Abstract

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.

Constitutionalism

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.