From jskuller@physix.adelaide.edu.au Sun May 25 17:02:11 1997 From: jon ivar skullerud Subject: Re: The European Union (and other) Constitution(s) Newsgroups: talk.politics.european-union To: mail2news@myriad.alias.net Date: 14 May 1997 02:00:01 -0400 Organization: Confused Lines: 63 Message-ID: <9705140531.AA02103@wilson> References: <335b686c.18455349@news.u-net.com> <3361f6f7.18373372@news.ping.be> <3376a8d9.1160308@news.iperbole.bologna.it> X-Spam: $500 charged per unsolicited email Path: hakea.adelaide.edu.au!news.student.adelaide.edu.au!morse.satech.net.au!chuckie.apana.org.au!curlew.mtx.net.au!news.ade.connect.com.au!news.mel.connect.com.au!news.mel.aone.net.au!news.mira.net.au!pumpkin.pangea.ca!news-spur1.maxwell.syr.edu!news.maxwell.syr.edu!cpk-news-hub1.bbnplanet.com!su-news-hub1.bbnplanet.com!news.bbnplanet.com!news1.best.com!sdd.hp.com!bone.think.com!grapevine.lcs.mit.edu!myriad!mail Xref: hakea.adelaide.edu.au talk.politics.european-union:27128 Status: RO rb> == top1917@iperbole.bologna.it (Roberto Borgia) sd> == pin00033@ping.be (Stephane Dohet) sd> I know that American universities have constitutions, while not being sd> single states ! Switzerland has a constitution, and is not a single sd> superstate. sd> BUT, UK has NO constitution, and IS a superstate ! rb> Come one Stephane, the UK does have a constitution, it is an rb> unwritten constitutions made up of basic laws like the Magna Charta rb> and other major laws like this, and traditions. It might be preferable rb> to have a written constitution, but to say that the UK doesn't have a rb> constitution just because this isn't written in a text labelled rb> "costitution" is imprecise at the very least. Indeed. Another thing which hasn't been mentioned much is the extent to which significant parts of other countries' constitutions are also unwritten. The constitutions I know best are those of Norway (1814, written), the UK (unwritten) and Australia (1901, written). All these countries are constitutional monarchies, so this may give my sample a bias; apart from that, I don't think they are so untypical countries. And all three are stable democracies. One of the things that strikes you when considering this three countries is that one of the most essential ingredients of the constitution -- parliamentarism -- is not mentioned anywhere in the two written constitutions. Nowhere do they state that the government (Prime Minister) must have support from a majority in Parliament. In fact, it's "worse" than that: Neither the Norwegian nor the Australian constitution actually mention the Prime Minister or Cabinet at all. Instead, they contain references to the Crown or King, as if the King or Queen was personally ruling the country. In Norway, there is some element of truth to this, in that the King actually chairs the Cabinet meetings. But in Australia, the Queen isn't even here! All references to the monarch should be taken to refer to the Governor-General, and indirectly to the Prime Minister. But all this is not written anywhere. I could come up with other examples of basic constitutional principles which are not written down in one or the other constitution, but I think this is the most striking. Australia's constitution could be considered to be only half-written -- it is basically a treaty of federation between six colonies (much like the EU treaties today, except that EU member states are not colonies...). But Norway's constitution is definitely written, yet it is to such a large extent unwritten. Perhaps all other democracies have constitutions which spell out clearly and unambiguously the functions of government and divisions of power. Somehow I don't think so. Could anyone inform us about this, perhaps in particular the situation in other constitutional monarchies, like, say, Belgium? -- ______ _________________________________________________ / | jon ivar skullerud | | jon | jskuller@physix.adelaide.edu.au | \______ | Correct the spelling of physix to reply | \ | | ivar | | http://www.physix.adelaide.edu.au/~jskuller/ | _______/ |_________________________________________________| From jskuller@physix.adelaide.edu.au Wed Jun 4 14:39:44 1997 From: jon ivar skullerud Subject: Re: The European Union (and other) Constitution(s) Newsgroups: talk.politics.european-union Date: 04 Jun 1997 13:59:21 +0930 Organization: Confused Path: hakea.adelaide.edu.au!not-for-mail Lines: 170 Message-ID: References: <335b686c.18455349@news.u-net.com> <3361f6f7.18373372@news.ping.be> <3376a8d9.1160308@news.iperbole.bologna.it> <9705140531.AA02103@wilson> <01bc6128$73cc82a0$e7a1dd86@1196-0525> <9705280824.AA06403@wilson> <01bc6b71$47836080$e7a1dd86@1196-0525> NNTP-Posting-Host: 129.127.26.172 In-reply-to: "Herman Beun"'s message of 28 May 1997 14:14:29 GMT X-Spam: $500 charged per unsolicited email X-Newsreader: Gnus v5.1 Xref: hakea.adelaide.edu.au talk.politics.european-union:27404 Status: RO [Sorry if you see this one twice. It seems my first attempt didn't come through -- probably a good thing, because i discovered i had stopped mid-sentence one or two places and generally hadn't checked my article before i sent it] In article <01bc6b71$47836080$e7a1dd86@1196-0525>, "Herman Beun" wrote: > jon ivar skullerud schreef in artikel > <9705280824.AA06403@wilson>... > > > the Dutch constitution can be found at: > > http://www.kluwer.nl/wet/grm_1.html > > > > I browsed through it, and from what I could see (with my > > fairly poor knowledge of Dutch), it confirmed my > > suspicion that important parts of the constitution also > > in the Netherlands is unwritten. Nowhere could > > I find any statement that the Government must have > > the confidence of a majority in Parliament. > In the meantime (between my own and your posting) I have given the > thing a closer and more critical reading, and indeed, it doesn't say > literally that the government needs the support of Parliament. Even > worse: The government can send Parliament home, and call for new > elections (art. 64-2 states that in such a case, elections should be > held and the new Parliament installed within 3 months). Is this power circumscribed in any way? Or does the Dutch government in theory have the same powers as the British to call elections any time it likes? If so, how often is this power used? From what you say, it seems it is very rarely invoked, so there seems to be an unwritten constitutional principle that the Queen does not dissolve Parliament. Norway is at the opposite end of the spectrum to the UK: Fixed term parliament, with absolutely no possibility for dissolving Parliament and calling early elections. > Fortunately, practice is different because the constitution does > state that each law should be passed by Parliament. Mais bien sur! The legislature legislates, n'est-ce pas? > So I think that the government does need parliamentary support, > because the latter can refuse its cooperation in the law-giving > process. Why? You win some, you lose some. If the government doesn't mind losing votes in parliament, there's no problem. > What I'm saying is that, maybe, parliament should not have the > _explicite_, constitutional right to send the government home, > because this would put one of the powers above the other. Instead, > at all times each of the powers (well, not the jurisdictive) should > have the choice (and the means to choose) between further escalating > an existing conflict or appease it. Then, escalation of a conflict > between government and parliament is a choice of both parties, the > end stage of which is the dissolution of parliament and government, > and a return to the only supreme power: the people. The system used in Australia is actually quite neat. Because of the electoral system used, the government can nearly always count on the support of a majority in the lower house (in fact, only once has a government lost a vote there, and that was in 1975 after the Governor-General had sacked the previous govt). So the question is primarily about conflicts between the government and the Senate. If the Senate refuses to accept a government bill, it can be reintroduced in the House. If the Senate after an interval of 3 months again rejects the bill, the Governor-General (acting on advice from the PM) may dissolve both houses ('double dissolution' -- Section 57 of the Constitution). If the House passes the law again after the election, and the Senate again rejects it, the case is decided by a joint sitting of the Senate and the House of Representatives. > A question that just crossed my mind: is parliamentarism (in the > sense of parliament being the supreme power in a country) a British > invention? The sovereignity of Parliament is a British -- or more specifically, English -- invention. You can find it in the writings of John Locke. As anyone who has followed this group for a while will have noticed, some English people use this as a base for making all kinds of claims about the magical role one particular parliament (the one in Westminster) must necessarily have, no matter whether this is sensible from the view of the people or not. The sovereignity of the people is a concept that i believe originates with Rousseau. > Art. 57 sub 2 states explicitely that an MP cannot be a minister > (a.o.), except (sub 3) if he has offered his resignment as a > minister and until this resignment has been accepted. Under this > rule, a 'demissionary' cabinet may continue to function if (as is > usual) coalition negociations are still going on after a newly > elected parliament (comprising members of the old cabinet) has come > into function. > Again, I think, the thought behind is separation of power. And > again, the existence of political parties is ignored. IMHO a Good Thing. I have never liked the hold political parties exert on politics, and i do not want their subversion and corruption of democracy to be written into the Constitution. If anything, there should be provisions limiting the power of political parties and other organisations. > > The Belgian constitution can be found at: > > http://www.senate.be/senbeldocs/constitution/const_nl.html > > (in Dutch, French and German). I haven't read it yet, > > although it didn't seem very different at first sight > > and as far as the subdivision of power is > > concerned. > > Interesting detail: The children of the King are Senators, > > with the right to vote from the age of 21. > Hmm, just like the (Dutch) queen is the formal chairwoman of the > Council of State and the crown-prince (if aged over 18) is a member of > it. Other members of the royal family can be appointed as members by > laws (but none have, at the moment). No, not quite. The Council of State is a review body AIUI, with no independent powers. It is quite a different thing for the Royal Family to be members of the legislature, as in Belgium (and possibly the UK?) > BTW, it struck me how much power the Norwegian king has! He is supreme > commander of the armed forces, declares war, has the executive power, > appoints the government... But that's normal isn't it? No different from other heads of state, like eg the US President ;-) > (Not to mention the absence of separation of church and state). At least Article 2 is somewhat less blatantly discriminatory then it used to be. The original Article 2 did not contain the freedom of religion (which was tacked on in 1964), and contained bans on Jews entering the country (abolished 1854), on monastic orders (abolished 1896) and on Jesuits (abolished 1956). > > The Swedish Constitution *must* be somewhere, surely! Malte? > He gave a very useful reference to English translations of a (large) > number of constutions, didn't you notice? No, i didn't. That article has obviously not appeared here (our newsfeed is pretty erratic). There is no way i could have missed it if it had appeared -- anything from Malte will automatically appear in bold types at the top of the article summary (in Gnus). > The Dutch courts do make law (in a certain sense, namely by > jurisdiction), but they are explicitely forbidden to make > constitutional law (art 120: "The judge does not take part in > judging the constitutionality of laws and treaties"). In fact, > parliament can even pass laws that are unconstitutional if they wish > to do so! (there is no constitutional court, this review function is > left to parliament) So what's the point of having a Constitution, then? ;^> -- ______ _________________________________________________ / | jon ivar skullerud | | jon | jskuller@physix.adelaide.edu.au | \______ | Correct the spelling of physix to reply | \ | | ivar | | http://www.physix.adelaide.edu.au/~jskuller/ | _______/ |_________________________________________________|