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Table of Contents
Intro
Preface
Comparability of Constitutions
For Whom Writing Constitutions Is Written
What Writing Constitutions Does Not Do
Sources and Examples Used in Writing Constitutions
Nominal Constitutions and Constitutional Reality
Writing Constitutions Explained
Contents
About the Authors
Abbreviations
List of Figures
List of Tables
Part I: Parliament
1: Unicameral or Bicameral Parliaments
1.1 Overview of the External Organisational Structure of Parliaments
1.1.1 Historical Context and Function
1.1.2 Structural Approach
1.2 Monocameral Parliaments
1.3 Bicameral Parliaments
1.4 Remarks
References
2: The Deputy
2.1 Status of a Deputy: The Free Mandate, Its Limitation and Protection
2.1.1 Overview over the Status of a Deputy
2.1.1.1 Free Mandate, Incompatibility, Loss of Mandate
2.1.1.2 Purpose and Function of the Rules
2.1.1.3 Historical Context
2.1.1.4 Related Topics
2.1.1.5 Structural Approach and Guiding Questions
2.1.2 Details of the Clause
2.1.2.1 Is the Mandate Free or Imperative?
2.1.2.2 Is the Mandate (In)compatible with Other Occupations?
2.1.2.3 Does the Constitution Provide for the Deputy´s Salary?
2.1.2.4 Does the Constitution List Causes That Lead to a Loss of the Mandate?
2.1.2.5 Are the Rules Regulated in the Constitution or by National Laws?
2.2 The Deputy: Immunity and Indemnity
2.2.1 Overview over Immunity and Indemnity
2.2.1.1 Definition
2.2.1.2 Purpose and Function of Immunity and Indemnity
2.2.1.3 Legal Nature/Character
2.2.1.4 Historical Context
2.2.1.5 Structural Approach and Guiding Questions
2.2.2 Details of the Clause
2.2.2.1 Is Indemnity Guaranteed at All?
2.2.2.2 What Is the Scope of Indemnity?
2.2.2.3 Are There Exceptions for Certain Crimes?.
2.2.2.4 Is There a Temporal Limit of Indemnity?
2.2.2.5 Is Immunity Guaranteed at All?
2.2.2.6 What Is the Scope of Immunity?
2.2.2.7 Is There a Temporal Limit to Immunity?
2.2.2.8 Can Immunity/Indemnity Be Lifted?
2.2.2.9 Can a Court Review the Decision?
References
3: Political Parties and Thresholds
3.1 Rules Around Political Parties
3.1.1 Overview of the Clauses Referring to Political Parties
3.1.1.1 Definition, Purpose and Function of Political Parties
3.1.1.2 Historical Context
3.1.1.3 Procedural Questions
3.1.1.4 Structural Approach and Guiding Questions
3.1.2 Details of the Clauses Concerning Political Parties
3.1.2.1 Qualification as Political Party
3.1.2.2 Protection of Political Parties
3.1.2.3 Ban and Dissolution
3.1.2.4 Party Financing
3.1.2.5 Necessity of a Constitutional Rule Concerning Political Parties
3.2 Election Thresholds Including Allocation of Non-counting Votes
3.2.1 Overview of the Threshold Clause
3.2.1.1 Definition
3.2.1.2 Historical Context and Purpose of a Threshold Clause
3.2.1.3 Disadvantages of a Threshold Clause
3.2.1.4 Structural Approach and Guiding Questions
3.2.2 Details of a Threshold Clause in a Constitutional System
3.2.2.1 Majority System
3.2.2.2 Proportional System
3.2.2.3 Level of the Threshold
3.2.2.4 Does the Threshold Apply to Parties or Party Coalitions?
3.2.2.5 Exemptions to Support Regionally Strong Parties
3.2.2.5.1 Option 1: (Alternative) Threshold on District Level
3.2.2.5.2 Option 2: No Application of Threshold if Party Wins Several Seats in a Constituency
3.2.2.6 Allocation of ``Wasted´´ (i.e. Unallocated) Votes
3.2.2.7 Regulation on Constitutional Level or by Ordinary Law?
An illustration of a rectangle-shaded box with a thick borderline.Electoral Laws Referred to in This Chapter.
5.1.2.5 How Do the Findings Relate to the Judiciary?
5.1.2.6 When and How Is the Committee Dissolved?
5.1.2.7 Regulation on Constitutional Level or by Ordinary Law?
5.2 Inquisitorial Rights
5.2.1 Overview of Inquisitorial Rights
5.2.1.1 Definition
5.2.1.2 Historical Context
5.2.1.3 Function
5.2.1.4 Structural Approach and Guiding Questions Concerning Inquisitorial Rights
5.2.2 Details of the Clauses Concerning Parliament´s Inquisitorial Rights
5.2.2.1 Right of Questioning
5.2.2.1.1 Overview
5.2.2.1.2 Written Enquiries
5.2.2.1.3 Institutionalized Regular Question Time
5.2.2.1.4 Means of Enforcing the Right of Questioning
5.2.2.2 Right of Interpellation
5.2.2.2.1 Overview
5.2.2.2.2 Initiation Threshold
5.2.2.2.3 Addressee
5.2.2.2.4 Duty to Personally Attend
5.2.2.2.5 Obligation to Respond
5.2.2.3 Allowed Scope of Questions
References
6: Legislation
6.1 Overview
6.2 Legislative Initiative
6.2.1 Detailed Provisions
6.2.2 Remarks
6.3 Reading of Laws
6.3.1 Detailed Provisions
6.3.2 Remarks
6.4 Solution of Bicameral Conflicts
6.4.1 Detailed Provisions
6.4.2 Remarks
6.5 Approval and Control of Legislative Acts
6.5.1 Detailed Provisions
6.5.2 Remarks
6.6 Parliamentary Reservation and Delegated Legislation
6.6.1 Overview
6.6.2 Parliamentary Reservation
6.6.3 Remarks
6.6.4 Delegated Legislation
6.6.5 Remarks
References
Part II: President
7: The Presidential Office: Qualification, Election and Term
7.1 Qualification and Oath
7.1.1 Overview of the Presidential Qualifications and Oath
7.1.1.1 Definitions
7.1.1.2 Historical Context
7.1.1.3 Qualification Clause
7.1.1.4 Oath
7.1.1.5 Potential of Misuse
7.1.2 Structural Approach and Guiding Questions and Qualifications
7.1.2.1 Age Restrictions.
7.1.2.2 Citizenship
7.1.2.2.1 Citizenship Requirements
7.1.2.2.2 Controversy ``Natural-Born´´
7.1.2.2.3 Term Citizenship ``By Origin´´
7.1.2.2.4 Citizenship Requirements for Relatives
7.1.2.3 Residence
7.1.2.4 Right to Vote and Eligibility
7.1.2.5 Education and Religion
7.1.2.5.1 An Issue in Poor and Religious Countries
7.1.2.5.2 Recommendation for a Democratic Society
7.1.2.6 Incompatibilities
7.1.2.6.1 Ineligibility
7.1.2.6.2 Other Reasons for Incompatibility
7.1.2.7 Possible Solutions to Prevent Misuse and Negative List
7.1.2.8 Clause to Restrict Amendments
7.1.3 Oath
7.2 Election of the President
7.2.1 Overview
7.2.1.1 Definition and Purpose of the Provision
7.2.1.2 Historical Context
7.2.1.3 Criteria for a ``Good´´ Election Clause
7.2.2 Procedural Questions
7.2.3 Structural Approach
7.2.4 Details of the Election Clause
7.2.4.1 When Does the Election Take Place?
7.2.4.2 How Are the Candidates Pre-selected?
7.2.4.3 Direct or Indirect Election?
7.2.4.4 In Case of an Indirect Election, Which Body Elects the President?
7.2.5 Which Majority Is Required To Be Voted into Office?
7.2.6 Is There a Minimum Turnout Rate?
7.2.7 What Happens if the Candidate Does Not Obtain the Required Majority?
7.2.8 Supplementing Provisions
7.3 Duration of Presidential Term
7.3.1 Overview
7.3.1.1 Definition
7.3.1.2 Purpose and Function of the Rule
7.3.1.3 Historical Context
7.3.2 Structural Approach and Guiding Questions
7.3.3 Details of the Clause Concerning the Duration of Office
7.3.3.1 Is a Limitation of the Duration of Office at All Required?
7.3.3.2 Which Duration Is Advisable?
7.3.3.3 Is a Limit of Possible Re-elections Advisable?
7.3.3.4 Limited Number of Re-elections After Regular Election into Office.
Preface
Comparability of Constitutions
For Whom Writing Constitutions Is Written
What Writing Constitutions Does Not Do
Sources and Examples Used in Writing Constitutions
Nominal Constitutions and Constitutional Reality
Writing Constitutions Explained
Contents
About the Authors
Abbreviations
List of Figures
List of Tables
Part I: Parliament
1: Unicameral or Bicameral Parliaments
1.1 Overview of the External Organisational Structure of Parliaments
1.1.1 Historical Context and Function
1.1.2 Structural Approach
1.2 Monocameral Parliaments
1.3 Bicameral Parliaments
1.4 Remarks
References
2: The Deputy
2.1 Status of a Deputy: The Free Mandate, Its Limitation and Protection
2.1.1 Overview over the Status of a Deputy
2.1.1.1 Free Mandate, Incompatibility, Loss of Mandate
2.1.1.2 Purpose and Function of the Rules
2.1.1.3 Historical Context
2.1.1.4 Related Topics
2.1.1.5 Structural Approach and Guiding Questions
2.1.2 Details of the Clause
2.1.2.1 Is the Mandate Free or Imperative?
2.1.2.2 Is the Mandate (In)compatible with Other Occupations?
2.1.2.3 Does the Constitution Provide for the Deputy´s Salary?
2.1.2.4 Does the Constitution List Causes That Lead to a Loss of the Mandate?
2.1.2.5 Are the Rules Regulated in the Constitution or by National Laws?
2.2 The Deputy: Immunity and Indemnity
2.2.1 Overview over Immunity and Indemnity
2.2.1.1 Definition
2.2.1.2 Purpose and Function of Immunity and Indemnity
2.2.1.3 Legal Nature/Character
2.2.1.4 Historical Context
2.2.1.5 Structural Approach and Guiding Questions
2.2.2 Details of the Clause
2.2.2.1 Is Indemnity Guaranteed at All?
2.2.2.2 What Is the Scope of Indemnity?
2.2.2.3 Are There Exceptions for Certain Crimes?.
2.2.2.4 Is There a Temporal Limit of Indemnity?
2.2.2.5 Is Immunity Guaranteed at All?
2.2.2.6 What Is the Scope of Immunity?
2.2.2.7 Is There a Temporal Limit to Immunity?
2.2.2.8 Can Immunity/Indemnity Be Lifted?
2.2.2.9 Can a Court Review the Decision?
References
3: Political Parties and Thresholds
3.1 Rules Around Political Parties
3.1.1 Overview of the Clauses Referring to Political Parties
3.1.1.1 Definition, Purpose and Function of Political Parties
3.1.1.2 Historical Context
3.1.1.3 Procedural Questions
3.1.1.4 Structural Approach and Guiding Questions
3.1.2 Details of the Clauses Concerning Political Parties
3.1.2.1 Qualification as Political Party
3.1.2.2 Protection of Political Parties
3.1.2.3 Ban and Dissolution
3.1.2.4 Party Financing
3.1.2.5 Necessity of a Constitutional Rule Concerning Political Parties
3.2 Election Thresholds Including Allocation of Non-counting Votes
3.2.1 Overview of the Threshold Clause
3.2.1.1 Definition
3.2.1.2 Historical Context and Purpose of a Threshold Clause
3.2.1.3 Disadvantages of a Threshold Clause
3.2.1.4 Structural Approach and Guiding Questions
3.2.2 Details of a Threshold Clause in a Constitutional System
3.2.2.1 Majority System
3.2.2.2 Proportional System
3.2.2.3 Level of the Threshold
3.2.2.4 Does the Threshold Apply to Parties or Party Coalitions?
3.2.2.5 Exemptions to Support Regionally Strong Parties
3.2.2.5.1 Option 1: (Alternative) Threshold on District Level
3.2.2.5.2 Option 2: No Application of Threshold if Party Wins Several Seats in a Constituency
3.2.2.6 Allocation of ``Wasted´´ (i.e. Unallocated) Votes
3.2.2.7 Regulation on Constitutional Level or by Ordinary Law?
An illustration of a rectangle-shaded box with a thick borderline.Electoral Laws Referred to in This Chapter.
5.1.2.5 How Do the Findings Relate to the Judiciary?
5.1.2.6 When and How Is the Committee Dissolved?
5.1.2.7 Regulation on Constitutional Level or by Ordinary Law?
5.2 Inquisitorial Rights
5.2.1 Overview of Inquisitorial Rights
5.2.1.1 Definition
5.2.1.2 Historical Context
5.2.1.3 Function
5.2.1.4 Structural Approach and Guiding Questions Concerning Inquisitorial Rights
5.2.2 Details of the Clauses Concerning Parliament´s Inquisitorial Rights
5.2.2.1 Right of Questioning
5.2.2.1.1 Overview
5.2.2.1.2 Written Enquiries
5.2.2.1.3 Institutionalized Regular Question Time
5.2.2.1.4 Means of Enforcing the Right of Questioning
5.2.2.2 Right of Interpellation
5.2.2.2.1 Overview
5.2.2.2.2 Initiation Threshold
5.2.2.2.3 Addressee
5.2.2.2.4 Duty to Personally Attend
5.2.2.2.5 Obligation to Respond
5.2.2.3 Allowed Scope of Questions
References
6: Legislation
6.1 Overview
6.2 Legislative Initiative
6.2.1 Detailed Provisions
6.2.2 Remarks
6.3 Reading of Laws
6.3.1 Detailed Provisions
6.3.2 Remarks
6.4 Solution of Bicameral Conflicts
6.4.1 Detailed Provisions
6.4.2 Remarks
6.5 Approval and Control of Legislative Acts
6.5.1 Detailed Provisions
6.5.2 Remarks
6.6 Parliamentary Reservation and Delegated Legislation
6.6.1 Overview
6.6.2 Parliamentary Reservation
6.6.3 Remarks
6.6.4 Delegated Legislation
6.6.5 Remarks
References
Part II: President
7: The Presidential Office: Qualification, Election and Term
7.1 Qualification and Oath
7.1.1 Overview of the Presidential Qualifications and Oath
7.1.1.1 Definitions
7.1.1.2 Historical Context
7.1.1.3 Qualification Clause
7.1.1.4 Oath
7.1.1.5 Potential of Misuse
7.1.2 Structural Approach and Guiding Questions and Qualifications
7.1.2.1 Age Restrictions.
7.1.2.2 Citizenship
7.1.2.2.1 Citizenship Requirements
7.1.2.2.2 Controversy ``Natural-Born´´
7.1.2.2.3 Term Citizenship ``By Origin´´
7.1.2.2.4 Citizenship Requirements for Relatives
7.1.2.3 Residence
7.1.2.4 Right to Vote and Eligibility
7.1.2.5 Education and Religion
7.1.2.5.1 An Issue in Poor and Religious Countries
7.1.2.5.2 Recommendation for a Democratic Society
7.1.2.6 Incompatibilities
7.1.2.6.1 Ineligibility
7.1.2.6.2 Other Reasons for Incompatibility
7.1.2.7 Possible Solutions to Prevent Misuse and Negative List
7.1.2.8 Clause to Restrict Amendments
7.1.3 Oath
7.2 Election of the President
7.2.1 Overview
7.2.1.1 Definition and Purpose of the Provision
7.2.1.2 Historical Context
7.2.1.3 Criteria for a ``Good´´ Election Clause
7.2.2 Procedural Questions
7.2.3 Structural Approach
7.2.4 Details of the Election Clause
7.2.4.1 When Does the Election Take Place?
7.2.4.2 How Are the Candidates Pre-selected?
7.2.4.3 Direct or Indirect Election?
7.2.4.4 In Case of an Indirect Election, Which Body Elects the President?
7.2.5 Which Majority Is Required To Be Voted into Office?
7.2.6 Is There a Minimum Turnout Rate?
7.2.7 What Happens if the Candidate Does Not Obtain the Required Majority?
7.2.8 Supplementing Provisions
7.3 Duration of Presidential Term
7.3.1 Overview
7.3.1.1 Definition
7.3.1.2 Purpose and Function of the Rule
7.3.1.3 Historical Context
7.3.2 Structural Approach and Guiding Questions
7.3.3 Details of the Clause Concerning the Duration of Office
7.3.3.1 Is a Limitation of the Duration of Office at All Required?
7.3.3.2 Which Duration Is Advisable?
7.3.3.3 Is a Limit of Possible Re-elections Advisable?
7.3.3.4 Limited Number of Re-elections After Regular Election into Office.