Ethiopian Civil Service University

School of Law and Federalism

Comparative Constitutional Law

Module Code: CPLG6031
Fasil Alemayehu, (LLB,LLM)
Assistant Professor
 Chapter One: Introduction
1.1 What is a Constitution?
Historically, the term was used to describe
the body politic (a situation of a country as
determined by its geography, climate,
population and laws etc).
In the 18th Century, its meaning was
narrowed down to describe the state of a
country as determined by its basic laws or
legal structure (not the laws themselves as
such).
• Roman Law, the term ‘Constitutio’ referred to
imperial decrees/ law issued by the emperor.
• It also meant a settlement agreed upon by the
disputants without a trial or the sum paid according
to such settlement.
• English Law, a statute/ an act or a provision of a
statute/ act.
• Modern Usage, a fundamental organic law of a state
that establishes the organs/ institutions of govt,
defines their powers and guarantees individual rights
and liberties.
• It also refers to the written instrument that embodies
this fundamental law, together with any
amendments.
 If it was used in a legal sense, it was used to describe certain
types of laws enacted by the emperor, usually Criminal Codes
(Ex Constitutio Criminalis Carolina of 1532 (Germany under the
holy roman Empire) and CC Theresiana (Austrian Empire) of
1768).
 These laws regulated individual, not government, behavior.
 The laws that governed government behavior, the exercise of
public power, were not conceived as constitution but as
‘Fundamental Laws’ or Basic Laws’ or ‘Governmental Compact’.
 These laws, as opposed to modern constitutions, lacked
constitutive force and fail to provide complete regulation. They
were called constitutions, by supporters of the old regimes and
later by historians.
 In England, the term constitution was used to describe a formal
law enacted by the emperor/king, which was later replaced by
the term ‘statute’, i.e., laws enacted by the legislature.
 Oliver Cromwell’s written document/ law that constituted a
republican govt after the revolution that removed the
monarchy was called ‘instrument of govt’ not constitution.
 The same is true of the basic law that restored the monarchy
in 1688 (after the Glorious Revolution of ) but with a power
shift towards the parliament.
 In its modern sense (since the American and French
Revolutions), the term constitution refers to the laws that
constituted legitimate public power whose source is not the
ruler himself, but the people.
 The legitimating principle of these modern constitutions was
popular sovereignty instead of monarchical or parliamentary
sovereignty.
 The governments that were established by these constitutions
were limited (both in substance and in form) govts.
 Substantive limitations refer to the limitations on govt power
by the provisions on fundamental rights and freedoms.
 Limitations in form refer to the principle of separation of
powers, which was based on the idea that, freedom of
individuals could best be served if govt powers are distributed
among various organs (not concentrated in the hands of a
single man or organ).
1.2 Characteristics of Modern Constitutions
A modern constitution has the following main features/
characteristics.
 It is a set of legal norms that emanate from a political decision
rather than some pre-established truth.
 The source of legitimacy of the constitution is the will of the
people.
 Its aim is to regulate the establishment and exercise of public
power (regulation implies limitation).
 Its regulation is comprehensive (no pre or extra constitutional
bearers of public power/ and no pre or extra constitutional means
to exercise these powers is recognized).
 It enjoys supremacy over all other laws. Laws and actions that are
incompatible with the constitution shall be null and void.
 Written and enacted in a document.
1.3 Types of Constitutions
 Constitutions are categorised into various types based various
grounds.
 The categories are not absolute or mutually exclusive, as a
constitution may fall within several types at the same time.
 Some of the most common classifications include;
A/ Written v Unwritten Constitutions
British constitution; there is no single document that is adopted as a
constitution.
It is made up of several documents (as old as the 1689 bill of rights
and recent acts as the human rights act of 1998)), and
Unwritten norms/ rules
Israeli Constitution, no written constitution b/se the first Knesset
(which was elected as a constituent assembly failed to discharge
this task).
However, it has various basic laws that, according to the supreme
court, form the constitution of the country.
# codified vs uncodified constitutions; Austria, France and Germany
have codified constitutions, but there are separate acts/ laws that
regulate constitutional matters.
Ex. The electoral law is considered as a constitutional law in Germany.
In France, these laws are (Organic Law) enacted in a special
procedure and rank above other ordinary laws.
New Zealand, No written constitution.
B/ Rigid vs Flexible Constitutions;
 Based on the rules of Constitutional amendment.
 Closely related to the principle of constitutional supremacy.
 In certain constitutions, certain provisions can not be
amended, Ex, Germany, the principles of democracy, rule of
law, federal structure and human dignity and equality,
 Similarly, in France and Italy, the provisions on republican
form of govt can not be amended,
 In others, an election must be held between the initiation and
approval/adoption of a constitutional amendment (Ex
Belgium, Denmark, France…). Why?
 In others, more stringent requirements for amendment are
provided. For Ex. US Constitution, the provision on equal
representation of all states in the senate can only be amended
with the agreement of all states.
 In Ethiopia, refer to art 104 and 105.

Flexible Constitutions; constitutions whose amendments do not

require special procedure or less stringent requirements. For
Example, British constitution, the Netherlands…
C/ Effective Vs Symbolic
Many constitutions in the world remain on the paper, some are
intended as a window dressing from the very start,
Others are suspended soon after adoption and others are
regularly violated/ disregarded when their norms conflict with
political plans and measures.
# Carl Loewenstin classifies constitutions into Normative,
Nominal and Semantic.
Normative Constitutions, political process takes place within the
constitutional framework, political actors (the governors and
the governed) usually comply with constitutional norms.
 The socio-political environment is conducive and the values of
constitutionalism are enternalized.
the constitution from being applied faithfully, regardless of the
interests of the power holders. Ex, lack of democratic culture,
poor/weak institutions, lack of awareness…, lack of human
and financial resources.
Semantic Constitutions, constitutions without limitations (both
formal and substantive) and reflect the political reality. Ex.
The 1931 and 1955 Ethiopian Constitutions.
D/ With formal/ procedural limitation (US) and those with both
formal and substantive limits on govt power.
E/ Higher Law Vs Ordinary Law, in the past most European
constitutions were understood as not binding on the
legislature, which could enact laws that negate the
constitutional provisions (particularly human rights).
 The Canadian Charter of Rights and Freedoms of
1982 does not mention the judiciary as bound by
the fundamental rights provisions.
 In some countries, constitutional law/ ranked on
the same level as ordinary laws.
Constitutionalism
 The term constitutionalism means that the power
of leaders and government bodies is limited, and
that these limits can be enforced through
established procedures.
 It refers to a government that is, in the first instance,
devoted both to the good of the entire community
and to the preservation of the rights of individual
persons.
 That a government does not derive its power from
itself, but gains its power from the people through the
constitution, which is the supreme law of the land.
 This concept is in sharp opposition to monarchies,
theocracies, and dictatorships, in which the power
does not derive from a pre-drawn legal document.
 In a monarchy, the power is derived as an
inalienable right of the king or queen.
 In a theocracy, all of the power of a ruler is
derived from a set of religious beliefs, which
are thought to derive from God, and in a
dictatorship, the power is derived from the
will of a single person or group of persons
1.4 Constitutional Devt in Ethiopia
A/ The 1931 Constitution
 Granted by the emperor
 Aimed at centralization and consolidation of the emperor’s
power and creating a unified nation state
 Drafted by a foreign educated Ethiopian, Bejirond
Teklehawariat Teklegiorgis,
 Relied on Japanese constitution of 1889 (the Meiji
Constitution) which was adopted after Japan opened its doors
to the West. It attempted to preserve the centuries old
monarchy and tradition and introduce parliamentary govt.
 The emperor was the source and repository of all state power
and the sovereign, elect of God.
 It established the three branches of govt, but the emperor
was the supreme leader/ head of all these branches.
 It established a bicameral parliament, the house/ council of
representatives (the lower house) and the senate (upper
house).
 Members of the senate were selected by the emperor from
among the nobility, high ranking civil and military officers.
 Members of the lower house were selected by the nobility
and local governors (until the people is able to elect its
representatives)
 The parliament can not discuss an issue without the emperors
 The emperor could dismiss/ expel members of the lower house and
dissolve parliament.
 Contained certain/ limited rights and freedoms, including,
 Right to participate in govt (civil, administrative, judicial and military
positions)
 Freedom of movement
 Protection against arbitrary arrest
 Privacy and protection against arbitrary search and seizure
 Right to property.
B/ The 1955 Revised Constitution
Granted by the emperor who is the sovereign and above all law
 Required by the needs of the time, federation with Eritrea which had a
modern constitution adopted by the UN.
 Provided for a bicameral parliament,
 Members of the lower house (House of
Representatives) to be elected
 Members of the upper house (the Senate)
appointed by the emperor from among the
nobility, lords and former high ranking govt
officials (Compare house of lords in the UK)
 Passing of laws requires the agreement of both
houses
 The emperor may issue laws through decrees in
cases where the parliament is not in session
and is urgent, but must be approved/ when it
returns to session
 The emperor had veto power over legislations
 The emperor may dissolve the parliament,
 Orthodox Christianity is the official state
religion and the emperor must be an orthodox
 The emperor had the final say/ approval on appointment
of church leaders (the patriarch and bishops)
 Provides for basic rights including freedom of religion
(subject to public morals, security and non interference in
politics)
 Inter’l treaties part of the constitution and had equal
status
 Amendment by ¾ majority in each house and approval by
the emperor, in two parliamentary session years (cooling
period)
How do you evaluate this constitution in light of
modern constitution and the political system it
creates?
C/ 1974 Draft Constitution
 Was an attempt to address popular grievances
against the emperor and his govt.
 It envisaged to limit the emperor’s absolute
power (establish a constitutional monarchy)
 Recognized the peoples of Ethiopia as the sovereign
and source of political power (popular sovereignty)
 Established a bicameral parliament, with elected
members (lower house) and senators (upper house)
appointed by the Council of minsters (15), by the
provincial councils (60), by municipalities of major cities
(15) which was intended to be the ultimate political
organ of the country
 The executive (council of ministers) had very strong
powers (Ex it had a limited legislative power to stop a
legislation and return it parliament).
 The prime minister was to be appointed by the
parliament and confirmed by the emperor. May the
emperor refuse to do so?
 The pm shall appoint ministers with the approval of
the emperor
 Judges were to be appointed by a judicial adm council
 Provided for conflict of interest rules for public
officials and civil servants (prohibition of other paid
jobs and involvement in business). It also required
them to declare and register their assets
 Amendment by 2/3 majority in each house
and three months cooling period.
C/ Provisional Military Govt Establishment Pro
No 1 1974
 Deposed the emperor and put the crown
prince (Merid Azmach Asfa Wosen) as the new
king (in his absence). But he would have no
political and adm roles.
 Abolished the parliament (for being
undemocratic, failing to represent the people
and addressing their problems ex land
tenure).
 Suspended the 1955 constitution and
promised a new democratic constitution soon.
 Established a provisional military govt until an
election is held and a new govt is established.
 Prohibited opposition demonstrations/
strikes…
 Established a military court to try the cases of
people who violate this and future laws and
officials of former govt ()
 No appeal against the decision of the court
 Existing laws remained in force in so far as
they are consistent with this law
D/ The 1987 (PDRE) Constitution
 A socialist constitution, adopted by a
referendum in January 1987
 Established a socialist govt (govt of the working
people) under the vanguard of the WPE
(Workers’ Party of Ethiopia)
 The working people was sovereign and
ultimate source of power, represented by the
national shengo/ council and local shengos.
 Socialist Ethiopia, a unitary state but
recognizes diversity and equality of its
nationalities, languages and cultures.
 A single party system and command economy
(public ownership of means of production) and
central planning.
 Compulsory national military service.
 Equality of women and recognition of their role
in the revolution.
 Amendment by ¾ majority of the national
shengo
D/ The Transitional Charter June 1991
 Established a transitional govt made of various
political groups
 Two branches (the council of representatives
and council of ministers)
 Incorporated the UDHR as part of the charter
and the laws of the country
 Recognized the right to self determination of
Ethiopian nationalities
 Provided for the establishment of constitution
drafting commission (by the council of
representatives)
 Provided for the establishment of national/
regional governments (by the council of
representatives)
 Supreme law
1.5 Constitutional Law
What is constitutional Law?
 The law contained in a written codified
constitution or plausibly inferred from it. (‘Big
C’ constitutional law/ PRIMARY meaning.
 Supreme, entrenched and enforced through
judicial review.
 Content/subject matter does not matter/
formal constitution.
 ‘Small c’ (SECONDARY meaning) constitutional
law, the subpart/ subset of the aggregate body of
rules, practices and understandings determining
the actual allocation of public power and its
limits, having formal legal status.
 This meaning of the term has been limited to
systems lacking written and codified constitution,
such as the UK.
 Also possible in a system with a big C constitution
 Content/ subject matter is important.
 Ex, Super Statutes (Civil Rights Act of 1964,
USA) and Constitutional statute (the Human
rights Act of 1998,UK), udhr, iccpr…
 Since these are entrenched and recognized as
higher laws, they represent a trend towards
constitutionalization without ‘big C’
constitutions.
 The trend is that constitutional law is not
limited to written constitutions, hence the
notions of common law and statutory
constitutions.
 A shift towards substantive aspects/ matters
over formal aspects to determine what
constitutional law is.
1.5.1 Views on the place/ role of const’l law
 Political constitutionalism; all moral, political,
legal issues should be resolved politically through
ordinary/ non constitutional laws enacted by the
law maker (elected political body).
 The constraints on the legislature should be
political and enforced through the political
process (elections), not legal/ judicially enforced
 Removing rights from the political sphere/
legalizing rights/ is both ineffective and
illegitimate means of upholding them
 Legal constitutionalism; constitutional law
should (that is, its function is to) resolve some
moral/political/legal issues and conflicts in
society. (ex bill of rights vs govt structure and
division of powers)
 typically those that might otherwise
undermine or destabilize it—while leaving
others to be resolved politically.
 Total Constitutionalism; constitutional law
should it essentially resolve—or strongly
influence—virtually all moral, legal, and
political conflicts in a society.
 Through an expansive/ broad interpretation of
constitutional rights
 The constitution should be comprehensive
and so that little is left to the free, unmediated
play of political forces.
 constitutional law is not only supreme but
comprehensive;
 It does not simply resolve a few potentially
destabilizing issues, but specifies almost all
outcomes.
 Germany, South Africa, Colombia Argentina.
1.5.2 Govt’ structure vs rights protection;
 Prior to the WWII, the focus of constitutional
law has been on the ground rules of govt and
democratic govt, in particular, on the essential
framework of electoral politics.
 Rights were typically either not included at all
or deemed non-justiciable.
 By contrast since 1945, the incorporation of
judicially enforceable bill of rights into
constitutional law has been a standard feature,
 This is what has been referred to as the ‘rights
revolution’
 Rights are now a typical part of constitutional
law, and
 Rights protection has come to be viewed as the
central and primary function of constitutional law
 However, in recent years allocation of powers
has become the centre of attention in some
post conflict states.
 In Iraq, Bosnia, Kosovo, Sri Lanka, and
Northern Ireland, structural issues concerning
the allocation of power among rival ethnic or
religious groups, and not bills of rights, have
been at the heart of constitutional law and
politics.
1.5.3 Constitutional law vs Private sphere
 Does constitutional law regulate the conduct of private
actors or just public officials/ govt actors?
 Do constitutional rights provisions bind all govt actors or
only some; and, if only some, which? In particular, do they
bind the legislature and the courts?
 Secondly, does constitutional law apply to private law
(and, in common law jurisdictions, to common law) as well
as public law?
 Thirdly, does constitutional law apply to litigation
between private individuals?
There are three approaches;
(a) Vertical effect/ approach, (liberal view)
constitutional law’s proper role is regulating
the conduct of govt actors in their exercise of
public powers.
 Constitutional law should leave the private
sphere to regulate itself.
 Based on the perceived desirability of privacy,
autonomy, free market and federalism (in
federations)
 Constitutional law’s critical function is to provide
law for the govt, not private citizens.
 The Supreme Court of Canada (SCC) has held that
Charter rights do not bind the country's courts.
 Courts in the two Australian states are not bound
by the human rights provisions if the bill of rights.
 By contrast, the German Federal Constitutional
Court (FCC) has held that the rights in the Basic Law
do bind the courts.
 Under human rights acts in the UK and two
Australian states, these rights do not bind the
legislatures (parliamentary sovereignty)
(b) Horizontal effect/ approach;
 Since a constitution is the expression of the
fundamental values of the people, it should apply
to all.
 The public-private divide is conceptually
incoherent and impractical.
 Constitutional rights are threatened not just
by govt actors, but by powerful persons/
corporations.
(c) Indirect horizontal effect
 There are two different ways in which
constitutional rights might regulate private
actors, that is have horizontal effect:
(1) directly, by governing their conduct; (by
imposing constitutional duty) or
(2) indirectly, by governing the private laws that
regulate their legal relations with each other
and that they rely on or invoke in civil
disputes.
1.5.4 Constitutional Law and Positive Rights
 Two common types of constitutional positive
rights,
 (a) Socio economic rights (education, health
social security…)
 (b) Protective rights (protection against
violence, right to life, expression and media
freedom)
• the constitutions of South Africa, Greece,
Switzerland, and Ireland contain express rights
to state protection.
• Elsewhere, protective duties have been
implied by the judiciary from certain textual
rights that seem on their face negative.
• Thus, the best known and most important
protective duties in Germany concern the
right to life and freedom of expression.
• The FCC famously interpreted the former in the
First Abortion Case to require the state to protect
the lives of fetuses against such private actors as
their mothers, presumptively through the criminal
law.
• The right to freedom of broadcasting was also
interpreted by the FCC to require state regulation
to ensure the protection of citizens’ access to the
full range of political opinions necessary for them
to make informed decisions at elections.
1.6 Comparative Constitutional Law
 Macro Comparison vs Micro Comparison
The whole constitutional sys vs Specific aspects
Why comparison?
Functional approach;
a) Developing better understanding of other
systems
b) Developing a better understanding of ones own
system
c) Responding to doctrinal or textual questions.
d) Identifying best practices (systematic
approach)
Who does the comparison?
 Judges/courts
 Constitutional law practitioners/ lawyers
 Constitutional law Scholars, students
 Constitution drafters/ makers
Challenges in comparison
 Time, accessibility, language barriers and the
need to understand the broader context (social,
political legal)
 What is normatively good, just is not easy to
decide/ is complicated, because contexts differ
 Establishing causality is even more difficult
(good constitution just society)
 Technical/ methodological challenges, Ex how
to select the cases on the basis of which the
comparison will be done.
Approaches
Universalist
• the legal problems that confront all societies
are essentially similar and that their solutions
are fundamentally universal.
• Specifically, some argue that basic principles
of constitutional law are essentially the same
throughout the world.
• Accordingly, the principal goals of comparative
analysis are;
• to identify and highlight the common or
universal principles and
• to determine how particular constitutional
jurisprudences do, or may be made to,
conform to those principles.
Relativists
• all legal problems are so tied to a society's
particular history and culture,
• hence a solution that is relevant in one
constitutional context cannot be relevant, or
at least similarly relevant, in another society.
• This position is encapsulated in Montesquieu's
observation that;
‘the political and civil laws of each nation …
should be so appropriate to the people for
whom they are made, that it is very unlikely
that the laws of one nation can suit another’
• Hence, the legitimate task for comparative
analysis would be to;
a) Explain how each constitutional system
conforms to the singular needs, aspirations,
and mores of the particular polity for which it
has been designed
b) Foster a systematic understanding of how law
varies according to the particulars of its socio-
political environment and
 Generally, the principal goal of comparison
would be a negative one, i.e., learn what not
to do/ from the failures of other systems.
 In other words, since no two polities are likely
to share essentially similar circumstances,
there ought to be a strong presumption
against use or adaptation of constitutional
norms originated beyond one's borders.
Critical legal theorists,
 That comparative constitutional law has a
colonizing and hegemonic edge,
 i.e., it tends to project the gloss of a dominant
constitutional culture, such as that of the
United States or Germany, onto constitutional
systems operating in former colonies and
other developing polities.
• the function of comparative analysis should be
the development of a more critical, reflexive
analytical capacity.
• Hence, the proper goal for comparative
analysis would be the ‘debunking’ of the
hegemonic tendencies spread throughout the
discipline
 For Ex, Günther Frankenberg has criticized
mainstream comparativists as;
‘Anglo-Eurocentric’ paternalists prone to
imposing Western hegemonic approaches on
the subject’
 and has characterized comparative law as;
‘a postmodern form of conquest executed
through legal transplants and harmonization
strategies’.
Constitution Making and Amendment
 It is a pre-eminently political act carried out by
political actors responsible for selecting
evaluating and enforcing societal choices.
 It is influenced by the socio-political
order/environment in which it takes place.
 Two general ways (i) ex nihilo creation and (ii)
CM by the rules.
 In the ex nihilo model, the process usually
starts with the decision to abolish the existing
constitutional system and establishment of a
provisional govt.
 Followed by the (auto) determination of the
entity/body that will constitute the
constituents (constitutional assembly/
commission…)
 This (constituting) entity/ body may itself
undertake the drafting or provide an interim
set of rules/ guidelines and establish another
body to draft and adopt the constitution.
 In a democracy, the preferred body to do the
drafting and/or adoption is an elected or
delegated constituent assembly.
 The source of the constituent power and
legitimacy of the constitution making process
is the will of the people.
 This will is expressed through a free and fair
election of members of the assembly and in
some cases popular referendum.
 The constituent assembly usually has a limited
mandate /adopt the constitution/ and
disbands upon the adoption.
 It shall not be involved in ordinary legislative
task and its members are ineligible to run for
parliament (in some systems)
 In some cases, (Israel 1948 and Romania
1989), a newly elected legislature is
empowered to act as a constituent assembly.
 In Romania, this was followed by a
referendum to ratify the constitution so
adopted by the legislature.
 In some cases, constitution making may be an
international effort.
 Either in the form of setting the rules and
procedures for the election of the constituent
assembly or even drafting.
 Japan constitution of 1945 (by the USA),
German Basic Law of 1949 (by the allied
powers)
 Bosnia and Herzegovina 1990s and Kosovo in
the 2000s, where international organizations
such as the UN, EU and other mediating
bodies participated in the process.
 Constitution making by the rules, does not
involve abolishing the existing system/order.
 It may take the form of a major amendment
to an existing constitution or adopting a new
constitution according to existing rules.
 It is relatively smooth and ensures continuity.
 It avoids political crisis and problem of
legitimacy.
 It does not require (in most cases) a special constituent
body (it is undertaken by the legislature) or adoption by
referendum.
 Exceptions, Switzerland, Austria and Venezuela, .
 Initiation of the process is not open for the public/
popular initiation is not allowed in most systems/ for
fear of populism.
 Successful in some cases (Spain and Portugal were
transformed from fascist regimes to liberal democracies
in the 1970s through constitutional amendment)
 Risks include regression to autocratic rule,
examples Turkey, Venezuela, Zimbabwe,
Uganda, Burundi and DR Congo…
Adoption/Ratification and Certification
 The final/ last step in the process before its
promulgation and coming to force.
 Often the CA itself has the power to adopt and
promulgate the draft constitution.
 The prevailing contemporary finalizing act is
consent of the people in the form of a
referendum.
 Where the process/ CA is required to adhere
to certain predefined principles in adoption,
the constitution needs to be certified for
conformity with such principles.
 The certification is done either by a court
(South Africa) or other body.
Amendment
 Modern constitutional theory holds that a
constitution should be made amendable/
revisable to accommodate changes.
 No human norm should be perpetual,
 However, the constitution must also be
protected from frequent changes/
amendments (as governments change)
 The nature of the amendment procedure
reflects the protection given to the
constitution and its supremacy/ popular
sovereignty.
 Procedural limitations include; subjecting the
amendment to referendum (Switzerland,
Austria), qualified/ special majorities in the
legislature and cooling down periods.
 Substantive limitations, constitutional
provisions that prohibit amendment of certain
fundamental ideas and principles of the
constitution.
 Examples, in the German Basic Law, human
dignity, separation of powers and federal state
structure are un-amendable/ immutable.
 In France, the republican form of govt is
immutable.
 The constitutions of Portugal, Romania, Austria…
have such provisions protecting certain principles/
ideals.
 Implied limitations, not expressly declared
immutable but assumed immutable (bills of rights,
Indian constitution/ supreme court)
 Judicial protection, constitutional courts in some
systems (Germany, Romania, Austria) are expressly
authorized to review constitutionality of
amendments.
 The Indian supreme court held that it has an
unwritten mandate to protect the basic
elements of the constitution against
unconstitutional amendments.
 The supreme courts of Pakistan and
Bangladesh have also adopted this position.
 Some argue that Immutable provisions pose
challenge to the idea of constituent power of
the people/ popular sovereignty.
 However, others (Benjamin Constant,
constitutionalist doctrine) maintain that
popular sovereignty is never absolute, and
does not include the destruction of the
fundamentals of its very existence by
authorising despotism.
 Fundamental human rights can not be
disposed of, even by the people.
Further Reading; Constitution Making: Process
and Substance, Claude Klein and Andreas Sajo.
 Chapter Two; Horizontal Structuring of
Powers
2.1 Definition
 It refers to the allocation of state powers
among the organs of govt within the same level
of geographic organization.
 i.e., between the legislature, the executive and
the judicial branches.
 It should be distinguished from vertical
separation of powers (between organs of govt
at different levels of geographic organization).
 Example, between federal and state govts,
between central and local govts etc.
 Some systems employ a sharp distinction/
strong separation of legislative and executive
powers (Ex, presidential systems, such as the
USA)
 Others are characterised by weak separation
of powers or fusion of powers (parliamentary
systems such as the UK and Ethiopia)
 Legislative powers may be further divided by
creating bicameral legislature
 Executive powers may be further divided between
the president’s and prime minister’s office
 Why Separation of Powers?
 It inhibits/ restrains govt action and tyranny
 Specialization and division of labour; different govt
bodies are more competent in certain tasks
 Ensures democratic legitimacy
 Checks and balances
 John Locke, (Second Treatise on Govt 1689)
argued that human frailty/weakness leads men
to grab all power.
 It is dangerous for the same person/s to make
and execute laws.
 He maintained that the legislature is/ should be
the supreme power,
 and that in all constitutional monarchies and
well framed govts, the legislative and
executive powers must be in distinct hands.
 Montesquieu (The Spirit of Laws, 1748) argues
that despotic govts are undesirable, since the
leave their subjects in poverty, insecurity and
fear.
 Stable republican govts, on the other hand,
create conditions of liberty and prosperity.
 He argues that power is susceptible to abuse.
Hence it is necessary that such power be
checked by another power.
 Public power should be divided between
different persons/organs which would act as a
check on each other.
2.2 Origin and Development
 Its origin can be traced back to ancient Greece
and Rome
 Aristotle argued about the need to combine
monarchy, aristocracy and democracy.
 Polybius and Cicero argued that the Roman
Republic constituted a successful form of
Mixed
govt through its combination of monarchy (rule
by one with his counsels), aristocracy (rule by
few- the senate) and democracy (rule by
many-the people, the assemblies) each of
which checked and balanced the other.
 In England, the idea of functional separation/
division of powers emerged as a result of the
struggle between the Crown and the
Parliament in the 17th century.
 The law making power was the monopoly of the
parliament
 The power of executing/ applying the law to
particular cases was the domain of the crown.
 The Bill of Rights Act 1689 established some of the
central principles of English constitutional
monarchy and separation of powers by;
 Prohibiting the crown from suspending or executing
laws without the consent of the parliament.
 making parliamentary consent necessary for
the crown to raise revenue (impose taxes) and
to maintain a standing army
 Making the election of MPs free (the crown
shall have no role in the process and persons
holding positions under the crown or receive
pension there from were in illegible for
election to the house of commons)
 Guaranteeing independence of the judiciary,
(judges shall remain in office during good
behaviour and only be removed by the
parliament)
2.3 Executive and Legislative Powers in
Parliamentary and Presidential Systems
Basic Distinctions
 The chief executive (the president) is elected
separately from the MPs
 While in parliamentary system, the Prime
Minister is elected by the parliament from
among its members (the party holding the
majority seat)
 The PM could be removed from his/her post by the
legislature by a no confidence vote
 The president’s tenure is not dependent on
parliamentary approval (independent from
parliament/ majority party)
 The president is the head of govt as well as the
head of state, while the PM is the head of govt only
 The president may be from a party other than the
one holding majority seat in the parliament
 The PM and his/her cabinet are from the majority party
and are controlled by the latter
 The PM and ministers remain members of the
parliament and play a greater role in shaping its
legislative agenda.
 The PM controls the parliament through his party and
his power to dissolve the parliament (call new elections)
 The president does not have such powers, but may veto
legislations unless they are passed special majority (Ex
USA, 2/3 majority)
 Presidential systems represent higher degree of
separation of powers between the legislature and
the executive
 Parliamentary systems, on the other hand, are
characterised by greater fusion of these powers/
weak separation/
 When the president lacks the support of the
legislature, the system may face deadlock/
paralysis----frustration and even constitutional
breakdown, ex Venezuela in 2015.
 Parliamentary systems, on the other hand, are less
likely to face such deadlocks
 Some presidential systems/ constitutions try to
address this issue by giving the president more
legislative powers
 Ex, power to initiate laws or exclusive power to
initiate laws on certain matters; power to make
laws unless rejected by the parliament;
independent power to appoint govt officials and
power to declare state of emergency.
 Between these systems, other intermidiate forms of govt.
 Semi-parliamentarism (where the legislative power is more
prominent, ex Germany)
Federal Republic of Germany
 Legislature, bicameral The Budestag (directly elected by the
people) and the Bundesrat (representatives of the
Laenders)
 Each Land shall have at least three votes; Laender with
more than two million inhabitants shall have four, Laender
with more than six million inhabitants shall have five votes.
 Every Land may delegate as many members as
it has votes. The votes of each Land may be
given only as a block vote and only by
members present or their representatives.
 The German Basic Law creates two executive
offices, the president and the chancellor
 The president is the head of state, and has a
non-partisan role
 He/she is elected by the Federal Convention, the
Bundestag and representatives of the Laenders, chaired by
the president of the Bundestag.
 The Federal President may not be a member of the
Government nor of a legislative body of the Federation or
a Land.
 The Federal President shall represent the Federation in
matters concerning international law.
 He shall conclude treaties with foreign states on behalf of
the Federation.
 He shall accredit and receive the envoys.
 The Federal President shall appoint and
dismiss the federal judges and the federal
officials unless otherwise determined by law.
 He shall exercise the right of pardon on behalf
of the Federation in individual cases.
 He may delegate these powers to other
authorities.
 The Bundestag or the Bundesrat may impeach
the Federal President before the Federal
Constitutional Court on account of wilful
violation of the Basic Law or any other federal
law.
 The motion for impeachment must be brought
in by at least one-quarter of the members of
the Bundestag or one-quarter of the votes of
the Bundesrat.
 The decision to impeach shall require the majority
of two-thirds of the members of the Bundestag or
of two-thirds of the votes of the Bundesrat.
 The prosecution shall be conducted by a person
commissioned by the impeaching body.
 If the Federal Constitutional Court finds that the
Federal President is guilty of a wilful violation of
the Basic Law or of any other federal law, it may
declare him to have forfeited his office.
 After the institution of impeachment
proceedings, the Federal Constitutional Court
may, by interim order, determine that the
Federal President is prevented from
performing the duties of his office.
 The Federal Government shall consist of the
Federal Chancellor and the Federal Ministers.
 The Federal Chancellor shall be elected by the
Bundestag on the proposal of the Federal
President.
 The person who has received the votes of the
majority of the members of the Bundestag
shall be elected. He shall be appointed by the
Federal President.
 If the person nominated is not elected, the Bundestag
may, within fourteen days after the ballot, elect a Federal
Chancellor by more than one half of its members.
 If the Federal Chancellor is not elected within this time
limit a new ballot shall take place immediately, in which
the person who receives most votes shall be elected.
 If the person elected receives the votes of the majority of
the members of the Bundestag the Federal President
must, within 7 days after the election, appoint him.
 If the person elected does not obtain this majority
the Federal President must, within seven days, either
appoint him or dissolve the Bundestag.
 The Federal Ministers shall be appointed and
dismissed by the Federal President upon the
proposal of the Federal Chancellor.
 The Federal Chancellor shall conduct its business in
accordance with Standing Orders (Rules of
Procedure) adopted by the Federal Government and
approved by the Federal President.
 The Bundestag may express its lack of confidence
in the Federal Chancellor only by electing a
successor with the majority of its members and
submitting a request to the Federal President for
the dismissal of the Federal Chancellor.
 The Federal President must comply with the
request and appoint the person elected.
 There must be an interval of 48 hours between
the motion and the election.
 If a motion of the Federal Chancellor to receive a vote
of confidence does not obtain the support of the
majority of the members of the Bundestag, the Federal
President may, upon the proposal of the Federal
Chancellor, dissolve the Bundestag within 21 days.
 The right of dissolution shall lapse as soon as the
Bundestag, with the majority of its members, elects
another Federal Chancellor.
 There must be an interval of 48 hours between the
introduction of, and the vote on, the motion.
 Semi-presidentialism (where the executive
power is more prominent, ex RSA).
 The president is appointed by parliament (the
National Assembly), the council of provinces
has no role
 The president is both the head of state and
govt
 He/she may be impeached by a 2/3 majority of
the NA
 France, executive power is divided between
the president (directly elected, head of state)
and
 The prime minister (appointed by the
president, with the approval of the
parliament, head of govt)
 Where the two are from different parties, the
PM has more power/ control than usual on
domestic matters
 The parliament is bicameral, (the National
Assembly, directly elected by the people) and
 The senate (indirectly elected/ by provincial
councils)
 Where the two couldn’t agree on a law, the NA
has a final say
 The NA may dissolve the govt through no
confidence vote or by refusing to approve/
support govt programs
Switzerland
Legislature (the Federal Parliament)
 Subject to the rights of the People and the
Cantons, the Federal Parliament is the
supreme authority of the Confederation.
 The Federal parliament comprises two
chambers, the HR and the Senate;
 Both chambers shall be of equal standing.
 The HR (National Council) is composed of 200
representatives of the People (elected directly
by the People according to a system of
proportional representation.
 The seats are allocated to the Cantons
according to their relative populations.
 Each Canton has at least one seat.
 The Senate (Council of States) is composed of
46 representatives of the Cantons.
 The Cantons of Obwalden, Nidwalden, Basel-Stadt,
Basel-Landschaft, Appenzell Ausserrhoden and
Appenzell Innerrhoden each elect one representative;
 the other Cantons each elect two representatives.
 The Cantons determine the rules for the election of
their representatives to the Council of State
 The proceedings of the HR and the Senate take place
separately.
 Decisions of the Federal Parliament require the
agreement of both Chambers.
The Executive Federal Council/ Government
 The Federal govt/Council is the supreme governing and
executive authority of the Confederation.
 The Federal Council has seven members.
 The members of the Federal Council are elected by the
Federal Parliament following each general election to
the HR.
 They are elected for a term of office of four years.
 Any Swiss citizen eligible for election to the HR may be
elected to the Federal Council/govt.
 In electing members of the Federal govt, care must
be taken to ensure that the various geographical
and language regions (German, French, Italian) of
the country are appropriately represented.
 The Federal govt is organised into Departments/
ministries;
 Each Department is headed by a member of the
Federal Council.
 The Federal Council reaches its decisions as a
collegial/collective body.
 The Federal Council submits drafts of Federal
Assembly legislation to the Federal Assembly.
 The Federal Council enacts legislative
provisions in the form of ordinances, provided
it has the authority to do so under the
Constitution or the law.
 It ensures the implementation of legislation,
the resolutions of the Federal parliament and
the judgments of federal judicial authorities.
 The President of the Confederation chairs the
Federal Council.
 The President and the Vice-President of the
Federal Council are elected by the Federal
parliament from the members of the Federal
Council for a term of office of one year.
 Re-election for the following year is not
permitted. The President may not be elected
Vice-President for the following year.
Separation of Powers and the Judiciary
 Independence of the judiciary
 Appointment
 appointed/ elected by the parliament
(Switzerland, by the president (RSA),
nominated by the president and confirmed by
the senate (USA), the president (Germany)
 State court judges elected by popular vote
(USA)
 Life time appointment unless impeached/
removed for incompetence, bribery, violation
of the constitution or other law
 Regular courts vs administrative /specialized
courts
Delegation of legislative powers
 What does it mean?
 Why delegation?
 Limits/restrictions;
 The US supreme court has held that congress
cannot delegate its entire legislative mandate,
legislative reserve.
 It must at least enact a law that sets out intelligible
principles to guide the agency/ department
 On the other hand, the UK, Australia
(Parliamentary systems) recognize unlimited
delegation
 Germany, the legislature must enact laws on
fundamental normative areas which affect
basic rights
 In regulatory programs/ issues/ it allows broad
delegation.
Electoral Systems
 Are systems that translate the votes cast in a
general election into seats won by parties and
candidates.
 The key variables are the electoral formula
used (i.e., whether the system is majoritarian
or proportional, and the district magnitude
(how many members of parliament that
district elects).
 The administrative aspects of elections (such
as the distribution of polling places, the
nomination of candidates, the registration of
voters, who runs the elections and so on), are
also of critical importance,
 The possible advantages of any given electoral
system will be undermined unless due
attention is paid to these issues.
The Importance of Electoral Systems
 The choice an Electoral system can shape the
rules of the game under which democracy is
practised,
 Because an electoral system can effectively
determine who is elected and which party
gains power
 In addition, if an electoral system is not
considered “fair” and does not allow the
opposition to feel that they have the chance
to win next time around,
 an electoral system may encourage losers to
work outside the system,
 use non-democratic, confrontational and even
violent tactics.
 However, it is important to note that a given electoral
system will not necessarily work the same way in
different countries.
 The effects of an electoral system depends, to a large
extent, upon the socio-political context in which it is
used.
 These effects/ consequences depend upon factors such
as;
 how a society is structured in terms of ideological,
religious, ethnic, racial, regional, linguistic, or class
divisions;
 whether the country is an established democracy,
a transitional democracy, or a new democracy;
 whether there is an established party system,
whether parties are embryonic and unformed,
and how many “serious” parties there are; and
 whether a particular party’s supporters are
geographically concentrated together, or
dispersed over a wide area.
Objectives of a Democratic Electoral System
A. Ensuring a Representative Parliament
Representation may take at least three forms;
 First, geographical representation, i.e., that
each region, be it a town or a city, a province
or an electoral district, has members of
parliament whom they choose and who are
ultimately accountable to their area.
 Second, a parliament should be functionally
representative of the party-political situation
that exists within the country.
 Also the representation not only of political
parties but also of independent MPs,
 an effective parliament should adequately
reflect the ideological divisions within society.
 Third descriptive representation which implies
that parliament is, to some degree, a “mirror of
the nation” which should look, feel, think, and act
in a way which reflects the people as a whole.
 An adequately descriptively representative
parliament would include both men and women,
the young and old, the wealthy and poor, and
reflect the different religious affiliations, linguistic
communities and ethnic groups within a society.
B. Making Elections Accessible and Meaningful
 Elections are well and good, but they may mean
little to people if it is difficult to vote or if, at the end
of the day, their vote makes no difference to the
way the nation is governed.
 The “ease of voting” is determined by factors such
as how complex the ballot paper is, how easy it is
for the voter to get to a polling place, how up to
date the electoral roll is, and how confident the
voter will be that his or her ballot is secret.
 The meaningfulness of elections is determined
by how powerful the elected parliament
actually is.
 Hollow or choiceless elections in authoritarian
systems, where parliaments have little real
influence on the formation of governments or
on government policy are meaningless.
C. Providing Incentives for Conciliation
 Electoral systems can be seen not only as ways to
constitute governing bodies, but also as a tool of conflict
management within a society.
 Some systems, in some circumstances, will encourage
parties to make inclusive appeals for electoral support
outside their own core vote base;
 For instance, even though a party draws its support
primarily from black voters, a particular electoral system
may give it the incentive to appeal to white, or other,
voters.
D. Promoting a Parliamentary Opposition
 Effective governance relies not only upon those
“in power” but, almost as much, on those who
sit in parliament but are out of government.
 The electoral system should help ensure the
presence of a viable parliamentary opposition
grouping which can critically assess legislation,
safeguard minority rights, and represent their
constituents effectively.
 Opposition groupings should have enough
parliamentary members to be effective, assuming
they warrant these members by their performance
at the ballot box, and should be able to realistically
present an alternative to the current administration.
 Obviously the strength of parliamentary opposition
depends on many factors other than the choice of
electoral system, but if the system itself makes
parliamentary opposition impotent, democratic
governance is inherently weakened.
 At the same time, the electoral system should
hinder the development of a “winner takes
all” attitude which leaves rulers blind to other
views and the needs and desires of opposition
voters, and in which both elections and
government itself are seen as zero-sum
contests.
E. Cost and Administrative Capacity
 Elections do not take place on the pages of academic
books but in the real world, and for this reason the
choice of any electoral system is, to some degree,
dependent on the cost and administrative capacities
of the country involved.
 For example, a poor nation may not be able to afford
the multiple elections required under a Two-Round
System, or be able to easily administer a complicated
preferential vote count.
Major Types of Electoral Systems
1. Plurality-Majority (Majoritarian) Systems
 The distinguishing features of plurality-majority
systems is that they almost always use ‘single-
member’ districts.
 In a First Past the Post system (FPTP), sometimes
known as a plurality single-member district system,
the winner is the candidate with the most votes, but
not necessarily an absolute majority (50+) of the
votes.
• When this system is used in ‘multi-member’
districts it becomes the Block Vote. Voters
have as many votes as there are seats to be
filled, and the highest-polling candidates fill
the positions regardless of the percentage of
the votes they actually achieve.
Party Block Vote
 As in FPTP, voters usually have a single vote but
unlike FPTP there are multi-member districts and
voters choose between party lists of candidates
rather than individuals.
 The party which wins most votes takes all the seats
in the district, and its entire list of candidates is duly
elected.
 As in FPTP, there is no requirement to win an
absolute majority of the votes.
Alternative Vote
 Is a relatively unusual electoral system, which today is used only
in Australia and, in a modified form, in Nauru.
 Like elections under a FPTP system, AV elections are usually held
in single-member districts. However, AV gives voters
considerably more options than FPTP when marking their ballot.
 Under AV electors rank the candidates in the order of their
choice, by marking “1” for their favourite candidate, “2” for their
second choice, “3” for their third choice, and so on.
 The system thus enables voters to express their preferences
between candidates, rather than simply their first choice. For
this reason, it is often known as “preferential voting”.
 Like FPTP or Two-Round Systems, a candidate who has won an
absolute majority of votes (50% plus one) is immediately
elected.
 However, if no candidate has an absolute majority, under AV
the candidate with the lowest number of first preferences is
“eliminated” from the count, and his or her ballots are
examined for their second preferences.
 These are then assigned to the remaining candidates in the
order as marked on the ballot. This process is repeated until
one candidate has an absolute majority, and is declared duly
elected.
 For this reason, AV is usually classified as a majoritarian
system, as a candidate requires an absolute majority,
and not just a plurality, of all votes cast to secure a seat.
 One advantage of transferring ballots is that it enables
the votes of several aligned candidates to accumulate,
so that diverse but related interests can be combined to
win representation.
 AV also enables supporters of candidates who have
little hope of being elected to influence, via their
second and later preferences, the election of a major
candidate.
 For this reason, it is sometimes argued that AV is
the best system for dealing with elections in deeply
divided societies,
 as it can compel candidates to seek not only the
votes of their own supporters but also the “second
preferences” of others.
 To attract these preferences, candidates must make
broadly-based, centrist appeals to all interests, and
not focus on narrower sectarian or extremist
issues.
2. Semi-PR Systems
 Semi-PR systems are those which translate
votes cast into seats won in a way that falls
somewhere in between the proportionality
(PR) systems and the majoritarianism of
plurality-majority systems.
 There are two main types of semi-PR systems:
the Single Non-Transferable Vote, and Parallel
systems.
 Under the Single Non-Transferable Vote, each
elector has one vote but there are multiple seats in
each district to be filled.
 Those candidates with the highest vote totals fill
these positions. This means that in, for example, a
four member district, one would need just over 20%
of the vote to ensure election.
 Conversely, a large party with 75% of the vote
spread equally among three candidates is likely to
take three of the four seats.
 As of 1997, SNTV is used for parliamentary elections in
Jordan and Vanuatu, and for 125 out of 161 seats in the
Taiwanese parliament, but its most well known
application was for Japanese lower-house elections from
1948–1993.
 The most important difference between SNTV and the
plurality-majority systems described earlier is that SNTV
is better able to facilitate minority party representation.
 The larger the district magnitude (the number of seats
in the constituency), the more proportional the system
becomes.
 On the negative side SNTV, as a semi-PR system, is
still not able to guarantee that the overall
parliamentary results will be proportional.
 Small parties with say around 10% support, whose
votes are widely dispersed, may not win any seats,
 and larger parties can receive a substantial “seat
bonus’’/ difference b/n popular vote and seats
won/ which propels a national plurality of the vote
into an absolute parliamentary majority.
 As SNTV gives voters only one vote, the system
contains few incentives for political parties to appeal
to a broad spectrum of voters in an accommodatory
manner.
 As long as they have a reasonable core vote, they can
win seats without needing to appeal to “outsiders”.
 Furthermore, the fact that multiple candidates of the
same party are competing for the same votes means
that internal party fragmentation and discord can be
accentuated.
Parallel Systems
 Parallel (or mixed) systems use both PR lists and “winner-take-
all” districts
 but, unlike MMP systems, the PR lists do not compensate for
any disproportionality within the majoritarian districts.
 Parallel systems are currently used in 20 countries and are a
feature of electoral system design in the 1990s – perhaps
because, on the face of it, they appear to combine the benefits
of PR lists with single-member district representation.
 The balance between the number of proportional seats and
the number of plurality-majority seats varies greatly.
 Only in Andorra and Russia is there a 50/50 split.
 At one extreme, 88% of Tunisia’s MPs are elected by
the Party Block, with only 19 members coming from
PR lists.
 At the opposite end, 113 of Somalia’s seats are
proportionally elected and only 10 are based on First
Past the Post districts.
 However, in most cases the balance is much closer.
For example, Japan elects 60% of MPs from single-
member districts, with the rest coming from PR lists.
 Parallel systems give mixed results (between straight
plurality-majority and PR systems), they do give the
voter both a district choice and a party choice on the
national level, because they require two ballots.
 A second advantage is that, when there are enough PR
seats, small minority parties who have been
unsuccessful in the plurality-majority elections can still
be rewarded for their votes by winning seats in the
proportional allocation.
 Lastly, this hybrid system should, in theory, fragment the
party system less than a pure PR electoral system.
 But one downside of this system is that two classes of MPs can
be created, one group with districts to look after who are
beholden to their local electorate, and a second group chosen
from the party lists, without formal constituency ties, who are
primarily beholden to their party leaders.
 In addition, the fact that Parallel systems fail to guarantee
overall proportionality means that some parties may still be
shut out of representation despite winning substantial
numbers of votes.
 Lastly, parallel systems are also relatively complex, and can
leave voters confused as to the nature and operation of the
electoral system.
3. Proportional Representation (PR) Systems
 Proportional Representation (PR) systems are
a common choice in many new democracies.
Over 20 established democracies, and just
under half of all “free” democracies, use some
variant of PR
 PR systems are dominant in Latin America and
Western Europe, and make up a third of all the
systems in Africa.
 The rationale underpinning all PR systems is to
consciously translate a party’s share of the national
votes into a corresponding proportion of
parliamentary seats.
 Seats are often allocated within regionally-based
multi-member districts,
 But in a number of countries (e.g. Germany, Namibia,
Israel, Netherlands, Denmark, South Africa, and New
Zealand) the parliamentary seat distribution is
effectively determined by the overall national vote.
List PR
 Most of the 75 PR systems use some form of List PR;
only nine examples use MMP or STV methods.
 In its most simple form, List PR involves each party
presenting a list of candidates to the electorate,
 Voters vote for a party, and parties receive seats in
proportion to their overall share of the national vote.
 Winning candidates are taken from the lists in order
of their position on the lists, as determined by the
party.
 The majority of List PR systems in the world are
closed, meaning that the order of candidates to
be elected is fixed by the party itself,
 and voters are not able to express a preference
for a particular candidate.
 Many of the List PR systems used in continental
Europe use open lists, in which voters can
indicate not just their favoured party, but also
their favoured candidate.
 In compulsory open lists (Finland) voters must vote
for candidates, and the order in which candidates
are elected is determined by the number of
individual votes they receive.
 While this gives voters much greater freedom over
their choice of candidate, it also has some negative
effects, because candidates from the same party are
competing with each other for votes,
 This form of open list can lead to intra-party conflict
and fragmentation.
The Single Transferable Vote (STV)
 The core principles of the system were
independently invented in the nineteenth
century by Thomas Hare in Britain and Carl
Andræ in Denmark.
 STV uses multi-member districts, with voters
ranking candidates in order of preference on
the ballot paper in the same manner as the
Alternative Vote.
 In most cases this preference marking is optional,
and voters are not required to rank-order all
candidates; if they wish they can mark only one.
 After the total number of first-preference votes are
tallied, the count begins by establishing the “quota”
of votes required for the election of a single
candidate.
 The quota is calculated by the simple formula:
Quota = votes } +1
seats }
 However, the system is often criticized on the
grounds that preference voting is unfamiliar in
many societies, and demands, at the very
least, a degree of literacy and numeracy.
 The intricacies of an STV count are themselves
quite complex, which is also seen as being a
drawback
 The first stage of the count is to ascertain the total number
of first-preference votes for each candidate.
 Any candidate who has more first preferences than the
quota is immediately elected.
 If no-one has achieved the quota, the candidate with the
lowest number of first preferences is eliminated, with his
or her second preferences being redistributed to the
candidates left in the race.
 At the same time, the surplus votes of elected candidates
(i.e., those votes above the quota) are redistributed
according to the second preferences on the ballot papers.
Mixed Member Proportional (MMP)
 Mixed Member Proportional (MMP) systems, as used in
Germany, New Zealand, Bolivia, Italy, Mexico, Venezuela,
and Hungary, attempt to combine the positive attributes
of both majoritarian and PR electoral systems.
 A proportion of the parliament (roughly half in the cases
of Germany, Bolivia, and Venezuela) is elected by
plurality-majority methods, usually from single-member
districts, while the remainder is constituted by PR lists.
 This structure might on the surface appear similar
to that of the Parallel systems described earlier; but
the crucial distinction is that under MMP the list PR
seats compensate for any disproportionality
produced by the district seat results.
 For example, if one party wins 10% of the national
votes but no district seats, then they would be
awarded enough seats from the PR lists to bring
their representation up to approximately 10% of
the parliament.
Advantages of the PR System
 It avoids the anomalous results of plurality-
majority systems and facilitates a more
representative legislature.
 For many new democracies, particularly those
which face deep societal divisions, the
inclusion of all significant groups in the
parliament can be a near-essential condition
for democratic consolidation.
 It faithfully translates votes cast into seats
won, and thus avoid some of the more
destabilising and “unfair” results thrown up by
plurality-majority electoral systems.
 It facilitates minority parties’ access to
representation, unless the threshold is unduly
high, or the district magnitude is unusually
low.
 It encourages parties to present inclusive and
socially diverse lists of candidates. The incentive
under List PR systems is to maximize your national
vote, regardless of where those votes might come
from.
 It restricts the growth of “regional fiefdoms”,
because PR systems reward minority parties with a
minority of the seats, they are less likely to lead to
situations where a single party holds all the seats in
a given province or district.
 It leads to more efficient governments, the
rationale behind this claim is that regular switches
in government between two ideologically polarized
parties, as can happen in FPTP systems, makes
long-term economic planning more difficult, while
broad PR coalition governments help engender a
stability and coherence in decision-making which
allows for national development.
 It makes power-sharing between parties and
interest groups more feasible.
Disadvantages
The most cited arguments against using PR are that it leads
to:
 Coalition governments with their disadvantages;
legislative gridlock and the subsequent inability to carry
out coherent policies at a time of most pressing need.
 A destabilising fragmentation of the party system; PR
reflects and facilitates a fragmentation of the party
system. It is possible that such polarized pluralism can
allow tiny minority parties to hold larger parties to
ransom in coalition negotiations
 A platform for extremist parties; PR systems
are often criticized for giving a parliamentary
stage to extremist parties of the left or the
right.
 It has been argued that the collapse of
Weimar Germany was in part due to the way
in which the PR electoral system gave a toe-
hold to extremist groups (National Socialist
Party, NAZI).
 Governing coalitions which have insufficient common
ground – in terms of either their policies or their
supporter base. These “coalitions of convenience” are
contrasted with stronger “coalitions of commitment”
produced by other systems.
 A weakening of the link between MPs and their
constituents. When simple List PR is used, and seats are
allocated in one huge national constituency as in
Namibia or Israel, the system is often criticized for
destroying the link between voters and their member of
parliament.
 Voters have no ability to determine the identity of the persons
who will represent them, and no identifiable representative
for their town, district, or village; nor do they have the ability
to easily reject an individual if they feel he or she has behaved
poorly in office.
 On a related point, national closed-list PR is criticized for
leaving too much power entrenched within party
headquarters and wielded by senior party leadership.
 A candidate’s position on the party list, and therefore his or
her likelihood of success, is dependent on currying favour with
party bosses, whose relationship with the electorate is of
secondary importance.
The role of the upper house in bicameral legis
 The phenomenon of the bicameral system has two
very different historic origins. It was first
established in England, and later in the United
States of America and France.
 Multi-chamber systems were first created in
unitary states as a method of representing various
estates. In the Middle Ages, sovereigns consulted
their vassals about matters such as waging war and
taxation.
 Firstly, because in the fourteenth century, a system with only
two chambers was created there: one chamber in which
debate took place with the feudal lords (both spiritual and
temporal) and a chamber where the citizens (commoners)
from the counties and boroughs, including the gentry were
represented.
 In addition, England was unusual because the parliament
gradually became more powerful as a power other than the
Crown.
 The bicameral system thus became an enduring institution in
which both chambers could develop their own right to exist
and their own legitimacy.
 As representative systems evolved and
constitutions were written, theoretical
justifications were/are provided to defend a two-
house legislature. These are stability; and quality
assurance.
 Initially, all three justifications were employed in
constitutional debates of both unitary and federal
systems. The United States and France serve as
examples of the parallel reasoning applied to
bicameral legislatures.
 (1) a senate doubles the certainty that the government will
not neglect its tasks because it provides an extra check on it;
 (2) a senate can curb the other chamber if it gives into the
urge to follow sudden and pronounced emotional reactions;
 (3) a senate can meet the need for knowledge about the
laws and the interests of the country, and thus help to avoid
mistakes; and
 (4) the senate can be a factor for stability that ensures
continuity in the administration of the country, thus
reinforcing the trust of other counties and avoiding too
many laws being made and laws being changed too quickly.
• Montesquieu offered a "social justification" for a second
house, "to permit a better representation of the different
corps of the nation" (quoted in Trivelli, 1975: 30). The
second house was designed to represent the landed
aristocracy and the rising commercial and industrial
bourgeoisie.
• Montesquieu also cited the necessity of a bicameral
legislature to avoid "the tyranny of a single chamber." Upper
houses were composed of older, wealthier individuals,
selected by indirect suffrage for long terms of office, who
served to restrain the lower house from sudden changes in
outlook, thereby providing legislative stability.
• Finally, improvement of legislative work was
also historically recognized as an important
justification for bicameral legislative systems.
Second houses function as a quality control
mechanism. A second examination of
legislation minimizes the likelihood of
legislative error (Trivelli, 1975: 31-32).
Composition
 In principle, Senators are chosen in four ways:
by direct election, by indirect election, by
appointment, or ex officio.
 Appointment; This only applies to the British
Upper House and the Canadian senate. Since
1999, the British Upper House has mainly
consisted of members appointed for their
lifetime (life peers).
 Appointments are made by the Crown on a proposal
from the Prime Minister. Since 1999, cooptation is
also the way in which hereditary peers in the House of
Lords are replaced if a vacancy arises.
 The members of the Canadian senate are formally
appointed by the Governor General, but in practice by
the Prime Minister.
 The members of the German Bundesrat are appointed
by the governments of the Länder from their ranks
and they also act on behalf of their government.
 In Belgium, since May 2014, most members of the senate are
appointed by and from the Community parliaments and the
rest are co-opted by the other members.
 In Ireland, eleven of the sixty senators are appointed by the
President, which usually guarantees a government majority in
the senate.
 In Italy, the President can appoint five senators for life as a
recompense for exceptional merit in the social, scientific,
artistic or literary sphere.
 Former presidents can take up a seat qualitate qua in the
Italian senate. The same applies to the bishops in the British
Upper House.
 In most senates however, members are
elected, directly or indirectly.
 senators are directly elected in Japan, Italy,
Poland, the Czech Republic, Australia and
Switzerland, US, Romania.
 Elsewhere, a mix of direct and indirect
elections have been used (for example in
Spain and Ireland) or only indirect elections,
as in France, Austria, Belgium and Slovenia.
 Ireland (60 senators) 43 (divided between 5
sectors of society), indirectly elected by a
panel consisting of members of the new lower
house, the outgoing upper house, and local
councils,
 6 directly elected by graduates of the two
main universities (3 each).
 The other 11 are appointed by the president.
 Slovenia (40 senators) Indirectly elected by
elected representatives of interest groups:
 22 by local representatives,
 6 from the non-profit sectors,
 4 from employers’ representatives,
 4 from workers’ representatives,
 4 for farmers, craftsmen/ women, merchants
and liberal professions.
The Role of the Second House in Bicameral Parls
 The phenomenon of the bicameral system has
two very different historic origins.
 It was first established in England, in the 14th C:
upper house which represented the feudal
lords and a lower house where the citizens
(commoners were represented.
 And Later in the United States of America and
France.
 Multi-chamber systems were first created in unitary
states as a method of representing various estates.
 In the Middle Ages, sovereigns consulted their vassals
about matters such as waging war and taxation.
 The growing requirements of the royal coffers resulted
in the circle of those who had to be consulted being
gradually expanded, and frequently, different
consultative bodies existed side by side for the various
social estates.
 Sweden, for example, had four separate
‘chambers’ for such consultations: for the nobles,
spiritual representatives, citizens and peasants.
 In the course of time - with the rise of absolutism
- this type of consultation fell out of use in most
countries.
 England was unusual because the parliament
gradually became more powerful as a power
other than the Crown.
 The English bicameral system thus became an
enduring institution in which both chambers could
develop their own right to exist and their own
legitimacy.
 The power of England and the stability of its
political institutions meant that the country often
served as a model in theories of good governance
during the seventeenth and eighteenth centuries.
 That also applied for the English bicameral system.
 In old confederal systems (German confederation (1815-
1886), the Swiss confederation (1291-1798) and in the
Republic of the United Netherlands (1579-1795)), there
was just one chamber (never two or more chambers
involved).
 However, when taking important decisions, there were
often requirements for unanimity or qualified majorities.
 In the States General of the Dutch Republic, decisions
could only be taken with unanimity about matters such as
war, peace, truces, or financial contributions (Article IX,
Union of Utrecht).
 And when the 13 English colonies in North America
formed a confederation at the end of the 18th century,
they set up one joint Congress, in which each state
had one vote and in which, for important decisions, a
majority of nine states was required (Articles of
Confederation, Article 9, para. 6).
 As representative systems evolved and constitutions
were written, theoretical justifications were/are
provided to defend a two-house legislature.
Justifications
 Montesquieu (regarding English parliament) offered a
"social justification" for a second house, "to permit a
better representation of the different corps of the
nation" (quoted in Trivelli, 1975: 30).
 The second house was designed to represent the
landed aristocracy and the rising commercial and
industrial bourgeoisie.
 He also cited the necessity of a bicameral legislature
to avoid "the tyranny of a single chamber."
 Upper houses were composed of older, wealthier
individuals, selected by indirect suffrage for long terms
of office, who served to restrain the lower house from
sudden changes in outlook, thereby providing legislative
stability.
 Finally, improvement of legislative work was also
historically recognized as an important justification for
bicameral legislative systems.
 Second houses function as a quality control mechanism.
A second examination of legislation minimizes the
likelihood of legislative error.
Composition
 In principle, Senators are chosen in four ways:
by direct election, by indirect election, by
appointment, or ex officio.
 Members of the British Upper House and the
Canadian senate are appointed by the Crown/
Governor General on a proposal from the
Prime Minister.
 The members of the Canadian senate are formally
appointed by the Governor General, but in practice by
the Prime Minister.
 The members of the German Bundesrat are appointed
by the governments of the Länder from their ranks
and they also act on behalf of their government.
 In Belgium, since May 2014, most members of the
senate are appointed by and from the Community
parliaments and the rest are co-opted by the other
members.
 In Ireland, eleven of the sixty senators are
appointed by the President, which usually
guarantees a government majority in the senate.
 In Italy, the President can appoint five senators
for life as a recompense for exceptional merit in
the social, scientific, artistic or literary sphere.
 Former presidents can take up a seat qualitate
qua in the Italian senate. The same applies to the
bishops in the British Upper House.
 In most senates however, members are elected,
directly or indirectly.
 All senators are directly elected in Japan, Italy,
Poland, the Czech Republic, Australia and
Switzerland, USA.
• Elsewhere, a mix of direct and indirect elections
have been used (for example in Spain and Ireland)
or
• All are indirectly elected, as in France, Austria,
Belgium and Slovenia.
 Symmetric bicameralism in the composition of the
chambers, Ex Romanian senate (direct election)
 Asymmetric bicameralism in the composition of the
chambers,
a/ Territorial representation (most second chambers),
b/ Personal expertise (university senators Ireland), Czech
senate, and the house of lords UK and
c/ Representation of other interests, ex Irish Senate
(Senators nominated by five panels representing
vocational interests) and Slovenian National Council
Powers of senates
• Legislative powers
 For all senates, participation in the creation of
legislation is the most important task.
 Usually a senate has a power of veto in that regard.
 It may be an absolute veto - the consent of the senate is
a requirement - or a suspensory veto, where the senate
can send a proposal back (sometimes several times) to
the lower house with its comments or amendments, but
ultimately, the lower house has the final say.
 An absolute right of veto for the senate is seen mainly in
federal presidential systems (such as the US and some
South American countries).
 In countries with a parliamentary system, an absolute
right of veto is rarer, even if they are federations. The
senates in Canada, Switzerland and Australia have an
absolute right of veto for all legislation.
 For the German Bundesrat, this only applies for
amendments to the Constitution and for legislation which
affects the position of the Länder. For other legislation,
the Bundesrat only has a suspensory veto.
 In Austria, the senate only has an absolute right of
veto for changes to the constitutional rules about
the powers and responsibilities of the Länder or
about the senate itself.
 The Belgian senate only has a suspensory right of
veto and recently that has been restricted to
changes to the Constitution and some other
legislation with a constitutional character.
 The Belgian senate is no longer involved in most
legislation.
Symmetric and egalitarian bicameralism in
terms of legislative competences;
 Examples include US Senate,
 Italian Senate (under discussions for reform)
and
 Romanian Senate (abolished by referendum in
2009 but not yet in practice)
Asymmetric bicameralism in terms of legislative competences,
a/ Reflection chamber/consultative powers, examples include
Belgian Senate, Spanish Senate (one function among others)
United Kingdom’s House of Lords (one function among others).
b/ Power to initiate legislation, Most Senates, (except for the
Dutch Senate) and other second chambers in matters of finance
c/ Power to amend legislation
Czech Senate, French Senate and Polish Senate
d/ Power to adopt or reject legislation
Dutch Senate Austrian Bundesrat and German Bundesrat
 Many senates have both the right of initiative and the
right of amendment.
 In many countries, the senate must put a bill on its
agenda or debate it within a given period, and if it fails
to do so, the bill is deemed to have been adopted.
 Some senates are not involved in budgets and other
financial proposals at all (for example in the Czech
Republic, Belgium and Austria) and
 Some senates can amend ordinary bills, but not budget
bills (e.g. United Kingdom and Ireland) or reject them
(Poland).
Oversight of the executive power
 Most authors argue that, in a parliamentary
system, the lower house - not the senate - is the
place where governments should present
themselves and where they can be dismissed.
 Accordingly, most senates only have a right of
information, a right of inquiry and can make
recommendations to the government or express
their opinion about government actions.
 But votes of confidence in the government or
the submission of no-confidence motions is
usually reserved for the lower house.
 Three second chambers (Dutch Senate, Italian
Senate and Romanian Senate) have the power
to issue a vote of no confidence vis-à-vis the
executive.
 Other second chambers may supervise the
executive via other means, such as
discussions/ rejections of government bills or
dialogue.
 In Switzerland, the position of both chambers is
identical (Art. 148 of the Constitution), but there,
neither chamber can dismiss the government.
 Although the Australian senate cannot dismiss the
government via a motion of no confidence, it can
achieve the same end by approving or rejecting
budgets, as it did in 1974 and 1975.
 In many other countries, the senate is either not
involved with the budget or its veto right on budgets
is restricted.
 On the other hand, most senates cannot be
dissolved, or only at the same time as the
dissolution of the lower house.
 In Poland, dissolution of the lower house
automatically entails dissolution of the senate.
 In Italy and Spain, though the Constitutions allow
separate dissolution of the chambers, in practice
both chambers are elected at the same time and
therefore dissolution only takes place
simultaneously for both chambers.
 In Australia, simultaneous dissolution of both
chambers is a possibility if no agreement can
be reached about a bill.
 In Italy and - to a lesser extent – in Japan the
senate plays a role in the formation of
governments.
 The Italian constitution provides that the
government must enjoy the confidence of
both chambers.
 Here (Italy), a new government must present
itself in both chambers within ten days after
taking office in order expressly to obtain that
confidence.
 In Japan, where the lower house appoints the
Prime Minister, the senate has to consent to the
appointment, but - in case of a difference of
opinion - ultimately the lower house decides. The
Japanese senate cannot dismiss the government.
Constitutional watchdog
 All second chambers in EU Member States
except for the Slovenian National Council have
this role, i.e., constitutional amendments
require senate approval.
FDRE House of Federation
Composition
 Representatives of nationalities, each
nationality shall have one representative and
an additional one representative for each one
million population.
 Members of the HF may be elected by regional
parliaments (state councils) or by directly by
the people.
Powers
 Decide on issues relating to the right to self
determination
 Promote equality of nationalities and unity of
the country/ the people
 Resolve disputes and misunderstandings
between federated states.
 Determine the division of revenues from concurrent
sources and subsidies to be provided to states
 Decide on constitutional amendments
 No legislative power except initiation of laws
 Interpret the constitution/ adjudicate constitutional
disputes
 The rationale for vesting the power of interpreting the
constitution in the HoF, and not in the regular judiciary or
a constitutional court as can be gathered from the
minutes of the Constitutional Assembly emanate from
two sources.
 One is related to the framers view of the
‘nature’ of the constitution in general and to
the role of the nationalities in particular.
 It is, in the words of the framers, ‘a political
contract’ and therefore only the authors (that
are the nationalities) should be the ones to be
vested with the power of interpreting the
constitution.
 The second reason is that empowering the judiciary or a
constitutional court may result in unnecessary ‘judicial
adventurism’ or ‘judicial activism’
 In other words the judges may, in the process of
interpreting the constitution, put their own preferences
and policy choices than those of those of the
nationalities.
 Thus the framers argued, this might result in hijacking
the very document that contains the ‘compact between
the nationalities’ to fit the judges’ own personal
philosophies.
Rule of Law
 The contrast between the rule of men and the rule
of law is first found in Plato's Statesman and Laws
and Aristotle's Politics, where the rule of law implies
both obedience to positive law and formal checks
and balances on rulers and magistrates.
 The rule of law is the principle that governmental
authority is legitimately exercised only in accordance
with written, publicly disclosed laws adopted and
enforced in accordance with established procedure.
 The principle is intended to be a safeguard
against arbitrary governance.
 In its “formal” or “thin” sense, the rule of law
requires that government officials and citizens
are bound by and act consistent with the law.
 This basic requirement entails a set of minimal
characteristics:
a/ law must be set forth in advance (be
prospective),
b/ it must be made public, be general, be clear,
be stable and certain, and
c/ be applied to everyone according to its terms.
 In the absence of these characteristics, the
rule of law cannot be satisfied.
 In its more substantive or “thicker” sense, the
concept of rule of law includes reference to
fundamental rights, democracy, and/or criteria of
justice or right.
 Thomas Aquinas defined a valid/just law as being one
that:
• is in keeping with Reason
• was established by a proper authority
• is for the purpose of achieving good
• and was properly communicated to all.
Elements
 The law must be accessible and so far as possible
intelligible, clear and predictable
 Questions of legal right and liability should ordinarily be
resolved by application of the law and not the exercise of
discretion
 The laws of the land should apply equally to all, save to
the extent that objective differences justify differentiation
 The law must afford adequate protection of fundamental
human rights
 Means must be provided for resolving, without
prohibitive cost or inordinate delay, bona fide civil
disputes which the parties themselves are unable to
resolve
 Ministers and public officers at all levels must exercise
the powers conferred on them reasonably, in good faith,
for the purpose for which the powers were conferred
and without exceeding the limits of such powers
 Adjudicative procedures provided by the state should be
fair.
Principles of Constitutional Interpretation
 Constitutional interpretation- a process of
discovering, clarifying, elaborating the
meaning of a constitutional text.
 Constitutional construction, though
concerned with the meaning of text, is not
limited to discovery of pre-existing meaning of
a constitutional text.
 It employs the imaginative vision of politics
rather than a discerning wit of judicial
judgment.
 It is essentially a creative work, and cannot be
reduced to legal form and cannot form part of
constitutional law falls outside of the
jurisdiction of courts.
 Constitutions, like other laws, are often
ambiguous, contradictory, even silent on issues
that arise and require resolution
 How judges interpret the constitution/resolve
these problems is often problematic and
controversial, because it is difficult to distinguish
legitimate interpretation from illegitimate change.
 There are numerous methods of and theories
about constitutional interpretation.
 These methods are complimentary and should
be applied in conjunction with one another.
Thus they are in a continuous interaction:
1/Textual interpretation or plain meaning rule
(Originalist approach)
 Under the textual interpretation, the most
important is the language/ text of the
Constitution.
 Although the spirit of a Constitution is to be
respected, not less than its letter, yet the spirit
is to be collected chiefly from its words.
 The view is that the text of Constitution has to
be read in the social and linguistic context in
which it was adopted.
 So far as our Supreme Court is concerned, it
has always held that there is a greater reason
in giving to its language a liberal construction
so as to include within its ambit the future
developments in various fields of human
activities than in restricting the language to
the state of things existing at the time of its
passing.
2/Taking recourse to original history or the
intention of the framers (Originalist approach)
 The critical originalist principle is that the
Constitution must be interpreted according to
the understandings made public at the time of
its drafting and ratification.
 The primary source of those understandings is
the text of the constitution, both its wording
and structure.
 Secondary sources are used to supplement
the text, historical sources are to be used to
clarify the understanding of the terms
involved and to indicate the principles that
were supposed to be embodied in them.
 The guiding principle is that the judge should
be seeking to make plain the meaning of the
term/ phrase or sentence as understood at
the time of the law’s enactment.
 However, The US Supreme Court holds that it is not
bound to accept the meaning of a provision according to
the original understanding of its makers
 Because as Justice Marshall asserts, it is the nature of the
Constitution that only its great outlines should be
marked. It is a document intended to endure for ages and
therefore, it has to be interpreted not merely on the basis
of the intention and understanding of its framers but on
the experience of the working of the Constitution to deal
effectively with current constitutional issue needing a
solution in the existing social and political context.
3/Interpretation based on principles of natural rights or
fundamental law; the preferred freedoms approach
 Also known as Teleological Interpretation
 American constitutional tradition recognises practices of
non-originalist adjudication purportedly based on natural
rights or fundamental law.
 These are widely shared and deeply held human values
which are to be gathered from the text of a written
Constitution.
 In other words, this approach is described as judicial
activism.
 This method requires identifying and taking
into consideration the aim and purpose of the
provisions and the values embodied in a
constitution.
 The fundamental values in the CON form the
foundation of a normative constitutional
jurisprudence against which legislation and
actions are evaluated (and filtered through).
4/The balancing of interests: Judicial activism
 In this process of interpretation, the court is more
concerned with weighing the competing values of a free
society.
 In the course of rendering decisions, judges are to aim at
accommodation or balancing of society’s conflicting
interests.
 The proponents of this principle of interpretation
maintain that balance should be struck so as to
maximize as many interests as possible, consistent with
the political and ethical principles.
 In a democratic society, governed by a
Constitution, such values would presumably
include equal opportunity, fair play, private
property, decentralization and local control,
democracy and individual autonomy...
 Proponents of this approach affirm that judges’
decisions ought to mirror society’s values, not
their own. In this process, they should eschew
their own personal political attitudes.
 The courts are, in a way, political institutions
in the view of the interest-balancers.
 The judicial process, although different in
form, is an indirect act of legislating.
 Every case presents a conflict of competing
interests among which a choice must be
made.
5/ Comparative Interpretation
 This refers to the process (such as prescribed
by S 39(1) of the RSA CON) which requires the
court to examine international human rights
law and the constitutional decisions of foreign
courts.
 This must be done with due regard to the
unique domestic context of the Constitution
under consideration.
 In dealing with comparative law one must bear in
mind that he/she is required to construe the national
(RSA) Constitution, and not an international
instrument or the constitution of some foreign
country,
 and that this has to be done with due regard to RSA
legal system, history and circumstances, and the
structure and language of the Constitution.
 One can derive assistance from public international
law and foreign case law, but is not bound by it.
The counter Majoritarian Difficulty
 There is a tension between the testing power
of the judiciary and the will of the people.
 Is it acceptable and legitimate for an unelected
court to thwart the democratic wishes of the
majority?
 According to some authors, the judiciary has a
situational advantage over the people at large
in listening to the voices from the margins.
 The CON must serve, amongst others, as a shield to
protect the fundamental rights of the people and to
promote the values expressed in the Constitution.
 On the other hand, however, the principles of
democracy and the separation of powers are also
some of the fundamental values underlying a
constitutional state.
 Any court involved in constitutional review has to
walk a very fine and sometimes precarious line,
policy/ political issues v legal issues.
 What are the boundaries of constitutional review/
interpretation?
 The courts may have a sacred duty to protect the
rights in the CON, but is the CON what the judges
say it is?
 The court is the guardian of constitutional rights and
values, but it is not a super legislature.
 Where to draw the line during interpretation and
application is one of the vexing questions still facing
the courts in a constitutional state.
Rights
 Moral Rights are believed to exist independently of legal
systems and governments. In the Declaration of
Independence, Jefferson’s three examples are the moral rights
to “life, liberty and the pursuit of happiness.” He claimed that
governments exist in order to secure these rights, although
they might fail to do so.
 Legal Rights depend on legal systems. Governments are
expected to enact laws that protect moral rights, they can also
grant additional rights, or not. The American government
denied women the legal right to vote until 1920. 18-year-olds
were granted the legal right to vote in 1971.
Will or Choice Theory of Rights (HLA Hart)
 According to this theory, the essence of a right
is choice or agency/ will;
 Rights are specially protected choices to
interfere with another’s freedom.
 The basis of any right is an equal right to
freedom. If there is no freedom, there would
be no need for right.
 Rights create a sphere of mini-sovereignty with
in which the rights holder can exercise and
impose his will or choice upon certain others.
 Constitutional or human rights emanate
directly from overall value of human freedom
(general rights).
Problems for the Will Theory
1. No inalienable rights: The freedom protected by rights
includes the freedom to waive any right, including
freedom to accept payment for waiving rights. Rights-
holders could bargain away any of their rights.
2. Right-holders’ cognitive capacities: having a right
requires understanding how to claim or waive it, which
infants cannot understand, nor can mentally
incapacitated adults; so, like animals, they cannot have
rights.
 Interest Theory of Rights
 Jeremy Bentham (1748-1832) initiated the interest
theory.
 Someone would have a right to something (x),
against a second person, if that person had a legal
duty to provide the first person with x.
 For example, on Bentham’s interest theory, you
have a right to vote if someone is legally required to
provide you with the opportunity to vote, and
count your ballot, and so on.
 Your having a right to something means that it is in
your interest, or is to your benefit, and someone
else has a duty to provide it.
 Someone violates your right by not doing his or her
duty to provide the thing that is in your interest.
 More recent philosophers developing the interest
theory, also known as the “benefit theory,” think
that basic moral duties to respect others’ essential
interests, such life and liberty, serve as the basis of
moral rights.
Problems for the Interest Theory
1. Limiting interests: Specifying the set of interests that
are sufficient reasons for rights is nearly impossible. The
proliferation of interest-based rights continues: welfare
rights; health-care rights; women’s rights; animal rights;
etc.
2. Third-party interests: If you promise to tend a
neighbor’s child, you have a duty, and the child has an
interest in your doing your duty; so the interest theory
says the child has a right to your care. But only the
neighbor has the right.
Human Rights
 Rights that are held by every human being,
with out any distinction, by virtue of being
human.
 HRs are generally regarded as natural rights
(natural rights theory, John Locke)
 The current international HRs system is
considered by many as based on the NRs
theory.
 This is because the source of these rights is ‘human
nature’,
 Human rights are considered as substantive limitations to
the exercise of govt power
 They considered as universal, indivisible and interrelated
 Cultural relativism Vs Universalism; to what extent are
rights specific and relative to particular cultures and how
far are they determined by universal trans-cultural human
values?
 International Bill of Rights; UDHR, ICCPR, ICESCR, and the
preamble, Art 1, 55 and 56 of the UN Charter.
 First generation rights; the ICCPR
 Second generation rights; the ICESCR
 Third generation rights; the most controversial of
international human rights, involve "solidarity" among
developing states as a group, and among states in
general.
 They are said to be collective rather than individual, and
include "peoples' rights" to development, the right to a
healthy environment, the right to peace, the right to the
sharing of a common heritage, and humanitarian
assistance.
 With the exception of the right to self-
determination, which international law
recognizes as a collective human right of
peoples (See, Art.1 of both the ICCPR and the
ICESCR), none of these rights exist in global
treaty form nor are there established
monitoring agencies to protect such rights.
Human Rights under the FDRE Constitution
 In its chapter three, the Constitution provides for
a catalogue of fundamental rights and freedoms.
About 31 “kinds” of rights are recognized and
granted a constitutional guarantee.
 The provisions of this chapter are entrenched,
i.e., they are protected from easy (and often
unilateral) encroachment through making the
amendment procedure rather rigid.
 However, the absence of;
 an application clause (that indicates whether
they have direct or indirect application),
 interpretation clause (that clearly indicates the
principles, methods, and steps to be used in
the construction of human rights clauses),
 limitation clause (that regulates the manner in
which limitations are imposed when
necessary),
 The denial to the courts of any power to
interpret and enforce constitutional human
rights,
Have diminished the implementation and
enforcement of human rights in Ethiopia.