•Development of Constitutionalism in somalia
•Development of Constitutionalism
•In order to make adequate choices when drafting a constitution it is important to understand the modern concept of a constitution and the implications that the concept of constitutionalism has for the legal system of a country.
• An overview of the history of constitutionalism in the West as well as Islamic countries may help in furthering this understanding. •When deciding for a constitution, a population always transforms policy choices into law. •These choices usually reflect the country's distinctive history and its specific social, economic and cultural conditions. •For instance, a seafaring (marine)nation might want to address maritime issues in its national constitution; or a people that have just freed themselves from the yoke of tyranny might opt for particularly flat or horizontal hierarchies •Additionally, the constitutional choices of a country may also be influenced by its earlier constitutions, or by the political thinking of its founders. •Cont •A good example for the latter is the U.S. American Constitution (Madison, Hamilton, Adams and another good example is for the Constitutional choices of Somalia which was influenced by political thinking of the founders of SOMALIA.•In many countries, in particular on the African continent, constitutionalism has come along with decolonization;
•on one hand the people’s exercise of their right to self-determination aimed at gaining independence and discarding the colonial powers.
•
•Cont.
•On the other hand, this exercise of the people's right to self‐determination can be seen as a step towards constitutionalism.
•Contemporary western researchers who hold liberal principles see it as the primary function of constitutions t to limit the scope of governmental power and to describe the method for its exercise, thereby safeguarding the citizens' rights to the largest possible extent.
•Constitutions typically achieve these functions through the separation of powers (see Montesquieu), the incorporation of democratic principles and some form of judicial review.
•
•
•Cont
•Certain researchers interpret constitutions as a "social contract" between the individuals of a given society: In order to better pursue their common goals;
•The individuals voluntarily agree to establish an orders, thereby founding a state. This order creates obligations between the individuals and the representatives of the common power structures.
•These obligations derive their legitimacy from the agreement of the people. The legal recognition of these obligations is, in the terminology of legal scholars, the constitution.
•
•Cont
•Early scholars following this theoretical approach put emphasis on the aspect that the individuals have to submit to a strong power in order to receive protection against (external) enemies and (internal) crime (e.g. Hobbes, Locke).
•Later scholars constant worry rather the voluntary aspect : Individuals organize themselves in a certain way, because they realize that they benefit from the order created by the social contract (e.g. Rousseau, Rawls).
•It should be added, that at any rate, the social contract is purely theoretical or imaginary and not meant to reflect historical development.
•
•Cont
•Some traditional scholars of constitutional law saw constitutions mainly as a manifestation oor sign of antagonism between the individual and the State.
•For them, the distinction between the state- as the apparatus of government and the individual was primordial or primitive (e.g. Carl Schmitt ).
•Today, the complex relationship between the state, the society and the individual is spoken or expressed in a more differentiated way.
•
•Cont
•Hence, constitutions are expressed rather as a tool to organize the many-sided relationships between the state , the society as a whole and the individual:
•As citizens, individuals constitute the people of a state. Through the exercise of their civil and political rights they take part in the state apparatus.
•If they make use of their right to be elected to state offices, they may become representatives of the power they are subject to.
•Additionally, the same individuals form as parts of the civil society which represent social and economic institutions thtthat are distinguishable from the state structures.
•
•Cont
•In contemporary legal thinking, constitutionalism can hardly be understood unless by taking into account its close link to democracy and the sovereignty of the people.
•Democratic legality has become virtually the only form of legality that scholars accept as a justification for the exercise of state power.
•Thus today, a constitution only get approval if it reflects the idea of the sovereignty of the people.
•Art. 2 of the Interim National Constitution of Sudan and Art .1 faqradda 2 of the Somalia Federal Constitution illustrates this point by stating that “sovereignty is vested in the people and shall be exercised the State."
•Cont
•This provision clarifies that the legitimate state is (only) a tool that the people use in order to exercise their original power.
•It is surprising that even the Constitution of Afghanistan, otherwise heavily relying on religious legitimization, cannot overcome the contemporary requirement of democratic legitimacy and thus provides that the national sovereignty in Afghanistan belongs to all individuals who are citizens of Afghanistan (Art. 4 Afghan Constitution).
•The intellectuals converse around the idea of democratic legitimacy has also long affected the procedural aspects of constitution building.
•
•Cont
•The participation of the people in constitution building processes and the people's ownership of such processes are undisputed requirements for ensuring the legitimacy of any constitution resulting from such a process.
•However, the modern concept of constitutionalism, in which powers of the state are legally delimited and fundamental rights and freedoms guaranteed, did not evolve only in European countries.
•Islamic states also developed constitutions, even if they did not necessarily use the term "constitution". Among scholars who study the history of Islamic legal thinking it is controversial whether such fundamental principles as the separation of powers form part of Islamic law.
•
•Cont
•Historically, Islamic legal thinking was based on the Qur'an's interpretation of Islamic life as an integrated unity.
•It did not rely upon the assumption that religion and the state are separate spheres.
•From a comparative perspective or point of view , it was also the case in Europe and the Americas, both ancient and modern until the beginning of secularization that no distic-tion was made between the religious and the political spheres.
•Both religious practice and political activity were considered part of the public sphere and as such subject to the control of the ruler or ruling bodies whose authority was seen as deriving from the divine order.
•
•Cont
•The philosophical basis of Islam, which did not differentiate between the affairs of the state and the realm of the religion, was important for the formation of Islamic constitutional theory.
•Nevertheless, today most states with a Muslim majority have a constitution that integrates the Sharia into the constitutional legal order to varying degrees.
•One of the first Muslim states to promulgate a formal constitutional document was the Ottoman Empire in 1876.
•During the reign of the Ottoman Sultan, constitutionalism in the modern sense developed in the empire.
•In Iran (then Persia) the first constitution was promulgated in 1906.
•Cont
•It was the outcome of a large coalition of intellectuals, religious scholars and merchants in which scholars played a significant role.
• In 1979 this constitution was replaced by the constitution of the newly established Islamic Republic, which refers to the God given order.
•Afghanistan, a state with one of the youngest modern constitutions underwent a long constitutional history beginning in 1923 when it became a constitutional monarchy after independence from British rule.
•Likewise Nigeria, consisting of diverse regions was united under British rule and is now based on a constitution that accounts for the Muslim North, as well as the Christian South.
•
•Cont
•Recent constitution building processes are often started in order to facilitate democratic transitions, and to serve peace and (post‐conflict) state building.
•The aim of a constitution can play an important role in political transitions. It can reconcile a people and/or stabilize a country.
•The constitutions of Afghanistan, South Africa, Cambodia and Bosnia and Herzegovina can be cited as examples where establishing a constitutional order played a role in overcoming long lasting conflicts.
•Cont
•It should be emphasized, however, that any constitution building process must and should be participatory in nature.
•In other words, it should make every effort to involve as many citizens as possible.
•For ultimately, the legitimacy of a constitutional process rests on the extent to which the process was participatory, open, democratic, inclusive, transparent, aaccommodating different interests and respecting the will of the majority as well as minorities.
•In order to make adequate choices when drafting a constitution it is important to understand the modern concept of a constitution and the implications that the concept of constitutionalism has for the legal system of a country.
• An overview of the history of constitutionalism in the West as well as Islamic countries may help in furthering this understanding. •When deciding for a constitution, a population always transforms policy choices into law. •These choices usually reflect the country's distinctive history and its specific social, economic and cultural conditions. •For instance, a seafaring (marine)nation might want to address maritime issues in its national constitution; or a people that have just freed themselves from the yoke of tyranny might opt for particularly flat or horizontal hierarchies •Additionally, the constitutional choices of a country may also be influenced by its earlier constitutions, or by the political thinking of its founders. •Cont •A good example for the latter is the U.S. American Constitution (Madison, Hamilton, Adams and another good example is for the Constitutional choices of Somalia which was influenced by political thinking of the founders of SOMALIA.•In many countries, in particular on the African continent, constitutionalism has come along with decolonization;
•on one hand the people’s exercise of their right to self-determination aimed at gaining independence and discarding the colonial powers.
•
•Cont.
•On the other hand, this exercise of the people's right to self‐determination can be seen as a step towards constitutionalism.
•Contemporary western researchers who hold liberal principles see it as the primary function of constitutions t to limit the scope of governmental power and to describe the method for its exercise, thereby safeguarding the citizens' rights to the largest possible extent.
•Constitutions typically achieve these functions through the separation of powers (see Montesquieu), the incorporation of democratic principles and some form of judicial review.
•
•
•Cont
•Certain researchers interpret constitutions as a "social contract" between the individuals of a given society: In order to better pursue their common goals;
•The individuals voluntarily agree to establish an orders, thereby founding a state. This order creates obligations between the individuals and the representatives of the common power structures.
•These obligations derive their legitimacy from the agreement of the people. The legal recognition of these obligations is, in the terminology of legal scholars, the constitution.
•
•Cont
•Early scholars following this theoretical approach put emphasis on the aspect that the individuals have to submit to a strong power in order to receive protection against (external) enemies and (internal) crime (e.g. Hobbes, Locke).
•Later scholars constant worry rather the voluntary aspect : Individuals organize themselves in a certain way, because they realize that they benefit from the order created by the social contract (e.g. Rousseau, Rawls).
•It should be added, that at any rate, the social contract is purely theoretical or imaginary and not meant to reflect historical development.
•
•Cont
•Some traditional scholars of constitutional law saw constitutions mainly as a manifestation oor sign of antagonism between the individual and the State.
•For them, the distinction between the state- as the apparatus of government and the individual was primordial or primitive (e.g. Carl Schmitt ).
•Today, the complex relationship between the state, the society and the individual is spoken or expressed in a more differentiated way.
•
•Cont
•Hence, constitutions are expressed rather as a tool to organize the many-sided relationships between the state , the society as a whole and the individual:
•As citizens, individuals constitute the people of a state. Through the exercise of their civil and political rights they take part in the state apparatus.
•If they make use of their right to be elected to state offices, they may become representatives of the power they are subject to.
•Additionally, the same individuals form as parts of the civil society which represent social and economic institutions thtthat are distinguishable from the state structures.
•
•Cont
•In contemporary legal thinking, constitutionalism can hardly be understood unless by taking into account its close link to democracy and the sovereignty of the people.
•Democratic legality has become virtually the only form of legality that scholars accept as a justification for the exercise of state power.
•Thus today, a constitution only get approval if it reflects the idea of the sovereignty of the people.
•Art. 2 of the Interim National Constitution of Sudan and Art .1 faqradda 2 of the Somalia Federal Constitution illustrates this point by stating that “sovereignty is vested in the people and shall be exercised the State."
•Cont
•This provision clarifies that the legitimate state is (only) a tool that the people use in order to exercise their original power.
•It is surprising that even the Constitution of Afghanistan, otherwise heavily relying on religious legitimization, cannot overcome the contemporary requirement of democratic legitimacy and thus provides that the national sovereignty in Afghanistan belongs to all individuals who are citizens of Afghanistan (Art. 4 Afghan Constitution).
•The intellectuals converse around the idea of democratic legitimacy has also long affected the procedural aspects of constitution building.
•
•Cont
•The participation of the people in constitution building processes and the people's ownership of such processes are undisputed requirements for ensuring the legitimacy of any constitution resulting from such a process.
•However, the modern concept of constitutionalism, in which powers of the state are legally delimited and fundamental rights and freedoms guaranteed, did not evolve only in European countries.
•Islamic states also developed constitutions, even if they did not necessarily use the term "constitution". Among scholars who study the history of Islamic legal thinking it is controversial whether such fundamental principles as the separation of powers form part of Islamic law.
•
•Cont
•Historically, Islamic legal thinking was based on the Qur'an's interpretation of Islamic life as an integrated unity.
•It did not rely upon the assumption that religion and the state are separate spheres.
•From a comparative perspective or point of view , it was also the case in Europe and the Americas, both ancient and modern until the beginning of secularization that no distic-tion was made between the religious and the political spheres.
•Both religious practice and political activity were considered part of the public sphere and as such subject to the control of the ruler or ruling bodies whose authority was seen as deriving from the divine order.
•
•Cont
•The philosophical basis of Islam, which did not differentiate between the affairs of the state and the realm of the religion, was important for the formation of Islamic constitutional theory.
•Nevertheless, today most states with a Muslim majority have a constitution that integrates the Sharia into the constitutional legal order to varying degrees.
•One of the first Muslim states to promulgate a formal constitutional document was the Ottoman Empire in 1876.
•During the reign of the Ottoman Sultan, constitutionalism in the modern sense developed in the empire.
•In Iran (then Persia) the first constitution was promulgated in 1906.
•Cont
•It was the outcome of a large coalition of intellectuals, religious scholars and merchants in which scholars played a significant role.
• In 1979 this constitution was replaced by the constitution of the newly established Islamic Republic, which refers to the God given order.
•Afghanistan, a state with one of the youngest modern constitutions underwent a long constitutional history beginning in 1923 when it became a constitutional monarchy after independence from British rule.
•Likewise Nigeria, consisting of diverse regions was united under British rule and is now based on a constitution that accounts for the Muslim North, as well as the Christian South.
•
•Cont
•Recent constitution building processes are often started in order to facilitate democratic transitions, and to serve peace and (post‐conflict) state building.
•The aim of a constitution can play an important role in political transitions. It can reconcile a people and/or stabilize a country.
•The constitutions of Afghanistan, South Africa, Cambodia and Bosnia and Herzegovina can be cited as examples where establishing a constitutional order played a role in overcoming long lasting conflicts.
•Cont
•It should be emphasized, however, that any constitution building process must and should be participatory in nature.
•In other words, it should make every effort to involve as many citizens as possible.
•For ultimately, the legitimacy of a constitutional process rests on the extent to which the process was participatory, open, democratic, inclusive, transparent, aaccommodating different interests and respecting the will of the majority as well as minorities.
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