bub

Hi!

(This is a NBT© , a No-Bash Thread. I don't want any of you to get banned here! )

Yesterday I've passed an exam of SPD (Sources and Principles of Law or something like that). One of the questions was about constitutions. I think it could be interresting to compare them, especially the ways to revise them.

A constitution is a document containing the rules relative to the organization of the main organs of the states and the fundamental liberties granted to the citizens. It is supreme and rigid (mustn't be changed as easily as a normal law).

Ideally, it should not be modified
-> too often
-> too fast
-> without the people
-> without the federated states.

There are different levels of rigidity:
-> unmodifiable constitution, sacralised. Does not exist.
-> modifiable but several articles are unmodifiables (principles of state of right, democracy...)
-> all articles are modifiable but through a long process (very common)
-> modified like a simple law. (like in UK). Not formally a constitution anymore.

BELGIUM

Modification of the constitution is described in article 195 of the constitution.

First step: the chambers declare they want to revise the constitution. They select the articles susceptible to be modified.
Second step: the chambers are dissolved, there are anticipated elections. That's supposed to make the politicians think twice before they want to modify the constitution. Furthermore the people take part in the process since the elect the government that will change the constitution.
Third step: the new chambers MAY modify ONLY the articles selectionned by the previous government and with a majority of 2/3 in both the senate and the parliament.

Criticism
-> Dissolving the chambers does not refrain them to make a declaration of revision (they usually do it one week or two before the end of their mandate!) . Since 1958, every government has done it (excepted 3 times): we are in a permanent state of potential revision (We have added around 60 new articles and modified most of the others! In 30 years we turned the unitary state of Belgium into a federation, and it will probably become a confederation within 5 or 10 years!).
-> People do not really take part in the process. The majority is not even aware that the government will change the constitution.
-> The federated states are not mentionned in article 195 and thus do not take part in the process neither.


Suremacy
Constitutionality of the laws is controlled by the Constitutionnal Court (article 160). But only for the articles 11, 12, 24 (fundamental liberties), 170, 172 (repartition of the competences) and 191 (vote right for everybody including all foreigners).

The supremacy is thus relative since laws may not respect most of the articles of the constitution (but then it will be about details such as the functionning of certain administrations...and the judges won't apply it)

FRANCE

Revision
Roughly like in Belgium.
Originality: the revision must be approved by a referendum. Thus, the people really takes part in the process.

Supremacy
Also a Constitutional Court, but it is competent for the whole constitution.
Unlike Belgium, French judges MUST apply every law, even the inconstitutional ones.

GERMANY

Revision
The German Fundamental Law is less rigid than Belgian and French constitutions since it is revised like a normal law.
However there is a quorum of vote (2/3 in both assemblies) and several fundamental liberties are not modifiable.


Supremacy
A federal Constitutional Tribubal plays the role of the Constitutional Court.
Originality:unlike many other countries, even an individual may ask a revision of anticonstitutional laws.

USA

Revision
3/4 of the federated states must ratify the amendments.
-> that's very rigid
-> federated states take part in the process

However, as the constitution is much more rigid than in other countries (only 27 amendments since its creation!), the judges have more "freedom" to interpret it differently.

-> no referendum: people do not really take part in the revision.

Supremacy
There isn't any Constitutional Court checking for the constitutionality of the laws.
This role is played by the judges (since the case Marburry vs Madison) who refuse to apply laws they see as anticonstitutional.

__________________
===|:-)

RightinNYC

Just a couple notes about the US part:

There are really 4 different ways to pass an amendment - two in which to propose it and two and which to ratify it.

The two ways to propose it:

-2/3 of both houses of the Congress pass a bill calling for an amendment (the only way ever used
-2/3 of state legislatures call a Constitutional Convention, and then pass a bill calling for an amendment (never used)

And two ways to ratify it:

-3/4 of state legislatures can vote to ratify the amendment (every time but once)
-3/4 of state legislatures can call state conventions, which vote on ratifying (only the 21st amendment ever used this method)

And re: the Judges part

Yes, we have no specific constitutional court, as the current courts are empowered to determine whether a law is constitutional or not (since Marbury, as you point out). It's also worth noting though that our courts are not just empowered to choose not to apply unconstitutional laws, they're actually empowered to deem those laws invalid by virtue of their unconstitutionality, thus overturning them.

Other than that, this is a good and informative summary.

__________________
People sleep peaceably in their beds at night only because rough men stand ready to do violence on their behalf.

bub

My course was not very precise about the other countries: in 600 pages, there were only 20 pages talking about comparative right (but these were from far those who interrested me most!)


Thank you, I had not understood this part very well lol!



The other questions were:
1) What's the difference between an imperative and a suppletive rule? (imperative law = if you don't obey it, the contract does not worth)
2) What's a subjective right? (a right according to which you can force somebody to do something)
3) What are Arrêté-Loi de Guerre (something like "Wartime Royal Order"), Extraordinary Royal Order and Special Royal Order? (when we're invaded, the chambers are dissolved and the king and/or the ministers can make laws)
4) Does the Civil Code allow actions (= going to a tribunal) of general interrest? (no but there are exceptions)
5) Who is competent in Brussels at the Communautary level? (Frenchspeaking community for cultural institutions and schools were French is used, Flemish community when Dutch is used, the Vlaams Gemeenschapcommissie for some Flemish cultural institutions, the COCOF for some Walloon cultural institutions, the COCOM for some cultural institutions where both Dutch and French are used (example: the royal theatre) and the federal state for what remains)


Tomorrow I have to pass an exam of Roman Law. This is extremely boring