Download Constitutions and Constitutionality

Miljen Matijašević
E-mail: [email protected]
Office: G10, room 6 (1st floor)
Tue, 11:30-12:30
Today’s session
1.
Revision of the last session
2. Constitutions and Constitutionality
3. American Federalism
Legal Aid – Criminal Procedure in the UK
Revision – Legal Aid
1.
2.
3.
4.
5.
6.
What two types of legal aid do people usually need?
How is eligibility for legal aid determined?
Explain the functioning of the two tests.
What is referred to as ‘contracting’?
How do conditional fee agreements function?
What types of cases (do not) usually qualify for free
legal aid?
Revision – Criminal Procedure
1.
2.
3.
4.
5.
6.
7.
8.
Who are the parties in a criminal procedure?
What is the job of the police in criminal justice?
What do you know about the standard of proof?
Are all crimes prosecuted?
What are the categories of criminal offence?
What happens in a magistrates’ court?
What are triable either way offences?
What do you know about trials at the Crown Court?
Translate the sentences
1.
The police investigate a crime, apprehend suspects and detain them in
custody.
2.
In the determination of his civil rights and obligations and of any
criminal charge against him, everyone is entitled to a fair and public
hearing within a reasonable time by an independent and impartial
tribunal established by law.
3.
The right to liberty and security governs matters pertaining to unlawful
arrest and detention and lays down the conditions under which an
individual can be deprived of his or her liberty.
4.
The prosecutor must be sure that the evidence is legally admissible and
reliable, taking account of the witnesses.
5.
The defendant's silence may be adversely interpreted in the court.
Unit 12
What is a constitution?

the supreme legal act, to which legislation and other regulations must
conform

the basic principles and laws of a nation, state, or social group that
determine the powers and duties of the government and guarantee
certain rights to the people in it

a written instrument embodying the rules of a political or social
organization
Importance of constitutions

Lays down the key principles on which a society, political and legal system are
built

Sets out the organisation of government

Guarantees rights and freedoms of its citizens

Strategic political act of a state and of a people

Legitimizes a democratic state before the international community

Facilitates stability
Types of constitution
 federal (multilayered) or unitary
 codified or uncodified
 rigid or flexible
The Constitution of the Republic of Croatia

Promulgated on 22 December 1990, amended in 1997, 2000, 2001 and 2010

Contains the following sections:
1.
Historical foundations
2.
Basic provisions
3.
Protection of human rights and fundamental freedoms
4.
Organization of government
5.
The Constitutional Court of the Republic of Croatia
6.
Local and regional self-government
7.
International relations
8.
Amending the Constitution
9.
Final provisions
The Constitution of the RC
1. Historical foundations
 Outlines the history of the Croatian state, i.e. the political idea
of Croatia as an independent state from the 7th century onwards
 Draws upon the legacy of the rejection of communism and the
political changes in the late 1980s and of the Homeland War
“Respecting the will of the Croatian nation and all citizens, resolutely expressed
in the free elections, the Republic of Croatia is hereby founded and shall
develop as a sovereign and democratic state in which equality, freedoms
and human rights are guaranteed and ensured, and their economic and
cultural progress and social welfare promoted. “
The Constitution of the RC
2. Basic provisions
 Define the Republic of Croatia as a unitary and
indivisible, sovereign democratic and social state
 Lay down the most fundamental features of the state:
organisation of government, democratic
principles, separation of powers, political parties,
armed forces, the national flag, coat of arms,
anthem, language and script, and the capital city
The Constitution of the RC
3.
Protection of human rights and fundamental
freedoms
 Set out the fundamental rights and freedoms of
Croatian citizens
 Transpose the provisions of the UN Convention of
Human Rights
 equality before the law, presumption of innocence,
right to a fair trial, right to appeal court and
administrative decisions, etc.
The Constitution of the RC
3.
Protection of human rights and fundamental
freedoms
 the right to life (prohibits the death penalty), freedom,
freedom of movement, private life, communication,
religion, beliefs, etc.
 economic and social rights (work, property, social
security, strike, family relations, education, etc.)
The Constitution of the RC
4.
Organization of government
 These provisions lay down the organisation, rights,
duties and powers of:
 the Croatian Parliament,
 the President of the Republic of Croatia,
 the Government of the Republic of Croatia,
 the Judiciary, and
 the State Attorney’s Office
The Constitution of the RC
5.
The Constitutional Court of the RC
 Consists of 13 judges, appointed by the Croatian
Parliament for an 8-year mandate
 Selected from the ranks of reputable jurists, judges,
state attorneys and attorneys
 Not an actual court within the RC court system
The Constitution of the RC
5.
The Constitutional Court of the RC
 The Court’s main tasks are as follows:
 to decide on the conformity of laws with the Constitution, and of
other regulations with the law and the Constitution
 to decide on constitutional complaints against individual court or
administrative decisions (e.g. If the violate human rights and
fundamental freedoms, etc.)
 to decide on jurisdictional disputes between the 3 branches of
government
 to decide on the impeachment of the President of the RC
 to supervise the constitutionality and legality of elections and
referenda
The Constitution of the RC
6.
Local and regional self-government
 This section regulates the right to local and regional
self-government, the division into local administrative
units (counties, municipalities, cities), local elections
 Lays down the scope of competence of local self-
government units, such as the organization of housing
and urban planning, public utilities, child care, social
welfare, primary health services, education and
elementary schools, culture, physical education and
sports, etc.
The Constitution of the RC
7.
International relations
 Concerns the areas of international agreements and
association and secession
 IA – regulates competence over and the ratification of
international agreements, according to their content
 Association and secession – regulates the procedure
of acceding to alliances with other states – who can
initiate the procedure and the number of votes in
Parliament, i.e. on the referendum are necessary for
such a decision to be passed
The Constitution of the RC
8.
Amending the Constitution
 This section regulates the procedure of amending the
Constitution
 Amendments may be proposed by one fifth of
representatives in the CP, the President and the
Government of the RC
 The decision to amend must be approved by the majority
of representatives
 Amendments may be adopted only if a two-thirds majority
of all representatives vote in favour
The Constitution of the RC
9.
Final provisions
 These provisions rescind the former House of the
Counties of the Croatian Parliament and confers to the
CP the obligation to enact a Constitutional Act
implementing the Constitution
Birth and Constitution
The United States of America
The United States of America
Capital: Washington, D.C. (largest city: New York City)
Population: 306 million, Area: 9,8m km2
Government: Federal constitutional republic comprising 50 states (48
continental + Alaska and Hawaii) and 1 federal district (District of
Columbia)
The USA – the beginnings
 Founded by 13 British colonies who rebelled against
British rule
 The Thirteen Colonies were: Delaware,
Pennsylvania, New Jersey, Georgia, Connecticut,
Massachusetts, Maryland, South Carolina, New
Hampshire, Virginia, New York, North Carolina and
Rhode Island
 The territory of these colonies also included 5 present-
day states: Vermont, Kentucky, Tennessee, Maine and
West Virginia
Growth of the United States
The USA – the revolution
 Mid 18th century: Britain exerted tax-levying power in
the American colonies, while they were not
represented in Parliament
 Two views:
1. the power of Parliament is undisputed;
2. colonies should get parliamentary representation
 Supporters of both views were present both in the
Colonies and in British Parliament
The USA – the revolution
The Boston Tea Party (1773) – an act of rebellion
against British rule
 Culmination of resistance that led to the first
continental congresses – conventions of
representatives of the colonies), the American
Revolutionary War, and ultimately the independence
of the USA
The USA - independence
First Continental Congress (1774)
 representatives of the 13 Colonies gathered and
petitioned King George III to repeal acts that were
imposing severe taxes on them
 the King refused, which led to more opposition and
ultimately to war
The USA - independence
American Revolutionary War (1775-1783)
 Armed conflict between the British Empire and the 13
Colonies
 several European countries joined in the war
 France and the Netherlands supplied arms and
ammunition to the rebelled colonies
The USA - independence
Second Continental Congress (1775)
 Americans still celebrate Independence Day on the 4th
of July to mark the signing of the Declaration of
Independence (1776)
 The Declaration written largely by Thomas Jefferson at
the Second Continental Congress
 The sovereignty of the United States of America
recognized internationally in 1783 by the signing of the
Treaty of Paris
The Declaration of Independence
 Draws on the basic rights, such as the right to
revolution. Lists reasons why the Colonies should have
a right to independence from Britain
 The famous sentence from the Declaration, pertaining
to human rights:
“We hold these truths to be self-evident, that all men are
created equal, that they are endowed by their Creator with
certain unalienable Rights, that among these are Life, Liberty
and the pursuit of Happiness.”
USA Constitution
Second Continental Congress (continued)
 apart from the drafting of the Declaration of
Independence, a committee was put together to draft a
constitution for the United States
 The result was the Articles of Confederation and
Perpetual Union – the first constitution for the USA
Articles of Confederation
 laid the foundation for a confederation of states,
capable of making war, negotiating diplomatic
agreements, and resolving issues regarding the
western territories
 Confederation: did not provide for a strong central
government
 relatively powerless regarding interstate conflicts and
forcible collection of tax
USA Constitution
 Criticised by ‘federalists’, supporters of the idea of
federation
 Another criticism – the Articles provided for a ‘one
state – one vote’ system of central government, which
was deemed unfair to the larger states
 They were expected to contribute more tax money but
only had one vote
USA Constitution
Constitutional Convention in Philadelphia (1787)
 Organised at the initiative of Virginia
 Aim: to amend the Articles
 Main concern: the division of powers between the
states and the nation
USA Constitution
 Two main agendas proposed for the improvement of
the Articles of Confederation:
 The Virginia Plan (by James Madison)
 The New Jersey Plan (by William Paterson)
USA Constitution
 The Virginia Plan (‘Large State Plan’) :
 bicameral legislature (House and Senate) – both
with proportional representation
 lower house elected by the people, upper by the
lower
 executive selected by the legislature
 judiciary with life-term appointments, also
appointed by the legislature
USA Constitution
 The New Jersey Plan (‘Small State Plan’)
 opposed to proportional representation, as it
would give more power to larger states
 proposed a unicameral legislature with one vote
per state (equal representation)
USA Constitution
 The Great Compromise (‘the Connecticut
Compromise’):
 The Virginia Plan was amended so that the House of
Representatives would remain the house with
proportional representation, while the Senate would be
structured according to the New Jersey Plan
USA Constitution
 Constitution of the United States of America,
adopted on 17 September 1787
 Ratified by all 13 colonies between 1787 and 1790
 the new government, structured under the new
Constitution, constituted after the ratification by a
majority of nine states (as required by the Articles of
Confederation) in 1789
USA Constitution
 The original Constitution featured 7 articles
 It has since received 27 amendments, the first 10 of
which are known as the Bill of Rights
 The US Constitution inspired by the ideas of the
separation of powers, but also by the British
experience of mixed government (some issues decided
by the people, some by a selected group)
 The system of ‘checks and balances’ between the
branches of power
USA Constitution
 The articles of the Constitution deal with the following
areas:
 legislative power,
 executive power,
 judicial power,
 states’ powers and limits,
 amendments,
 federal powers, and
 ratification
USA Constitution
 The Bill of Rights adds provisions regarding issues
such as:
 freedom of religion,
 freedom of speech,
 freedom of press,
 freedom of assembly;
 the right to bear arms,
 the right to a jury trial,
 the Miranda rights (rights of the accused), etc.
Division of powers
Exclusively national powers:
 coining money
 defense
 foreign relations
Concurrent powers (exercised at both state and national levels)
 levying taxes
 regulation of commerce
Division of powers
State powers
 The Tenth Amendment provides that any powers not
delegated to the United States, and not prohibited to
be exercised by the States, are reserved for the States
and the people
 i.e. states can exercise any legal powers and legislate in
any areas not reserved for the United States (i.e. the
national level), provided they are not in conflict with
the Constitution and/or federal laws
Legislative power in the US
 Federal (national) level:
 The United States Congress
 enacts federal laws
 State level:
 State legislatures (a.k.a. General Assembly, Legislative
Assembly, etc.)
 enact state laws within their competence
United States Congress
 The Congress convenes in the US Capitol in
Washington DC (535 congressmen)
• House of
Representatives (435
representatives) –
proportional representation
• Senate (100 senators) –
two senators per state
• all congressmen chosen
in a direct election
United States Congress
 Federal legislative body – consent of both houses required to enact bills
 Powers:
 financial and budgetary matters,
 collecting federal tax,
 national defense (declaring war),
 establishing federal courts under the Supreme Court,
 admission of new states to the union,
 regulation of commerce between states and with other countries,
 supervision of the executive (investigation, impeachment and removal
of the President, federal judges and other federal officers),
 appointment of members of the Cabinet and judges (on the President’s
proposal)
United States Congress
 Each house has some reserved powers:
 House of Representatives: proposing bills on tax
collection, power of impeachment of federal officials
(both executive and judicial) for "Treason, Bribery, or
other high Crimes and Misdemeanors“
 Senate: ratification of treaties, confirmation of top
presidential appointments, trying cases of impeachment
United States Congress
 Impeachment
 a simple majority in the House is required to impeach an
official
 a two-thirds majority in the Senate is required for
conviction
 a convicted official automatically removed from office
 in addition, the Senate may stipulate that
the defendant be banned from holding office in the
future.
Legislative procedure
 Bills may originate in either house, except for tax-
related bills (only HoR), and are sometimes prepared
by pressure groups or lobbyists (corporations, labour
unions, etc.)
 Houses may amend bills, but they must be approved
and voted by both houses in order to become law
Legislative procedure
 An adopted bill is submitted to the President for
signature
 The President may veto a bill, returning it to Congress
with objections
 In such a case, the Congress may only override the veto
with a two-thirds majority vote
Discuss the following vocabulary items!
federal powers
state powers
parliamentary representation
to impose taxes
to levy taxes
sovereignty
confederation
federation
proportional representation
equal representation
Bill of Rights
checks and balances
delegated powers
reserved powers
to exercise powers
congressman
representative
senator
impeachment
ratification
Thank you for your attention!