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เอกสารหมายเลข 4
เอกสารวิชาการ
(4) เทคนิคการเขียน (ออกแบบ-design) รัฐธรรมนูญในยุคปัจจุบัน
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เทคนิคการเขียนรัฐธรรมนูญ- rationalization ในยุคปัจจุบัน เพื่อแก้ระบบเผด็จการที่เกิดจากการผูกขาดอำนาจรัฐ (ฝ่ายบริหาร และสภานิติบัญญัติ) ในระบบรัฐสภา parliamentary system เริ่มต้นตั้งแต่หลังสงครามโลกครั้งที่ 2 (ค.ศ. 1946 พ.ศ. 2484) คือประมาณ 60 ปีมาแล้ว
การ rationalization มีจุดมุ่งหมายเพื่อสร้างระบบสถาบันการเมือง ที่มีประสิทธิภาพและมีเสถียรภาพ และเพื่อให้มีมาตรการกำกับให้การ ใช้อำนาจรัฐ ของนักการเมืองที่มาจากการเลือกตั้ง เป็นไปเพื่อประโยชน์ส่วนรวม
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ส่วนที่ 4.1 ระบบกึ่งรัฐสภา (semi-parliamentary system) : รธน. ของเยอรมนี (ค.ศ. 1948-พ.ศ. 2491)
THE BASIC LAW FOR THE FEDERAL REPUBLIC OF GERMANY
III. THE BUNDESTAG
Article 38 (Elections)
(1) Members of the German Bundestag are elected in general, direct, free, equal, and secret elections, They are representatives of the entire people, not bound by orders or instructions, and subject only to their conscience.
(2) Entitled to vote is any person who has attained the age of eighteen; anyone who has attained the age of majority may be elected.
(3) Details are regulated by a federal law.
Article 39 (Convening and the legislative term)
(1) Save the following provisions, the Bundestag is elected for four years. Its term ends when a new Bundestag convenes. New elections are held no sooner than forty-six months and no later than forty-eight months after the legislative term begins. If the Bundestag is dissolved, new elections are held within sixty days.
(2) The Bundestag convenes at the latest on the thirtieth day after the elections.
(3) The Bundestag determines the adjournment and the resumption of its sessions. The President of the Bundestag may convene it at an earlier date. He is obligated to do so if one third of the Members, the Federal President or the Federal Chancellor so demand it.
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IV. THE BUNDESRAT
Article 50 (Functions)
The Länder participates through the Bundesrat in the legislation and administration of the Federation and in matters concerning the European Union.
Article 51 (Composition)
(1) The Bundesrat consists of members of the Land governments, which appoint and recall them. Other members of those governments may serve as alternates.
(2) Each Land has at least three votes; Länder with more than two million inhabitants have four, Länder with more than seven million inhabitants six votes.
(3) Each Land may appoint as many members as it has votes. The votes of each Land may be cast only as a unit and only by Members present or their alternates.
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V. THE FEDERAL PRESIDENT
Article 54 (Election by the Federal Convention) [Bundesversammlung]
(1) The Federal President is elected by the Federal Convention without debate. Any German who has the right to vote in Bundestag elections and has attained the age of forty may be elected.
(2) The term of office of the Federal President is five years. Reelection for a consecutive term is permitted only once.
(3) The Federal Convention consists of the Members of the Bundestag and an equal number of members elected by the parliaments of the Länder on the basis of proportional representation.
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Article 58 (Countersignature)
Orders and directions of the Federal President require for their validity the countersignature of the Federal Chancellor or of the competent Federal Minister. This Provision does not apply to the appointment or dismissal of the Federal Chancellor, the dissolution of the Bundestag under Article 63, or a request made under paragraph (3) of Article 69.
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VI. THE REDERAL GOVERNMENT
Article 62 (Composition)
The Federal Government consists of the Federal Chancellor and the Federal Ministers.
Article 63 (Election and appointment of the Federal Chancellor)
(1) The Federal Chancellor is elected by the Bundestag without debate on the proposal of the Federal President.
(2) The person who receives the votes of a majority of the Members of the Bundestag is elected. The person elected is appointed by the Federal President
(3) If the person proposed by the Federal President is not elected, the Bundestag may elect a Federal Chancellor within fourteen days after the ballot by the votes of more than one half of its Members.
(4) If no Federal Chancellor is elected within this period, a new election shall take place without delay, in which the person who receives the largest number of votes shall be elected. If the person elected receives the votes of a majority of the Members of the Bundestag, the Federal President must appoint him within seven days after the election. If the person elected does not receive such a majority, then within seven days the Federal President shall either appoint him or dissolve the Bundestag.
Article 64 (Appointment and dismissal of Federal Ministers)
(1) Federal Ministers are appointed and dismissed by the Federal President upon the proposal of the Federal Chancellor.
(2) On taking office the Federal Chancellor and the Federal Ministers take the oath provided for in Article 56 before the Bundestag.
Article 65 (Distribution of authority within the Federal Government)
The Federal Chancellor determines and is responsible for the general guidelines of policy. Within these limits each Federal Minister conducts the affairs of his department independently and on his own responsibility. The Federal Government resolves differences of opinion between Federal Ministers. The Federal Chancellor conducts the proceedings of the Federal Government in accordance with the Rules of Procedure adopted by the Government and approved by the Federal President.
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Article 67 (Constructive vote of no confidence)
(1) The Bundestag may express its lack of confidence in the Federal Chancellor only by electing a successor by the vote of a majority of its Members and requesting the Federal President to dismiss the Federal Chancellor. The Federal President must comply with the request and appoint the person elected.
(2) Between the motion and the election, forty-eight hours must elapse.
Article 68 (Vote of confidence; dissolution of the Bundestag)
(1) If a motion of the Federal Chancellor for a vote of confidence is not supported by the majority of the Members of the Bundestag, the Federal President, upon the proposal of the Federal Chancellor, may dissolve the Bundestag within twenty-one days. The right of dissolution lapses as soon as the Bundestag elects another Federal Chancellor by the vote of a majority of its Members.
(2) Forty-eight hours must elapse between the motion and the vote.
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VII. LEGISLATIVE POWERS OF THE FEDERATION
Article 70 (Division of legislative powers between the Federation and the Länder)
(1) The Länder have the right to legislate insofar as this Basic Law does not confer legislative power on the Federation.
(2) The division of competence between the Federation and the Länder is governed by the provisions of this Basic Law respecting exclusive and concurrent legislative powers.
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ส่วนที่ 4.2 ระบบกึ่งประธานาธิบดี (semi - presidential system)
(ก) ตัวอย่าง รธน.ต่างประเทศ (แสดงเฉพาะบทมาตราหลัก : ได้แก่ เกาหลีใต้ / ฝรั่งเศส / รัสเซีย ฯลฯ)
(1) รธน.เกาหลีใต้ (ค.ศ. 1987)
Article 66
(1) The President shall be the Head of State and represent the State vis-a-vis foreign states.
(2) The President shall have the responsibility and duty to safeguard the independence, territorial integrity and continuity of the State and the Constitution.
(3) The President shall have the duty to pursue sincerely the peaceful unification of the homeland.
(4) Executive power shall be bested in the Executive Branch headed by the President.
Article 86
(1) The Prime Minister shall be appointed by the President with the consent of the National Assembly.
(2) The Prime Minister shall assist the President and shall direct the Executive Ministries under order of the President.
(3) No member of the military shall be appointed Prime Minister unless he is retired from active duty.
Article 87
(1) The members of the State Council shall be appointed by the President on the recommendation of the Prime Minister.
(2) The members of the State Council shall assist the President in the conduct of State affairs and, as constituents of the State council, shall deliberate on State affairs.
(3) The Prime Minister may recommend to the President the removal of a member of the State Council from office.
(4) No member of the military shall be appointed a member of the State Council unless he is retired from active duty.
Article 88
(1) The State Council shall deliberate on important policies that fall within the power of the Executive.
(2) The State Council shall be composed of the President, the Prime Minister, and other members whose number shall be no more than thirty and no less than fifteen.
(3) The President shall be the chairman of the State Council, and the Prime Minister shall be the Vice-Chairman.
(2) รธน.ฝรั่งเศส (ค.ศ. 1858)
Article 6
The President of the Republic is elected for five years by direct universal suffrage.
The Manner of implementation of this article is determined by an organic law.
Article 8
The President of the Republic appoints the Prime Minister. He terminates the functions of the Prime Minister when the latter tenders the resignation of the Government.
On the proposal of the Prime Minister, he appoints the other members of the Government and terminates their functions.
Article 9
The President of the Republic presides over the Council of Ministers.
Article 21
The Prime Minister directs the operation of the Government. He is responsible for National Defense. He assures the execution of the laws. Subject to Article 13, he exercises the regulatory power and makes appointments to civil and military posts.
He may delegate certain of his powers to ministers.
He substitutes. If the case arises, the President of the Republic as chairman of the councils and committees referred to in Article 15.
He can, in exceptional cases, take his place as chairman of a meeting of the Council of Ministers by virtue of an express delegation of powers and for a specific order of the day.
Article 22
The Acts of the Prime Minister are countersigned, when the cases require, by the ministers responsible of their execution.
Article 24
Parliament consists of the National Assembly and the Senate
The deputies of the National Assembly are elected by direct suffrage.
The Senate is elected by indirect suffrage. It assures the representation of the territorial units of the Republic. French nationals living outside France are represented in the Senate.
Article 27
Any binding instruction is void.
The right to vote of members of Parliament is personal.
An organic law can authorize, in exceptional cases, voting by proxy (délégation de vote). In such a case, no member can receive more than one vote.
(3) รธน.รัสเซีย (ค.ศ.1993)
Article 80
1. The President of the Russian Federation is the Head of State.
Article 83
The President of the Russian Federation :
(a) appoints the Chairman of the Government of the Russian Federation subject to consent of the State Duma;
(b) has the right to presidé over meetings of the Government of Russian Federation;
(c) decides on the resignation of the government of the Russian Federation;
Article 110
1. The Executive power in the Russian Federation is exercised by the Government of the Russian Federation.
2. The Government of the Russian Federation consists of the Chairman of the Government of the Russian Federation, Deputy Chairman of the Government and federal ministers.
Article 111
1. The Chairman of the Government of the Russian Federation is appointed by the President of the Russian Federation with consent of the State Duma.
2. The proposal on the candidacy of the Chairman of the Government of the Russian Federation shall be made no later than two weeks after the inauguration of the newly- elected President of the Russian Federation or after the resignation of the Government of the Russian Federation or within one week after the rejection of the candidate by the State Duma.
3. The State Duma shall consider the candidacy of the Chairman of the Government of the Russian Federation submitted by the President of the Russian Federation within one week after the nomination.
4. After the State Duma three times rejects candidates for Chairman of the Government of the Russian Federation nominated by the President of the Russian Federation, the President of the Russian Federation shall appoint Chairman of the Government of the Russian Federation, dissolve the State Duma and call a new election.
Article 113
The Chairman of the Government of the Russian Federation in accordance with the Constitution of the Russian Federation, federal laws and decrees of the President of the Russian Federation determines the guidelines of the work of the Government of the Russian Federation and organizes its work.
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(ข) ตัวอย่าง รธน.เกาหลีใต้ (ค.ศ. 1987) (แสดง บทมาตราที่เกี่ยวข้อง บางมาตรา)
Constitution of the Republic of Korea
CHAPTER III THE NATIONAL ASSEMBLY
Article 40 The legislative power shall be vested in the National Assembly.
Article 42 The term of office of members of the National Assembly shall be four years.
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CHAPTER IV THE EXECUTIVE
PART 1. THE PRESIDENT
Article 66
(1) The President shall be the Head of State and represent the State vis-a-vis foreign states.
(2) The President shall have the responsibility and duty to safeguard the independence, territorial integrity and continuity of the State and the Continuity of State and the Constitution.
(3) The President shall have the duty to pursue sincerely the peaceful unification of the homeland.
(4) Executive power shall be vested in the Executive Branch headed by the President.
Article 67
(1) The President shall be elected by universal, equal, direct and secret ballot by the people.
(2) In case two or more persons receive the same largest number of votes in the elections as referred to in Paragraph (1), the person who receives the largest number of votes in an open session of the National Assembly attended by a majority of the total members of the National Assembly shall be elected.
(3) If and when there is only one presidential candidate, he shall not be elected President unless he receives at least one third of the total eligible votes.
(4) Citizens who are eligible for election to the National Assembly, and who have reached the age of forty years or more on the date of the presidential election, shall be eligible to be elected to the presidency.
(5) Matters pertaining to presidential elections shall be determined by law.
Article 70
The term of office of the President shall be five years, and the President shall not be reelected.
Article 72
The President may submit important policies relating to diplomacy, national defense, unification and other matters relating to the national destiny to a national referendum if he deems it necessary.
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PART 2. THE EXCUTIVE BRANCH
Section 1. The Prime Minister and Members of The State Council
Article 86
(1) The Prime Minister shall be appointed by the President with the consent of the National Assembly.
(2) The Prime Minister shall assist the President and shall direct the Executive Ministries under order of the President.
(3) No member of the military shall be appointed Prime Minister unless he is retired from active duty.
Article 87
(1) The members of the State Council shall be appointed by the President on the recommendation of the Prime Minister.
(2) The members of the State Council shall assist the President in the conduct of State affairs and, as constituents of the State Council, shall deliberate on State affairs.
(3) The Prime Minister may recommend to the President the removal of a member of the State Council from office.
(4) No member of the military shall be appointed a member of the State Council unless he is retired from active duty.
Section 2. The State Council
Article 88
(1) The State Council shall deliberate on important policies that fall within the power of the Executive.
(2) The State Council shall be composed of the President, the Prime Minister, and other members whose number shall be no more than thirty and no less than fifteen.
(3) The President shall be the chairman of the State Council, and the Prime Minister shall be the Vice-Chairman.
Article 89
The following matters shall be referred to the State Council for deliberation:
1. Basic plans for state affairs, and general policies of the Executive;
2. Declaration of war, conclusion of peace and other important matters pertaining to foreign policy;
3. Draft amendments to the Constitution, proposals for national referendums, proposed treaties, legislative bill, and proposed presidential decrees;
4. Budgets, closing of accounts, basic plans for disposal of state properties, contracts incurring financial obligation on the State, and other important financial matters;
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Section 3. The executive Ministries
Article 94
Heads of Executive Ministries shall be appointed by the President from among members of the State Council on the recommendation of the Prime Minister.
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