|
EXPLANATORY ESSAY |
|
Copyright © 1996 by Barnabas D. Johnson This document is See New Explanatory Essay
*** The Constitution of Jurlandia is a pedagogical tool designed to help structure an "encyclopedia of constitutional democracy" and to model a constitution uniquely tailored to specific goals, as discussed in this Explanatory Essay and elsewhere on this website. If you want to see single-document versions of the English and Russian texts, Click Here. The "discussion version" the Constitution, with hotlinks, is broken up into chapters here: 1. Transitional law This Constitution is a "transitional" law. It is intended to facilitate a country's movement away from Soviet-style dictatorship and towards the Rule of Law. Accordingly, several of its elements, especially in Chapter I, ordain law focused explicitly on that transition. The past cannot be wished away. It has to be dealt with honestly. However, as important as these transitional features are for the present, they can easily be amended out of the Constitution once the people wholeheartedly agree that their transition to constitutional democracy has been successfully accomplished. 2. Overview Unlike Soviet-era constitutions, the Constitution of Jurlandia does not describe a "plateau of perfection" as though it has already been reached. It does not say that everybody "has" all the rights that Soviet-era constitutions said everybody "has" (always in the present tense). Instead, and above all, this Constitution makes law. It ordains, prescribes, proscribes — who, what, when, where, how, how not … and how reviewed … and according to what standards … and by whom, when, etc. First, it gives the legislative, executive, and judicial branches their respective powers, spelling out the "checks and balances" — modes of coordination — among those branches. Second, it denies to all those branches — denies to any public official, whether President or traffic policeman — the power to violate any person's or group's fundamental constitutional rights, such as their freedoms of belief, expression, and association, or their rights not to be deprived of life, liberty, or property without a fundamentally fair judicial proceeding before an impartial and independent judge. Third, it makes clear that all rights imply responsibilities, most notably the responsibility to "balance" competing or contrasting "core values" like freedom and order, or individual initiative and equal opportunity. Above all, this Constitution "models" a Basic Law that composes an organic whole of contrasting parts. Balance is the key to a good constitution. This Constitution might seem odd to those who are used to Soviet-style constitutions, which were not enforceable legal documents but were "political documents" intended for show. This Constitution is not a facade, not a painting of a lovely house, not even a description of all its lovely outer and inner features. Rather, it is a blueprint and operating manual for building, maintaining, and living in a good house — the Republic of Jurlandia — which can be made better and better over time. 3. Government with small "g" and large "G" Before discussing the basic system of governance here ordained, it is necessary to clarify terminology. In this essay, "government" with a small "g" means all organs of state power, broadly defined. Thus, the term "government under law" means that all public officials — legislative, executive, and judicial, including local officials — are "under" the Constitution and required to obey the Constitution. In this essay, "the Government" with a large "G" means, narrowly, the President, the Vice President, and the Cabinet of Ministers, plus all who work directly under them, as distinct from the Legislative Branch and the Judicial Branch, which are autonomous. Put differently, "the Government" is the Executive Branch; "the government" is all branches, all persons and activities acting under color of law. The Constitution of Jurlandia follows this same convention. 4. Meaningful terminology and clear organization The system of government that this Constitution ordains is relatively simple, designed to avoid constitutional crises. Any citizen should be able to understand this system, and therefore exercise his or her rights and responsibilities under it. Soviet-style laws tend to be very long and repetitious, yet they also tend to leave large areas very unclear (perhaps deliberately confusing). This Constitution avoids repetition; for example, an initial reference to "the President of the Republic of Jurlandia" makes subsequent references to "the President" sufficient. On the other hand, this Constitution spells out some areas of law in great detail. The reasons for this are discussed below. All parts of this Constitution must be interpreted in light of all other parts, including especially those parts that define words like "legislation" and "administration" and "adjudication"; indeed, this Constitution explicitly forbids the debasement of its words and phrases, and provides guidance to giving them meaning and life. This internal constitutional guidance necessarily includes elements from outside Jurlandia's experience and history, outside Soviet and Russian legal terminology, for the sad reason that this terminology was historically debased, twisted, rendered useless for communicating clear and enforceable legal standards. If a country wants a real Constitution, then it must turn away from that debased language and history, and establish a firm governmental structure built on solid historical and linguistic foundations. There are no quick fixes. The worst enemy of "democracy" is incompetent efforts that lead people to give up before having tried a competent system of constitutional democracy based on the Rule of Law. 5. Introducing the five chapters This Constitution ordains a foundation and structure that is visible from its organization. Chapter I ordains basic principles, defines basic terms, and also addresses transitional problems. Thus, if someone cites "Constitution I-5" it will be clear exactly what part of the Constitution this citation refers to: Chapter I, Article 5. The Constitution should be "user-friendly" — clearly organized and easy to cite. Chapter II governs the Legislative Branch. The citation "II-4-1(4)" refers to the fourth sub-paragraph of the first paragraph of Article 4 in Chapter II, which (as it happens) requires the Parliament to adopt a new code of administrative procedures within three years of the Constitution's adoption. Chapter III governs the Executive Branch. For example, III-5-4 governs succession to the presidency. Chapter IV governs the Judicial Branch. As you will see, this branch is clearly independent. Only with such independence can any country achieve genuine constitutional democracy based on the Rule of Law. Chapter V forbids all the branches — all organs of governance, all public officials — from violating fundamental individual and associational rights. It also requires specific actions by the Government to secure those rights. There are good reasons for not "mentioning" these rights until the end. When a constitution mentions these rights first, there is a great danger that they will remain a mere list of ideals. By mentioning them last — only after empowering the legislative, executive, and judicial branches — the Constitution of Jurlandia can clearly ordain the steps by which these rights may be defended and shall be secured, making explicit reference to those officials whose jobs prohibit a specified abuse or require a specified action. 6. Notes on the following substantive discussion The following discussion seeks to anticipate various questions that might arise among thoughtful readers. Constitutions involve choices. The key is not merely to make the best choice on any particular point, but rather to integrate all choices into a coherent whole. Obviously, for example, it is not that important whether a country has 135 members of Parliament or some other number, but it is essential to specify what constitutes a quorum, or how many votes are needed to remove the President. Changing any specific detail requires thinking about how that change impacts upon all other details. It will be clear from the following discussion that this Constitution embraces many choices. Most of these flow from its choice of the "strong checks-and-balances" model, in which the powers of the legislative, executive, and judicial branches are kept relatively distinct, and in which human rights are spelled out as explicit commands and limitations that tell those branches what they must and must not do. 7. Hierarchy of law As proclaimed in Chapter I, the Constitution is the supreme law. All legislation, law-making, administration, law-enforcement, and adjudication — indeed, all governmental activities — must comply with this supreme law. The issue is not only whether a law complies with the Constitution, but also whether a specific action by a particular official complies. According to this Constitution, there is a definite hierarchy of sources of law and therefore of law-making and law-enforcement. For example, the President cannot amend this Constitution with a decree, nor can he order a single-candidate presidential election that he calls a "referendum" to be conducted pursuant to a "constitutional law" that he can issue by decree. Such conduct is all too typical in the former Soviet Union, and makes a mockery of the Rule of Law. The language of the Constitution of Jurlandia governs everybody it touches, without exception, and words like "law" and "election" and "referendum" have real, enforceable meanings. Nobody, not even the President, can give these words whatever meaning he or she chooses. However, the ultimate arbiter of their meaning is the Supreme Court, a body that is very different from anything originating in the Soviet era. The Constitution gives that Court specific and detailed guidance in its difficult role. By the way, this Constitution does not allow what many constitutions in this region call "constitutional laws" (usually dealing with things like elections, referendums, and judicial administration); in this Constitution, all "constitutional laws" are in one place only: the Constitution of Jurlandia. So-called "constitutional laws" tend to sow confusion and often degrade the status of the Constitution itself. It is far safer to agree — among the people — that, whatever the "supreme law" of their country is, it will be found within a single document: the Constitution. In the USSR, the Communist Party was the "principal" and all public officials were its "agents"; the principal is the boss, and the agent does what the boss commands. This is not government under law but, at best, government under patronage, under Party cronyism. But in a constitutional democracy the Constitution — and the "spirit" of government under law that its words stand for — is the boss. Under the Constitution of Jurlandia, every public official gets his or her job description, first and foremost, from the Constitution itself, not from some clique or "vanguard" that is accountable to nobody but itself. Of course, in the USSR, so long as the Party was the boss, there was arguably no need for any other. A real Constitution would have got in the way of the Party's dictat. But now, the Party is no longer the boss, and therefore each country in the former Soviet Union needs a new boss — a real Constitution. 8. Commanding governmental compliance — an example In summary thus far, the Constitution itself has to tell all public officials (a) what they must do, (b) what they are allowed to do (and if so, how), and (c) what they must not do. Before turning to specifics, it might be useful to study the first sentence of Chapter V. This sentence of course follows the Chapter I outline of different kinds of laws, and follows the next three chapters spelling out the powers of the three branches. Here is V-1-1: "The Parliament shall not make or allow, nor shall the President implement or enforce, nor shall any person obey or uphold, any legislation, regulation, ordinance, or rule that deprives any person of life, liberty, property, or any other rights, privileges, or immunities, without due process of law." Note that sub-paragraph V-1-1(1) begins the process of defining what "due process of law" means — essentially, a fundamentally fair procedure, but it also involves elements of fundamental rationality and proportionality. Yes, V-1-1 is dense. And it requires reference to definitions appearing elsewhere. But, within the context of the entire Constitution, it provides a clear basis for the Judicial Branch to start developing an enforceable jurisprudence on this vast subject. 9. The Legislative Branch According to Chapter II, only the Legislative Branch — the Parliament — can legislate. The Parliament "is" the Legislative Branch. As only "we, the people" can make the Constitution, so the Constitution ordains that only the Parliament can make legislation — as distinct from sub-legislative regulations and ordinances, which require enabling legislation (see below). The Parliament is very powerful within its proper sphere. But it is not supreme. Only the Constitution is supreme. And the Constitution clearly limits what the Parliament may do. It cannot change the Constitution. Only the people can change the Constitution. In essence, having legislated on a subject, the Parliament must then step back" and let the Executive Branch implement and enforce that legislation. But this implementation and enforcement, as well as all legislation and sub-legislation, must be subject to judicial review, and only a court — acting as empowered in Chapter IV — can order any person to suffer a loss of life, freedom, property, or any other fundamental right, as ordained in Chapter V. This, in essence, is the "strong checks-and-balances" model. This model is often referred to as the "executive president" (EP) model, although in several former Soviet-Bloc countries that supposedly follow this model the checks and balances are weak or non-existent. This is a huge subject. Illuminating it is a major goal of the Jurlandia Institute's website. The EP model stands in sharp contrast to the so-called "parliamentary government" (PG) model. Under the PG model, the Parliament essentially composes the Government. In some countries, all Government ministers are themselves also members of the Parliament, usually its leaders. Another feature of this PG model is that it is often associated with the theory of parliamentary supremacy over the executive and judicial branches. Major areas of criticism of the PG model are as follows: A. When a person wears both legislative and executive hats, the "compromising" so essential to law-making tends to bleed over into law-enforcement and administrative activities, thereby tending to impair the impartial execution and implementation of the law. B. Excellence in law-making tends to be less important to parliamentarians than doing what is necessary to either get into or stay in the Government, where "perks of office" are coveted. C. Because either keeping the present Government in power (the majority view) or getting it dismissed (the minority view) is a paramount consideration, "party discipline" takes precedence over "policy formulation" — and parliamentary debates are accordingly more formulaic and less robust. Indeed, it is usually a foregone conclusion what the result of "debate" will be: The Government will win approval of the exact text it proposed, without amendments based on genuine debate. It is odd to call something a "parliament" where in fact discussions make no difference to the resulting laws. D. The "business of governance" tends to go on behind closed doors, in party caucuses and among party leaders jockeying to form ruling coalitions among numerous factions. This jockeying is not confined to law-making, and tends to skew and corrupt how laws get implemented. Small parties tend to proliferate, and often "hold the Government hostage" in order to ensure that particular laws will be carried out in ways favorable to their narrow interests. The "public interest" suffers. And the public often becomes disgusted with "democracy" as such. The strong checks-and-balances model keeps law-making distinct from law-implementing, and keeps both those functions distinct from the role of adjudication — under which independent judges resolve specific disputes that are brought before them, including disputes between the executive and legislative branches. Under this model, each branch is both powerful and powerfully limited. No branch is supreme. Only the Constitution is supreme. An influential multi-volume study of constitutional structures in developing countries, edited by Juan Linz, has been very critical of the "presidential government" or "presidential democracy" model, pointing especially to the failure of that model in South America. What this study pays insufficient attention to, however, is that the "presidential democracies" it criticizes have all failed to create — to constitutionally ordain — a competent and truly-independent Judicial Branch. Too many books and papers discussing "models of democracy" ignore the Judicial Branch. Indeed, it is usually seen as part of "administration" — an appendage of the Executive Branch. 10. The Executive Branch The EP model is only superior insofar as it "is" a strong checks-and-balances model. A Government run by the President rather than the Parliament can only work properly in "triune partnership" with an independent Judicial Branch. Each of the branches must be "co-equal" under the Constitution. Under Chapter III, the Executive Branch, headed by the President, is responsible to carry out and enforce the Parliament's legislation as enacted — or seek review thereof in the Judicial Branch. The Executive Branch does not have original law-making powers; its "law-making" is derivative only, based on "enabling legislation" — usually associated with creating administrative agencies within the Government and empowering them to do specific things like licensing medicines and nuclear power plants. In general, all enabling legislation should provide guidance to the administrative bodies it forms — a clear job description — and all administrative bodies should be governed by a single code of administrative procedures (which, however, allows for variations as necessary for the specific subject being regulated). This Constitution adopts that approach. Under this Constitution, the President is both the Head of State and the Head of Government. There is no prime minister, but there is a Cabinet of Ministers, headed by the President or, in his absence, the Vice President. If the President wishes, he may give the Vice President a role similar to that of a prime minister, but this will not relieve the President from responsibility for the decisions and actions of the Government. With only one exception (presidential disability), the fact that all ministers disagree with the President's views is immaterial. The President's decisions are ultimately his own, and he must take "political responsibility" for all actions of the Government. That does not mean he must resign if things go badly. It only means he cannot hide behind a fog of excuses, or blame a prime minister. The President has a fixed term of office, as do members of the Parliament. Governments do not come and go every few weeks or months, as in some countries, where "forming a Government" seems to take up far more time and effort than actually governing. Above all, the President must make sure that the law, as adopted by the Parliament, is carried out and enforced properly, without fear or favor. That is a crucial job. Only one person can do it at a time. Two-headed monsters are often dangerous. Confusions between the roles of the Head of State (the President) and the Head of Government (the Premier) tend to result in neither taking responsibility and nobody being accountable. Accountability is the key to good governance. Under this Constitution, cabinet ministers and other high officials are appointed by the President, subject to approval by the Parliament. Once approved, they serve "at the President's pleasure" — that is, they can be dismissed by the President without causing the Government to "fall" or requiring the President or the Parliament to seek any new electoral mandate. Elections are good. Too many elections are not. Although the President must ensure the impartial implementation of the law, the Judicial Branch — as the ultimate guarantor of the Rule of Law — must be empowered to tell the President and the country what the Constitution means and what the Rule of Law requires. If the President, the Parliament, or any person disagrees with the Supreme Court, they must initiate the difficult process of amending the Constitution. This process should not be easy, else "checking" will predominate over "balancing" — thereby checkmating the processes of constitutional democracy. 11. The Judicial Branch Under Chapter IV, the Judicial Branch is genuinely independent from the other two branches; but of course the judiciary is "dependent" on the Constitution, as well as on legislation enacted by Parliament within its constitutional mandate. That is, the Judicial Branch must decide cases and controversies according to the Constitution and constitutionally-valid legislation. Furthermore, where such legislation creates administrative agencies to carry out its purposes, judges must give great deference to the decisions and actions of those agencies, reversing them only if they abuse their powers. All judges must decide cases and controversies brought before them according to all the law applicable thereto. But, again, all this law must be part of a hierarchy — first the Constitution, then legislation, and then administrative regulations and local ordinances, etc. Almost all such controversies must first be taken to a trial court — that is, the District Court — which must decide all factual and legal issues necessary to resolving each dispute. Such decisions can order a party, including a public official, to do what the judge says the Constitution or law requires. If a party objects to a decision, it may appeal the case to the Regional Appeals Court, which must then render its own decision. If a party objects to that decision, it may request the Supreme Court to review the case. If the Supreme Court decides not to review, then the appellate decision becomes final. If the Supreme Court decides to hear and decide the appeal, then the Supreme Court's decision becomes final. Note that, under this Constitution, there is no Constitutional Court. The reason is simple: Every court must decide every case and controversy before it according to all the law that applies to that case, including constitutional law. Constitutional issues seldom "arise" except within the context of numerous facts and allegations that have resulted in a concrete legal dispute that includes one or more constitutional questions. The judge must look at the actual dispute and then apply to it a body of law, including law about how various facts are to be interpreted in determining the law that should be applied to them. On principle, a judge must be able to look at all the law in order to use any part of it properly. The concept of a Constitutional Court severs the vital linkages among "facts" before they can be properly examined (each within the context of all others), and also severs the relationships between constitutional, legislative, and administrative laws, etc., before those relationships can be looked at in light of the actual controversy being litigated. Problems never come to court bearing "labels" identifying where they ought to fit in the evolving life of the law. They come to court to get resolved under the law — all the law that turns out to be applicable, including (where appropriate) constitutional law. A modern constitutional democracy needs a unified judicial system. This does not mean that District Courts cannot have specialized departments; in fact, this Constitution creates them. All it means is that all courts must treat all the law as a hierarchicalized whole, and no judge may ever walk away from a dispute saying, "Oh, that's a constitutional question — not my concern." 12. Checks and balances, and mutual oversight Although the basic structure set forth in Chapters II, III, and IV is simple to grasp — and this simple "division of labor" among the branches is one of the chief guarantors that the people will understand and therefore support it — the structure is necessarily complicated insofar as each of these three branches has "oversight" functions relative to the others. The role of the judiciary as ultimate arbiter of what the Constitution requires makes it very powerful, but it must apply legislation, etc., as this law is given to it (so long as it is constitutional), and it is dependent upon the Government to enforce its judicial determinations. Furthermore, the judiciary only "acts" when others (including prosecutors and other government officials) bring specific cases before it. Additionally, the judiciary has no power over the public purse. It is dependent upon public appropriations. And finally, judges are selected by the President, subject to parliamentary approval. Otherwise, the Judicial Branch is largely governed by the Supreme Court, whose Chief Judge is the chief executive officer of the judicial system. The Chief Judge, subject to Supreme Court policies, is also the head of the legal profession. All lawyers are "officers" of that Court, and owe primary allegiance to the Rule of Law. Supreme Court judges are appointed by the President, upon approval by the Parliament. They must be at least 35 years old, and may serve until the judicial-retirement age of 70. The relationship between the legislative and executive branches requires a complex interplay of checks and balances, as a necessary element of the separation of powers between them. Concepts like "checks and balances" and "separation of powers" are good ideas; but, like all good ideas, (a) they are not self-defining, and (b) they themselves need to be "checked and balanced" by other good ideas. Most important, all these good ideas arrive at our constitutional door not as abstractions but as historical experiences incorporated into enforceable law. Through trial and error, the so-called Western Legal Tradition is evolving wisdoms about how to balance these good ideas. The Constitution of Jurlandia seeks to "institutionalize" its search for that balance in light of evolving global experience. Under this Constitution, the Parliament has specific oversight functions in addition to its legislative functions. The most important involves the power to review how legislation is being implemented by the Executive Branch and applied by the Judicial Branch, in order to determine whether specific laws need to be modified or supplemented by new legislation. At the same time, the Executive Branch has to keep the legislature informed about how well or poorly its laws are working — not in theory, but in practice, over time — as well as educate judges in specific cases about problems faced by the Government in implementing laws as interpreted by the judiciary. A good judge must be a good student. And good lawyers must be good teachers. The processes of trial and error, of learning from experience and acting on that new wisdom, never ends. 13. Procuracy abolished Under this Constitution, the procuracy is abolished. The procuracy started under the czars, flourished under communism, and reflects a concept of governance — "the eye of the czar" — that is highly problematic. In Soviet practice, the procuracy became a fourth branch of government, and could dictate to judges and other officials how they should do their jobs. True, there were instances of procurators who played a courageous and constructive role in support of "socialist legality" and efforts to curb official abuses. But, on balance, it is best to abolish this fourth branch. A three-legged chair is probably best on rough terrain. Accordingly, all prosecutorial functions are within the Government, directly answerable to the President. 14. Enforceable rights and commendable ideals Enforceable rights, such as the right to a fair trial, should not be confused with commendable ideals that cannot be enforced, such as the ideal that everybody should have a good job, a nice home, and three square meals a day. The right to express and publish ones opinions freely, or not to be imprisoned without a fair trial, can be enforced by judges. But the right to a good meal cannot be enforced by judges — that is, they cannot order the economy to be healthy, they cannot order the President to go out and dig potatoes, and they cannot order the Parliament to distribute bread that nobody is baking, that nobody has any incentive or capacity to produce. When everybody is waiting for the Government to feed and house and clothe them, neither judges nor anybody else can help much. The USSR tried "commanding" the economy to work. It failed. Why should judges be any more successful in that endeavor? Judges should focus on what they can do — making sure that enforceable rights are enforced. Mixing rights that can be enforced, with ideals that cannot be enforced, discredits the former and fails to ensure the attainment of the latter. On the other hand, a good Constitution is not only a compact between the governed and their organs of governance, it is also an agreement among all citizens regarding the kind of country they want to build and pass on to their posterity. Therefore, the Constitution of Jurlandia addresses those non-enforceable ideals in a way that does not detract from the importance of enforceable law. 15. Details of constitutional governance Most post-Soviet constitutions say, in effect: This country is a democracy, etc., and the details of elections and judicial powers and property rights, etc., will be left to Parliament to announce in the future. This is a mistake. In the post-Soviet world, the Constitution itself should explicitly guide and channel all further law-making. For example, the Constitution, and nothing less, should spell out what the job of a judge is. That is why Chapter IV is rather long and detailed. For similar reasons, Chapter V is also long and detailed. However, because every word and phrase of this Constitution is "imported" into all other laws, these constitutional details allow many other laws to be somewhat shorter. The end result is a significant improvement in law-making efficiency. On the subject of the rights of the accused, especially, Chapter V is very detailed. History has shown that this subject should not be left to ordinary legislation, let alone to sub-legislative regulations. Chapter V contains many other provisions uniquely tailored to the needs of post-Soviet states, including provisions requiring that all law shall be easily accessible to everybody. 16. Final notes The Constitution of Jurlandia and this Explanatory Essay are pedagogical tools designed to structure an "encyclopedia of constitutional democracy" and to model a constitution uniquely tailored to the needs of post-Soviet countries. Although the subjects of intense discussions and redrafts, etc., prior to 1996, these two documents have not changed since. These documents were used, inter alia, in law school courses on comparative law from 1998 to 2003, supplemented with other materials that are now part of this website. All these materials are subject to further consideration and amendment. The Jurlandia Institute is in the process of hotlinking the Constitution with the Explanatory Essay and numerous other essays, etc., plus related materials. |
Web Hosting Provided by Maine Hosting Solutions