CONSTITUTION REVIEW

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CONSTITUTION

1.0 INTRODUCTION

Constitution entails the document that embodies the steps that determine how we do things in the society. It is essentially the embodiment of the most fundamental rules, principles and institutions which constitute the political fabric of a state. Rules are those regulations that govern a particular action, and principles are the underlying premises of these regulations. In essence, this helps to bring order and sanity to the society and for the good governance of the generality of the people.

2.0 OBJECTIVES

At the end of this unit, you should be able to:

  1. explain the essential ingredients of the constitution 
  2.  identify the rights, duties and obligations as enshrined in the constitution 
  3. differentiate between the different types of the constitution. 

3.0 MAIN CONTENT

3.1 Types of Constitutions

There are different types of constitutions. Let us briefly do an overview of each.

3.1.1 Written Constitution

A written constitution is the body of rules and laws that govern a people which can be found in one document. It is a result of a deliberate framing and adoption of a specific document intended to embody most of the fundamental rules and institutions by which a state is to be governed.

From historical accounts, for about the last two centuries, almost all constitutional governments have had written constitutions, usually in the form of a single basic document. It is different from an ordinary law because it defines the fundamental framework and system of restraint within which the state operates. It is in this sense that a written constitution can be referred to as the supreme law of the land. In another sense, it is an embodiment of the political principles and institutional patterns that are so fundamental as to be considered indispensable. Some of the countries that operate written constitutions include Canada, Ghana, India, Nigeria and the United States of America.

3.1.2 Unwritten Constitution

Generally, constitutions are said to be unwritten because they have evolved on the basis of custom rather than on written law. The reference point in this regard remains that of Great Britain. This is because it is a combination scattered in several documents and drawn from diverse sources from the 13th century to the present. The constitution constitutes of four basic elements of which only one is written in black and white.

In the first instance, an unwritten constitution consists of documents and statues which have provided solutions to successive constitutional crisis. These include the Margna Carta of 1215; Petition of Rights, 1628; Bill of Rights, 1689; The Reform Act of 1832 and the Parliamentary Act of 1911. Each of these documents represent a landmark in British constitutionalism.

The second important element of the unwritten constitution is the parliamentary statutes which have brought about important changes in the development of the United Kingdom. These statues were not a product of any dramatic constitutional crisis, but they assisted in effecting fundamental changes that accorded them an important place in the statute books. Some examples of these statutes include those that defined rights and duties of citizens and those laws which helped to broaden the suffrage. In essence, any law of parliament which changes the existing power structure or operation of the British political system becomes a part of the constitution.

The third element of the unwritten constitution is the great mass of laws created by many generations of English judges. The personal right of an Englishman, for instance, freedom of speech, press, assembly and the right to trial by jury are firmly protected by established principles of the common law rather than any Act of Parliament. These principles are essential in restraining the power of the government and as such constitute a vital element of British constitution.

The fourth element of the unwritten constitution is customs and conventions. These conventions are not embodied in written law or judicial decisions, but have gradually evolved over many generations. Conventions are products of long experience in developing workable relationships among the Chief institutions of British government. The only sanction behind these conventions is the force of custom and tradition. It is customary for example, for the cabinet in Great Britain to resign if it meets with a defeat in the House of commons on a major issue.

In general teams, an unwritten constitution evolves slowly in response to dominant social and political forces. It entails therefore that they are not products of a single act or authority but a product of tradition and emerging needs.

3.1.3 Rigid and Flexible Constitutions

A rigid constitution is a constitution which the procedures for amendment are cumbersome and rigourous. Most federal states are known to operate rigid constitutions. There is always the impression that a written constitution is simultaneously rigid and that an unwritten constitution is flexible. However, the major distinguishing factor between a rigid and flexible constitution is not on whether it is written or unwritten, but whether the process of constitutional law making is or is not identical with the process of ordinary law making. Therefore, a constitution which can be amended or altered without recourse to any special agreement could be termed a flexible constitution, while a constitution which requires a special procedure for its alteration or amendment is a rigid constitution. In this regard, constitutions can be differentiated from one another through the method by which they would be amended. The tendency therefore in distinguishing rigid and flexible constitutions is that a constitution which contains a number of legal obstacles to its amendment will be harder to amend or alter, and will therefore be less frequently altered than those constitutions which contain fewer obstacles at all. It is therefore important to note that the case or frequency with which a constitution is amended depends not only on the legal or constitutional provisions or requirements that prescribe the method of change but also on the predominant political and social groups in the community and the extent to which they are satisfied with the organization and distribution of political powers which the constitution prescribes.

3.1.4 Unitary and Federal Constitutions

The nature of the state also determines the type of constitution it operates. Most modern states are either unitary or federal. In accordance with this notion, unitary and federal states can be differentiated from a confederal state. A unitary state is characterized by the habitual exercise of supreme legislative authority by one central government. A federal state on the other hand is a political contrivance intended to reconcile national unity and power with the maintenance of state rights. A unitary state is organised under a single central government. Whatever powers that the various units within the area administered by the central government are held at the discretion of that government, and the central power is supreme over the whole without any restrictions imposed by any law granting special powers to its parts. There is therefore no question of any limitation being placed on the power of the central authority or government by any law making body belonging to any smaller part of the state.

In a federal state, the numbers of the coordinate units unite for certain common and mutual purposes. Under a federal constitution, the powers of the central or federal authority are limited by certain powers which the units retain in furtherance of the common purpose. The constitution in this situation determines the distribution of power between the centre and regional units. The constitution also states those rights that are to be retained by the federating units and those that are taken over by the federal authority.
The third possibility in the distinction between unitary and federal constitutions is a situation where the government of the whole country is subordinate to the component units. It is usual to call such a constitutional arrangement a confederation. Confederation hence, may be used to describe a form of association established to regulate matters of common interest or concern, but retain to themselves greater degree of some control over the organization. It will be misleading to call a central authority of a confederation a government, because their various parts are also governments. ECOWAS remains a good example of a confederation.

SELF-ASSESSMENT EXERCISE 1

Define what a constitution is and explain the various types.

3.1.5 Presidential and Parliamentary Constitutions

A distinction can also be made among constitutions on the basis of the method by which powers are distributed inside the government. In this regard, the constitution can be divided into those which embody to a greater or lesser degree the doctrine of separation of powers, and those which do not embody the doctrine. Put differently, the distinction among constitutions is in line with those who established the Presidential Executive and the Parliamentary or Cabinet system. The doctrine of separation of powers means that each arm of government –Legislature, Executive and Judiciary is confined exclusively to a separate institution of government. It is also assumed that there will be no over-lapping either of function or personnel of government. In U. S. A. for example, the Congress is vested with all legislative powers. The President is charged with the responsibility of executing the laws. While the Judicial powers are vested in the Supreme Court and other inferior courts. This is the basis upon which the constitution of USA has been classified as embodying the concept of separation of powers.

In a Parliamentary/Cabinet system of government, the constitution enjoins that the ministers and the Head of Executive must at the same time be members of Parliament. Therefore, there is no strict separation of powers in a cabinet system between the three arms of government.

Note, however, that even though the American constitution separates the three institutions of government and forbids overlapping of personnel between them, the separation is not absolute. Although the legislative powers are granted to Congress, the President has the right to veto the acts of the congress and his veto can only be over-ruled by 2/3 majority of the Congress and the Senate. Although the Executive power is vested in the President, he must ask the advice and consent of the Senate for the making of treaties and in making important appointments. Although the judicial powers are vested in the Supreme Court and other subordinate courts, the Senate is empowered to impeach corrupt or insane President.

Constitution exists to define legitimate political power as a system of regularising, restraining the power of government and necessarily defines who shall exercise political power, how this power is to be exercised and the unit to exercise the power? Most constitutions therefore have a common pattern, in the sense that they contain statements intended to define the relationships between the rulers and the ruled, the basic institutional framework of government, the right and duties of all citizens and many important procedures that are to be followed in the government of the state.

SELF-ASSESSMENT EXERCISE 2

Compare and contrast Presidential and Parliamentary constitutions.

4.0 CONCLUSION

In this Unit, we have briefly examined various types of constitutions. In the next Unit, we shall look at constitutionalism.

5.0 SUMMARY

Different countries operate different types of constitutions. In this Unit, you have specifically been able to understand the various types of constitutions. Unit 11 will therefore build on this Unit and introduce you to constitutionalism.

6.0 TUTOR-MARKED ASSIGNMENT

  1. Define what you understand by a Constitution. 
  2. Explain the various types of constitution known to you. 

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