Novembre 24

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Citizens’ Convention Progress Report 12

Da Leo Klinkers

Novembre 24, 2021


Special constitutional issues

Dear members of FAEF’s Citizens’ Convention,

If regions or countries have to cooperate with each other but have to deal with common interests that they cannot take care of on their own, the establishment of a federation is the best way to organise it. They entrust a federal body with the care of a limitative list of common interests, make their own powers on these subjects dormant and remain sovereign for the rest. 

On 4 December, the discussion of Article II ends and that of Article III begins until 25 December. FAEF Board does not play a role in the discussion within the Discussion Forum. However, the Board can draw the attention of the members of the Citizens’ Convention to elements in the constitution that require special attention. Such as the following. 

1. Limitative list of Common European Interests, Article III, Section 2

The question is, of course: which subjects do they entrust to the federal authority? And what is the name of such a subject? Here, the way of choosing the right words plays a major role. There is always a tendency to formulate a common interest in terms of policy-making. However, one must separate the name of the specific interest from the policy to be linked to it. They are two different things. One is an interest, the other is an activity to take care of that interest.

At present, Article III, Section 2, Clauses (a)-(o), contains the envisaged exhaustive list of common interests. But the text formulates it as a policy-making. We would like to improve that by having each Clause start with the name of the common interest, followed by the policy indication. For example Clause (a) start with: ‘Income of the Federation’. Followed by “to impose and collect taxes …..”.

In this way, citizens get a better idea of the limitative list of European interests that require a federal approach. Moreover, this may lead to a better exhaustive list of those common interests, with a better description of the policy that may be attached to them.

One of the weakest elements of US politics is the lack of hard anti-corruption rules in the constitution. No matter how strong the US constitutional and institutional edifice is, it is increasingly damaged in the context of elections by the people who live in that house. The two-party system floats on the input of huge sums of money. That provokes the worst drives of people who want to bend the constitutional and institutional system to their will at all costs. 

We would like to ask members of the Citizens’ Convention to improve this Section 2, Clauses (a)-(o), by filling in a concrete common interest per item, improving the text of the policy to be linked to it and shortening or completing the list itself. 

2. Anti-corruption rules, Article III, Section 5

A federal Europe must learn from this. Article III, Section 5, Clauses 3-9 therefore contains tough anti-corruption rules. However, it lacks a rule like the US Hatch Act (named after Senator Carl Hatch) of 1939. The application of this law is currently in play in the aftermath of the storming of the Capitol on 6 January 2021. That federal law prohibits civil service employees of the executive branch – except the president and vice president – from being politically active. Because during the last election campaign, civil servants used their positions to take political action in favour of Trump’s election, lawsuits are currently being filed against them.

FAEF Board asks the members of the CC to consider a concrete text of an additional Clause in Section 5 of Article III that defines that prohibition, with reference to a law that elaborates on that prohibition.

3. State of the Union, Article V, Section 2, Clause 1

Our Federal Constitution differs fundamentally from the American original on a number of points. For instance, it contains a Preamble and an Explanatory Memorandum, provisions of direct democracy, a dynamic sizing of the House of Citizens, another composition of the House of the States, a totally different electoral system, far-reaching anti-corruption provisions, an incentive to recalibrate transnational political parties, and more. 

Another innovation can be found in Article V, Section 2, Clause 1. This article empowers the President to pronounce the State of the Federation once a year in a joint meeting of the two Houses of the European Congress. In the context of the ever-present need to perfect the system of checks and balances to protect the trias politica, the Board considers it appropriate that two other functionaries should also make such a declaration. Statements aimed at reminding each other of the joint task of governing the federation well. A quality of governing that Confucius once formulated with the following words: 

“When the sabers are rusted and the shovels glisten, when the steps of the temples are worn out by the feet of the faithful and grass grows in the courtyard of the courts, when the prisons are empty and the granaries are full, when the doctors walk and the bakers drive, then the empire is well governed.”

FAEF Board proposes: 

  • that during the first two terms (ten years) of the European Congress, a Declaration be pronounced twice each year, once in November and once in May,
  • that the Chairperson of the European Congress, the Chairperson of the European Court of Justice and also the President of the federation make such a State of the Institution (their institution), the joint result of which would reflect the overall State of the Federation,
  • that their Declaration in November is to focus on what objectives are intended to be achieved in the coming years to improve the social and economic wellness of European society as a whole and the sense of togetherness and solidarity among the members states of the Union; and in December, to look back at the extent to which this has been achieved in the past year,
  • that after ten years, the Chairperson of the European Congress will ask the Chairperson of a Council of Chairpersons of the Parliaments of the Member States of the Federation for advice on whether the ten-year term can lapse automatically or should be maintained for a second ten-year period. This is a form of so-called ‘horizon-legislation’.

Such an addition to the constitution strengthens the system of checks and balances that the trias politica is meant to protect. A State of the Union by the President alone is an unbalanced element within the trias politica. Twice a year such a tripartite Declaration is necessary to face wrong or unwanted developments in the first ten years of the federation as soon as possible and to repair them with a view to forging a European cultural identity.

FAEF Board asks the members of the Citizens’ Convention to assess whether this is a good proposal. If so, which members of the Group 55+ will come up with a good text for it? And where should it be placed? Would an additional Section 7 of Article II be a good place? Then Article V, Section 2, Clause 1 can be deleted. 

On behalf of the Board,
Leo Klinkers
Presidente

L'autore

Leo Klinkers, PhD, is consultant in public administration, with a background in constitutional law. He worked as consultant for Governments and NGO's in a variety of countries. He is co-author of the European Federalist Papers and author of Sovereignty, Security and Solidarity.

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