COMPARATIVE PUBLIC LAW

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COMPARATIVE PUBLIC LAW

• Lesson VIII November 19th, 2008
• Forms of Government

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France
A difficult constitutional history

• Extremely various constitutional experiences
• Alternative supremacy of Legislative or Executive
• Consequence of a deeply divided society
• Reaction tendence through an extremely
  centralised form of government

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France
Two different concepts of Law

• L. in material sense every general and
  sufficiently stable disposition
• L. in organic/formal sense every disposition
  approved by the Parliament accordingly to the
  constitutional procedure
• Ideological influences of both interpretations

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V Republic

• Problems of the IV Republic foreign politics
  (Indo-China, Algeria) but also internal
  governance
• V Republic main goal?institutional stability
• Provisions on electoral system and form of
  government
• Objective real parliamentary government based on
  clear division of powers and limits to
  assemblearism

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V Republic

• Constitutional modifications
• Majority and double round electoral system
• Limitation of the parties role Political
  parties and groups shall contribute to the
  exercise of suffrage (art. 4 I Const.)
• Indirectly elected Senate, prevalence of the
  rural regions (conservative)
• Wide competence to the two-headed Executive
  (President Government)

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V Republic

• Semi-presidential form of government
• Executive power to two different organs
• a) President of the Republic
• b) Government
• Different source of legitimation
• a) popular
• b) parliamentary (implicit)
• 3) Risk of Cohabitation

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V Republic

• Three superimposed levels
• in the form of government
• De Gaulle strong President, juridical
  realization of the role he intended to assume
• Minister of Justice Debré Modell Westminster,
  but well awared of the deep difference of the
  French party system. For a strong Prime Minister
  , entitled to lead the Government.
• Not gollist Miniters of De Gaulles Cabinet
  protection of Government in the discipline of the
  confidence relationship

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President of Republic

• Elections originally indirected, by a group of
  ca. 75.000 electors (mainly conservative),
  directly elected since 1962
• In charge for 5 years (since 2000, previously 7
  against Cohabitation)
• Special competences in foreign and defense
  politics
• Possible indiction of referendum for direct
  consultation of the electoral body
• Some competences without countersignature
• Possible extraordinary emergency powers (Art. 16
  Const. Where the institutions of the Republic,
  the independence of the Nation, the integrity of
  its territory or the fulfilment of its
  international commitments are under serious and
  immediate threat, and where the proper
  functioning of the constitutional public
  authorities is interrupted, the President of the
  Republic shall take measures required by these
  circumstances, after formally consulting the
  Prime Minister, the Presidents of the Houses of
  Parliament and the Constitutional Council.)

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Government

• No official Confidence vote by the Parliament
• May arise a confidence motion on its program or a
  general political statement
• Can be object of a non-confidence resolution by
  the National Assembly (Art. 49 Const.)
• Limited relevance of the resolution abstaining
  ballots and absents counted in favour of the
  Government
• General stability of the Government, even if
  minoritarian or in Cohabitation

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Federal Republic of Germany
History

• Debellatio and refoundation
• Potsdam Conference (8/8/1945)
• Three D Denazification, Democracy,
  Decentralization
• Full powers to the military authorities

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German Democratic Republic

• Refounded on the new-born Communist Party (KPD)
• 22/4/1946 Unification of KPD and SPD into the
  SED (Sozialistische Einheitspartei Deutschlands)
• Constitution of 7/10/1949 indivisible
  democratic republic based on the Länder
• Sovereignty and civil rights from the WRV
• Supremacy of public property
• Confidence between Government and People Chamber
  (connection with WRV)
• Constructive non-confidence vote (present in the
  GG)

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German Democratic Republic
5) Limited role of Länder Länderkammer as a
limit to the Peoples Chamber 6) Head of State
elected by both Chambers, possible to recall him,
provided with mere formal powers 7) Effective
central role of SED Constitution of 1968
(modified in 1974) Ideological and
propagandistic Text Focused on socialist
legality principle unification of power and
central role of ruling party, subordered to USSR
dictates
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German Democratic Republic
Berlin, november 9th 1989
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Federal Republic of Germany
History

• Refoundation on participation of Länder and
  local Government
• Occupers affecting fundamental liberties much
  more than economic relationships
• Frankfurt Document (1/7/1948) Länder
  Governments entitled to write a Constitution
• Considered temporary, therefore
• Parlamentarischer Rat (Parliamentary Council)
  instead of Constituent Assembly
• Grundgesetz (Fundamental Law) instead of
  Verfassung (Constitution)

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Federal Republic of Germany
History

• Temporary character considering future
  reunification with eastern area
• Aug. 1948, Herrenchiemsee Experts Commission
  realize a first version of the Constitution
• Parliamentary Council in Bonn (since Sept. 1948)
• May 9 1949 Basic Law approved with 59 votes
  against 12, then ratified by the Länder
  Parliaments (rejected by the only bavarian
  Parliament)

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Federal Republic of Germany
GG and WRV

• Influence of WRV on the realization of the BL
• Important temporary character
• Centralist (SPD) and federalist (CDU/CSU) option
  merged into the Constitution
• Central role of rights and human dignity as
  reaction to Weimar
• Strategic position of BRD in the post-war period
  and the forthcoming Cold War

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Federal Republic of Germany
GG and WRV
Constituent Obsession in Bonn To avoid
mistakes of Weimar Main points 1) warrant
Executives stability. Therefore a) Limitation
of President of the Republic b) Central role of
the Chancellor into the Government c)
Constructive non-confidence vote d) Electoral
system
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Federal Republic of Germany
GG and WRV
2) Effective and fighting Democracy a) Art. 20
BL BRD The Federal Republic of Germany is a
democratic and social federal State b)
Fundamental Rights limit to public powers ?Art.
1 I BL Human dignity shall be inviolable. To
respect and protect it shall be the duty of all
state authority. c) Art. 20 IV BL All Germans
shall have the right to resist any person seeking
to abolish this constitutional order, if no other
remedy is available.
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Federal Republic of Germany
GG and WRV
d) Art. 18 LF Whoever abuses the freedom of
expression, in particular the freedom of the
press (paragraph (1) of Article 5), the freedom
of teaching (paragraph (3) of Article 5), the
freedom of assembly (Article 8), the freedom of
association (Article 9), the privacy of
correspondence, posts and telecommunications
(Article 10), the rights of property (Article
14), or the right of asylum (Article 16 a) in
order to combat the free democratic basic order
shall forfeit these basic rights. This forfeiture
and its extent shall be declared by the Federal
Constitutional Court.
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Federal Republic of Germany
GG and WRV
e) Art. 21 BL 1) Political parties shall
participate in the formation of the political
will of the people. They may be freely
established. Their internal organisation must
conform to democratic principles. 2) Parties
that, by reason of their aims or the behaviour of
their adherents, seek to undermine or abolish the
free democratic basic order or to endanger the
existence of the Federal Republic of Germany
shall be unconstitutional. The Federal
Constitutional Court shall rule on the question
of unconstitutionality.
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Federal Republic of Germany
Form of State

• Federal State based on Subsidiarity Principle
• Art. 23 I BL With a view to establishing a
  united Europe, the Federal Republic of Germany
  shall participate in the development of the
  European Union that is committed to democratic,
  social, and federal principles, to the rule of
  law, and to the principle of subsidiarity, and
  that guarantees a level of protection of basic
  rights essentially comparable to that afforded by
  this Basic Law
• Art. 31 BL Federal law shall take precedence
  over Land law

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Institutional Organization
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Bundesrat Seats and Länder
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Personalized Proportional Representation
Vote to list
Vote to candidate
Election of ½ members of Bundestag (328) Vote to
party list without preferences Treshold 5
Clause
Election of ½ of members of Bundestag
(328) Vote to candidate (Majority) Possible
split of votes Treshold. 3 direct mandates
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Legislative Competences

• Guidelines
• Art. 31 LF Federal law shall take precedence
  over Land law
• Art. 30 LF Except as otherwise provided or
  permitted by this Basic Law, the exercise of
  state powers and the discharge of state functions
  is a matter for the Länder
• Art. 70 I LF The Länder shall have the right to
  legislate insofar as this Basic Law does not
  confer legislative power on the Federation

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Different legislative competences

• Exclusive Federations Competence
• Art. 73 foreign affairs and defense, including
  protection of the civilian population
  citizenship in the Federation freedom of
  movement, passports, immigration, emigration, and
  extradition currency, money, and coinage,
  weights and measures unity of the customs and
  trading area air transport postal and
  telecommunication services persons employed by
  the Federation
• b) Concurrent legislative competence
• Art. 74 civil law criminal law judiciary
  order the legal profession, notaries, and the
  provision of legal advice law of association and
  assembly
• Art. 72 I On matters within the concurrent
  legislative power, the Länder shall have power to
  legislate so long as and to the extent that the
  Federation has not exercised its legislative
  power by enacting a law
• Art. 72 II The Federation shall have the right
  to legislate on these matters if and to the
  extent that the establishment of equal living
  conditions throughout the federal territory or
  the maintenance of legal or economic unity
  renders federal regulation necessary in the
  national interest. .
• Competence of Constitutional Tribunal to verify
  presence of such conditions

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Different legislative competence
Art. 73 III (created in 2006) Exceptional for
certain topics If the Federation issues a law,
Länder can adopt waiver dispositions in the
following topics a) hunting, environment and
landscape protection b) allocation of territory
c) organization of territory d) waters e)
University admission procedures and
diplomas Federal legislation to be effective
only 6 months after publication, if not
differently decided with Bundesrats aproval. In
case of differences between federal and regional
legislation on these topics prevails the last one
issued. So called PING-PONG Effect Exclusive
Länder Legislative Competences Criminal law
application Law of reunion public employees
welfare at a regional level regional justice
university Press regulation
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Administrative Competences
Art. 83 The Länder shall execute federal laws in
their own right insofar as this Basic Law does
not otherwise provide or permit. Art. 84 Where
the Länder execute federal laws in their own
right, they shall regulate the establishment of
the authorities and their administrative
procedure insofar as federal laws enacted with
the consent of the Bundesrat do not otherwise
provide. The Federal Government shall exercise
oversight to ensure that the Länder execute
federal laws in accordance with the law. The
Federal Government, with the consent of the
Bundesrat, may issue general administrative
rules.. Art. 85 Where the Länder execute federal
laws on federal commission, establishment of the
authorities shall remain the concern of the
Länder, except insofar as federal laws enacted
with the consent of the Bundesrat otherwise
provide.
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