Cate Angelica C.

Lagrada

BSN-III

1.Give the meaning of constitution as many as you can.

 A constitution may be defined as an organization of offices in a state, by which the method of their distrib
utionis fixed, the sovereign authority is determined, and the nature of the end to be pursued by the associa
tion andall its members is prescribed. Laws, as distinct from the frame of the constitution, are the rules by
which themagistrates should exercise their powers, and should watch and check transgressors.
 Constitutions concern different levels of organizations, from sovereign states to companies and
unincorporated associations.A treaty which establishes an international organization is also its
constitution, in that it would define how that organization is constituted. Within states, a constitution
defines the principles upon which the state is based, the procedure in which laws are made and by whom.
Some constitutions, especially codified constitutions, also act as limiters of state power, by establishing
lines which a state's rulers cannot cross, such as fundamental rights.
 Constitutions can declare the official religious identity of the state and
demarcate relationships between sacred and secular authorities. This is particularly important in societies
where religious and national identities are interrelated, or where religious law has traditionally determined
matters of personal status or the arbitration of disputes between citizens.
 Constitutions can divide or share power between different layers of government or sub-
state communities. Many constitutions establish federal, quasi-federal or decentralized processes for the
sharing of power between provinces, regions or other sub-state communities. These may be
geographically defined (as in most federations, such as Argentina, Canada or India), or they may be
defined by cultural or linguistic communities (e.g. the 1994 Constitution of Belgium, which establishes
autonomous linguistic communities in addition to geographical regions).
 Constitutions can declare and define the boundaries of the political community. These boundaries can be
territorial (the geographical borders of a state, as well as its claims to any other territory or extra-
territorial rights) and personal (the definition of citizenship). Thus, a constitution often distinguishes
between those inside and outside the polity.
 A constitution is a set of fundamental principles or established precedents according to which a state or
other organization is governed. These rules together make up, i.e. constitute, what the entity is. When
these principles are written down into a single document or set of legal documents, those documents may
be said to embody a written constitution; if they are written down in a single comprehensive document, it
is said to embody acodified constitution.

2. Types of constitution

Codified, Uncodified, Flexible and Inflexible Constitutions

 That difference between a codified and uncodified constitution is also reflected on the fact that what is
written in the constitutional document becomes a superior law that can only be judged by a Constitutional
Court. This brings us to another classification of constitutions as "flexible", such as the British
constitution that can be amended with ease, and "inflexible", such as the US constitution, which contains
entrenchments that make it very difficult to make constitutional changes. In constitutions of the inflexible
type, it is the constitution, not the legislature that is supreme. Arguably, codified constitutions provide
mechanisms to effect constitutional changes. However, making those changes is not necessarily easy. In
the Canadian Constitution of 1982, the whole of Part V of the constitutional document lays down the
procedures for constitutional amendment, and as a consequence, the constitution is criticised for being at
a standstill.

Monarchical and Republican Constitutions

 Continuing the comparison between the British and American constitutions, a further constitutional
classification is possible: monarchical and republican. In the former, the monarch is the head of state,
although in Britain"s case, the powers of the monarch are limited, and the Queen reigns in accordance
with the constitution. The political power lies with the Prime Minister. Accordingly, a constitutional
monarchy is a limited monarchy. A republican constitution on the other hand, provides for the election of
a President who is the head of state and the head of the government.
  Arguably, the modern concept of a constitution has been attributed to the American Constitution of 1787,
which includes a Bill of Rights, and also to the French Declaration of Rights of 1789. Both constitutions
were created as a consequence of liberation, from colonialism and the monarchy respectively, in order to
promote The Republic, and they had behind them violent revolutions. No longer was a constitution a
body of law, institutions and customs forming the State, but it contained the concept of republicanism: the
people constituting a State.

Presidential and Parliamentary Constitutions

 By the fact that a republican constitution places the power in the hands of the President, while the British
constitution places the power on Parliament, it would be possible to make a further classification of a
constitution as "presidential", or "parliamentary". This affects the way the government operates. In the
case of the former, the President will be the head of state and the head of the executive branch of the
government but not the head of the legislature and not accountable to it. Furthermore, the President is not
a member of the House of Representatives or the Senate. By contrast, in a Parliamentary constitution, the
head of the executive branch of the government is the Prime Minister, who will also be the head of the
executive, and also a member of the legislative branch of the government and accountable to it.

Federal and Unitary Constitutions

 In a federal system such as the one in the US, it can also be said that the constitution is a "federal"
constitution, instead of a "unitary" one. In the former, apart from a central government, there is also
government at state level, with legislative competence under the constitutional arrangements. This is the
case not just in the US but also in Australia, Canada and South Africa. On the other hand, Britain has a
unitary constitution and it is centrally governed. However, this point may now be challenged because due
to devolution powers to Scotland, Wales and Northern Ireland, perhaps there is an incipient federal aspect
to the British constitution.

Political and Legal Constitutions

 A further constitutional classification is a "political" and a "legal" constitution. The former is associated
with holding to account those who hold political power, because it advocates that the making of laws is
the exclusive domain of Parliament, and only when Parliament legislates, does the law become
legitimatised. Behind a political constitution such as the British constitution is the concept of
"majoritarianism", that is, that an elected majority should make the decisions affecting the voters, rather
than leaving those decisions to the courts. In contrast, a legal constitution such as the American one,
empowers the courts, in particular the Constitutional Court to establish the limits of government power.
 Advocates of a political constitution such as Griffith and Tomkins argue that politics is the best way to
exert government control because entrusting government accountability to the judiciary is neither
democratic nor effective, due to the fact that judges do not have the democratic legitimacy of an elected
government. As such, a political constitution is the living representation of the politics that create
it. Perhaps an important difference between a political and a legal constitution is the weight given to the
latter. A political constitution is flexible and changeable while a legal constitution, such as the American
Constitution, has the status of a civil religion or scripture, the constitutional document is held in high
esteem and the Supreme Court has a very high status within the country as the "guardian" of the
Constitution. An example of constitutional zeal is seen in the "Tea Party", which advocates carrying a
copy of the constitution at all times. Furthermore, literal constitutional interpretation by the Supreme
Court has helped to perpetuate the second amendment which allocates a right "to keep and bear arms",
interpreted by the more liberal as applying only to a "well regulated militia" but interpreted by the
Supreme Court in District of Columbia v Heller as allowing the citizens to keep and bear arms regardless
of whether certain states had banned weapons based on public safety.
 Arguably, the British political constitution based on the sovereignty of Parliament has changed through
the enactment of the European Communities Act 1972 (ECA) which incorporated the European Union
(EU) Treaties into the British constitution, allowing also for the primacy of EU law. A further
constitutional change was the incorporation of the European Convention on Human Rights into national
law by the enactment of the Human Rights Act 1998 (HRA), in order to protect fundamental rights which
were not considered to be protected by common law in a sufficient manner or to have proper judicial
articulation.
3. Function of constitution

 The function of a Constitution is to provide for the governmental powers, the legal system, and the rights
of citizens in the nation. The modern model for the proper function of constitutions is provided by
the United States Constitution. Laws that are ultra vires, or “beyond the powers,” may be found with
officials given certain powers under the Constitution but denied others, the latter of which they exercise.

4. Characteristics of good constitution

Clarity or Definiteness:

 By clarity and definiteness we mean that every clause of the constitution should be written such a simple
language, as should express its meaning clearly.

Brevity:

 The constitution should not be lengthy. It should contain only important things and unimportant things
should be left out.

Comprehensiveness:

 It means that the constitution should be applicable to the whole country or besides the central
government, there should be mention of the structure and powers of state or provincial governments.
Mention should also be made about the important matters relating to the rights and duties of the
government and the citizens.

Flexibility:

 The constitution should not be too rigid to hinder the process of amendment when needed.

Declaration of rights:

 A good constitution must contain the fundamental rights of the people. In the constitutions of countries
like India, Soviet Union, China, France, America, Japan and Italy such types of declarations have been
made.

Independence of Judiciary:

 Independence of Judiciary is another quality of a good constitution. The judiciary should not be under the
control of the executive and it should function freely and act as the guardian of the Fundamental Rights of
the people without favour or fear.

Directive Principles of State Policy:

 In a good constitution mention must be made of the Directive Principles of State Policy, because it helps
in the establishment of a welfare state. These principles also serve as a beacon for the government.

5. Classification of constitution

The main bases that have been used for classifying constitutions are:

 form; i.e. unwritten or not written

 contents
 Validity
 effectiveness
 adaptability
 relationships with other laws
FORM

written/unwritten

 If there is a one document (also taken to be a law) which is called the Constitution, the constitution is
often described as written. If there is no such document or law, the constitution is described as unwritten
constitution.
 The main advantage of written constitutions is that most of the primary constitutional provision are more
conveniently available to people. They are contained in one document or law, which can be more directly
followed by both officials of government and the people who are governed. However, the disadvantage of
a written constitution is that it is contained in one law which is given special status and it may be difficult
to change to adjust to changing circumstances.
 The great advantage of an unwritten constitution is that it may be readily adjusted to changing
circumstances that develop. The disadvantages are that it may be able to be changed so quickly as to
provide no adequate guide or control for the actions of people. That depends to some degree on the
mechanisms available for changing the constitution.

legal/conventional

 Most constitutions in the world today, including in the USP region, are expressed as laws or supreme
laws, and so are described as legal. These laws are more precisely the legal effect of the provisions in the
written Constitution, legislation, subsidiary legislation and principles of common law. The reference to
“legal effect” means that the words have to be interpreted by a court. However, some parts of
constitution, particularly the British constitution, take the form of established practices, or constitutional
conventions, and are described as conventional. There might be laws which are component elements, but
predominantly the conventions hold sway. In the British constitution, for example, notions of responsible
and representative government and the relationship between government and the monarch are almost
wholly matters of convention and tradition.

CONTENTS

Unitary or Federal

 A constitution which provides for the important powers of government to be possessed or controlled by
bodies located in one part of the country, often, but not necessarily the geographical centre of the country,
is often called a unitary or centralist constitution. This is because it provides for governmental powers to
be concentrated in one place or centre. The one set of government institutions has final authority for the
whole of the country, although there might be several subordinate regional institutions as well. All
countries in the USP region are of this kind. Fiji, Solomon Islands and Vanuatu have municipal and
provincial councils but these do not have independent authority. The central or national government can
override them as a matter of law.
 A federal constitution creates two layers of government which coexist and are equal in authority; i.e. they
are coordinate rather than subordinate. Federalism divides political authority. It caters for central national
government whilst also catering for regional self-government. The national constitution provides for a
division of powers between the two levels but there are different ways in which this can be done. The
national government might have defined powers with the rest of the powers left to the States (as in
Australia). Or the regional or provincial governments might have defined powers with the rest going to
the national government (as in Canada).

Monarchical/Republication

 The advantage of a monarchical constitution is that the head of state holds office for life and can give
some stability and continuity to the political system. It is not necessary for difficult decisions to have to
be made at frequent intervals as to who should be the head of state. Moreover, the head of state may
acquire a personal adherence or loyalty which may help to unify and stabilise the country. The
disadvantage of a monarchical constitution is that if the monarch is not well-suited, well-trained,
competent or honest enough to perform the office, he or she may cause considerable instability or
disaffection. Also, if the monarch dies having no children or only young children there might be great
difficulties in choosing a successor who is acceptable.
 The advantage of a presidential or republican constitution is that it sets up a system for electing the head
of state. It can also define who can hold office. It might not be open to all residents or to all classes of
citizens. The disadvantage of a presidential system is that the elections may not be very representative of
community feeling, and the voting may become very highly politicized.
Totalitarian/democratic

 A totalitarian constitution is one which provides for the government of the country to be totally controlled
by one person or group of persons, allowing no opposition or rivals. Many would regard the term
totalitarian constitution as a self contradiction or oxymoron.
 The advantage of a totalitarian system is that it allows for all of the energies of the government to be
directed at carrying out its mission for the country. The government is not distracted by having to play the
democratic game. It is not a system where government is dependent on popular support. Most of these
governments claim to be highly efficient and committed to some form of social engineering to improve
the country for the benefit of everyone in the long run by creating extreme burdens and disadvantages for
everyone in the short run.
 In a classical sense democracy is perhaps a system in which the people have a very high level of
participation in their own self-government. However, it is not hard to sympathise with Rousseau’s
comment to the effect that such a system as this has never existed. We might well agree with Abraham
Lincoln’s idea to the effect that democracy is government of the people, by the people and for the people.
But this is very difficult to translate into a system which works acceptably in practice.
 The advantages of a democratic system are usually taken as follows. It can provide for alternative policies
to be developed, some of which may be better than those adopted by the government, and the government
may be prepared to adopt these, or if not, it can be removed from power, and replaced by a government
that does adopt better policies. It provides at least some sense in which people have a say in their own
government even if that is a matter of voting in infrequent elections. Individual rights and freedoms are
protected and the law creates some sense of equality.

“Westminster model” constitution/non- “Westminster model” constitution

 The United Kingdom model of responsible government is normally called the Westminster model.
Naturally enough many former colonies of the United Kingdom have adopted this model. Especially after
World War II, Britain became determined to concede greater independence to as many of its oversees
dependencies as possible. Usually it promulgated for them written constitutions which contained certain
common features: protection of fundamental rights and freedoms for individuals against governments;
constitutional limitations are placed on the Head of State, parliamentary sovereignty, separation of
executive, legislative and judicial powers of government; a system of representative government where
politicians are elected in open elections, a cabinet style of government where the majority party after an
election appoints Ministers of Government who are responsible individually and collectively for the
workings of government departments, and a parliamentary executive, i.e. an executive which is
responsible to, and dependent for support on, an elected legislature.

VALIDITY

Constitutions may be classified according to whether they are recognized by the courts as valid and
binding, or whether they are regarded by the courts as invalid and not binding.

The validity of a constitution depends upon two factors – first, whether it has been made in a way that is
recognized as valid, and secondly, if it has not been made legally, whether it has been made as result of a forceful
overthrow of existing governmental institutions which has the support of the people.

EFFECTIVENESS

Not enforceable in law/non justiciable/ enforceable in law, justiciable

 Usually all the legal provisions of a constitution are enforceable in law by the courts, or, as it is
technically termed, they are justiciable. Occasionally, however, parts of a constitution may be stated,
expressly or impliedly, to be not enforceable by the courts, or, as it is more technically termed, non-
justiciable.

Enforceable in practice, normative – not enforceable in practice nominal

 The advantage of a normative constitution is that people do in fact act in accordance with it, and can
expect that other people will act in accordance with it also. The disadvantage of a normative constitution
is that it may so closely accord with the current conduct of the people, or sections of the people of the
country, that it does not require them to follow patterns of conduct which may be more in the long term
interests of the country or its people.
 The advantage of a nominal constitution is that it may serve as a guide or directive for the people of the
country to change from their current pattern of conduct to a pattern of conduct that is more in the long
term interest of the country. The disadvantage of a nominal constitution is that it may indicate a pattern of
conduct that is inappropriate to the current circumstances of the country, or that is just ignored by the
people or their government.
ADAPTABILITY

Parts of a constitution that may be changed easily, e.g. that require no special procedures beyond those
required for an ordinary law, are usually described as flexible. The legislation and principles of common law that
form part of the constitution are in most countries flexible; that is to say, they can be changed like any other
legislation and principles of common law.

The advantage of a flexible constitution is that it can be changed easily so as to adopt to changing
circumstances in the country, and to ensure that hostility towards the parts of the constitution does not reach a
point where people will react violently and social disorder will breakout.

The disadvantage of a flexible constitution, and the advantage of a rigid constitution, is that if that
constitution, or parts of it, can be changed too easily, by a simple majority, the rights and interests of minorities
may be removed or seriously prejudiced by the majority, or decisions may be made by the majority without
adequate information or assessment.

RELATIONSHIPS WITH OTHER LAWS

If parts of a Constitution have greater legal force than all other parts, so that if they are in conflict they
can override them, and render them ineffective or void, then those parts of the Constitution are described as being
supreme. If, however, parts of a Constitution do not have any greater force than other laws, so that if they are in
conflict with these other laws, they do not override them and render them void, but will be overridden by them,
then those parts of the constitution are described as subordinate.

Legislation, subsidiary legislation and principles of common law which form part of the constitutions of
countries in the USP region in the wider sense are not usually stated to be supreme, and so may be amended and
repealed in the ordinary way, i.e. subsequent legislation and subsidiary legislation will repeal earlier legislation
and subsidiary legislation which is inconsistent with it, and will abrogate or cancel principles of common law that
are inconsistent with it, provided the meaning is plain.

The advantage of parts of a constitution that are supreme is that they cannot be altered by other laws and
will override other laws to the contrary and so they cannot be altered easily. The disadvantage of parts of a
constitution that are supreme is that they may represent, or may come to represent, values or interest, that should
not be isolated against change, and so may entrench within the legal system values or interests that cease to have
general support in the community.