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Y1 Constitutional Law
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Comparative Constitutional Law (Constitutions Compared by Heringa & Kiiver all lectures by Carla Zoethout IRAC of cases)
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International Bachelor of LAW Program 2018-2019Course Page 1 of
Constitutional Law – Course Notes
Description: 19
Course notes
Lecture 1: Introduction: Comparative Constitutionalism
2+2=5
The earlier you comprehend that law is not ‘black and white’ the better
▪ Purpose of Comparative Law
1) Helps to better appreciate and understand the system and to broaden the world view.
Comparing = critical asses
2) Provide insights for constitutional design
3) Proves crucial in the particular context of the creation and development of international organizations.
The Court of Justice of the EU: refers to constitutional traditions common to the member states when
establishing general principles of European law;
European Court of Human Rights: seeks to identify common ground between contracting states in interpreting
the meaning of certain provisions on the European Convention on Human Rights.
Purposes of constitution engineering:
1) construct and maintain – the efficacy of a state;
2) to respect democracy;
3) to abide by the rule of law
The balance sought between these aspects is for the states themselves to decide.
▪ Systems of government [information added from Lecture 4]
Government
i. in state order: broadly refers to the entirety of the organs of public authority, incl. lawmakers, ministers
and judges.
ii. in executive: to comprise the head of government and a body of ministers (or ‘secretaries’) representing
executive power as opposed to the parliament and the courts.
i.e. government = cabinet (usually, not always)
iii. in governing majority: the political party or parties that have a majority in parliament
Presidential System
- The independent electoral mandates by the President and the legislature often means that a constitutional
conflict may arise between the two organs without an explicit constitutional remedy.
- The President (= HoS and HoG) is elected on the basis of popular vote (or an institution who is intended to
represent the electorate)
- The President has a fixed term that does not require a vote of confidence/ or nor confidence from the
legislature and generally not politically accountable to the legislature not do they necessarily need the
support of a political party to stay in office.
- The President is often involved in the law-making process (veto, advisory opinion)
Examples of countries with this system: USA, Ghana, Brazil, Mexico, Iran
Advantages:
- Direct mandate: reflection of citizen’s specific preferences
- Stability: fixed term of office provides more predictability
- Separation of powers: executive and legislature, two parallel structures who check one another
Disadvantages:
- Tendency towards populism, authoritarianism
- Political gridlock: if the President does not have a required majority in the Parliament
, International Bachelor of LAW Program 2018-2019
Course Page 2 of
Constitutional Law – Course Notes
Description: 19
Parliamentary System
- The Head of Government is accountable to Parliament though a vote of no confidence
- Usually the Head of State
Monarchy/Ceremonial President is not the Head of Government
- Ministers are either appointed/dismissed by the Head of Government, but this might be subject to
legislative approval
- The executive is generally subordinate to the legislature
- The Head of Government’s origin and survival depend on the legislature – generally must have support of
majority of legislature
- Head of Government is elected by the legislature and accountable to the Parliament
Examples of countries with this system: United Kingdom, Netherlands, Japan, Turkey, Ethiopia
Advantages:
- Inclusiveness: broad and inclusive government in divided society through coalition government
- Flexibility: HoG can be removed if political program does not reflect the will of majority, or may call new
elections if it lacks Parliament’s support
Disadvantages:
- Instability: coalition governments are especially vulnerable
- Lack of inherent SOP: lack of criticism or lack of bold policies
Semi-Presidential System
- The fundamental element of the mixed system is the dual executive
- The President, who serves as the Head of State, is elected by popular vote
- Neither the President nor the Legislature is in full control of the appointment and removal of the Prime
Minister
Examples of countries with this system: France, Egypt, Burkina Faso
▪ Forms of government
Democracy
Citizens may exercise the right to vote for their legislatures and possibly other public authorities whom are
accountable to elected assemblies; that elections take place on a regular basis in order to facilitate that office
holders can be removed from office peacefully and be replaced.
- indirect, representative democracy: the people vote for its representatives to vote on its behalf
- direct democracy: the electrocute itself decides specific issues through popular vote, e.g. a referendum.
Republic
Latin: res publica, common affairs or the common good) // Monarchy (HoS = King/Queen) is the opposite of republic
1) To denote a particular system of government;
2) The name of the state which has adopted such system; and
e.g. French Republic, the Federal Republic of Germany, the Portuguese Republic
3) The period of time when the state is or was governed by such system
Differences between these forms
1) The delegation of the government, in the latter, to a small number of citizens elected by the rest;
a. To refine and enlarge the public views
Public voice: more consonant to the public good
b. The effect may be inverted: obtaining the suffrages, and then betray the interests of the people.
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