1 Constitutional Law summary test 30 oct561dff685dc14fcfaa308f77972f2156 (3).pdf

1. Constitutional Law Week 1 Learning Objectives 1. Understand the basic structure of the module learning objectives, assessments, and connections with other module components 2. Understand constitutionalism, constitutions, and the purpose of constitutions 3. Understand the concepts of sovereignty,...

1. Constitutional Law Week 1 Learning Objectives 1. Understand the basic structure of the module learning objectives, assessments, and connections with other module components 2. Understand constitutionalism, constitutions, and the purpose of constitutions 3. Understand the concepts of sovereignty, state, and government 4. Understand the concept of constitutional separation of powers Constitutionalism The Idea of a limited government, where the exercise of public power is governed by a constitution and the rule of law (Constitutions Compared, p 29) Ideal of government established by law and limited by law from exercising arbitrary power (Dyzenhaus & Thorburn, 2016; Philosophical foundations of constitutional law, Chp. 2) Constitutional Law Law through which constitutionalism is achieved. Contained/captured in a constitution. What are constitutions? Two main understandings of a Constitution. 1. Functional – Broad the whole collection of rules which establish and regulate or govern a country or polity partly non-legal or extra-legal norms (e.g. customs, conventions, practices) yet effective in regulating societal interactions and constitutional and socio-political norms de jure 1. Constitutional Law 1 de facto g.. Saudi Arabia, New Zealand, Canada, Israel, and the United Kingdom. What is the purpose of a constitution? Structures governance, how individuals interact within society Ensure limited government - places limits on all actors – protects individual and collective freedom. Establish and maintain the organs that constitute the government Delineates power between the main organs of government Sets the boundaries between the exercise of public power, individual selfdetermination, and collective self-determination Protects / Confers rights of individuals against government action To a certain degree entrenches central organs and individual rights against legal change Normative Hierarchy – provides for its effect on prior or subsequent law Features of constitutions: Uncodified Codified Amendment is the prescribed mechanism for constitutional change Rigid Flexible Hybrid: Both rigid & and flexible elements Constitutional entrenchment/rigidity allows for stable institutions E.g. unamendable; 2/3 parliamentary majority; simple majority; referendum Why Comparative (Constitutional Law)? Where can a law that supports mitigating climate change be easily passed: In Poland or the United Kingdom? Should the blame for a controversial law be placed on the King of the United Kingdom because he signed an act of parliament into law? 1. Constitutional Law 2 ECOWAS is planning to intervene in Niger. NATO is providing military support to Ukraine. Why are some countries able to get more involved than others? Why does the military coup/takeover in Myanmar keep recurring? Sovereignty Sovereignty is the ultimate power to exercise authority over oneself (Constitutions Compared; Ch 2) Sub-concepts: External sovereignty: the possibility for a state to exercise control over its population and territory without interference from outside. Internal sovereignty: the original source of public authority within the state itself. Who has the ultimate right to exercise constitutional power or modify constitutional rules? Types of sovereignty Popular sovereignty: Sovereignty rests with the people who entrust the government with the authority to govern on their behalf National sovereignty: Sovereignty is exercised by the nation’s representatives as laid down in the constitution State/provincial/state sovereignty: Applies to federal or devolved systems, in situations where the federal government, as well as the sub-units (‘states’), may each have a claim to exercise sovereign authority Parliamentary sovereignty: Where Parliament is supreme and has ultimate authority Royal Sovereignty: Where the monarch is sovereign and constitutional authority derives from the monarch. Pluralistic sovereignty or pluralism: The supreme authority constitutionally shifts between different actors 1. Constitutional Law 3 State & Government State: Socio-political entity with its own set of government institutions exercising control over its territory and population It also refers to sub-entities such as those in the federal or devolved states It was established based on a compact between the people Country? Ambiguity (various countries in a state, e.g. UK & NL) Nation? Erroneous due to multi-ethnic states (e.g. Myanmar) – A developing and complicated concept Government: the institutions and actors responsible for managing the state’s affairs ConLaw Main Lesson: Means to an end Separate powers —> Limit powers of government —> Guarantee the rights of citizens Doctrine of the Separation of Powers In the pure doctrine of the separation of powers, The government should be divided into 3 branches or departments: the legislature, the executive, and the judiciary. To each of these branches, there is a corresponding identifiable function of government, legislative, executive, or judicial. Each branch of the government must be confined to the exercise of its own function and not allowed to encroach upon the functions of the other branches. Furthermore, the persons who compose these three agents of government must be kept separate and distinct. No individual is to be at the same time a member of more than one branch. In this way, each of the branches will be checked by the others, and no single group of people will be able to control the machinery of the state. Maurice Vile: in Dyzenhaus & Thorburn (2016) Philosophical foundations of constitutional law Highlights! Comparative constitutional law tries to understand the differences and similarities across these contexts Comparative constitutional law offers insight into the sources of constitutional crises and the opportunities for taking action 1. Constitutional Law 4 The Constitution is a symbol of sovereignty and statehood due to constituent power (capacity of the sovereign to enact a constitution) Depending on the contents of a constitution, sovereignty may (not) reside in a particular individual or structure but constitutionally shifts between different actors Constitutions are essentially basic laws that have similar purposes anywhere but have different features in different contexts (organizations)/countries Constitutions are the fulcrum of the Rule of law (government power to be asserted in accordance with constitutional law) A fundamental aim when studying (constitutional ) law is to develop and apply critical thinking skills in explaining how constitutions influence governance and society Week 2 Learning Objectives 1. Understand the role of the legislature in constitutional systems 2. Understand the role of the executive in constitutional systems 3. Understand the role of the judiciary in constitutional systems 4. Understand the constitutional checks that the three branches have on each other 5. Understand the distinction between presidential and parliamentary systems of government Legislature Parliament 1. Constitutional Law 5 Constitutional Sources of Legislative Powers Parliament ≠ Legislature Role of parliament Checks on the Executive: Right of Information Right of Investigation Power of the Purse Power of Legislation The Executive The group of persons that are tasked with the responsibility of running the daily affairs of state Led by ministerial cabinet Role of the Executive The Executive (led by cabinet) take responsibility for: 1. Setting legislative priorities 1. Constitutional Law 6 2. Implementing policy and legislation 3. Conducting foreign policy and defenses 4. Structuring the public budget The Role of the Executive Internal External C in C Figure-head for National Unity Official Representation & diplomatic functions Make Treaties Appoint officers Military interventions Lead departments Foreign Affairs Execute the Laws Policy and legislative proposal The Public Budget The Judiciary Symbolized by the courts Interpretation of Legislation Judicial Review of Legislation Judicial Review of Treaty Law Compliance Protection of human rights Judicial Review What is judicial review? Judicial review is a type of proceeding in which a judge/court reviews the lawfulness of a decision or action made by a public body. Judicial Review of Legislation Principles to resolve a conflict between norms Situations 1. Constitutional Law Rules 7 The higher norm in conflict with the lower norm Lex superior (i.e. superior norms suppress inferior norms) A later norm conflicts with Lex posterior (i.e. later norms an earlier norm suppress earlier norms) Two norms are in conflict but both are located in the Lex specialis (i.e. specific norms suppress general norms) same time and hierarchy. However, one is more specific than the other. Forms/Procedures for Judicial Review Ex Ante Review: a review of bills rather than legislation Ex Post Review: review of actual legislation already in force Concrete Review: a review of legislation occasioned by an actual court dispute. Abstract Review: review of legislation not occasioned by an actual court dispute Reviews in Centralised systems: Only higher or specialized courts for judicial review Reviews in Decentralized systems: Possible judicial review at lower courts Judicial Review of Legislation – Outcomes Disapplication of the legislation at hand (i.e., the statute still stands but is set aside in a particular context) Annulment of the legislation at hand (i.e., the statute ceases to exist) The State and Governance Systems 1. Constitutional Law 8 Presidential Systems Head of Government is the President The President: own mandate and a fixed term does not need the support/confidence of parliament to stay in power often involved in the lawmaking process (veto, advisory opinion) Parliamentary System The Head of Government is the Prime Minister Prime minister: Chosen by parliament Accountable to Parliament through a vote of (no) confidence Usually different from Head of State Semi-Presidential System Mixed system of the dual executive The President (head of state) is elected by popular vote Prime Minister (head of government) elected by parliament Neither The President nor Parliament is in full control of the appointment and removal of the Prime Minister Advantages & Disadvantages of two systems 1. Constitutional Law 9 Presidential System Parliamentary System Advantages: Advantages: Direct mandate (reflection of citizens’ specific preferences) Inclusiveness (coalition government) Stability (Fixed term of office provides more predictability) Flexibility (easy change of HoG) Separation of powers (exec and legislature are two parallel structures that check one another) Disadvantages: Tendency towards populism, authoritarianism Political gridlock (if the President does not have majority in Parliament) High relevance of pollical parties Disadvantages: Instability (coalition governments are especially vulnerable) Lack of inherent separation of powers (lack of criticism or lack of bold policies) Power of political parties excludes voters Cronyism Week 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 Separation of powers at different levels of state 1. Constitutional Law 10 Characteristics - Federal and Unitary States Federal States Unitary States Constitutional recognition of divided internal territories No constitutional recognition of divided internal territories Shared regional autonomy over Centralized autonomy over legislative, legislative, executive, and judicial powers executive, and judicial powers (no regional autonomies) Shared sovereignty Centralized sovereignty mainly bicameral parliament Mainly unicameral parliaments (sometimes bicameral) Constitutionally entrenched codes of separation of powers between state and central government States may participate in a constitutional amendment No constitutionally entrenched codes of separation between regions and central government of powers States don’t have a role in constitutional amendment Federal and Unitary States Federal: Territorial sub-units powers entrenched in the constitution itself Unitary: The power of sub-units is derived from the power of the state State structure & and Representations in parliament 1. Constitutional Law 11 Unicameral in Unitary States (One House of Representatives) Bicameral in Federal States Bicameral in Unitary States ( One House of Representatives, One House Representing States) (One House of Representatives, One Chamber for Reflection) Constitutional matter 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) 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) Highlights! Separation of powers can also be designed between different levels of the state (both unitary and federal states) the defining features of federal and unitary states are whether there are constitutional provisions that entrench the separation of powers and sovereignty 1. Constitutional Law 12 at different levels of state 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 Week 4 Learning Objectives Understand what is international law Understand how international law enters the domestic sphere Explain what are the theories of monism and dualism and their variant Compare how different domestic legal systems integrate international law What is International Law? International law consists of rules and principles that regulate the relations between states and other entities, provided they have international legal personality Between states (State: Original and major subjects of IL) Between states and other entities possessing international legal personality Covering a range of activities E.g. international agreements, diplomatic relations, trade, protection of human rights, conduct of armed conflict, cooperation on combatting the harmful effects of climate change and global warming What is a treaty? Art. 2 Vienna Convention on the Law of Treaties (VCLT) Convention, Agreement, Protocol, Pact, Charter 1. Constitutional Law 13 What do they do? Create rights and obligations for states Which state’s organ enters into treaty negotiation and signs treaties? [treaty-making] ‘Monarch’ Executive power (international legal personality) When a treaty binds a state, how are the international legal obligations carried out within the state (within the domestic legal system)? Monist and Dualist Model Dualism National law and treaties are treated in two separate realms. Treaty law needs to be transposed into national law by the lawmaker. Monism Treaties ratified by the state are treated as part of the national legal order. Individuals can invoke treaty provisions before a national court, like national law 1. Constitutional Law 14 Variations Exist Both systems do not exist in their ‘pure’ form A state is predominantly monist or dualist yet may use in certain cases the other approach Different sources of IL: different approaches How do we determine if it is a monist or dualist system? Search the Constitution: What is the status of IL in domestic law? Where not stipulated, look at the practice: Legal or political tradition, judicial decisions, or political practice Read: writings of constitutional scholars 1. Constitutional Law 15 International Criminal Court 1998 Rome Conference Treaty-based Court Negotiation process Civil Society Adoption final text Principle of complementarity 60 Ratifications (2002) Which ‘core crimes’ fall within the jurisdiction of the Rome Statute? Week 5 Small recap weeks 1 to 4 to freshen up your beautiful mind 1. Constitutionalism is the idea of limiting government powers through a constitution 2. The constitution limits government powers by separating powers between the three main organs of government: the legislature, the executive, the judiciary 3. The constitution limits government powers by separating powers between different levels of the state, i.e., decentralisation, devolution, federalism 4. The constitution regulates the effect/power of international law within the state Learning objectives 1. Understand how separation of powers contributes to constitutional crises 2. Understand how separation of powers helps to manage constitutional crises Constitutional Crises 1. Constitutional Law 16 “Moments in which decision-makers are unwilling or unable to manage societal conflicts within the confinement of the constitutionally provided boundaries” (Johannes Vüllers, 2021) Constitutional Crises are not the same as States of Emergency but may arise from a state of emergency States of emergency: special situations; covered by the constitution; special powers to state agents; proportionality; still separation of powers Constitutional Ambiguity The linguistic ambiguity of the Constitution opens the law to any number of possible interpretations, especially by the Supreme Court. Although judicial interpretations can vary anywhere on the spectrum from “obviously right” to “inventive,” most interpretations follow certain types of methods. Express Meaning: text & syntax Implied Meaning: text and structure (words, paragraphs, chapters, and sections) NB: Express meaning remains supreme Constitutional Interpretation 1. Argument from text: elucidates the meaning of the text, 2. Arguments from structure: structural logic underlying the constitutional system 3. Argument from purpose: underlying purposes principles of the constitution 4. Argument from judicial precedent: actions required by judicial precedent 5. Argument from political convention: existing political settlement or conventions among political institutions 6. Arguments from custom: public's customs and lived experiences 7. Arguments from political tradition: important events in a nation's cultural memory 8. Arguments from honored authority: values and beliefs and examples of national culture heroes States of Emergency & Proportionality Not a constitutional crisis but a source of constitutional crisis Coercive interference by reference to legitimate public ends 1. Constitutional Law 17 Proportionality: state may infringe constitutional rights only through necessary and proportionate means to achieve legitimate public purpose. Opportunities for Managing Constitutional Crises: Judicial Review of Proportionality Does the actor have proper standing to claim a justification? Was the right infringement necessary to achieve the stated objective; Was the extent of infringement necessary (the principle of minimal impairment) International Pressure / Involvement International law and the external legitimacy or sovereignty of the state Increasing degree of international intervention: 1. Suspension of Affiliation 2. Selective Sanctions against state actors 3. Diplomatic Intervention (Mediation) 4. Military Intervention (‘Peace-making’) GOOD LUCK WITH STUDYING BABES YOU GOT THIS XX ME DON’T FORGET TO DRINK WATER AND TAKE YOUR VITAMINS 1. Constitutional Law 18