Writing Constitutions: Volume I: Institutions

Description

Writing Constitutions intends to serve as a practical manual for those writing constitutions or interested in their design. It is the first systematic and universal approach to coherently capture concepts and contents of a modern constitution. Volume I breaks each constitutional mechanism into components and offers detailed designs to draft a constitutional clause. This provides lawmakers with the necessary toolkit for writing constitutions and empowers them to strengthen democracies.  Writing Constitutions comes in three volumes: -        Volume I:   Institutions -        Volume II:  Fundamental Rights -        Volume III: Constitutional Principles Preface Comparability of Constitutions For Whom Writing Constitutions Is Written What Writing Constitutions Does Not Do Sources and Examples Used in Writing Constitutions Nominal Constitutions and Constitutional Reality Writing Constitutions Explained Contents About the Authors Abbreviations List of Figures List of Tables Part I: Parliament 1: Unicameral or Bicameral Parliaments 1.1 Overview of the External Organisational Structure of Parliaments 1.1.1 Historical Context and Function 1.1.2 Structural Approach 1.2 Monocameral Parliaments 1.3 Bicameral Parliaments 1.4 Remarks References 2: The Deputy 2.1 Status of a Deputy: The Free Mandate, Its Limitation and Protection 2.1.1 Overview over the Status of a Deputy 2.1.1.1 Free Mandate, Incompatibility, Loss of Mandate 2.1.1.2 Purpose and Function of the Rules 2.1.1.3 Historical Context 2.1.1.4 Related Topics 2.1.1.5 Structural Approach and Guiding Questions 2.1.2 Details of the Clause 2.1.2.1 Is the Mandate Free or Imperative? 2.1.2.2 Is the Mandate (In)compatible with Other Occupations? 2.1.2.3 Does the Constitution Provide for the Deputy´s Salary? 2.1.2.4 Does the Constitution List Causes That Lead to a Loss of the Mandate? 2.1.2.5 Are the Rules Regulated in the Constitution or by National Laws? 2.2 The Deputy: Immunity and Indemnity 2.2.1 Overview over Immunity and Indemnity 2.2.1.1 Definition 2.2.1.2 Purpose and Function of Immunity and Indemnity 2.2.1.3 Legal Nature/Character 2.2.1.4 Historical Context 2.2.1.5 Structural Approach and Guiding Questions 2.2.2 Details of the Clause 2.2.2.1 Is Indemnity Guaranteed at All? 2.2.2.2 What Is the Scope of Indemnity? 2.2.2.3 Are There Exceptions for Certain Crimes? 2.2.2.4 Is There a Temporal Limit of Indemnity? 2.2.2.5 Is Immunity Guaranteed at All? 2.2.2.6 What Is the Scope of Immunity? 2.2.2.7 Is There a Temporal Limit to Immunity? 2.2.2.8 Can Immunity/Indemnity Be Lifted? 2.2.2.9 Can a Court Review the Decision? References 3: Political Parties and Thresholds 3.1 Rules Around Political Parties 3.1.1 Overview of the Clauses Referring to Political Parties 3.1.1.1 Definition, Purpose and Function of Political Parties 3.1.1.2 Historical Context 3.1.1.3 Procedural Questions 3.1.1.4 Structural Approach and Guiding Questions 3.1.2 Details of the Clauses Concerning Political Parties 3.1.2.1 Qualification as Political Party 3.1.2.2 Protection of Political Parties 3.1.2.3 Ban and Dissolution 3.1.2.4 Party Financing 3.1.2.5 Necessity of a Constitutional Rule Concerning Political Parties 3.2 Election Thresholds Including Allocation of Non-counting Votes 3.2.1 Overview of the Threshold Clause 3.2.1.1 Definition 3.2.1.2 Historical Context and Purpose of a Threshold Clause 3.2.1.3 Disadvantages of a Threshold Clause 3.2.1.4 Structural Approach and Guiding Questions 3.2.2 Details of a Threshold Clause in a Constitutional System 3.2.2.1 Majority System 3.2.2.2 Proportional System 3.2.2.3 Level of the Threshold 3.2.2.4 Does the Threshold Apply to Parties or Party Coalitions? 3.2.2.5 Exemptions to Support Regionally Strong Parties 3.2.2.5.1 Option 1: (Alternative) Threshold on District Level 3.2.2.5.2 Option 2: No Application of Threshold if Party Wins Several Seats in a Constituency 3.2.2.6 Allocation of ``Wasted´´ (i.e. Unallocated) Votes 3.2.2.7 Regulation on Constitutional Level or by Ordinary Law? An illustration of a rectangle-shaded box with a thick borderline.Electoral Laws Referred to in This Chapter References 4: Internal Organisation of Parliament and Role of the Opposition 4.1 Overview of the Organisation of Parliament (Speaker, Praesidium, Committees, Factions and the Opposition) 4.1.1 Historical Context 4.1.2 Purpose and Function of Parliament 4.1.3 Procedural Questions 4.1.4 Structural Approach and Guiding Questions 4.2 Details of the Clauses 4.2.1 The Speaker 4.2.2 The Presidium 4.2.3 Committees 4.2.4 Faction 4.2.5 Opposition 4.2.5.1 Constitutional Establishment of the Main Principles 4.2.5.2 Status of Members of Parliament 4.2.5.3 Financial Resources of Factions 4.2.5.4 Non-parliamentary Actors 4.2.5.5 Allocation of Positions of Responsibility 4.2.5.6 Procedural Decisions Within Parliament 4.2.5.7 Allocation of Speaking Time 4.2.5.8 Amendments by the Opposition to Proposed Bills 4.2.5.9 Qualified Majorities for Bills 4.2.5.9.1 Participation by the Opposition in the Appointment of Senior Office Holders 4.2.6 Detail of Regulation References 5: Investigative Committees and Inquisitorial Rights 5.1 Investigative Committees 5.1.1 Overview of the Investigative Committee 5.1.1.1 Definition 5.1.1.2 Historical Context 5.1.1.3 Function 5.1.1.4 Caveat: Limits of the Function 5.1.1.5 Procedural Questions 5.1.1.6 Structural Approach and Guiding Questions 5.1.2 Details of the Clause Concerning Investigative Committees 5.1.2.1 How Can the Parliament form an Investigative Committee? 5.1.2.1.1 What Organ Is Responsible for the Formation? 5.1.2.1.2 What Majority Is Required? 5.1.2.2 What Is the Subject and Scope of the Investigation? 5.1.2.3 How Is the Committee Composed? 5.1.2.4 What Rights and Limits of Investigation or Intervention Does the Committee Have? 5.1.2.4.1 General Powers 5.1.2.4.2 Exceptions and Prerequisites 5.1.2.5 How Do the Findings Relate to the Judiciary? 5.1.2.6 When and How Is the Committee Dissolved? 5.1.2.7 Regulation on Constitutional Level or by Ordinary Law? 5.2 Inquisitorial Rights 5.2.1 Overview of Inquisitorial Rights 5.2.1.1 Definition 5.2.1.2 Historical Context 5.2.1.3 Function 5.2.1.4 Structural Approach and Guiding Questions Concerning Inquisitorial Rights 5.2.2 Details of the Clauses Concerning Parliament´s Inquisitorial Rights 5.2.2.1 Right of Questioning 5.2.2.1.1 Overview 5.2.2.1.2 Written Enquiries 5.2.2.1.3 Institutionalized Regular Question Time 5.2.2.1.4 Means of Enforcing the Right of Questioning 5.2.2.2 Right of Interpellation 5.2.2.2.1 Overview 5.2.2.2.2 Initiation Threshold 5.2.2.2.3 Addressee 5.2.2.2.4 Duty to Personally Attend 5.2.2.2.5 Obligation to Respond 5.2.2.3 Allowed Scope of Questions References 6: Legislation 6.1 Overview 6.2 Legislative Initiative 6.2.1 Detailed Provisions 6.2.2 Remarks 6.3 Reading of Laws 6.3.1 Detailed Provisions 6.3.2 Remarks 6.4 Solution of Bicameral Conflicts 6.4.1 Detailed Provisions 6.4.2 Remarks 6.5 Approval and Control of Legislative Acts 6.5.1 Detailed Provisions 6.5.2 Remarks 6.6 Parliamentary Reservation and Delegated Legislation 6.6.1 Overview 6.6.2 Parliamentary Reservation 6.6.3 Remarks 6.6.4 Delegated Legislation 6.6.5 Remarks References Part II: President 7: The Presidential Office: Qualification, Election and Term 7.1 Qualification and Oath 7.1.1 Overview of the Presidential Qualifications and Oath 7.1.1.1 Definitions 7.1.1.2 Historical Context 7.1.1.3 Qualification Clause 7.1.1.4 Oath 7.1.1.5 Potential of Misuse 7.1.2 Structural Approach and Guiding Questions and Qualifications 7.1.2.1 Age Restrictions 7.1.2.2 Citizenship 7.1.2.2.1 Citizenship Requirements 7.1.2.2.2 Controversy ``Natural-Born´´ 7.1.2.2.3 Term Citizenship ``By Origin´´ 7.1.2.2.4 Citizenship Requirements for Relatives 7.1.2.3 Residence 7.1.2.4 Right to Vote and Eligibility 7.1.2.5 Education and Religion 7.1.2.5.1 An Issue in Poor and Religious Countries 7.1.2.5.2 Recommendation for a Democratic Society 7.1.2.6 Incompatibilities 7.1.2.6.1 Ineligibility 7.1.2.6.2 Other Reasons for Incompatibility 7.1.2.7 Possible Solutions to Prevent Misuse and Negative List 7.1.2.8 Clause to Restrict Amendments 7.1.3 Oath 7.2 Election of the President 7.2.1 Overview 7.2.1.1 Definition and Purpose of the Provision 7.2.1.2 Historical Context 7.2.1.3 Criteria for a ``Good´´ Election Clause 7.2.2 Procedural Questions 7.2.3 Structural Approach 7.2.4 Details of the Election Clause 7.2.4.1 When Does the Election Take Place? 7.2.4.2 How Are the Candidates Pre-selected? 7.2.4.3 Direct or Indirect Election? 7.2.4.4 In Case of an Indirect Election, Which Body Elects the President? 7.2.5 Which Majority Is Required To Be Voted into Office? 7.2.6 Is There a Minimum Turnout Rate? 7.2.7 What Happens if the Candidate Does Not Obtain the Required Majority? 7.2.8 Supplementing Provisions 7.3 Duration of Presidential Term 7.3.1 Overview 7.3.1.1 Definition 7.3.1.2 Purpose and Function of the Rule 7.3.1.3 Historical Context 7.3.2 Structural Approach and Guiding Questions 7.3.3 Details of the Clause Concerning the Duration of Office 7.3.3.1 Is a Limitation of the Duration of Office at All Required? 7.3.3.2 Which Duration Is Advisable? 7.3.3.3 Is a Limit of Possible Re-elections Advisable? 7.3.3.4 Limited Number of Re-elections After Regular Election into Office 7.3.3.5 Limited Number of Re-election After Not Being Elected into Office 7.3.3.6 How Many Re-elections Should Be Possible? 7.3.3.7 Should There Be Exemptions from the Limit of Re-elections? 7.3.4 Eternal Guarantee 7.3.5 Conclusion References 8: Presidential Powers and Veto Rights 8.1 Competencies of the President 8.1.1 Overview and Structural Approach 8.1.2 Various Functions of the President 8.1.2.1 Guardian and Guarantee Functions 8.1.2.2 Control of Constitutionality of State Action 8.1.2.3 Remarks 8.1.2.4 Guarantee Function in Times of Crisis 8.1.2.5 Remarks 8.1.2.6 Arbitral and Mediation Function 8.1.2.7 Executive Functions 8.1.2.8 Remarks 8.2 Countersigning 8.2.1 Overview 8.2.1.1 Definition 8.2.1.2 Purpose 8.2.1.3 Historical Context 8.2.1.4 Structural Approach and Guiding Questions 8.2.2 Details of the Clause 8.2.2.1 Does the Article Feature a Positive or Negative Nature? 8.2.2.2 Who Is the Person to Countersign? 8.2.2.3 What Are the Consequences of No Countersignature? 8.2.2.4 What Are the Exceptions from Countersignature? 8.2.2.4.1 Ceremonial Prerogatives 8.2.2.4.2 Protector of the State and Constitution 8.2.2.4.3 Organisation of Office 8.2.2.4.4 President as Mediator 8.2.2.5 Executive Powers 8.3 Veto Powers 8.3.1 Overview of the Presidential Veto Powers 8.3.1.1 Definition 8.3.1.2 Purpose and Function of the Rule 8.3.1.3 Historical Context 8.3.1.4 Procedural Questions 8.3.1.5 Structural Approach and Guiding Questions 8.3.2 Details of the Clause Relating to the Veto Right 8.3.2.1 Absolute or Suspensive Veto Power 8.3.2.2 Limitations of the Veto Power 8.3.2.3 Effects of the Exercise of the Veto 8.3.2.4 Legislative Overriding Procedures References 9: Dissolution of Parliament and Impeachment of President 9.1 Dissolution of Parliament 9.1.1 Overview of the Dissolution of Parliament 9.1.1.1 Definition 9.1.1.2 Purpose and Function of the Rule 9.1.1.3 Historical Context 9.1.1.4 Procedural Questions 9.1.2 Details of the Dissolution Clause 9.1.2.1 Should Parliament be Immune from Dissolution by the Executive? 9.1.2.2 Which Organ Should Be Able to Dissolve Parliament? 9.1.2.3 In What Circumstances Should the Right of Dissolution Be Exercised? 9.1.2.4 Which Limitations and Restrictions Should Be Provided? 9.1.2.5 Which Constitutional Organ(s) Should Be Involved in the Dissolution? 9.2 Impeachment 9.2.1 Overview of the Impeachment Clause 9.2.1.1 No Anti-impeachment Clause 9.2.1.2 Historical Context and the Unsuitable Example of the US Constitution 9.2.1.3 Additional Considerations for Presidential Systems 9.2.1.4 Procedural Questions 9.2.1.5 Structural Approach and Guiding Questions 9.2.2 Details of the Impeachment Clause 9.2.2.1 Which Officials Aside from the President Can Be Impeached? 9.2.2.2 Organ and Majority to Initiate Impeachment Process 9.2.2.3 No Immediate Substitution of the President 9.2.2.4 What Constitutes the Misconduct? 9.2.2.4.1 What Right of Defence Is Vested in the Constitution? 9.2.2.4.2 Does a Court Review the Alleged Misconduct and Are Those Findings Binding? 9.2.2.5 Decision Making: What Organ(s) and Majorities Are Required to Impeach the President? 9.2.2.6 Who Replaces the Impeached Person? 9.2.2.7 Timeframe Between Procedural Steps and Limitations to Impeachment References Part III: Government 10: Government 10.1 Role and Function of Government 10.2 Governmental Leadership and Organisation 10.2.1 Prime Minister/Minister-President/Chancellor 10.2.2 Principles of Organisation: Departmental-Collegiate Principle 10.3 Appointment and Dismissal of Government 10.3.1 Overview 10.3.1.1 Historical Context 10.3.1.2 Structural Approach and Guiding Questions 10.3.2 Details of the Clauses 10.3.2.1 Appointment of the Head of Government 10.3.2.2 Dismissal of the Head of Government and of Individual Ministers 10.3.2.3 Separation of Appointment from Selection of Candidate 10.3.2.4 Forming Government in Case of Uncertain Majorities 10.3.2.5 Timeframes When Forming Government 10.3.2.6 Detail of Appointment/Dismissal Clauses 10.4 Vote of Confidence Clause 10.4.1 Overview of the Vote of Confidence Clause 10.4.1.1 Definition 10.4.1.2 Purpose and Function of the Rule 10.4.1.3 Norm Addressee 10.4.1.4 Legal Nature/Character 10.4.1.5 Historical Context 10.4.1.6 Procedural Questions 10.4.1.7 Structural Approach and Guiding Questions 10.4.2 Details of the Vote of Confidence Clause 10.4.2.1 Why Do Many Parliamentary Democracies Have a Vote of Confidence? 10.4.2.2 Who Has the Power to Initiate a Vote of Confidence? 10.4.2.3 What Organ(s) Are Required to Initiate the Vote? 10.4.2.4 What Are the Prerequisites for Invoking a Vote of Confidence? 10.4.2.5 What Majority Is Needed? 10.4.2.6 What Are the Time Limits of the Vote? 10.4.2.7 What Are the Legal Consequences of a Vote of Confidence? 10.4.2.7.1 A. Resignation of Government 10.4.2.7.2 B. Dissolution of Parliament 10.4.2.7.3 C. New Elections 10.5 Vote of No Confidence Clause 10.5.1 Overview of the Vote of No Confidence Clause 10.5.1.1 Definition 10.5.1.2 Purpose and Function of the Rule 10.5.1.3 Norm Addressee 10.5.1.4 Legal Nature/Character 10.5.1.5 Historical Context 10.5.1.6 Procedural Questions 10.5.1.7 Structural Approach and Guiding Questions 10.5.2 Details of the Clause 10.5.2.1 How Is the Vote of No Confidence Initiated? 10.5.2.2 Who Is Subject to the Vote of No Confidence? 10.5.2.2.1 A. Government as a Whole or the Head of Government 10.5.2.2.2 B. Individual Ministers 10.5.2.2.3 C. Other Subjects 10.5.2.3 What Are the Procedural Criteria of the Vote? 10.5.2.3.1 A. Formal Requirements of the Vote 10.5.2.3.2 B. Majority Required for the Vote of No Confidence 10.5.2.3.3 C. Further Procedural Requirements of the Vote/Exclusion Criteria 10.5.2.4 What Are the Time Limits of the Vote? 10.5.2.5 How Does Third Power Intervention Verify the Vote of No Confidence? 10.5.2.6 What Are the Consequences of a Vote of No Confidence? 10.5.2.6.1 A. Consequences of a Successful Vote of No Confidence Against an Individual Minister 10.5.2.6.2 B. Overview of Consequences After a Successful Vote of No Confidence Against the Government as a Whole or the Head ... 10.5.2.6.3 C. Resignation or Removal of the Government 10.5.2.6.4 D. Dissolution of Parliament and Re-Elections 10.5.2.6.5 E. Constructive Vote of No Confidence 10.5.2.6.6 F. Timeframe for Consequences References Part IV: Judiciary 11: Constitutional Courts: Supreme Courts 11.1 Overview of Constitutional Jurisdiction and Judges 11.1.1 Introduction 11.1.2 Normative Status 11.1.3 Nomination of Judges: Organs and Election 11.1.4 Remarks 11.1.5 Independence of Judges 11.1.5.1 Duration of Office 11.1.5.2 Remarks 11.1.5.3 Irrevocability 11.1.5.4 Remarks 11.1.5.5 Indemnities/Immunities 11.1.5.6 Remarks 11.1.5.7 Incompatibilities 11.1.5.8 Remarks 11.2 Competences of Constitutional/Supreme Courts 11.2.1 Abstract Control of Norms 11.2.1.1 Retroactive Control (``a posteriori´´) 11.2.1.2 Preventive Control (``a priori´´) 11.2.2 Diffuse and Centralized Judicial Review of Norms 11.2.2.1 Historical Context and Definition 11.2.2.2 Centralized Judicial Review 11.2.2.3 Mixed Models 11.2.2.4 Remarks 11.2.2.5 Decentralized Judicial Review (``Diffuse Review´´) 11.2.2.6 Remarks 11.2.3 Individual Complaints: Popular Complaints (``Actio Popularis´´) 11.2.3.1 Overview 11.2.3.2 Remarks 11.2.4 Conflict of Competences 11.2.4.1 Introduction 11.2.4.2 Remarks 11.2.5 Control of Elections, Mandates, Referenda 11.2.5.1 Overview 11.2.5.2 Remarks 11.2.6 Protecting the Constitution 11.2.6.1 Overview 11.2.6.2 Remarks References 12: General and Special Jurisdictions and Public Prosecution 12.1 Overview of General and Special Jurisdictions 12.1.1 Definition 12.1.2 Establishment of Courts and Appointment of Judges 12.1.2.1 Establishment of Courts 12.1.2.2 Remarks 12.1.2.3 Appointment of Judges 12.1.2.4 System of Appointment 12.1.2.5 Remarks 12.1.2.6 Relevance of Political Forms of State on the Appointment 12.1.2.7 The Role of Self-Governing Bodies (``High Councils of Judges´´) 12.1.2.8 Independence of Judges 12.1.2.9 Budget of the Judiciary 12.1.2.10 Remarks 12.2 Public Prosecution Service 12.2.1 Overview 12.2.2 Remarks References Part V: Territorial Structure 13: Territorial Structure 13.1 Overview: Terms and Definitions 13.1.1 Typology 13.1.2 Structural Approach Relating to Territorial Structures 13.2 Details of the Territorial Structures 13.2.1 Unitary Systems 13.2.2 Remarks Relating to Unitary Systems 13.2.3 Regionalised Systems 13.2.4 Remarks Relating to Regional Systems 13.2.5 Federal Systems 13.2.6 Remarks Relating to Federal Systems 13.2.7 Local Government 13.2.8 Remarks Relating to Local Government References Part VI: State of Emergency 14: State of Emergency 14.1 Overview of the State of Emergency 14.1.1 Definition 14.1.2 Purpose and Function of the Rule 14.1.3 Norm Addressee 14.1.4 Historical Context and Corona Virus Responses 14.1.5 Structural Approach 14.2 Details of the State of Emergency Clauses 14.2.1 Types of Emergency Rule 14.2.2 Procedure for Declaring the State of Emergency 14.2.3 Substantive Requirements 14.2.3.1 Shift of Competencies During Emergency 14.2.3.2 Protection and Limitation of Human Rights 14.2.3.3 Important Restrictions 14.2.3.4 Effective Period of the State of Emergency 14.2.4 Legal Consequences 14.2.5 Legislative Control 14.2.6 Judicial Review 14.3 Remarks 14.3.1 Specification of the Emergency 14.3.2 Notification 14.3.3 The Principle of Non-derogation or Limitation of Fundamental Rights 14.3.4 The Principle of Proportionality 14.3.5 Supervision 14.3.6 Conclusion References Part VII: Defence 15: Defence 15.1 Military Forces: National Security Institutions 15.2 Remarks to Status and Role of Military Functions 15.3 Power of Military Command 15.4 Power to Declare War or Emergency 15.4.1 Power to Declare War 15.4.2 Emergency Powers 15.4.2.1 Parliamentary Control of Emergency and War Powers 15.4.2.2 Emergency Powers 15.5 Oversight of War Powers 15.6 Remarks References Part VIII: Budget, Finance and Central Banks 16: Budget, Finance and Central Banks 16.1 Budget Clause and Control Chamber 16.1.1 Overview of the Budget Clause 16.1.1.1 Definition 16.1.1.2 Purpose and Function 16.1.1.3 Legal Nature/Character 16.1.1.4 Historical Context 16.1.1.5 Procedural Questions 16.1.1.6 Structural Approach and Guiding Questions 16.1.2 Details of the Budget Clause 16.1.2.1 Who Has the Right to Propose the Budget? 16.1.2.2 Who Needs to Approve of the Budget? 16.1.2.3 Can Another Institution Amend the Proposed Bill? 16.1.2.4 Absence of a Budget Before the New Fiscal Term. Can an Emergency Budget Be Enacted? 16.1.2.5 What Can Be Done If the Expenses Exceed the Budget? 16.2 Taxes 16.2.1 Overview of the Financial Constitution 16.2.1.1 Definition 16.2.1.2 Purpose and Function of the Rules 16.2.1.3 Ways to Generate Income 16.2.1.4 Sovereignties Regarding Taxes 16.2.1.5 Supervision 16.2.1.6 Historical Context 16.2.1.7 Procedural Questions 16.2.1.8 Structural Approach and Guiding Questions 16.2.2 Details of the Income Clause 16.2.2.1 Limitation of Public Debt 16.2.2.2 Limitation on Burdening Citizens 16.2.2.3 Duration of Taxation 16.2.2.4 What Provisions Need to Be in the Constitution? 16.2.3 Details of the Control Chamber Clause 16.2.3.1 Control and Revision of Expenses 16.2.3.2 Scope of Review 16.2.3.3 Composition of the Control Chamber 16.3 Central Banks 16.3.1 Overview 16.3.1.1 Definition 16.3.1.2 Historical Context 16.3.1.3 Structural Approach and Guiding Question 16.3.2 Details of the Central Bank Clause 16.3.2.1 National Bank as a Mandatory Part of the Constitution 16.3.2.2 Scope of Provisions 16.3.2.3 Establishment Clause 16.3.2.4 Allocation of Powers 16.3.2.5 Executive Body 16.3.2.6 Term of Office 16.3.2.7 Personal Qualification 16.3.2.8 Appointment of Board Members 16.3.2.9 Appointment of a Chairperson 16.3.2.10 Accountability 16.3.2.11 Sublegal Reference References Part IX: Referendum 17: The Referendum 17.1 Overview of the Referendum Clause 17.1.1 Definition 17.1.2 Historical Context 17.1.3 Purpose and Function of Referendums 17.1.4 Procedural Questions 17.1.5 Structural Approach and Guiding Questions 17.2 Details of the Referendum Clause 17.2.1 Is a Referendum Clause Required? 17.2.2 What Body Is Competent to Initiate a Referendum? 17.2.3 Which Body Has the Power to Determine the Scope and Subject of the Referendum? 17.2.4 What Topics Can Be the Subject of a Referendum? 17.2.5 What Are the Procedural Specifications for a Referendum? 17.2.6 What Is the Regional Scope of a Referendum? 17.2.7 What Are the Temporal Requirements of a Referendum? 17.2.8 What Quorum Is Required for a Successful Referendum? 17.2.9 Is a Referendum´s Outcome Binding? 17.2.10 Is a Referendum´s Outcome Subject to Judicial Review? References Part X: Amending the Constitution 18: Amendment Power 18.1 Overview of the Rule on Constitutional Amendments 18.1.1 Definition: Distinction Between Constitution-Making, Constitutional Amendment and Transformation 18.1.2 Chances and Risks of Rigid and Flexible Constitutions 18.1.3 The Rules on Constitutional Amendment: Overview of the Requirements 18.2 Details of the Clause: Structural Approach and Guiding Questions 18.2.1 Formal Requirements 18.2.1.1 Organs and Majorities Required to Initiate the Amendment 18.2.1.2 What Organs and Majorities Are Required to Adopt the Amendment? 18.2.1.3 Electoral System 18.2.1.4 Constitutional Development 18.2.1.5 Constitutional Referendum and Alternatives 18.2.1.6 Timeframe for the Legislative Advice and Adoption 18.2.1.7 Approval by (Mandatory/Optional) Referendum 18.2.1.8 Method of the Textual Revision 18.2.2 Substantive Requirements 18.2.2.1 Which Sections of a Constitution Are Immutable? 18.2.2.2 Amendment of the Rules on Constitutional Amendments 18.2.2.3 Moratorium 18.2.3 Involvement of the Constitutional Court 18.3 Remarks References Index