Taming the Incumbency Advantage: Innovative Constitutional Designs from the "South"

2021 ◽  
Author(s):  
Adem Abebe
Keyword(s):  
Constitutional Law ◽  
Institutional Design ◽  
Constitutional Reform ◽  
Incumbency Advantage ◽  
Discussion Paper ◽  
Constitutional Design ◽  
Comparative Constitutional Law ◽  
The World ◽  
Reform Processes ◽  
Design Options

This Discussion Paper was drafted for an International IDEA webinar on Taming the Incumbency Advantage (25 May 2021), the first of a series on innovative constitutional design options. It has been revised and updated to reflect contributions from webinar participants: Professor Juvence F. Ramasy (Madagascar), Professor Ridwanul Hoque (Bangladesh) and Professor Gabriel Negretto (Latin America), among others. The webinar series seeks to identify, discuss, profile and showcase the ‘hidden treasures’ of innovative constitutional/institutional design options—including from the Global ‘South’—with potential to help tackle emerging and recurrent challenges facing societies around the world. The goal is not to promote any specific institutional design, but rather to enrich conversations about constitutional reform processes and share comparative constitutional law and practice insights among academic and practitioners’ communities.

Constituting Scotland

2016 ◽  
Author(s):  
W. Elliot Bulmer
Keyword(s):  
Constitutional Law ◽  
Constitutional Theory ◽  
Constitutional Design ◽  
Global Trends ◽  
National Movement ◽  
Comparative Constitutional Law ◽  
Constitutional Thought ◽  
Scottish Government ◽  
Historical Trajectory ◽  
Constitutional Tradition

The rise of the Scottish national movement has been accompanied by the emergence of distinct constitutional ideas, claims and arguments, which may affect constitutional design in any future independent Scotland. Drawing on the fields of constitutional theory, comparative constitutional law, and Scottish studies, this book examines the historical trajectory of the constitutional question in Scotland and analyses the influences and constraints on the constitutional imagination of the Scottish national movement, in terms of both the national and international contexts. It identifies an emerging Scottish nationalist constitutional tradition that is distinct from British constitutional orthodoxies but nevertheless corresponds to broad global trends in constitutional thought and design. Much of the book is devoted to the detailed exposition and comparative analysis of the draft constitution for an independent Scotland published by the SNP in 2002. The 2014 draft interim Constitution presented by the Scottish Government is also examined, and the two texts are contrasted to show the changing nature of the SNP’s constitutional policy: from liberal-procedural constitutionalism in pursuit of a more inclusive polity, to a more populist and majoritarian constitutionalism.

Semi-Presidentialism

2020 ◽  
pp. 314-338
Author(s):  
Sophie Boyron
Keyword(s):  
Comparative Politics ◽  
Early Identification ◽  
Constitutional Law ◽  
Regime Type ◽  
Fifth Republic ◽  
Comparative Constitutional Law ◽  
The World ◽  
Presidential Regimes

This chapter discusses semi-presidentialism, a relative newcomer to the disciplines of both comparative constitutional law and comparative politics. It first retraces the early transformation of the regime of the French Fifth Republic from parliamentary to semi-presidential regime. Secondly, the chapter analyses the early identification of this regime type and the difficulties encountered in defining it. The attempts to assess this regime are then examined. Afterwards, the chapter sketches the migration of semi-presidentialism around the world so as to understand its present spread. Finally, it suggests broadening the basis for the classification of semi-presidential regimes by highlighting the key role played by institutions other than the executive and legislature.

scholarly journals From South Africa to Sri Lanka: Prospects of Travel for ‘Transformative Constitutionalism’

2020 ◽  
Vol 15 (1) ◽  
pp. 45-68
Author(s):  
Dinesha SAMARARATNE
Keyword(s):  
South Africa ◽  
South African ◽  
Transitional Justice ◽  
Institutional Design ◽  
Constitutional Reform ◽  
The South ◽  
African Experience ◽  
Comparative Constitutional Law ◽  
Layered Approach ◽  
Post War

AbstractWhat lessons can we learn from the way in which the South African experience of transformative constitutionalism was invoked in Sri Lanka's recent constitutional reform experience? What conditions allow experiences of transformative constitutionalism to travel? In this article, I respond to these two questions, using Frankenberg's idea of a ‘layered approach’ in comparative constitutional law. My analysis affirms that in the comparative enterprise, a thick explanation that allows each experience to ‘speak for itself’ heightens the value of a comparative example. In the case of South Africa, I demonstrate that transformative constitutionalism is in fact a specific genre of constitutionalism. It demands attention not only to substantive constitutional guarantees and institutional design, but also to the process of constitutional reform. Moreover, effective measures for transitional justice are an essential component of transformative constitutionalism. A closer reading of the South African experience that paid attention to these factors would have led to better use of this experience in Sri Lanka's post-war constitutional governance.

scholarly journals Uporedno ustavno pravo u delu Miodraga Jovičića

2021 ◽  
pp. 48-66
Author(s):  
Dragoljub Popović
Keyword(s):  
Constitutional Law ◽  
Original Method ◽  
World Scientific ◽  
Salient Points ◽  
Comparative Constitutional Law ◽  
The World ◽  
The Subject ◽  
The University

Professor Miodrag Jovičić (1925–1999) was the most renowned and prolific Serbian academic in the field of comparative constitutional law. He received his LLB and PhD in law from the University of Belgrade and seldom went abroad for further studies. Although he was strongly influenced by certain French authors, his main source of inspiration was the work of Slobodan Jovanović. Politically marginalized, Jovičić used his research of comparative constitutional law as an escape from reality and the circumstances in his country. Jovičić’s work did not rely on an original method of research. On the contrary, he remained faithful to the methods developed by the mainstream of the world scientific and law community. The apogee of his work was the book Great Constitutional Systems, in which he presented his views on the subject in a systematic and synthetic way. This article presents Jovičić’s method of work and the salient points of his theoretical endeavors, as well as elaborating on his intellectual influences.

scholarly journals Ukrainian Constitutional Court: Attacks and Backlash

2021 ◽  
pp. 27-50
Author(s):  
Samuel Fonteles
Keyword(s):  
Constitutional Law ◽  
Public Confidence ◽  
Constitutional Court ◽  
Tolerance Interval ◽  
National Agency ◽  
Comparative Constitutional Law ◽  
The World ◽  
Corruption Prevention ◽  
The Impact

This article intends to analyze Ukraine’s Constitutional Court in the light of the tolerance interval theory and the backlash thesis, through a case study, which is, the decision issued on October 27, 2020, that held unconstitutional part of the powers of the National Agency for the Corruption Prevention (NAPC). Three comorbidities — particular conditions that weaken the court and render it vulnerable to attacks — in the Ukrainian system are presented: Ukrainian democracy, autocracies tendencies in the presidency, and lack of public confidence in the judicial system. Through the adoption of a Comparative Constitutional Law approach, an index measuring the impact of the ruling is developed and calculated, allowing a comparison of the consequences to other notable controversial rulings in the world. After discussing the findings, the article concludes with some reflections and predictions on the longevity of the Ukrainian Constitutional Court.

scholarly journals De la Constitución "irreformable" a la reforma constitucional "exprés"

2012 ◽  
pp. 199
Author(s):  
Juan Fernando López Aguilar
Keyword(s):  
Constitutional Law ◽  
Constitutional Reform ◽  
Title X ◽  
Spanish Constitution ◽  
Comparative Constitutional Law ◽  
Popular Initiative ◽  
Dual Expression ◽  
The Eu

Desde la perspectiva del Derecho constitucional comparado, la Constitución española de 1978 (CE) pasa por ser una de las más rígidas. Su Título X prevé dos procedimientos de reforma caracterizados ambos por la exigencia de amplias mayorías parlamentarias (3/5, reforma simplificada; 2/3, revisión agravada). La revisión agravada se cualifica por la exigencia de una doble expresión de mayoría de 2/3, mediando disolución de las Cortes y nuevas elecciones, además de un referendum preceptivo de ratificación. Significativamente, la CE excluye expresamente la iniciativa popular en el procedimiento de reforma. Todo ello explica, en términos jurídicos, las enormes dificultades con que se ha abierto paso en España el debate sobre la modificación de la CE. De este modo, en 35 años sólo ha tenido lugar dos veces (1992 y 2011), en contextos muy distintos, pero coincidentes en su conexión con las coordenadas impuestas por los compromisos de España con la UE.From the viewpoint of comparative constitutional law, the 1978 Spanish Constitution happens to be one of the most rigid. Its Title X provides with two constitutional reform procedures, both characterized by the need of wide parliamentary majorities (3/5, simplified reform; 2/3, aggravated review). The latter qualifies by the requirement of a dual expression of a majority of 2/3, with dissolution of Parliament followed by new elections, as well as with a mandatory referendum for ratification. Significantly, the Spanish Constitution expressly excludes the popular initiative in the process of reform. This explains, in legal terms, the enormous difficulties with which the debate on amending the Constitution has been raised in Spain, so that it has only occurred twice in 35 years (1992 and 2011), in very different contexts, but coinciding in its connection with the coordinates imposed by Spain’s commitments with the EU.

scholarly journals Does Institutional Design Make a Difference? / O Desenho Institucional faz Diferença?

2015 ◽  
Author(s):  
Steven G Calabresi
Keyword(s):  
Institutional Design ◽  
Separation Of Powers ◽  
Constitutional Design ◽  
Emerging Democracies ◽  
The World ◽  
State Boundary ◽  
Key Features ◽  
American Federalism ◽  
The U.S ◽  
Boundary Lines

Abstract:The goal of essay is to identify two key features of U.S. constitutional design integral to the success of U.S. federal and presidential separation of powers, but which are not widely known and are therefore not widely copied when newly emerging democracies around the world choose to write a constitution. First, the focus is on the fact that American federalism is characterized by a much larger number of state entities than exist in most federal regimes and on the fact that state boundary lines are drawn pretty arbitrarily and cross-cut regional and ethnic cleavages. In Part II, the focus is on five features of the U.S. system of presidential separation of powers which make out presidents much weaker than the presidents of other countries with presidential systems.Keywords: Institutional Design; Federalism; Separation of Powers; Presidentialism. Resumo:O objetivo deste artigo é identificar as duas principais características do desenho constitucional dos Estados Unidos que são essenciais para o sucesso da sua separação dos poderes nos planos federativo e presidencialista, mas que não são amplamente conhecidas e, portanto, não são copiadas por democracias emergentes ao redor do mundo no momento em que formulam suas constituições. Primeiro, o foco do artigo se concentra no fato de que o federalismo americano se caracteriza por um número de entidades estatais muito maior do que se nota na maior parte dos demais regimes federativos, assim como no fato de que as linhas divisoras dos estados são desenhadas, de certa forma, de maneira arbitrária, ignorando diferenças regionais e étnicas. Na parte II, o foco se mantém nas cinco características do sistema de separação de poderes dos Estados Unidos que tornam o presidente muito mais frágil do que os presidentes de outros países com sistemas presidencialistas.

scholarly journals Territory and Power in Constitutional Transitions

2019 ◽  
Keyword(s):  
Case Studies ◽  
Constitutional Law ◽  
Full Range ◽  
Political Mobilization ◽  
Constitutional Design ◽  
Comparative Constitutional Law ◽  
Territorial Politics ◽  
Salient Regions ◽  
Realist View ◽  
Constitution Making

This volume explores the full range of challenges that different kinds of territorial cleavages pose for Constitution-making processes and constitutional design. It provides seventeen case studies of countries going through periods of intense constitutional engagement in which the issue of how to deal with the politics of territory is important. It is unique in that its cases include the full gamut of types of territorial cleavages—small distinct territories, bi-communal countries, highly diverse countries with many politically salient regions, and countries where territorial politics is important but secondary to other bases for political mobilization. While the volume draws significant normative conclusions, it is based on a highly realist view of the implications not only of the territorial and other salient political cleavages in the country (the country’s “political geometry”) but also of the power-configurations that lead into periods of constitutional engagement, so that processes differ depending on whether the preceding politics has been peaceful or violent and whether a victor, military or political, has emerged or whether there is a stalemate or diffused political power. Its thematic chapters on Constitution-making processes and constitutional design, along with the final synthetic chapter, draw original conclusions from the comparative analysis of the case studies and relate these to the literature, both in political science and comparative constitutional law. There are clear lessons that should help practitioners in analyzing their own challenges in dealing with territorial cleavages as well as in considering possible approaches to constitution-making and constitutional design.

The Global South and Comparative Constitutional Law

2020 ◽  
Keyword(s):  
Constitutional Law ◽  
Global South ◽  
High Time ◽  
Access To Justice ◽  
Comparative Constitutional Law ◽  
The World ◽  
Methodological Approaches ◽  
Constitutional Discourse

Although the Global South represents ‘most of the world’ in terms of constitutions and population, it is still underrepresented in comparative constitutional discourse. Against this background, this volume posits that it is high time for a ‘Southern turn’ in comparative constitutional scholarship. It aims to take stock of existing scholarship on the Global South and comparative constitutional law and to move the debate forward. It brings together authors who all hail from, or are based in, the Global South and who represent a range of regions, perspectives, and methodological approaches. They address the theoretical and epistemic foundations of Southern constitutionalism and discuss its distinctive themes, such as transformative constitutionalism, inequality, access to justice, and authoritarian legality. What emerges is a rich tapestry of constitutional experiences that pluralizes comparative constitutional law as discipline and field of knowledge.

Facing South

2020 ◽  
pp. 41-66
Author(s):  
Florian Hoffmann
Keyword(s):  
Constitutional Law ◽  
Global South ◽  
Structural Determinants ◽  
Disciplinary Identity ◽  
Western Modernity ◽  
Real Locus ◽  
Comparative Constitutional Law ◽  
The World ◽  
Different Types ◽  
North And South

The idea and the reality of the Global South represent different types of epistemological challenges to the disciplinary identity of comparative (constitutional) law. Taking the Global South seriously in and for comparative constitutional law must mean transcending its use as either a mere marker of supressed difference or a critical wedge against the hegemony of Western/modern constitutional concepts. The Global South must, instead, be unlocked as the real locus—not in a geographical but in a cognitive sense—of constitutional modernity the world over. Such an agenda of epistemic meridianization requires a number of methodological moves, the most important of which is the de-Weberianization of the fundamental terms and normative ideals of comparative constitutional law. De-Weberianization through a Southern lens is not limited to an ideology critique of Western modernity, but is a project to provide a more realist vision of that modernity and, thereby, a deeper understanding of ‘how the world works’ across North and South. A fundamental openness to alterity, hybridity, and contingency as the structural determinants of ‘law in practice’ is what is at the basis of the South and what enables the re-cognition of the modern world in its likeness.

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