constitution making
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2021 ◽  
Author(s):  
◽  
Thomas Joseph Bailey Buchanan

<p>In this paper, I will argue that the round table model is the ideal constitution making process. This is primarily because it gives clarity to the respective powers of the institutions involved in the process, and may prevent a dominant group or individual from unilaterally imposing a constitution. In building my argument, I outline the theory of constituent power and its corollaries of unlimited constitution making power and popular participation. I endeavour to portray the shortcomings of the theory itself, and, the dangers of its practical manifestation. Following this, I introduce the round table model as a preferable alternative, both theoretically and practically. To buttress my argument, I examine the Bolivian, Venezuelan, Russian and South African constitution making episodes.</p>


2021 ◽  
Author(s):  
◽  
Sarah Mead

<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>


2021 ◽  
Author(s):  
◽  
Ivan Sage

<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>


2021 ◽  
Author(s):  
◽  
Ivan Sage

<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>


2021 ◽  
Author(s):  
◽  
Thomas Joseph Bailey Buchanan

<p>In this paper, I will argue that the round table model is the ideal constitution making process. This is primarily because it gives clarity to the respective powers of the institutions involved in the process, and may prevent a dominant group or individual from unilaterally imposing a constitution. In building my argument, I outline the theory of constituent power and its corollaries of unlimited constitution making power and popular participation. I endeavour to portray the shortcomings of the theory itself, and, the dangers of its practical manifestation. Following this, I introduce the round table model as a preferable alternative, both theoretically and practically. To buttress my argument, I examine the Bolivian, Venezuelan, Russian and South African constitution making episodes.</p>


2021 ◽  
Author(s):  
◽  
Sarah Mead

<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>


2021 ◽  
pp. 1-28
Author(s):  
Jacob O. Arowosegbe

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.


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