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Introduction to Constitutional law

4.1 Meaning of constitution

According to Concise Oxford English Dictionary: A constitution is A body of


fundamental principles or established precedents according to which a state or other
organization is governed.

Thomas Wheare defined constitution as “the whole system of government of a


country, the collection of rules which establish and regulate or govern the
government”. [1966, p 1]

For his part Paine explained “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 right . . . A constitution is a thing antecedent to a government; and a
government is only the creature of a constitution”. [1792, Pt II, p 93].

A basic definition of a ‘constitution’ would be a body of rules regulating the way in


which an organisation or institution operates. However, when the term ‘constitution’
is used in the context of a State’s constitution the definition is a little more complex.

The constitution of a State would be expected to:

 Establish the organs of government. Traditionally, this would consist of a


body responsible for legislative functions; a body responsible for executive
functions; and a body responsible for judicial functions;
 allocate power between those institutions;
 provide for the resolution of disputes on the interpretation of the
constitution; and
 Establish procedures etc. for the amendment of the constitution.

4.2 Evolution of Constitution

When did the story of the Constitution begin? Some might say it began over 2500
years ago in the city-states of ancient Greece. There might place its beginnings
nearly three-quarters of a millennium back in the fields of Runnymede. Still others
might say the Constitution had its origins three centuries or so ago during the
tumultuous years of the seventeenth-century English revolutions. Or others, more
patriotic perhaps, might date the beginnings of the Constitution from events in the
Western Hemisphere, from the Mayflower Compact, the Massachusetts Charter of
1629, or from any number of charters and constitutional documents that the colonists
resorted to during the first century and a half of American history.

This problem exists because much analysis was devoted the analysis of the
evolution of particular constitutions of countries. Excavations in modern-day Iraq by
Ernest de Sarzec in 1877 found evidence of the earliest known code of justice,
issued by the Sumerian king Urukagina of Lagash ca 2300 BC, Perhaps the earliest
prototype for a law of government.

Some 320 BC Aristotle has made distinction between ordinary law and constitutional
law. The most basic definition he used to describe a constitution in general terms
was "the arrangement of the offices in a state".

In England, Henry I's proclamation of the Charter of Liberties in 1100 bound the king
for the first time in his treatment of the clergy and the nobility. This idea was
extended and refined by the English barony when they forced King John to sign
Magna Carta in 1215. The most important single article of the Magna Carta, related
to "habeas corpus", provided that the king was not permitted to imprison, outlaw,
exile or kill anyone at a whim—there must be due process of law first.

The Americans did not only establish the modem conception of a constitution as a
written document defining and delimiting the powers of government, but they also
made a number of other significant constitutional contributions to the world, including
the device of a convention for creating and amending constitutions, the process of
popular ratification of constitutions, and the practice of judicial review by which
judges measure ordinary legislation against the fundamental law of the constitution.
During these brief forty years of great constitutional achievements between 1763 and
1803 the story of the Constitution of 1787 is only a chapter. But it is a crucial and
significant chapter. It is hard for us today to appreciate what an extraordinary,
unforeseen achievement the Constitution of 1787 was.

The Purpose of A constitution

Why do countries have constitutions? There are many reasons for creating a
constitution and these are set out below.

To ensure Stability and Order

All countries have a constitution of some description because all societies require
rules and organisation in order to ensure stability. Without a set of basic rules there
would be no structure or organisation and chaos would ensue. Constitutions help
ensure that a state achieves its primary goals and objectives.

The legitimacy of Government institutions

The constitution ensures that the governing institutions (Congress/Parliament,


President/government and courts) should have constitutional legitimacy and so
govern with the consent of the people. In other words, by agreeing to and endorsing
the constitution, the people confer legitimacy on it and the institutions created under
it.

To mark a watershed
A state constitution is generally founded to represent a break with the past and so
represent a watershed in terms of the history, politics and institutional structure of
that particular state. For example, the creation of a constitution may well follow. The
creation of a new constitution will enable that country to draw a clear line under its
past and give it the opportunity to establish a new state apparatus with new
institutions governed by principles which have the clear approval of the people.

To limit a government Power

As a constitution establishes institutions and invests them with public powers and
responsibilities, it is the hallmark of a democratic constitution that these institutions
are controlled, regulated and checked by the constitution itself. In other words, a
constitution must not only allocate and distribute public power, but must also ensure
that the use of that power is checked; otherwise public power will be misused and
abused at the expense of the citizen.

To Affirm particular Values and Goals

Most constitutions are by their nature man-made and so drafted with certain
underlying principles and goals in mind. These could be, for example, the promotion
of democratic values, open government, the welfare and public good of the citizen or
the attainment of religious aims.

4.3 Fundamental Qualities of Good Constitution

1. Well Written:

It must be well defined and precise. It should not have ambiguities and obscurities of
language, because this may lead to conflicting interpretations.

Such a constitution will depend for its interpretation on the whims of the judges. In
this respect a carefully drafted written constitution is more satisfactory than an
unwritten one, as a written constitution is the result of careful thought.

An unwritten constitution, on the other hand, is indefinite and unprecise because of


the vague character of the convention and the traditions, of which it is generally
made.

2. Comprehensiveness:

A constitution should be sufficiently comprehensive, covering the whole field of


government. The powers of different organs of the government and various
functionaries of the state must be clearly demarcated. A constitution that is detailed
becomes a plaything in the hands of judiciary.
The U.S. Constitution is an example of a very brief constitution. It is matter of
common knowledge that this constitution is what the Supreme Court makes of it.

A good constitution should not omit the main fundamentals and at the same time
does not enter into needless details, since a detailed constitution is also liable to give
rise to constitutional disputes. Besides, a detailed constitution indicates a sort of
distrust in the various organs of the government and hampers its natural growth.

3. Declaration of fundamental rights:

A constitution should provide for a bill of rights for the people. It has become a
necessity in the modern democratic age. It should also make adequate provision for
the protection of individual liberty by providing for appeal to the law courts.

4. Suitability:

Lastly, a good constitution should represent the needs of the time and should be
suitable for social, political and economic needs of the people. "Legal sovereign
should coincide with political sovereign."

5. Independence of Judiciary:

Independence of Judiciary is another quality of a good constitution. The judiciary


should not be under the control of the executive and it should function freely and act
as the guardian of the Fundamental Rights of the people without favor or fear.

6. Flexibility and endurance

The constitution should not be too rigid to hinder the process of amendment when
needed, it should also be prepared to serve for long time, and longevity quality gives
the constitution and the state to be stable for long time.

4.4 Kinds of constitutions

Written or Unwritten

A written constitution was one in which the rules of the constitution were located in a
written document entitled ‘The Constitution’. For example, the constitution of the
United States can be found in the document called the ‘United States Constitution’,
which contains seven Articles along with their various amendments.

an unwritten constitution would be one in which the major constitutional rules of the
state could not be found in a single written document – as in the United Kingdom

Flexible or Rigid
A flexible constitution is one where all the laws of that constitution may be amended
by the ordinary law-making process. The United Kingdom has a flexible constitution.

A rigid constitution is one where the laws of that constitution can only be amended
by special procedures. Consequently, the constitution is ‘entrenched’. In other words,
it is protected from being changed by the need to comply with a special procedure.

For example, the United States has a rigid constitution that cannot be amended by
the passing of an ordinary piece of legislation (an Act of Congress). A special
procedure has to be followed, which requires there to be:

1) A two-thirds majority in each House of the Federal Congress (the legislative


body), followed by:

2) The acceptance (ratification) of at least three-quarters of the individual states that


make up the United States.

A further example: In the Republic of Ireland, a Bill passed by both Houses of


Parliament, a majority of votes in a referendum and the assent of the President are
required to change the constitution.

Fused or separated

Separated r is a constitution that adheres to the doctrine of the separation of powers.


Fused is one that does not, so that certain organs of the State have a range of
powers.

De Smith claims that constitutions can also be classified as presidential (e.g. the
United States) or parliamentary (e.g. the United Kingdom).

Federal or Unitary

A federal constitution is one where government powers are divided between central
(federal) organs and the organs of the individual states/provinces that make up the
federation. For example, the United States and Canada have federal constitutions. If
there is to be any change in the distribution of power between the federal organs and
the state organs, there must be amendment of the constitution using a special
procedure.

A unitary constitution is one where all government power rests in the hands of one
central set of organs.

Monarchical or republican:

(a) In a monarchical constitution, the Head of State is a King or Queen, Who inherits
her position by birth, rather than through democratic elections, and State powers are
exercised in their name
(b) In a republican constitution, the Head of State is a President. And the power
ultimately derives from the people

De Smith claims that constitutions can also be classified as presidential (e.g. the
United States) or parliamentary (e.g. the United Kingdom).

In a parliamentary system the people choose representatives to form the


legislature. The legislature will be responsible for scrutinising the executive and
consenting to laws. There is usually a separate Head of State who formally and
ceremonially represents the State but who has little political power.

In a presidential system the leader of the executive, the President, is elected


independently of the legislature. The President appoints the rest of the executive,
who are often not members of the legislature. The President is also the Head of
State.

4.4 Constitution Making Process

The constitution-making process of nation will be people driven. Every citizen has a
duty and responsibility to participate. It prescribes five different phases in which the
constitution making process will be undertaken.

Preparatory Stage
One of the first steps towards crafting a new constitution for a nation was the
appointment of the Select Committee on the Constitution Making Process.

Consultation Stage
The second stage of the Constitution making process was that of public consultation.
During this stage, outreach team members visited people in the various parts of the
country to gather their views on what they wanted to be included in the constitution.

Drafting Stage
The third stage would be the drafting stage. This stage entails converting and
collating the views of people gathered during the outreach phase and translating
them into a draft constitution.

All stakeholders’ conference


During the fourth stage, there would be a second all stakeholders' conference where
the draft
Would be reviewed and adopted before a referendum is done in the fifth stage.

Referendum
During the referendum, the people of the nation will vote whether they accept or
reject the constitution.
Process of Amendment
A standard approach is to apply the expectations of constitution-making to
amendments. In this logic, amendments are to be carried out by specifically elected
constituent assemblies, or at least submitted to referenda. Where referendum is the
principal form of constitutional lawmaking, amendment is also by referendum, as in
Switzerland. The alternative is to grant amendment power to ordinary legislation but
add super-majority requirements and special procedures for cooling down periods.
Germany is an example of this approach which may offer very limited protection: in
Slovakia, 60 percent of parliamentarians in a single chamber may pass constitutional
amendments. In the Dutch-Norwegian system, parliament is entitled to make
changes but under very strenuous political conditions, which make the populist
political abuse of the process politically very costly or at least risky. The basic idea is
that after a super-majority has adopted an amendment, the legislation has to be
dissolved and the amendment has to be adopted by the newly elected parliament
within a short period of time.

4.5 Basic principles of constitution

Supremacy of constitution

Where a constitutional document does exist, it represents a form of law superior to


all other laws in the state. T is may be implicit, but it is common for it to be stated in
the text of the constitution itself. T us s 2 of the South Africa Constitution (1996)
states that:

This Constitution is the supreme law of the Republic; law or conduct inconsistent
with it is invalid, and the obligations imposed by it must be fulfilled.

Any law (or conduct) which is in conflict with the constitution may therefore be
declared to be unconstitutional by a court of law. Such a declaration will have the
effect of rendering the law invalid. T e task of determining the constitutionality of
legislation is of en assigned to a specially constituted Constitutional Court. Thus
under the South Africa Constitution, the task of determining constitutional matters
may be performed by the Supreme Court of Appeal, a High Court, or other courts of
similar status, but it is the Constitutional Court which is the highest court in all
constitutional matters. It alone has the competence to decide matters such as:
disputes between organs of the state in the national or provincial sphere concerning
the constitutional status, powers, or functions of any of those organs of state; the
constitutionality of any parliamentary or provincial Bill; the claim that Parliament or
the President has failed to fulfil a constitutional obligation; or, the constitutionality of
any amendment to the constitution.

Rule of Law
The rule of law is a notoriously difficult concept to pin down. There has been much
discussion among academics, lawyers and political scientists about precisely what it
means. It is capable of both a narrow definition, and a wide definition.

At its simplest, the rule of law involves three propositions, as set out by A. V. Dicey in
his book, An Introduction to the Study of the Law of the Constitution (1885).

1. Nobody can be punished unless they are proved in court to have broken a law.

2. Nobody is above the law – the courts treat everyone equally.

3. The courts will provide a remedy for any breach of an individual’s legal rights.

Dicey’s definition of the rule of law has been criticised for being too narrow. While it
emphasises the importance of formality, certainty and equality in the law, it does not
acknowledge that a corrupt State could oppress its people using laws which are evil
and unfair. Thus two pre-requisites are very important for Rule of Law to be efficient:

First, people must understand that it is in their interests, as well as in that of the
community as a whole, that they should live their lives in accordance with the rules
and all the rules. Secondly, they must know what those rules are’.

Separation of Power

The separation of powers is an ancient political idea, which can be traced back to
Aristotle and was perhaps most thoroughly explained by the French jurist,
Montesquieu, who based his analysis on the British constitution of the early 18th
century.

The doctrine is based on the notion that there are three distinct functions of
Government –legislative, executive and judicial functions. According to the
doctrine in its basic form, these three functions should be vested in distinct bodies so
that excessive power is not concentrated in the hands of one body. To do otherwise
could lead to abuse of power or what Montesquieu termed ‘tyranny’.

An example of Separation of powers in UK

Branch Function Example


Legislature (i.e. in the Makes law, giving powers Parliament enacts the
UK, Parliament) to the Executive to run the Terrorism Act 2000, giving
State the Government the power
to ‘proscribe’ (ban)
terrorist
group
Executive (government) Governs the State, using The Government produces
the a list of proscribed groups
legal powers granted by whom they believe to be
the involved in terrorism
Legislature
Judiciary Interprets and applies the A group seeks a judicial
law, restraining the review of the
Executive where it goes Government’s
beyond its legal powers. proscription of them, on
the
grounds that they claim
not to be involved in
terrorism

CONSTITUTIONALISM, SUSTAINABLE DEVELOPMENT AND GOOD


GOVERNNANCE

INTRODUCTION

Although commentators appear to find it difficult to define the term constitutionalism,


in essence it means government (or the institutions of the state) acting in
accordance with the rules and principles enshrined in the constitution, thereby
resulting in limited constitutional government. Generally speaking anything allowed
by a constitution would be considered as ‘constitutional’ (ie conforming to, and acting
strictly within, the parameters permitted by the constitution). In countries which
adhere to the ideas of limited government, however, constitutionalism would demand
that there is sufficient control on the power of the government. In other words, a
constitution should not be merely descriptive – simply describing the powers of the
governing institutions – but must also control and check that power through the
constitution. The rationale behind constitutionalism is to prevent an abuse of public
power by the state institutions.

There is a fundamental contrast between constitutions which limit power and


constitutions which exist at the pleasure of those in power. Most countries have a
basic document of government called a constitution. There were constitutions in the
former USSR, other former communist countries, the former South Africa, China and
current communist and other totalitarian regimes, where governments and
legislatures professed or profess to function in accordance with their constitutions.
The Constitutions confer wide ranging power on and discretions to governments to
suppress and oppress their peoples. Can it be said that constitutional government
has prevailed or prevails in these countries?

Constitutionalism seeks to prevent arbitrary government. At its most generic level,


arbitrariness consists in the capacity of rulers to govern willfully—that is, with
complete discretion—and to serve their own interests rather than those of the ruled.
Constitutionalism attempts to avoid these dangers by designing mechanisms that
determine who can rule, how, and for what purposes.

THE BASIC PRINCIPLES OF CONSTITUTIONALISM

 The governing institutions should be separated in terms of personnel and


functions.
 The basic rights of the individual should be safeguarded and protected
 In exercising public power, state institutions must act strictly within their legal
limits
 There must exist an independent court system staffed by impartial judges to
check the use of public power.
 Basic democratic and other principles and values must be adhered

POLITICAL CONSTITUTIONALISM AND LEGAL CONSTITUTIONALISM

The main aim of constitutionalism is to protect the country from arbitrary power;
arbitrary power was defined as the capacity of one individual or group to dominate
another—that is, to possess the ability to rule them without consulting their interests.
To be dominated in such an arbitrary way was to be reduced to the condition of a
slave who must act as his or her master wills. However, there is disagreement of
what as to what precisely counts as an arbitrary act and which mechanisms offer the
best defense against their occurring.

Political constitutionalism identifies arbitrariness with domination of the ruled by their


rulers and seeks to avoid it by establishing a condition of political equality
characterized by a balance of power between all the relevant groups and parties
within a polity, so that no one can rule without consulting the interests of the ruled.

Legal constitutionalism on the other hand identifies arbitrariness with interference


with individual rights and seeks to establish protections for them via the separation of
powers and a judicially protected constitution.

SUSTAIBANBLE DEVELOPMENT

The planet is facing big problems in terms of sustainable development. On the one
hand, a large amount of people are living in extreme poverty, measured in economic
terms as well as with a multi-dimensional poverty measure; on the other hand, there
is increasing over-exploitation of natural resources that is leading to an important
environmental crisis that will bring enormous costs, risks and uncertainties, including
possible major loss of life (Milanovic 2012; White 2007: 403; UNEP 2012).

In order to deal with these problems, the international community, embodied in the
commission that published the report Our Common Future. Sustainable development
is defined as: “Development that meets the needs of the present without
compromising the ability of future generations to meet their own needs”
(WCED 1987: 15).

The definition was understood to have three main dimensions, environmental, social
and economic sustainability.

Environmental:
An environmentally sustainable system must maintain a stable resource base,
avoiding over-exploitation of renewable resource systems or environmental sink
functions, and depleting non-renewable resources only to the extent that investment
is made in adequate substitutes. This includes maintenance of biodiversity,
atmospheric stability, and other ecosystem functions not ordinarily classed as
economic resources.

Economic:
An economically sustainable system must be able to produce goods and services on
a continuing basis, to maintain manageable levels of government and external debt,
and to avoid extreme sectoral imbalances which damage agricultural or industrial
production.

Social:
A socially sustainable system must achieve distributional equity, adequate Provision
of social services including health and education, gender equity, and political
accountability and participation.

GOOD GOVERNANCE

The concept of "governance" is not new. It is as old as human civilization. Simply put
"governance" means: the process of decision-making and the process by which
decisions are implemented (or not implemented). Governance can be used in
several contexts such as corporate governance, international governance, national
governance and local governance.

Since governance is the process of decision making and the process by which
decisions are implemented, an analysis of governance focuses on the formal and
informal actors involved in decision-making and implementing the decisions made
and the formal and informal structures that have been set in place to arrive at and
implement the decision.
Good governance was defined by the World Bank as “the manner in which power is
exercised in the management of a country’s economic and social resources for
development”

Francis Fukuyama defined governance as “a government’s ability to make and


enforce rules, and to deliver services, regardless of whether that government is
democratic or not”

Elements of good governance

Good governance comprises the existence of effective mechanisms, processes and


Institutions, through which citizens and groups articulate their interests, exercise their
legal rights, meet their obligations and mediate their differences. Its essential
characteristics are:

(a) Participation: All men and women should have a voice in decision-making,
either directly or through legitimate intermediate institutions that represent their
interests. Such broad participation is built on freedom of association and speech, as
well as on the capacity to participate constructively.

(b) Rule of law: Legal frameworks should be fair and enforced impartially,
particularly the laws on human rights.

(c) Transparency: This concept is built on the free flow of information. Processes,
institutions and information should be directly accessible to those concerned, and
enough information should be provided to render them understandable and
monitorable.

(d) Responsiveness: Institutions and processes should serve all stakeholders.

(e) Consensus orientation: Good governance should mediate differing interests in


order to reach broad consensus on the best interests of the group and, where
possible, on policies and procedures.

(f) Equity: All men and women should have equal opportunity to maintain or improve
their Well-being.

(g) Effectiveness and efficiency: Processes and institutions should produce results
that meet needs while making the best use of resources.

(h) Accountability: Decision-makers in government, the private sector and civil-


society organizations should be accountable to the public as well as to institutional
stakeholders. This accountability differs depending on the organization and whether
the decision is internal or external to an organization.

(i) Strategic vision: Leaders and the public should have a broad and long-term
perspective on good governance and human development, together with a sense of
what is needed for such development. There should also be an understanding of the
historical, cultural and social complexities in which that perspective is grounded.

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