Constitutional law

By Ayana Simachew, Assistant professor

November 2022
• Unit One
• Introduction: Some concepts Related to constitution:

• 1. State -

2. Government

3. Sovereignty
 1. State
• Different political thinkers have provided various definitions and
theories of a state.

• Thomas Hobbes, John Locker and Jacques Rousseau are among the
famous political thinkers. Before going to definition, see the theories.
• Thomas Hobbes - Social Contract theory
• t is a war “of every man against every man”. There are three
reasons conflicts appear in Thomas Hobbes’
• state of nature: competitiveness, diffidence, and glory
• According to Hobbes, men by nature live constantly fighting each other.

 To live together men need to have a sovereign organ that defends them from injuring each other
and foreign aggression. This organ is a state.

 Hobbes believed that in man's natural state, moral ideas do not exist.

 Thus, in speaking of human nature, he defines good simply as that which people desire
and evil as that which they avoid, at least in the state of nature.

 Hobbes uses these definitions as bases for explaining a variety of emotions and
behaviours.
• According to Hobbes, the state must have unlimited power and
should not be subjected to any other organ or law.

• . John Locker (1632-1704)

 -He discussed the natural rights of men.

 According to him, men are born with rights to life, liberty and property.

 This right could not be taken from men even by the government.

 The state should operate through Consent of men and cannot violate these rights.
 Jacques Rousseau (1712-1778)
 He mentions the need for the existence of full and constant consent of
citizens.

 State is essential but with full consent of Citizens.

 Definition: - A state is a political association with effective sovereignty over a geographic area and
representing a population.
• State consists of four elements:

1. A. Population
 There can be no state without population.

 State is the result of a fundamental need of living together.

 No Standard can be set regarding the number of people in the state.

• E.g. China 1 .41 Billion citizens

• Nauru in the South -, 600 citizens

2. Territory

 Like a population, territory is indispensable for the existence of state.

 Without a fixed territory, no state can exist.

 Like in population state vary in territory

 The are states with large territories. e.g the former USSR covered 1/6 of the land surface of the globe.

 There are also state with small territory

• E.g Nauru 8 square miles

• Malta 90 square miles

 3. Sovereignty
 This is most necessary element for the existence of state.

 Sovereignty means the ultimate authority (power) to give decision.

 The state has its own sovereignty to pass any decisions over its territory.

 The state is internally supreme and externally independent.

 E.g If a state wants to enact a new law; it does not require the permission of any other state.
• But, no state has unrestricted power in internal or external matters.
• This does not mean that a state has absolute.

4 Government
 One element of a state

 Government is an instrument of the state through it implementing it purpose.

 It is a machinery (agent) in which a state acts to promote and safeguard the interests of population and maintain its
territorial boundaries.

 All citizens of a state are not part of government.

 Government includes elected, appointed officials who carry out the function of state.

 State us government (state is deferent from government)

• State is usually permanent and continuing but government is changeable ( government may be frequently be changed
 International law recognizes state as international person having rights and duties but this is not true
government.

 A government consist of three organs

 The legislative-to determine laws of state

 The executive-to implement

 The judiciary – interpret laws

 The powers and functions of government are defined by the constitution of the country.
• Generally, the concept state refers to the entire nation which, includes the permanent population,
defined territory, (the land, air, sea), effective government and Sovereignty.
• Whereas a government refers to the state management, state administration which laid down within
the ambit of the legislative, executive and judicial power.

• Definition and distinguishing features of Constitution

• Defining constitutional law
• There are different types of laws-constitutional law is one among these laws
• Constitution is a public law
1. Constitutional law may be defined as a law of laws or supreme law up on which other laws and customary
practice shall abide by it.

Because constitutional law creates constitutional institutions and these constitution creates a system of government.
The system of government brings about stability and predictability.

• Constitutional institutions are organs of government established by the constitution.

• 2. Constitutional law is as a body of fundamental laws and principles according to which a political state
governed.

• Establishes organs of government

• Defines the powers and function of organs these organs and the relationship b/n government and it citizens.

• Sets limitations on the government powers in its relation with persons with in the state.
3. Constitutional law is also defined as the fundamental and organic law of a state that contains the principles on
which government is governed .

4. Constitution is a political and legal document. Its ultimate objective is to establish a government lay down the
guiding principle and limit the power of govt by guaranteeing individual freedoms and liberties that cannot be
touched by any government organ.

. Basic Features of constitutional law

• Constitutional law has its own characteristics that distinguish it from other laws. These features are discussed
as follows;

• A. Constitution establishes organs of a government, defines their functions and re/ships. Other laws do not do that.
 • E.g FDRE constitution has established executive organ, legislative and the judiciary.

• Similarly FDRE constitution established HR Commission, Ombudsman office, and Election Board
Auditor General.

B. . Constitutional law provides some issues about the r/n b/n individuals and government

• Constitution does not only define power and functions of government but also lists rights of
individuals limit the power of government.
• C. A constitution is thought to be permanent. When a constitution is drafted, it’s assumed to serve the maximum time. It
should not be changed with the change of government.
• When constitutions are drafted, it should be done based on real political, economic and cultural ---situations of a country.
• When constitutions are drafted, it should be done based on real political, economic and cultural ---situations of a country.
• US Constitution 1787 Philadelphia convention about 235 years but amended 27 times.
• Swiss Const, 1848
• German Basic law , 1919
• French Constitution 1795

D. Constitution is a supreme political and legal document.

• It’s political because;

1. It -a body of principles and rules in it different policies are reflected in the constitution itself.

2. Constitution is made by the people – there is public participation to make the constitution.
• Its legal document b/c every citizen and state officials and government organs abide by it.
• All laws are subordinate to it.

• Democracy and Constitutionalism

• 1. Democracy
1. The concept of Democracy

• What is Democracy?
 Literally, democracy means rule by the people.

 Democracy comes from a Greek ‘Demos’ means people and ‘Kratos’ means rule.

 Democracy is a form of government in which major decision of government is made by the people
(directly or indirectly) .

 Abraham Lincoln – defined it as Government of the people, by the people, for the people’
 • Types of Democracy

1. Direct Democracy (pure democracy)

• It is a form of democracy in which decisions is given by directly by the whole

people.

• This was mostly exercised in ancient Greece where there was any small
population (not more than ten thousand).

• Representative (indirect) Democracy- is a form of democracy in which decisions are

exercised through representatives.
 • Features of Democracy

1. Freedom of expression – exchange of ideas,

-Freedom of speech

Freedom of press

 This is the main feature of democracy

 When citizens elect their leaders in democratic society, they can influence the policies of their
government.

 This cannot be done without discussion and understanding of public issues.

2. Free and Fair elections
- In democratic government elections are done periodically.

- The election should be free and fair universal secret ballot.

3. Majority rule and minority right

- When the majority gives decisions, the rights of minority are not ignored.

- In a democracy when decisions given by majority, the minority should get consideration.
3. Political parties

- In a democratic form of government, there should be multiparty system.

4. Division of power

- The power of government should be divided and limited by the constitution.

- Horizontally- executive, legislative and judiciary

• The power of each branch of government should be limited by law.

• Powers should not be concentrated in the hands of one person or one institution.

-
• Cornerstones of democracy include :
• freedom of assembly,
• association,
• property rights,
• freedom of religion
• and speech, inclusiveness
• and equality,
• citizenship,
• consent of the governed,
• voting rights,
• freedom from unwarranted governmental deprivation of the right to life and liberty, and minority
rights.
• Theory of Democracy

• There are different theories regarding democracy. One of these theories are going to explained in the
following.

• A. Government by Consent
• -According to this theory, the powers of government must derive from citizens.

• The consent of the citizens is the essential element to determine who has the right to rule.

• -This theory related to the theory of representative democracy.

• - According to John Locke (1632-1704) representative democracy (government) depends on the consent of
its citizens.
• -
 • Every citizen in the country should have a say through which he can express his
consent.

• - According to Locke, all men are born with rights to life, liberty and property.
These rights are in alienable.

• - Government do not have power to take these rights

• According to John Locke (1632-1704) representative democracy (government)
depends on the consent of its citizens.

• Every citizen in the country should have a say through which he can express his
consent.
 -Therefore, the government and the laws are based on the agreement with the citizens.

-The power of the government must be limited in that government should not arbitrarily
----the rights of people.
• According to Locke, if the government is found to deprive the rights of people, the people
should rebel against and overthrow it and replace it by another government.

• Consent refers election.

• Government should come ---through consent of citizens.

 • The central idea of this theory is that government should come to power through the
consent of citizens.

• Consent refers that citizens should elect their leaders.

• Consent is expressed though regular and periodical election.

B. Theory of pure democracy (participations of citizens in the activities of the state )

• This theory was proposed by Jens Jacques Rousseau (1712- 1778)

• ‘Men are born free, but where they are in chain’

- A government to be legitimate, just and acceptable and right, it should not dominate the people.

- A government to be legitimate, it should allow the continuous participation of the people in the
activities of the state.

- When citizens participate in the day to day activities of the government, democracy will be developed.

- Therefore, in addition to giving its consent though election, citizens should participate in the activities
of the government.
 • 3. Good Governance
- It is good administration

- Governance is the process of decision making and the process by which decisions are implemented, or
not implemented.

- Good governance has 8 components /features

1. participation

- Participation of both men and women is a corner stone of good governance.

- People participate in the activities of government.

- Participation may be direct or representatives.

2. Rule of law

- Laws should be implemented by independent and impartial judiciary

- Protection of HRS particularly the rights of minorities.

• 3. Transparency

- The decisions and activities of government should be communicated.

- There should be access to information to the public.

• The activities of government should known to the people.

• 4. Responsiveness

- This means that institutions of government should serve all the public in reasonable time framework.
 5. Consensus oriented
• Different interest group of the society must agree on some common values.

• There should be agreement on some common issues( values)

6. Equity and inclusiveness

- The idea is that all members of the society are important to the development of a nation.

- All members of the society must feel that they are important to the development of a nation.

- Some groups should not be excluded from the society.

- All groups including the most vulnerable groups should be given a chance.
 7 . Accountability

- Accountability is a key requirement of good governance.

- The idea is that both government institutions and private sector and civil society organization must be
accountable to the public.

• They are accountable for their acts and decisions to the public
8. Effectiveness and Efficiency

- Institution should satisfy the needs of the society by protection of environment and sustainable use of
resources.

Rule of Law-
-Rule of law is ambiguous term that can have different meanings in different contexts.

-The 1st person who defined rule of law professor Albert Venn Dicey, in his book entitled ‘the law of the
constitution’ (1895) has defined rule of law in to three ways:
1. Rule according to law

 This means that governments exercise its power in accordance to well established and clearly written
rules, regulations and legal principles.

 This principle means absolute supremacy of regular laws as opposed to arbitrary power of the
government.

 Under this concept no person may be punished for an act if it is not punishable by law. In order to
punish individuals for their criminal act, there must be written laws and regulations.
• Before imposing civil or criminal liability on individual citizens, a law must be written in clear and
precise way.
• These laws and regulations must be made by the organ which has the power to enact law in the
constitution.

2. Rule under the law

 No one is above the law

 The rule of law requires the government should exercise its authority under the law.

 This requirement is sometimes explained with the phrase ‘no one is above the law’
• This means that the law is supreme to whoever person and at what position level he/she is.

• 2. This is the same as equality before the law or equal subjection of all classes to the
ordinary law administered by the ordinary courts.

 Equality before the law means that every citizen is equal before the law when he appears
before the law / courts/

 No discrimination among people whether rich or poor officer or layman or women or men.
 3. Under modern constitutional system, the power of government does not have unlimited
power. The power of government should be limited.

 The authority and powers given to one branch of the government is limited.

 HRS and freedoms are one limitation of the power of the government.
3. Rule according to higher law

• -This means that no written law may be implemented by the government unless it confirms with
certain unwritten, universal principles of fairness, morality and justice.

• Even if there is promulgated law, it must be considered in light of these principles.

• -Such universal principle are reflected under the constitution and thus when we say rule according to
higher law we saying that all legislative, executive and judicial decision must be evaluated according
to the constitutional provisions.
 Example:-

- During world war II Nazi German (Hitler) made law to commit genocide against Jewish and other
minorities.

• When Nazi officials are prosecuted by allied force, they argue that this act of killing of Jews was
made in accordance to dully enacted law.

• But their defense (their argument) was rejected by numbering trial, and Nazi officials found liable by
genocide and crime against humanity and they were convicted and sentenced.

• Therefore, government should not violate fundamental rights and freedoms of individuals by
enacting laws by their parliament.
• Former UN Security General, Kofi Anan in one of his speeches defined it

• ‘principle of governance in which all persons, institutions, entities public and private, including the
state itself are accountable to laws that are publicly promulgated, equally enforced, and independently
adjudicated, laws which are consistent with international HRS norms and standards’

• This definition is similar Alber Venn Dicey