Constitutions Compared PDF Sixth Edition

A A LT W I L L E M H E R I N GA Constitutions Compared An Introduction to Comparative Constitutional Law Sixth Edition The sixth edition of this widely utilized handbook provides a user- friendly and original and innovative introduction to comparative constitutional law. For each area of constitut...

A A LT W I L L E M H E R I N GA Constitutions Compared An Introduction to Comparative Constitutional Law Sixth Edition The sixth edition of this widely utilized handbook provides a user- friendly and original and innovative introduction to comparative constitutional law. For each area of constitutional law, a general introduction and a comparative overview is provided, which is then followed by more detailed country chapters on that specific area. In this sixth edition, the author has expanded several chapters to provide for even more detail on national legal systems, providing examples from constitutional practice, and offering constitutional comparison. Naturally the book has been updated to include constitutional events until May 2021. This book most notably includes many constitutional developments in the constitutional systems within our scope. Including the `Brexit’ and the new compositions of the national parliaments and the European Parliament. What also sets this book apart is that the EU has been woven into it, as a constitutional system per se and as an international organization which heavily impacts upon domestic constitutional law of its member-states. This handbook is strong in building the relevant constitutional con- cepts and the constitutional structures, as well as illustrating them with examples and constitutional and political practice. It also provides readers in general and students of constitutional law with tools and basic questions to address constitutional issues and to evaluate the different constitutional models and features. Constitutions Compared has proven its success as a helpful guide for students who are for the first time exploring comparative con- stitutional law, and for more advanced graduate-level courses it provides a solid foundation. It remains a thorough introduction which purports to give an overview, with many examples and applications in practice, with enough legal and practical details to be accessible and to the point, whilst at the same time providing the whole picture and highlighting general constitutional questions and perspectives. Constitutions Compared Constitutions Compared An Introduction to Comparative Constitutional Law Aalt Willem Heringa Sixth edition Published, sold and distributed by Eleven P.O. Box 85576 2508 CG The Hague The Netherlands Tel.: +31 70 33 070 33 Fax: +31 70 33 070 30 e-mail: [email protected] www.elevenpub.com Sold and distributed in USA and Canada Independent Publishers Group 814 N. Franklin Street Chicago, IL 60610, USA Order Placement: +1 800 888 4741 Fax: +1 312 337 5985 [email protected] www.ipgbook.com Eleven is an imprint of Boom uitgevers Den Haag. ISBN 978-94-6236-205-5 NUR 823 © 2021 Aalt Willem Heringa | Eleven International Publishing This publication is protected by international copyright law. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the publisher. Printed in the Netherlands Preface to the Sixth Edition In this sixth edition, evidently the book has been updated so as to include and reflect recent constitutional events in the five states and in the European Union since the fifth edition of 2019. The major event in that respect is Brexit, but quite a few other constitutional issues also deserved updating and further clarification. I have added a few paragraphs here and there (for instance one with a guide for students on how to study constitutional law and use this book) and added some more information about constitutional law in action in the relevant constitutional orders. The overall structure has remained the same, since it has proven valuable and accessible. I thank the readers who have sent me their comments; specifically, utilising this book for years now in courses in Maastricht keeps helping me improve its content. I do hope readers, students and teachers alike, benefit from it in the study of constitutional law and cherishing constitutional values. Special thanks go to my staff who teach the courses in which we rely on this book, for pointing out to me both little and larger details which need clarification or 5 further explanation. Every mistake or error in the book is entirely mine. As was already the case in the fifth edition, this sixth edition no longer contains the texts of the relevant constitutions, constitutional statutes and treaties. Since these are easily accessible on the Internet, and since there are easily accessible collections of the relevant documents, I have decided not to include them in the present book (so keeping the price low). I refer readers who are indeed interested in a collection of all the relevant constitutional documents to: Sascha Hardt and Aalt Willem Heringa (eds.), Comparative Constitutional Law Documents, ISBN 978-94-6236-930-6, Eleven International Publishing (The Hague), 2019. This book contains all relevant national and European documents with regard to the issues dealt with in Constitutions Compared. Prof. dr. Aalt Willem Heringa Maastricht/Leiden, May 2021 Note: Constitutional offices or functions, such as King, Prime Minister, or candidate, shall be referred to as s/he, since all offices and functions can of Constitutions Compared course be exercised by both men and women, unless specifically indicated otherwise. 6 Preface to the Fourth Edition The first three editions of Constitutions Compared have proven to be valuable teaching tools. Students of comparative constitutional law continue to appreciate the book’s clarity and user-friendly structure: comparative overviews of certain aspects of constitutional law (like federalism, election systems or the role of judges) are followed by more detailed country chapters on that specific aspect. Country chapters initially covered the US, Germany, the UK, France and the Netherlands, which in their diversity help illustrate broader concepts of constitutional law. The first three editions were a joint effort of Philipp Kiiver and Aalt Willem Heringa. Philipp Kiiver however has opted for a career outside academia in European institutions. It was a pleasure working with him for many years on this book. This book therefore remains the result of our joint work; however, the changes made in this fourth edition, and also therefore the overall result of this fourth edition, are my sole responsibility. I do remain grateful to Philipp Kiiver for his energy, input and devotion. 7 In this fourth edition, I have expanded several paragraphs and chapters to provide for even more detail on national legal systems and constitutional comparison. In addition, I have updated the discussion wherever necessary. Thus, the fourth edition most notably takes account of the new election system in Germany; the operation of the constitutional review procedure in France; the Scottish referendum and its aftermath in the UK; the new procedure for the formation of a government in the Netherlands; the discussion about the accession of the EU to the European Convention on Human Rights; and notably the effects on domestic constitutional law in the EU member states by EU membership, the EMU, the political dialogue between national parliaments and the Commission, the banking union and many other relevant developments. The EU has therefore more extensively been woven into this book, as a constitutional system per se and as an international organization which heavily impacts upon domestic constitutional law. It may appear odd at first sight and from a theoretical perspective to include the EU in a book on comparative constitutional law. However, the great impact the EU has on constitutional legal issues and balances in member states would in itself deserve to put more focus on the Constitutions Compared EU, in order to make clear to readers how precisely this impact is present and expressed. And that in itself does also necessitate for those readers with less knowledge of the EU to include basic information on the EU in this book. Also, although being an international organization, the EU has gradually developed in an organisation per se, which shows many similarities with states and is interwoven with the member states and exercises a great deal of state functions. Even a wide variety of sovereign powers of member states have been transferred to and/or shared with the EU. In teaching constitutional law it seems self-evident to me that also EU law has to be included: comparative constitutional law also has this vertical, European, important aspect of a multi-level constitutional order. That means attention to the EU in the different chapters as one of the systems under comparison, and also to the EU as an impact on domestic constitutional law of the member states. To the benefit of both students and teachers, I have updated the catalogue of possible exam questions at the end of this book, to facilitate and encourage self-testing and to provide suggestions for possible exam question formats. It has been pointed out that this book might cover more systems, including non-Western systems. However, as in the foregoing editions I decided to keep the current selection of five constitutional systems in the fourth edition as well, be it expanded with an addition of the EU. These systems represent 8 generic models of constitutional solutions across the world, and understanding these five systems in turn makes most other systems much easier to understand. The presidential systems of Brazil and the Philippines will be more accessible to readers who have already familiarized themselves with the US system; those who know the federal systems of Germany and the US, including their differences, will quickly gain a grasp of Australia, Nigeria or India; knowledge of the British and Dutch monarchies opens insight into the monarchies of Norway, Spain and Thailand; the French semi-presidential system offers a point of reference for the study of the systems in Romania and Russia; bicameral parliaments, election systems and constitutional courts around the world can be put into context based on the different models and blueprints that are discussed in this book. However, specifically in the first chapters I have included more references to other constitutional systems than the selected ones. Like it was said in the preface to the first three editions, I believe that comparative law is an essential element in the curriculum of any law student. Specifically this is the case in the EU context of multi-level governance and constitutionalism, the collaboration between national political systems and the EU, and the construction of an EU model which meets our requirements  Preface to the Fourth Edition and expectations of constitutionalism, legitimacy, democracy and rule of law. May this book continue to help promote the mainstreaming of comparative constitutional law in the main body of legal education. With Sascha Hardt I have edited a book about Sources of Constitutional Law (Intersentia 2014), containing constitutions and fundamental provisions from the USA, France, Germany, the Netherlands and the UK, including the ECHR and the EU Charter of Fundamental Rights. That book is also available to students and interested readers who wish to acquire insight into constitutional issues and concepts and comparative knowledge. For readers searching for a comparative collection of treaties, international instruments, laws and statutes and regulations for the purposes of comparative law, I refer them to Sascha Hardt and Nicole Kornet, The Maastricht Collection, Selected National, European and International Provisions from Public and Private Law (two volumes, 4th edition, Europa Law Publishing, 2015). Finally I would like to thank those readers and students who have commented on the specific phrases in this book. Their contribution was extremely valuable. Prof. Aalt Willem Heringa Maastricht, March 2016 9 Table of Contents 1 Introduction to Comparative Constitutional Law 19 1. Introduction 19 2. The Meaning of a Constitution 23 3. The Flexibility of Constitutions 29 4. Terminology 33 4.1. State 34 4.2. Country 34 4.3. Nation 35 4.4. Government 35 4.5. Republic and Monarchy 36 4.6. Democracy 39 5. Political Parties 41 6. Guide to the Use of this Book 41 7. Concluding Comments 42 8. Further Reading 43 11 2 Constitutions Compared: Origins and Main Features 45 1. Overview 45 1.1. The Notion of Sovereignty 46 1.1.1. Popular versus Royal Sovereignty 47 1.1.2. Popular versus National Sovereignty 47 1.1.3. Popular versus State Sovereignty 48 1.1.4. Parliamentary Sovereignty 49 1.1.5. The Absence of Sovereignty 51 1.1.6. Sovereignty and European Integration 52 1.2. Parliamentary and Presidential Systems 54 1.3. Separation of Powers and Checks and Balances 57 1.4. The Role of Judges 61 1.5. State Structure: Unitarism and Federalism 62 1.6. Rule of Law / Rechtsstaat 63 1.7. Summary 64 1.8. Further Reading 65 2. The United States 66  Constitutions Compared 2.1. Civil War and Reconstruction 66 2.2. The US Constitution 67 3. Germany 70 3.1. National Unification 70 3.2. Division and Reunification 72 3.3. The Basic Law 73 4. The United Kingdom 76 4.1. Monarchy and Parliament 76 4.2. The UK Constitution 79 4.3. The UK and Europe 83 5. France 84 5.1. A Sequence of Constitutions 85 5.2. The Constitution of the Fifth Republic 86 6. The Netherlands 89 6.1. Dutch Independence and the French Period 89 6.2. The Kingdom of the United Netherlands 91 6.3. The Dutch Constitution 91 6.4. The Charter for the Kingdom 94 7. The European Union 96 3 Federalism, Unitarism and Decentralization 101 12 1. Overview 101 1.1. Degrees of Federalism and Devolution 103 1.2. Types of Federalism and Devolution 105 1.3. Federalism and the European Union 107 1.4. Summary 109 1.5. Further Reading 111 2. The United States 111 2.1. US Federalism: The Senate 111 2.2. Federalism and the House of Representatives 112 2.3. Vertical Separation of Powers 113 2.4. Federalism at Presidential Elections 117 2.5. Federalism and the Executive and Judicial System 117 3. Germany 118 3.1. German Federalism: The Bundesrat 119 3.2. Federalism and the Bundestag 120 3.3. The Competences of the Federal Lawmaker 122 3.4. Federalism and the Election of the Federal President 123 3.5. Federalism and the Executive and Judicial System 123  Table of Contents 4. The United Kingdom 124 5. France 128 6. The Netherlands 129 6.1. Decentralization in the Netherlands 130 6.2. The Overarching Kingdom 131 7. The European Union 133 7.1. EU’s Competences 133 7.2. EU’s Institutions 134 7.3. Execution 135 7.4. Supremacy 135 7.5. Democracy Deficit? Accountability, Legitimacy and National Parliaments 137 4 Parliaments and Lawmaking 141 1. Overview 141 1.1. Principles of Elections 146 1.2. Election Systems 149 1.3. Bicameralism 153 1.4. The Legislative Process 155 1.5. Referenda 158 1.6. The Government and the Head of State 160 1.7. Parliamentary Privilege 163 13 1.8. Political Parties 163 1.9. Summary 164 1.10. Further Reading 165 2. The United States 165 2.1. The House of Representatives 166 2.2. The Senate 169 2.3. Federal Lawmaking 171 2.4. The President 174 2.5. Political Parties 175 3. Germany 176 3.1. The Bundestag 176 3.2. Election System 178 3.2.1. Seat Distribution 178 3.2.2. The Threshold 181 3.2.3. Unconstitutionality 182 3.3. The Bundesrat 185 3.4. Federal Lawmaking 187 3.4.1. The Legislative Process 188  Constitutions Compared 3.4.2. The Bundesrat 189 3.4.3. The President 192 3.5. Political Parties 193 4. The United Kingdom 194 4.1. The Commons 194 4.2. The Lords 196 4.3. The Legislative Process 199 4.3.1. Royal Assent 201 4.3.2. The Lords 201 4.4. Political Parties 204 5. France 204 5.1. The National Assembly 205 5.2. The Senate 207 5.3. The Legislative Process 209 5.3.1. The Senate 212 5.3.2. Organic Statutes 213 5.3.3. The President 213 5.3.4. The Constitutional Council 214 5.4. Political Parties 217 6. The Netherlands 217 6.1. The Second Chamber 218 14 6.2. The First Chamber 221 6.3. The Legislative Process 223 6.3.1. Statutes for the Netherlands in Europe 224 6.3.2. The King/Queen 225 6.3.3. Statutes for the Overall Kingdom 226 6.4. Political Parties 227 7. The European Union 227 7.1. Commission 228 7.2. Council 229 7.3. European Parliament 229 7.4. EU Lawmaking 230 7.5. Political Parties 230 7.6. Role of Member States and their Parliaments in EU Lawmaking 231 5 Governments, their Parliaments and their Heads of State 233 1. Overview 233 1.1. Heads of State and Government 233 1.2. The Rank of the Prime Minister 237  Table of Contents 1.3. Parliamentary Investiture 238 1.4. Ministerial Accountability 240 1.5. Parliamentary Scrutiny 247 1.6. National Parliaments and the European Union 248 1.7. The Immunity of the Head of State 250 1.8. Dissolution of Parliament 252 1.9. Summary 255 1.10. Further Reading 256 2. The United States 256 2.1. The President and Vice-President 257 2.2. The President and Congress 261 2.3. Congressional Scrutiny 263 3. Germany 263 3.1. The Federal President 264 3.2. The Chancellor and his/her Government 267 3.3. Ministerial Accountability 268 3.4. Parliamentary Scrutiny 270 3.5. Confidence Question 271 4. The United Kingdom 273 4.1. The King/Queen 273 4.2. The Prime Minister and his/her Cabinet 274 4.3. Parliamentary Scrutiny 276 15 4.4. Ministerial Accountability 277 5. France 280 5.1. The President 281 5.2. The Prime Minister and his/her Government 282 5.3. Ministerial Accountability 284 5.4. Parliamentary Scrutiny 286 6. The Netherlands 287 6.1. The King/Queen 287 6.2. The Prime Minister and his/her Cabinet 289 6.3. Ministerial Accountability 290 6.4. Motions of No Confidence 293 6.5. Parliamentary Scrutiny 294 6.6. The Government of the Kingdom 295 7. The European Union 295 7.1. Multiple Presidents 296 7.2. Motions of No Confidence 298 7.3. Accountabilities and Dual Legitimacy 298 7.4. Parliamentary Scrutiny 299  Constitutions Compared 6 Judicial Review and Court Systems 301 1. Overview 301 1.1. Constitutional Review of Legislation 302 1.2. The Procedural Setting of Constitutional Review 304 1.3. Review of Treaty Law Compliance 308 1.4. European Union Law 312 1.5. Role of Courts and Interpretation 315 1.6. Summary 317 1.7. Further Reading 317 2. The United States 318 2.1. The Court System 318 2.2. Constitutional Review 322 2.3. International Treaties 325 3. Germany 327 3.1. The Court System 327 3.2. Constitutional Review 328 3.3. International Treaties and the ECHR 332 3.4. European Union Law 333 4. The United Kingdom 335 4.1. The Court System 335 4.2. Constitutional Review 335 16 4.3. International Treaties and the ECHR 337 4.4. European Union Law 340 5. France 341 5.1. The Court System 341 5.2. Constitutional Review 343 5.3. International Treaties and the ECHR 345 5.4. European Union Law 345 6. The Netherlands 346 6.1. The Court System 346 6.2. Constitutional Review 347 6.3. International Treaties and the ECHR 348 6.4. European Union Law 350 7. The European Union 350 7.1. EU Courts 351 7.2. National Courts and EU 351 7.3. The EU Charter of Fundamental Rights 352 7 Human Rights 355 1. Overview 355  Table of Contents 2. The United States 355 3. Germany 359 4. The United Kingdom 361 5. France 363 6. The Netherlands 365 7. The European Union 367 8. European Human Rights 370 9. The ECHR, the European Union and the National Constitutions 374 8 Concluding Comparative Comments 377 1. Constitutions as Balancing Acts 378 2. Multiple European Legal Orders and Multi-Level Governance 381 Annex 1 List of Tables, Charts and Graphs 385 Annex 2 Useful Links 387 Annex 3 Exercises and Model Exam Questions 389 Annex 4 Glossary 395 17 Annex 5 Overview of Constitutions Compared 403 Index 407 1 Introduction to Comparative Constitutional Law 1. Introduction Why comparative constitutional law? First, like any comparative study of law, the international comparison of constitutional systems helps us better appreciate and understand our own system and to broaden our world view. If we were only exposed to our own legal system, we would run the risk of taking features of that system for granted. We might see our own system’s design as the only ‘natural’ and possibly best state of affairs. Comparison allows us to critically assess a system, and to better see not only what a constitution says but, crucially, what it does not say on a particular subject. Thus, comparative constitutional law serves as an educational tool in an academic curriculum. Second, comparative law can provide helpful material for constitution- 19 building and constitutional engineering. When a country considers a constitutional reform, when it must interpret the wording of its own constitution, or when a newly independent country needs a completely new constitutional setup, international comparison helps courts and constitution- drafters to learn from other systems’ achievements. It also helps them to avoid repeating their mistakes. This is comparative law as the lawyer’s own laboratory: constitutional and legal systems seek to address similar issues and problems and may do so with different techniques and manners. These differences we can learn from, use for inspiration or take as examples of how not to do it. Third, comparative constitutional law often proves crucial in the particular context of the creation and development of international organizations. The institutional design of the European Union (EU), even though it is not a state but set up as an international organization, nevertheless has much in common with domestic institutional setups. The Court of Justice of the EU and the European Court of Human Rights (established under the European Convention on Human Rights (ECHR)) routinely rely on comparative constitutional law to develop their case law. The Court of Justice of the EU refers to constitutional traditions common to the member states when  Constitutions Compared establishing general principles of European law; the European Court of Human Rights seeks to identify common ground between the contracting states in interpreting the meaning of certain provisions of the European Convention on Human Rights. When a transnational entity must develop law ‘from scratch’, a comparative survey of the law of its member states is a sensible start. This is not to say that engaging in comparative constitutional law is entirely uncontroversial. One argument against it is that international comparison in the area of constitutional law is futile, since countries differ too much in history, culture, self-perception, population structure, etc. Thus, the constitutional law of different systems is riddled with idiosyncrasies and is not readily comparable. For similar reasons, constitutional transplants or constitutional borrowing from one system to another can be unworkable at best, and dangerous at worst. As regards international organizations, in particular the European Union, comparison between states may yield unreasonable expectations when results are applied to an entity that is manifestly not a state. Yet another argument is directed against the use of comparative methodology to constitutional interpretation by judges. The debate is most heated in the United States, where the Supreme Court at one point took international consensus into account when interpreting the meaning of the US 20 Constitution. In Roper v. Simmons (543 U.S. 551), decided in 2005, the Supreme Court partly relied on international practice to establish that the death penalty for juvenile offenders is ‘cruel and unusual punishment’ in the sense of the 8th Amendment to the US Constitution. Opponents of this approach argued, among other things, that the American people should not be subjected to foreign law on which they have had no influence. When and if we are using comparative constitutional law, we must therefore always be aware of why we are using it. Depending on the context, we must be aware of the limitations and sensitivity of the exercise. Comparative studies do not have to be uncritical; cross-border exchange of ideas does not have to mean to simply copy-and-paste provisions from one constitution to another. The controversy of using international comparison in domestic constitutional interpretation depends on the system at hand; in the US it is much related to the controversy surrounding the role of judges in general. In most European countries, such controversy simply does not exist. Comparisons do not have to settle an issue of domestic law but may provide inspiration or (bad or best) practices to learn from. In recent years the EU has set up ‘Score Boards’ (such as the Justice Score Board) to be able to compare judicial systems; furthermore, EU policy  1 Introduction to Comparative Constitutional Law documents are drafted containing other comparisons (with respect to economic indicators for instance) or even ‘best practices’. These endeavours also constitute comparative exercises and may lead states to be inspired by one another’s practices or to even copy them. In that respect the EU may also make use of its own concepts of democracy, rule of law and other constitutional values (Art. 2 TEU) as values that are common to the member states. The EU has also been given the power to supervise the compliance by the member states with these values (Art. 7 TEU). These features imply a constitutional discussion between the EU and member states, not only in the pre-accession stage, since compliance with these features is an accession requirement, but also as a continuous process between the EU and member states. Relying upon comparative constitutional law also has to take into account the distinction between the law on the books and the law in action. Sometimes constitutional legal practice has evolved under a constitutional text that did not change; sometimes similar constitutional models show conflicting practices; political majorities in one system may be more prudent in exercising their powers to the full than political majorities in another system, who may use their power against political minorities; constitutional courts in different systems may exercise similar powers to set aside statutes for unconstitutionality, but that does not settle the issue of how these powers are being used: extensively or infrequently. In that respect we see different 21 patterns and cultures. And then, what do such aspects tell us? Do they give insight into the courts’ activity or into the quality of lawmaking, or both? Or do they indicate the range and scope of constitutional clauses that the constitution provides? And then again, we ought also to know how the courts’ judgments are received and accepted as legitimate, to get a full picture of the working of constitutional law. Earlier we referred to the concept of constitutional engineering. Constitutions and constitutional systems are not a neutral given. In Western contexts one could say they serve three purposes: to set up and maintain an effective state; to establish and respect democracy; and to abide by the rule of law. These three purposes may and do conflict: the rule of law may restrict democracy, for instance by binding the legislature to human rights. The balance sought between these three aspects is for the states themselves to decide and the balance may even shift over time. But a balance is necessary and an overriding priority given to one of them may distort the quality of a state. Many other features – such as judicial review, the election system, the offices to be elected, accountability mechanisms, the role, oversight and powers of parliaments and executives – serve the balance sought in any given system  Constitutions Compared between the effectiveness of a state, democracy and the rule of law. What is important is to recognize these purposes and to make explicit the choices to be made in that respect, and that is also where comparative constitutional law may help in identifying how and why constitutional systems have made their choices. Let us take a recent example to illustrate: the Covid-19 pandemic. Elections were postponed, political campaigns affected, freedom of movement limited, parliamentary activity put to the test, emergency situations invoked, freedom of demonstration severely hampered – limitations we would not accept in ordinary times, but that we may accept as necessary still. However, also under the assumption that parliaments may scrutinize and are involved in establishing them and that state measures may be tested by courts for their proportionality and indeed necessity, and also with the assumption that these limitations are only temporary and of limited duration. Constitutional law and practice This book is meant to serve the first purpose of comparative constitutional law: to allow us to better understand the constitutional system of our own country and that of other countries, to assess their advantages and disadvantages, and perhaps even to discover our own preferences, and to be 22 able to underpin our preferences and points of view with arguments and empirical findings and experiences in other states. What is needed for good assessments, however, are criteria and points of reference, and above all, as we also noted, an insight into constitutional practice. Constitutional texts may be clear, but not fully apt to show us the constitutional and political practice. For that reason we refer frequently to practice and political application, and provide examples to that effect. Practice is relevant. But so is the evaluation of why one rule or practice may be better than another: how do we evaluate a rule or practice? Is a more democratic system better than a system which has built-in judicial control? Do we allow optimal protection of human rights which makes the state less effective in the investigation or prosecution of crimes? In other words, where do we draw the line between these conflicting interests? That requires insight into and knowledge of the constitutional rules, practices and empirical data, as well as analysis of how to balance constitutional values such as democracy, rule of law and effectiveness of the state in fulfilling its tasks. And in that respect opinions may and do differ. We always have to make clear what our criteria are and how we define them. When we say that one system provides for more democracy, how do we define democracy and why is more by definition better? When we prefer  1 Introduction to Comparative Constitutional Law constitutional review exercised by all courts over constitutional review by one single constitutional court, how should we assess the different benefits and counter-arguments? The argument should indicate why one solution may be better, and for what reason and purposes. And when we debate electoral systems, we should not forget to make explicit what it is we want an electoral system to achieve: for instance, full proportionality or effective workable majorities? We also need to consider the election system in context with the government system, the role of political parties and possibly also traditional evolution and the acknowledgement of the people of their system as legitimate and overall fair. 2. The Meaning of a Constitution What is a constitution? The term constitution’ can have a narrow or formal meaning and a broad or substantive meaning. In its narrow or formal meaning, a constitution is a central written document that sets out the basic rules that apply to the government of socio-political entities, in particular states. Such a central constitutional document can be called appropriately ‘constitution’, but also, for example, ‘basic law’ or ‘charter’. Thus, the American Constitution is a document, adopted in 1787 and taking effect in 1789, which, in short, 23 establishes the United States of America, defines the powers of its President and Congress, outlines the federal court system, regulates the competences between the central authorities and the individual States, and guarantees the fundamental human rights of its people. In its broad or substantive meaning, meanwhile, a constitution comprises the entire body of fundamental rules that govern that socio-political entity: be they contained in a central document or in many documents, be they written down or be they customary rules. Substantively, therefore, a constitution is a body of law that: attributes power to public authorities; regulates the fundamental relations between public authorities; and regulates the fundamental relations between the public authorities and the individual. One might say that this is a technical and minimalist approach to the function of a constitution, and that in many countries constitutions also have a deeper societal significance. Thus, a constitution, notably a written constitution, can mark a break with the past, settle past conflicts in writing, codify a social  Constitutions Compared contract between the citizens and their rulers so that they may rule to the benefit of the people, or strengthen national identity and people’s feeling of belonging. But even in societies where a constitution neither marks a historical rupture nor means much for a nation’s identity, it will nevertheless remain a body of law that, at the very least, does what all constitutions do: it attributes power and regulates its exercise. Constitutional law in the broad sense Constitutional law in the broad sense is typically divided into two branches: institutional law and human rights. Institutional law governs the way in which the state and its institutions function, for example the term and the powers of a parliament, the prerogatives of a government, as well as the system how voters elect their representatives. Human rights in the classical sense (like the prohibition of torture or the freedom of speech) protect the citizen against the state, and thus also regulate relations between public authority and the individual. The present volume is mainly devoted to the institutional aspect of constitutional law, including institutional and procedural rules regarding human rights enforcement in courts; in Chapter 7 brief attention will be given to an overview of human rights and their protection in each of the systems we have selected for the present book. 24 The Four Basic Questions in Constitutional Law 1. Since public law powers may only be exercised on the basis of an explicit constitutional allocation, does institution X indeed have power Y? 2. Is the exercise of the power granted within the limits as defined by law? 3. Are the power and its exercise in conformity with other rules of the constitutional systems such as human rights? 4. Who has the power (based also evidently upon a constitutional mandate) to supervise the exercise of powers by others and, in the event of non-compliance, of nullifying the illegal exercise? Even a state that formally does not have a central written constitutional document – a basic law or charter – can nevertheless substantively have a constitution. The best-known example here is the United Kingdom. There is no single legal document that would have as its title ‘The Constitution of the UK’. There is therefore no constitution in the narrow sense. However, like any  1 Introduction to Comparative Constitutional Law state, the UK does have a constitution in the broad sense, namely a body of constitutional law. Some of these rules are laid down in judge-made case law, such as the concept of ‘sovereignty (supremacy) of Parliament’; some are laid down in statutes, laws made by Parliament (such as election laws, the Parliaments’ Acts and others); and some take the form of customs, conventions, or gentlemen’s agreements. For example, nowhere is it written that the King/Queen appoints as his/her Prime Minister the leader of the political party that has, alone or in coalition with other parties, a majority in the House of Commons – that is a convention, or customary rule. At times it is noted that the UK has an ‘unwritten constitution’, but that is not entirely correct, because some parts of it are indeed written. For example, the devolution of certain legislative competences to Scotland, which affects the distribution of power within the UK, and therefore its constitutional law, is laid down in a written statute adopted by the UK Parliament. Israel does not have a consolidated constitutional document either; Sweden has a collection of fundamental statutes of constitutional rank but no central charter. Usually (but again, not always) new states build their new state, or their new form of government, upon a draft and entry into force of a new constitution/ constitutional document, to mark the break with the past and to give legitimacy to the new state and its new constitutional order. A constitution as a new show of sovereignty, along with a national anthem, flag, military, capital city and new institutions in fitting buildings with the relevant state symbols 25 attached to them. It was this connection with national sovereignty that caused the Constitution of Europe (Treaty establishing a constitution for Europe 2004) to fail in the ratification process due to two negative referenda in France and the Netherlands, both in 2005. Unwritten rules Conversely, even states which do have a ‘written’ constitution in the formal sense can and do have statutory written and also unwritten rules that form part of their broader constitution. For example, judges in the United States have the right to declare legislation unconstitutional; the US Constitution itself does however not explicitly give judges this right. This right was established by case law, that is by court decisions, and arguably these court decisions on the interpretation of the written Constitution also form part of the US ‘constitution’ in a broad sense. Some pieces of legislation might also be considered broadly constitutional rules even if they are not laid down in the central document. This typically includes the law on the election system, the statute of a constitutional court, the rules of procedure of parliament, etc. International law, and international treaties in particular, may also have a  Constitutions Compared domestic constitutional effect. Furthermore, customary rules can form part of the constitution in a broader sense as well. The rules pertaining to the relations between the parliament and ministers in the Netherlands are, for instance, almost entirely customary. They are part of the Dutch constitution even though they are not spelt out in the document itself, or the constitution in the formal sense. For greater clarity, we shall use capitalization when referring to specific constitutional documents, such as the French Constitution, but use lower case when using constitution in a generic sense and in the broad sense of a body of constitutional rules (written and unwritten). Terminology Some languages actually distinguish between the constitution in a narrow sense and the constitution in a broad sense. In German, Verfassung can be a generic term for a written constitution but it can also mean the broader constitutional system. The German written constitutional document in force is called Grundgesetz, or basic law. The Dutch language distinguishes between the constitutie, a body of constitutional rules, and grondwet, a basic law in which such rules may 26 be written down. The Swedish författning in a broad sense comprises a collection of fundamental written statutes, or grundlagar. A constitution in the narrow sense – a constitutional document – cannot in fact capture and exhaustively codify the entire body of the constitution in the broad sense. Case law, customs, secondary legislation, learned writing, as well as concepts such as ‘natural law’ which transcend positive law, would also form part of the broader constitution. Another useful distinction can therefore be drawn between the written constitution and the working constitution. The former covers the black-letter law; the latter covers the entirety of rules and perceptions regarding this subject in society. Actors that take part in the working constitution include not only political institutions and courts, but also media, churches, trade unions, etc. One frequent criticism against comparative constitutional law is in fact that it only compares written constitutions and is unable to capture the entirety of working constitutions. An incumbent president may, for example, have the exact same legal powers as his/her predecessor, but still be less powerful, because s/he lacks political support, has a less persuasive authority, or  1 Introduction to Comparative Constitutional Law operates under complicated social conditions. Like we said earlier on, this is exactly why legal studies in this area need to make clear what they are meant to analyse. If they limit themselves to legal analysis proper, such as a review of case law on a constitutional rule, there is nothing objectionable about it. If they want to make broader claims about the effect that constitutional law has on society, legal scholars are indeed well-advised to take political practice and the findings of social sciences into account. At the same time, political practice can have an impact on the operation and even the scope of constitutional law itself. Sanctions against office-holders, for example, may well be real – loss of popularity, an embarrassing defeat in a parliamentary vote – but are not necessarily stipulated in constitutional texts; conversely, office-holders may, through their very actions, give rise to the emergence of customs or conventions, which may enter the body of constitutional rules. Yet there are extreme cases where the working constitution deviates so much from the written constitution that it renders the written document almost meaningless. Communist regimes, dictatorships and other forms of authoritarian systems may well preserve a written constitution that regulates the state’s institutional design and proclaims the state’s attachment to the rule of law and human rights. What is seen in reality, then, are phony institutions, sham elections and human rights abuses. The Soviet Constitutions since 1922 for instance guaranteed the right for every constituent republic to freely leave the Soviet Union. In reality, these were just words on paper and had a purely 27 propagandist value. Today, we witness similar developments when governments, relying upon a majority in parliament, seek to fill the courts or the constitutional court with political appointments only, thus trying to remove from these courts their sting and their countervailing powers. For these reasons, constitutional lawyers must pierce the veil and look behind the façade of institutions and try to assess their true and independent or impartial nature. Limited government The idea of limited government, where the exercise of public power is governed and constrained by a constitution and the rule of law, is called ‘constitutionalism’. Constitutionalism presupposes that political actors will obey legal norms in how and to what extent they govern. Historically, from the late 18th century onwards, the idea of absolutism, where the monarch was sovereign and not bound by law, ceded ground to the idea of constitutionalism in most of Europe. Thus, now even a monarch is bound by the constitution. Modern constitutional monarchies are the result of exactly that shift in thinking from absolutism towards constitutionalism. And such  Constitutions Compared constitutionalism and the notion of limited government as essential to democracy and the rule of law should guide us through modern-day developments where those who have been elected and exercise power claim an absolute power to govern. Limited government has prevailed over absolute monarchs and must also prevail over democratically elected modern-day ‘monarchs’. EU Constitution? How about the EU? Does it have a constitution? In a formal sense the answer has to be in the negative. The EU is an international organization and as such it is based upon two treaties: TEU (Treaty on the European Union) and TFEU (Treaty on the Functioning of the European Union). These are treaties and the EU is an international organization and not a state. Furthermore, as noted before, in 2004 a treaty was agreed holding the establishment of a constitution for Europe (in short: the EU constitution); this project failed because it was rejected in 2005 in referenda in France and the Netherlands. It was then followed by the Treaty of Lisbon: the present TEU and TFEU. However, in a substantive sense these two treaties are the constitutional documents for the EU: they contain clauses about the powers of the EU, its institutions and its functioning – typical constitutional features. Furthermore, a Charter of Fundamental Rights was added. 28 What If ? In the course of a comparative constitutional survey, the question is sometimes raised of what would happen if a certain office-holder were to ignore a certain constitutional rule. What is the punishment? In areas like private law or criminal law, law enforcement through the police and the courts, this is a relatively straightforward matter. The enforcement of constitutional law is, however, not that simple, since it governs exactly those who themselves govern. The answer to what might happen in case of a violation of constitutional law therefore depends on the robustness of constitutionalism and the rule of law in a system. If the law is accepted as governing the state, including its rulers, then the rulers will obey the law. Complying with conventions may ideally become a matter of decency and common sense. Making different branches of government interdependent and allowing them to keep each other in check also helps ensure that power is not abused.  1 Introduction to Comparative Constitutional Law Opposition parties as well as civil society, including the media and non- governmental organizations, also play a role in insisting that rulers comply with the law. And indeed elections or referenda may also serve the purpose of punishing those in power for transgressions of their powers. In some states, such as Germany, an elaborate constitutional court has been set up to duly supervise the constitutionality of all actions and omissions by state actors. Such broad review does not exist in all states: in many states such broad supervision would be considered to be ‘political questions or issues’ outside the scope of courts. 3. The Flexibility of Constitutions A state that has adopted a single charter as its constitution in the narrow sense, codifying most of its broader constitution in that document, typically gives that document a special status. Among other things, that special status is reflected in the fact that in order to change that document, a special procedure has to be followed. Special procedures then differ from the normal legislative process by which statutes, or acts of parliament, are adopted. 29 Sometimes certain important elements in the constitution cannot even be changed at all. Constitutions that are harder to change than ordinary legislation are called ‘rigid constitutions’ or ‘entrenched constitutions’. There, it is made more difficult to change the rules of the game, as it were, than to play the game itself. Rigid constitutions Typical amendment procedures for rigid or entrenched constitutions include the requirement for super-majorities in parliament (e.g. Germany, Portugal); two parliamentary readings of the amendment and new elections in between these readings (e.g. the Netherlands, Sweden); ratification of the amendment in the state’s component territorial sub-units (e.g. United States, India in certain cases, the EU where major treaty revisions must be approved by all member states); or a referendum (e.g. Australia, France usually). Some constitutions are more rigid than others. The German Basic Law is harder to amend than ordinary statutes are, because both legislative chambers have to adopt an amendment with a higher-than-usual majority. Nevertheless, the text was amended that way about 50 times during its first 50 years of  Constitutions Compared operation. The US Constitution, by contrast, has in its first 200 years of existence seen only 27 amendments, the first 10 of which were included as a block right at the beginning; that leaves 17 amendments in more than 200 years! Yet, then again, a constitutional amendment in the US requires, once the proposal is adopted, the approval of three-quarters of all the individual States. For 50 States that means 38 approvals, something that is not necessary for amendments in Germany, and that may explain the endurance of the original text in the US. At the same time, the German Basic Law excludes some of its fundamental features from future amendment: human rights principles and its federal character, for example, may not be changed (Art. 79 of the German Constitution). The French Constitution does not allow any change to the republican character of its government. The US Constitution has no such ‘forever clause’, and is formally less rigid in that respect, although the deprivation of a State’s equal representation in the Senate (two senators per State) requires that State’s consent. Rigidity may thus refer to both the procedure and the scope of a possible amendment: the former makes change relatively difficult to accomplish; the latter limits the subjects that can be changed in the first place. The most rigid constitutional arrangements are those that can only be amended by unanimity, i.e. with the consent of each and every constituent party. The founding treaties of the European Union, 30 which is indeed often compared to a constitutional system in its own right, can in principle be changed only if all member states have ratified an amendment treaty, which gives every single country a veto against all others. To introduce a measure of flexibility, the Treaty of Lisbon, which entered into force in 2009, provides for simplified amendment procedures (Art. 48 TEU), but even they are still governed by the principle of unanimity. Flexible constitutions The opposite of hard-to-amend rigid constitutions are ‘flexible constitutions’. The constitution of the United Kingdom, since it is not contained in a central document, does not prescribe any special amendment procedures. Therefore, it can be changed in the course of an ordinary legislative process, or as a result of the emergence of new customs or case law in practice. For example, the statute that gave certain powers to Scotland is just an ordinary statute, adopted by simple parliamentary majority like any other statute. The rule that the UK Parliament will not interfere with Scottish powers unless the Scottish parliament has invited it to do so, is a relatively new custom. Thus, one piece of legislation and one unwritten understanding have already significantly changed the way the UK constitution functions. This flexibility should not be  1 Introduction to Comparative Constitutional Law confused with arbitrariness, though. Customs may in fact be harder to change than texts are; and just because the UK Parliament might change the constitution easily does not mean it will do so, or do so lightly. It should be noted that a constitution’s flexibility, in terms of scope and procedure, merely points to formal amendment requirements. Yet even if a constitution is rigid formally, which means that it provides for special procedures for the amendment of its text, this still says little about the rigidity of that constitution’s substantive content. A constitution’s substantive rigidity depends on whether the text is accepted as meaning what it says in a narrow sense, or whether it is perceived as a ‘living document’ that evolves together with the society it serves. Changing customs and conventions in political practice can give a different meaning to written constitutional provisions, occasionally undermining them or developing them further. The upper chamber of the Dutch parliament, for example, is formally not granted the right to propose amendments to legislative drafts, only the right to accept or reject these drafts. It does, however, at times make it known that it will only accept a bill if it is amended in a certain way. That, for all practical purposes, comes down to a ‘hidden’ and extra-constitutional right of amendment. It is an example of the substantive flexibility of the Dutch Constitution, whereas the text of the Constitution itself has remained formally unchanged. Constitutional interpretation 31 The powers of interpretation by judges, most notably constitutional courts, also play a crucial role in determining the substantive flexibility of a constitutional text. The German Federal Constitutional Court, for example, is prepared to interpret the Basic Law rather actively, in the light of new societal developments and on the basis of open-ended principles including human dignity and rule of law. The European Court of Human Rights also applies a ‘dynamic’ interpretation of the European Convention on Human Rights. Though the Convention is an international treaty, rather than a constitution, it is often considered to be a quasi-constitutional charter in the area of fundamental rights, not least because it has its own Court to uphold it. Thus, the term ‘family life’ as found in the Convention no longer exclusively means the life of married couples but, since societal norms have evolved across Europe, also includes the life of unmarried couples. The United States, meanwhile, is struggling between a ‘liberal’ interpretative approach and a more ‘conservative’ or literalist approach. Supporters of the former approach would, for instance, bring the right to abort a pregnancy under the scope of constitutional protection, citing privacy principles, the spirit and the systemic logic of the Constitution. Literalists, by contrast, would  Constitutions Compared seek to restrict constitutional interpretation only to the original intention of the 18th-century drafters of the Constitution, who of course did not mention anything concerning abortion rights. (R)evolutionary constitutions A distinction closely related to the substantive flexibility of a constitution concerns the nature of its development. Usually, the adoption of a new constitution marks a new beginning for a society. The constitution is then a revolutionary constitution, even if has not been preceded by any actual violent upheaval, because it marks a transformational event. What therefore distinguishes a revolutionary constitution is the fact that it has been adopted in what is often called a ‘constitutional moment’: a special event in time when an old order is replaced by a new one. France cherishes the notion – one might say the tradition – of having revolutionary constitutions: counting from 1789, the year the absolute monarchy fell in the ‘French Revolution’, the country is already into its fifth republic. Each new constitution replaces an old order with a new one. The constitutions of the US, Germany and the Netherlands, like most other constitutions in the world, also were to mark a new beginning – independence, regained statehood, republicanism following monarchy or vice versa, democracy following dictatorship – and are revolutionary in that 32 sense. The opposite of a revolutionary constitution is an evolutionary constitution, one that develops gradually over time. The classical example of an evolutionary model is the constitution of the United Kingdom. Over time, the UK has seen, among other things, the emergence of the office of the Prime Minister as the leader of the cabinet; the consolidation of cabinet bureaucracy; a shift of power from the House of Lords to the House of Commons; devolution of power to Scotland and the other countries of the UK; and more generally the gradual limitation of royal prerogative by statute, for example through the Fixed-Term Parliaments Act 2011, which denied the traditional right for the crown to call early elections at its discretion. Yet there has been no spontaneous constitutional rupture since the ‘Glorious Revolution’ of 1688 when Parliament asserted its supremacy over the crown. Instead, new features were embedded in the existing framework. The development of the Dutch Constitution, since its entry into force in 1814 or at least since the large democratic reform of 1848, has also been distinctly evolutionary. Dutch statehood has been remarkably continuous for two centuries: neither the secession of Belgium from the Netherlands in 1830 nor the German occupation during World War II fundamentally changed the constitutional  1 Introduction to Comparative Constitutional Law character of the Dutch state. The major constitutional transformation of the Kingdom in 1954 – from a European motherland with overseas colonies towards a quasi-federation between the Kingdom’s European and overseas lands – barely affected the way the (European) Netherlands was governed. The development of the law of the European Union may also be said to have an evolutionary nature. European law has long surpassed the realm of classical international treaty law; it is a quasi-constitutional system of its own kind. And it is evolutionary as new treaties and case law keep developing this body of law. A genuine ‘constitutional moment’ has not been witnessed: the establishment of the European Coal and Steel Community, the Union’s earliest predecessor organization, in 1951, was a starting point for incremental steps towards ever-closer European integration rather than a genuinely transformative event. The Maastricht Treaty of 1992 and the Lisbon Treaty of 2009, however, may be called momentous in building the EU and the Economic and Monetary Union (EMU) and the EU’s rapid expansion of powers. A spontaneous unification of Europe into a giant nation-state, which would certainly mark a constitutional moment, is not likely either. 4. Terminology Before we start our more detailed exploration of different constitutional 33 systems, we need to make sure that we all speak the same language. That is, like for any comparative study, we need to agree on a set of terminology, a definition of technical terms and expressions, so that it is always clear what we mean when we refer to something from our field. This agreement comprises two overlapping elements. First, we must note that words in English can have different meanings depending on how or where we use them. Take the word ‘convention’, which can mean ‘international treaty’, or ‘assembly of delegates’, or ‘customary rule’, depending on the context. Second, we must be aware that words that can pass for translated equivalents in different languages, or that look similar or even identical, can mean different things across system borders. For example, ‘secretary of state’ in Dutch means a junior government minister; in the UK, however, it is a senior minister; and in the US it is the minister of foreign affairs. Let us address some key notions of constitutional law that can have multiple meanings in English, or that can easily become a translator’s false friends. We already discussed the different meanings of the word ‘constitution’. In the following sections, we shall consider the terms ‘state’, ‘country’, ‘nation’, ‘government’ and ‘republic’, terms that point to fundamental concepts of constitutional law.  Constitutions Compared 4.1. State ‘State’ can mean a number of things. One possibility is to use ‘state’ in the sense of ‘public authority’, as in ‘wages are determined by the free market or by the state’ or ‘the state sometimes interferes with private life’. In that sense, ‘state’ is often used synonymously with ‘the government’ as opposed to the private realm. For practical purposes, two other usages will be particularly relevant for comparative constitutional law: State as in sovereign country. In that sense, a state is a socio-political entity with its own set of government institutions exercising control over its population and territory. This should correspond with the definition of a state under public international law. Thus, Germany, the UK, France, the Netherlands and the US, along with, e.g., Canada, Norway, Brazil, Kenya and Japan, are all states. Sovereignty here is an important though complex concept. In Chapter 2 (1.1) we will devote some attention to it. State as in federal entity. In some countries that have a federal structure, the territory is made up of several sub-entities that are called States. Thus, the US comprises 50 States; India, Australia and Brazil also have States, and the federal components of Germany, called Länder in German, are usually translated as States as well. This means that Germany is a federal state, because it is a country that has a federal 34 structure; and Bavaria is a federal State, because it is a State that together with 15 other States forms part of the German federation. We shall use capitalization to describe States in the sense of entities that form part of a federation. In all other cases we shall use the lower case. 4.2. Country In informal speech, ‘country’ is usually used synonymously with ‘state’, as in ‘France is a sovereign country’. In the United Kingdom, the term country acquires a formal meaning, however. That is because the UK comprises England, Scotland, Wales and Northern Ireland, which are called ‘countries of the UK’. The Kingdom of the Netherlands consists of the countries of the Netherlands proper as well as Aruba, Curaçao and Saint Martin in the Caribbean. When referring to sovereign countries we shall use the formal term ‘state’, and only occasionally refer to ‘country’ in order to avoid ambiguities. We shall use ‘country’ in the UK and Dutch context as appropriate.  1 Introduction to Comparative Constitutional Law 4.3. Nation Another term that is sometimes used interchangeably with ‘state’ is ‘nation’. Strictly speaking, a nation refers to an ethnic-cultural category. The ‘nation’ can be a founding concept in a constitutional system, such as the source of all sovereign power. Equating ‘state’ with ‘nation’, however, is a habit deriving historically from nationalist thinking, holding that every nation deserves to have its own state. Hence the word ‘inter-national’ relations, even if they are in fact inter-state relations. Since virtually all states in the world are multi- ethnic, we shall avoid the term ‘nation’, and only occasionally use terms such as ‘national capital’ or ‘nation-wide’ in order to prevent ambiguities. 4.4. Government The term ‘government’ is also a term that gives rise to ambiguities and translation problems in comparative constitutional discourse. The three most important meanings for our purposes are the following. Government as in state order. In that sense, government, or system of government, broadly refers to the entirety of the organs of public authority, including lawmakers, ministers and judges. Thus, the legislature, executive and judiciary are referred to as the three ‘branches of government’. It is in particular an American habit to use ‘government’ 35 broadly, for example to contrast the ‘US government’ against the 50 ‘States’ governments’. Government as in executive. In that sense, the government comprises the head of government and a body of ministers, or ‘secretaries’, representing executive power as opposed to the parliament and the courts. ‘Government’ is then usually (but not always) synonymous with ‘cabinet’, which would roughly correspond to the presidential ‘administration’ in the United States. Government as in governing majority. In parliamentary democracies, the political party or parties that have a majority in parliament can form the government. This means that they are entitled to compose the cabinet, but they can also be referred to as actually being the government, as opposed to the minority or parliamentary opposition. We shall use the term ‘government’ in the sense that is most appropriate for the context, but mostly in the sense of ‘cabinet’ or ‘executive’.  Constitutions Compared 4.5. Republic and Monarchy Republic The term ‘republic’ is usually meant to denote a particular system of government; the name of the state which has adopted such system; and the period of time when the state is or was governed by such system. Firstly, a state that has adopted a republican form of government is one whose head of state is not a monarch. Thus, for all practical purposes, republic is the opposite of monarchy. This is also the sense in which the constitutions of the US, France and Germany refer to ‘republicanism’: they safeguard this principle so as to bar the (re-)introduction of a monarchy. Secondly, ‘republic’ can refer to the name of a state which has a republican order, such as the French Republic, the Federal Republic of Germany, the Portuguese Republic or the Republic of Cyprus. Not all republics bear the republican character of their constitution in their official name, though. The United States, for example, does not. Conversely, Germany after 1919, even though it had become a republic, retained the imperial-sounding term Reich as its name and as the corresponding prefix for its institutions such as Reichstag (parliament) and Reichspräsident (head of state). The term ‘republic’ derives from the Latin res publica, meaning common affairs or the common good. In the history of Rome itself, the Republic stands 36 for the period when public power was normally shared between different institutions in a complex system including, among others, the senate, plebeian assemblies and two elected consuls as supreme executive officers. The Republic succeeded the Kingdom in 510 BC and it ended with the dictatorship of Julius Caesar and the rise of the Roman Empire under Augustus. Thus, thirdly, ‘republic’ can also refer to a period in a state’s history when a republican order prevailed, especially after the deposition of a monarch or before the establishment of a monarchy in the same system. Some countries have had a number of different systems over time so that they keep count, as in First Republic, Second Republic, and so on. Such numbering applies, for example, to France, but also to Poland and Austria. Sometimes a term in the local language is applied instead of the Latin term republic, but it is taken to mean the same thing. In the revolutionary period of 1918/1919, when the monarchs of the German principalities were forced to abdicate, several German States proclaimed a Freistaat or ‘free state’, which at the time was a German term for republic. Today’s German States of Bavaria, Thuringia and Saxony label themselves as ‘free states’, not meaning that they are independent but that they are republics. The Estonian Vabariik also means free state in the sense of republic. 17th-century England saw the establishment  1 Introduction to Comparative Constitutional Law of a brief republican order under Oliver Cromwell which was named the Commonwealth. ‘Common wealth’, or common good, is a more or less literal translation of the Latin res publica. The same holds true for the Polish term Rzeczpospolita, applied to the historic Polish-Lithuanian Commonwealth and the present-day republic. Monarchy Even where a state is a monarchy, it need not be governed by absolute one- man rule. Most European monarchies, such as the Netherlands, Luxembourg or Norway, are constitutional monarchies, whereby the power of the monarch, such as a king/queen or grand-duke, actually derives from, and is (severely) limited by, a constitution. The same holds true for Thailand, Malaysia and Japan. Usually in monarchies the King or Queen holds office until abdication or death and is then succeeded by the heir (commonly the eldest child; in the past in some monarchies the eldest son). In Malaysia exceptionally the monarchy is rotational. Kingdom is passed between nine hereditary rulers, with a new King being appointed every five years. Nine sultans (each in charge of a State in Malaysia) take turns to be the King for five years. However, his powers are limited under the Constitution, as is common practice in most states. In 2008, after the Luxembourgish grand-duke had refused to sign a bill regarding euthanasia into law, for example, the constitution was changed so that royal assent is in fact no longer required and 37 the grand-duke is obliged to sign all bills passed by parliament. Monarchies can therefore in reality just as well live by ‘republican’ values in a broader sense: democratic representation, rule by many with the consent of the governed, separation of powers, limited government and rule of law. Absolute monarchies or near-absolute autocracies are rare in the contemporary world: the Vatican in Europe, Swaziland in Southern Africa, Brunei in East Asia, Saudi Arabia and a number of emirates along the Persian Gulf are the last of their kind; Bhutan abolished absolutism and adopted a constitutional monarchy in 2008. Durable Democracy One of the greatest advantages of a democracy governed by the rule of law, as opposed to dictatorships, is its systemic stability and long-term durability. That is because it allows for a peaceful and bloodless transition of power from one office-holder to another, one elite to  Constitutions Compared another, under fixed rules that bind all governments. It also allows the population to air criticism of an incumbent by ‘voting the rascals out’, which in turn allows those ousted from power to correct their own mistakes and seek re-election at a later stage. Dictatorial regimes, by contrast, will have to crack down on dissent to preserve their power lest they lose it forever. Also, since usually there are no legally binding rules of succession, dictatorships often do not outlive their founding leader. A democracy’s weakness lies in the short term: since it is a pluralist method of government, rather than an actual ideology, it is vulnerable to authoritarian movements which use democratic rights of participation in order to overturn democracy itself. Several democracies therefore include defensive mechanisms, such as the possibility to outlaw unconstitutional political parties. And evidently, there are many variations. Singapore may be defined as a dominant party state, but assessed positively from the perspective of stability, living conditions, economic growth and economic freedoms, though to a lesser extent from the perspective of political freedoms. In recent years debates have been taking place over whether such enlightened dictatorships might not be more, and more enduringly, competitive in terms of economic performance than full-scale Western European democracies. However, 38 as we indicated earlier, a state is to be assessed on three factors: effectiveness, democracy and rule of law. What is actually a better state: one with low(er) economic growth and low competitiveness but rule of law and democracy? Or a state with security and safety, growth and competitiveness and less democracy and free speech, and a rule of law which is flawed from the perspective of liberal democracies? How does the EU fit into this? Well, if anything it might be qualified as a ‘republic’, with its president (re)appointed every two and a half years, its rotating presidency of the Council, and the appointed President of the Commission (serving a five-year term). Nor do monarchies need to be hereditary; they can also be elective. In that case, a new monarch, rather than ascending the throne by a fixed line of succession, gets chosen by a body of electors. The Holy Roman Empire, a patchwork of territories in Central Europe which lasted through the Middle Ages until 1806, was an elective monarchy where each new emperor was chosen by prince-electors. The King of Malaysia gets elected from among the Malaysian sultans for a rotating five-year term. The Vatican State is an elective  1 Introduction to Comparative Constitutional Law monarchy as well, where the Pope gets elected by a college of cardinals. Conversely, even republics can, if they are run like dictatorships, come to resemble a monarchical autocracy in the sense of absolute one-man rule and without any notion of limited government. A republic can even become de facto hereditary. A transition of power from father to son or to another relative has been observed in authoritarian republics, such as North Korea in 1994 and again in 2011, Syria in 2000 or Cuba in 2008. Even some early European republics quickly turned hereditary: in the brief republican Commonwealth period in 17th-century England, Lord Protector Oliver Cromwell was succeeded in office by his son Richard; the key offices in the Republic of the United Netherlands became monopolized by the Province of Holland and turned hereditary in the 18th century. The last Emperors of the Holy Roman Empire, though notionally elected, all came from the House of Habsburg. 4.6. Democracy One last concept to briefly mention here is the notion of democracy, to which we have already referred. The claim of Western constitutional systems is to be a full-fledged democracy. Article 1 of the French Constitution refers to France as a democratic republic and Article 20(1) of the German Constitution refers to Germany as a democratic state. And both constitutions furthermore specify that state power is exercised through representatives and referenda (France) 39 and through elections and votes (Germany). Article 2 TEU also mentions democracy as one of the values on which the EU is founded. What is to be understood as a democracy? Here as in other domains of constitutional law we see common denominators and differences. The base line is that citizens may exercise the right to vote for their legislature (Art. 3, First Protocol ECHR) and possibly other public authorities; that public authorities are accountable to elected assemblies; and that elections take place on a regular basis in order to facilitate the peaceful removal of office-holders from office and their replacement. These are features of indirect, representative democracy: the people itself does not govern but votes for its representatives to vote on its behalf. Opposed to indirect democracy is direct democracy, where the electorate itself decides specific issues through popular vote, such as a referendum. Many Western constitutional systems resort to referenda without having it as a regular frequent feature. An example of a country which relies heavily on the use of referenda is Switzerland. It resorts to them for constitutional amendments as well as the resolution of issues initiated by citizens. Germany has never held a referendum; the UK only thrice nation- wide. The first referendum took place in 1975 and dealt with (accepted) EEC  Constitutions Compared membership (approving such membership); the second referendum was held in 2011 about the introduction of a new electoral system (alternative vote, which was rejected) for the House of Commons; the third referendum was held in 2016 and led to a slim majority favouring the UK exit from the EU (Brexit; effectuated in 2020). Another recent (regional) referendum took place in 2014 in Scotland about Scottish independence; it was therefore one of many regional referenda that have taken place in Wales, Northern Ireland and Scotland about devolution. These referenda are made possible by parliament adopting an Act of Parliament enabling the holding of a referendum. The AV referendum of 2011 was decisive, and so was the Scottish independence referendum in 2014; the 2016 Brexit referendum was a consultative referendum. Since there is no general referendum law, it is up to Parliament to decide on each and every occasion about a referendum and whether it is consultative only or binding. France has also had its share of referenda about the ratification of the Maastricht Treaty and the European constitution. These referenda are made possible by Arts. 11, 88-5 or 89 of the Constitution. The Netherlands had a referendum about the European constitution (based upon a specific statute) and in 2015 a new statute entered into force enabling citizens to ask for a referendum with respect to statutes adopted by parliament (a first referendum took place in April 2016, a second in 2018; however the 2015 referendum statute was quickly repealed in 2018). As in 40 most cases in the UK, these referenda were consultative and it subsequently remains up to parliament to decide whether or not to abide by the results. In the context of indirect democracy, national systems differ as to which organs or office-holders or assemblies to elect: in the United Kingdom on the national level only the House of Commons is elected directly; in Germany it is the Bundestag; in France it is the President and the National Assembly; in the Netherlands the Second Chamber; and in the US the House of Representatives, the Senate and the President. The term of office also differs, from two years (House of Representatives), four years (Bundestag, Second Chamber, US President), five years (French President, French National Assembly, House of Commons), to six years (US Senate, French Senate). The EU does not have referenda as a democratic tool of decision-making; the European Parliament is elected directly by the European citizens every five years. An interesting feature about the EU is, though, that it is on the one hand a representative democracy (Art. 10 TEU), with its citizens being represented in the European Parliament, but also stipulates that the states are represented in the (European) Council by the head of government or minister and that these are democratically accountable to their national parliaments or citizens: a so-called dual legitimacy.  1 Introduction to Comparative Constitutional Law 5. Political Parties In many constitutional systems political parties do play a role. This is not necessarily only the case in Western-style democracies, but also in one-party systems such as China, or even in dictatorships wherein the leader may rely upon a political party to ensure s/he has sufficient support and tools to stay in power, and to be able to make a show of democracy and participation and support from assemblies of party supporters. In Western-style democracies such as the ones we focus on in this book, political parties do have a function and do play a role as intermediaries between citizens and voters and the institutions of the state. They play a role in selecting candidates for elections and public office, and they offer a platform for politically like-minded citizens to voice their convictions. For that purpose, they may hold meetings for debate and discussion, draft a political programme, campaign when elections are due, draw up lists of candidates for election, and generate interest and public participation. Many of the constitutions (with the exception of France and Germany) studied in this book are silent about the existence and role of political parties, even though legislation may later have been adopted regulating aspects of political parties, for instance with respect to access to the media, campaigning, funding by private donors or the state (in recognition of their importance), or their role in the organization of elections. Generally political parties are protected by human rights, such as those concerning the 41 right to vote and stand for elections, the freedom of association and assembly, and the right to free speech. The German Constitution refers to the important role of political parties, recognizing their importance, in Article 21 of the Constitution, which stipulates that political parties contribute to the political will-formation of the people. And it continues: ‘Their establishment is free. Their internal order must correspond to democratic principles. They must render account about the origin and use of their means as well as about their assets in public.’ They may, under the same article, be banned. Details about all these aspects are regulated by statute. Because of the de facto and legal importance of political parties in the various systems, we will look into their activities and legal regulations in Chapter 4, in sections about each of the six constitutional systems. 6. Guide to the Use of this Book This book is a truly comparative book, in which countries are not dealt with in separate chapters, but are analysed in an integrated manner, ordered by main  Constitutions