How
effective is the constitution at ensuring the rule of law and
democracy in (West) Germany and Mexico?

Constitutionalism,
rule of law and democracy are terms often linked to each other. The
rule of law, contrasting with rex lex
and rule by law,
emphasises the highness of law --- "the law is King"(Paine,
2004). Rachel Kleinfeld Belton identified 5 aspects the rule of law
encompasses:

1.
a government bound by and ruled by law;

2.
individual's equality before the law;

3.
the establishment of law and order;

4.
the efficient and predictable application of justice, and

5.
the protection of human rights. (Kleinfeld, 2005)

These
aspects coincide with a democracy's characteristics. The
distinguishing feature is not explicitly included above, but still
manifests through its process: free and fair public elections have to
be held to select important public offices. The constitution is the
legislature that founds the fundamental shape of a political entity,
as it puts limits on the government's power, sketches the basic range
of rights of individuals and precludes those rights to be offended by
any means. Because of that, implementing the constitution effectively
leads to the rule of law. Hence, the content of the constitution and
the level of judiciary system's independence could very much
determine if a political regime qualifies for a democratic regime
ruled of law. This essay will analyse how the constitutions of
Germany, an example of a consolidated democracy, and Mexico, an
illustration of a transitional democracy, exert effects on the
preservation of rule of law in each country to emphasise the
importance of a constitution.

Germany

1.
Consitution's historical background

Germany
had suffered grievously in the first half of 20th century from the
two world wars it sparked. As a result of the WWII, the country was
split into halves: the Federal Republic, commonly called the West
Germany, and the Democratic Republic, the East Germany. The unified
Germany's constitution, the Basic Law (Grundgesetz), was originally
created and then inaugurated by the Federal Republic on May 23rd,
1949 and for this reason it was not named as a
"constitution"(verfassung), as the Allied expected the
unification to happen soon when proper to use such term. (Allen,
2011:124)

2. How
did it ensure rule of law/democracy?

"Human
dignity shall be inviolable. To respect and protect it shall be the
duty of all state authority."

Basic
Law of the Federal Republic of Germany, Article 1

"(1)
The Federal Republic of Germany is a democratic and social Federal
state.
(2) All state authority emanates from the people. It is
exercised by the people by means of elections and voting and by
separate legislative, executive and judicial organs.
(3)
Legislation is subject to the constitutional order; the executive and
the judiciary are bound by the law.
(4) All Germans shall have the
right to resist any person seeking to abolish this constitutional
order, should no other remedy be possible. "

Basic
Law of the Federal Republic of Germany, Article 20 (Conradt,
1985:256-259)

According
to the 79th article of the Basic Law, the constitutional court has
invariably banned any amendments on the above quotations which
directly denotes the accent on human rights protection, judicial
justice, equality in front of law. (Conradt,1985:236)

The
Basic Law sought to correct the mistakes that the Second Reich,
Weimar Republic and the Third Reich had to cause the tragic first
half of 20th century by putting much more limits on the government.
Those mistakes, which all resulted in rex lex,
include allowance of emergency powers which gave rise to leaders
arbitrarily misuse power to dodge the normal legislative process and
malfunction democracy, and the fragmentation of the political parties
which led to political instabilities. The Basic Law disallowed the
president to wield emergency powers in any occasion. For the latter
problem the Basic Law introduced a 5 percent rule to deal with,
meaning that smaller parties have little chances to join the
Bundestag and hence explicating the policy-making process. It has not
restricted diversity though; smaller parties such as the Green Party
had some successes in recent years' elections. Further on the way to
pursuit political stability, the Bundestag can no more arbitrarily
bring down a chancellor by vote of no confidence; the Basic Law
regulates that a no-confidence vote must be "constructive"(Allen,
2011:125), which means the Bundestag has to simultaneously vote in
another, preventing the right- and left-wing parties to remove a
chancellor while they could not reach agreement on a new one,
creating power vacuum and hereafter disorder.

A
functioning constitution would require a judiciary system to work
independently, sticking onto the laws; otherwise it becomes a
fictional pile of literature. In fact, the judiciary is very healthy
and no concentration of power is allowed in here; it is divided into
three prongs, the Federal High Court, the Administrative Court and
the Special Constitutional Court which is specifically for matters
about the Basic Law(Allen, 2011:131). This already shows the
determination on insisting constitutionalism, and avoiding Nazis'
previous abuses to ever happen again.

Mexico

1.
Historical Background of the Constitution

The
current constitution is an amended edition of the revolutionary
Constitution of 1917. By that time, the aftermath of the 1910
revolution had not disintegrated, and various revolutionary factions
were fighting against each other. The constitution set the
presidential framework, and guaranteed a variety of human rights,
with the abolition of slavery being the first and foremost, due to
cultural reasons.

2.
How did it ensure rule of law/democracy?

A
presidential system means that there is no chancellor; not like
Germany, where the president has rather limited access to power while
more is in the chancellor's hands, the president is both a statesman
and a politician. The constitution grants the president a series of
power that is assigned to the Bundestag and the Bundesrat in Germany,
which consist of initiating legislation, leading in foreign policy,
making policy by decree or through administrative regulations and
procedures, and appointing a wide range of public officials. However,
provided that the government has legitimacy, it is not these power
makes the regime violate the spirit of rule of law, but the
supra-constitutional power that is not included in the constitution
as these grey areas are unspoken and could be considered "arbitrary".
The Chamber of Deputies and the Senate are meant to be limits put on
the president, yet in practice they had not been working like so.
Mexican Constitution was amended several times since 1917, and they
were all initiated by the president at the time, without readings by
the Congress and states' parliaments where in Article 135 the
constitution had clearly pointed out.

The
reason why the presidents had such rex lex
power is that the PRI, Institutional Revolutionary Party, which is a
disciplined party inside out, had dominated the domestic politics.
The PRI won every single presidential election until 2000 and all
state-level parliamentary elections until 1989 the PAN broke the
ice(Elizondo, 2003:29). This was because of multiple reasons: first
the PRI regime had tremendous legitimacy as their leading figure
Lazaro Cardenas came to power and took immediate and strong actions
to boost the devastated economy in the early 30s and the standard of
living rocketed. This led to great appreciation of the public and
many social forces who cooperated the domination of PRI. However we
must notice that these achievements had great detriment, for instance
the 1968 Tlatelolco massacre which by any means was a serious offense
on civil rights drawn by the constitution. These costs finally
brought PRI into a new role and they have been actively giving up
their possessions of authoritarian power since Zedilos became the
president(Grindle, 2011:240). The Congress has been much more active
since then, and enacting their role the constitution has conferred:
blocking and forcing the negotiation of legislation, and even
introducing its own bills(Grindle, 2011:245).

The
judicial branch used to be largely contingent on the president just
as the Congress; it was rather like the Nazis' period Germany where
courts announced pre-drafted verdicts written by Gastapos. Again, it
was Zedilos who attempted to turn it around and this trend was
carried on under Fox and Calderon(Grindle, 2011:243).

Conclusion

If
this were a football match on the effectiveness of German
Constitution and Mexican Constitution on keeping rule of law and
democracy, the German team would have won on all grounds. They both
force universal suffrage into play, but in terms of the freedom and
fairness of the elections, Germany obviously has it as no party could
have manipulated the voting process and exerted as much influence as
the PRI did. As for rule of law, we can see that the Bundestag and
the Bundesrat are much more efficient and effective than the Senate
and the Chamber of Deputies on limiting the chancellor's executive
power and cooperating in policy-making processes, whilst maintaining
political stability; yet the trend of Mexican Congress is shifting to
liberal. But again, this would largely be credited to Ernesto
Zedillo, not the constitution itself.

Bibliography

Allen,
S. (2011)chapter 3 'Germany', Kesselman, M. et al. Democracy in
Comparative Perspective, Wadsworth

Conradt,
D. (1985) The German Polity, pp.236 and Appendix for the Basic Law of
the Federal Republic

Eliziondo,
C. (2003) chapter 1 'After the 2nd of July', Tulchin, J.S. and Selee,
A.D. ed Mexico's Politics and Society in Transition, London:Boulder

Grindle,
M.S. (2011) chapter 5 'Mexico', Kesselman, M. et al. Democracy in
Comparative Perspective, Wadsworth

Kleinfeld,
R. (2005) Competing definitions of the rule of law:
implications for practitioners, Washington DC: Carnegie
Endowment for International Peace