scholarly journals Protecting popular constituent power: Examining New Zealand's role in the constitution-making episodes of the Cook Islands and Niue

2021 ◽  
Author(s):  
◽  
Sarah Mead
Keyword(s):  
Self Determination ◽  
Democratic Legitimacy ◽  
Stage Model ◽  
Political Will ◽  
Constituent Power ◽  
Cook Islands ◽  
Island States ◽  
The People ◽  
External Actors ◽  
Constitution Making

<p>This paper assesses the democratic legitimacy of the constitution-making processes that brought into being the Constitutions of the Cook Islands and Niue. New Zealand’s role in the decolonisation of its former colonies has generally been seen as quite benign. New Zealand’s status as an external actor however raises questions regarding the effect its influence had on the democratic legitimacy of the respective constitution-making processes. Constituent power theory demands that a constitution is the product of the popular political will; an act of self-determination undertaken by the people, for the people. This paper argues that the existence of external influence in the constitution-making process is not necessarily at odds with this. The democratic legitimacy of the constitution-making process is dependent on the constitution being a manifestation of the people’s constituent power. Insofar as external actors do not displace the people’s constituent power but rather enhances it, there is no reason to exclude such influence; there may even be reason to encourage it. By drawing on New Zealand’s experience in decolonisation, this paper ultimately advances a two-stage model for constitution-making in the context of small, dependent non-self-governing island-states. As on-going political ties with an external state are often sought, the aim of the model is to provide an avenue for that external state to participate in or contribute to the constitution-making process while maintaining the process’ democratic legitimacy.</p>

scholarly journals Protecting popular constituent power: Examining New Zealand's role in the constitution-making episodes of the Cook Islands and Niue

2021 ◽  
Author(s):  
◽  
Sarah Mead
Keyword(s):  
Self Determination ◽  
Democratic Legitimacy ◽  
Stage Model ◽  
Political Will ◽  
Constituent Power ◽  
Cook Islands ◽  
Island States ◽  
The People ◽  
External Actors ◽  
Constitution Making

<p>This paper assesses the democratic legitimacy of the constitution-making processes that brought into being the Constitutions of the Cook Islands and Niue. New Zealand’s role in the decolonisation of its former colonies has generally been seen as quite benign. New Zealand’s status as an external actor however raises questions regarding the effect its influence had on the democratic legitimacy of the respective constitution-making processes. Constituent power theory demands that a constitution is the product of the popular political will; an act of self-determination undertaken by the people, for the people. This paper argues that the existence of external influence in the constitution-making process is not necessarily at odds with this. The democratic legitimacy of the constitution-making process is dependent on the constitution being a manifestation of the people’s constituent power. Insofar as external actors do not displace the people’s constituent power but rather enhances it, there is no reason to exclude such influence; there may even be reason to encourage it. By drawing on New Zealand’s experience in decolonisation, this paper ultimately advances a two-stage model for constitution-making in the context of small, dependent non-self-governing island-states. As on-going political ties with an external state are often sought, the aim of the model is to provide an avenue for that external state to participate in or contribute to the constitution-making process while maintaining the process’ democratic legitimacy.</p>

scholarly journals Protecting Popular Constituent Power: Examining New Zealand's Role in the Constitution-Making Episodes of the Cook Islands and Niue

2014 ◽  
Vol 45 (4) ◽  
pp. 577
Author(s):  
Sarah Mead
Keyword(s):  
Self Determination ◽  
Democratic Legitimacy ◽  
Stage Model ◽  
Political Will ◽  
Constituent Power ◽  
Cook Islands ◽  
Island States ◽  
The People ◽  
External Actors ◽  
Constitution Making

This article assesses the democratic legitimacy of the constitution-making processes that brought into being the Constitutions of the Cook Islands and Niue. New Zealand's role in the decolonisation of its former colonies has generally been seen as quite benign. New Zealand's status as an external actor, however, raises questions regarding the effect its influence had on the democratic legitimacy of the respective constitution-making processes. Constituent power theory demands that a constitution is the product of the popular political will; an act of self-determination undertaken by the people, for the people. This article argues that the existence of external influence in the constitution-making process is not necessarily at odds with this. In so far as external actors do not displace the people's constituent power but rather enhance it, there is no reason to exclude such influence; there may even be reason to encourage it. By drawing on New Zealand's experience in decolonisation, this article ultimately advances a two-stage model for constitution-making in the context of small, dependent non-self-governing island states. As ongoing political ties with an external state are often sought, the aim of the model is to provide an avenue for that external state to participate in or contribute to the constitution-making process while maintaining the process's democratic legitimacy.

Two Possible Alternatives to Turf War

1996 ◽  
Vol 24 (3) ◽  
pp. 536-546
Author(s):  
Beáta Kovács Nás
Keyword(s):  
Human Dignity ◽  
Current Situation ◽  
Past Experience ◽  
Self Determination ◽  
Mass Movements ◽  
Future Prospects ◽  
Political Will ◽  
Current State ◽  
The People ◽  
State Socialist

Mass movements based on reason and morality—the enforcement of freedom, equal human dignity, justice, sovereignty of the people and self-determination—are not mere expressions of pious desire, but are expressions of real, irresistible political necessity that must not be ignored.István BibóThe preceding studies in this volume have provided an overview of the history and current situation of Hungarians living as minorities in Slovakia, Ukraine, Romania, and the regions of the former Yugoslavia. The purpose of this conclusion is not to analyze past experience and current hardships but rather to illuminate the future prospects of Hungarian communities located outside Hungary's current state borders by looking at various autonomy proposals. Since the collapse of state socialist regimes in the late 1980s and early 1990s, persons belonging to Hungarian national communities in the region have expressed a political will to preserve their identity and to determine and govern their own affairs. It is, therefore, instructive to take a closer look at the various proposals for autonomy advocated by the representatives of these Hungarian communities because they offer a peaceful and democratic solution, not only to the current problems of the countries they inhabit, but also to the growing destabilization of the region due to ethnic strife.

Democratic constitution-making and unfreezing the Turkish process

2010 ◽  
Vol 36 (3-4) ◽  
pp. 473-487 ◽  
Author(s):  
Andrew Arato
Keyword(s):  
Political Legitimacy ◽  
Democratic Legitimacy ◽  
Constituent Power ◽  
Short Article ◽  
The Government ◽  
Turkish Constitution ◽  
Popular Power ◽  
Democratic Constitution ◽  
Strong Claim ◽  
Constitution Making

This short article will seek to explore the causes, and possible solutions, of what seems to be the current freezing of the Turkish constitution-making process that has had some dramatic successes in the 1990s and early 2000s. I make the strong claim that democratic legitimacy or constituent authority should not be reduced either to any mode of power, even popular power, or to mere legality. It is these types of reduction that I find especially troubling in recent Turkish constitutional struggles, where the legal claims of two powers — the government-controlled legislative and the judicial branches — to structure the constitution are not backed by sufficient political legitimacy. In effect these two powers that claim their constituent authorization, rather implausibly in my view, from either the democratic electorate or from an original constituent power, because of their conflict threaten to freeze the constitution-making process that very much needs to be continued and concluded. I end the article by making a suggestion for one possible constitution-making procedure that would be both legitimate and legal.

scholarly journals Democracy, Constitutionalism and the Rule of Law: Beholden to Constituent Power

2021 ◽  
Author(s):  
◽  
Ivan Sage
Keyword(s):  
Rule Of Law ◽  
Constituent Power ◽  
The Rule Of Law ◽  
The People ◽  
Egalitarian Society ◽  
Parliamentary Supremacy ◽  
The Government ◽  
Principle Of Legality ◽  
Ultimate Principle ◽  
Constitution Making

<p>Democratic government serves two purposes, both requiring that the substantive element of the rule of law be adhered to. A living constitution is required by a government to able to maintain civil society, which is the main occupation of the rule of law and, secondly, the rule of law also vouchsafes rights and freedoms. Hence, the rule of law enforced by the courts is the factor that controls the constitution, and increasingly this includes controlling the government, both the legislature and executive. This paper considers the capacities of democracy, constitutionalism and the rule of law, in the context of both New Zealand’s unwritten and America’s written constitutions, with the view of locating the constitution making power (constituent power). The power that makes and changes the constitution was originally found with the people, parliament, and the executive. However, a modern formulation of the rule of law that seeks to replace parliamentary supremacy as the ultimate principle of legality appears to be arising. An egalitarian society is becoming the preferred option by all parties. In this context, the constitution making power will be with the vessel that is working towards creating such a society. To that end, the paper recommends a Constitutional Commission for New Zealand that would review legislation for constitutionality, including adherence to the rule of law. The objective of the Constitutional Commission would be to recommend the review of law for constitutionality, including adherence to the rule of law.</p>

Beyond the People

2018 ◽  
Author(s):  
Zoran Oklopcic
Keyword(s):  
Popular Sovereignty ◽  
Self Determination ◽  
Constituent Power ◽  
Constitutional Order ◽  
The People ◽  
Sovereign Equality ◽  
Collective Self ◽  
The One ◽  
Canonical Texts ◽  
Point Of Departure

Who is ‘the people’? How does it exercise its power? When is the people entitled to exercise its rights? From where does that people derive its authority? What is the meaning of its self-government in a democratic constitutional order? For the most part, scholars approach these questions from their disciplinary perspectives, with the help of canonical texts, and in the context of ongoing theoretical debates. Beyond the People is a systematic and comprehensive, yet less disciplinarily disciplined study that confronts the same questions, texts, and debates in a new way. Its point of departure is simple and intuitive. A sovereign people is the work of a theoretical imagination, always shaped by the assumptions, aspirations, and anticipations of a particular theorist-imaginer. To look beyond the people is to confront them directly, by exploring the ways in which theorists script, stage, choreograph, record, and otherwise evoke the scenes, actors, actions, and events that permit us to speak intelligibly—and often enthusiastically—about the ideals of popular sovereignty, self-determination, constituent power, ultimate authority, sovereign equality, and collective self-government. What awaits beyond these ideals is a new set of images, and a different way to understand the perennial Who? What? Where? When? and How? questions—not as the suggestions about how best to understand these concepts, but rather as the oblique and increasingly costly ways of not asking the one we probably should: What, more specifically, do we need them for?

Of Constituent Nations

2020 ◽  
pp. 101-126
Author(s):  
Joel Colón-Ríos
Keyword(s):  
French Revolution ◽  
Common Good ◽  
Electoral Rules ◽  
Constituent Power ◽  
Spanish Constitution ◽  
The People ◽  
Different Types ◽  
The Common ◽  
The Creation ◽  
Constitution Making

This chapter examines the ways in which the debates about the nature and implications of the theory of constituent power that arose during the French Revolution reappeared in later constituent episodes. It pays particular attention to the electoral rules regulating citizen activity and to the types of constitutional forms that resulted from them. In Part I, the chapter explores the distinction between the constituent power of the people and the constituent power of the nation. From each of these notions, emanate different types of legal and institutional demands on the juridical order. After distinguishing between these two approaches, the chapter examines, in Part II, the ways in which they were (or not) put into practice in the constitution-making process that resulted in the creation of the Spanish Constitution of 1812. Part III focuses on the creation of the Venezuelan Constitution of 1811 and Part IV examines the process that led to the adoption of the Colombian Constitution of 1886. During these three processes, constituent power became an extraordinary constitution-making jurisdiction directed at the identification of the common good, and as a power that could be exercised through mechanisms that excluded important parts of the population.

scholarly journals Democracy, Constitutionalism and the Rule of Law: Beholden to Constituent Power

2021 ◽  
Author(s):  
◽  
Ivan Sage
Keyword(s):  
Rule Of Law ◽  
Constituent Power ◽  
The Rule Of Law ◽  
The People ◽  
Egalitarian Society ◽  
Parliamentary Supremacy ◽  
The Government ◽  
Principle Of Legality ◽  
Ultimate Principle ◽  
Constitution Making

<p>Democratic government serves two purposes, both requiring that the substantive element of the rule of law be adhered to. A living constitution is required by a government to able to maintain civil society, which is the main occupation of the rule of law and, secondly, the rule of law also vouchsafes rights and freedoms. Hence, the rule of law enforced by the courts is the factor that controls the constitution, and increasingly this includes controlling the government, both the legislature and executive. This paper considers the capacities of democracy, constitutionalism and the rule of law, in the context of both New Zealand’s unwritten and America’s written constitutions, with the view of locating the constitution making power (constituent power). The power that makes and changes the constitution was originally found with the people, parliament, and the executive. However, a modern formulation of the rule of law that seeks to replace parliamentary supremacy as the ultimate principle of legality appears to be arising. An egalitarian society is becoming the preferred option by all parties. In this context, the constitution making power will be with the vessel that is working towards creating such a society. To that end, the paper recommends a Constitutional Commission for New Zealand that would review legislation for constitutionality, including adherence to the rule of law. The objective of the Constitutional Commission would be to recommend the review of law for constitutionality, including adherence to the rule of law.</p>

Constituent Power and the Law

2020 ◽  
Author(s):  
Joel Colón-Ríos
Keyword(s):  
Latin American ◽  
Constitutional History ◽  
Constitutional Courts ◽  
Constituent Power ◽  
Constitutional Amendments ◽  
Constitutional Order ◽  
The People ◽  
The Right ◽  
Popular Initiative ◽  
Constitution Making

This book examines the place of the concept of constituent power in constitutional history, focusing on the legal and institutional implications that theorists, politicians, and judges have derived from it. It shows that constituent power, even though having historically been associated with extra-legality and violations of the constitutional order, has played important functions in the making of determinations of legal validity. Constitutional courts have employed it to justify their jurisdiction to invalidate constitutional amendments that alter the fundamental structure of the constitution and thus amount to a constitution-making exercise. Some governments have recurred to it to defend the legality of the transformation of the constitutional order through procedures not contemplated in the constitution’s amendment rule but considered participatory enough to be seen as equivalent to ‘the people in action’, and these attempts have sometimes been sanctioned by courts. Commentators and citizens have relied on the theory of constituent power to defend the idea that electors have the right to instruct representatives, and that the creation of new constitutions must take place through extra-legislative entities, such as primary assemblies open to all citizens. Several Latin American constitutions explicitly incorporate the theory of constituent power and allow citizens, acting through popular initiative, to trigger constitution-making episodes that may result in the replacement of the entire constitutional order. Building on these findings, the book ultimately develops a distinction between sovereignty and constituent power and argues that even a constitution-making body can be made legally subject to the conditions arising from a constituent referendum.

Participatory constitution-making: Introduction

2020 ◽  
Vol 18 (1) ◽  
pp. 173-178
Author(s):  
Sujit Choudhry ◽  
Mark Tushnet
Keyword(s):  
Political Legitimacy ◽  
Popular Sovereignty ◽  
Third Wave ◽  
Constituent Power ◽  
Popular Participation ◽  
The People ◽  
The Will ◽  
Hypothetical Consent ◽  
Elected Representatives ◽  
Constitution Making

Abstract At least since the late eighteenth century, constitutions have been understood as emanations of the will of “the People,” as the ultimate expression of an inherent popular sovereignty. In the form of theories of constituent power, accounts of constitutional foundations blended notional or conceptual “descriptions” of the People, which anchored the political legitimacy of constitutional orders in the idea of hypothetical consent, with empirical claims that the nation’s actual people were represented in constitution-making processes through elected delegates and thereby were the authors of and gave consent to its fundamental law. As part of the third wave of democratization, there was an important shift in what popular participation consisted of—from indirect participation by elected representatives to direct, popular participation in the constitution-making process. As a matter of constitutional process, this led to the growing practice, and expectation, that major constitutional changes should be ratified through referenda.

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