Unit 12 The Significance of a Constitution and Constitutionality in a Democratic Society

What is a constitution? Fundamental and organic law of a state The written instrument / a basic document and the supreme legal act of a state embodying the fundamental law all regulations within a legal system must comply with it

Compliance with the constitution, e.g. Croatia CONTITUTION OF THE REPUBLIC OF CROATIA V The Constitutional Court of the Republic of Croatia Art. 128 Ustavni sud Republike Hrvatske: odlučuje o suglasnosti zakona s Ustavom, odlučuje o suglasnosti drugih propisa s Ustavom i zakonom

Functions of a constitution Establishes relations between citzens and governmental bodies – prohibition of certain actions of governments = negative rights 2. Promotion and protection of human rights and freedoms (e.g. political, cultural, economic rights) 3. Building and strengthening of democratic constitutional institutions (the parliament, the government, the courts – judiciary)

Functions of a constitution – PART II 4. Provides the basis for the division of the state power and enables mutual control between the holders of power = a check and balance system 5. Building and strengthening of democratic constitutional institutions (the parliament, the government, the courts – judiciary) 6. Legitimizes a democratic state before the international community and towards its citizens (fundamental values and objectives of a society)

THE MAIN GOAL of a constitution = Rule of law Rule of law includes following aspects: The supremacy of regular as opposed to arbitrary power A legal ruling, a ruling on a point of law The doctrine that every person is subject to the ordinary law within the jurisdiction AND all persons are equal before the law

Types of constitutions The criterion: change a) Flexible constitution – few or no special amending procedures (e.g. Britain: the Parliament can alter contitutional principles through ordinary legislative processes) b) Rigid constitutions – terms of a contitution can not be altered by ordinary froms of legislation, only by special amending procedures.

Types of constitutions The criterion: form a) Written – a single written document (Germany, Croatia, France, etc.) b) Unwritten – not a single written document (e.g. British constitutional law – the constitution is a collection of historical documents /Magna Carta, 1215/, statutes, conventions, traditions, decrees

From the Constitution of the Republic of Croatia The legislative body of the Republic of Croatia – SABOR - Has the power to change the Constitution

The main chapters of the Constitution I The historical sources of the Constitution II Basic provisions III The protection of human rights and fundamental freedoms 1. General provisions 2. Personal and political freedoms and rights 3. Economic, social and cultural rights (Art 48 – 70) IV The structure of the state power (institutions and bodies) 1. The Croatian Parliament 2. The President of the Republic of Croatia 3. The Governement of the Republic of Croatia 4. The judicial power 5. State attorneyship

V The Constitutional Court of the Republic of Croatia VI Local and regional self-government VII International relations VIII European Union IX Changes of the Constitution X Concluding provision Trg svetog Marka 4

II Basic provisions Article 1 The state structure and the form of government unitary structure democracy The power derives from the people. The people exercise power through the election of representatives direct decision-making.

II Basic provisions Article 2 The sovereignty of the Republic of Croatia inalienable, indivisible and untrasferable - Territory covered by the sovereignty : land area, rivers, lakes, canals, internal maritime waters, territorial seas and the air space above them Alliances with other states without giving up its own sovereign rights

II Basic provisions Article 3 The highest values of the constitutional order freedom, equal rights, national equality and equality of genders, love of peace.... the rule of law, a democratic multiparty system

II Basic provisions Article 4 The principle of the separation of powers a) legislative power (The Croatian Parliament) executive power (The President and the Government) judicial power (Courts and judges)

II Basic provisions Article 5 Abiding by the Constitution and law → Everyone shall abide by the Constitution and law and respect the legal order of the Republic of Croatia

Language focus – „shall” Examples from the CONSTITUTION OF THE USA Translate the following articles and explain the use of the auxiliary verb shall. Article I All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives. Article II Section I The executive power shall be vested in a President of the United States of America. He shall hold his office during the term of four years….

Translate into English Iz Ustava Republike Hrvatske Članak 70 Hrvatski sabor je predstavničko tijelo građana i nositelj zakonodavne vlasti u Republici Hrvatskoj. Članak 93 Predsjednik Republike Hrvatske predstavlja i zastupa Republiku Hrvatsku u zemlji i inozemstvu.