COMPARATIVE PUBLIC LAW

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COMPARATIVE PUBLIC LAW

• Lesson IX November 26th, 2008
• Forms of government

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Spain
Late achievement of Democracy

• Short experience of II Republic (1931-1936)
• Civil War (1936-1939) and franchist Dictatorship
  (1939-1976)
• Francos Death (1975) and start of political
  Transition (1976)
• Law for Political Reform (1976)
• New Constitution (into force since dec. 29th,
  1978)

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Spain
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Guernica, April 26th, 1936
Mts. 3,49 x 7,77
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Spain
Main Characters of Constitution

• Definition Spain is a social legal State
• Attention for both liberal and social liberties
  traditions ?merge of both experiences
• Relevant position of parliamentary representation
• Relevant position of formal law
• Relevant position of political parties effective
  representative democracy
• Wide Catalogue of fundamental rights (including
  social rights)
• Relevant role of autonomic bodies

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Spain

• Political form of State Parliamentary Monarchy
  (art. 1 III Const.)
• Reasons of a hard choice
• Kings functions
• Symbol of States Unity and Stability
• Controls proper operation of institutions
• Countersignature
• Appointment and Recall of President of Government
• Call for elections
• Anticipate Dissolution of Parliament
• Promulgation of laws
• Issue of Governments decrees
• Appoints judges of Constitutional Tribunal

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Spain

• Parliamentary Government
• Confidence Relationship between Cortes Generales
  (Two-Chambers Parliament) and Government
• Crucial role of political parties (national and
  regional ones)
• Regular Change between Socialist and Popular
  Party since 1982

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Spain

• Cortes Generales (Parliament)

Congress of Deputies 350 members Elected for 4
years with strictly corrected proportional
system Representing the whole Spanish people
Senate 264 members Elected for 4 years 4/5 by
electors with majority system 1/5 by Parliaments
of Autonomic Communities Ineffective Territorial
Representation
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Electoral System for Congress

• Proportional system extremely corrected
• 50 Constituencies 50 Provinces
• Treshold 3 in single constituencies
• List vote (not allowed to select candidates)
• Essentially Majority effects
• Small number of Seats (350)
• Small Number of Constituencies
• Wide dimentions of Constituencies few seats to
  win
• Treshold wide Constituencies reduction of
  represented parties

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Government

• President of Government (leader of winning party)
  Ministers Council of Ministers

Appointment of President of Government
Constructive Non-confidence Vote

• Confidence of Congress on program speech
• Absolute Majority (at 1 ballot)
• Simple Majority (after 48 h.)
• No Majority suggestion by the King
• No effect in 2 months Dissolution of Parliament

• Presented by at least 1/10 of Deputies
• To be voted 5 days after Presentation
• Possible alternative presentations
• Absolute Majority Appointment of new President
  of Government
• Failure no new attempt until next sessiono of
  Congress

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President of Government

• Confidence Motion on general politics or
  Government program
• To be approved with simple majority
• Discretionary Dissolution Power limits
• 1) if a non-confidence motion already presented
• 2) if less than a year passed since last
  dissolution
• 3) declaration of state of exception

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Autonomic State

• Art. 2 Cost State indissoluble, but
  acknowledgment of nationalities and regions
• Nazionalities Basque Country, Catalonia, Galicia
• Regions not named in the Constituion ruled only
  procedure of creation
• Neighbouring Provinces with similar historical,
  cultural and economical caharcters can ask for
  becomeing an Autonomous Community
• Different Autonomy Procedure Two levels of
  autonomy
• 1) (Art. 143) The initiative for the autonomous
  process belongs to all the interested deputations
  or to the pertinent inter-island body and to
  two-thirds of the municipalities whose population
  represents at least the majority of the
  electorate of each province or island. These
  requirements must be fulfilled within a period of
  six months from the first agreement adopted on
  the subject by one of the interested local
  corporations
• 2) (Art. 151) initiative for the autonomous
  process is agreed not only by the corresponding
  Provincial Deputations or inter-island bodies,
  but also by three-quarters of the Municipalities
  of each province concerned, representing at least
  the majority of the electorate of each one, and
  said initiative is ratified by means of a
  referendum by the affirmative vote of the
  absolute majority of the electors in each
  province

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Autonomic State
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Swiss Confederation

• Directorial form of government inspired to the
  French Constitution of 1795
• Imported by the French troops in 1798 birth of
  the Helvetic Republic
• Modell introduced into the 1848 Constitution,
  then kept in the following 1874 and 1999
  Constitutions
• Main Characters of the Swiss Nation
• Nation in political sense (fusion of etnic,
  linguistic and religious communities) not etnic
• Voluntary character of the foundative boundary
  among the different communities
• Federal form of State only possible choice
  considering the necessary pluralism of the society

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Swiss Cantons
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Institutional Structure
Federal President (in charge 1 year)
Federal Chancellor
Federal Council Collective Head of State (7
members - irrevocable)
Federal Court
Federal Chancellery
Every 4 years
Every 6 years
Federal Assembly
Referendum Popular Initiative
Council of States 46 members
National Council 200 members
Every 4 years in the Cantons
Every 4 years
Electoral Body