Approaches in Constitutional Law

Transcription

1 Approaches in Constitutional Law Repressive / nationalist State assimilation racism ethnic cleansing Promotional State Recognition Guarantees Affirmative Actions Agnostic / liberal State Civic citizenship Color blind Tyranny of majority? Multi-national State Civic citizenship Color blind institutional equality R. Toniatti, Minoranze e minoranze protette (1994) Woelk Minority Rights

2 Repressive (nationalist) State Historical examples: fascism (IT) and Nuremberg Laws for the defence of German blood and honour (III Reich; 1935) 1.1. Marriages between Jews and citizens (Staatsangehoerige) of German or kindred blood are forbidden. Marriages concluded in defiance of this law are void, even if, for the purpose of evading this law, they were concluded abroad. 2. Extramarital sexual intercourse between Jews and subjects of the state of Germany or related blood is forbidden Jews are forbidden to display the Reich and national flag or the national colours On the other hand they are permitted to display the Jewish colours. The exercise of this right is protected by the State. Today: Tibet, Ruanda, Racism ; today: clash of civilizations? Many ways for exclusion of permanent minorities Distinguish: legislation and (discriminatory) practice Woelk Minority Rights 2

3 The liberal agnostic model Color-blind Constitution : US, FR US: three underlying assumptions Inclusive concept of Nation No new Nations can be created Right of preserving national identity FR: legacy of revolution Art. 3 Const. Sovereignty is vested with the Nation. People = Nation = State Individual rights: atomised minorities Risk: tyranny of majority Democracy and pluralism? Woelk Minority Rights 3

4 France today: still agnostic? Article 1. [2003] France shall be an indivisible, secular, democratic and social Republic. It shall ensure the equality of all citizens before the law, without distinction of origin, race or religion. It shall respect all beliefs. It shall be organised on a decentralised basis. Statutes shall promote equal access by women and men to elective offices and posts as well as to position of professional and social responsibility. Article [2008] Regional languages are part of France s heritage. Constitution of French Republic [ Conseil Constitutionnel: 1999: no ratification of Language Charter 2002: No peuple corse Woelk Minority Rights 4

5 The promotional approach Presence of a majority which recognizes minority-group(s) and rights Recognition of the right to be different, protection and promotion of minorities = value Art. 6 Const. IT and art. 4 statute T-AA/ST ( minority-protection is [part of] national interest ) Art. 3 Const. SP: the other Spanish languages (<-> FR) Special rights: effective guarantee of rights Territorial principle for application Effective participation in public life Woelk Minority Rights 5

6 Multinational Model (Parity) Minorities do not exist everyone belongs to a minority No special promotional instruments Istitutionalization and formal equality of groups: institutional equality Consensus among the groups: constitutional compact (Ethnic) consociational democracy and Power Sharing (Arend Lijphard) Parity model and promotional model Territorial principle and groups Risks: parallel societies and degeneration versus tyranny of minorities Ethnic federalism and ethnic democracy Fourfold equality: 1. individuals (HRs) 2. groups (institutions) 3. formal 4. substantive Delicate balances, unstable Woelk Minority Rights 6

7 Multinational Systems: Guarantees 1. Institutional Equality positive: representation of group as such (parity, proportionality), power sharing negative: mandatory consultation, cross-community votes, veto rights 2. Constitutional Amendments: Involvement of constituent peoples or groups in procedure of constitutional revision 3. Legal and political guarantees: Problem of preconditions (e.g. CH) Legal instruments besides the general majority logic Risk: segregation Woelk Minority Rights 7

8 Art. 54 Const. BE Group Veto, Alarm-Bell Procedure (1)With the exception of budgets and laws requiring a special majority, a justified motion, signed by at least three-quarters of the members of one of the linguistic groups and introduced following the introduction of the report and prior to the final vote in a public session, can declare that the provisions of a draft bill or of a motion are of a nature to gravely damage relations between the Communities. (2)In this case, the parliamentary procedure is suspended and the motion referred to the Council of Ministers which, within thirty days, gives its justified recommendations on the motion and invites the implicated House to express its opinion on these recommendations or on the draft bill or motion that has been revised if need be. (3)This procedure can only be applied once by the members of a linguistic group with regard to the same bill or motion. Art. 56 Autonomy-Statute Trentino-South Tyrol Woelk Minority Rights 8

9 Swiss Federal Constitution Preamble "In the Name of Almighty God, the Swiss Confederation, with the intent of strengthening alliance of the Confederates and of maintaining and furthering the unity, strength and honour of the Swiss nation, has adopted the following Federal Constitution: Article 1 Together, the peoples of the 23 sovereign Cantons of Switzerland united by the present alliance,... form the Swiss Confederation." Legal Fictions Constitution of Bosnia-Herzegovina, 1995 Preamble Recalling the Basic Principles agreed in Geneva on 8 Sep 1995, and in New York on 26 Sep 1995, Bosniacs, Croats, and Serbs, as constituent peoples (along with Others), and citizens of Bosnia and Herzegovina hereby determine that the Constitution of Bosnia and Herzegovina is as follows: Woelk Minority Rights 9