The Norwegian Constitution at 200: Experiences and Lessons of a Living Basic Law

Transcription

1 The Norwegian Constitution at 200: Experiences and Lessons of a Living Basic Law Seminar on the Kenyan and Norwegian Constitutions Nairobi 19 May 2014 Bård A. Andreassen Norwegian Centre of Human Rights University of Oslo

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3 The Norwegian Constitutional Assembly at Eidsvoll ( Bomas ) 17 May 1814

4 Outline: The Kenyan and Norwegian constitutions some comparative observations Do constitutions matter? Origin and legitimacy; constitution-making N/K Governance structures as extra-constitutional developments Adaptation to new environments: Procedures for change Challenges

5 Do constitutions matter? About 142 constitutions increased importance; the Venice Commission (Europe), 1990 Formation of new political systems, after authoritarian rule/breakdown, or the formation of new states Reflects the growing role of rights protection of citizens Constitutions often fine on paper with little effect; the fundamental requirement of constitutionalism; and implementation The size of constitutions vs. the Napoleonic ideal after the 1799 coup: the short and obscure Constitution of the Year VIII Effects: Legal? National cohesion? Political? Symbolic?

6 Origin and legitimacy N/K C as part of a struggle for independence and sovereignty N/K Home-grown vs. imposed (?) The N constitution as part of a struggle for Independence - symbolically strong Process of constitution-making N/K Norway from March May 1814 (2 months); adopted without any consultation, an elite project and freedom struggle The K path: 1963 (imposed)/1969 rev (authoritarian); return to democracy and constitution-making as rallying point for change: 15 years process: 4Cs in 1994/1995. Approved by 67% on Aug 4, 2010 referendum: Political contentious? The ethnic factor The loss of legitimacy of the K 1963/rev 1969 Constitution from imposed to authoritarian

7 Origin: International context of the Norwegian C Denmark s alliance with Napoleon in the Napoleonic wars; Napoleon/allies (incl. Denmark) defeat in 1813 (Leipzig), and the first/second resignations (1814/15) Sweden demanded Norway as war compensation (Peace of Kiel, Jan 1814) Political turmoil struggle for national liberation and sovereignty 1814 The Governor/Danish Prince Christian Fredrik headed movement of independence, with the political elite gathered a constitutional assembly from March-May 1814

8 Origin: The Constitutional Assembly 1814/vs Bomas etc The Norwegian Constitution of 1814, not democratic but contained important democratic ideals The CA lasted from April 10- May ! Inclusive? Striking difference from todays constitution-making 112 representatives from S and Mid-Norway! Constitution adopted 17/5-110 articles/ 112 in Nov 1814 The Kenyan 242 arts (US 7/India 444) Cf. consultation process of the Constitutional Commission The symbolic power of C higher if part of constituting independence (Norway 1814/Kenya 1963? and 2010 (after constitutional decay- new governance?)

9 Origin: The N Constitution - child of the time: Key features Wave of constitutions State sovereignty N: Monarchy, limited Liberal, but with severe limitations (ex. voting rights, the prohibition against Jews) Reflect on Kenya s system of voter registration State religion Article 4 The King shall at all times profess the Evangelical- Lutheran religion Jews/Jesuits prohibited: absolved 1851/1953 K: The Kadi court issue? Robustness the Somali conflict?

10 Governance structures as extraconstitutional developments Local democracy from 1837 The Local Authorities (municipalities, 432) In % all employees in Norway public sector; 66% of these in local authorities Parliamentary democracy (1884) Independence from Sweden Constitutional (limited) monarchy referendum; All power shall rest in this Assembly! Constitutional changes Formal procedure for amendments Customary changes The Supreme Court as a quasi-constitutional Court judicial review

11 Adaptation to new environments: Procedures for change Changes of 15 May 2014: New art on human rights (respecting treaties Norway has ratified, para 92); right to life, freedom from torture, slavery, force labour freedom of association etc. Rights of the child (principle of the best interest), right to education, environment But not several basic social and economic rights - controversy Judicial review Formal 287 times since 1814; 3/4 of the articles changed Continuous revision, but slow Dynamic revision Legislation at lower level (delegation) 2/3 majority; proposed in one, adopted in the next Assembly

12 Challenges Local democracy devolution; the balance of large projects across municipalities (social welfare, health, road construction) vs. local control Human rights, a new layer (N: Strasbourg) and the principle of primacy. C less important? New issues: Environmental protection (Para 100b) State religion (in an evolving multi-cultural, an multi-religious society) The devolution model (effectiveness vs. the closeness principle/principle of subsidiarity) Judicification of politics? The relationship to The European Union; full compliance without impact Implementation; Centre vs. periphery? A research program on comparative constitutional studies?