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Hammer, Comparative Constitutional Law, Bratislava 2011
Prof. Stefan Hammer
Notes on: Comparative Constitutional Law
(PanEuropeanUniversityBratislava, Faculty of Law, Winter Semester 2011)
0. Introduction and Basic concepts
Comparative Constitutional law: confrontation with other systems leads to a better understanding of one’s own system.
Different approaches:
- normative approach – identifying the “best” solutions ( universalism)
- descriptive approach – no genuine “comparison”, each system can only be understood on the basis of the specific historical and cultural circumstances ( cultural relativism)
- combined approach – universal standards of legitimacy enshrined in the concept of “constitutionalism”, but their implementation is conditioned by historical and cultural context
a) Distinction: Forms of State/Forms of Government
Original meaning of forms of state: distinction according to who is the holder of ruling power: monarchy, aristocracy, democracy
Aristotle: combining this descriptive distinction with normative criteria: good forms and deviant forms of each empirical alternative,6 categories
In early modern times normative criteriabecome obsolete due toerosion of common values
Machiavelli: purely “empirical” distinction: monarchy and republic, according to who holds sovereign power.Sovereignty.
Idea from Antiquity: Regimen mixtum: combination of forms of state (monarchy, aristocracy, democracy)
Problem: Indivisibility of sovereignty: no aggregation of “partial” sovereign power holders possible. So in a mixed form of government, there is in the end no sovereignty at all, but separation of powers: constitutional state.
Within constitutional state, distinction of forms of state (monarchy, republic) loses importance new distinction: different types of separation of powers within a constitutional system: forms of government:Parliamentary system presidential/congressional system
(UK: parliamentary monarchy; Germany: parliamentary republic; US: presidential republic)
Remaining significant distinction between “forms of State”: Unitary states and federal states(composed states).
This course: main concepts and institutions of the Western constitutional tradition which has developed in Europe since the 17. century and which has become the global reference basis (benchmark) for constitutionalism after the collapse of almost all communist regimes.
Haeberle: 1989 as the “global moment” of constitutionalism. End of constitutional history?
Constitutionalism as a “global” phenomenon.
b)Concept of “Constitution”
French declaration of the rights of men and the citizen of 1789, Art 16:
“Any society in which the guarantee of rights is not secured nor the separation of powers determined has no constitution.”
Two elements:
First element: Separation of powers, limited government
Exercise of political power is enshrined in a system which institutionalizes limits of legitimate political power by establishing a set of different powerholders controlling each other: “checks and balances”
Against the background of absolutist monarchy: sovereignty as unlimited and undivided power.
Kriele: In a Constitutional Government: no sovereign, butonly competences
Constitution as “higher law”: Implies hierarchy of sources of law:
judicial review of state acts (administrative and legislative) by the independent judiciary (different systems)
Implies depersonalization of power: no single person or dynasty is the holder of sovereignty, butonly the whole system of constitutional government is sovereign: „government of laws and not of men“
Continuity of political power is not dependent on person (or on kinship); not self evident: Widespread problem: continuity of governmental power in many post colonial countries unlimited re-election of presidents; presidency is passed on within the family
Question: Residual of personal sovereignty? Emergency powers
Carl Schmitt:“Hewho decides on the state of emergency is sovereign”: head of executive.
But nowadays constitutional restrictions, especially involvement of parliament.
Second element: guarantee of rights
People are holders of rights (“natural rights, fundamental rights”); with respect to political power, they are not just subjects, but also a citizens: Any exercise of political power affecting the individual citizen has to be justified before the individual citizen;
Fundamental rights are legally enforceable: holder of a right is entitled to legal remedy: can initiate a legal procedure by which the government has to prove that a certain action affecting an individual can be justified.
Distinction between fundamental rights and tolerances: Fundamental rights are not just tolerances that can be revoked (contrast with absolutism). Implies institutional and procedural guarantees which form the core of the rule of law.
Judiciary, independent from the executive and impartial (independent from the interest of the parties, no bias)
Fair trial, especially relevant in criminal procedure.
Important: criminal suspect, even convicted criminal offender, is no outlaw, but still has legal personality, and is a holder of fundamental rights.
Rule of Law: two interconnected basic elements:
a) Governmental power is limited by law and subject to a constraint of legal justification (separation of powers, objective aspect of rule of law)
b) Two whom is the government accountable? Human person as the holder of inherent an inalienable rights (individual aspect of rule of law)
Third element : Democracy
Building on both previous elements: constitutional democracy; “liberal democracy”
Fourth element: Federalism
First, second and third element imply universal values or standards, fourth does not.Federalism is not a universal precept for every state to follow, but depends essentially on historical and geographical circumstances. As far as a constitution adopts a federal model, this has to be in line with the first two elements, rule of law and democracy.
Plan of the course.
1. - democracy: popular sovereignty, representative anddirect democracy, electoral systems
2. - governmental systems: different models of relationship between the legislative power and the executive power
3. - federalism: types of federal systems
4. - rule of law, especially judicial review of legislative acts
c) Constituent Power
resides in the People:right to establish and also to abolish any form of government
USA: 1787: American Constitution. PhiladelphiaConvention:
Constitutional convention representing the people who are not bound in their power to alter or to “abolish” the existing constitution (“Articles of Confederation”)
France: Sieyès: What is the third estate? Refers to the feudal system: Clergy, nobility, and the “ordinary citizens”. Sieyes claims that the third Estate represents the People, the Nation. The Third Estate is not any more a limited part within the existing feudal constitution, but it speaks as the representative of the whole people as the source of the constitution. As such, it can also alter or “abolish” the constitution.
Important feature: legal discontinuity. EU-Constitution?
Procedures of constitution making mostly involve some kind of participation of the People; constitutional convention and/or popular referendum on the adopted text.
Sometimes only plebiscitary acclamation – this does not involve in-depth public discussion on substantive details, but rather acclamation of a political leader. (De Gaulle 1958, often also in developing countries. Nigeria 1999: no direct popular involvement)
d) entrenchment and change of constitutions(amending power)
- GB: no constitution in a formal sense (modifications are normal acts of parliament)
But usually a more difficult procedure of legislation
- parliamentary: 2/3 parliamentary majority as opposed to simple majority
- involvement of the people: Austria: total revision of the Constitution
Netherlands: after proposition of constitutional amendment dissolution of parliament, and amendment can only be adopted after new elections.
- federal systems: special requirements: federal parliamentand a qualified majority of the component units (US: ¾)
combination of involvement of citizens and component units: Switzerland: simple majority of cantons and citizens.
Distinction between flexible and rigid constitutions – interdependence between formal amending procedure and judicial interpretation:
US: formally rigid, but flexible judicial interpretation;
Austria: formally flexible, but rigid judicial interpretation.
absolutely rigid: parts of German constitution: Art 79 para 3
absolutely flexible: GB
e) written – unwritten constitutions; GB: partially “written” (a set of acts of parliament), plus unwritten constitutional conventions; the “written” part is extremely “flexible” (see above)
f) functions of constitutions
- normative: entrenched and judicially guaranteed
- identity re-enforcing (example: US constitution replacing the British crown)
- ideological (Loewenstein: “nominalist”): legitimizing dictatorship without limiting it.
1. Democracy:
a) Democracy and Rule of Law
Frequent opinion: rule of law can still be established under an authoritarian regime. Civil liberty is possible without political liberty.
Is rule of law without democracy conceivable?
Citizens would be legal subjects, but not political subjects.
Guarantee of fundamental rights would be made dependent on a political authority which could not be made accountable within a democratic process.
Insofar, fundamental rights would again be reduced to mere tolerances (acts of toleration). Fundamental freedoms could be granted or taken away by the political authority at free will.
Insofar, the law would not bind the supreme power holders.
In the last instance, rule of law is only secured if there is an institutionalized democratic procedure by which the citizens themselves participate in the political determination of their rights.
Kriele: democracy (parliamentarism) establishes the rule of law on the political level (on the level of lawmaking).
Popular sovereignty(sovereignty of the People) as the legitimacy basis of the constitutional state.
Tension between democracy and constitutionalism?
Democracy: based on popular sovereignty
Constitutionalism: no sovereign but only competences
Sovereignty of the people presupposes fundamental rights standards without which the very notion of sovereignty of the people would be meaningless: Equal legal personality of every citizen.
Does popular sovereignty disappear?
Kriele: Constituent power, but popular sovereign power is consumed after enactment of the constitution.Popular sovereignty (sovereignty of the People) thus remains the legitimacy basis of the constitutional state.
The answer seems to reflect a feature which can be found in most constitutional democracies:
no direct democracy, only parliamentary democracy; exception to some extent: semi-direct democracy in Switzerland, but generally people does not directly exercise political power collectively, but through their representatives.
Kelsen: direct democracy is not possible in modern state with large population dispersed over a wide territory, therefore exercise of political power through electedbodies, agencies or authorities indirect democracy
b) Representative Democracy
Is representative democracya synonym for indirect democracy?
Distinctive feature: free mandate. Elected representatives of the people do not act as commissioners or instructed agents of the sovereign people: rejection of imperative mandate (Soviet system).
Historical origin: England (Blackstone), and France, Constitution of 1789: individual
deputies not as representatives of their constituencies, but as representatives of the whole nation
Parliamentarism, marked by the idea of free mandate, is based on the ideal of free discourse among independent individuals; supposed to generate the common best. Presupposes composition consisting of the wealthy elite: no universal suffrage, but right to vote is restricted to people who bear a minimum tax capacity.
Free mandate has been criticized by Marx who advocated imperative mandate with the right of the people to recall their deputies; meant to work against oligarchic tendencies.
Today impact of free mandate has shifted with introduction of universal suffrage and development of political camps or parties; no instructions from the electorate, but party discipline.
c) Direct Democracy
Rousseaudistinguishes between the “common (general) will” (volonté générale) as opposed to the “aggregate will of all” (volonté de tous). Although Rousseau himself advocates direct democracy, he upholds the distinction between the merely “empirical” will of the people and the “real”, enlightened will of the people. Even if there is direct democracy, it is only legitimate if it articulates the general will, not if it spells out only the selfish interests of the majority. Two kinds also of direct democracy: the rule of the “general will” as opposed to dictatorship of majority.
In today’s perspective, the rule of law which which guarantee that the direct will of the people does not lead into dictatorship of majority (and thus represents the general will).
Problem: fundamental freedoms as limits for popular refendums? (Switzerland!)
Constitutional democracy is “representative” in a substantive sense - whether direct or indirect.
d) Electoral Systems
Transformation of votes into seats in parliament
Two electoral systems: majority and proportional
aa) majoritarian(plurality) system: older type, still mainly in common law countries:
Single-member districts: either “First past the post” (“winner takes all”): (relative) majority (common law countries), or second round elections (France) with relative majority of all candidates which are above a certain threshold (12,5 %) in the first round (not only the twocandidates with highest support!)- “First past the post”, “winner takes all”;
Multi-member districts (more than one seat):
single non transferable vote (SNTV: Jordan,Afghanistan, Upper House in Indonesia,formerly in Taiwan and Japan)
single transferable vote (STV: Parliament in Ireland andMalta; Australian Senate): electoral districts with 3 to 5 seats, quota of votes for one seat.Voter has several choices; number of surplus votes for elected first-choice-candidates is transferred proportionally to the respective voters’ second choice candidates. Together with the first choicesof other voters for the same candidates, such candidates may reach the quota. Introduces element of proportionality.
Advantages:clear majorities; personal element, regionalism
Disadvantages:
- distortion of the will of the electorate. Extreme example: Canadian Federal election results for Manitoba, 1926:
Political party / % votes / Numberof seats / % seats
Conservative / 42.2% / 0 / 0%
Liberal-Progressive / 19.5% / 7 / 41%
Liberal / 18.4% / 4 / 24%
Progressive / 11.2% / 4 / 24%
Labour / 8.7% / 2 / 12%
- privileging effect for regional (local) concentration of parties; resulting possibility of gerrymandering (redistricting)
- wasted votes in multi member district systems STV as an answer
bb) proportional representation:
Developed in Belgium 1899: d’Hondt
Voters opt for party lists: closed(South Africa) or open (different degrees of openness; Austria: selection of individual candidates is possible; Finland, Brazil: selection of one candidate compulsory (SNTV applies within party list)
free list (all voters haveas many votes as there are seats allocated for the district. Individual voter can distribute the votes on candidates out of different lists: panachage:Switzerland, Luxembourg, Ecuador; can be combined with cumulation of votes for the same candidate: Switzerland)
advantages: will of the electorate is being realized more accurately
disadvantages:
- fragmentation of the party system: remedy: minimum threshold (A: 4 or D: 5 percent),
- small influence of voters on the selection of candidates, especially no regional proximity to citizens; answer: open lists.
cc) combinations
Germany: two votes, first one for a candidate in single member constituencies (relative majority), second one for a party list. Not two rounds, but two votes (splitting between parties possible): Winners on the basis of the first vote do not lose their seat even the total number of such candidates exceeds the proportional number of seats of the respective party (“overhanging mandates”).
But there may be a negative effect of the second votes – held unconstitutional by the constitutional Court (July 2008)
Parallel voting: one half of the seats are being allocated by majoritarian, the other half by proportional election, but independently from each other(no overall proportionality): Lithuania (Georgia, Armenia); being discussed now in Germany as a reaction to unconstitutionality of the existing system.
e) Party Systems
Whole of parties in a political system and its functioning
Criteria: Number of parties, their impact (how “big” they are) the amount of support in the electorate and, their regional distribution (spreading): whether regional strongholds or equal distribution of support all over the territory; in federal states: whether the national parties are also parties on the level of the constituent units or whether there are special regional parties for elections in the constituent units – influences the functioning also of the federal legislatures, especially with respect to the second chamber.
In general the functioning of the constitutional system of government is largely influenced by the party system, and the party system itself is heavily influenced by the electoral system
Number of parties: all variations
Most important: two party systems: mostly in countries with majority (plurality) voting systemwith single member districts. Or more parties but at least two political camps willing to cooperate among themselves (France: droite – gauche);
Fragmenting effects of proportional electoral system sometimes alleviated by stable allegiance of population to political parties or “camps”;
Tripartite system for some time prevailing in central Europe, in several countries developing into a multi-party system
Many parties not willing to cooperate (Italy, France 4th Republic).
f) Bicameralism
Second Chamber of Parliament can have two functions:
i) control (tempering) of the first chamber - element of separation of powers (“mixed government”: first chamber: democratic element, second chamber: aristocratic element)
George Washington: “cooling house”; Switzerland: “chambre de réflexion”
ii) Federalism – representation of the component units federalism. Most states with a second chamber are federations.
Different composition – appointment by the head of state; or by the constituent units of federal system - either direct election or appointment by the government (executives or legislatures of the component units or both)
Different roles with respect to legislation:
Either equal and coextensive competences with the first chamber, or just veto powers;
Absolute veto: either for all legislative acts (requirement of consent to legislative acts is co-extensive with that if the first chamber) or for specific legislative acts (for instance in some federal systems the second chamber only has an absolute veto power in matters concerning their position or their powers within the federal system)
Otherwise: suspensive veto (also not necessarily for all legislative acts)
Second chamber represents an element of consensual democracy: limit on the simple majority in the first chamber:Switzerland, USA (element of checks and balances). Allows for representation of all parts of society (regional, professional; minorities in highly fragmented societies).
Consent requirement for second chambers poses problems with a majoritarian understanding of democracy. Example: German reform of the Bundesrat: consent requirement for federal legislation reduced, but Laender have greater leeway to depart from federal legislation individually)
2.Governmental Systems:
Most important models: Parliamentary system and Presidential/Congressional system.