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Question: Discuss the advantages and disadvantages of an unwritten constitution. Marks: 14.5/25 What is a constitution?

Finer, a great philosopher defined that "codes of rules which aspire to regulate the allocation of functions, powers and duties among the various agencies and officers of government and define the relationships between them and the public." In my understandings, what finer had tried to explain was the social contract between government and society. Social contract may be is a form of constitution that obey by citizen and enforced by government. Constitution control the allocation in separation of powers,in purpose, to make a check and balance and prevent abuse of power. However, UK has written and unwritten constitution, will it affect the liberty and democracy? Many countries has written constitution but except for UK, Israel and new Zealand. UK has written constitution but UK only have partial written constitution,why? In UK, politician believe UK is strong enough because UK does not have written constitution in thousands years ago but UK operates well, indeed. However, in modern world, some philosopher argued that UK should have a written constitution. Should UK constitution be codified? The answer may vague because it contains advantages and disadvantages where UK has written constitution and unwritten constitution. First, if UK agree to codify the British constitution, the advantages will have few arguments as follow: Accessibility to law. It will easier to educate the citizen as it relatively detailed, leading to certainty and clarity. Citizen will be aware of the law. In addition, due to accessibility to law, human rights of citizen will be strongly emphasized in results, citizen has the legally rights to enforce individual rights without any barrier even against the state. Next, the equality and balance in separation of powers. According to Lord Woolf, such "growing encroachment is a warning that judges may need a written constitution to protect themselves from further political interference." In this statement, in my understandings, if a country without written constitution, it will happen abuse of powers to each others or will form a dictatorship. It will be no liberty and democracy and even rule of law. Judges may need a written constitution to provide protection for themselves and right to fair trial for citizen. Abuse of powers lead to dictatorship, consequently, violence will be everywhere such as Russia. Russia is a communism country. In Russia, human rights is very limited because dictator of the Soviet Union, Joseph Stalin, Russia has no more democracy because of too much powers in alone. A check and balance in separation of powers such as UK, UK has 3 organs which are executive, judiciary and legislature. These 3 organs are controlled to each others. The purpose of UK to form there 3 organs are to avoid dictatorship which has regulated also by written constitution. If have written constitution, these 3 organs will functions in their own certain area and will not have abuse of powers. However, UK largely is unwritten constitution, it may cause some imbalance of powers such as Judges make law, privileges of Parliament may affect human rights and e.t.c. Do Judges make law? Yes, it may because when the written constitution is vague or not existed. When the Judges make law, Judges already abuse the powers of Legislature. The functions of Legislature is to make and pass law. Sometimes, Judges would say "A" law is not a good law,so , Judges using statutory interpretation to interpret law, it may be disobey

the intention of Parliament,so, Parliament supremacy will be affected by what Judges had did in the act. However, in R v Jackson, Lord Steyn argued that the judiciary might have to "qualify" the principle of Parliamentary supremacy. Should Westminster seek to abolish judicial review of flagrant abuse of power by a government or even the role of ordinary courts in standing between the executive and the citizen. In my opinion, sometimes, the judiciary to "qualify" the principle of Parliamentary supremacy in purpose to provide right to fair trial for citizen. Another point is Parliamentary Sovereignty. If there is a written constitution especially Human Rights Act 1998 has been properly drafted, according to Lord Alexander, he argues that whilst our rights ultimately may be enforced at the European Convention on Human Rights, the European Convention on Human Rights should be incorporated into a Bill of Rights, thereby, preventing the need for costly and lengthy trial at Strasbourg which may prove beyond those who most need them. It was submitted, if the written constitution is not properly drafted, it may affect parliamentary sovereignty because where citizen always seek for European Court of Justice helps to seek for their justice, subsequently, how sovereign of UK parliament is? In addition, citizen would need to spend extra costly and lengthy trial, just because UK only has partial written constitution. Next issues is Royal Prerogatives.The absence of written constitution will cause arbitrariness. If the royal prerogatives has been codified, there will not have declaration of war such as the UK former prime minister, Tony Blair had declared war in Iraq. Iraq war is a bloody and dishonour history for UK because it brings violence and shame. However, written constitution also has disadvantages. First, if codify the unwritten constitution, such exercise would consume much time and money. This is also one of the reasons why UK does not need written constitution. Another reasons would be Britain has been stable for a historical time. As historical time, Britain do not have written constitution but still operates well, as such as the saying goes "If it isn't broken, don't fix it." This statements is a very famous statement by UK. In UK, the people themselves would think that if there is operating well, why we need to make changes as per William Hague argued that " there was no need for a written constitution as we already have internal stability and democratic stability and accountability, Britain has been well served by its unwritten constitution." One of the beauty of unwritten constitution is flexibility. Rigid is disadvantages of written constitution. If Parliament do not make any up-to-date from time to time according the need of circumstances, it may lead to anachronistic and unjust in law. However, Parliament do not have time to make any up-to-date or amendment to law because Parliament's duty is not only make and pass law,and also, they may have question time,agenda and e.t.c. This is why we need a unwritten constitution because of its flexibility to law. In addition, as Foley said, all constitution leave important things "unsaid". This rules and practices are more often than not more easily changed than the constitution itself and this quality of their renders formal amendment of the constitution unnecessary while at the same time bringing it up-to-date. This is why UK has convention. Convention is a non-legal sources of UK constitution which is unwritten. If we need convention, Should UK codify convention? It was submitted that it should not be codified because Parliament will have advantages where Parliament will skip the important elements which will affect Parliament sovereignty and supremacy. For example, public confidence in government, cabinet members

may not disclose the contents of cabinet discussions. Besides, if UK do not codify conventions,when deal with passing law, it will be save time and money such as delegated powers of Legislature by Parliament to subordinate without a formal procedure. With this advantages, it will keep the law always up-to-date which also is the advantages of unwritten constitution- flexibility of law. In a nutshell, if UK want to enforce a system is written constitution, it need to be codified with efficiency and effectively, whereas, it would be a anachronistic law which is much easier to be defeated and uselessness. So, there is no perfect system, no matter in written or unwritten constitution because both of them has its own advantages and disadvantages. The best way to bring peace and improvement for the country is balance in separation of powers, and there is one necessity to codify unwritten constitution such as Royal Prerogatives, Parliament should codify it as soon as possible.