scholarly journals Revisiting the legitimacy question of the Nigerian 1999 Constitution

2021 ◽  
pp. 1-28
Author(s):  
Jacob O. Arowosegbe
Keyword(s):  
Pragmatic Approach ◽  
Normative Claim ◽  
Constituent Assembly ◽  
Theoretical Perspectives ◽  
The People ◽  
Constitutional Legitimacy ◽  
Constitution Making

Abstract This article revisits the legitimacy question as it touches the Nigerian 1999 Constitution, bringing to the discourse a review and application of pertinent theoretical perspectives on constitution making and constitutional legitimacy. This theoretical and pragmatic approach introduces a refreshing angle to the debate, revealing the paucity of any attempt to ascribe any legitimacy claim to a constitution with a doubtful normative claim and fraudulent attribution of its source and legitimacy to the people. The author finds the consent basis of constitutional legitimacy as most attractive to a divided state like Nigeria, and concludes by advocating the adoption of a blend of the principles of the constituent assembly and post sovereign constitution-making models for the production of a new people-driven and inclusive constitution to meet the needs of the Nigerian people.

scholarly journals Venezuela: el debate sobre la legitimidad constitucional de la convocatoria a la Asamblea Nacional Constituyente realizada por el presidente Nicolás Maduro el 1 de mayo de 2017

2018 ◽  
pp. 249-269 ◽  
Author(s):  
Eneko COMPAINS SILVA
Keyword(s):  
Economic Crisis ◽  
Constituent Assembly ◽  
The People ◽  
Constitutional Legitimacy

LABURPENA: 2017ko maiatzaren 1ean, herria pairatzen ari zen krisi ekonomiko eta politiko larria ikusita, Venezuelako Bolibartar Errepublikako presidenteak, Nicolás Maduro Morosek, Batzar Nazional Konstituziogilea deitu zuen, Konstituzioaren 347. eta 348. artikuluen babespean. Deialdiak, ordea, eztabaida handia ekarri zuen doktrinaren alorrean, ordura arte defendatu egin baitzuen halako deialdiak herriak baino ezin dituela egin, erreferendum baten bidez. Lan honek helburu du eztabaida juridiko aberats horretan dauden jarrerak aztertzea eta presidenteak egindako deialdiaren konstituzio-zilegitasunari buruzko ondorioak lantzea. RESUMEN: El pasado día 1 de mayo de 2017, ante la situación de grave crisis política y económica que vivía el país, el Presidente de la República Bolivariana de Venezuela, Nicolás Maduro Moros, convocó una Asamblea Nacional Constituyente al amparo de los artículos 347 y 348 de la Constitución. La convocatoria, sin embargo, generó una fuerte polémica en la doctrina, que ha venido defendiendo de forma mayoritaria que tal convocatoria sólo la puede hacer el pueblo vía referéndum. El presente trabajo pretende analizar las distintas posiciones en este rico debate jurídico y obtener conclusiones sobre la legitimidad constitucional de la convocatoria presidencial. ABSTRACT: On May 1, 2017, due to the deep political and economic crisis in the country, the President of the Bolivarian Republic of Venezuela, Nicolás Maduro Moros, convened a National Constituent Assembly under articles 347 and 348 of the Constitution. The call, however, generated a strong controversy in the doctrine which has generally been advocating for that call to be only made by the people by means of a referendum. This present work aims to analyze the different positions in this rich legal debate and to allow conclusions on the constitutional legitimacy of the presidential call.

The Juridical People

2020 ◽  
pp. 262-294
Author(s):  
Joel Colón-Ríos
Keyword(s):  
Constitutional Change ◽  
Constituent Power ◽  
Judicial Decisions ◽  
Constituent Assembly ◽  
The People ◽  
Sovereign Authority ◽  
Amendment Rule ◽  
Constitution Making

This chapter argues that to the extent that a constituent assembly is not a sovereignty entity but a means for the exercise of constituent power, it can be subject to substantive limits arising from a constituent mandate. Part I of the chapter examines the place of the imperative mandate in contemporary constitutional change. Part II analyses the extent to which ‘the people’, understood as a juridical entity, could be said to engage in constituent action through an electoral exercise. It examines whether, during an episode of constitutional change, the electorate necessarily acts as a state organ (a view exemplified in the work of a number of constitutional theories as well as in some judicial decisions). In answering that question in the negative, the chapter develops a distinction between constitutional and constituent referendums. Part III explores the process that led to the convocation of the Venezuelan Constituent Assembly of 1999. In that process, the court recognized the electorate’s right to convene an extraordinary constitution-making body through a referendum that took place outside of the established amendment rule. However, the constituent mandate contained in the referendum’s question was transgressed by the assembly, which assumed sovereign authority. The courts, relying on the theory of constituent power, later sanctioned that transgression.

Constitution-making and institutional design. The transformations of presidentialism in Argentina

1999 ◽  
Vol 40 (2) ◽  
pp. 193-232 ◽  
Author(s):  
Gabriel L. Negretto
Keyword(s):  
Institutional Design ◽  
Political Competition ◽  
Analytical Framework ◽  
Point Of View ◽  
Collective Decision Making ◽  
Constitutional Design ◽  
Constituent Assembly ◽  
Political Resources ◽  
Micro Level ◽  
Constitution Making

This paper presents an analytical framework for the study of constitutional design from the point of view of the structure of interaction and mechanisms of institutional selection that affect the behavior and choices of the actors involved in a constitution-making process. This framework is used to explain the various limitations introduced to the powers of the President in the Argentine constitution of 1994. I argue that two levels of causation determined this reform. At the macro level, the limitation of presidential powers was the outcome of a distribution of political resources and a configuration of preferences among the actors that made possible the resolution of conflicts by means of compromise. At the micro level, the new set of institutions derived from the limited influence of the incumbent executive over constitutional design, the pluralism of the constituent assembly that approved the constitution, and the prevalence of bargaining as a mechanism of collective decision-making. Both levels of action facilitated a consensual constitution-making process from which emerged a powersharing structure that has the potential to lower the stakes of political competition for presidential office and create new rules of mutual trust between government and opposition.

The Fiction of “We the People”: Is the Constitution Binding on Us?

2013 ◽  
Author(s):  
Randy E. Barnett
Keyword(s):  
United States ◽  
United States Of America ◽  
The United States ◽  
Popular Sovereignty ◽  
The People ◽  
We The People ◽  
Constitutional Legitimacy

This chapter explains why the consent of the governed cannot justify a duty to obey the laws. The Constitution begins with the statement, “We the People of the United States...do ordain and establish this Constitution for the United States of America.” The founders declared that “We the People” had exercised their rights and manifested their consent to be ruled by the institutions “constituted” by this document. To understand what constitutional legitimacy requires, the chapter first considers what it means to assert that a constitution is “binding” before making the case that “We the People” is a fiction. More specifically, it challenges the idea, sometimes referred to as “popular sovereignty,” that the Constitution was or is legitimate because it was established by “We the People” or the “consent of the governed.” It argues that the fiction of “We the People” can prove dangerous in practice and can nurture unwarranted criticisms of the Constitution's legitimacy.

From Mistrust to Understanding: Inclusive Constitution-Making Design and Agreement in Tunisia

2020 ◽  
pp. 106591292096710
Author(s):  
Tereza Jermanová
Keyword(s):  
Interpersonal Relationships ◽  
Process Tracing ◽  
Causal Mechanism ◽  
Constituent Assembly ◽  
Identity Based ◽  
Inclusive Processes ◽  
Democratic Constitution ◽  
The Way ◽  
Constitution Making

In 2014, Tunisia’s National Constituent Assembly (NCA) almost unanimously approved the country’s first democratic constitution despite significant identity-based divisions. Drawing on the Tunisian case, the article explores the role of an inclusive constitution-making process in fostering constitutional agreement during democratization. Emerging studies that link different process modalities to democracy have so far brought only limited illumination to how inclusive processes matter, nor were these propositions systematically tested. Using process tracing, and building on original interviews gathered in Tunisia between 2014 and 2020, this article traces a causal mechanism whereby an inclusive constitution-making process allowed for a transformation of interpersonal relationships between political rivals. It demonstrates that more than two years of regular interactions allowed NCA deputies to shatter some of the prejudices that initially separated especially Islamist and non-Islamist partisans and develop cross-partisan ties, thus facilitating constitutional negotiations. However, I argue that the way these transformations contributed to constitutional settlement is more subtle than existing theories envisaged, and suggest alternative explanations. The article contributes to the debate about constitution-making processes by unpacking the understudied concept of partisan inclusion and applying it empirically to trace its effects on constitutional agreement, bringing precision and nuance to current assumptions about its benefits.

“A Trust That Cannot Be Delegated”: The Invention of Ratification Referenda

2015 ◽  
Vol 109 (4) ◽  
pp. 803-816 ◽  
Author(s):  
JEFFREY A. LENOWITZ
Keyword(s):  
Political Thought ◽  
American Political Thought ◽  
Early American ◽  
The People ◽  
The Creation ◽  
Future Evaluation ◽  
The Way ◽  
Constitution Making

A ratification referendum is a procedure in which framers submit a constitution to the people for binding approval before implementation. It is widespread, recommended, and affects the contents and reception of constitutions, yet remains unstudied. Moreover, the reasons or justification for using the procedure remain unexplored. This is troubling because ratification referenda are optional, and thus should only be implemented for good reasons that, today, are no longer given. This article begins correcting this oversight by identifying those that brought about the first ratification referendum and explaining why they did so. I demonstrate that the Berkshire Constitutionalists called for the procedure during the events leading up to the creation of the 1780 Massachusetts Constitution, and that they justified their actions by asserting that the people have an unalienable right to ratify their constitution through a referendum, for this provided needed protection against potentially corrupt elites. This argument remains the most fully developed justification for the procedure to date. My analysis not only reveals ratification referenda to be another product of early American political thought, but also points the way forward for future evaluation of the procedure, and forces reflection upon the importance of having solid grounds for the choices involved in structuring a constitution-making process.

scholarly journals A Symptomatic Analysis of the Justice and Development Party's Populism in Turkey, 2007–2010

2012 ◽  
Vol 47 (4) ◽  
pp. 618-640 ◽  
Author(s):  
Şakir Dinçşahin
Keyword(s):  
Presidential Election ◽  
Prime Minister ◽  
Constitutional Amendments ◽  
Justice And Development Party ◽  
Theoretical Perspectives ◽  
The People ◽  
Turkish Politics ◽  
The Masses

AbstractThis article focuses on the populist strategy of the Turkish Justice and Development Party between the 2007 presidential election, when Turkish politics experienced an impasse, and the 2010 referendum over the constitutional amendments. As a means of analysing populism, the symptomatic approach is preferred over other theoretical perspectives, including empiricism and historicism. An analysis of the discourse articulated by Prime Minister Erdoğan leads us to the conclusion that he has continually appealed to the masses with an anti-institutional rhetoric that divides society into ‘the people’ and ‘the elite’, thereby fulfilling the criteria of populism according to the symptomatic approach.

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