Constitutionalism
Constitutionalism can be said to be a fluid concept flowing
from the concept of a constitution and consequently, a constitutional
government. A Constitution can be defined as a mixture of legal and non-legal
principles (eg. Customs, usages, etc.), which establishes and regulates a
government, defines its relationship with the citizens and places limits on the
powers of the government it creates. Consequently, a constitutional government
is one created and regulated by the constitution which also limits its powers,
as opposed to an arbitrary government which has no restraints on its power and
considers itself to be even above the law.
This classification of a Government as being either
arbitrary or constitutional brings to light a certain concern which needs to be
addressed. This is because it is possible to establish a government through a
constitution, that is arbitrary, undemocratic, with little to no rights given
to the people. Such ideals are generally not associated with the Constitution
of a country, and thus, the very concept of a Constitution seems to be a
fallacy. It is this fallacy which brings to the fore the very concept of
‘Constitutionalism’.
Constitutionalism is a concept that aspires to establish a
democratic political system the Government responsible and accountable to the
people who elect their representatives to such Government, and where limits are
prescribed for the Government’s power through various laws and rules and there
exists a mechanism of checks and balances to ensure that such limits are not
crossed.
The Supreme Court of India has, on many occasions recognised
this concept of Constitutionalism. In Rameshwar Prasad v. Union of India,
(1977) 3 SCC 592, the Supreme Court has defined Constitutionalism as a
political system which rejects absolute power and adopts the concept of rule of
law and objectivity laid down in the Constitution itself. The Supreme Court
further elaborated on this in I.R. Coelho v. State of Tamil Nadu, AIR
2007 SC 861, where importance was given to the concept of a Limited
Government, by stating that Constitutionalism desires control over a
Government’s powers to ensure that the democratic principles on which the
Government is created are not destroyed.
It would suffice that the mere existence of a Constitution
does not form a Constitutional Government. Rather, it is the principles of
Constitutionalism that make a Constitutional Government. Thus, a Constitution
without Constitutionalism cannot be said to have any meaning, as both these
concepts go hand in hand.
Based on this understanding of the meaning of
Constitutionalism, the main principles of Constitutionalism are described in
the following section.
The Main Principles of Constitutionalism
The meaning of Constitutionalism as stated hereinabove
points to the following important pillars of Constitutionalism:
·
Sovereignty of the People
Sovereignty by itself means the possession of
supreme power or authority over a certain domain. This power may be unlimited,
and seem to be contrary to the concept of Constitutionalism envisaged above.
This is because sovereignty is often confused with the concept of a Government.
While sovereignty refers to the existence of power, it is the Government which
exercises these powers, and these powers are limited under a constitution.
Popular Sovereignty, as envisaged as a part of
Constitutionalism, refers to the existence of a sovereign, the legitimacy of
which is derived from the people of a nation. No individual or body can
exercise sovereignty without such authority emanating from the people. The
ultimate sovereignty lies with the people and is consequently exercised by the
Government formed by the representatives of the people.
·
Democracy
Democracy has been popularly defined as a Government
“of the people, by the people, and for the people”. This means that the
Government which is formed to exercise sovereign powers consists of
representatives elected by the people. The Government thus formed is
accountable and collectively responsible for all its actions, to the people of
the nation, since it is the people who possess the ultimate authority or
sovereignty.
·
Rule of Law and Limited Government
The concept of Rule of Law, as laid down by A.V.
Dicey, simply means that the law of the land is supreme, and no one is above
the law, not even the Government or the Monarch. This means that everyone,
including the Government must act within the limits of the law of the land. The
powers, functions and authority of the Government flows from the law itself, to
which the elected Government must conform.
Limited Government is a concept that flows from the
principle of Rule of Law, and means that the Government does not have unlimited
power. Rather, its power is limited by the laws and rules of the Constitution
and the Government cannot, in any situation, exceed such limits.
·
Separation of Powers
The doctrine of Separation of Powers divides the
Constitutional Government into different parts, namely, the legislature, the
executive and the judiciary. The legislature functions as the primary rule and
law-making body of the nation. The executive is the body responsible for the
implementation of the laws made by the legislature. The judiciary ensures that
all actions of these bodies conform to the standards of the Constitution, along
with imparting justice to the people for violation of the laws of the land by
any person or individual.
The powers of the executive, along with the
constitution, are laid down by the legislature in different situations. The
judiciary ensures that these powers of both, the legislature and the executive
conform to the provisions of the Constitution.
This creates a system of constant checks on the
powers of the Constitutional Government, and ensures that there remains a
balance of power between the three organs, in order to prevent any monopolization
of power. Therefore, this acts as an essential tool in achieving
Constitutionalism.
·
Civil and Individual Rights and Liberties
The civil and individual rights and liberties given
to the people under the Constitution is probably the most important principle
of Constitutionalism. These rights and liberties include the rights to life,
equality and non-discrimination, and the liberties of freedom in movement,
speech, religion, and so on. The welfare and interest of the people are
determined in line with their individual rights and liberties, which cannot be
violated by the State at any cost.
A corollary to this concept is that of a Civil
Society, where everyone, including the Government conforms to the law and
respects everyone’s rights and liberties. Thus, it can be regarded as a pillar
on which Constitutionalism rests and is allowed to operate.
·
Subsidiarity and Federalism
This
principle points to the division of powers between the national and local
Governments. Subsidiarity means that the national Government should retain only
that much power as is required for issues that cannot be settled at the local
level. This has evolved into a system of Federalism where the powers of the
national and local Governments are clearly delineated in the Constitution.
While this principle is not as essential as the others mentioned above, it is
important as it ensures that no single body has excess power, and functions are
decentralised.
Phases of Growth of Constitutionalism
The concept of Constitutionalism, as stated before, is
fluid, and has developed over a period of centuries. In its many phases of
growth, the various principles of Constitutionalism were laid down to form the
concept as we know it today. These phases of the growth of Constitutionalism
are as follows:
·
Greek Constitutionalism - Democracy
Early Greek politics were
characterised largely by political separatism due to political instability
caused by varying factors, such as a constant state of war and harsh
geographical conditions. This resulted in the formation of city-states, each
with their own political system. An important aspect in these political systems
was that they involved people ion the decision-making processes, showing the
earliest signs of Democracy. It, however lacked a strong centralized
ruling authority, which was the need to the hour to stop the political turmoil.
Philosophers like Plato and Aristotle, on the other hand neglected this and
advocated different types of rulers within the city-states on the basis of
ethics, which were usually run by oligarchs and monarchs. The former advocated
the need of a strong and powerful ruler, while the latter argued for a
middle-class rule, as the middle class would best achieve the interests of the
richest and the poorest. The flaw here is that both did not look farther than
the existing flawed system.
·
Roman Constitutionalism – Separation of
Powers and Sovereignty of the People
With the establishment of
the great Roman Empire, the city-state system was slowly removed. Ethics and
politics were now separate and the individuals started to grow into a society
with individual rights and freedom of life and equality. A constitution was
evolved by using existing laws, customs and practices, and a Republic started
to emerge. Consuls were appointed in place of the monarch and a Senate
was established as the primary law-making body. Conventions were also held to
take into account the views of the people, representing a Democratic
element to the new system. This system, however, could not stand the test of
time, with autocratic rule being revived after a short period of time. However,
certain principles of Constitutionalism, including most importantly, the fact
that the Sovereignty of the Monarch was derived from the people and did
not belong to one single entity, thus establishing a new kind of monarchical
rule governed by the principles of Constitutionalism.
·
Medieval Constitutionalism – Decentralization
and Subsidiarity
While a shift from the
Greek to the Roman empire led to centralisation of democratic power, the
breakdown of the Roman empire was a time of disintegration and
decentralization. It was a time of statelessness where every lord could conduct
war, and discharge governmental and judicial duties. Christianity in
politics and Universalism was also on the rise, with biblical law
becoming the law of the land. The one major practice where both Christian and
Roman law were in agreement was that the King’s Sovereignty was derived
from the people. While this aspect of democracy continued, civil rights and
secularism were non-existent, and the rule of the Church and Pope was
paramount. This, however, lead to a trend of nationalism when countries like
Spain, France and England broke away from the Church to establish their own
Monarchical systems.
·
Constitutionalism in the Renaissance Period –
Fall of Constitutionalism
The Black Death brought
about the fall of Medieval Europe and the emergence of the Renaissance era.
People had now developed a new sense of life and liberty, as Universalism came
to an end and many sovereign and secular nations were established. However, the process of overthrowing the Pope
to establish a new political order led to the creation of absolute monarchies,
which were undemocratic and unconstitutional at their core. This would,
however, see a big change in the future.
·
British Constitutionalism – Development of
Modern Constitutional Machinery
Absolute Monarchy in
Britain ended with the defeat of the King in a Civil War conducted to determine
who was supreme, the king or the law. The defeat of the King validated the Sovereignty
of the People as opposed to the King. This also meant that the Rule of
Law, as explained before, was established, and A.V. Dicey was one of its
main proponents.
This further led to
demands to reform the Monarchical system and the establishment of a Parliament
in the Glorious Revolution of 1688. At this point, the Parliament exercised
almost unlimited powers, which were curbed through various legislations, resulting
in a Limited Government. The establishment of two different political
parties also meant that the people could vote for those who fit their political
alignments, leading to the rise of Democracy. These developments further
led to the establishment of ministries as the Executive branch of the
Government, which along with the judiciary, would establish a system of checks
and balances as envisaged by the doctrine of Separation of Powers.
While British
Constitutionalism contributed greatly to establishment of Constitutional
Machinery, not much focus was put on civil rights and liberties.
·
French Constitutionalism – Civil Rights and
Liberties
Constitutionalism in
France saw many ups and downs. The first Republic was established along the
ideals of ‘liberty, equality and fraternity’, with special focus of
civil rights and liberties. Soon after, the rise of Napoleon’s dictatorship was
witnessed. The third and fourth Republics focused on a presidential form of
Government and Separation of Powers, but fell due to the growth of
revolutionary conditions in its colony of Algeria. The fifth Republic saw a
strong President and a weak Prime Minister, thus establishing a kind of
monarchical constitutionalism. The most important thing, however, is the
importance given to civil rights and liberties.
·
American Constitutionalism – Rise of Modern
Constitutionalism
The Constitution of
America seems to be the culmination of the centuries of development of
Constitutionalism all over the world. The focus of the Constitution did not lie
in one particular aspect, but covered all essential aspects in great detail.
The Constitution, along with the Bill of Rights laid down the Civil Rights
and Liberties for the people of USA. There was strong emphasis on the Separation
of Powers, especially an independent judiciary which had the power
to strike down a law against the provisions and spirit of the Constitution, thereby
leading to a strong system of checks and balances. The President could be
impeached by the Congress, composed by the representatives of the people. Freedom
of Speech and the Press was also another crucial aspect to maintain the
Government’s accountability to the people. Moreover, this was the first
time a Constitution was truly documented.
·
Constitutionalism and the World Wars -
Internationalism
The World Wars resulted
in great economic and political losses to countries. Thus, after the world
wars, peace and internationalism became important aspects of politics and
Constitutionalism. Examples of this included the Japanese Constitution of 1946,
which explicitly characterised itself as a document of peace, while Article 51
of the Constitution of India directs the State to promote international
relations of peace and harmony. Thus, international relations now became a part
of the Constitution.
Conclusion
The phases of the growth of Constitutionalism show that it
was never a rigid concept set in stone, and constantly needs to be adapted to
the needs of the time. Examples of this can be seen in many countries, like
USA, where universal adult suffrage was granted only by the 26th
Amendment in 1971, despite their Constitutional focus and commitment to civil
rights and liberties. In India, its Supreme Court established the “Doctrine of
Basic Structure”, which received legal recognition for the first time in the
world. It states that certain basic elements of the Constitution cannot be
changed by the Legislature, thus maintaining the integrity of the Constitution.
This can also be a very significant development, not only in Constitutional
law, but Constitutionalism as a whole, with respect to a Limited Government.
Apart from this, there exist many varying concepts of
Constitutionalism. The one discussed here is largely the Western Concept.
Another one, which exists in purely socialist and communist states is the Marxist
Concept, which instead of establishing a limited government, gives it
unlimited powers to achieve the ends of the Constitution, which itself rests on
the pillars of Communism. Examples of countries with such systems include China
and the erstwhile Soviet Union, now Russia. Meanwhile, developing countries are
trying to develop their own Constitutionalism by taking elements from both, the
Western and Marxist concepts. For example, India establishes itself as a
socialist country, despite following the Western concept to a large extent.
Thus, it only furthers the point that Constitutionalism is
not set-in stone, and needs to adapt to the needs of the nation and the period
of time, in order to be relevant.
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