Constitutional Settlement Research Articles

Dialogic incrementalism in deeply divided societies

Abstract A number of the world’s “deeply divided” societies are mired in violent conflicts which often grow out of historic tensions between the nation’s ethno-religious or linguistic groups. Elites within these societies tried to end these conflicts by drafting a constitution that would address the underlying grievances which fuel intergroup conflict. In many cases, however, rather than promoting peaceful political engagement, the process of constitution drafting seemed only to aggravate existing conflicts and create fresh sources of political unrest. Some deeply divided polities have avoided these worst-case outcomes by deploying an “incrementalist” approach to making constitutions. This approach asserts that deeply divided societies need not, and indeed should not, try to answer all constitutional questions. Rather, they can defer the most divisive questions for later resolution. By doing this, incrementalism focuses attention on issues over which some measure of agreement can be forged and enables constitutional ratification under fraught conditions. Critics have, however, identified two real problems with the incrementalist approach: first, once ethnopolitical elites agree to defer important questions, new developments may empower one group and allow it to stop good-faith negotiations and impose its preferred constitutional settlements. Second, the constitution’s open questions may not be resolved in a timely manner, and the lingering ambiguities can produce fresh sources of conflict. This article asks whether one can design constitution-making processes in a way that harvests the benefits of incrementalism while avoiding the problems associated with it. The article suggests that the experiences of Afghanistan and Iraq indicate that there is a particular type of constitutional incrementalism which is more likely than others to accomplish this. It describes three Afghan constitutions, each of which embraced, implicitly, the logic of incrementalism. Of these, however, only one allowed constitutional questions to be addressed in a dialogic fashion. By imposing a process of what I call “dialogic incrementalism,” Afghanistan’s 1931 Constitution helped generate a stable constitutional order. Further, the article suggests that the drafting of Iraq’s 2005 Constitution shows that dialogic incrementalism can be a conscious design option.

The Connection‐Friction Axis in Devolved Health Policy and Law‐Making in the UK: A Case Study of Organ Donation

This article explores the dynamics of devolved health policy and law‐making in the UK, drawing on a case study of opt‐out organ donation reform. Given that health is a significant area of devolved competence, such case studies offer the opportunity to examine both similarities and differences in approach between the four nations in the context of the UK's evolving constitutional settlement. We argue that there is a need to move away from the characterisation of the devolved health policy‐making process as being grounded in a convergence‐divergence approach, towards one that recognises the connection‐friction axis around which this process takes place. To explore this, we present findings from empirical research on opt‐out organ donation law reform. This, we suggest, demonstrates that whilst connectedness between government stakeholders, experts and advocacy groups was clearly vital in structuring the policy process, account should also be taken of how law operates not only as a medium for the playing out of political and ideological friction, but also for the achievement of connection to overcome this.

Unravelling the constitutional settlement: devolution, democracy and patronage in eastern Sri Lanka

ABSTRACT Like other conflict-torn societies, Sri Lankans have long sought to build peace through constitutional re-design with devolution of power and minority protections. However, the preoccupation with legal norms and institutions runs counter to the widely-held conviction that politicians routinely transgress norms and twist institutions. It is thus imperative to study the lived political realities of power-sharing arrangements, rather than their intended design. The 1987 Thirteenth Amendment devolved state power to the provinces to assuage Tamil separatism. The limited academic work that exists on the Provincial Council system outlines its shortcomings and failures, but there is little scholarship of the councils as a political arena in their own right. This article discusses the politics around the Eastern Provincial Council, especially the brief but unique period between 2015 and 2017 when it was run by Tamil and Muslim parties. More specifically, the empirical material pivots on three Sinhala, Tamil and Muslim Ministers in the Eastern Province and two lower-ranking Muslim politicians. The Provincial Council has very different meaning, legitimacy and utility to these diverse political figures. I argue that we must consider these diverse ethno-nationalist manifestations of provincial politics to understand what the Provincial Council system entails in Sri Lanka.

Loyalism, legitimism, and the neo-Jacobite challenge to the Anglo-Scottish Union

ABSTRACT Those who continued with its cause into the late Victorian age, framed loyalism as a principled challenge to the constitutional settlement that culminated in the Anglo-Scottish Union of 1707. The case for restoring the House of Stuart, the focal point of their efforts, had become a distinctive strand within British loyalism but in many respects remained tangential to the movement for home rule in Scotland. Restoration of the Stuarts necessitated the acts of Settlement and Union be set aside and thus represented a more fundamental challenge to the Imperial parliament than the constitutional reform sought by home rulers. The article examines those late Victorian loyalists who recast the home rule cause to advance the tenets of loyalism as their forebears in revolutionary America had done – within the day's foremost democratic debate on rights, freedoms, and the limits of governmental power.

The constitutional quandary of social rights: Questions in times of the Polish illiberal turn

Abstract Scholars have intensely debated the justiciability of constitutional social rights, an essential aspect of transformative constitutionalism in Central and Eastern Europe. This article examines the reasons for displacing social rights in the Polish constitutional discourse and the obstacles in the way of these rights’ gaining normative substance. Polish society came out of socialist authoritarian rule with a strong attachment to social welfare but quickly embraced the neo-liberal economy. However, this attachment was recently recalled by the electoral successes of the social welfare platform of illiberal forces, which prompts questions about the place of social welfare in the constitutional settlement. The article relies on an inquiry into the constitution-making process and the practice of constitutional review during the global financial crisis. It argues that the displacement of social rights has been contingent upon the specific political and intellectual climate of stimulating a free-market economy and crisis-driven austerity, despite minority voices for alternative solutions. It was also due to structural weaknesses of constitutional review, operating in a challenging institutional and political context. This case study raises broader questions about whether and how constitutionalism can gain popular support in times of populist challenges by addressing persisting societal problems.

Europe's constitutional unsettlement: testing the political limits of legal integration

Abstract Law is central to what the European Union is and how it works, but the mismatch between the legal and political dimensions of European integration is undermining the EU from within and limiting its ability to project its power beyond its borders. This article aims to explicate the clash between Europe as a community of law, on the one hand, and Europe as a political project, on the other, by focusing on two crises. The first is the crisis that has arisen in relation to Poland's backsliding when it comes to democracy and the rule of law. The second crisis is the Russian invasion of Ukraine. The two crises are interlinked. An effective response to Russian aggression requires of the EU the kind of solidarity, confidence and unity of purpose that has been undercut by Poland's rule-of-law crisis and by the inadequacy of European responses to it. Thus, both crises unsettle the EU's constitutional settlement, revealing the political limits of legal integration. We find that, if Europe's leaders are to better align the EU's legal order with its political goals and capacity to act, then they will need to acknowledge, and work within, the constraints the EU faces as a union of nation states.

The European Union’s response to the Covid-19 crisis and (the legitimacy of) the Union’s legal order

Abstract In EU legal scholarship, crises are associated with further European integration, often with legal and institutional innovations. Our analysis, covering examples of all aspects of ‘Union Covid law’, investigates two questions. To what extent is this true for the Covid-19 crisis—is Union Covid law what we expected? How has the pandemic re-shaped our understanding of the Union’s legal order, and especially its legitimacy? We draw out three broad overlapping themes, the ‘market/social’, ‘science/politics’, and ‘technocracy/democracy’ dimensions of Union law. We consider both the Union’s health law, and its economic governance, alongside other changes across a wide sweep of Union law including institutional law, and numerous aspects of internal market law, such as competition/state aids and consumer protection law. Overall, we show that Union Covid law is mostly predictable. However, our analysis demonstrates two important surprises. First, a narrow notion of the disciplines of the internal market, usually supposed to be fundamental to Union law, has been profoundly challenged. Second, the Union has not only deployed all its existing redistributive competences to respond to the pandemic. The Union has also effectively redefined its fiscal and economic governance powers to create a redistributive facility which, though formally limited in time, far exceeds in scale and scope any previous Union redistributive activity. Past Union crisis responses involved changes taking place outside Union legal structures, with the law sometimes ‘playing catch up’ in later Treaty amendments. This time, the Union’s Covid-19 crisis response at least purportedly takes place within existing legal constraints. This is new. We show, on the one hand, that the Union’s ‘output’ legitimacy has been enhanced. The Union is not forever condemned to lack legitimacy because of its economic constitutional settlement. The idea of a Union based on a legally encoded dominance of the ‘economic’ over ‘health’ interests—already widely discredited in Union health law scholarship—is replaced by Union law based on creative interpretations of formal competences, designed to meet the needs of human health as well as Union-wide economic recovery. On the other hand, however, the move to executive and technocratic governance associated with the Union’s pandemic response is a step backwards in terms of ‘input’ and ‘throughput’ legitimacy, in terms of both policy substance and law enforcement. The lack of democratic or judicial oversight over Union Covid-19 (soft) law negatively affects the legitimacy of Union law.

THE PROBLEM OF CONSTITUTIONAL REGULATION OF CZECH-SLOVAK RELATIONS IN CZECHOSLOVAKIA IN 1946 – 1948

The article is devoted to the problem of the constitutional regulation of Czech-Slovak relations in Czechoslovakia from 1946 to 1948. The lower chronological limit of the publication is dictated by the adoption of the third Prague Agreement, which essentially turned Czechoslovakia into a unitary state with a strong central government, but at the same time preserved elements of an asymmetric administrative-territorial system. Adopting the new Constitution determines the upper chronological limit of the article on May 9, 1948, which proclaimed the Czechoslovak People's Democratic Republic as a single state of two equal peoples, Czechs, and Slovaks still failed to resolve the Slovak question. The research methodology in the article is based on general scientific and special scientific methods, which allowed the author to avoid inconsistency, imprecision, and detachment from the objective historical process during the research. The article analyzes the views and projects of the leading parties of the Third Czechoslovak Republic on the solution to the Slovak question in the state through the constitutional regulation of Czech-Slovak relations. The author states that the Czech (Czechoslovak) political parties advocated a return to the unitary system. At the same time, the Slovak Democratic Party in 1946-1948 remained a supporter of the reconstruction of Czechoslovakia on a federal basis. The article finds out that the usurpation of power by the communists due to the February coup d'état of 1948 was the decisive factor that influenced the constitutional settlement of Czech-Slovak relations in Czechoslovakia, based on Marxist-Leninist principles, the specific forms of the state system of the Czechs and Slovaks. Of course, under such circumstances, it was impossible to talk about the final solution to the Slovak question in Czechoslovakia.

POST-WAR CONSTITUTION-MAKING: insights from South Asia

ABSTRACT This paper explores the search for constitutional settlement in Myanmar, Nepal and Sri Lanka. In recent decades in each of these states, constitutional change has been mooted as an at least partial solution to severe and sustained internal armed conflict. However, in each of them, change of a kind that responds effectively to the conflict has been, and continues to be, elusive. Inevitably, the trajectories of both the conflict and the responses to it are distinctive. Nevertheless, these cases have enough in common for collective insights to be drawn from them, which may also have relevance for conflict-affected constitutional initiatives elsewhere.

Reinventing the House of Lords for the XXIst century

An entirely unelected Upper House looks, at first sight, to sit uneasily with a XXIst century democracy. In this context, the House of Lords has had to carve out its own role in the British constitutional settlement. Since the reforms of the beginning of the XXIst century, its legitimacy and positions have shifted. This article focuses on a case study of four bills in order to assess what is the place of the House of Lords today. The Lords have become a specialised House focusing on issues of civil liberties. This has meant that they have built a role of counter-power to the executive, while still maintaining strategies of cooperation with the House of Commons in law-making.

Constitutionality of constitutional settlement of disputes for the election of local heads

The authority to adjudicate disputes over the results of regional head elections continues to experience a shift in the judiciary. The delegation of authority to judge to the courts caused a polemic when the Pilkada was returned to the electoral regime, considering that the handover of auto power he the Special Courts Agency was based on the Constitutional Court's decision that the Regional Head Elections was a not General Election regime but the Regional Head Election regime. The purpose of this study is to describe the dynamics and the basis for the constitutionality of the authority to try it. The survey results stated that the judiciary's regulation on the settlement of ciary experienced three shifts, namely from the Supreme Court, the Constitutional Court, and the Special Courts Agency. However, the Special Courts Agency payment is unconstitutional because it is not a judicial institution that is explicitly and directly by the Constitution. The compensation of the amount by the Agency must be concretely normalized in the Republic of Indonesia Constitution so that the settlement process no longer moves, especially when the Regional Head Election is again designed to be returned to the General Election regime.How to cite item: Siboy, A (2022). Constitutionality of constitutional settlement of disputes for the election of local heads. Jurnal Cakrawala Hukum, 13(2). 117-127. doi:10.26905/idjch.v13i2.7095.

The ‘Three RS’ in Malaysia’s Struggle for Constitutional Democracy

Race, religion and royalty (the Three ‘Rs’) have been salient aspects of Malaysia’s constitutional struggle. These elements have defined the country’s constitutional settlements during the pre-independence constitution-making process, generated constitutional crises and continued to figure into day-to-day governance and constitutional practice. There have been instances where operation of and compromises around the Three Rs have facilitated constitution-building. Yet, more often than not, as this article illustrates, the constellation of these three forces have challenged the building and sustaining of a constitutional democracy. Since the historic political change in May 2018 in particular, the Three Rs have become even more significant in shaping the critical junctures in Malaysia’s constitutional journey. To illuminate a more comprehensive understanding of the role of race, religion and royalty in Malaysia’s struggle for constitutional democracy, this article explains how these elements have defined (and continued to define) controversies relating to the distribution of political power and the protection of fundamental rights. Fundamentally, these aspects implicate checks and balances and constraints on political power. This article also demonstrates the ways in which the struggle for constitutional democracy implicates a range of actors and interests: aside from individual citizens, there are the monarchy, the elected government, the courts and group (ethnic) interests. This article then draws on institutional and political explanations in accounting for Malaysia’s constitutional struggle. In particular, aside from changing political fundamentals, it argues that the Constitution provides the opportunity structure and institutional resources for the Three Rs to shape Malaysia's struggle for constitutional democracy.

Conflicts of sovereignty over EU trade policy: a new constitutional settlement?

This paper investigates whether the politicization of a new generation of trade agreements has led to the transformation of EU trade policy. It provides a qualitative study of multilevel contention based on sources from civil society and the parliamentary archives in Belgium, Germany, and the European Union concerning the EU-Canada Comprehensive Economic and Trade Agreement (CETA) and three subsequent agreements concluded by the EU with Japan, Vietnam, and Singapore. We argue that, far beyond mere institutional disputes, the contention surrounding CETA has epitomized two conflicting visions of sovereignty: on the one hand, a vision where national executives qua states share sovereignty under the auspices of the European Commission, and on the other hand, a claim to reassert popular sovereignty (and the channelling thereof by parliaments) in a multilevel fashion. We demonstrate that the strengthening of the latter vision has been limited as the empowerment of parliaments was not sustained when civil society’s mobilization waned. The EU institutions have successfully curtailed the category of mixed agreements thus limiting the involvement of national and regional parliaments. CETA was a climax in the politicization of trade yet failed to bring about a new constitutional settlement that enhances the popular component of sovereignty in the EU.

Antagonistic understandings of sovereignty in the 2015 Polish constitutional crisis

Since the 2015 parliamentary elections in Poland, the government led by the Law and Justice party (PiS) has sought to win two interwoven battles: the restoration of ‘a strong state’ internally and ‘regaining sovereignty’ in the country’s relationship with the EU. By examining the 2015 constitutional crisis in Poland, this article seeks to understand how and why a domestic dispute over the nomination of constitutional judges has transformed into a conflict of sovereignty in the EU polity. The paper shows that the claims to sovereignty of political, social, and legal actors reflect opposing conceptions of this principle as well as of democracy and the rule of law. PiS’ understanding of State sovereignty is rooted in the past, echoes its Hobbesian conception, and is reminiscent of Carl Schmitt’s notion of the political and of democracy. In 2015, this conception was pitted against the supremacy of the Constitution (legal sovereignty) and the ideal of shared sovereignty. Drawing on 20 parliamentary debates, this paper shows that the 2015 Polish constitutional crisis encapsulates a conflict of sovereignty over who holds the most legitimate representation of the people and who should have the last word in key political conflicts and constitutional settlements.

Regional aid policies after Brexit: 2nd edition

AbstractThis article revisits the issue of UK regional policy 5 years after the Brexit referendum. Though the mechanisms to replace EU regional investment funds are not yet in place, much has changed both in terms of understanding, and of policy relating to regional development, in the post-Brexit UK. These changes include the acknowledgement of wide regional variations in productivity and the UK government commitment to the ‘levelling up’ agenda. This has led to a number of policy initiatives, including revision of the Green Book and new funding intended to support ‘levelling up’. In addition, Brexit has necessitated the introduction of legislation to regulate the UK internal market. Its particular form may undermine the current constitutional settlement.

STRESS TESTING THE FISCAL FRAMEWORK

AbstractThe part of the UK fiscal framework which determines how UK government funding is allocated across the four home nations has undergone profound change since 2012, given tax and social security devolution. The UK government’s post-Brexit plans for regional development funding, state aid, regulation and trade negotiations have led to significant disagreements about the nature of the devolved fiscal and constitutional settlement. And the COVID-19 pandemic provided a major shock to a fiscal system with limited flexibility for the Scottish, Welsh and Northern Irish devolved governments. This paper reviews the changes and challenges faced during these reforms and policy shocks. We find that: tensions about reforms to funding arrangements reflect the inconsistency of principles guiding the reforms; that the UK government’s post-Brexit plans do reduce the policy autonomy of the devolved governments, but reflect powers central governments often have in even highly decentralised countries; and that temporary changes to rules and the nature of the COVID-19 pandemic prevented a subnational fiscal crisis, but that more systematic change may make the system more robust to future shocks. This suggests that a review of the principles underpinning the UK’s subnational fiscal and economic policies would be highly worthwhile.

Cultural Policies as a Driver For A Participatory Transformation of Democracy in the European Union

Across Europe, culture is acquiring an increasing constitutional relevance by fostering experiments of bottom-up reflexive and self-organised participation able to bring policymakers closer to citizens. This paper adopts a European Union (EU) standpoint, observing how the EU could use cultural programs to support these practices and promote democracy and inclusion in the wake of the ‘crisis of political representation’. The objective is to draw recommendations for EU institutions to connect with local communities by multiplying the opportunities of equality and inclusion without interfering with local democracy. The investigation starts from an analysis – also through the case study of Italian constitutional transformations – of how the ‘distrust’ towards representation transformed the constitutional settlements of democratic participation. The study emphasises the need for new participatory forms and the relevance of spontaneous bottom-up initiatives in that direction, especially in the cultural field. Against this backdrop, the article will explore how EU cultural policies could be more inclusive so as to improve their social approach and trigger a direct dialogue with grassroots experiences.

The Conservative Nation Redivivus?

AbstractThis article addresses the relationship between Andrew Gamble's study of the Conservative nation and his more recent advocacy of a social democratic constitution. It argues that the former—the nature of the Conservative Party, mobilising support successfully—may serve to prevent the realisation of the latter, the Conservative view of the constitution prevailing over pressures for a new constitutional settlement for the United Kingdom. Whereas the analysis of the Conservative nation is grounded in, and can only be understood by reference to, an appreciation of political realities, the approach to constitutional change embraced by Gamble is largely apolitical, concerned primarily with ends to the neglect of means.

Delegation at the Founding

This article refutes the claim that the Constitution was originally understood to contain a nondelegation doctrine. The founding generation didn’t share anything remotely approaching a belief that the constitutional settlement imposed restrictions on the delegation of legislative power---let alone by empowering the judiciary to police legalized limits. To the contrary, the overwhelming majority of Founders didn’t see anything wrong with delegations as a matter of legal theory. The formal account just wasn’t that complicated: Any particular use of coercive rulemaking authority could readily be characterized as the exercise of either executive or legislative power, and was thus formally valid regardless of the institution from which it issued. Indeed, administrative rulemaking was so routine throughout the Anglo-American world that it would have been shocking if the Constitution had transformed the workaday business of administrative governance. Practice in the new regime quickly showed that the Founders had done no such thing. The early federal Congresses adopted dozens of laws that broadly empowered executive and judicial actors to adopt binding rules of conduct for private parties on some of the most consequential policy questions of the era, with little if any guidance to direct them. Yet the people who drafted and debated the Constitution virtually never raised even policy objections to delegation as such, even as they feuded bitterly over many other questions of constitutional meaning.

Protection Of Indigenous Peoples In The Perspective Of Human Rights In Indonesia: Realities, Problems And Solutions

<span lang="IN">The 1945 Constitution upholds the human rights of every citizen without exception, but in practice this constitutional mandate is not implemented properly and even tends to marginalize indigenous peoples. For this reason, it is necessary to seek a constitutional settlement to be able to provide the rights of indigenous peoples as they should be guaranteed in the constitution. This paper is a sociolegal research. The conclusion of our study is that there are still many violations of the constitutional rights of indigenous peoples from a human rights perspective that the government should not do. The recommendation of our study is that the government immediately ratify the Draft Law on Indigenous Peoples as a concrete step in upholding the constitutional rights of indigenous peoples</span>