And...It's Spain.. will it kick off ?
Discussion
TooMany2cvs said:
Obfuscation? Jobs for constitutional lawyers? I have to admit I'm struggling beyond those.
It's not as if it doesn't all exist - so might as well be collated into a single place.
I agree. There would potentially be less constitutional litigation if the constitution was in a single document (I say potentially). Of course there would be arguments about the meaning of the written words, but at present we also have arguments about conventions, prerogatives and so on..It's not as if it doesn't all exist - so might as well be collated into a single place.
handpaper said:
TooMany2cvs said:
Umm, surely it's just as easy to change a written constitution as to change an unwritten one?
It's all down to the political will existing.
The body of law that forms the UK Constitution is no harder to alter that the law on foxhunting - all that is required is an Act of Parliament. Anything else would violate the principle of Parliamentary sovereignty.It's all down to the political will existing.
Changing the US Constitution is much more difficult; supermajorities in both Congress and Senate, plus the agreement of 3/4 of States' legislatures is required. I would imagine the Spanish one isn't much easier.
What you describe is nothing to do with there being a single written constitution, and everything to do with the protections put in place by the prevailing political will.
handpaper said:
The body of law that forms the UK Constitution is no harder to alter that the law on foxhunting - all that is required is an Act of Parliament. Anything else would violate the principle of Parliamentary sovereignty.
...
I agree, subject to the caveat that constitutional statutes may be immune to the doctrine of implied repeal and would require express amendment or repeal (a point that came up in the Metric Martyrs case). Some jurists have speculated that some statutes might be entrenched, but this view is not widely accepted - absolute Parliamentary sovereignty remains the totem of the British Constitution (and EU membership never changed this)....
Breadvan72 said:
Decipher, I think you mean. I am not saying that it is a good thing or a bad thing. It is an historical accident. In former and current parts of the British Empire, single document written constitutions are the norm. I don't buy the notion that a written constitution is by its nature an instrument of oppression.
I did wonder why my phone keep correcting it...! In my opinion Spain are using it as an instrument of oppression.
Breadvan72 said:
Yes, but the road to the Strasbourg Court is long. There would be in the meantime a real concern if arrest of politicians becomes a norm in Spain.
I see a lot of comment in NPE saying that the Spain problem is the fault of the EU, or describing Spain as an avatar of the EU*. That seems to me inaccurate, although I think that the EU should have condemned the Spanish police actions of a few weeks ago. The problems of Spain look to me to be more Spanish (and Catalan) than EU. The shadow of Franco is still present.
* Mega unscientific subjective impression: many pro Brexit posters seem to be also anti Scottish independence but pro Catalan independence. Go figure.
agree with all of that. my main concern is the spanish judiciary may not be as impartial as our own . it is a terrible situation that should have been sorted out a long time ago. my spanish friends all say had a proper referendum been organised it would most likely have resulted in a remain vote . it now has the potential to cause unrest for a significant period of time .fair chance the spanish will highlight just how little regard they have for international law as well. when it comes to paying lip service to eu dictats they definitely take the biscuit.I see a lot of comment in NPE saying that the Spain problem is the fault of the EU, or describing Spain as an avatar of the EU*. That seems to me inaccurate, although I think that the EU should have condemned the Spanish police actions of a few weeks ago. The problems of Spain look to me to be more Spanish (and Catalan) than EU. The shadow of Franco is still present.
* Mega unscientific subjective impression: many pro Brexit posters seem to be also anti Scottish independence but pro Catalan independence. Go figure.
John145 said:
In my opinion Spain are using it as an instrument of oppression.
Whether or not that is what is happening in Spain, that is something that can happen. Most dictatorships have constitutions (I am not saying that Spain is a dictatorship); but bad government isn't caused by constitutions.Breadvan72 said:
John145 said:
In my opinion Spain are using it as an instrument of oppression.
Whether or not that is what is happening in Spain, that is something that can happen. Most dictatorships have constitutions (I am not saying that Spain is a dictatorship); but bad government isn't caused by constitutions.This situation highlights my point of view. The 'it's all illegal therefore nothing will ever change' opinion is oppressive especially as the only ones with power to change it have no vested interest in doing so.
Maybe look up and read some constitutions. They tend to guarantee democracy. Whether the guarantee works depends on the political culture of the country. In stable democracies the constitution often acts as a check on Government power.
The US constitution is much more than the notorious Second Amendment. The malign effect of that amendment stems from bad politics and bad judicial decisions by a politicised Supreme Court
The US constitution is much more than the notorious Second Amendment. The malign effect of that amendment stems from bad politics and bad judicial decisions by a politicised Supreme Court
John145 said:
Breadvan72 said:
John145 said:
In my opinion Spain are using it as an instrument of oppression.
Whether or not that is what is happening in Spain, that is something that can happen. Most dictatorships have constitutions (I am not saying that Spain is a dictatorship); but bad government isn't caused by constitutions.This situation highlights my point of view. The 'it's all illegal therefore nothing will ever change' opinion is oppressive especially as the only ones with power to change it have no vested interest in doing so.
Here's an opinion piece from El Pais. In Spanish, but google translate is your friend.
https://elpais.com/elpais/2017/10/14/opinion/15079...
Breadvan72 said:
The Constitution was drafted by elected member of the Cortes (the Parliament) and approved in a referendum (91.8% of voters in favour) . Why do you think it was written by the army?
I can't find it now but there was an article on the BBC website that said that whilst the constitution was being drafted (following Franco's death) Article 155 was added in at the insistence of the military, who still wielded considerable power at the time. Alfa numeric said:
Breadvan72 said:
The Constitution was drafted by elected member of the Cortes (the Parliament) and approved in a referendum (91.8% of voters in favour) . Why do you think it was written by the army?
I can't find it now but there was an article on the BBC website that said that whilst the constitution was being drafted (following Franco's death) Article 155 was added in at the insistence of the military, who still wielded considerable power at the time. Spanish constitution said:
155. 1. If a Self-governing Community does not fulfil the obligations imposed upon it by the Constitution or other laws, or acts in a way that is seriously prejudicial to the general interest of Spain, the Government, after having lodged a complaint with the President of the Self-governing Community and failed to receive satisfaction therefore, may, following approval granted by the overall majority of the Senate, take all measures necessary to compel the Community to meet said obligations, or to protect the above-mentioned general interest.
2. With a view to implementing the measures provided for in the foregoing paragraph, the Government may issue instructions to all the authorities of the Self-governing Communities.
It's hardly ridiculously objectionable, is it?2. With a view to implementing the measures provided for in the foregoing paragraph, the Government may issue instructions to all the authorities of the Self-governing Communities.
And, to put it in context, the section on self-governing communities starts at 143.
http://www.lamoncloa.gob.es/lang/en/espana/leyfund...
Edited by TooMany2cvs on Monday 23 October 16:37
TooMany2cvs said:
This is Article 155.
You mean apart from the open-ended and unrestricted 'take all measures necessary to compel' bit?Spanish constitution said:
155. If a self-governing community does not fulfil the obligations imposed upon it by the constitution or other laws, or acts in a way that is seriously prejudicial to the general interest of Spain, the government may take all measures necessary to compel the community to meet said obligations, or to protect the above-mentioned general interest.
It's hardly ridiculously objectionable, is it?SpeckledJim said:
You mean apart from the open-ended and unrestricted 'take all measures necessary to compel' bit?
They should have given a list of things they were willing to do, hamstringing themselves from ever using anything not in the list?The constitution was written in the 1970s. Should they have amended it to include anything internet-based, f'rinstance?
TooMany2cvs said:
SpeckledJim said:
You mean apart from the open-ended and unrestricted 'take all measures necessary to compel' bit?
They should have given a list of things they were willing to do, hamstringing themselves from ever using anything not in the list?The constitution was written in the 1970s. Should they have amended it to include anything internet-based, f'rinstance?
That said, you have to bear in mind that back in 1978 there was an armed struggle going on in the Basque country, the regional assembly there hadn't yet been established, and no one had a scooby about what might happen when it was constituted. It isn't surprising that the article was drafted with very wide and general powers.
confused_buyer said:
Article 155 of the Spanish Constitution as I understand is a virtual cut and paste from the German Constitution which has an identical clause should one of the Landers go rogue.
Naughty! Next someone will be saying "Yeah but that was put there by the (American) Army"Meanwhile in Japan, the US has sort of bailed from defending Japan against China and North Korea, but the US-drafted Constitution says that Japan is not allowed to be fighty.
Constitutions? We got 'em! A colleague of mine who used to be a constitutional law professor at UCL has a retirement job of lobbing around the world selling constitutions by the yard. It's a cool gig, except for having to stay in dreary hotels in Wherethef
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