Constitutional Law Lecture 1 PDF

Lecture 1: Introduction to Constitutionalism & Constitutional Law Dr. Dennis Penu  Module Structure This module involves 3 areas of law: 1. Constitutional Law 2. International Law 3. Human Rights Law 2  Lecture Objectives 1. Understand the basic stru...

Lecture 1: Introduction to Constitutionalism & Constitutional Law Dr. Dennis Penu  Module Structure This module involves 3 areas of law: 1. Constitutional Law 2. International Law 3. Human Rights Law 2  Lecture 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 3  Comparative Constitutional Law Week 1 – Introduction to Constitutionalism & Constitutional Law Week 2 – Constitutional law and the separation of government powers Week 3 – Constitutional Law & State Structure Week 4 – Constitutional Law meets International Law Week 5 – The Sources of Constitutional Crises 4  Assessment Constitutional Law Exam Format Written cumulative exam digitally on Remindo 50 multiple choice questions (MCQs) spread over 3 separate exam moments: Exam moment 1: 10 MCQs Exam moment 2: 15 MCQs Exam moment 3: 25 MCQs Review immediately after each exam moment Remindo Agenda Check Brightspace for Updates 5 Constitutionalism Ancient: Idea of regulating the actions of the ruler (Rosenfeld, M., & Sajó, A. (Eds.), 2012). The Oxford handbook of comparative constitutional law) Modern: The Idea of a limited government, where the exercise of public power is governed by a constitution and the rule of law (Heringa; 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. Law contained/captured in ‘constitutions’. What are constitutions?  What are Constitutions? 1. Narrow understanding A document or group of closely related documents describing a select collection of legal and non-legal norms that organise social power relations and the degree of freedom within a society Almost exclusively legal documents Constitution as a text – A specific (set of) written document(s) 9  What are Constitutions? 2. 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 de jure and de facto constitutional and socio-political norms E.g.. Saudi Arabia, New Zealand, Canada, Israel and the United Kingdom. 10 Features of constitutions ► Uncodified ► Codified ► Amendment is the prescribed mechanism for constitutional change Rigid: e.g. unamendable; 2/3 parliamentary majority; referendum Flexible: e.g. simple majority; based on judicial review Hybrid: Both rigid & and flexible elements ► Constitutional entrenchment/rigidity allows for stable institutions ► Constitutional supremacy  Highlights! Constitutionalism is the idea of limiting the powers of government to prevent arbitrary rule Constutionalism is achieved through constitutions Constitutions can refer to a broad or narrow set of laws / legal documents Constitutional Law is the law contained in constitutions Constitutional Law therefore the primary source of the Rule of law  5mins Break! 1min 2 3 4 5mins 13 Constitutional Law & Sovereignty  Sovereignty is the ultimate power to exercise authority over oneself (Constitutions Compared; Ch 2)  The authority to make a constitution is known as constituent power  2 dimensions of sovereignty :  Internal sovereignty: source of public authority within the state itself.  External sovereignty: a state to exercise control over its population and territory without interference from outside.  Sources/Types of sovereignty Royal Sovereignty: The monarch Parliamentary sovereignty: The parliament National sovereignty: Representatives of the nation(s) state Popular sovereignty: All the people(s) [Referendum] State/provincial sovereignty: semi-autonomous sub-units [federal or devolved systems] Pluralistic sovereignty: shifts between different 15 actors  Sovereignty, State & Government  State: Socio-political entity with its own set of government institutions exercising sovereignty  Also refers to sub-entities such as those in the federal or devolved states  Established based on a compact between the people  Country? Various countries in a state (e.g. UK & NL)  Nation? Multi-ethnic states (e.g. Myanmar) – A developing and complicated concept  Government: the institutions and actors responsible for managing the state’s affairs Highlights! Constituional law determines the structure and make-up of the state Constitutional Law describes and prescribes the dimensions and sources of a state’s sovereignty The government exercises the constitutional sovereignty of the state The state is not always the same as a country or nation  5mins Break! 1min 2 3 4 5mins 18  Separation of Powers “There would be an end of everything were the same man, or the same body, whether of the nobles or of the people, to exercise those three powers that of enacting laws, that of executing the public resolutions, and that of judging the crimes or differences of individuals.” Charles de Montesquieu (1689-1755) French philosopher and political theorist ‘Trias Politica’ 19  Constitutional separation of state powers does not work the same in all states Similarities Differences Purposes  Studying comparative constitutional law Where is it likely to pass laws quickly? Who should be blamed for a ‘bad’ law? And where can such a law be easily repealed? Why are some countries able to intervene more quickly to help resolve external conflicts than others? Why does the military coup/takeover in Myanmar keep recurring?