Table of content
Constitutionalism form the core of good government in the modern democratic world to check on the powers of the different organs of government and the protection of liberty and fundamental rights of individuals within that sovereign territory. All efforts are made by the developed and the developing countries in upholding the rule of law, which are quaranteed through the constitution, to promote democracy for a just and fair society.
However, good the notion of the constitution is, there are different definitions applied by different stakeholders on the notion of what forms a good democratic polity and good constitution and constitutionalism. It is against this background that an elaborate research has been conducted by the author of the subject matter as part of the requirement in the award of Doctor of Juridical Science
Definition and Scope of Constitutional Law
Studying Constitutional Law entails the key questions as below:
1. How is individual freedom to be reconciled with the claims of social justice?
2. Is society founded upon a reciprocal network of rights and duties?
3. Is the individual merely a pawn in the Hands of State power?
Constitutional law concerns the relationship between the individual and the state, seen from a particular view front, namely the notion of law. The rules of constitutional law govern political relations within a given society, reflecting a particular distribution of political power.
In a stable society, constitutional law expresses what may be a very high degree of consensus about the organs and procedures by which political decisions are taken by recourse to armed force, gang warfare, or the might of terrorist violence, the rules of constitutional law are either non-existent or at best, no more than a transparent cover for a power struggle that is not conducted in accordance with anything deserving the name of law.
Within a stable democracy, constitutional law reflects the value that people attach to orderly human relations, to individual freedom under the law and to institutions such as Parliament, political parties, free elections and a free press.
What is a Constitution?
Applied to the system of law and government by which the affairs of a modern state are administered, the word constitution has two main meanings:
1. It means a document having a special legal status which sets out the framework and principal functions of the organs of government within the state and declares the principles or rules by which those organs must operate. In countries in which the constitution has overriding legal force, there is often a high ranking court which applies and interprets the text of the constitution in disputed cases e.g. supreme court in the USA or Canada. In these countries, legislative or executive acts may be held by the court to be without legal force where they conflict with the constitution.
2. In modern words, constitution refers to the whole system of government of a country, the collection of rules which establish and regulate or govern the government. This system is founded partly on Acts of Parliament and Judicial decisions, partly upon political practice and partly upon detailed procedures established by the various organs of government for carrying out their own tasks, e.g. the law and custom of Parliament or the rules issued by the Prime Minister to regulate the conduct of Ministers.
It has been said of the US constitution that (the) governing constitution is a synthesis of legal doctrines, institutional practices, and political norms.
The Making of Written Constitutions
It was in the late 18th century that the word constitution came to be identified with a single document, mainly as a result of the American and French Revolutions. The political significance of the new concept of constitutions was stressed by the radical, Tom Paine.
A constitution is a thing antecedent to a government, and a government is only the creature of a constitution. A constitution is not the act of a government, but of a people constituting a government and a government without a constitution is power without a right.
In the world today, the making of a constitution normally follows a fundamental political event, the conferment of independence on a subordinate territory; a successful revolution; the creation of a new state by the uniting of states which were formally separate; or reconstruction of a country’s institutions following a war. A documentary constitution normally reflects the beliefs and political aspirations of those who have framed it. During the 1990s, after the collapse of Commission, eastern and central Europe saw an end of constitution making, as revolution against socialist regimes led to the creation of new structures that embraced liberal and democratic values.
After 1945, as British colonies acquired their independence, numerous variants of what was referred to as the “Westminster Model” constitution were created. It became common practice for guarantees of rights and broad political declarations to be included in the constitution of the newly independent countries.
Legal Consequences of Unwritten Constitution
Where there is a written constitution, the legal structure of government may assume a wide variety of terms. Within a federal constitution, the tasks of government are divided into two classes, those entrusted to the federal or central organs of government and those entrusted to the various states, regions or provinces which make up the federation. Thus, in countries such as Germany, Canada, Australia or the USA, constitutional limits are enforceable in law. Many constitutions seek to avoid a concentration of power in the hands of any one organ of government by adopting a separation of powers, vesting legislative power exclusively in the legislature, executive power in the executive and judicial power in the courts.
Within the UK, there is no written constitution of the legal system. The resulting vacuum is occupied by the doctrines of legislative supremacy of Parliament and the rule of law, their interrelations being one of the questions of public law in Britain.
Many written constitutions contain a chapter of fundamental rights, the enforcement of which is entrusted to the courts. The absence of a written constitution makes it difficult and probably impossible for the courts to be entrusted with the ultimate protection of such rights against legislation by Parliament.
What is certain is that absence of a written constitution means that there is no fixed procedure prescribed for legislation of constitutional importance. The absence of a written constitution affects the sources of constitutional law. Instead of the constitution being the formal source of all constitutional law, we look at both Act of Parliament and also to judicial decisions, which settle the law on matters such as the principles of judicial review that has been never the subject of comprehensive legislation. Some institutions like cabinet do not derive their authority from the law; many important constitutional rules are not rules of law at all. Accordingly, the absence of a written constitution means that on many matters, British governments depend on legal rules and safeguards upon political and democratic principles.
This term often appears in the discussion of the relationship between state power, law, democracy and the preservation of liberal values. A Norwegian political scientist has said that constitutionalism is the political doctrine that claims that political authority should be bound by institutions that restrict the exercise of power (Lane, p.19). A Hungarian jurist has written that constitutionalism “is the set of principles, manners and institutional arrangements” that have traditionally served to limit government. And for an American commentator, “(the) special virtue of constitutionalism lies not merely in reducing power of the state, but in effecting that reduction by the advance imposition of rules (Ref, pp.16, 23).
The idea of constitutionalism is particularly associated with the existence of a written constitution from which the state’s authority and legitimacy may be felt to derive, and which may limit the power of the state and help protect the rights of individuals and minorities. Western liberalism assumes existence of a written constitution, along with a democratic parliament, a culture of respect for the law by the state’s organs, and a system of courts that may protect groups and individuals against the abuse of power.
What is Constitutional Law?
There is no hard and fast definition of constitutional law. According to one wide definition, constitutional law is that part of national law which governs the systems of public administration and the relationship between the individual and the state. Constitutional law presupposes the existence of the state (N. Mac Cormack, 1993), and includes those laws which regulate the structure and functions of the principal organs of the government and their relationship to one another and to the citizen. Where there is a written constitution, emphasis is placed on the rules which it contains and on the way in which they have been interpreted by the highest court with constitutional jurisdiction. These rules, principles and practices are essential to understanding of the relationship between what may be called “Political Constitution” and the “legal constitution”, and give a constitutional meaning to apparently disparate events. Constitutional law does not comprehend the whole of the legal system, but that the manner in which issues concerning rights, powers and duties are settled is of direct concern to constitutional law.
Constitutional law and administrative law and administrative law
In the past, constitutional law gave more emphasis to the role of the state in maintaining public order and national security than it did to the individual’s right to employment and housing, education and health services and the conservation of the environment.
There is no precise demarcation between constitutional and administrative law. Administrative law may be defined as the law which determines the organization powers and duties of administrative law deals with the exercise and control of governmental power.
A rough distinction is that constitutional law is mainly concerned with the work of official agencies in providing services and in regulating the activities of citizens. Within the vast field of government, questions often arise as to the sources of administrative power, the adjudication of disputes arising out of the public services and, above all, the means of ensuring a system of control over the activities of government which maintains a balance between public needs and the rights and interests of the individual.
Constitutional law and Public International Law
Public international law (the law of nations) is that system of law whose primary function is to regulate the relations of states with one another. The system:
…Presupposes the state, a territorial unit of great power, possessing within its own sphere the quality of independence of any superior, a quality of which we are accustomed to call sovereignty and possessing within that sphere the power and right to make law not only for its own citizens, but also for others” (C. Party).
International law thus primarily deals with the external relations of a state with other states; constitutional law concerns the internal structure of the state and its relations with its citizens and others on its territory or otherwise within its jurisdiction, as then in Bancovic v Belgium (2001). Both are concerned with regulating by legal process the great power that states wield. One branch of constitutional law is the national law relating to a government’s power to enter into treaties with other states and thus to create new international obligations. And the procedure of extradition, by which an alleged or convicted criminal who escapes from one state to another may be sent back to the state where the crime was committed, operates in both international and national law.
Since 1945, international organizations have established new forms of cooperation between states and have set standards of conduct for the international community, e.g. in the creation of the International War Crimes Tribunals. Increasingly, international law has become concerned with protecting the human rights of individuals, national minorities and other groups. For this and other reasons, the interface between constitutional law and public international law is rapidly evolving.
SOURCES AND NATURE OF THE CONSTITUTION
In written constitutions, the sources would comprise the constitution itself and amendments made to it; Acts of Parliament dealing with matters of constitutional importance; and judicial decisions interpreting the constitution. The historical sources of a written constitution include both the immediate circumstances in which it was framed and adopted, and the long term factors which influenced its making. So, too, there are broad political principles which influence the content of particular legal rules. Thus a long standing commitment to democracy underlies the legal right of the people to vote in elections. Such principles are given practical effect in legislation by Parliament and may influence decisions that the courts take on disputed questions of law.
The Formal Sources of Constitutional Law
In the absence of a written constitution, the two main sources of constitutional law are the same as those of law in general, namely:
(a) Legislation (or enacted law) including Acts of Parliament; legislation enacted by ministers and the authorities upon whom Parliament has conferred power to legislate; exceptionally, legislative with merits issued by the crown under its prerogative and other legislations enacted by the organs of the regional organization;
(b) Judicial Precedent (or case law), i.e. the decisions of the courts expounding the common law or interpreting legislation, e.g. the European court of Justice; European Court of Human Rights;
(c) Law and custom of Parliament (lex et consuetudo Parliament) which derives from the authority in each House of Parliament to regulate its internal affairs. In general, this is a matter for each house to enforce. As regards customs and practices within government, the courts generally take the view that these matters are outside the law in its strict sense and are not directly enforceable in the absence of legislation giving effect to them. But exceptionally, a well established governmental practice may give rise to decisions by the courts upholding the practice as lawful or even as creating an obligation to act in a certain way by reason of the principle of legitimate expectations.
Also, many important rules of constitutional behavior, which are observed by President, Ministers, Members of Parliament, Judges and Civil Servants, are contained neither in Acts nor in judicial decisions. Dicey referred to them as:
…conventions, understanding of habits or practices which though they may regulate the conduct of several members of the sovereign power are not in reality laws at all since they are not enforced by the courts”. Under Dicey’s influence, the most common name given to this phenomenon is constitutional conventions, which have been described as:
…rules of constitutional behavior which is considered to be binding upon those who operate the constitution but which are not enforced by the law courts … not by the presiding officers in the Houses of Parliament.
Conventional Rules of the Constitution some Examples
1. It is a rule of common law that the royal, assent must be given before a Bill which has been approved by both the House of Parliament can become an Act of Parliament.
2. In law the Queen has unlimited power to appoint whom she pleases to be the ministers.
3. High Court Judges hold their offices by statute during good behavior.
4, The legal opinions which the Law officers of the Crown give to the government are in law confidential and are protected by legal privileged from being produced as evidence in court proceedings.
They serve a wide variety of purposes and vary widely in importance. Such rules develop under every system of government, whether a written constitution exists or not. Their special importance is that it is though such rules and practices that the system of government has developed and continues to evolve.
Although some long established conventional rules like the rule that the Queen’s speech, read at the opening of each session of Parliament is prepared by her Ministers have great authority and are universally known, many have developed out of a desire to avoid formality, explicitness and publicity associated with changes in the law. The development of a regular practice may enable legislation on a point of principle to be avoided. Conventional rules may be used for directly managing the internal relationships of government while the outward legal term is left intact.
The development of unwritten rules is often an evolutionary process that occurs before clear rules of conduct emerge. As with all forms of rules, distrusts may arise about the meaning and effect of conventional rules, particularly when they have not been formulated in a definitive written form. The enforcement of many conventional rules may depend essentially on the fore of public and political opinion. Disputes about the existence and content of legal rules are typically settled by judicial decision.
In the past, amounts of constitutional conventions often commentated on the rules by which powers legally vested in the monarch came to be exercised by the ministers of the crown. Dicey considered that conventions were “rules intended to regulate the exercise of the whole of the remaining discretionary powers of the crown. It is more accurate to say that conventional rules regulate the conduct of those holding public office. Constitutional system allots different roles to monarchs, ministers, judges and servants, etc. any one who would play one of these roles must observe the restraints which the system imposes on those who accept that office.
Why is Conventional Rules Observed?
Dicey said “the sanction which constrains the boldest political adventurer to obey the fundamental principles of the constitution and the conventions in which these principles are expressed, in the fact that the breach of these principles and of these conventions will almost immediately bring the offender into conflict with the courts and the law of the land”.
To support this view, Dicey argued that Parliament meets at least once a year because the government would be compelled to act unlawfully if this did not happen.
Formulating rules of good government
To day, in many areas of government, particularly regarding standards of integrity in public life, written codes of behaviors exist – for the civil service, for ministers, for Members of Parliament and for public authorities. Enforcing this principle is formerly for the Prime Minister, acting in the light of public and parliamentary opinion.
Other rules of good government that may have a potentially similar effect are the rules of public accounting, the principles of good administration as applied by the Parliamentary ombudsmen and the principles contained in the cabinet’s office code of practice on consultation.
The Meaning of “Unconstitutional”
Where a written constitution ranks as fundamental law, acts which conflict with the constitution may be held unconstitutional and thus illegal Freeman says “unconstitutional” conduct is contrary to undoubted principles of unwritten but universally accepted constitution. When conduct breaches a written constitution, unconstitutional is likely to mean illegal, where it breaches unwritten values or principles of government.