ConLaw Week 5 Lecture PDF

Lecture 5: The Sources and Management of constitutional crises Dr. Dennis Penu ConLaw Main Lesson : Means to an end Limit Guarantee Separate powers of the rights of powers government citizens  Recap we...

Lecture 5: The Sources and Management of constitutional crises Dr. Dennis Penu ConLaw Main Lesson : Means to an end Limit Guarantee Separate powers of the rights of powers government citizens  Recap weeks 1 – 4 (Relevance of constitutional law) 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 branches 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., central government and lower-level governments 4. The constitution regulates the recognition/effect/power of international law within the state 3  Constitutional Crises “Moments in which decision-makers are unwilling or unable to manage societal conflicts within the confinement of the constitutionally provided boundaries” (Johannes Vüllers, 2021)  Lesson objectives 1. Understand the sources of constitutional crises 2. Understand the various approaches to constitutional interpretation/argumentation 3. Understand the various approaches to addressing constitutional crises. Sources of Constitutional Crises  States of emergency special situations requiring quick action covered by the constitution; special powers to state agents (usually executive agents); proportionality principle; still separation of powers but checks softened during emergency NB: Constitutional Crises are not same as States of Emergency but may arise from a state of emergency (due to the higher urge/motivation to disregard boundaries)  Non-feasibility of Constitutional Provisions Constitutional provisions exist about SoP but not feasible to implement Constitutional Silence  Constitutional Ambiguity Meaning Express Meaning: text & syntax Implied Meaning: text and structure (words, paragraphs, chapters, and sections) NB: Express meaning remains supreme  Approaches for Constitutional Argumentation/Interpretation 1. Argument Based on Text and Structure: the literal text and the structure of the document itself. Words and the relationship between different sections. 2. Argument Based on Purpose: Underlying objectives, purpose or intent of its framers. 3. Argument Based on Judicial Precedent: previous court decisions to interpret the Constitution. Consistency of interpretation over time. 4. Argument Based on Political Custom and Tradition: in light of long-standing political customs and traditions. 5. Argument Based on Honored Authority: the opinions of respected authorities. Opportunities for Managing Constitutional Crises Judicial Review of Proportionality States of Emergency Proportionality principle: state (agents) may infringe constitutional rights only through necessary and proportionate means to achieve legitimate public purpose. Judicial review to check proportionality after the state of emergency Does the actor have proper standing to claim a justification? Was the right infringement necessary in achieving the stated objective; Was the extent of infringement necessary (the principle of minimal impairment) International Pressure / Involvement International law and legitimacy within state vs 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’) (Revolutionary) Exercise of Popular Sovereignty Constitutional Right to Protest Popular Uprisings legitimate violence? Overthrow through elections If feasible and sensible Exciting Workshop Awaits!