Constitutional Law

B.A.LL.B
Third Semester

Ass. Prof. Padam Pal

Far Western University
Unit - Two
1.2. Classification of Constitution
Concept of constitution
 According to Thomas Paine, Constitution means the
aggregate of only those written principles which regulate
the administration of the state. In the sense that, if the
Constitution can’t be produced in a visible document, it
cannot be said to be a Constitution at all.
 According to K.C. Wheare, the whole system of
government of a country, the collection of rules which
establish and regulate or govern the government.
Cont…
 According to C.F. Strongs, A Constitution may be said to
be a collection of principles according to which the powers
of the government, the rights of the governed and relation
between the two are adjusted.
In sum;
 The fundamental and organic laws and principles of a
country or state that create a system of government and
provide a basis against which the validity of all other laws is
determined.

 The fundamental and organic law of a nation or state that

establishes the institutions and apparatus (tools) of
government, defines the scope of governmental sovereign
powers, and guarantees individual civil rights and civil
liberties.
Classification of constitution

1. Classification on the basis of forms of constitution

a. Written constitution

b. Unwritten constitution

2. Classification on the basis of process of amendment

c. Rigid constitution

d. Flexible constitution

3. Classification on the basis of head of state

e. Republic constitution

f. Monarchial constitution
Classification of constitution

4. Classification on the basis of nature of executive

a. Parliamentary constitution

b. Presidential constitution

5. Classification on the basis of power distribution

c. Federal constitution

d. Unitary constitution
Classification of constitution
 Classification according to the form by which Constitutions
are embodied (basis of forms)
• Written Constitution

• Unwritten Constitution
Cont…
 Written Constitution
 A written/codified constitution is one contained within a

single document or a series of documents, with or without

amendments, defining the basic rules of the state.
 The written are such constitution which are codified in a

single document.
 A written constitution means which the

fundamental principles concerning state administration

are embodied and which has, as a specific document,
been passed by a specific body.
Cont…
 A constitution is said to be written when it is found in a
single document.
 The written constitution will be the fundamental law of
the land and will be a kind of higher law. For e.g. the US
constitution, Indian constitution, constitution of Nepal
etc. are the written constitution.
 Written constitution is found in almost every country of
the world, except in the United Kingdom.
Cont…
 The written elements of the constitution constitute legal
constitution. For example, the Constitution of America
can be read in a few hours, but one can’t get real and
complete information about the constitution.
 It has been argued that written constitutions seek to avoid
a concentration of power in the hands of anyone organ of
government by adopting the principle of separation of
powers, vesting legislative power exclusively in the
legislature, executive power in the executive, and judicial
power in the courts.
Cont…
 The origins of written constitutions lie in the American war of
independence (1775-83) and French revolution (1789).
 As KC Wheare;
 If we investigate the origins of modern constitutions, we

find that, practically without exception, they were drawn

up and adopted because people wished to make a fresh
start, so far as the statement of their system of
government was concerned.
Cont…
 The circumstances in which a break with the past and the
need for a fresh start come about vary from country to
country, but in almost every case in modern times,
countries have a constitution for the very simple and
elementary reason that they wanted, for some reason, to
begin again.
 This has been the practice certainly since 1787 when the
American constitution was drafted, and as the years
passed, no doubt imitation (copy something else) and the
force of example have led all countries to think it
necessary to have a constitution.
Cont…
 The idea of a written constitution is a legacy of the
revolutionary period in 18th and 19th century in Europe
when, with mixed success, widespread uprisings challenged
traditional aristocratic, colonial, and religious regimes.
 Since the French Revolution (1789) almost every nation
has adopted a written constitution, sometimes as a reaction
against a hated previous regime and sometimes to mark a
new event such as independence from colonial status.
Merits of written constitution
 One of the major advantages of a written constitution is that
it can be easily consulted. Written constitution makes it
very easy for citizens to make reference to the constitution
as the only Supreme law of the land.
 Written constitution promotes (establishes) the supremacy
of constitution. Written constitution is supreme law of land.
 Written constitution is usually rigid in nature because of its
mode of amendment and it cannot be frivolously tampered
with, although it can be amended when found necessary.
Cont…
 It is easy to understand the content of the constitution because it
is found in one document and can be read and understood by the
people to know their right and duties.
 It avoids dictatorship by rulers; Written constitutions usually
spell out the organs of government, their powers and duties and
their relationship.
 It reduces the incidence of friction between the various arms
and organs of the government, since their powers and functions
are clearly spelt out and limited by the constitution.
 A written constitution may help to ensure stability and also
promote the principle of separation of powers amongst the
organs of the government.
Demerits of written constitution
 Written constitution is rigid by nature as it follows certain
prescribed process. Therefore, it can’t be changed as per the
will of people.
 The written constitution may be simple, clear, precise but it
can’t cover all the aspect of law and society.
 Written constitution only follows the text of constitution,
therefore people feel hand to believe in unwritten parts.
 The written constitution can’t address the people’s will
instantaneously due to its rigidity, therefore there is high
chance of political instability.
Cont…
 The judiciary has sole right to interpret the constitution;
exercising which, sometimes it may be more active which
can lead to the arbitrary of judiciary.
 Elected parliamentarian can’t perform their ask properly as
written constitution firmly limits their power.
Unwritten constitution
 Unwritten constitution means, the constitution has not been
passed formally as a specific document by a specific body
and the fundamental principles concerning state
administration exist in political customs, Judicial decisions
and in some scattered documents.
 An unwritten constitution means a constitution that is found
in various writings - in statutes, law reports, parliamentary
standing orders work authority, and so on. For e.g. the
British Constitution is the unwritten constitution
Cont…
 Unwritten constitution are those constitution which are not
codified in a single document; likewise Braitain.
 According to Dr. Gamer, an unwritten constitution is one
whose major portion is not written. Mostly it includes
customs and the decisions of the courts. Such type of
constitutions is not framed by any Constituent Assembly.
Thus the constitution is not enacted but it is evolved”.
 When the conventions and decisions of the courts are added
to legal constitution, it becomes the real constitution.
Cont…
 The unwritten constitution is found in the United Kingdom
where the foundation of the legal system is covered by the
doctrine of the legislative supremacy of the parliament and
therefore, much greater importance attaches to Acts of
Parliament and also to judicial decisions.
 According to KC Wheare, it is better to say the constitution of
Brairtain is non codified constitution than unwritten constitution.
In Braitainn there are many written laws as per the constitution;
likewise Magna Carta 1215, Petition of right 1682, Bill of right
1689, Act of settlement 1700, Parliamentary Act 1911, Human
Rights Act 1998, Supreme Court Act 1991 ect.
Example of non – legal rules
 Government can only run till the parliament believes in it.
 The queen is compelled (obliged) to accept the bill passed
by the parliament.
 The bill related to finance should origin from the lower
house.
 The bill needs to be read for three times before final vote.
 Parliament meeting should be held annually.
Merits of unwritten constitution
 Unwritten constitution can be easily amended and modified
as per the will of the people and the need of time.
 Unwritten constitution can easily and quickly accommodate
itself as a form of statute.
 Unwritten constitution provides equal importance to the
statute and customary law. Therefore it covers wider range
of people’s right unlike the written constitution which
recognizes only the written rights.
Cont…
 Unlike written constitution, the judiciary has no sole right
to interpret the constitution; therefore there is less chance of
anarchy of the court.
 There is a wrong belief that “we can only get, what is
written”
 It can be changed according to the need, as a result,
political stability can be achieved.
Demerits of unwritten constitution
 Constitution is considered as fundamental law. But in
unwritten constitution there is no difference between
constitution and other law. So that, the person’s right which
are guaranteed by the constitution can’t be ensured by
unwritten constitution.
 It is unclear and difficult to understand due to lack of single
document.
 Unlike the written constitution, unwritten constitution can’t
guarantee the right of people.
Cont…
 Due to easy amendment process, sometimes unwritten
constitution can be misused or it can be changes more than
needed.
 It is easy to amend, therefore the rights of people may not
be guaranteed like in written constitution.
Classification of constitution
 Classification on the basis of power distribution
a. Federal constitution

b. Unitary constitution
Classification of constitution
 Federal constitution
• The constitution which divides the power of government

to central and provincial level is called federal

constitution.
• Under federal constitution, provinces conduct their

administration of their state freely.

• Federal constitution provides two tires of government and

in federal constitution there is power sharing between

federal and provincial government.
Merit of federal constitution
 Power is allocated in both centre and provinces.
 There is equal participation and opportunity for the
development to all the people.
 Federal constitution tends to be less autocratic as the
government is well aware about the situation of the place.
 The federal system is appropriate in large countries with
multicultural, race, religion etc. to provide equal
opportunity and access to all the people of all religion,
culture, cast etc.
Cont…
 The local people get more opportunities to show their skill,
use their resources and create sound opportunity for
employment, education, health etc.
 Allocation of local resources in equal balance.
 Decentralization of the power helps people to get the
facilities and services easily.
 It ensures social inclusion by the means of proportional's
election or appointment method.
Demerit of federal constitution
 Federalism contains two or more tiers of government which
increase unnecessary burden of expenditure on the state.
 In case of division of power between central and provincial
level the unnecessary disputes between central government
and the state government can also increase and conflict will
be raised.
 In federalism, the people get more used to and loyal to the
provincial government as they receive most of their services
and facilities from there. As a result, there may be decrease
national unity among the people.
Cont…
 Right to self determination leads to the fraction of states.
 Regular conflict struggle on many issues among the state
and central government.
 Unnecessary grief (pain) of people due to double
government system.
 Laws are ambiguous (double meaning) due to dual legal
system.
Classification of constitution
 Unitary constitution
• The constitution which is limits all the state power to a

single central government is unitary constitution.

• Under unitary constitution state is administered as a

whole by a central government.

• There is single government in unitary constitution and

central government exercise their power solely.

Merit of unitary constitution
 A single government keeps control over the administration
throughout the state.
 Unlike federal constitution, a single government has control out
the administration of state; as a result there is no more
expenditure in the state governance.
 Unitary constitution is fruitful for small country as it does
require much resource.
 There can be implementation of full decentralization.
 There is no chance for dispute between provincial and federal
government.
 Central government takes fast decision in important issues.
Demerit of unitary constitution
 Difficult to balance division of national resources.
 Less important to local rights.
 No protection of minority rights.
 No equal development/no balance development.
 Arbitrariness of government.
 Depend upon centre for everything.
 Difficult to solve local problem.
 Chance to revolution.
 Not suitable to big country.
 Rigid and flexible constitution
Rigid constitution
 The constitution which requires special and complex
procedure for the amendment is called rigid constitution.
 The constitution in which amendment is made after long
and difficult process is called rigid constitution.
 It is usually found that, the constitution of federal states is
rigid.
Merits of rigid constitution
 The rigid constitution can't be amended fast; therefore it is
clear, sustainable and fixed.
 There is less chance of the legislative dictatorship because
of the role of legislative is less than judiciary.
 It helps to protect the right of people and rule of law.
 It helps to protect the fundamental rights and the
government can’t curtail the right of people.
 It ensures political stability as it can’t be repeatedly
amended.
 It’s amended according to the will of people.
Demerits of rigid constitution
 It is difficult to address the will of the people fast of it’s rigidity
nature.
 It doesn’t quick response the dynamic society therefore it can create
the revolution, conflict and infrequently split in the country.
 It disvalues or doesn’t give importance to the parliamentary
supremacy, therefore the representatives look after other organs for
the amendment of the constitution.
 Due to the rigidity nature, it doesn’t amended as per the need of time
means to increases the judicial anarchism.
 Outdated and improper provision are not amended timely, then unlike
the spirit of democracy, present is rule by past.
Flexible constitution
 The constitution which can be amended by adopting simple
procedure is called flexible constitution.
 If amendment is made as in ordinary law through easy and
fast process is called flexible constitution.
 It is usually found that, the constitution of unitary states is
flexible.
Merits of flexible constitution
 It is amended according to the will of people, so there is less chance
of the conflict and revolution.
 It has much emphasis to the power of legislature to amendment as per
the need. Power providing to legislature is providing power to citizen.
 It can be easily amended to address the problem during the emergency
time.
 There is no chance of present being ruled by the past, as the past error
is corrected timely in present.
 There is no chance for judicial anarchism as legislature holds the
power to amend as per the need.
 Flexible constitution is progressive constitution.
Demerits of flexible constitution
 There may be chance of political instability due to its easier
amendment process.
 Political instability may hinder the development of nation.
 The ruler may easily curtail the right of people.
 The constitution amendment is only made by majority; as a result it
may be used as a tool of majoritarian government.
 If the right to amendment is given to federal parliament, it can curtail
the right of provinces and local level.
 Republican and Monarchial Constitution
Republican Constitution
 Recognizes the president as the head of the state.
 America, India, Nepal etc. have republican constitution.
 On the basis of right and power of the head of the state, they are
divided into active and ceremonial head of the state.
 Active head is active in the ruling and ceremonial head is passive in
the ruling of the state.
 Republican constitution has adopted the presidential system or
parliamentary system in the state.
 In presidential system the president has dual role as head of nation
and head of government, i.e. America.
 In parliamentary system the president has ceremonial role only, i.e.
Nepal, India etc.
Merits of Republican Constitution
 Republican constitution declare that any common people can become
president, who is the head of the state and head of government. Also it
is considered as a democratic system.
 It is more responsible towards the public.
 In parliamentary system, the president plays the passive role and have
can’t do any wrong act. In Britain, “King can do no wrong” principle
had pronounced.
 It doesn’t give any importance to the descendants (clan), and it is not
compulsion to accept the king.
 President is elected by the people therefore s/he is more responsible
towards the people.
Demerits of Republican Constitution
 With the changed of president, the policies and programs can be
changed and this may lead to political instability.
 It is more expensive and complex due to the time to time conducting
election.
 There is more chance to bias in the function and responsibility of
president being influenced by supporting party.
 President may be responsible towards the public but may not be
responsible towards the country. King is more responsible towards the
country due to their decent.
Monarchical Constitution
 Recognizes the king, queen or emperor as the head of the state.
 Britain, Bhutan Japan and Saudi Arab etc. have monarchical
constitution. Before 2065B.S. Nepal was also monarchical.
 A Monarchical constitution is actually a dynasty where the monarch is
succeeded by his or her child or other heir from generation to
generation or from one ruling house to another.
 On the basis of right and power of the head of the state, the
constitution is divided into absolute, ceremonial and constitutional
monarchical constitution.
Monarchical Constitution
 Absolute monarch plays active role and has absolute ruler. He rules by
divine right and his powers were not limited by the constitution and
ceremonial and constitutional monarch plays the passive role with
ceremonial head of state and a symbol of the nation with only limited
powers.
 In present time most of the country in the world have adopted
democratic practices and popularity of monarch is reduce.
Merits of Monarchical Constitution
 The king isn’t affiliated any political party and other officials, so s/he
can function independently without biasness.
 Balance is still provided in the government.
 There is mere probability of political stability.
 Under ceremonial monarchy, the principle of “king can do not wrong”
is recognized.
 King loves the country and support and promote democratic practice
because his descent regularity.
 There is no need for election to choose head of the state therefore it is
less expensive. It can be cheaper to run a monarchy.
Merits of Monarchical Constitution
 The transfer of power tends to be smoother. During the transfer of
power in a monarchy, there are fewer complications.
 A monarchy typically maintains a stronger defense and monarchies
usually have the strongest armies and defensive protocols.
 It can be a more efficient form of government because decisions run
through the ruling class, and often through a specific individual.
Demerits of Monarchical Constitution
 Common people have no chance to be appointed the head of state
because the head of state is appointed on the basis of descent.
 There is more chance of anarchy (disorder) and despotism as there is
remove a king only after his death.
 The status of king is ascribed (by birth); as a result, they are not
responsible towards the people. Monarchy promotes nepotism and
favoritism in state.
 It is difficult to change the direction of a country under a monarchy.
 Tyranny (dictatorship) is easier to form in the structure of a monarchy.
 Independent justice is not present unless it is specifically built into the
government.
 Class discrimination is more prominent.
 Presidential and parliamentary constitution
Presidential Constitution
 Presidential constitution is that kind of constitution where all the
executive powers are vested with president who is head of state and
head of the government.
 The president may exercise the executive powers of government either
directly by himself or through the vice president, minister or other
officers in the public service of the country.
 The powers of the president is to maintain the constitution and to
apply all the laws made by the parliament for the time being in force.
 The constitution of USA can be taken as an example of presidential
constitution.
Features of Presidential Constitution
 In a presidential system of government, the president is both the head
of state and the head of government.
 The principle of separation of powers where the executive arm of
government is separated from the legislature and the judiciary applies.
 The principle of collective responsibility that takes place in the
cabinet system does not apply in the presidential system.
 The president is elected by the electorates either directly or indirectly
through an electoral collage and not chosen by the legislature.
 Supremacy of the constitution and rule of law in the country.
 There is a fixed tenure of office for the president.
 There is the principle of checks and balances.
Merits of Presidential Constitution
 Stable executive: It establishes a stable executive which does not
depend upon the changeable will of the legislature.
 Better policy implementation: The tenure of the executive is fixed
and, therefore, the policy is carried without any fear or favor.
 Direct reflection of people’s choice: As the President is elected by
the people, it is a direct choice rather than being elected MP.
 Better administration: President can appoint anyone as secretaries
(minister equivalent). The President has a wider choice and he may
appoint efficient people without any party affiliations.
 separation of powers: There is a clear separation of powers among
the three organs of government which prevents misuse of powers.
Merits of Presidential Constitution
 Faster decisions: In Presidential constitution the head of state is more
powerful, hence faster decision making is possible.
 Stability in politics: The president cannot be removed from office
before the end of his tenure of office unless impeached as a result of
violation of the constitution or through death.
 Full control of the executive arm: The president has effective
control of the executive arm of the government. The president, has the
power to discipline any minister who is not performing we.
 Democracy: The president is elected by the people’s vote so it’s taken
as a democratic system.
Demerits of Presidential Constitution
 Autocratic: The presidential system appears to be autocratic because
the President is empowered to act more or less in his discretion.
 It may lead to dictatorship: Since powers corrupts and absolute
power corrupts absolutely, the over concentration of powers in the
president can corrupt him and make him to be a dictator.
 Irresponsible: It is irresponsible because the executive is made
independent of the legislature.
 Lack of co-operation: Its failure to ensure the co-operation between
law-makers and administrators. Frequent conflicts between the
legislature and the executive may lead to deadlocks.
 Lack of accountability: There is no continuous accountability of the
executive to the representatives of the people in the legislature.
Demerits of Presidential Constitution
 Inelastic: It is inelastic because, once the President has been elected,
the nation must continue with him, no matter whether it likes or
dislikes his policies.
 Deadlock on important issues: Frequent conflicts between the
legislature and the executive may lead to deadlocks.
 It is difficult to control the president: Since the president is both the
head of state and a government, it may be difficult to control him.
Another reason for this is because, he is not responsible to the
parliament.
Parliamentary Constitution
 Parliamentary constitution is a type of constitution where all the
executive powers of the government are vested in a Prime Minister,
who is the head of government and the head of the majority party, but
is not the head of state.
 In countries where this type of constitution is practiced, the head of
state who exercises only ceremonial functions may be a monarch, or a
president, who is the figure head, symbol of the state and the Father or
mother of the nation as the case may be.
 It is important to note that most times, the prime ministers in the
cabinet are all members of the same party or coalition equals.
Parliamentary Constitution
 Ivor Jennings called the parliamentary system as ‘cabinet system’
because the cabinet is the nucleus of power in a parliamentary system
 The legislative branch conducts its business through a unicameral (one
house) or bicameral (two houses) Parliament.
Feature of Parliamentary Constitution
 Nominal and Real Executives
 Double Membership
 Collective Responsibility
 Prime Ministerial Leadership
 Majority Party Rule
 Bicameral Legislature
 Political Homogeneity
 No fixed term
Merits of Parliamentary Constitution
 Harmony between Executive and Legislature: There is close
harmony and cooperation between the executive a legislature.
 Responsible and Clean: Council of Ministers as a whole is
responsible to the legislature and the individual ministers are also
individually responsible to it for their respective acts.
 People’s Government: The Parliamentary executive has been much-
admired as the real government of people because the members of the
legislature, as representatives of people.
 There is less chance for government to be anarchical.
 It follow the norms of democracy more vibrantly.
Demerits of Parliamentary Constitution
 Weak Separation of Powers: In this system, the principle of
separation of powers is violated by ruling ministers who are also the
members of parliament.
 Unstable Government: The parliamentary system does not provide a
stable government. There is no guarantee that a government can
survive its tenure.
 No Continuity of Policies: Due to the uncertainty of the tenure of the
government, usually the followed policies of the government will be
changed.
 Dictatorship of the Cabinet: When the ruling party enjoys absolute
majority in the Parliament, the cabinet becomes autocratic and
exercises nearly unlimited powers.
Demerits of Parliamentary Constitution
 Government by amateurs: Parliamentary government is a
government by amateurs. Ministers who head the administrative
departments do not have specialized knowledge.
 The Prime Minister is loyal to his party: The prime minister is
usually loyal to his party and not the people because he is directly
elected by virtue of being the leader of his party.
 Conflict Between the Head of State and Head of Government
 Government can’t function independently and always under the
control the parliament.