Constitution and Constitutionalism

2.1 Constitution and Constitutionalism

“Constitution is the way of life the state has chosen for itself” – Aristotle

Constitution it the fundamental law of land. It is the supreme law that governs a state. It is a political document clothed with legal status, which reflects the contemporary socio-political system and practices prevailing in a country.

Black Law Dictionary defines constitution as “The Fundamental and organic law of a nation or state that establishes the institution and system of government, defines the scope of governmental sovereign powers, and guarantees individual civil rights and civil liberties”.

Constitution defines the position and power of the organs and actors of the state.

It comprises a set of rules which governs the government. As Tomas Paine remarks, Government without a constitution is a power without a right.

Constitutionalism, a doctrine comprising supremacy if constitution, democratic norms and values, and rule of law as its fundamental elements, holds that the government should be legally limited in its powers, and government`s legitimacy depends on its adherence to these limitations. Those limitations are usually enshrined in the constitution.

Constitutionalism recognizes the need for government with power, but at the same time, insists that limitations be placed on those powers. It acknowledges that checks and balances of powers of government`s organs are essential in order to prevent them from being arbitrary or despotic.

Constitutionalism, as a democratic idea, favors governing power limited by enforceable rule of law, constitutional supremacy, observance of norms and values of constitution, democratic governance system, respect for human rights and civil liberties.

To cut the entire matter in short, Constitutionalism is:

• Foundation of democratic governance system.
• Concept of limited government constrained within the boundary of law, which prevents it to be authoritarian / arbitrary, but not weak government.
• Philosophy of the constitution.
• Antithesis of arbitrary powers.
• Doctrine to ensure rule of law, respect for human rights and civil liberties

Elements of Constitutionalism:

• WrittenConstitution; may be non-written too, but constitutional norms and values must be internalized.
• Constitutional supremacy.
• Ensuring civil and human rights.
• Separation of power, check and balance of power.
• Independent judiciary.
• Provision of judicial review.
• Internalization of the concept of rule of law.
• Limited government.
• Democratic governance system

Types/Aspects of Constitutionalism:

1. Legal Aspect: – Legal Aspect of constitutionalism is concerned with limiting the government under constitution and law. It highlights on reactive and curative measures, enforceable by the courts of law, for the realization of constitutionalism. It encompasses:

• Constitution is considered as the supreme law of land. If laws are inconsistent with the constitution, the law, to the extent of such inconsistency, is void.
• The act of government contrary to constitution to be void.
• The provision of fundamental rights and non-violation of these rights ensured in the constitution.
• Independent, impartial and competent judiciary.
• Provision of judicial review.
• Independent judiciary as a final interpreter of constitution and law.
• Concept of limited government.

2. Political Aspect: – Political aspect is concerned with public-oriented, more democratic constitution and enhancing the effectiveness of governance system. It highlights on proactive and preventive measures, non-enforceable by courts of law, but proactively provisioned in the political system, for the realization of constitutionalism. It encompasses: –

• Representative political system.
• Periodic election renew people`s mandate.
• Adult franchise / suffrage.
• Provision of independent and competent constitutional bodies.
• Internalization of democratic norms and values in political system.
• Pluralism-oriented political system and existence of political parties.
• Rule by majority and respect for minority.
• Vibrant democratic institutions.
• Legislature control and monitoring over executive`s activities.
• Evolution of Constitutionalism: –

Constitutionalism first found its expression in the Philadelphia Convention held in 1787 in the USA, and it was the first nation-state to experiment with a written constitution. The American constitution laid the foundation to the art of Constitutionalism. However, the basic tenets of Constitutionalism can be traced back to the Magna Carta of 1215. The evolution of Constitutionalism can be attributed to a number of events in history, as follows:

• Magna Carta-1215
• Glorious Revolution-1688
• Bill of Rights, 1689 in the UK
• Independence Revolution in the US (1775-1783) and the US constitution-1789
• French revolution-1789
• Establishment of UN-1945
• Universal Declaration of Human Rights-1948
• Treaties and conventions on Civil and human rights.