Constitutional law

Simple definitions:

Constitution: a constitution is the building blocks of the society. It’s the laws that govern how the government operates, who has which power and the fundamental rights of its people. In other words, it’s the foundation of a state.

Evolutionary vs revolutionary:

-              Evolutionary: UK, it comes from change over time not gradually

-              Revolutionary: Constitution is made and enters into force at a specific time

o   Replaces the previous system (US)

Statehood (when do we call something a state):

-              Defined territory

-              Effective Government

-              Permanent Population

-              Ability to enter into relations with other states

Sovereignty: ultimate power to exercise authority over others

-              External: Statehood, the right to govern your own people and get into relationships in internationally settings. 

-              Internal: It’s who has the power within a country

o   Absence of sovereignty: no specified sovereignty within the country (NL)

o   Parliamentary sovereignty: the sovereignty lies with the parliament which is elected by the people (UK)

o   Popular sovereignty: the power lies with the people often in the form of representation (Germany)

o   National sovereignty: power is to the nation; this is very ambiguous as what is a nation. In France this all the citizens, past and present, represented by the elected/chosen (Fr)

Systems of government:

                  Parliamentary systems: Where the executive power is held by a cabinet who is held accountable to by parliament who hold the legislative power. They can fall midterm and are held accountable by the parliament (vote of no confidence). The head of state in such system is often more symbolic than holding any real power. (UK, Germany, NL)

                  Presidential system: This is where the head of state holds the executive power. He is elected through a separate mandate, and he is not accountable to parliament. There is more separation of power between parliament and the president. They can check each other by veto’s (president), budget changes (congress) etc. This however can cause deadlocks as if they disagree nothing goes forward and as they are held by separate mandates, they have no power (limited) to remove each other. (US)

                  Semi-presidential system: this is where there is both a cabinet and a president. The executive power is shared with two parties, the head of government (prime minster) and the head of state (president). The president is directly elected so is still not responsible to parliament while the prime minster is.

-              Premier-presidential system: The prime minster is not responsible to the president only the parliament. The president still holds strong executive power but cannot dismiss government alone

-              President-parliamentary system: The prime minster is accountable to both the parliament and the president. In other words, the president can dismiss parliament – greater presidential dominance.

When it comes to who holds more legislative or executive influence its often switches. Its who holds more supports with parliament that is the deciding factor on who has the most influence. When parliament majority differs from the president the PM decides day-to-day policies while if parliament majority aligns with president, the president dominates. (France)

Republic (France, US, Germany): This is where power is held by the people and its elected representatives and president (head of state)

Constitutional monarch (NL, UK): This is where there is a monarch as head of state who is limited by its constitution in its powers

Federation:

• Territorial subdivision

• Fed. supremacy / vertical separation of power

• Autonomy of subdivisions

• State participation in federal law-making

• Entrenchment (written within the constitution)

• Constitutional review

From unitary state to confederation:

Centralism → Decentralisation→ Devolution→ Mild federalism→ strict Federalism→ Confederation

EU system + legislation + elections:

The EU system is what is considered most closely to a confederation or a supranational organisation. As within the EU its member states give up certain powers or sovereignty to the EU. EU law prevails above national law for its member states meaning that in a way its member states give up certain legislative power as it can be overruled by EU law. Within the EU there are three main branches. The commission, the council and the European parliament each playing a role in the legislative procedure. The commission is the one who under normal legislative procedure TFEU 293-4 is the one who proposes legislation, while the council and the parliament must approve (both must agree). The council and the parliament have the right to amend legislation as well. The commission also has the job of communicating the changes that the respective intuitions (parliament and council) want to each other. Legislation is only implemented when both the parliament with simple majority and the council with qualified majority (55% votes, representing 65% of EU population (Art. 16 TEU)).

Special legislative procedure is under TFEU 289 (2)

The European council is made up the representatives of each member state.

The European parliament is the directly elected by EU citizens every 5 years. Each EU citizen has the right to vote for representatives. There are currently 720 members

Every 5 years, the European Commission president candidate is proposed to the European parliament who is then accepted or denied by them. While the members of the European commission are appointed with agreement of both the president of the commission and the council. The European commission is held accountable to the European parliament which has the right to dismiss or approve the entire political leaderships of the commission. Vote of no confidence (2/3 majority).

Regulation: EU member states must follow the law (directly implemented) binding

Directive: The legislation is not forced however the result is binding.

Accountability:

Accountability is a way which states can use to check and balance certain powers. This is often done with intuitions which aren’t directly elected by the people, instead countries often choose to make them accountable to the intuitions which is directly elected of course this is not always the case. It’s also often used to keep cabinets in check by its parliament.

For example, in France the government (cabinet) is held accountable by the national assembly. For example, there vote of confidence or vote of no confidence. The national assembly can initiate a vote of no confidence which if passed would result in the fall of cabinet. Vice versa the prime minster can initiate a vote of confidence with a bill to help pass it and show legitimacy. This is similar in all parliamentary systems such as Germany, NL, UK. The difference with Germany and France however is that the president can in the case of France call dissolve the national assembly. Somewhat similarly the president of Germany when the cabinet has a failed vote of confidence, the chancellor can ask the president to call for a re-election of the Bundestag instead of cabinet falling

How can they initiate a vote of no confidence?

France (art. 20, 49): that national assembly can initiate a vote of no confidence with 1/10 members of the national assembly. For the motion of censure to pass, there must be a simple majority within the national assembly. Can be done three times per ordinary session and once per extraordinary session. Collective responsibility (not specific minsters)

Germany (art. 67 GG): There is a constructive vote of no confidence. This is where the Bundestag may have a vote of no confidence for the government, however, to do it they must already have a candidate to take over the position of chancellor. To do this there must be an simple majority.

NL (art 42(2)): Any member of parliament can initiate the vote of no confidence. It requires a simple majority to pass. They can do it for a specific member of the government or the cabinet as a whole. It’s technically not legally binding however, customary its followed.

UK: Technically any member of parliament can initiate a vote of no confidence. Similarly to the Netherlands it just requires a simple majority. This can lead to a specific minster stepping down or a cabinet as a whole.

Can they initiate a vote of confidence?

Germany: The chancellor can initiate a vote of confidence, tying it a bill to fast track a bill. If it fails, the chancellor can request from the president for a re-election of the Bundestag instead of the cabinet falling.

France: The prime minster can also tie a vote of confidence to a bill limited by the specified limitations in art. 49. This can fast track the bill (“take it or leave it”)

Impeachment:

Germany (art 61): it’s a legal trial to remove the president. In Germany its take ¼ of the Bundestag or Bundestag to initiate and it requires 2/3 of the Bundestag members and 2/3 of votes in the Bundestag to proceed.

US (Article I, Section 2, Clause 5, Article I, Section 3, Clauses 6–7): House of representatives initiate the process with a simple majority while the senate finalises with a needed 2/3 majority of all senators present.

France (art 68): Either chamber can initiate the process of impeachment with 1/10 members. Then said chamber must agree with 2/3 members. Then it sent to the other chamber and 2/3 of said chamber must also agree. Then it is brought to the high court presided over by the president of the national assembly. If 2/3 of the members of the high court vote yes then the president is removed.

Election system:

Germany:

630 seats in the Bundestag

There’s the first vote for district then second vote for party in general

First you take away the district winners who are part of no party from the total seats and some minority groups who are guaranteed certain seats (Danish party).

With the second votes they distribute the number of seats each party should receive. Then they look at the first vote for which districts they will receive. District winners will keep their seat if their party has enough seats. However, if the party does not, district winners with the lowest turnout will not receive there seat even if they won. If a party won less districts, then seats, they should have, it will get distributed to them. In case of a tie, it is decided by lot. Note that there is a requirement of 5 % or 3 districts for parties to receive seats in the first place.

Term: 46-48 months (4 years)

The Netherlands Art. 51(2), 52 Dutch Constitution:

First all the votes are counted. Citizens can vote for one party (they can also vote for a preference candidate, not needed though)

All these votes are then divided by the total seats within the second chamber (150). This will find how much is needed for a party to receive one seat. This amount is then divided by the amount of votes a party has received to figure out how many seats they will have. The amounted needed for a party to receive a seat is the number of votes needed for one seat. In other words, there is no threshold. This calculation is not exact of course so there would be some seats over. Who gets these seats is calculated using the de hondt method. This method usually favours larger parties.          

Term: four-year term

France Article 7 constitution: When it comes to electing the national assembly, it is elected through a two-round system. Districts each can vote for a candidate which would then represent them in the national assembly. The two round system works that in the first round for a candidate to win they must have 50 % of the votes and 25 % of the registered voters. If this is not the case, candidates with 12.5% of votes or more go to the second round. Here the first past the post system applies (candidate with the most votes win). If there is a tie, the oldest candidate receives the seat. 577 seats. One member constituency.

TERM: five years

UK: In the UK, there are 650 electoral districts which also represent the number of seats within the house of commons. Each member is elected through first past the post system in their respective constituency. This means that the candidate with the most votes wins. Up to 5 years

US 17th amendment: In the house of representatives, the number of representatives each state has is dependent on how big their population is. Each however, are guaranteed one seat. States are separated in electoral districts. Candidate with the most votes in an electoral district, win a seat. FPTP system.

Term: 2 years

Gerrymandering: where electoral districts are split up. Here they can split the districts up by grouping certain voters all together or splitting them up so their party would win more seats (districts). This is the case in states such as the US and the UK.

Legislative process (law making):

Constitutional amendment = regular legislative process:

UK parliament can amend the constitution the same way as a normal legislation due to it being mostly uncodified and partially unwritten. When it comes to normal legislation the house of commons and the house of lords can both propose legislation. When the house of lords proposes a legislation, the house of commons must agree with simple majority. They both can also propose amendments to each other’s bills. It often can go back and forth (pin-pong legislation) before its approved by both houses.

The house of lords can only block or delay a bill. If under the parliament act of 1911 the house of lords has denied a bill twice and at least 1 year has elapsed since it may be presented to the monarch for Royal Assent without the Lords’ consent and shall become law. When it comes to money bills this, the house of lords can only delay if for one month.

US: Members of both the house of representatives and of the senate can propose bills (article 1). Both houses can amend bills as well. For a bill to pass congress, both houses must agree with simple majority on the same text. It then goes to the president to sign and pass the bill. The president may veto a bill (art. 1, sect 7). The congress may override the veto with 2/3 majority in both houses.

NL: any member of the Tweede Kamer can initiate a legislative procedure (propose a bill). For this bill to pass the second chamber must agree with a simple majority and the first chamber must as well. The first chamber cannot legislate however, they often tell the second chamber that if they don’t change certain aspects of the bill, it won’t be passed. In other words, the first chamber has veto right.

France: the government, national assembly and the senate can both initiate a bill. Both chambers can also amend the bill. The amendments must be relevant to the bill unlike in the US with the rider clause. If both chambers cannot come to an agreement under art 45 French constitution the national assembly has the final word. There is a fast-track option by using a vote of confidence tying it the bill. This (“take it or leave it”) meaning that the national assembly doesn’t get the chance to amend it. The constitutional court may review the legislation before implementation.

Germany: Any member of the Bundestag, Bundesrat (art 76 GG) and the government can initiate a bill. The Bundestag can amend while Bundesrat can’t. The Bundesrat can request change though through the mediation committee. For a bill to pass the Bundestag must agree with a simple majority and the Bundesrat as well when it comes to state matters. For other laws the Bundesrat may object but this can be overruled by the Bundestag. It can be overruled by simple majority of Bundesrat objected by simple majority or absolute majority (2/3) if Bundesrat voted no by absolute majority

Constitutional amendment

Germany (art 79): it requires 2/3 majority in both the Bundestag and Bundesrat. However, there are certain requirements for amendments. Such as art 1-20 cannot be amended.

US (art. 5): When 2/3 of both houses agree can propose amendments to the constitution, and when 2/3 of state legislators can propose amendments. Then for it to proceed, ¾ of state legislators must agree or ¾ of a specially elected body.

NL (Art 137): It requires a simple majority in both the second chamber who can propose it and the first chamber. Then there is re-election for the second chamber who must then again agree with a 2/3 majority and then also the first chamber.

France (Art 89): It can be proposed by the president on the recommendation form the prime minster or MP. Both chambers must then approve the same proposed text. Then there will be either a referendum (simple majority) or submitted to congress where there must be 3/5 majority.

Constitutional review:

Ex-post: Review after a legislation is passed

Ex-anti: Before a bill is passed (abstract, centralised)

Centralised: there is a centralised constitutional review (court)

Decentralised: many different courts can perform constitutional review (concrete, ex-post)

Abstract review: not a specific case

Concrete review: specific case in question of violation of the constitution

Treaty review (dualism vs monism):

                  Monism: where treaties can be implemented in country without needing to be implemented in their own law. In other words, courts can directly implement treaties in cases. Additionally, treaty or international law takes precedence over national if conflicts. (Netherlands)

                  Dualism: This is where legislators after signing a treaty must also pass treaty details within their own law through parliamentary process. In other words, treaties can be used directly in courts. An example of this the UK. Additionally in the UK they implemented the human right act, implementing the ECHR in their own law however even if it declared incompatible, primary legislation still takes precedence over it.

                  US (Art 2, sec II): Qualified monist country. Treaties that are self-executing can be immediately implanted within court without further process (monist). However non-self-executing treaties must first be implanted through legislative procedure before taking into effect.

                  France – Qualified Monist: Once ratified, treaties automatically become part of domestic law and can be invoked before courts (Article 55 of the French Constitution). Qualification: If a treaty conflicts with the Constitution, the Constitution prevails. Also, implementation may sometimes require domestic legislation to be practically applied. Key point: Treaties are generally superior to ordinary domestic law, but not to the Constitution itself — hence “qualified monist.”

Germany – Qualified Monist: International treaties, once ratified and published, have domestic legal effect and can be directly applied by German courts (Article 59 and Article 25 of the Basic Law). Qualification: Treaties cannot override the German Constitution (Grundgesetz). Some treaties, especially those that involve legislative changes, require implementing legislation to take effect. Key point: Treaties are binding on the state and generally superior to ordinary law, but subordinate to the Basic Law — again “qualified monist.”

Human Rights (ECHR):

Admissibility criteria (art 34-35 ECHR):

1.        The person appealing for a violation of human rights must be the victim affected by it of a specific human right (specified in ECHR)

2.        This person must have suffered significant consequences due to the violation of their human right (economical, physical damage etc)

3.        They must have exhausted all domestic remedies

4.        No longer then 4 months must have passed since there case has been dismissed

5.        This only applies to countries who have signed the ECHR and has to be against the state party.

After a person has applied to the ECHR with specific case of violation, and has completed all the criteria making it admissible, the ECJ must also find merit in the case.