Week 2

Question 1

What is the process of creating a Constitution

Answer 1

• First of all, the constitution should have the democracy as a ‘narrative
• Seizing the initiative (someone just does iy)
• General acceptance
• Evolutionary and revolutionary constitutions(not always Big Bang)

Question 2

What is John Locke’s theory on the Separation of powers?

Answer 2

Locke, before Montesqieu, came with the Separation of powers. He said that there should be a separation of power between making laws and and executing them. (the third power is the federative power)
WIth him, it’s all about the separation of powers in order for one institution to not abuse of that power.
The Fundamental Separation should be between the legislative and executive power.

Question 3

What is Charles de Montesquieu’s theory on the Separation of Powers?

Answer 3

Montesquieu established the Trias Politica : limited government, independence and interdependence, legislative, executive and judiciary.
According to him, ‘le pouvoir arrete le pouvoir’ meaning that competence restrains a competence).
Montesquieu’s core idea is the same as Locke’s idea. It’s more about balancing out the power (limit or prevent the abuse of power)

Question 4

Explain the Parliamentary System

Answer 4

In a Parliamentary system, there is both the Parliament and the President. The Head of State and head of government have different roles and often are represented by different people. There is also a rule of confidence + no direct election of the executive.
(executive is independent on the legislative power’s confidence)

Question 5

Explain the Presidential System

Answer 5

In a Presidential system, the president is both the Head of State and the head of government. The president is elected by the people and therefore there is no need to vote the rule of confidence.

Question 6

Explain the Semi-Presidential System

Answer 6

The President is a part of the executive power as long as well as the government but with different functions. The president has his own mandate because he is selected by his people but the government need the rule of condifence by the Parliament (the governent needs to have the confidence of the Parliament and therefore the government may change according to the parliament). The President and the government have different mandates but they both share teh executive power.

Question 7

What is the difference between entrenchment and super-entrenchment?

Answer 7

Entrenchment is a constitutional mechanism used to protect the fundamental principles and values of a constitution from being easily changed or manipulated. It contributed to the stability and longevity of a constitution by making certain aspects difficult to amend.
Super-entrenchment takes the concept of entrenchment a step-further. A super- entrenched law or provision is one that is made even more difficult to change than merely an entrenched law (there are different types of super entrenchment)

Question 8

What are the different types of Super-entrenchment?

Answer 8

• Substantive Super-Entrenchment = about a specific part that cannot be changes –> ‘eternity clause’
• Condittional Super-Entrenchment = wether conditions applu, can the constitution be easily changed or not
• Temporal Super-Entrenchment = relates to time, concerned with the sequence or duration of events, occuring within a specific timeframe. example “…within 30days…”
• Basic Structure = amendment can’t modify the basic structure.

NOTE : entrenchment does not equal rigidity.