Chapter 4: Constitutions

Contents

❑ What a constitution is and Why we have them

❑ Separation of Power
❑ Constitutional and Institutional Theories
 Thought-Provoking Question

What was the primary aim of the framers of the

Constitution in creating that document? Why did they
think it was necessary? What did they hope to
accomplish? What did they hope to avoid? Overall, do
you think they were successful? Why or why not?
 What a constitution is, and why we have them

❑Constitution is a set of basic laws that shape and form

of the political structure.
❑It attempts to create Checks and Balances- between
different branches of government in order to prevent
the institution or an individual from having too much
power.
 What a constitution is, and why we have them

In some respects, government is like a game. Constitutions

are the rules of the political game.
Without these basic rules, politics would degenerate into
arbitrariness or anarchy.
Nonetheless, constitutions are important because they
have a profound influence over how the game of politics is
played, and therefore over the outcome of the game –
who gets what, and when?
 Four Main Features
 Constitutions have four main features:
1. Fundamental laws: Constitutions are laws about the political
procedures to be followed in making laws. They are supreme
laws—”meta-rules”, taking precedence over all others, and
defining how all the others should be made.

2. Entrenched status: Constitutions have a special legal status.

Unlike other laws, constitutions usually state the conditions
under which the constitution can itself be changed.
 Four Main Features

3. Codified document: Constitutions are written down, often in a

single document that presents the constitution in a systematic
manner.

4. Allocation of powers: Constitutions outline the proper relations

between institutions and offices of the state, and between
government and citizens.
 7 Basic Principles of Democratic Constitutions

1. Rule of law
2. Transfer of power
3. Separation of powers and checks and balances
4. Relations between government and citizens
5. Locus of sovereignty
6. Government accountability
7. Final arbiter
 Thought-Provoking Question

Check and balance system was built to ensure that no branch

of government could become too powerful, explain how the
three branches check each other.
Have the separation of powers and system of checks and
balances properly restrained the government? Or have they
produced gridlock?
 The separation of powers

Why separate powers?

➢ Democratic constitutions attempt to create limited
government that is accountable to, and responsive to the
will of its citizens.
How?
➢ By dividing power between the executive, legislative and
judicial branches of government, and creating checks and
balances between them.
 Executives
 Most large organisations have a person, or small group, to take final
decisions, decide policies and take ultimate responsibility.

 The executive branch of government, being at the top of the political

pyramid, performs three main functions, decision-making,
implementation, and coordination.

In most modern democracies the executive chief is called a president

or prime minister.
 Legislatures
 Legislatures: The branch of government mainly responsible for
discussing and passing legislation, and keeping watch on the
executive.
 Executives are the decision-making branch of government, and
legislatures are the law-making branch.
 Legislatures are known by a variety of names – assemblies, parliaments,
houses and chambers – but all amount to much the same thing:
 Legislatures may be formed by one (unicameral) or two (bicameral)
houses.
 There is a great debate about whether unicameralism is better than
bicameralism, but it turns out that most democracies are bicameral
(Read p.78).
 Thought-Provoking Question

Explain differences between the weak bicameral

legislatures and strong bicameral legislatures. Explain
why most bicameral systems are weak. Should
Cambodia adopt a strong bicameral system? Why or
why not?
 Strong bicameralism

 Bicameral legislatures come in two forms: weak and strong.

 In strong systems, both assemblies are of equal strength, but since this is
a recipe for conflict – even deadlock – there are rather few cases of
successful strong bicameralism.
 Weak bicameralism
 Most bicameral systems are ‘weak’, which means that one
assembly is more powerful than the other. The stronger (first
chamber) is usually known as the ‘lower house’, while the weaker
(second chamber) is the ‘upper house’, usually called the Senate.

 Weak bicameralism is also known as ‘asymmetric bicameralism’ –

the two houses are of unequal power. Typically in weak bicameral
systems, the lower house initiates legislation and controls financial
matters and the upper house has limited powers to delay and
recommend amendments.
 Thought-Provoking Question

Should politicians be the final judge of how the

constitution should be interpreted? Why or not? Should
judicial review be given to the Supreme Court in every
state? Why or why not?
 Judiciaries

Judiciary: The branch of government mainly responsible for

the authoritative interpretation and application of law.
 Judiciaries

 Should politicians be the final judge of how the constitution should

be interpreted?

 The danger is that the government of the day will try to manipulate
matters in its own interests.
 Judiciaries
 Since a constitution is primarily a legal document, it is argued that
lawyers should be the final arbiter of it.

 Besides, judges (the judiciary) are often thought to be the best

independent and incorruptible source of experience and wisdom on
constitutional matters. This, in turn, requires judicial independence to
protect judges from political interference and from the temptations of
corruption.
 Judiciaries
 For this reason, judges are often appointed for life and paid well. Some
countries have created special constitutional courts, but most use their
regular courts.
 Not all democratic countries accept the principle of judicial review of
the constitution. Some reject it, for two main reasons:
1. It is difficult to guarantee the political independence of the judges.
2. In a democracy, so it is argued, the democratically elected
legislature should have responsibility for interpreting the constitution,
not an appointed and unrepresentative judiciary.
 Judicial Activism
 Judicial activism involves the courts taking a broad and active
view of their role as interpreters of the constitution and reviewers of
executive and legislative action.
 The five main reasons for the expanding role of the courts are:
1. An increasing volume of legislation and government actions
2. The increasing complexity of government machinery
3. An increasing emphasis on the rule of law and rights of citizens
4. A willingness to use the courts as a means of resolving conflict
5. An unwillingness or inability of politicians to deal with difficult
political issues (political hot potatoes)
 Ombudsman

 Another quasi-legal development in modern democratic politics is

the appointment of ombudsmen.
 An ombudsman is a ”grievance officer”, or a state official to whom
citizens can appeal if they feel wrongly treated by public bodies.
 Constitutional and Institutional theories
❖ The ‘old constitutionalism’ (Late 19th and first half 20th century)
Was largely legal, descriptive, and historical, and confined to a few
western states, especially to the UK, the USA, and France.
Many of the constitutions carefully designed (mainly by
constitutional lawyers for the newly decolonized and independent
countries of Africa and Asia) collapsed gave way to dictatorship
and military government because they were not adapted to social,
political and economic circumstance.
 Constitutional and Institutional theories
The ‘new constitutionalism’
Tried to balance out 3 main concerns:
1. The protection of citizen rights and the limitation of
government power
2. A concern with balancing the limited powers and maximum
accountability of government, with the need for effective
government action in a complex and fast-changing world.
3. An attempt to adapt the constitutional design of a country to
its social and economic circumstances. Constitutional theory
tried to solve the problem of how stable democracies could
be established in previously undemocratic countries,
especially in countries divided by ethnic, religious, linguistic,
cultural clevages.
 Constitutional and Institutional theories

The ‘new institutionalism’

Institutions are the framework within which individuals behave.
Political institutions not only constrain what individuals do but also
what they think is possible to do.
Institutions are the product of past political battles in which winners
tend to create particular forms of organization that work on their
own interest. Constitutions embody the outcomes of past political
struggles over how the game of politics is to be played, and by
whom.
Institutions have degree of inertia built into them. Once they
established, they will tend to persist, unless circumstances
encourage attempts to change them.
 Constitutional and Institutional theories
In short, institutions matter. They are political actors in their
own right. They are the products of the society in which they
are embedded, but they also help shape society and its
politics.

Institutions are important and that whether it concerns

reforming an existing constitution or designing new one,
getting the right mix of institution for a society is important for
its democratic stability and quality.
 Constitutional and Institutional theories

❖ Marxist structural theory

According to Karl Marx, a capitalist state was simply a device that
enabled capitalists to stay in power and exploit the workers.
According to Marx, capitalists create and use the institutions of the
state for their own purposes: the police and the courts to protect
capitalist property; schools, universities and established religion to
indoctrinate people into a state of ‘false consciousness’ in which
they cannot even recognize their own best interests; parliament to
give an illusion of democracy; and the military to protect the empire
as a source of profit.
 Constitutional and Institutional theories
❖ Governance
 Government no longer revolves around a few institutions of the central state,
but consists of a much wider and looser network of organizations and
institutions, some private, some public and some a partnership of the public
and private.
 If government is about ‘top-down’, hierarchical power relations organized by
public institutions, and if politics is about ‘bottom-up’ participation of
individuals and groups, then governance is about bringing these two
together by coordinating the activity of the large number of institutions,
groups, individuals and organisations in the public and private sector.
 In short, governance focuses not on a few institutions of the central state but
on a wide variety of institutions, organizations, and associations that blur the
dividing lines between government and the wider society.
Thanks!