Post on 13-Jan-2016
Fourth ClassConstitution Making
Constitution Constituent Power
How?: Procedure
Decentralization
Centralization
Step by Step
InternationalCommunity
Who?
Inclusive
Exclusive
Who decides?
Legitim
acy: T
reaty, Agreement, C
onstitutio
n…?
Units - Borders?
Reco
ncilia
tion
Pairs of valuesFamously, federalism balances and enables
competing values to be secured:• Self-rule and shared rule• Unity and diversity• Uniformity and difference• Solidarity and self-reliance• Co-operation and competitionOne challenge in designing a federal system is to
capture each of these in a suitable way
Other constitutional values
Federalism must be combined with other constitutional values, in both spheres of government, for its benefits to be fully secured. These include:
• Legitimacy• Democracy• Constitutionalism, including the rule of law• Effective and accountable government• Mutual respect; a willingness to share power;
appreciation of diversity
Importance of institutions
• Importance of specifically federal institutions are obvious (eg division of powers)
• Institutions of government equally important– Mechanism through which federalism
delivered– Mechanism through which other values
delivered• Institutional design must capture
– Aspirations for federalism– Aspirations for government generally
General observations
• Many of the institutions that we presently use were designed for unitary states
• They need to be fully adapted to the different context of federalism
• Now plenty of experience with this• But range of possibilities is not fixed• Increasing experimentation in recent
years• Eg asymmetry, forms of co-operation
Common standardsMany federations prescribe certain common
standards, applicable to both spheres of government, in the Constitution itself. Typically these apply to:
• Governance (democracy, accountability, republicanism)
• Human rights• Economic union (mobility of people,
economic activity)
Constitution of the federal state
The Constitution should:– Be made by a suitable process– Create the central & constituent
governments– Provide the institutional framework– Provide the federal framework– Provide the means for its own
alteration
Protection & enforcement
• A mixture of rigid and flexible• Federal quality of amendment procedure• Effectively enforced:
– Usually, general or specialist constitutional court– Other options? Switzerland (sui generis). USA?
• NB techniques for conflict avoidance: SA• Some internal flexibility eg through co-
operation
Challenges
• Making a commitment to federalism• Developing a federal culture• Building sufficient capacity in smaller, poorer units• Ensuring accountability, transparency,
responsiveness in all spheres of government and for shared programs
• Avoiding unproductive competition & disputes• Providing flexibility to meet new needs
Different Goals ofFederalism
- Limit governmental powers withVertical Separation of Powers
- Accommodate Diversities- Strengthen Democracy- Conflict – Management- Strengthen and deepen
legitimacy of a confederal system (cf. EU)
MULTICULTURALBUT
PEACEFUL
MULTICULTURAL
AND
PEACEFUL
Switzerland
Spain
We the Swiss People and Cantons… are determined to live our diver-
sity in unity respecting one another;..Art. 2 Purpose
It (Switzerland) shall promote ..the cultural diversity of the country
The Constitution is based on the indissoluble unity of the Spanish nation, the common and indivisible homeland of all Spaniards, and recognizes and guarantees the right to autonomy
of the nationalities and regions
Specific Problems:Composed Nations
Germany
Belgium
the German People have adopted, by virtue of their constituent
power, this Constitution.
Belgium is made up of three Communities: the French Community, the Flemish
Community, and the German-speaking Community.
Turky
Croatiaof one's own state, based on the Croatian nation's historical right to full sovereignty,
The recognition that all Turkish citizens are united in national honour and pride, in national joy and grief, in their rights
and duties towards their existence as a nation, in blessings and in burdens,and in every manifestation of national
life, and that they have the right to demand a peaceful life based on absolute
respect for one another's rights and freedoms, mutual love and fellowship,
and the desire for, and belief, in "Peace at home, peace in the world
Serbia
PREAMBLE: CONSCIOUS OF THE STATE TRA-DITION OF THE SERBIAN PEOPLE AND DETERMINED TO ESTABLISH THE EQUALITY OF ALL THE PEOP-LES LIVING IN SERBIA, THE CITI-ZENS OF SERBIA, AS PART OF THE EUROPEAN FAMILY OF NA-
TIONS, AND WITH A PLEDGE FOR MODERN DEMOCRATIC STATE BASED ON PEACE, TOLERANCE, RESPECT FOR HUMAN RIGHTS AND FREEDOMS, ON THE RULE OF LAW AND SOCIAL JUSTICE,
Persons belonging to a national minority shall have special rights which they
exercise individually or in community with others.
Russia
Bosnia
Bosniacs, Croats, and Serbs, as constituent peoples (along with Others), and citizens of Bosnia
and Herzegovina hereby determi-ne that the Constitution of Bosnia and
Herzegovina is as follows:
We, the multinational people* of the Russian Federation, united by a common destiny on our land,
EuropeanUnion
DETERMINED to lay the founda-tions of an ever closer union
among the PEOPLE‘S of Europe,
RESOLVED to establish a citizenship common to nationals of their countries,
RESOLVED to continue the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as closely as possible
to the citizen in accordance with the principleof subsidiarity, (Consolidat.Treaties)
This Treaty marks a new stage in the process of creating an ever closer union among
the peoples of Europe, in which decisions aretaken as openly as possible and as closely
as possible to the citizen.
Treaty EU Common Provisions Art. 2— to strengthen the protection of the rights and interests of the nationals of its Member
States through the introduction of a citizenship of the Union;
Article 17 (ex Article 8)1. Citizenship of the Union is hereby establi-shed. Every person holding the nationality of a Member State shall be a citizen of the
Union. Citizenship of the Union shall comple-ment and not replace national citizenship.
2. Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be subject
to the duties imposed thereby.
Preamble Draft of European ConstitutionConvinced that, while remaining proud of their own national identities and history, the peoples
of Europe are determined to transcend their ancient divisions and, united ever more closely,
to forge acommon destiny,
Convinced that, thus "united in its diversity", Europe offers them the best chance of pursuing,
with due regard for the rights of each indi-vidual and in awareness of their responsibilities
towards future generations and the Earth, the great venture which makes of it a special
area of human hope, Grateful to the members of the European Convention for
having prepared this Constitution onbehalf of the citizens and States of Europe,