Constitutions and Courts Chapter 7 PDF

Constitutions and courts PREVIEW CONTENTS So far we have looked mainly at broad concepts and ide-as in comparative poli- tics, including theoretical approaches and research methods...

Constitutions and courts PREVIEW CONTENTS So far we have looked mainly at broad concepts and ide-as in comparative poli- tics, including theoretical approaches and research methods. We n ow focus on Constitutions and courts: institutions, opening in this chapter with a review of constitutions and the an overview courtS that support them. Constitutions tell us much about the goals and pur- poses ofgovernment, as we)] as the rights of citizens, while courts strive to make The character of constitutions sun: that these rules are respected and equally applied.J ust as humans an: impe.r- fect, so are the political institutions they and manage; there are significant The durability o f gaps, in oth er words, between constitutional ideals and practice. constitutions The chapter begins with an assessment of constitutions:w hat th ey are, the purposes they serve, their char is no exception, Regime change, as in the wake of break-up in the being - in the words of f iner (1997 : 1495) - 'a thing 1990s of the Soviet Union, Yugoslavia, and Czecho- of wrangles and compromises. In its completed state, it s!OV'dkia, and of Sudan in 2011. was a set of incongmous proposals cobbled together. Efforts to bring about wholesale political change or And furthermore, that is what many of its framers confirm agreements made between competing politi- thought! cal groups, as in th e cases of Bolivia (2009), Kenya T he main danger of a fresh constitution is that it (2010), Zimbabwe (2013), and Tunisia (2014). fails to endow the new ruler; with sufficient authority. Reconstruction after defeat in war, as in the case of Too often , political distrust means that the new govern- Japan after 1945 or Iraq after 2005. ment is hemmed in with restrictions, limiting its effec- tiveness. T he Italian constitution of 1948 illustr tes this Achieving independence, as in the case of much of problem with its hallmark of garantismo, meaning that Africa in the 1950s and 1960s, or the 15 republics all pfor example. was both vague, contradictory, and ambiguous. T hey are fudges radical and progressive from th e time it was adopted and truces, wrapped in fwe words (Weaver and Rock- in 1917: it contains principles tlr>t prohibit discriini- man, 1993).As a rule, drafters are more concerned with nation of any kind, provide for free education, estab- a short-term politic..! fix than establishing a resil- lish th e equality of men and women, limit the working ient structure for the long run. In principle, everyone day to eight hours, and prohibit j ustice. But agrees with Alexander Hamiiton (1788a: 439), that many Mexicans argue that too rnany of its goals have 112 CHAPTER 7 United States (1789), N etherlan ds and N orway (1814), Belgium (1831 ). Britain and San M arino have older uncodified constitutions. Fiji and Zimbabwe (2013), Egypt and Tunisia (2014). Shortest Jordan, libya, Iceland (each 2, words). longest India (146,000 words), Nigeria (66,000 words). l@fl, tg.I.® United States {27 in 226 years). Mexico (more than 500 changes in just under 100 years), India Most amended (98 in just under 70 years), lor example. States with the fewest Australia, Belgium, Canada, India, Netherlands, Norway, United constitutions to date States (1 each), among others. States with the most Dominican Republic (32), Yen ezuela (26), Haiti (23), Ecuador (20). constitutions to date States with uncodmed Britain, Israel, New Zealand, Saudi Arabia. constitutions FIGURE 7.2: Ten facts about constitutions Source: Based on information in Comparative Constitutions Project (2015) not been met in practice, and thus they consider the unequ al access to education, and an extraordinarily constitution to be a work in p rogress. Matters are com- slow- moving legal process. plicated by the ease with which it can be amended, R ecent developments in the United States offer requiring the support of only two-thirds of members additional insights into the problem. T he US con- of Congress and a majority of state legislatures. The stitution did not change after the terrorist attacks of result is that Mexican leaders will propose constitu- 11 Sep tember 2001 , but the detention of alleged ter- tional amendments even for minor matters: a package rorist in Guantanamo Bay and revelations ab out the of electoral reforms in August 1996 alone involved 18 use stcr n states, the constitution guide to reality. expresses Islamic more than liberal values and the court (n addition to moderating the content of its con- systenJ is a chann el rather than a limitation on po\vcr. stitutiOn, today's C hina also g ives greater emphasis tn hybrid or com petitive author itarian regimes, to law in generaL T here were very tew laws at all in too, constirutions and the law arc subsidiary to polirica1 the early decades of the People's Republic, reRecting authority. T he leadvolution and cstabHshed the right of defend- th e voters} rather than horizontal (to the judiciary). In ants to seck counsel. Law could prevail to the benefit of cont:rast to a liberal democracy, where the main par- economic development. For law..abiding citizens, life ries h ve concluded that being ruled by law is prefer- became n1ore predictable. able o being ruled by opponents, under com petitive Despite such changes, C hinese politics rcn1a1ns authoritarianism the commanding fig ure still sees the authoritarian. 'Rule by law' still means exerting political constitutio n. the law, and the courts as a source of politi- control through law, rather than limiting the exercise cal advantage. Legal processe!' operate more extensively of power. The courts arc regarded a" j ust o ne bureau.. than i n pure authoritarian regimes but remain subject to crane agency among others. legal JUdgments are not politi cal m anipulation. tested against the cotu tirution, and many decisions 1f..hc Russian experience shows that law can gain are simply ignored. Rulings are unpublished a11d dif- ground - if only slowly and with difficulty - in at le-ast ficult cases arc often )eft undecided. In com parison some authoritarian regimes. Russia's post- comumnist with liberal democracies. legal institutions remain less constitution of 1993 set out an array of individ ual specialized, and legal pcr.;onnel less sophisticated. Tr ial r ights (including that of owning property); proclaim ed procedures, wlule improving, still o ffer o nly limited that ; the individual and his r ights and freedoms arc  CONSTITUTIONS AND COURTS 125 the supreme value'; and established a tripartite system Violence by the police is common. of general, commercial, and constitutional courts. The Politics overwhelms th e law on sensitive cases (such Constitutional Court, in particular, represented a major as the imprisonment in 2005 of business olig-.rrch, innOV'