Seventh Class Constitution Making Constitution Constituent Power How

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Seventh Class Constitution Making

Seventh Class Constitution Making

Constitution Constituent Power How? : Procedure ac T : y m i t i

Constitution Constituent Power How? : Procedure ac T : y m i t i g Who? e L International Community Inclusive Exclusive Who decides? Units Borders? Reconciliation a e r , y t e e r g A ? … Decentralization n o ti u it t s Centralization n o C t, n e Step by Step m

Pairs of values Famously, federalism balances and enables competing values to be secured: •

Pairs of values Famously, federalism balances and enables competing values to be secured: • Self rule and shared rule • Unity and diversity • Uniformity and difference • Solidarity and self reliance • Co operation and competition One challenge in designing a federal system is to capture each of these in a suitable way

Other constitutional values Federalism must be combined with other constitutional values, in both spheres

Other constitutional values Federalism must be combined with other constitutional values, in both spheres of government, for its benefits to be fully secured. These include: • Legitimacy • Democracy • Constitutionalism, including the rule of law • Effective and accountable government • Mutual respect; a willingness to share power; appreciation of diversity

Importance of institutions • Importance of specifically federal institutions are obvious (eg division of

Importance of institutions • Importance of specifically federal institutions are obvious (eg division of powers) • Institutions of government equally important – Mechanism through which federalism delivered – Mechanism through which other values delivered • Institutional design must capture – Aspirations for federalism – Aspirations for government generally

General observations • Many of the institutions that we presently use were designed for

General observations • Many of the institutions that we presently use were designed for unitary states • They need to be fully adapted to the different context of federalism • Now plenty of experience with this • But range of possibilities is not fixed • Increasing experimentation in recent years • Eg asymmetry, forms of co operation

Common standards Many federations prescribe certain common standards, applicable to both spheres of government,

Common standards Many federations prescribe certain common standards, applicable to both spheres of government, in the Constitution itself. Typically these apply to: • Governance (democracy, accountability, republicanism) • Human rights • Economic union (mobility of people, economic activity)

Constitution of the federal state The Constitution should: – Be made by a suitable

Constitution of the federal state The Constitution should: – Be made by a suitable process – Create the central & constituent governments – Provide the institutional framework – Provide the federal framework – Provide the means for its own alteration

Protection & enforcement • A mixture of rigid and flexible • Federal quality of

Protection & enforcement • A mixture of rigid and flexible • Federal quality of amendment procedure • Effectively enforced: – Usually, general or specialist constitutional court – Other options? Switzerland (sui generis). USA? • NB techniques for conflict avoidance: SA • Some internal flexibility eg through co operation

Challenges • Making a commitment to federalism • Developing a federal culture • Building

Challenges • Making a commitment to federalism • Developing a federal culture • Building sufficient capacity in smaller, poorer units • Ensuring accountability, transparency, responsiveness in all spheres of government and for shared programs • Avoiding unproductive competition & disputes • Providing flexibility to meet new needs

Different Goals of Federalism Limit governmental powers with Vertical Separation of Powers Accommodate Diversities

Different Goals of Federalism Limit governmental powers with Vertical Separation of Powers Accommodate Diversities Strengthen Democracy Conflict – Management Strengthen and deepen legitimacy of a confederal system (cf. EU)

MULTICULTURAL AND BUT PEACEFUL

MULTICULTURAL AND BUT PEACEFUL

Constitution Preamble We, the People* United States of the United States, in Order to

Constitution Preamble We, the People* United States of the United States, in Order to form a more perfect Union, establish Justi ce, insure domestic Tranquility, provi de for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Federalist Papers No. 5 (JAY) The history of Great Britain is the one with

Federalist Papers No. 5 (JAY) The history of Great Britain is the one with which we are in general the best acquainted, and it gives us many useful lessons. We may profit by their experien ce without paying the price which it cost them. Although it seems obvious to common sense that the people of such an island should be but one nation, yet we find that they were for ages divided into three, and that those three were almost con stantly embroiled in quarrels and wars with one another.

Opinion by Chief Justice Marshall But the tribes of Indians inhabiting this country were

Opinion by Chief Justice Marshall But the tribes of Indians inhabiting this country were fierce savages, whose occupation was war, and who se substance was drawn chiefly from the for est. . . However this restriction may be opposed to natural right, and to the us age’s of civilized nations, yet, if it be indispensable to that system under which the country has been settled and be adapted to the actual condition of the two people, it may, perhaps, be supported by reason, and certainly cannot be re jected by Courts of Justice. " (Johnson and Graham's Lessee v. William Mc Intosh US 1823 523 ff)

Switzerland Old Const. Switzerland New Const. Together, the peoples of the 23 sovereign Cantons

Switzerland Old Const. Switzerland New Const. Together, the peoples of the 23 sovereign Cantons of Switzerland uni ted by the present alliance, to wit: Zurich, Berne, Lucerne, ……Geneva and Jura, form the Swiss Confederation. We the Swiss People and Cantons … are determined to live our diver sity in unity respecting one another; . . Art. 2 Purpose It (Switzerland) shall promote. . the cultural diversity of the country

Spain The Constitution is based on the indissoluble unity of the Spanish nation, the

Spain The Constitution is based on the indissoluble unity of the Spanish nation, the common and indivisible homeland of all Spaniards, and recognizes and guarantees the right to autonomy of the nationalities and regions

Specific Problems: Composed Nations Germany the German People have adopted, by virtue of their

Specific Problems: Composed Nations Germany the German People have adopted, by virtue of their constituent power, this Constitution. Belgium is made up of three Communities: the French Community, the Flemish Community, and the German speaking Community.

Article 2 [Communities] Belgium is made up of three Communities: the French Community, the

Article 2 [Communities] Belgium is made up of three Communities: the French Community, the Flemish Community, and the German speaking Community. Belgium Article 3 [Regions] Belgium is made up of three Regions: the Walloon Region, the Flemish Region, and the Brussels Region. Article 4 [Linguistic Regions] (1)Belgium has four linguistic regions: the French speaking Region, the Dutch speaking Region, the bilingual Region of Brussels Capital, and the German speaking Region.

Turky Croatia The recognition that all Turkish citizens are united in national honour and

Turky Croatia The recognition that all Turkish citizens are united in national honour and pride, in national joy and grief, in their rights and duties towards their existence as a nation, in blessings and in burdens, and in every manifestation of national life, and that they have the right to demand a peaceful life based on absolute respect for one another's rights and freedoms, mutual love and fellowship, and the desire for, and belief, in "Peace at home, peace in the world of one's own state, based on the Croatian nation's historical right to full sovereignty,

Ethiopia We, the nations, nationalities and Peoples of Ethiopia Albania We, the people of

Ethiopia We, the nations, nationalities and Peoples of Ethiopia Albania We, the people of Albania, proud of our history and with faith in the future; with determination to build a social and democratic state based on the rule of law

Comores Le peuple comorien, convaincu du bien fondé de l'Accord cadre pour la réconciliation

Comores Le peuple comorien, convaincu du bien fondé de l'Accord cadre pour la réconciliation aux Comores du 17 février 2001 Georgia The people of Georgia whose strong will is to establish a democratic social order, economic independence, a social and

Madagaskar The sovereign Malagasy people, profoundly attached to their cultural and spiritual values, especially

Madagaskar The sovereign Malagasy people, profoundly attached to their cultural and spiritual values, especially to the basis of national unity; affirming their belief in God the Creator;

We, the people of South Africa, Recognise the injustices of our past; Honour those

We, the people of South Africa, Recognise the injustices of our past; Honour those who suffered for justice and freedom in our land; Respect those who have worked to build and deve lop our country; and Believe that South Africa belongs to all who live in it, united in our diversity. We therefore, through our freely elected representa tives, adopt this Constitution as the supreme law of the Republic so as to— Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights; Lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law; Improve the quality of life of all citizens and free the potential of each person; and Build a united and democratic South Africa able to take its rightful place as a sovereign state in the family of nations.

PREAMBLE: Serbia CONSCIOUS OF THE STATE TRA DITION OF THE SERBIAN PEOPLE AND DETERMINED

PREAMBLE: Serbia CONSCIOUS OF THE STATE TRA DITION OF THE SERBIAN PEOPLE AND DETERMINED TO ESTABLISH THE EQUALITY OF ALL THE PEOP LES LIVING IN SERBIA, THE CITI ZENS OF SERBIA, AS PART OF THE EUROPEAN FAMILY OF NA TIONS, AND WITH A PLEDGE FOR MODERN DEMOCRATIC STATE BASED ON PEACE, TOLERANCE, RESPECT FOR HUMAN RIGHTS AND FREEDOMS, ON THE RULE OF LAW AND SOCIAL JUSTICE, Persons belonging to a national minority shall have special rights which they exercise individually or in community with others.

Russia Bosnia We, the multinational people* of the Russian Federation, united by a common

Russia Bosnia We, the multinational people* of the Russian Federation, united by a common destiny on our land, Bosniacs, Croats, and Serbs, as constituent peoples (along with Others), and citizens of Bosnia and Herzegovina hereby determi ne that the Constitution of Bosnia and Herzegovina is as follows:

European Union DETERMINED to lay the founda tions of an ever closer union among

European Union DETERMINED to lay the founda tions of an ever closer union among the PEOPLE‘S of Europe, RESOLVED to establish a citizenship common to nationals of their countries, RESOLVED to continue the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as closely as possible to the citizen in accordance with the principle of subsidiarity, (Consolidat. Treaties)

This Treaty marks a new stage in the process of creating an ever closer

This Treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen. Treaty EU Common Provisions Art. 2 — to strengthen the protection of the rights and interests of the nationals of its Member States through the introduction of a citizenship of the Union;

Article 17 (ex Article 8) 1. Citizenship of the Union is hereby establi 2.

Article 17 (ex Article 8) 1. Citizenship of the Union is hereby establi 2. shed. Every person holding the nationality 3. of a Member State shall be a citizen of the Union. Citizenship of the Union shall comple ment and not replace national citizenship. 2. Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby.

Preamble Draft of European Constitution Convinced that, while remaining proud of their own national

Preamble Draft of European Constitution Convinced that, while remaining proud of their own national identities and history, the peoples of Europe are determined to transcend their ancient divisions and, united ever more closely, to forge acommon destiny, Convinced that, thus "united in its diversity", Europe offers them the best chance of pursuing, with due regard for the rights of each indi vidual and in awareness of their responsibilities towards future generations and the Earth, the great venture which makes of it a special area of human hope, Grateful to the members of the European Convention for having prepared this Constitution on behalf of the citizens and States of Europe,