Presentation Transcript

1. Constitutions

2. Changing Constitutions Indonesian Constitution has survived since 1945 with four major amendments since 1999 focused on emphasizing civilian rule, decentralizing power, and affirming citizens rights Thailand Constitutions come and go with changes in political forces - New Constitution proposed in 2008 Constitutional change in Nepal ended civil war and ended monarchy in 2008 Bhutan’s monarch introduced country’s first Constitution to bring about a transition to a modern democracy
3. Building Constitutionalism in India Generally the drafting of the Constitution was not controversial and Congress’ position dominated where controversy emerged One of the longest and most complicated constitutions in the world - 200 pages long – 400 articles – 12 schedules – several appendixes – continued much that was established by the Government of India Act of 1925 Contains political rights and social guarantees under Part 3 of the Constitution such as right against exploitation Part 4 contains a vision of social revolution – right to adequate livelihood, fair material distribution of ownership and material for the common good, no concentration of wealth to the common detriment, equal pay for equal work by men and women Article 46 calls for state to promote educational and economic interests of Scheduled Castes, Scheduled Tribes, and other weaker sectors
4. Religion and “Secularism” in the Indian Constitution Article 25 (1) establishes religious freedom Article 25 (2) gives state the right to regulate religion with regard to secular activity Secularism is a strange concept for Indian society and political groups like the BJP battle to have the country’s identity as Hindu society affirmed – State neutrality toward religion is present norm modified by appropriate social goals
5. Shah Bano Question in case: Should a Muslim citizen following Sharia law with regard to divorce settlement be required to follow Indian law The Supreme Court ruled in favor of the wife and the Chief Justice called for a common civil code for all Indians 1986 Muslim Women Bill passed by Congress to strengthen its support in districts dependent upon Muslim votes Unresolved problem of religious freedom
6. Judicial Review India has the same principle of judicial review as the United States or Japan The Court did not protect habeas corpus during the Emergency possibly because of political ties of the Chief of the Supreme Court to Indira Gandhi This failure has weakened the prestige of the court though it continues to play an important role in judicial review in a variety of cases including cases emerging from the Ayodhya dispute, reservations for disadvantaged groups, and environmental issues
7. The Occupation and the Japanese Constitution Douglas MacArthur called for Constitutional revision when he arrived as Supreme Commander for Allied Powers MacArthur moved quickly to create a constitution that would protect the position of emperor and connect Japan’s future to pacifism Though voicing concerns about the no-war clause, the Japanese adopted constitution to protect emperor Diet adjusted constitution but stayed within framework outlined by SCAP The constitution is adopted with an interpretation of the no-war clause that made an exception for a self-defense force
8. Constitutional Evolution and Legitimacy Preamble of Constitution places governmental authority in the hands of the people as a universal principle 103 articles divided into 23 chapters including Chapter 2, Article 9, “Renunciation of War” Chapter 10 Rights are not created by a constitution but recognized and safe-guarded by a constitution – This is contrasted with the 1889 constitution which placed rights within the limits of the law Chapter 3 “Rights and Duties of the People” contains 31 articles addressing wide range of civil and social rights – Article 14 prohibits discrimination on the basis of race, creed, sex, social status or family origin” and Article 27 guarantees the availability of free and compulsory education Japanese Constitution has never been amended though a Commission has identified possible changes and enduring questions about the Constitution including Article 9 – Disarray in the LDP may have prevented these recommendations from being acted upon Amending the Constitution requires 2/3 of each house of the Diet and a majority of voters to ratify such amendments – stealth approach to amending constitution through administrative law such as the revision of the 1947 education law to call for the teaching of patriotism and making education the responsibility of a family rather than a right
9. Judicial Review Judicial Review in Japan has been largely non-controversial Courts privilege government bureaucrats Article 9 has generated controversy but the courts have resolved technical points and have contended larger issues are outside of their jurisdiction In 1973 the Supreme Court had ruled that stiffer penalty for patricide than homicide was unconstitutional Courts have found in favor of women claiming sexual discrimination
10. The Search for Constitutional Government - China European and American concept of a constitution as a check and limit on governmental power is a foreign conception to China where law has traditionally been viewed as a tool of the state In 1908, Empress Dowager proclaimed a set of principles for a nine-year program to prepare China for Constitutional self-government Sun YatSen’s plan for Constitutional self-government was overtaken by events as well 1912 Constitution was never implemented Second provisional Constitution written early 30s but overcome by war 1947 Constitution adopted, thrown out by the Communists, and kept by the Nationalists as they went to Taiwan
11. Constitutional Change in the PRC Four Constitutions since founding Five Constitutions for the Chinese Communist Party over the same period of time Writing and deliberating about constitutions occur among high ranking elites and then constitutions are ratified by the National People’s Congress and the CCP National Party Congress
12. The Early Constitutions 1949-1954 – Country guided by Revolutionary authority of CCP 1954 State Constitution developed enhancing the legitimacy of the regime – CCP established its Constitution in 1956 1969-1978 – Three party and two state constitutions attempt to steady nation within the chaos of the Cultural Revolution with party identifying Lin Biao as heir to Mao – Mao’s passing resulted in new Constitutions in 1977 and 1978 with a final transition under Deng Xiao Ping’s leadership to the 1982 constitution
13. The 1982 Constitutions and Amendments Preamble of Chinese Constitution links past, present and future Establishes China as a unitary multinational state and cautions against Han and local chauvinisms Policy toward Taiwan is articulated within the Constitution Party Constitution affirms similar themes 2002 Amendment brought capitalists into the communist party and 2007 amendment affirmed a commitment to a “scientific outlook on development”
14. Summary Constitutionalism was an import from the West Japanese and Indian states continue to operate under norms and institutions of post war constitutions Chinese communist party trumps constitutional authority but the constitutions are becoming more important in the equation of state legitimacy Constitutional provisions may be ignored or bypassed and these sorts of issues are likely to play an important role in Indian politics