Fourth ClassConstitution Making

Constitution Constituent Power

How?: Procedure

Decentralization

Centralization

Step by Step

InternationalCommunity

Who?

Inclusive

Exclusive

Who decides?

Legitim

acy: T

reaty, Agreement, C

onstitutio

n…?

Units - Borders?

Reco

ncilia

tion

Pairs of valuesFamously, 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 competitionOne 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 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 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 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 standardsMany 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 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 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 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 ofFederalism

- Limit governmental powers withVertical Separation of Powers

- Accommodate Diversities- Strengthen Democracy- Conflict – Management- Strengthen and deepen

legitimacy of a confederal system (cf. EU)

MULTICULTURALBUT

PEACEFUL

MULTICULTURAL

AND

PEACEFUL

Switzerland

Spain

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

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

Belgium

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.

Turky

Croatiaof one's own state, based on the Croatian nation's historical right to full sovereignty,

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

Serbia

PREAMBLE: 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

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:

We, the multinational people* of the Russian Federation, united by a common destiny on our land,

EuropeanUnion

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 principleof subsidiarity, (Consolidat.Treaties)

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

the peoples of Europe, in which decisions aretaken 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-shed. Every person holding the nationality 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 ConstitutionConvinced 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 onbehalf of the citizens and States of Europe,