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Legislature in Constitution Building: Some Constraints and Responses"

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LISBON FORUM 2006 Annual forum of the North-South Centre in co-operation with the Venice Commission of the Council of Europe Under the patronage of the San Marino Presidency of the Committee of Ministers of the Council of Europe Constitutionalism – The Key to Democracy, Human Rights and the Rule of Law Lisbon, 28-29 November 2006 North-South Centre of the Council of Europe Table of Contents » 5 I. Summary of debates » 9 II. Interventions 9 Opening Session 21 Session I: Parliamentary control of the Executive in presidential and parliamentary systems 51 Session II: Constitutional justice – an effective guarantee of constitutionalism? 109 Session III: Civil society and the safeguarding of constitutionalism 130 Session IV: Role of the media in the safeguarding of constitutionalism » 136 III. Appendices 136 Appendix I: Agenda 140 Appendix II: List of participants I Summary of debates 1. The Lisbon Forum 2006 was jointly organised by the North- South Centre and the Venice Commission of the Council of Europe » and took place on 28 and 29 November 2006 at the Portuguese Parliament in Lisbon. 2. The Forum’s title was “Constitutionalism: The Key to Democracy, Human Rights and the Rule of Law” and it brought together around one hundred participants from the north and south, members of constitutional and similar courts, parliaments, non-governmental organisations and the media. 3. The Forum discussed the nature and development of constitutional demo- cracies in the north and south in a context of globalisation. The debates focused on the challenges of consolidating democratic processes, the roles of the different players and the promotion of democratic values. 5 » The challenges of democracy 4. The following points regarding democratic processes were stressed: » Democracy is the only form of government that can help find sustainable solutions to the political, economic and social problems in societies in the north and south; » However, democratic practices sometimes come up against certain difficul- ties in both old and new democracies; » There is a universal, ready-made model of democracy, but every democra- tic system must respect the minimum principles and standards, like the separation of power, an independent judiciary system, a legislative branch with sufficient prerogatives and means of controlling the executive branch, respect for individual and collective freedoms and the universal values of human rights; » While the efficacy of any democratic system depends on the existence of well-structured, smoothly running institutions, democracy in everyday life depends on the promotion of a democratic culture. » » » Stable, progressive constitutions 5. The Forum drew attention to the importance of a constitution as the funda- mental framework for the consolidation of democracy and social transforma- tion. The following considerations were set forth on this point: » The existence of a constitution is not a guarantee of the existence of democracy; » A constitution should be both stable and progressive in nature; » The legitimacy of a constitution depends to a great extent: • on the way in which it was drawn up; • on the mechanisms in place for ensuring that its principles are put into practice; • on the real powers and the role of the constitutional courts and actual relations between constitutional justice and political power. 6. The Forum underscored the importance of an independent judiciary branch as a fundamental factor in safeguarding constitutional democracy. Ensuring respect for the principles of judiciary independence is not, however, an easy 6 task. An independent judiciary pre-supposes the existence of impartial judges and the protection of its sphere of influence. » The role of parliaments 7.The Forum confirmed the crucial importance of parliaments in the consolida- tion of constitutional democracies. The following points were discussed: » The major role played by parliaments in democratic governance in control- ling the executive; » The impact of the way in which parliaments use this responsibility to affect the course of democratic life; » The constraints to which parliaments and parliamentarians are subject in certain countries, where the following obstacles were identified: • political structures that favour the executive over the legislative power; • an under-developed democratic culture; • lack of resources; • inadequate technical competences; • limited experience of political pluralism. 8. The question of the role of the political parties in the smooth running of democratic processes was also addressed. The Forum pointed out that demo- cracy cannot be organised without political parties, as they are the main link between the state and civil society. It was noted, however, that the parties have lost the people’s trust in some countries. » Civil society 7. The Forum pointed out that democracy and civil society form an indissocia- ble pair. Democratisation requires a favourable environment for the develop- ment of civil society. 10. Civil society organisations are not only the channels for the voices and demands of marginalised categories but also places for learning citizenship and promoting human rights and democracy.They help extend citizenship and increase participation. 11. It is necessary to recognise, however, that the concept of civil society is very broad and is used to designate diverse organisations in terms of type, genera- 7 tion, social and geographical origin, etc. » The media 12. The question of the media’s role was also addressed. The participants stressed that, to a certain extent, the quality of democracy depends on that of its information. The degree of citizens’ participation in civic life is in proportion to the quality of information. 13. While no democracy is possible without a free system of information, technological advances and concentrations in the sector raise certain issues. In fact, the advent of digital and multimedia technologies is deeply changing the media. Increasingly, competition for scoops, imitation, sensationalism and emotional shock are taking over from accuracy, analysis, facts and research. In some cases, the slot for short news items takes precedence over the media’s fundamental mission, which is to throw light on the democratic debate. 14. Pluralism of information is also weakened by the formation of media groups. The media industry has to answer important questions today, such as the role played by the interaction between the media and advertising markets, the effect of this interaction on the diversity of media contents and the mergers in the sector and their effect on the pluralism of the media. 15. The Forum considered that broadcasters are largely responsible for these developments in the news system and it is the people’s obligation to be active and not passive in the search for information. » » » Strengthening democratic values through dialogue 16.The Forum stressed the importance of intercultural dialogue in the develop- ment of democracy. Intercultural dialogue is not only an effective instrument for preventing and settling conflicts but also a way of guaranteeing inclusion in the globalisation of human rights and democracy. 17. Some suggestions were made during the Forum as to topics for this dialogue: » The pursuit and strengthening of the legal dialogue between constitutional courts in the north and south; » The promotion of co-operation between institutions from the north and south in charge of promoting human rights; » Support for initiatives promoting education in democratic values; » Formal and informal education of young people in the values of democrat- ic and intercultural values; 8 » The reinforcement of north-south dialogue between civil societies on the one hand and between local authorities on the other in order to favour networks and the convergence of synergies and actions; » The association of civil society organisations and the media in education on democracy; » The extension to Africa of the framework of intercultural dialogue. » II Interventions » Opening Session Peter Schieder Member of Parliament (Austria) Member of the Parliamentary Assembly of the Council of Europe Chairman of the Lisbon Forum Mrs Director General Battaini-Dragoni, Mr Vice-President of the Venice Commission Bonnici, » Mr Secretary of the Venice Commission Buquicchio, Mr Executive Director of the North-South Centre Correia Nunes, Distinguished Personalities from Africa and Europe, Ambassadors, Judges, Parliamentarians, and all other equally important participants, Let me welcome you in the name of my Co-Chairman Ben Turok and in my own. 9 The Lisbon Forum 2006 is here renewed, vivid and with a promising programme. Our thanks have to go to the Council of Europe, the North South Centre, especially the Commission for Democracy through Law, known as – should I say with the nom de guerre – Venice Commission, the San Marino Chairmanship of the Council of Europe, our African partners, and last but not least the extremely helpful Portuguese authorities. I do not know what an average person on the street would answer if we inter- viewed him or her about constitutionalism. But even if he or she were politi- cally aware, s/he would not start with John Locke. If s/he has "access", s/he will "surf the net", open Wikipedia and find an answer consisting of six sentences. "Constitutionalism is the limitation of government by law. Constitutionalism also implies a balance between the power of the government on the one hand and the rights of individuals on the other. Typically, a government
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