Constitution and

Constitutionalism
 Definitions of Constitution
• The word derives from Latin ‘constitutio’
meaning establishment
• Aristotle: state’s way of life.
• C. F. Strong: system of fundamental institution.
• K. C. Wheare: written document outlining the
basic elements of the state, their powers, and
rights and privileges of citizens.
• Bolingbroke: assemblage of laws, institutions
and customs [not necessarily always written.
• Fundamental law of the land. It determines
the state structure, distribute power among
various branches of government and dictates
the right and duties of the citizen.
Methods of Establishing Constitution

1. King’s decree—formal document in

which the Monarch agrees to exercise
power according to certain
rules/principles.
2. Evolution—gradual evolution, e.g., when
the Monarch transfers power to
institutions/people’s representatives.
Methods of Establishing Constitution
3. Revolution—e.g., USSR 1917, Egypt 1954,
Iran 1979.
4. Constituent assembly—where constitution is
drafted by a committee [commission] or an
assembly, and then presented to the people
[or their representatives] for adoption
[rejection]. Malaysia, India, Canada, USA,
Bangladesh.
 Classification of Constitution
• Based on its nature:
1. Written
2. Unwritten

• Based on methods of amendment:

1. Flexible
2. Rigid
 Written Constitution
• Where most of the fundamental principles
of governmental organization are written
down in a document or a series of
documents.
• Advantages:
1. Certain and definite
2. Difficult to violate.
 Unwritten Constitution
• Where most fundamental rules, regulations, rights and
liberties were not written down in a document, but
scattered in various documents or in customs, traditions
and conventions of the country.
• Worked in Britain because of its long tradition of
government, its relatively homogenous society, and its
small size.
• Weaknesses:
1. Less certain,
2. Unclear distinction between constitutional and ordinary
laws.
Written or Unwritten Constitution?
• Every written constitution has some unwritten
elements, and vice versa.
• E.g., in the US, the organization of political
parties, methods of electing the president,
and the procedure of Congress are based on
conventions. In the UK, Bills of Rights
(1689)are written down.
• The difference, thus, is a matter of degree
rather than of kind.
 Rigid Constitution
• Where the constitution cannot be changed
easily like passing ordinary laws.
• Methods of amendment: through
referendum, or ratification by constituent
parts.
• Merits:
1. Limits to government’s power,
2. Constitutional stability,
 Rigid Constitution
3. Clear divisions of power [especially in
federalism],
4. Fundamental rights of citizens are guaranteed.
• Demerits:
1. Inability to cope with dynamic society and
changing conditions,
2. Slow response to constitutional crisis,
3. Too much power to the judiciary to interpret
laws.
 Flexible Constitution
• Where the constitution can be changed easily
by legislature like passing ordinary laws.
Normally through two-thirds majority in the
legislature.
• Merit: its dynamism—ability to cope with
social, economic and political changes.
• Demerit: possibility of abuse by the
government.
 Good Constitution
Characteristics:
1.Definite, and clear in meaning,
2.Written,
3.Comprehensive,
4.Incorporate all fundamental rights of people,
5.Must limit the power of the government,
6.Should correspond to the actual conditions of the
state.
 Constitutionalism
• A political order governed by laws and
regulations. Supremacy of law and not of
individuals.
• “Constitutionalism by dividing power provides a
system of effective restraints upon the
governmental action.” Friedrich.
• Objectives: “to limit the arbitrary action of the
government, to guarantee the rights of the
governed, and to define the operation of the
sovereign power.”
• Relates with limited government: where the
power of the government is limited by
constitutional provisions.