ConLaw Week 3 Lectures 24-25 Student Copy PDF

Lecture 3 : Constitutional Law & State structure Dr. Dennis Penu ConLaw Main Lesson : SoP is means to an end Limit Guarantee Separate powers of the rights of powers government citizens  Recap Connection Week 1 & 2...

Lecture 3 : Constitutional Law & State structure Dr. Dennis Penu ConLaw Main Lesson : SoP is means to an end Limit Guarantee Separate powers of the rights of powers government citizens  Recap Connection Week 1 & 2 1. Constitutional law ultimately aims to guarantee the rights of citizens by limiting the powers of government through the separation of the powers of the state 2. The separation of powers can be achieved through constitutionally differentiated roles for the executive, legislature, and judiciary 3  This week 1. Is the separation of powers only seen between the executive, legislature and judiciary? 2. No; Separation of Powers can also be designed based on demarcations at different levels of the state  Lecture 3 Learning Objectives 1. Understand the connection between constitutional design and the structure of the state 2. Differentiate features of Unitary & Federal States 3. Understand the connection between the state structure and parliamentary designs 4. Understand the (constitutional) reasons and features supporting different state structures 5  Separation of powers at different levels of state * Devolution * Separate States * Decentralisation Separation Integration * Regionalisation * Federal States * Centralised unitary State 6  Characteristics – Federal and Unitary States Federal States Unitary States Constitutional recognition of divided No constitutional recognition of divided internal territories internal territories Centralized autonomy over legislative, Shared regional autonomy over executive and judicial powers (no legislative, executive and judicial powers regional autonomies) Shared sovereignty Centralized sovereignty Mainly unicameral parliaments Mainly bicameral parliaments (sometimes bicameral) Constitutionally entrenched codes of No constitutionally entrenched codes of separation of powers between state and separation of powers between regions central government and central government States may participate in a constitutional States don’t have role in constitutional amendment amendment 7  Federal and unitary states 8  Highlights! Separation of Powers can also be designed between different levels of the state (both unitary and federal states) The defining features differentiating federal and unitary states are whether there are constitutional provisions that entrench the separation of powers and sovereignty at different levels of state 9  Sub-types of Federalism and Unitarism Symmetrical (Same Power) Asymmetrical (Different powers) State structure & and Representations in parliament Unicameral in Unitary States Bicameral in Federal States Bicameral in Unitary States (One House of Representatives) (One House of Representatives, (One House of Representatives, One House Representing One Chamber for Reflection) States) 10  Constitutional matters in relation to state structure Supremacy of central (federal) government laws Codification of state autonomy Constitutional indications of the (shared) sources of sovereignty Codification of areas of state autonomy in relation to central government autonomy Representations of regions in federal governance Means of resolving disputes over constitutional ambiguities (eg constitutional courts or supreme courts) 11  Reasons for adopting federal or unitary constitutional designs Federal − Preservation of autonomy in ‘Coming together’ federations (ref: the USA) − Pacification of demands for autonomy in ‘holding together’ federations (ref: Belgium) − Preservation of socio-cultural traits or advantages Unitary − Reduce the risk of secessions (ref: Myanmar constitution) − Promotion of national unity (ref: Ghana) 12  Highlight! Constitutional law also provides for the structure of representations in parliament. The constitutional design of state structure is mostly justified by the context or history of the state(s) Constitutions underlying federal or unitary states need to provide clarity on (shared) sovereignty/autonomy and representation 13  5mins Break! 1min 2 3 4 5mins 14  Introduction In a multi-national, multi-ethnic society, should the constitutional order encourage integration or separation? Ref: Chp 7 of Comparative Constitutional Law in Africa Ideas Accommodation- entrenched cleavages Integration – less mobilized cleavages Political reality influneces constitutional design Different approaches to designe integration or accommodation (parliamentary representation; state structure; power-sharing; confederation) 16  When Con. Law. Meets Int. Law. (Week 4) 17