Tuesday, September 6, 2016

Caldwell on China's "Five-Power Constitution"

Ernest Caldwell, University of London, School of Oriental and African Studies, has posted Chinese Constitutionalism: Five-Power Constitution, an entry in the forthcoming Max Planck Encyclopedia of Comparative Constitutional Law, edited by Rainer Grote, Lachenmann, Franke Lachenmann and Wolfrum, Rüdiger Wolfrum (Oxford University Press):
Studies of modern constitutions and constitutional structures are invariably predicated upon the common theory that governments exercise three primary forms of legitimate power: executive, legislative, and judicial. Scholars from Montesquieu to the present have argued that separating these powers into distinct branches of government and establishing various forms of procedural mechanisms to constrain the exercise of these powers best ensures that government power is exercised efficiently and without potential of infringing upon the rights and freedoms of individuals. This understanding is so common that the vast majority of the world’s written constitutions reflect this tripartite division of government power, including the majority of post-colonial and post-soviet constitutions which all take three powers to be the norm when designing a new constitutional government. There are, however, a handful of exceptions. Under the Constitution of the Bolivarian Republic of Venezuela: 20 December 1999 (Venez), for example, the national government is comprised of the standard executive, legislative, and judicial branches, but to this are added two additional branches: the Electoral Branch, responsible for overseeing elections, and the Citizens’ Branch which serves as ombudsman, public prosecutor, and comptroller. Less explicitly perhaps, the Constitution of Costa Rica: 7 November 1949 (Costa Rica) establishes the state’s three primary powers as the executive, legislative, and judiciary, yet also provides for the establishment of two additional and independent government organs: the Supreme Election Tribunal and the Comptroller General. Each represents an attempt to assimilate western constitutional design models within local socio-political contexts requiring alterations to such designs.

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