Introduction
We are in a constitutional transition period, the one that means be to prepare a new constitution for a new reality of the State, of the power and of the rights. In this essay I make a short analysis and interpretation of the constitutional norms, separation of powers and warranties of the rights and the citizens' fundamental freedoms, but observing the actions and decisions that agitate the politicians (President, the Government and the political parties) and the civil society in the actual moment. After this I prospect in my critic the ways for an ideal and possible constitution, his classification and important elements for Angola.
In the first reflection on a theme of extreme importance as the one of the constitution my thought is going around the origins of the actual constitution and prospecting the new constitution that is his historic changes and evolution. I also seek along this text to enter in bottom in the lines masterpiece that project the politicians' movements in relation to conquest, maintenance and exercise of their political power decisions, actions and aspirations in the materialization of the new constitution.
Of course won't spare my critic and self-criticism as academic, to share my vision and perception about the subject constitution in democracy and to show my thought.
Body
The Angolan constitution has a recent history among the universe of the constitutions of the world. Angola had in beginning a constitution resulting from the period of the colonial government's transition for the national government that it involved in the height the three movements of national liberation (popular MPLA-movement of liberation of Angola, national UNITA-union for total independence of Angola and national FNLA-front of liberation of Angola), this starting from the independence in 1975.
This constitution was in before-projects, it was not discussed, no approved nor implemented, because there was no consensus in the moment of the transition of the power, nor consensus in the protected ideologies for the nationalist movements in the form of to assume and to exercise the power. And who assumed the power chose for the social-communist ideology, without separation of powers, nor the low consecration of the right and their warranties. This tension ended for favoring the settler's closest movement, taking the power and to exclude other movements in the political scene until the height of the proclamation of the independence. What took the Country to enter in a longer civil war, that total undid and partially the life of the Country and of the citizens in terms matters and moral.
Angola lived for 16 years under a regime of unique party with the centralized power and military, in that the party in the power directs the State and the Government, or without a clear difference among the paper of the State, of the Government and of Party, with a centralized economy.
This era only finished in 1991 when Angola met a transformation ideological-politics multiparty after the peace agreements, with a constitution that institutionalized Angola a State of democratic and law with an economy open of market. But this constitution their debates were limited just to the political parties and the more explained. The following year the first elections were achieved, but no concluded and very objected, because the results dictated second round not accomplished, the president more voted for informed of the situation assumed the power without taking ownership, they were many violations registered that violated the beginnings constitutionally consecrated.
Angola when evoking the Republic as Democratic State of law, presupposes to assume the three fundamental commitments that the constitution institutionalizes. The democratic State is built in the base of the) a State where governs the will of the people; b) that defends the individual freedoms; c) in the equality of rights.
The democracy idea has his base the expression of the will of most, that it checks him begins of the equality and of the freedom. But democracy, is not only the option in way of Government, it should also be understood as political system open to living together in the thought difference, as form of the citizens active life participates in the political subjects and a process that it involves transformations in the perception and vision of the political subjects of the State, allowing a permanent dialogue between governess and governed.
The Country entered again in war, the habits of the old regime continued, the President person concentrates almost all the powers (artº 66th of our constitution) in spite of verifying a certain opening, they persist until today persecutions and exclusions of all those that show with ideas and different thoughts against the party in the power.
In 2002 the Country reaches the peace and everything turn the normality, with turned attentions the reconstruction of the Country, from the infrastructures and the human spirit. To think in the new constitution, in the possible second elections and several other challenges thinks to conform the State and the Country the new reality. In 2006 the project of the new constitution was abandoned, and it is advanced with the legislative elections in 9/2008 and presidential marked to 9/2009, it defined like this the law, but up to now the presidential elections don't happen, being justified the making of the new constitution for the accomplishment of the presidential elections. This contradicts the principles of the constitution (artº 57th) and of the effective electoral law (law nº6/05 of August 10 in the artºs 6th and 26th).
The most recent act of the unconstitutionality was it of the speech done by the President, in pronouncing in public the when of the President's visit of Soult Africa Jacob Zuma to Angola (19/8/2009) in declaring that the next elections presidencies will be resulted of a direct vote, equal and secret in that the president of the party is the list head in the deputies' of his party election. This means that the citizens choose their deputies representatives and later the deputies choose the President.
This position of the head of state originated warm debates and critics on that speech in social middle, of the political parties and of the society in general. Because, on this matter our constitution attribute absolute reservation the Assembly of the Republic (artº 89 paragraph c)) and not to the President. In first place it is that the culture and the political behavior of the deputies" affections to the party in the power is the most, and everything will do all things, to defend their interests and to perpetuate the President in the power.
Passing for the actual theme of the before-projects of the new constitution at first five of the political parties (MPLA, UNITA, FNLA, PRS-Party of social Renewal and ND-New Democracy) with parliamentary seat and later synthesized in three (Before-projects A, B and C), that were presented to the public for their discussed and later to collect the contributions.
Here my inquietude as academic begins when I perceived that of the three before-projects, the before-project C was not discussed in the constituent commission, that has the competence and the power of to discuss and to find consensus of the political points proposed in the texts presented by the political parties with parliamentary seat; it means other disrespect for the people and for those that represent the will of the people. But what worries politically is that, it is this before-project the more prioritized in the message of all the ones that belong to the party in the power.
Another concern appears when I observed that the form as it is made the presentation of the before-projects; the priority of the central message is to illustrate the election form and powers of the sovereignty organs. This is not good in democracy, and mainly for a people that still resented the ideologies of a party that it almost exercises the power the 30 years, with domain and control of everything, where the alternation of the power means to collapse an empire.
The subjects regarding constitution involve a lifetime of the State and of the citizens, this implicates a participation cover and inclusive of all of the members of the political community of the State. One of the fundamental principles of the modern democracy consists of the separation of powers and in the warranty of the rights and the citizens' fundamental freedoms, to avoid the concentration of the absolute power in a single sovereign's hands. The constitution is the fundamental law of the State, that it prescribes the norms that govern the organization and operation of the State and it consecrates the rights and the citizens' fundamental duties.
When intending a new constitution of rules, in that the democracy is the process that allows the changes and aspirations that the people want, we should question, besides the important paper of normative interpretation and process of constitutional mutation that we have, which the ideal structure of that new constitution?
And through debate processes and discussion, with the necessary insert inside of the situation historical-politics and social-economic, to make possible an interpretative evolution, that it allows the breaking with readings of the politicians' messages of clients in relation to the texts of before-projects, and, we could indicate, also, the ideal model of the democratic constitution that it makes possible the consecration of a new constitutional paradigm, that at the same time show the maturity and transition that don't return him to the previous and less democratic models.
In this perspective, if we did the reflection around the theme will conclude that the center of the subject is the primordial objective of any constitution, that if based in the separation of powers according to Montesquieu in his work Les esprit des lois (1748) in executive power, legislative and judicial and the consecration of the rights and warranties of the citizens' freedoms. Therefore, it is necessary to clarify the separation of powers, not to omit the essential for the citizens on the warranties of the rights and individual freedoms; as the political rights, economics and social, as refers the artº 16th of the La déclaration des droits de l'homme et du citoyen (1789), it set down that '' every society, in that it is not insured the warranty of the rights and certain the separation of powers doesn't have constitution ''. Soon it is a society without development, because when it is banned the exercise of the rights and freedoms, the way for the development is stopped.
It is starting from this definition that the political and juridical science today identifies the constitutionalism with the separation of powers, with a principle that, the powers are dynamics, they should be conceived as harmonized and interdependent, from her formulates of checks and balances of powers of the several sovereignty organs. It means that each organ exercises a single function independently.
Therefore the citizen cannot just be considered as mere addressee of the power, but, active member that prosper, wish and they believe to find political solutions, economics, social and cultural that only a constitution, that represents the democratic political will of all, can offer that balance. Because here I understand that the debate concerning the constitution has his stamp mainly political, means the aspiration and political vision of the people.
It is just worth to notice that for States with a novice culture in the democracy, where they govern political parties that inherited the power for way of the revolution and colonial liberation, the perception of the change or alternation in the power has meant another, '' end ''. The formula of the separation of powers of Montesquieu in the days today it appeared to benefit the political parties, as like is our case that with the political title of absolute majority, but less active in the decision, squeeze with their interests against majority passive in the political decisions. Because the same political party that expires in the legislative elections for most absolute, form the Government, and his President of the party most of the time is chosen as President of Republic. Therefore the ideal of the precursors of the separation of powers (Plato, Aristotle, Montesquieu, Rousseau, Kant, Lock, and Tocqueville) ends for not finding constitutional delimitation in his exercise, but consecrated constitutionally by a complexes of norms.
According to the reading that we can do of Kant, for him is not enough the norms to be in the constitution, but that there are rational will and dignity on the part of the sovereignty organs that exercise the power.
Angola needs in his constitution of norms of easy interpretation, or only to refer, a constitution that would be classified as extensive and analytical, with norms that dispose on the most several matters in the body of the constitution; as model or constitution-warranty, that it structures and it delimits the power of the State, it establishes the separation of powers and respect to the warranties of the individual rights of his people and for finish as dogmatic-eclectic, based in the more several ideals, what results in a grouping of force existent politics in a certain historical moment. With this classification we synthesized the elements of a constitution in: organic elements – norms about the structure of the State and his power: limitative elements – it limits the actuation of the State on the individual rights, with base in a group of rights and fundamental warranties and for finish, social-ideologies elements – it prescribes the social actuation of the State.
With these central points that I have just focused, I want to express that for a people with political and juridical culture that it lacks information and impartial and solid formation on the constitution matters and democracy. It is necessary that the constitution contemplates norms of easy interpretation and specify the principles of the relationship between the power and rights and fundamental freedoms.
Conclusion
In first place, the ideas the turn of this essay has as purpose to show a path of the historical-constitutional formation of Angola of synthetic form until a current moment. For understands this process all was necessary to do a framing of all the political forces involved in the formation of the State from the independence way to our days, and to do a reading of their ideologies with political weight in the life of the State and of the citizens.
I also tried to put the constitution notions in the era of the modern democracy, that it congregates the main objective of a constitution, the separation of powers and the warranty of rights and the citizens' freedom, that it favors the debate and including and inclusive discussion of all the citizens.
For I finish, I made a reflection on the perspectives of my critical vision about the ideal constitution, that it gathers elements to guarantee the separation of powers and rights and individual freedoms.
Reference
1 – Separation of powers-does it still work? Robert A Goldwin, Art Kaufman 2004. American Enterprise Institute.
2 – Constitution and political theory by Jan-Eric Lane 1996. Manchester University Press.
3 – Constitutional law and constitutional theory, Gomes Canotilhos 2002. Almedina.
4 – Handbook of Constitutional law, Jorge Miranda 2003 coimbra editor.
5 – Constitutional law by Kildare Gonçalves de Carvalho 2008. Editor Del REY LDA.
6 – Constitutional law at evolution: perspectives by Paulo Gomes Pimentel Junior, Alessandro Pizzouosso 2007. Curitiba Jurua Editor.
http://www.comissaoconstitucional.ao
http://www.cne.ao
http://www.books.google.com.br/books
http://www.wikipedia.com
Autor:
Augusto Domingos Chinjamba
Student ID: UM010099HV51H3
Assignment title: Constitutional Interpretation (Document SUPLEMENT)
Date: 11/11/2009