parliament that district elects). The administrative aspects of elections (such as the distribution of polling places, the nomination of candidates, the registration of voters, who runs the elections and so on), are also of critical importance, The possible advantages of any given electoral system will be undermined unless due attention is paid to these issues. The Importance of Electoral Systems The choice an Electoral system can shape the rules of the game under which democracy is practised, Because an electoral system can effectively determine who is elected and which party gains power In addition, if an electoral system is not considered “fair” and does not allow the opposition to feel that they have the chance to win next time around, an electoral system may encourage losers to work outside the system, use non-democratic, confrontational and even violent tactics. However, it is important to note that a given electoral system will not necessarily work the same way in different countries. The effects of an electoral system depends, to a large extent, upon the socio-political context in which it is used. These effects/ consequences depend upon factors such as; how a society is structured in terms of ideological, religious, ethnic, racial, regional, linguistic, or class divisions; whether the country is an established democracy, a transitional democracy, or a new democracy; whether there is an established party system, whether parties are embryonic and unformed, and how many “serious” parties there are; and whether a particular party’s supporters are geographically concentrated together, or dispersed over a wide area. Objectives of a Democratic Electoral System A. Ensuring a Representative Parliament Representation may take at least three forms; First, geographical representation, i.e., that each region, be it a town or a city, a province or an electoral district, has members of parliament whom they choose and who are ultimately accountable to their area. Second, a parliament should be functionally representative of the party-political situation that exists within the country. Also the representation not only of political parties but also of independent MPs, an effective parliament should adequately reflect the ideological divisions within society. Third descriptive representation which implies that parliament is, to some degree, a “mirror of the nation” which should look, feel, think, and act in a way which reflects the people as a whole. An adequately descriptively representative parliament would include both men and women, the young and old, the wealthy and poor, and reflect the different religious affiliations, linguistic communities and ethnic groups within a society. B. Making Elections Accessible and Meaningful Elections are well and good, but they may mean little to people if it is difficult to vote or if, at the end of the day, their vote makes no difference to the way the nation is governed. The “ease of voting” is determined by factors such as how complex the ballot paper is, how easy it is for the voter to get to a polling place, how up to date the electoral roll is, and how confident the voter will be that his or her ballot is secret. The meaningfulness of elections is determined by how powerful the elected parliament actually is. Hollow or choiceless elections in authoritarian systems, where parliaments have little real influence on the formation of governments or on government policy are meaningless. C. Providing Incentives for Conciliation Electoral systems can be seen not only as ways to constitute governing bodies, but also as a tool of conflict management within a society. Some systems, in some circumstances, will encourage parties to make inclusive appeals for electoral support outside their own core vote base; For instance, even though a party draws its support primarily from black voters, a particular electoral system may give it the incentive to appeal to white, or other, voters. D. Promoting a Parliamentary Opposition Effective governance relies not only upon those “in power” but, almost as much, on those who sit in parliament but are out of government. The electoral system should help ensure the presence of a viable parliamentary opposition grouping which can critically assess legislation, safeguard minority rights, and represent their constituents effectively. Opposition groupings should have enough parliamentary members to be effective, assuming they warrant these members by their performance at the ballot box, and should be able to realistically present an alternative to the current administration. Obviously the strength of parliamentary opposition depends on many factors other than the choice of electoral system, but if the system itself makes parliamentary opposition impotent, democratic governance is inherently weakened. At the same time, the electoral system should hinder the development of a “winner takes all” attitude which leaves rulers blind to other views and the needs and desires of opposition voters, and in which both elections and government itself are seen as zero-sum contests. E. Cost and Administrative Capacity Elections do not take place on the pages of academic books but in the real world, and for this reason the choice of any electoral system is, to some degree, dependent on the cost and administrative capacities of the country involved. For example, a poor nation may not be able to afford the multiple elections required under a Two-Round System, or be able to easily administer a complicated preferential vote count. Major Types of Electoral Systems 1. Plurality-Majority (Majoritarian) Systems The distinguishing features of plurality-majority systems is that they almost always use ‘single- member’ districts. In a First Past the Post system (FPTP), sometimes known as a plurality single-member district system, the winner is the candidate with the most votes, but not necessarily an absolute majority (50+) of the votes. • When this system is used in ‘multi-member’ districts it becomes the Block Vote. Voters have as many votes as there are seats to be filled, and the highest-polling candidates fill the positions regardless of the percentage of the votes they actually achieve. Party Block Vote As in FPTP, voters usually have a single vote but unlike FPTP there are multi-member districts and voters choose between party lists of candidates rather than individuals. The party which wins most votes takes all the seats in the district, and its entire list of candidates is duly elected. As in FPTP, there is no requirement to win an absolute majority of the votes. Alternative Vote Is a relatively unusual electoral system, which today is used only in Australia and, in a modified form, in Nauru. Like elections under a FPTP system, AV elections are usually held in single-member districts. However, AV gives voters considerably more options than FPTP when marking their ballot. Under AV electors rank the candidates in the order of their choice, by marking “1” for their favourite candidate, “2” for their second choice, “3” for their third choice, and so on. The system thus enables voters to express their preferences between candidates, rather than simply their first choice. For this reason, it is often known as “preferential voting”. Like FPTP or Two-Round Systems, a candidate who has won an absolute majority of votes (50% plus one) is immediately elected. However, if no candidate has an absolute majority, under AV the candidate with the lowest number of first preferences is “eliminated” from the count, and his or her ballots are examined for their second preferences. These are then assigned to the remaining candidates in the order as marked on the ballot. This process is repeated until one candidate has an absolute majority, and is declared duly elected. For this reason, AV is usually classified as a majoritarian system, as a candidate requires an absolute majority, and not just a plurality, of all votes cast to secure a seat. One advantage of transferring ballots is that it enables the votes of several aligned candidates to accumulate, so that diverse but related interests can be combined to win representation. AV also enables supporters of candidates who have little hope of being elected to influence, via their second and later preferences, the election of a major candidate. For this reason, it is sometimes argued that AV is the best system for dealing with elections in deeply divided societies, as it can compel candidates to seek not only the votes of their own supporters but also the “second preferences” of others. To attract these preferences, candidates must make broadly-based, centrist appeals to all interests, and not focus on narrower sectarian or extremist issues. 2. Semi-PR Systems Semi-PR systems are those which translate votes cast into seats won in a way that falls somewhere in between the proportionality (PR) systems and the majoritarianism of plurality-majority systems. There are two main types of semi-PR systems: the Single Non-Transferable Vote, and Parallel systems. Under the Single Non-Transferable Vote, each elector has one vote but there are multiple seats in each district to be filled. Those candidates with the highest vote totals fill these positions. This means that in, for example, a four member district, one would need just over 20% of the vote to ensure election. Conversely, a large party with 75% of the vote spread equally among three candidates is likely to take three of the four seats. As of 1997, SNTV is used for parliamentary elections in Jordan and Vanuatu, and for 125 out of 161 seats in the Taiwanese parliament, but its most well known application was for Japanese lower-house elections from 1948–1993. The most important difference between SNTV and the plurality-majority systems described earlier is that SNTV is better able to facilitate minority party representation. The larger the district magnitude (the number of seats in the constituency), the more proportional the system becomes. On the negative side SNTV, as a semi-PR system, is still not able to guarantee that the overall parliamentary results will be proportional. Small parties with say around 10% support, whose votes are widely dispersed, may not win any seats, and larger parties can receive a substantial “seat bonus’’/ difference b/n popular vote and seats won/ which propels a national plurality of the vote into an absolute parliamentary majority. As SNTV gives voters only one vote, the system contains few incentives for political parties to appeal to a broad spectrum of voters in an accommodatory manner. As long as they have a reasonable core vote, they can win seats without needing to appeal to “outsiders”. Furthermore, the fact that multiple candidates of the same party are competing for the same votes means that internal party fragmentation and discord can be accentuated. Parallel Systems Parallel (or mixed) systems use both PR lists and “winner-take- all” districts but, unlike MMP systems, the PR lists do not compensate for any disproportionality within the majoritarian districts. Parallel systems are currently used in 20 countries and are a feature of electoral system design in the 1990s – perhaps because, on the face of it, they appear to combine the benefits of PR lists with single-member district representation. The balance between the number of proportional seats and the number of plurality-majority seats varies greatly. Only in Andorra and Russia is there a 50/50 split. At one extreme, 88% of Tunisia’s MPs are elected by the Party Block, with only 19 members coming from PR lists. At the opposite end, 113 of Somalia’s seats are proportionally elected and only 10 are based on First Past the Post districts. However, in most cases the balance is much closer. For example, Japan elects 60% of MPs from single- member districts, with the rest coming from PR lists. Parallel systems give mixed results (between straight plurality-majority and PR systems), they do give the voter both a district choice and a party choice on the national level, because they require two ballots. A second advantage is that, when there are enough PR seats, small minority parties who have been unsuccessful in the plurality-majority elections can still be rewarded for their votes by winning seats in the proportional allocation. Lastly, this hybrid system should, in theory, fragment the party system less than a pure PR electoral system. But one downside of this system is that two classes of MPs can be created, one group with districts to look after who are beholden to their local electorate, and a second group chosen from the party lists, without formal constituency ties, who are primarily beholden to their party leaders. In addition, the fact that Parallel systems fail to guarantee overall proportionality means that some parties may still be shut out of representation despite winning substantial numbers of votes. Lastly, parallel systems are also relatively complex, and can leave voters confused as to the nature and operation of the electoral system. 3. Proportional Representation (PR) Systems Proportional Representation (PR) systems are a common choice in many new democracies. Over 20 established democracies, and just under half of all “free” democracies, use some variant of PR PR systems are dominant in Latin America and Western Europe, and make up a third of all the systems in Africa. The rationale underpinning all PR systems is to consciously translate a party’s share of the national votes into a corresponding proportion of parliamentary seats. Seats are often allocated within regionally-based multi-member districts, But in a number of countries (e.g. Germany, Namibia, Israel, Netherlands, Denmark, South Africa, and New Zealand) the parliamentary seat distribution is effectively determined by the overall national vote. List PR Most of the 75 PR systems use some form of List PR; only nine examples use MMP or STV methods. In its most simple form, List PR involves each party presenting a list of candidates to the electorate, Voters vote for a party, and parties receive seats in proportion to their overall share of the national vote. Winning candidates are taken from the lists in order of their position on the lists, as determined by the party. The majority of List PR systems in the world are closed, meaning that the order of candidates to be elected is fixed by the party itself, and voters are not able to express a preference for a particular candidate. Many of the List PR systems used in continental Europe use open lists, in which voters can indicate not just their favoured party, but also their favoured candidate. In compulsory open lists (Finland) voters must vote for candidates, and the order in which candidates are elected is determined by the number of individual votes they receive. While this gives voters much greater freedom over their choice of candidate, it also has some negative effects, because candidates from the same party are competing with each other for votes, This form of open list can lead to intra-party conflict and fragmentation. The Single Transferable Vote (STV) The core principles of the system were independently invented in the nineteenth century by Thomas Hare in Britain and Carl Andræ in Denmark. STV uses multi-member districts, with voters ranking candidates in order of preference on the ballot paper in the same manner as the Alternative Vote. In most cases this preference marking is optional, and voters are not required to rank-order all candidates; if they wish they can mark only one. After the total number of first-preference votes are tallied, the count begins by establishing the “quota” of votes required for the election of a single candidate. The quota is calculated by the simple formula: Quota = votes } +1 seats } However, the system is often criticized on the grounds that preference voting is unfamiliar in many societies, and demands, at the very least, a degree of literacy and numeracy. The intricacies of an STV count are themselves quite complex, which is also seen as being a drawback The first stage of the count is to ascertain the total number of first-preference votes for each candidate. Any candidate who has more first preferences than the quota is immediately elected. If no-one has achieved the quota, the candidate with the lowest number of first preferences is eliminated, with his or her second preferences being redistributed to the candidates left in the race. At the same time, the surplus votes of elected candidates (i.e., those votes above the quota) are redistributed according to the second preferences on the ballot papers. Mixed Member Proportional (MMP) Mixed Member Proportional (MMP) systems, as used in Germany, New Zealand, Bolivia, Italy, Mexico, Venezuela, and Hungary, attempt to combine the positive attributes of both majoritarian and PR electoral systems. A proportion of the parliament (roughly half in the cases of Germany, Bolivia, and Venezuela) is elected by plurality-majority methods, usually from single-member districts, while the remainder is constituted by PR lists. This structure might on the surface appear similar to that of the Parallel systems described earlier; but the crucial distinction is that under MMP the list PR seats compensate for any disproportionality produced by the district seat results. For example, if one party wins 10% of the national votes but no district seats, then they would be awarded enough seats from the PR lists to bring their representation up to approximately 10% of the parliament. Advantages of the PR System It avoids the anomalous results of plurality- majority systems and facilitates a more representative legislature. For many new democracies, particularly those which face deep societal divisions, the inclusion of all significant groups in the parliament can be a near-essential condition for democratic consolidation. It faithfully translates votes cast into seats won, and thus avoid some of the more destabilising and “unfair” results thrown up by plurality-majority electoral systems. It facilitates minority parties’ access to representation, unless the threshold is unduly high, or the district magnitude is unusually low. It encourages parties to present inclusive and socially diverse lists of candidates. The incentive under List PR systems is to maximize your national vote, regardless of where those votes might come from. It restricts the growth of “regional fiefdoms”, because PR systems reward minority parties with a minority of the seats, they are less likely to lead to situations where a single party holds all the seats in a given province or district. It leads to more efficient governments, the rationale behind this claim is that regular switches in government between two ideologically polarized parties, as can happen in FPTP systems, makes long-term economic planning more difficult, while broad PR coalition governments help engender a stability and coherence in decision-making which allows for national development. It makes power-sharing between parties and interest groups more feasible. Disadvantages The most cited arguments against using PR are that it leads to: Coalition governments with their disadvantages; legislative gridlock and the subsequent inability to carry out coherent policies at a time of most pressing need. A destabilising fragmentation of the party system; PR reflects and facilitates a fragmentation of the party system. It is possible that such polarized pluralism can allow tiny minority parties to hold larger parties to ransom in coalition negotiations A platform for extremist parties; PR systems are often criticized for giving a parliamentary stage to extremist parties of the left or the right. It has been argued that the collapse of Weimar Germany was in part due to the way in which the PR electoral system gave a toe- hold to extremist groups (National Socialist Party, NAZI). Governing coalitions which have insufficient common ground – in terms of either their policies or their supporter base. These “coalitions of convenience” are contrasted with stronger “coalitions of commitment” produced by other systems. A weakening of the link between MPs and their constituents. When simple List PR is used, and seats are allocated in one huge national constituency as in Namibia or Israel, the system is often criticized for destroying the link between voters and their member of parliament. Voters have no ability to determine the identity of the persons who will represent them, and no identifiable representative for their town, district, or village; nor do they have the ability to easily reject an individual if they feel he or she has behaved poorly in office. On a related point, national closed-list PR is criticized for leaving too much power entrenched within party headquarters and wielded by senior party leadership. A candidate’s position on the party list, and therefore his or her likelihood of success, is dependent on currying favour with party bosses, whose relationship with the electorate is of secondary importance. The role of the upper house in bicameral legis The phenomenon of the bicameral system has two very different historic origins. It was first established in England, and later in the United States of America and France. Multi-chamber systems were first created in unitary states as a method of representing various estates. In the Middle Ages, sovereigns consulted their vassals about matters such as waging war and taxation. Firstly, because in the fourteenth century, a system with only two chambers was created there: one chamber in which debate took place with the feudal lords (both spiritual and temporal) and a chamber where the citizens (commoners) from the counties and boroughs, including the gentry were represented. In addition, England was unusual because the parliament gradually became more powerful as a power other than the Crown. The bicameral system thus became an enduring institution in which both chambers could develop their own right to exist and their own legitimacy. As representative systems evolved and constitutions were written, theoretical justifications were/are provided to defend a two- house legislature. These are stability; and quality assurance. Initially, all three justifications were employed in constitutional debates of both unitary and federal systems. The United States and France serve as examples of the parallel reasoning applied to bicameral legislatures. (1) a senate doubles the certainty that the government will not neglect its tasks because it provides an extra check on it; (2) a senate can curb the other chamber if it gives into the urge to follow sudden and pronounced emotional reactions; (3) a senate can meet the need for knowledge about the laws and the interests of the country, and thus help to avoid mistakes; and (4) the senate can be a factor for stability that ensures continuity in the administration of the country, thus reinforcing the trust of other counties and avoiding too many laws being made and laws being changed too quickly. • Montesquieu offered a "social justification" for a second house, "to permit a better representation of the different corps of the nation" (quoted in Trivelli, 1975: 30). The second house was designed to represent the landed aristocracy and the rising commercial and industrial bourgeoisie. • Montesquieu also cited the necessity of a bicameral legislature to avoid "the tyranny of a single chamber." Upper houses were composed of older, wealthier individuals, selected by indirect suffrage for long terms of office, who served to restrain the lower house from sudden changes in outlook, thereby providing legislative stability. • Finally, improvement of legislative work was also historically recognized as an important justification for bicameral legislative systems. Second houses function as a quality control mechanism. A second examination of legislation minimizes the likelihood of legislative error (Trivelli, 1975: 31-32). Composition In principle, Senators are chosen in four ways: by direct election, by indirect election, by appointment, or ex officio. Appointment; This only applies to the British Upper House and the Canadian senate. Since 1999, the British Upper House has mainly consisted of members appointed for their lifetime (life peers). Appointments are made by the Crown on a proposal from the Prime Minister. Since 1999, cooptation is also the way in which hereditary peers in the House of Lords are replaced if a vacancy arises. The members of the Canadian senate are formally appointed by the Governor General, but in practice by the Prime Minister. The members of the German Bundesrat are appointed by the governments of the Länder from their ranks and they also act on behalf of their government. In Belgium, since May 2014, most members of the senate are appointed by and from the Community parliaments and the rest are co-opted by the other members. In Ireland, eleven of the sixty senators are appointed by the President, which usually guarantees a government majority in the senate. In Italy, the President can appoint five senators for life as a recompense for exceptional merit in the social, scientific, artistic or literary sphere. Former presidents can take up a seat qualitate qua in the Italian senate. The same applies to the bishops in the British Upper House. In most senates however, members are elected, directly or indirectly. senators are directly elected in Japan, Italy, Poland, the Czech Republic, Australia and Switzerland, US, Romania. Elsewhere, a mix of direct and indirect elections have been used (for example in Spain and Ireland) or only indirect elections, as in France, Austria, Belgium and Slovenia. Ireland (60 senators) 43 (divided between 5 sectors of society), indirectly elected by a panel consisting of members of the new lower house, the outgoing upper house, and local councils, 6 directly elected by graduates of the two main universities (3 each). The other 11 are appointed by the president. Slovenia (40 senators) Indirectly elected by elected representatives of interest groups: 22 by local representatives, 6 from the non-profit sectors, 4 from employers’ representatives, 4 from workers’ representatives, 4 for farmers, craftsmen/ women, merchants and liberal professions. The Role of the Second House in Bicameral Parls The phenomenon of the bicameral system has two very different historic origins. It was first established in England, in the 14th C: upper house which represented the feudal lords and a lower house where the citizens (commoners were represented. And Later in the United States of America and France. Multi-chamber systems were first created in unitary states as a method of representing various estates. In the Middle Ages, sovereigns consulted their vassals about matters such as waging war and taxation. The growing requirements of the royal coffers resulted in the circle of those who had to be consulted being gradually expanded, and frequently, different consultative bodies existed side by side for the various social estates. Sweden, for example, had four separate ‘chambers’ for such consultations: for the nobles, spiritual representatives, citizens and peasants. In the course of time - with the rise of absolutism - this type of consultation fell out of use in most countries. England was unusual because the parliament gradually became more powerful as a power other than the Crown. The English bicameral system thus became an enduring institution in which both chambers could develop their own right to exist and their own legitimacy. The power of England and the stability of its political institutions meant that the country often served as a model in theories of good governance during the seventeenth and eighteenth centuries. That also applied for the English bicameral system. In old confederal systems (German confederation (1815- 1886), the Swiss confederation (1291-1798) and in the Republic of the United Netherlands (1579-1795)), there was just one chamber (never two or more chambers involved). However, when taking important decisions, there were often requirements for unanimity or qualified majorities. In the States General of the Dutch Republic, decisions could only be taken with unanimity about matters such as war, peace, truces, or financial contributions (Article IX, Union of Utrecht). And when the 13 English colonies in North America formed a confederation at the end of the 18th century, they set up one joint Congress, in which each state had one vote and in which, for important decisions, a majority of nine states was required (Articles of Confederation, Article 9, para. 6). As representative systems evolved and constitutions were written, theoretical justifications were/are provided to defend a two-house legislature. Justifications Montesquieu (regarding English parliament) offered a "social justification" for a second house, "to permit a better representation of the different corps of the nation" (quoted in Trivelli, 1975: 30). The second house was designed to represent the landed aristocracy and the rising commercial and industrial bourgeoisie. He also cited the necessity of a bicameral legislature to avoid "the tyranny of a single chamber." Upper houses were composed of older, wealthier individuals, selected by indirect suffrage for long terms of office, who served to restrain the lower house from sudden changes in outlook, thereby providing legislative stability. Finally, improvement of legislative work was also historically recognized as an important justification for bicameral legislative systems. Second houses function as a quality control mechanism. A second examination of legislation minimizes the likelihood of legislative error. Composition In principle, Senators are chosen in four ways: by direct election, by indirect election, by appointment, or ex officio. Members of the British Upper House and the Canadian senate are appointed by the Crown/ Governor General on a proposal from the Prime Minister. The members of the Canadian senate are formally appointed by the Governor General, but in practice by the Prime Minister. The members of the German Bundesrat are appointed by the governments of the Länder from their ranks and they also act on behalf of their government. In Belgium, since May 2014, most members of the senate are appointed by and from the Community parliaments and the rest are co-opted by the other members. In Ireland, eleven of the sixty senators are appointed by the President, which usually guarantees a government majority in the senate. In Italy, the President can appoint five senators for life as a recompense for exceptional merit in the social, scientific, artistic or literary sphere. Former presidents can take up a seat qualitate qua in the Italian senate. The same applies to the bishops in the British Upper House. In most senates however, members are elected, directly or indirectly. All senators are directly elected in Japan, Italy, Poland, the Czech Republic, Australia and Switzerland, USA. • Elsewhere, a mix of direct and indirect elections have been used (for example in Spain and Ireland) or • All are indirectly elected, as in France, Austria, Belgium and Slovenia. Symmetric bicameralism in the composition of the chambers, Ex Romanian senate (direct election) Asymmetric bicameralism in the composition of the chambers, a/ Territorial representation (most second chambers), b/ Personal expertise (university senators Ireland), Czech senate, and the house of lords UK and c/ Representation of other interests, ex Irish Senate (Senators nominated by five panels representing vocational interests) and Slovenian National Council Powers of senates • Legislative powers For all senates, participation in the creation of legislation is the most important task. Usually a senate has a power of veto in that regard. It may be an absolute veto - the consent of the senate is a requirement - or a suspensory veto, where the senate can send a proposal back (sometimes several times) to the lower house with its comments or amendments, but ultimately, the lower house has the final say. An absolute right of veto for the senate is seen mainly in federal presidential systems (such as the US and some South American countries). In countries with a parliamentary system, an absolute right of veto is rarer, even if they are federations. The senates in Canada, Switzerland and Australia have an absolute right of veto for all legislation. For the German Bundesrat, this only applies for amendments to the Constitution and for legislation which affects the position of the Länder. For other legislation, the Bundesrat only has a suspensory veto. In Austria, the senate only has an absolute right of veto for changes to the constitutional rules about the powers and responsibilities of the Länder or about the senate itself. The Belgian senate only has a suspensory right of veto and recently that has been restricted to changes to the Constitution and some other legislation with a constitutional character. The Belgian senate is no longer involved in most legislation. Symmetric and egalitarian bicameralism in terms of legislative competences; Examples include US Senate, Italian Senate (under discussions for reform) and Romanian Senate (abolished by referendum in 2009 but not yet in practice) Asymmetric bicameralism in terms of legislative competences, a/ Reflection chamber/consultative powers, examples include Belgian Senate, Spanish Senate (one function among others) United Kingdom’s House of Lords (one function among others). b/ Power to initiate legislation, Most Senates, (except for the Dutch Senate) and other second chambers in matters of finance c/ Power to amend legislation Czech Senate, French Senate and Polish Senate d/ Power to adopt or reject legislation Dutch Senate Austrian Bundesrat and German Bundesrat Many senates have both the right of initiative and the right of amendment. In many countries, the senate must put a bill on its agenda or debate it within a given period, and if it fails to do so, the bill is deemed to have been adopted. Some senates are not involved in budgets and other financial proposals at all (for example in the Czech Republic, Belgium and Austria) and Some senates can amend ordinary bills, but not budget bills (e.g. United Kingdom and Ireland) or reject them (Poland). Oversight of the executive power Most authors argue that, in a parliamentary system, the lower house - not the senate - is the place where governments should present themselves and where they can be dismissed. Accordingly, most senates only have a right of information, a right of inquiry and can make recommendations to the government or express their opinion about government actions. But votes of confidence in the government or the submission of no-confidence motions is usually reserved for the lower house. Three second chambers (Dutch Senate, Italian Senate and Romanian Senate) have the power to issue a vote of no confidence vis-à-vis the executive. Other second chambers may supervise the executive via other means, such as discussions/ rejections of government bills or dialogue. In Switzerland, the position of both chambers is identical (Art. 148 of the Constitution), but there, neither chamber can dismiss the government. Although the Australian senate cannot dismiss the government via a motion of no confidence, it can achieve the same end by approving or rejecting budgets, as it did in 1974 and 1975. In many other countries, the senate is either not involved with the budget or its veto right on budgets is restricted. On the other hand, most senates cannot be dissolved, or only at the same time as the dissolution of the lower house. In Poland, dissolution of the lower house automatically entails dissolution of the senate. In Italy and Spain, though the Constitutions allow separate dissolution of the chambers, in practice both chambers are elected at the same time and therefore dissolution only takes place simultaneously for both chambers. In Australia, simultaneous dissolution of both chambers is a possibility if no agreement can be reached about a bill. In Italy and - to a lesser extent – in Japan the senate plays a role in the formation of governments. The Italian constitution provides that the government must enjoy the confidence of both chambers. Here (Italy), a new government must present itself in both chambers within ten days after taking office in order expressly to obtain that confidence. In Japan, where the lower house appoints the Prime Minister, the senate has to consent to the appointment, but - in case of a difference of opinion - ultimately the lower house decides. The Japanese senate cannot dismiss the government. Constitutional watchdog All second chambers in EU Member States except for the Slovenian National Council have this role, i.e., constitutional amendments require senate approval. FDRE House of Federation Composition Representatives of nationalities, each nationality shall have one representative and an additional one representative for each one million population. Members of the HF may be elected by regional parliaments (state councils) or by directly by the people. Powers Decide on issues relating to the right to self determination Promote equality of nationalities and unity of the country/ the people Resolve disputes and misunderstandings between federated states. Determine the division of revenues from concurrent sources and subsidies to be provided to states Decide on constitutional amendments No legislative power except initiation of laws Interpret the constitution/ adjudicate constitutional disputes The rationale for vesting the power of interpreting the constitution in the HoF, and not in the regular judiciary or a constitutional court as can be gathered from the minutes of the Constitutional Assembly emanate from two sources. One is related to the framers view of the ‘nature’ of the constitution in general and to the role of the nationalities in particular. It is, in the words of the framers, ‘a political contract’ and therefore only the authors (that are the nationalities) should be the ones to be vested with the power of interpreting the constitution. The second reason is that empowering the judiciary or a constitutional court may result in unnecessary ‘judicial adventurism’ or ‘judicial activism’ In other words the judges may, in the process of interpreting the constitution, put their own preferences and policy choices than those of those of the nationalities. Thus the framers argued, this might result in hijacking the very document that contains the ‘compact between the nationalities’ to fit the judges’ own personal philosophies. Rule of Law The contrast between the rule of men and the rule of law is first found in Plato's Statesman and Laws and Aristotle's Politics, where the rule of law implies both obedience to positive law and formal checks and balances on rulers and magistrates. The rule of law is the principle that governmental authority is legitimately exercised only in accordance with written, publicly disclosed laws adopted and enforced in accordance with established procedure. The principle is intended to be a safeguard against arbitrary governance. In its “formal” or “thin” sense, the rule of law requires that government officials and citizens are bound by and act consistent with the law. This basic requirement entails a set of minimal characteristics: a/ law must be set forth in advance (be prospective), b/ it must be made public, be general, be clear, be stable and certain, and c/ be applied to everyone according to its terms. In the absence of these characteristics, the rule of law cannot be satisfied. In its more substantive or “thicker” sense, the concept of rule of law includes reference to fundamental rights, democracy, and/or criteria of justice or right. Thomas Aquinas defined a valid/just law as being one that: • is in keeping with Reason • was established by a proper authority • is for the purpose of achieving good • and was properly communicated to all. Elements The law must be accessible and so far as possible intelligible, clear and predictable Questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion The laws of the land should apply equally to all, save to the extent that objective differences justify differentiation The law must afford adequate protection of fundamental human rights Means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve Ministers and public officers at all levels must exercise the powers conferred on them reasonably, in good faith, for the purpose for which the powers were conferred and without exceeding the limits of such powers Adjudicative procedures provided by the state should be fair. Principles of Constitutional Interpretation Constitutional interpretation- a process of discovering, clarifying, elaborating the meaning of a constitutional text. Constitutional construction, though concerned with the meaning of text, is not limited to discovery of pre-existing meaning of a constitutional text. It employs the imaginative vision of politics rather than a discerning wit of judicial judgment. It is essentially a creative work, and cannot be reduced to legal form and cannot form part of constitutional law falls outside of the jurisdiction of courts. Constitutions, like other laws, are often ambiguous, contradictory, even silent on issues that arise and require resolution How judges interpret the constitution/resolve these problems is often problematic and controversial, because it is difficult to distinguish legitimate interpretation from illegitimate change. There are numerous methods of and theories about constitutional interpretation. These methods are complimentary and should be applied in conjunction with one another. Thus they are in a continuous interaction: 1/Textual interpretation or plain meaning rule (Originalist approach) Under the textual interpretation, the most important is the language/ text of the Constitution. Although the spirit of a Constitution is to be respected, not less than its letter, yet the spirit is to be collected chiefly from its words. The view is that the text of Constitution has to be read in the social and linguistic context in which it was adopted. So far as our Supreme Court is concerned, it has always held that there is a greater reason in giving to its language a liberal construction so as to include within its ambit the future developments in various fields of human activities than in restricting the language to the state of things existing at the time of its passing. 2/Taking recourse to original history or the intention of the framers (Originalist approach) The critical originalist principle is that the Constitution must be interpreted according to the understandings made public at the time of its drafting and ratification. The primary source of those understandings is the text of the constitution, both its wording and structure. Secondary sources are used to supplement the text, historical sources are to be used to clarify the understanding of the terms involved and to indicate the principles that were supposed to be embodied in them. The guiding principle is that the judge should be seeking to make plain the meaning of the term/ phrase or sentence as understood at the time of the law’s enactment. However, The US Supreme Court holds that it is not bound to accept the meaning of a provision according to the original understanding of its makers Because as Justice Marshall asserts, it is the nature of the Constitution that only its great outlines should be marked. It is a document intended to endure for ages and therefore, it has to be interpreted not merely on the basis of the intention and understanding of its framers but on the experience of the working of the Constitution to deal effectively with current constitutional issue needing a solution in the existing social and political context. 3/Interpretation based on principles of natural rights or fundamental law; the preferred freedoms approach Also known as Teleological Interpretation American constitutional tradition recognises practices of non-originalist adjudication purportedly based on natural rights or fundamental law. These are widely shared and deeply held human values which are to be gathered from the text of a written Constitution. In other words, this approach is described as judicial activism. This method requires identifying and taking into consideration the aim and purpose of the provisions and the values embodied in a constitution. The fundamental values in the CON form the foundation of a normative constitutional jurisprudence against which legislation and actions are evaluated (and filtered through). 4/The balancing of interests: Judicial activism In this process of interpretation, the court is more concerned with weighing the competing values of a free society. In the course of rendering decisions, judges are to aim at accommodation or balancing of society’s conflicting interests. The proponents of this principle of interpretation maintain that balance should be struck so as to maximize as many interests as possible, consistent with the political and ethical principles. In a democratic society, governed by a Constitution, such values would presumably include equal opportunity, fair play, private property, decentralization and local control, democracy and individual autonomy... Proponents of this approach affirm that judges’ decisions ought to mirror society’s values, not their own. In this process, they should eschew their own personal political attitudes. The courts are, in a way, political institutions in the view of the interest-balancers. The judicial process, although different in form, is an indirect act of legislating. Every case presents a conflict of competing interests among which a choice must be made. 5/ Comparative Interpretation This refers to the process (such as prescribed by S 39(1) of the RSA CON) which requires the court to examine international human rights law and the constitutional decisions of foreign courts. This must be done with due regard to the unique domestic context of the Constitution under consideration. In dealing with comparative law one must bear in mind that he/she is required to construe the national (RSA) Constitution, and not an international instrument or the constitution of some foreign country, and that this has to be done with due regard to RSA legal system, history and circumstances, and the structure and language of the Constitution. One can derive assistance from public international law and foreign case law, but is not bound by it. The counter Majoritarian Difficulty There is a tension between the testing power of the judiciary and the will of the people. Is it acceptable and legitimate for an unelected court to thwart the democratic wishes of the majority? According to some authors, the judiciary has a situational advantage over the people at large in listening to the voices from the margins. The CON must serve, amongst others, as a shield to protect the fundamental rights of the people and to promote the values expressed in the Constitution. On the other hand, however, the principles of democracy and the separation of powers are also some of the fundamental values underlying a constitutional state. Any court involved in constitutional review has to walk a very fine and sometimes precarious line, policy/ political issues v legal issues. What are the boundaries of constitutional review/ interpretation? The courts may have a sacred duty to protect the rights in the CON, but is the CON what the judges say it is? The court is the guardian of constitutional rights and values, but it is not a super legislature. Where to draw the line during interpretation and application is one of the vexing questions still facing the courts in a constitutional state. Rights Moral Rights are believed to exist independently of legal systems and governments. In the Declaration of Independence, Jefferson’s three examples are the moral rights to “life, liberty and the pursuit of happiness.” He claimed that governments exist in order to secure these rights, although they might fail to do so. Legal Rights depend on legal systems. Governments are expected to enact laws that protect moral rights, they can also grant additional rights, or not. The American government denied women the legal right to vote until 1920. 18-year-olds were granted the legal right to vote in 1971. Will or Choice Theory of Rights (HLA Hart) According to this theory, the essence of a right is choice or agency/ will; Rights are specially protected choices to interfere with another’s freedom. The basis of any right is an equal right to freedom. If there is no freedom, there would be no need for right. Rights create a sphere of mini-sovereignty with in which the rights holder can exercise and impose his will or choice upon certain others. Constitutional or human rights emanate directly from overall value of human freedom (general rights). Problems for the Will Theory 1. No inalienable rights: The freedom protected by rights includes the freedom to waive any right, including freedom to accept payment for waiving rights. Rights- holders could bargain away any of their rights. 2. Right-holders’ cognitive capacities: having a right requires understanding how to claim or waive it, which infants cannot understand, nor can mentally incapacitated adults; so, like animals, they cannot have rights. Interest Theory of Rights Jeremy Bentham (1748-1832) initiated the interest theory. Someone would have a right to something (x), against a second person, if that person had a legal duty to provide the first person with x. For example, on Bentham’s interest theory, you have a right to vote if someone is legally required to provide you with the opportunity to vote, and count your ballot, and so on. Your having a right to something means that it is in your interest, or is to your benefit, and someone else has a duty to provide it. Someone violates your right by not doing his or her duty to provide the thing that is in your interest. More recent philosophers developing the interest theory, also known as the “benefit theory,” think that basic moral duties to respect others’ essential interests, such life and liberty, serve as the basis of moral rights. Problems for the Interest Theory 1. Limiting interests: Specifying the set of interests that are sufficient reasons for rights is nearly impossible. The proliferation of interest-based rights continues: welfare rights; health-care rights; women’s rights; animal rights; etc. 2. Third-party interests: If you promise to tend a neighbor’s child, you have a duty, and the child has an interest in your doing your duty; so the interest theory says the child has a right to your care. But only the neighbor has the right. Human Rights Rights that are held by every human being, with out any distinction, by virtue of being human. HRs are generally regarded as natural rights (natural rights theory, John Locke) The current international HRs system is considered by many as based on the NRs theory. This is because the source of these rights is ‘human nature’, Human rights are considered as substantive limitations to the exercise of govt power They considered as universal, indivisible and interrelated Cultural relativism Vs Universalism; to what extent are rights specific and relative to particular cultures and how far are they determined by universal trans-cultural human values? International Bill of Rights; UDHR, ICCPR, ICESCR, and the preamble, Art 1, 55 and 56 of the UN Charter. First generation rights; the ICCPR Second generation rights; the ICESCR Third generation rights; the most controversial of international human rights, involve "solidarity" among developing states as a group, and among states in general. They are said to be collective rather than individual, and include "peoples' rights" to development, the right to a healthy environment, the right to peace, the right to the sharing of a common heritage, and humanitarian assistance. With the exception of the right to self- determination, which international law recognizes as a collective human right of peoples (See, Art.1 of both the ICCPR and the ICESCR), none of these rights exist in global treaty form nor are there established monitoring agencies to protect such rights. Human Rights under the FDRE Constitution In its chapter three, the Constitution provides for a catalogue of fundamental rights and freedoms. About 31 “kinds” of rights are recognized and granted a constitutional guarantee. The provisions of this chapter are entrenched, i.e., they are protected from easy (and often unilateral) encroachment through making the amendment procedure rather rigid. However, the absence of; an application clause (that indicates whether they have direct or indirect application), interpretation clause (that clearly indicates the principles, methods, and steps to be used in the construction of human rights clauses), limitation clause (that regulates the manner in which limitations are imposed when necessary), The denial to the courts of any power to interpret and enforce constitutional human rights, Have diminished the implementation and enforcement of human rights in Ethiopia.
Neither Saints Nor Sinners - Writing The Lives of Women in - Myers, Kathleen Ann - 2003 - Oxford New York - Oxford University Press - 9780195157239 - Anna's Archive