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Max Planck Encyclopedia of Comparative Constitutional Law [MPECCoL]


Manuel Brunner

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved.date: 24 October 2021

Absolutism — Authoritarianism — Illiberal regimes — Monarchy — Totalitarianism

General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.
Managing Editor: Ana Harvey

A.  Introduction

Absolutism, also known as absolute monarchy or despotic monarchy, is a form of government in which the unlimited, undivided, and uncontrolled authority is conceded to a ruler (monarch) who is not bound by law and is not obliged to let other organs participate in governmental affairs (forms of government).

The term ‘absolutism’ is usually used for European monarchies from the reign of King Philip II of Spain (1556–98) onwards, while the time between the Peace of Westphalia concluded in 1648 (Westphalian System) and the French Revolution of 1789 is often labelled as the ‘age of absolutism’. Absolutism as a major form of government in Western and Central Europe ended in the 19th century with the adoption of written constitutions in important German-speaking states, especially in the southern German states in 1818 or 1820, in Prussia in 1848, and in Austria in 1860. The term ‘absolutism’ as such was only created in the 19th century. It is rooted in the formula princeps legibus solutus which was already developed during the times of the Roman Empire and the use of this formula by political philosophers such as Jean Bodin and Thomas Hobbes. Therefore, the first part of this article is dedicated to European-style absolutism.

In some countries of the world in the 21st century—concentrated on the Arabian Peninsula, but also in Africa, Southeast Asia, and Europe—monarchs still rule their respective states in an absolute manner. Therefore, the second part of this article enquires into the governmental systems of these states.

B.  Absolutism in Europe

Absolute rule was partly an answer to the religious civil wars of the 16th century which resulted from the success of protestant teachings. To overcome such conflicts, absolute rule was implemented by enforcing the sovereignty of the monarch. Sovereignty was defined as summa perpetuaque potestas by Jean Bodin. Thus, sovereignty was understood as an all-embracing concept of authority. Bodin listed as the ‘true criteria of sovereignty’: the right to wage war, the right to act as the final judge, the right to legislation, the right to organize the state, and the right to taxation (taxes). As all the powers were conceded to the ruler, no sharing or limitation of their powers was ever possible. Therefore, there was no legitimate reason for a civil war anymore and every legal possibility for any kind of opposition was excluded. The attempt to unify the rule in one person went along with the disempowerment of the various groups that were potent during the Middle Ages, including the estates.

1.  16th and 17th Century Justifications for Absolutism

The concept of an absolute ruler was the subject of writings of some of the most important scholars of political philosophy during the 16th and 17th century like Jean Bodin and Thomas Hobbes. In his 1576 treatise Six livres de la république, Bodin formulated his theory of sovereignty. The core element of his theory was the justification of an absolute monarchy as the ideal form of government. Bodin put forward the argument that a prince (monarch) has to be sovereign because this is the precondition for an optimal exercise of power. The prince was understood as the counterpart of God on earth. Therefore, it was necessary that the prince was in the position to enact law by himself without the approval of other organs or entities. Bodin argued further, that if the monarch needed the approval of a higher-ranking entity, the prince would just be a subject. If the monarch needed the approval to enact a law by an entity of the same rank, they would just be sharing the power and if the monarch needed the approval of a lower-ranking entity, no sovereign decision would be possible. While in Bodin’s conception the monarch was not bound by any man-made law in his decision-making, they nonetheless shall base their decision on morals and tradition. The only laws that are to be obeyed by the monarch are natural law and divine law (natural law theories and constitutionalism), which shall not or cannot be broken. In his very influential 1651 treatise Leviathan, Thomas Hobbes developed the justification of absolutism further. In Hobbes’ conception, man leaves the state of nature, which is characterized by the absolute freedom of man and war, in order to form a community ruled by a sovereign. The sovereign and the people enter into a social contract, by which the people become subjects and hand over their individual freedoms to the sovereign. People enter into the contract to receive the protection of the monarch. Thus, he is not bound by law and he can decide freely.

2.  Types of Absolutism

Absolute monarchy in the European modern age took part in a fixed conceptual framework. While the core element of this form of government has always been the supreme position of the monarch as head of state and government, equipped with unlimited power, the specifics of state affairs varied according to time, place, and attitude of the respective ruler. However, two main types of absolutism can be distinguished: classic and enlightened absolutism.

(a)  Classical Absolutism

The period of ‘classical’ (or courtly) absolutism saw an increased promotion of the divine right of Kings by the monarchs to legitimate absolute rule. In this political and religious concept, the monarch is not subject to earthly authority, but receives the legitimacy of his rule directly by the grace of God. The monarch is therefore not bound by the will of the people, the aristocracy, the church, or any other estate in his realm.

As such, the classical absolute monarchs saw themselves as the incarnation of the state. They represented the state in all internal and external affairs and concentrated all the power in one person. Furthermore, classic absolute monarchs tended to view the state as their private property, at their disposal. Notable examples of such monarchs include Louis XIV of France, Philip II of Spain, and Frederick I of Prussia.

(b)  Enlightened Absolutism

Enlightened absolutism was characterized by the influence of the Enlightenment on monarchs and their advisors. This philosophic movement established itself from the beginning of the 18th century onwards and advocated that reason is the primary source of authority and legitimacy and endorsed ideals such as liberty, progress, fraternity, constitutional government, tolerance, and the separation of church and state. Monarchs who were, in some cases at least theoretically or partially, in favour of enlightened government included the Prussian King Frederik II and the Russian Tsaritsa Catherine II. The change in the attitude of European monarchs is best illustrated by Frederik II of Prussia who did not see himself as a ruler by the grace of God, but instead described himself as the ‘first servant of the state’. He justified his reign by the existence of an original social contract between the people and the kingship, which was irrevocable.

3.  Pillars of Power of the Absolute Monarch

10  The European absolute monarchs typically relied on several pillars to secure their reign and power.

(a)  Powers of the Absolute Monarch

11  The modern trias politica existed only with serious restrictions as the final decision was always in the hands of the monarch. They led the affairs of the government, enacted new or changed existing laws, and was the state’s highest judge. Furthermore, the monarch could change any judgment or administrative decision at their own will. As a legislator, the monarch was not bound by the law themselves but only by the idea that they had to work for the benefit of the general public. Jean Bodin described those governmental powers of the monarch: Maiestas est summa in cives ac subditos legibusque soluta potestas.

(b)  Administration

12  A well-organized administration, equipped with sufficient personnel, was necessary to expand the power of the monarch to all parts of the realm. During the rule of Louis XIV, the administration of France was entrusted to nearly 4,000 civil servants. Taxation was based on the affiliation of the taxpayer with one of the three estates: clergy (first estate), nobility (second estate), and commoners (third estate).

(c)  The Court

13  The monarch and their court were at the centre of the social and cultural life of the state, especially in the period of classical absolutism. This led to the development of a court culture in which the nobility was tied closely to the monarch.

(d)  Military

14  Absolute monarchs maintained a permanent military. Usually those militaries contained a standing army and navy. While armies had to defend the country and were used in the conquest of territory, they were also tasked to secure the power of the monarch against enemies from within, especially against riots or rebelling nobles. The naval forces were used to secure influence at sea and abroad.

(e)  Role of the Church

15  During the age of absolutism, the state and the church often entered into a very close relationship. For instance, in France, Louis XIV made use of Gallicanism, a belief popular in his country since the late Middle Ages which advocated that the position of a civil authority over the Catholic Church is comparable to the authority the Pope exercises.

(f)  Mercantilism

16  During the age of absolutism, mercantilism was a predominant form of economic policy in Europe, especially in France, Prussia, and Austria, which was heavily influenced by the work of the French Minister of Finances, Jean-Baptiste Colbert. The most important feature of a mercantilist economy is its centralized, systematic, and state-planned character. The major goal was utmost economic independence of a given state in order to create wealth and income for the state.

4.  Rejection of Absolute Rule in other European Countries

17  Not every European state established a system of absolute monarchy during the age of absolutism. In England, absolutism could never be fully accepted. Ever since the ratification of the Magna Carta in 1215 (Magna Carta (1215)), the English aristocracy and clergy had enforced their respective interests against the ruling monarch. Attempts to establish an absolute monarchy led to the English Civil War (1642–51). During the reign of King William III (1689–1702) and his successors, a constitutional framework for English politics was established which was based on cooperation between the Crown and the Parliament. In several political entities in Europe, no attempt to establish absolute rule was ever made. Important examples included the Swiss Confederacy, the Republic of the Seven United Netherlands, the aristocratic Republic of Venice, and the elective-monarchy in Poland, which was transformed over time into an aristocratic republic.

C.  Current Absolute Regimes

18  While absolutism as a system of government rapidly lost its influence in European politics in the 19th century, a handful of states are still governed by absolute monarchs, even though this absolute rule is in many parts not comparable to European-style absolutism discussed in the sections above. The one common feature is the immense power of the respective monarch in his state and in most cases hereditary succession. Absolutism today is concentrated on the Arabian Peninsula; other examples include Brunei Darussalam, Eswatini, and the State of the Vatican City.

1.  Brunei Darussalam

(a)  The Monarchy

19  Although Brunei Darussalam possesses a constitution, the state is governed by a Sultan who governs the country in an absolutistic manner. The Constitution of Brunei Darussalam: 29 September 1959 (as Amended to 21 February 2006 and as Reprinted 2011) (Brunei) dates back to the time when the Sultanate was still a British protectorate. The monarch’s title is ‘His Majesty the Sultan and Yang Di-Pertuan of Brunei Darussalam’. The latter term means ‘(He) who is Lord’ in Malayan. The current ruler of Brunei Darussalam is Sultan Hassanal Bolkiah Mu’izzadin Waddaulah, who assumed office in 1967.

(b)  The Framework of Governance

20  The Constitution is extremely Sultani-centred. Almost all of its 86 articles also describe powers of the Sultan; often such powers are only laid down to secure the ultimate influence on every decision taken in state affairs whenever another organ is acting. Article 84 of the Constitution deals with the effect of the Constitution on the Sultan. According to Article 84 the government of Brunei Darussalam shall be regulated in accordance with the provision of the Constitution, while nothing in the Constitution shall be deemed to derogate from the prerogative powers and the jurisdiction of the Sultan. An interesting feature of the Constitution of Brunei Darussalam is that in Article 3 it transfers a religious role to the monarch. According to this provision, the official religion of the Sultanate shall be Islam and the head of the religion is the Sultan (relation of religion to state and society).

21  The dominant role of the Sultan in the politics of Brunei Darussalam is established in Article 4(1) of the Constitution. According to this provision, the supreme executive authority of the state shall be vested in the Sultan. According to Article 4(2), the executive authority shall be exercised by the Sultan or by the Council of Ministers or by any Minister authorized by the Council of Ministers. The Prime Minister is, according to Article 4(3) responsible to the Sultan for the exercise of the executive authority. The Privy Council (Art. 6) and the Council of Ministers (Art. 17) are established to support the Sultan.

22  The legislation is also dominated by the Sultan. According to Article 39 it shall be lawful for the Sultan, with the advice and consent of the Legislative Council, and subject to the provisions of the constitution, to make laws for the peace, order, and good government of Brunei Darussalam. The Legislative Council itself consists of 21 members who were all nominated by the Sultan. Moreover, according to Article 85(1) the Sultan is competent to change the Constitution.

2.  Oman

(a)  The Monarchy

23  Oman is a Sultanate on the southern coast of the Arabian Peninsula. The sultanate has been governed by the Bū-Sa?īd-Dynasty since 1744. The current sovereign of Oman is Sultan Qaboos bin Said Al Said, who has ruled since 1970 after dethroning his father Sultan Said bin Taimur in a palace coup. Beside his role as Sultan, Qaboos holds a number of other official positions. To secure his power, Qaboos also fills important positions in his state with loyal family members. Oman has no written constitution, but a Basic Statute of the Sultanate of Oman: 6 November 1996 Sultani Decree No. 101/96 (Oman) which was promulgated for organizational purposes by royal decree. Political parties are not allowed in Oman (political parties or fractions in legislative body). However, Omani politics were also affected by the events of the so-called ‘Arab Spring’ in 2011. After demonstrations took place in Muscat, the Sultan announced a plan to reconstruct the constitutional system of Oman towards a constitutional monarchy (monarchical constitutions).

(b)  The Framework of Governance

24  As laid down in Article 5 of the Basic Statute, the Sultanate is hereditary in the male line descended from Sayyid Turki bin Said bin Sultan, who was Sultan of Oman and Muscat from 1871 to 1888. Whoever is to be chosen from amongst those descendants must be a Muslim, mature, rational, and the legitimate son of Omani Muslim parents. According to Article 6, the Royal Family Council shall, within three days of the throne falling vacant, determine the successor to the throne.

25  Article 41 of the Basic Statute establishes that the Sultan is the Head of State and the Supreme Commander of the Armed Forces, his person is inviolable, respect of him is a duty, and his command is to be obeyed. Furthermore, the Sultan is described by the article as the symbol of national unity as well as its guardian and defender. Article 42 lists the functions of the Sultan which include the preservation of the independence of Oman and its territorial integrity, the protection of the international and external security of Oman, and the safeguarding of the rights and freedoms of citizens. The Sultan is also in charge of ensuring the rule of law, directing the general policy of the state, representing Oman internally and in international relations, the establishment and regulation of the administrative, and the appointment and removal of state officials. Other important functions include the declaration of a state of emergency (types and effects of emergency), general mobilization, war and concluding peace (declaration of war), the promulgation and ratification of laws, the signing of international conventions and treaties (treaty power), the appointment of political representatives to other states and international organizations and relieving them of their office, accepting the credentials of representatives of other states and international organizations, pardoning (pardon power) or commuting any penalty, and conferring order of honour and military ranks.

26  The Sultan shall be assisted in formulating and implementing the general policy of the state by a Council of Ministers according to Article 43. In Article 58 of the Basic Statute, rules are laid down for a further council, the Council of Oman. This council consist of two sub-councils: the State Council and the Shura Council. The members of the State Council and its Chairman are appointed by virtue of a royal decree. The State Council is composed of mostly former high-ranking officials or other people with influence in the Omani society. The Shura Council is appointed differently. It was created to broaden public participation in governmental affairs. The Shura Council consists of elected members. In general, the rules on the Shura Council contain only very few provisions that allow the Sultan to influence the Council’s work. However, the ultimate influence of the monarch is secured by his power to dissolve the Shura Council in circumstances he determines and to call for a new election within four months from the date of the dissolution. The competences of the Council of Oman are of a merely advisory nature.

27  The Basic Statute generally establishes an uninfluenced court system. According to Article 59, the dignity of the judiciary and the integrity and impartiality of the judges are a guarantee for rights and freedoms, and according to Article 60 the judiciary shall be independent (independence of the judiciary). Article 61 establishes that there shall be no power over judges except for the law and they shall be irremovable expect in circumstances specified by the law. The role of the Sultan concerning the judiciary is limited to the appointment of senior judges and relieving them of their office (Art. 42); judgments shall be rendered and enforced in the name of the Sultan (Art. 71).

3.  Qatar

(a)  The Monarchy

28  Since the middle of the 19th century, Qatar has been ruled by the House of Thani. This noble house traces its origins back to the Ma’adid sect of the Banu Tamim tribal confederation. Originally based in present-day Saudi Arabia, the tribe moved to Qatar in the 1740s and settled in Doha in the 19th century. The House of Thani established its rule over Qatar during the 19th century when its leaders opposed first Bahraini and later Ottoman rule over the Qatari Peninsula. In the course of the downfall of the Ottoman Empire during World War I, Qatar received the status of a British protectorate. The House of Thani stayed in power during this time as it did after the independence of the country in 1971. The current monarch of Qatar is Tamim bin Hamad Al Thani.

29  Qatar is a monarchy in transition, shifting from an absolute to a constitutional monarchical system. This development reaches as far back as 1970. In that year, and thus prior to national independence, a provisional system of governance was enacted (Provisional Constitution of Qatar: 1970 (Qatar)) and revised in 1972 to address new requirements. The Amended Provisional Constitution of 1972 already incorporated elements for the future constitutional development of Qatar. In 1999, monarch Sheikh Hamad bin Khalifa Al Thani announced the formation of a drafting committee for the development of a permanent constitution. On 29 April 2003, a referendum was held in which 98.39 per cent of the voters gave their consent to the new Constitution, which came into effect 9 April 2004, one day after its promulgation by the Emir.

(b)  The Framework of Governance

30  The Constitution of the State of Qatar: 29 April 2003 (Qatar) only partly reflects the political realities in Qatar. Perhaps the most astonishing provision of the constitutional text is Article 1 where it is stated that the political system of the Emirate is democratic. Moreover, Article 59 specifies that the people are the source of power.

31  The Constitution regulates the question of succession. According to Article 8, the rule of the state is hereditary in the family of Al Thani and in the line of the male descendants of Hamad bin Kahlifa bin Hamad bin Abdulla bin Jassim, who ruled Qatar from 1972 until 1995. The rule shall be inherited by the son named as Heir Apparent by the Emir. If there is no son, the rule shall pass to the member of the family named by the Emir as Heir Apparent. In this case, the male descendants of the named person shall inherit the rule. The Emir shall, according to Article 9, appoint the Heir Apparent by Emiri order after consultation with the members of the ruling family and people of wisdom in the state. To qualify as Heir Apparent, the respective person must be a Muslim of a Qatari Muslim mother.

32  The system of government of Qatar is, according to Article 60, based on the separation of powers. The legislative authority, according to Article 61, is held by the Al-Shoura Council. According to Article 62, the executive is held by the Emir and according to Article 63, the judicial authority is held by the courts.

33  The Emir is, according to Article 64, the head of state. This provision also declares his person to be inviolable and establishes the obligation that the monarch must be respected by all. He is assisted by the Council of Minsters (Art. 120). Furthermore, according to Article 65, the Emir is the Commander-in-Chief. The Emir represents Qatar internally and in international relations (Art. 66). According to Article 67, other functions of the Emir include the drawing up of the general policy of the state with the assistance of the Council of Ministers, the ratification and promulgation of laws, the summoning of the Council of Ministers, the appointment of civil servants and military personnel and terminating their service, the accreditation of diplomatic and consular missions, the granting of pardon, the commuting of penalties, and the conferment of civilian and military orders and badges of honour. Further functions of the Emir include the declaration of a defensive war (Art. 71) and the conclusion of treaties and agreements by decree (Art. 68). According to Article 69, the Emir may declare martial law in the event of exceptional circumstance (martial law). The Emir shall appoint the Prime Minister, accept his resignation, and remove him from office by an Emiri order (Art. 72). Concerning the cabinet, the Emir shall appoint the other ministers by Emiri order upon nomination by the Prime Minister, and he shall also accept resignations of Ministers and relieve them from office in a like manner. While all those powers of the Emir are strong, Article 75 provides for popular participation in the decision-making process. According to this provision, the Emir shall seek public opinion by referendum on issues of importance to the state.

34  The Emir may, according to Article 12, by Emiri Order, confer upon the Heir Apparent the exercise of some of his powers and the discharge of some of his functions. The provision also provides that the Heir Apparent shall preside over the sessions of the Council of Ministers whenever he is attending it; thereby providing a constitutional basis for the Heir Apparent to gain some expertise in governmental affairs prior to taking the throne. According to Article 13, in cases where it is not possible to delegate powers to the Heir Apparent, the Emir may by Emiri order, designate a deputy from the ruling family to discharge some of his powers and functions. Furthermore, Article 14 provides that by an Emiri Resolution, a ‘Council of the Ruling Family’ may be established; the members of this council shall be appointed by the Emir from amongst the members of the ruling family. This council shall, according to Article 15, determine the vacancy of the position of the Emir in the event of his demise or when he becomes totally incapable of discharging his functions. Following this, the Council of Ministers and the Al-Shoura Council shall, after a secret session announce the vacancy and declare the Heir Apparent as Emir of the State. Where the Heir Apparent, at the time he is named Emir of the State, is less than 18 years of age according to the Gregorian calendar, the powers of government shall be conferred, according to Article 16, upon a Regency Council to be appointed by the Council of the Ruling Family. The Regency Council shall be composed of a Chairman and not less than three or more than five members; the Chairman and the majority of members of the Regency Council shall be from amongst the royal family.

35  The third section of the fourth chapter of the Qatari Constitution contains provisions on the legislative authority. It is here, especially, where constitutional demands and constitutional realities of the political system of Qatar are diverging. According to Article 76, the Al-Shoura Council shall assume the legislative authority, approve the general policy of the government and the budget, and it shall exercise control over the executive authority. The Council shall, according to Article 77, consist of forty-five members; thirty of whom shall be elected by direct, general secret ballot and the Emir shall appoint the remaining fifteen members from amongst the Ministers or any other persons. Even though the Council only fulfils consultative tasks, the election of its members would mean a real democratic element in the political system of Qatar. However, the current Al-Shoura Council is not composed of forty-five members, but of thirty-five only, all of which are appointed. Moreover, no election had taken place yet, as required by the constitution. Since the new constitution entered into force, an election was announced several times, but the tenure of the Al-Shoura Council has always been extended by the Emir, for the last time in June 2016. The election is now scheduled for May 2019. Besides all this, the ultimate power of the Emir in legislative affairs can be found in Article 67 (2) where it is stated that no law may be issued unless it is ratified by the monarch.

4.  Saudi Arabia

(a)  The Monarchy

36  Ever since the founding of the modern Kingdom of Saudi Arabia in 1932 by Abdulaziz bin Abdulrahman Al-Faisal Al-Saud, the country is ruled by the House of Saud. Its members are descendants of Muhammad ibn Saud ibn Muhammad Al Muqran. He was known for founding the Emirate of Diriyah in 1744, a territorial entity that is also known as the First Saudi State. The Emirate started off with a small territory in the midst of modern-day Saudi Arabia. After a period of expansion, it comprised the territory of modern Saudi Arabia, including the holy Muslim cities of Mecca and Madinah, as well as some other territories. The foundation of the Emirate was influenced by religious motives. Muhammad ibn Saud formed an alliance with Muhammad ibn Abd al-Wahab, a Sunni Muslim preacher who was the founder of the Wahhabi movement, a sect that claimed to pursue a purified Islam which is based on the supposed practices of the ‘salaf’, the first three generations of Muslims. Wahhabism still plays a dominant role in the politics of modern Saudi Arabia. When the Basic Regulation of Governance: 1 March 1992 (Saudi Arabia) was promulgated by royal decree, it was clarified already in Article 1 that the constitution of the Kingdom is the Qur’an and the Sunnah, the practices of the Holy Prophet of Islam, Muhammad. The current monarch of Saudi Arabia is Salman bin Abdulaziz Al Saud.

(b)  The Framework of Governance

37  The basic principle for the rule of Saudi Arabia is laid down in Article 5 of the Basic Regulation. According to this provision, the system of governance in the Kingdom of Saudi Arabia shall be monarchical. Furthermore, governance shall be limited to the sons of King Abdulaziz bin Abdulrahman Al-Faisal Al-Saud and the sons of his sons. Allegiance shall be pledged to the most suitable amongst them to reign on the basis of the Qur’an and the Sunnah. The King shall select and relieve the Crown Prince by royal order. The Crown Prince shall devote himself exclusively to his office and shall perform any other duties assigned to him by the King. The Crown Prince shall assume the powers of the King upon his death until the pledge of allegiance is given.

38  The Basic Regulation also establishes a form of a divine right of the King. According to Article 7, governance in the Kingdom of Saudi Arabia derives its authority from the Qur’an and the Sunnah, both of which govern the Basic Regulation and all the laws of the state. Furthermore, according to Article 6 the citizens of Saudi Arabia pledge allegiance to the King on the same basis and obedience in time of hardship and ease, fortune and adversity. Moreover Article 8 establishes the basic elements on which Saudi Arabia shall be governed: Justice, shura (consultation), and equality in accordance with Islamic Shari’ah.

39  Part Six of the Basic Regulation is dedicated to the authorities of the state, which are, according to Article 44, the Judicial Authority, the Executive Authority, and the Regulatory Authority. These authorities shall cooperate. It is explicitly stated, that the King of Saudi Arabia is the final authority.

40  Concerning the Executive Authority, Article 55 of the Basic Regulation provides that the King shall run the affairs of the nation in accordance with the dictates of Islam and supervise the implementation of Islamic Shari’ah, the general policies of the state and the protection and defence of the country. In performing these functions, the King presides over the Council of Ministers (Art. 56); the members of the Council shall assist the King in the discharge of his functions. The influence of the monarch on the Council and its members is reflected in Article 57, whereby the King shall appoint vice presidents and ministers of the Council and also shall relieve them by royal order. Furthermore, the vice presidents and the ministers of the Council shall be considered collectively responsible before the King and he may dissolve the Council and reconstitute it. Moreover, according to Article 58, the King shall appoint those who hold the rank of minister and deputy minister and those in distinguished grade, and shall relieve them of their office by royal order in accordance with what is set forth in the law; ministers and heads of independent agencies shall be responsible before the King. The King is also the Supreme Commander-in-Chief (Art. 60). Other powers of the King include the power to declare the state of emergency, a general mobilization, and war (Art. 61), the power to take urgent measures, which are not specified in the law and can be made permanent if a threat arises which endangers the security of the Kingdom or its people, or hinders the institutions of the state from performing their function (Art. 62), the power to receive the Kings and heads of state, to appoint his representatives to other states and to accept the credentials of their representatives to him (Art. 63), and the power to grant medals (Art. 64).

41  According to Article 67 the Regulatory Authority shall have the jurisdiction of the formulation of laws and rules conductive to the realization of the well-being, or warding off of harm, to state affairs in accordance with the principles of Islamic Shari’ah. For purposes of consultation on the legislative process, according to Article 68, a Shura Council shall be established, which the King may dissolve and reconstitute. The Council proposes new laws and amends existing ones; it currently consists of 150 members who are appointed by the King for a four-year term. According to Article 69, the King may summon the Shura Council and the Council of Ministers to a joint session; the monarch can also invite whomever he chooses to attend that session in order to discuss whatever matters he chooses. Laws, international treaties and agreements, and concession shall, according to Article 70, be issued and amended by royal decrees, as shall be the announcement of the budget, according to Article 76. Finally, Article 83 states that the Basic Regulation on Governance can only be made in the same manner as its promulgation and therefore by royal order.

5.  Eswatini

(a)  The Monarchy

42  The only absolute monarchy in Africa is Eswatini, formerly Swaziland. The royal house of Eswatini is the House of Dlamini, which traces its roots back to East Africa. King Ngwane III, who ruled the country between 1745 and 1780, is considered the first monarch of modern Eswatini. When the small Kingdom became a British protectorate in 1903, following the Second Boer War, the House of Dlamini continued to rule the country and did so even after it regained full independence in 1968. The current monarch is Mswati III who has ruled Eswatini since 1986, after his father King Sobhuza II died in 1982 and following a period of regency. The Swazi King is also known as iNgwenyama meaning ‘lion’ in an honorific sense in the language of siSwati. An interesting feature of the monarchy is the traditional role of the mother of the King or a female ritual substitute. This person is known as Ndlovukati, which means in a literal translation ‘She-Elephant’. The King used to rule the country together with her. While the iNgwenyama performed administrative functions, the Ndlovukati provided spiritual leadership to the subjects and possessed real powers, thereby counterbalancing the political weight of the iNgwenyama. However, during the reign of King Sobhuza II, the position of Ndlovukati was transferred into a more symbolic role.

43  On the day of national independence on 6 September 1968, the first Constitution of Eswatini entered into force, which erected a framework for a constitutional monarchy. On 12 April 1973, King Sobhuza II imposed a royal decree which repealed the constitution of 1968, transferred all powers of the government to the King, and prohibited and dissolved political parties. In October 1978, a new constitution was promulgated, which secured the absolute rule of the King, but contained some minor concessions to the democratic reform movement. In 1996, King Mswati III agreed to start a process to draft a new constitution. Only in 2001 did the monarch appoint a committee that was charged with the task of drafting a constitutional document. The draft of the envisaged constitution was highly criticized by national and international non-governmental groups for insufficient protection of fundamental rights, too few safeguards for the independence and impartially of the judiciary, and the non-mentioning of political parties. The new Constitution of the Kingdom of Swaziland: 8 February 2006 (Swaz) was finally signed by Mswati III on 26 July 2005. While the new constitution still places the monarch in the centre of public decision-making, it represents a step towards a constitutional monarchy.

(b)  The Framework of Governance

44  In Article 1(1) of the constitution, Eswatini is described inter alia as a democratic Kingdom. The King has, according to Article 2(2), the right and duty at all times to uphold and defend the constitution. These provisions are complemented by Article 79 in which it is laid down, inter alia, that the system of government for Eswatini is democratic and participatory.

45  The second chapter of the constitution is dedicated to the monarchy. According to Article 4, the King of Eswatini is a hereditary Head of State and shall have such official name as shall be designated on the occasion of his accession to the throne. He is a symbol of unity of the Swazi nation, the Commander-in-Chief of the Defence Force, and the Commissioner-in-Chief of the Police Service and of the Correctional Service. Furthermore, the King has such rights, prerogatives, and obligations as are conferred on him by the constitution or any other law, including Swazi law and custom, and he shall exercise those rights, prerogatives, and obligations as per the terms and spirit of the constitution. The particular power of these terms stems from the fact that according to Swazi law and custom, the monarch holds supreme executive, legislative, and judicial powers. According to Article 13 and 231 the King is advised by a special King’s Advisory Council. Its members are appointed by the King in his role as iNgwenyama and are selected, inter alia, from among tribal chiefs and persons who have distinguished themselves in the service of the nation.

46  According to Article 5 of the Constitution, succession to the throne is hereditary and governed by the constitution and by Swazi law and custom. Where the office of King becomes vacant, the successor to the throne shall be determined and declared in accordance with Swazi law and custom. The exact process of the selection of a successor has not been written down and remains to a large degree secret. Until he accedes the throne, a person declared successor, according to Article 6, shall be designated as Umntfwana, meaning Crown Prince. Unless the situation requires otherwise, the Crown Prince shall accede the throne when he has attained the age of eighteen years. Before being declared King, the Crown Prince shall be installed iNgwenyama in accordance with Swazi law and custom.

47  The executive powers of the King are described in Chapter VI of the Constitution of the Kingdom of Swaziland. According to Article 64 the executive authority is vested in the King as Head of State and shall be exercised in accordance with the provisions of the constitution, which shall be protected and defended by the Kings as well as all laws. The monarch may exercise the executive authority either directly or through the cabinet or a minister.

48  The King has also considerable influence on the process of legislation. The Parliament is bi-cameral and consists, according to Article 93 of the Constitution, of a Senate and a House of Assembly. The monarch appoints 20 of the (not more than) 31 senators after consultation with such bodies as he deems appropriate, while the rest of the members are elected. Furthermore, the King can appoint a maximum of ten members of the House of Assembly, which consists of not more than 76 members, most of them elected. While the majority of the members of the Parliament are elected, which may be seen as an important democratic element, in fact, the ultimate leverage of the King is always secured at the various steps of the legislative process. According to Article 106, the supreme legislative authority is vested in the King in his role as legislator and the King and the Parliament may make laws for the peace, order, and good government. As provided by Articles 107 and 108, laws need the assent and the signature of the King to enter into force. Moreover, in nearly all cases, a bill shall only be presented to the King for assent when it has been passed by both houses of the parliament without any amendments or with such amendments as are agreed to by both houses. Therefore, the King-appointed majority in the senate always plays a decisive role in the process. According to Article 245(5), the assent of the King is also needed to amend the constitution. Another important power of the monarch is the power to open or dissolve the parliament at any time, as it is laid down in Article 134. While in the exercise of his power to dissolve Parliament, the King shall act on the recommendation of the Prime Minister.

6.  United Arab Emirates

(a)  The Monarchy

49  The United Arab Emirates has had a written constitution since its independence in 1971. The Constitution installs a President as the head of the state, which usually is not a feature of an absolute monarchy. However, the entire political system of the United Arab Emirates revolves around the Emirs of the seven Emirates: Abu Dhabi, Dubai, Sharajh, Ajman, Umm al Qaiwain, Ras al Kaihmah, and Fujairah. All of those Emirates are ruled by the respective Emir as an absolute monarchy.

(b)  The Framework of Governance

50  The influence of the Emirs is reflected in Article 46 Constitution of the United Arab Emirates: 18 July 1971 (as Amended to 2004) (UAE). According to this provision, the Supreme Council is the supreme authority of the Union. The Council consists of the Rulers of all Emirates making up the Union, with every Emirate having a single vote in the deliberations of the Council. According to Article 47, the Supreme Council is responsible for a number of matters, which include the formulation of general policy in all matters within the Union’s competence, the ratification of the various laws before their promulgation, the ratification of treaties and international agreements, agreeing to the appointment of the president and the judges of the Supreme Union Court, and, in general, the supreme control over the affairs of the union.

51  The position of the President of United Arab Emirates and his deputy is always held by Emirs. According to Article 51 of the Constitution, both shall be elected from among the members of the Supreme Council. Although not part of the written constitution, a convention has been established that the Ruler of Abu Dhabi acts as President of the United Arab Emirates. Because of the convention, the position of President is subject to the rules of succession in Abu Dhabi.

52  Article 54 of the Constitution lists the responsibilities of the President of the United Arab Emirates; he shall be the Chairman of the Supreme Council, sign the union laws, decrees and decisions which the Supreme Council has ratified and shall promulgate them, appoint the Chairman of the Council of Ministers, appoint the diplomatic representatives of the United Arab Emirates and other senior officials, and accept the accreditation of diplomatic and consular representatives of foreign states. Furthermore, the President shall supervise the implementation of the union laws, decrees, and decisions through the Council of Ministers and the competent Ministers, he shall represent the United Arab Emirates internally and in international relations, exercise the right of pardon and commutation of sentences, confirm capital sentences, and bestow decorations and medals of honour. Furthermore, according to Article 140, the declaration of defensive war shall be declared by federal decree issued by the President of the United Arab Emirates after its approval by the Supreme Council.

7.  The State of the Vatican City

(a)  The Monarchy

53  The case of the State of the Vatican City is the only case of a sovereign state in which politics are taking place in the framework of an absolute theocratic elective monarchy. The monarch of the State of the Vatican City is the Pope (or Supreme Pontiff) of the Catholic Church, who also serves as the Bishop of Rome. The role as monarch of a territorial entity was already performed by all Popes from the establishment of the Papal State in the year 754 onwards until its dissolution in 1870 that took place in the course of the Italian unification. With the establishment of the State of the Vatican City by the Lateran Treaty (11 February 1929) between the Holy See and the Kingdom of Italy, the Pope became once again a secular monarch.

(b)  The Framework of Governance

54  The position of the Pope as the absolute monarch of the State of the Vatican City was first laid down in Article 1 Fundamental Law of the State of Vatican City: 7 June 1929 (Vatican) and is also reflected in Article 1(1) of the new Fundamental Law of the State of the Vatican City: 22 February 2001 (Vatican) that was promulgated by Pope John Paul II. The latter provision reads: ‘The Supreme Pontiff, Sovereign of Vatican City State, has the fullness of legislative, executive and judicial powers.’

55  There are no rules for the designation of a new monarch of the State of the Vatican City. The man who is elected Pope ex officio functions as the ruler of the smallest country in the world. The election of a new Pope becomes necessary whenever the incumbent dies or resigns. While the exact procedures of the election process are dating back centuries, the current set of rules was established by Pope John Paul II in the Apostolic Constitution Universi Dominici Gregis which he promulgated in 1993 and which was modified slightly by Pope Benedict XVI in 2005 and 2013. The election is held in the conclave, a special meeting of the College of Cardinals.

56  The Pope is supported in his rule over the State of the Vatican City by certain institutions. According to Article 3(1) of the Fundamental Law, the legislative power, except for those cases which the Pope intends to reserve for himself or other subjects, is exercised by the Pontifical Commission. This Commission is composed of a Cardinal President and other Cardinals who are named by the Pope for a five-year term, but can also be removed from office by him at any time. Whenever the Pontifical Commission wants to enact a law, according to Article 4(3), the draft law is submitted in advance through the Secretariat of State for the consideration of the Pope. The President of the Pontifical Commission is, according to Article 5(1), also exercising the executive powers as the President of the Governorate. According to Article 6, matters of greater importance are dealt with together with the Secretariat of State, the advisory body of the Pope.

57  Furthermore, according to Article 2, the representation of the State of the Vatican City is in any case reserved for the Pope, who exercises external relation powers through the Secretariat of State. According to Article 15(1), judicial powers are exercised in the name of the Pope by the organs constituted according to the judicial structure of the State of the Vatican City. Other powers that are reserved for the Pope include, according to Article 19, the granting of amnesties, indults, remissions, and favours. The augustness of the Pope is also reflected in the flag and the coat of arms of the State of the Vatican City as, according to Article 20, the tiara and papal crown are part of both symbols of the state (state symbols).

D.  Final Observations

58  Absolutism as a form of government played a significant role in the creation of modern statehood in Europe. With the notable exception of England, European politics was dominated by absolute monarchies from the 16th to the 18th century. After the French Revolution, this type of government lost its appeal as a form of government. Political theories that placed popular sovereignty at the heart of decision-making and governmental affairs, as well as the rise of nationalism in the 19th century, played a key role in a swing from absolute monarchical systems towards constitutional monarchies or republics. The despotic regimes at the eastern border of the European peninsula could maintain their governmental systems a little longer, but the Ottoman Empire had already drafted a first constitution in 1876. The Russian Tsars governed their empire until 1905 as absolute rulers. Finally, Nicholas II had to give way for popular participation after the revolution in that year.

59  While the systems of government of current absolute regimes are neither legally nor ideologically connected to the classical European-style absolutism, both forms of absolutism share as a common feature the comprehensive power of the monarch. However outdated these systems of government are in the eyes of a Western observer, they are a reality in the respective states. But the above descriptions of frameworks, in which politics takes place in current absolute regimes, show that none of them manages state affairs without a constitutional (or similar) document defining the powers of the respective monarch. Therefore, the idea of the value of such a document to organize the state is present in those countries. The idea of (a form of) constitutionalism within an absolute monarchy may be based on different grounds. Firstly, the introduction of a constitutional (or similar) document gives a signal to the citizens within the respective state, that even in such a system of government the ruler cannot exercise power without at least some external input and established procedures, therefore avoiding a rule of arbitrariness. Secondly, in a world full of governmental systems based upon one form of constitutional rule or the other, the rulers of absolute monarchies may not wish to trigger external critiques that point to a lack of a constitution. Thirdly, as most constitutions contain rules on the inheritance of the respective throne, the documents might be seen as protecting the domination of the respective state by the ruling family in the future, by legally securing the old-fashioned form of power-transfer to the next generation through written procedures.

60  Some recent examples show how former absolute monarchies moved relatively quickly towards a system of constitutional monarchy. One of those examples is that of Bhutan, where the political system changed on the initiative of the King himself and where elections have been held since 2003. Nepal moved back and forth between constitutional monarchical government and direct rule of the King. This was a result of the Nepalese Civil War and activities by Maoist guerrillas. Monarchy was finally abolished in Nepal in 2008, following the Nepalese royal massacre of 2001.

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