The Meaning of a Constitution PDF

# The meaning of a constitution ## Summary The starting point of this chapter is to consider what is meant by the term 'constitution'. It distinguishes between written and unwritten constitutions and notes the special procedures that may need to be employed in order to amend written constitutions....

# The meaning of a constitution ## Summary The starting point of this chapter is to consider what is meant by the term 'constitution'. It distinguishes between written and unwritten constitutions and notes the special procedures that may need to be employed in order to amend written constitutions. Constitutions are frequently classified according to their characteristics. Several of the more common classifications are therefore explained in this chapter. The chapter also considers: whether constitutions have any value; the unwritten nature of the UK constitution; the position of the monarchy under the UK constitution; and whether the UK has a constitution. Finally, the chapter ends by recognizing that there is an argument that the UK should have a written constitution. ## What is a constitution? This straightforward question admits of more than one answer depending upon the context in which the word 'constitution' is used. In its broadest sense, a constitution can be defined as being a body of rules which regulates the system of government within a state. It establishes the bodies and institutions which form part of that system, it provides for the powers which they are to exercise, it determines how they are to interact and coexist with one another, and, perhaps most importantly of all, it is concerned with the relationship between government and the individual. In his *Five Constitutions*, Finer defined constitutions as: - codes of rules which aspire to regulate the allocation of functions, powers and duties among the various agencies and officers of government, and define the relationships between them and the public. And Professor King in his Hamlyn Lecture offered the following definition: - A constitution is the set of the most important rules that regulate the relations among the different parts of the government of a given country and also the relations between the different parts of the government and the people of the country. ## A superior law Where a constitutional document does exist, it represents a form of law superior to all other laws in the state. This may be implicit, but it is common for it to be stated in the text of the constitution itself. Thus s 2 of the South Africa Constitution (1996) states that: - This Constitution is the supreme law of the Republic; _law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled_. Any law (or conduct) which is in conflict with the constitution may therefore be declared to be unconstitutional by a court of law. Such a declaration will have the effect of rendering the law invalid. The task of determining the constitutionality of legislation is often assigned to a specially constituted Constitutional Court. Thus under the South Africa Constitution, the task of determining constitutional matters may be performed by the Supreme Court of Appeal, a High Court, or other courts of similar status, but it is the Constitutional Court which is the highest court in all constitutional matters. It alone has the competence to decide matters such as: - disputes between organs of the state in the national or provincial sphere concerning the constitutional status, powers, or functions of any of those organs of state; - the constitutionality of any parliamentary or provincial Bill; - the claim that Parliament or the President has failed to fulfil a constitutional obligation; - or the constitutionality of any amendment to the constitution (s 167(4)). The South African courts have the power to make an order concerning the constitutional validity of an Act of Parliament, a provincial Act, or any conduct of the President. However, an order of constitutional invalidity has no force unless it has been confirmed by the Constitutional Court In the case of the United States, the Supreme Court acts as a guardian of the constitution. However, this role was not allotted to it by the constitution itself. Rather, the court assumed the role: see _Marbury v Madison_ (1803). Thus, to use Professor King's terminology, here we see an example of the relationship between the small-c and the Capital-C constitutions and how an important development in the rules of the former has facilitated the better protection of the latter. ## Amendment Documentary constitutions often provide for their own amendment. This will sometimes be necessary to reflect the changes that have occurred within society, thus preventing the constitution from becoming an historical anachronism. Since the constitution is the supreme law within the nation or state, it is unlikely that it will be capable of being amended in the same way as other laws. Usually, a special procedure will have to be followed in order to effect a change to a documentary constitution. In the case of the Canadian Constitution (1982), the whole of Part V of that document (arts 38-49) is given over to the procedure for amending the constitution. By contrast, the Australian Constitution (1900) and the Indian Constitution (1949) have only one section or article (s 128 and art 368 respectively) that lays down the procedure for constitutional amendment. Amending the Indian Constitution would appear to be a more straightforward process than amending either the Canadian or Australian constitutions. Article 368(2) provides that: - An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, [it shall be presented to the President who shall give his assent to the Bill and thereupon] the Constitution shall stand amended in accordance with the terms of the Bill. Where the intention is to effect particular amendments relating to certain specified articles of the Indian Constitution, or to amend the representation of Indian states in Parliament, a further procedure must be followed. This requires that the amendment is ratified by the legislatures of not less than one-half of the states by resolutions to that effect passed by those legislatures before the amending Bill is presented to the President for assent. An attempt to amend art 368 itself must also comply with this additional procedure. This takes us into the realms of entrenchment and double entrenchment. ## Classifying constitutions ### Written or unwritten Constitutions may be classified in a variety of different ways. As we have already seen, constitutions may be written or unwritten, in the sense that they either exist or do not exis in a documentary or codified form. This is, however, a rather crude classification. It says nothing about the actual content of the constitution or the system of government within the state. Moreover, it does not help us to distinguish between one constitution and another since, as we have already noted, virtually all constitutions are written. Therefore, we must look to other ways in which constitutions have been classified. ### Flexible or inflexible One classification commonly used is to refer to constitutions as being either flexible or inflexible. Flexible constitutions are generally considered to be those which can be amended or altered with comparative ease. Inflexible constitutions are those where amendment is rather more difficult. Usually this will be because the constitution requires that a special procedure is followed (see para 1,9). The UK constitution tends to be regarded as a flexible constitution in that it can be amended simply by passing an Act of Parliament: there is no special procedure to be followed. Thus the repeal of the European Communities Act 1972 on the day that the UK leaves the EU (exit day), will take back the sovereignty that was surrendered by the Act when the UK joined what was then the Common Market. ### Monarchical or republican A further classification which is adopted refers to a constitution as being either monarchical or republican. The UK constitution falls into the former category, although as we shall see in the chapters that follow, the personal powers of the Queen are limited. A republican constitution provides for the post of a President. In some states, the President is effectively head of state and head of the government. This is the position in, for example, the United States and South Africa. In other states, however, the President may be the head of state but not have any real political power. In Ireland, for example, the President is the head of state, but the head of government is the Taoiseach (Prime Minister). ### Parliamentary or presidential Allied to this classification is that which is made between constitutions that are parliamentary and those that are presidential. In a parliamentary system, the head of the executive branch of government is the Prime Minister. The Prime Minister will be a member of the legislature and will be accountable to that body for the actions of the government. The UK is therefore a good example of this system. Under a presidential system, the President will be both head of state and head of the executive branch of government. However, the President will not be a member of the legislature and is therefore not directly accountable to that body. The US system is a frequently cited example of a presidential system, in that the elected President is a member of neither the House of Representatives nor the Senate. ### Federal or unitary Constitutions may also be classified on the basis that they are either federal or unitary. A federal system entails government at both the national (or central) and state levels, with national and state Parliaments, each of which has designated areas of legislative competence under the constitution. The US constitution is therefore a two-tier federal system, as are a number of other constitutions, including those in Australia, Canada, and South Africa. A unitary system, by contrast, provides for government solely at the national level. Although the UK constitution has traditionally been described as unitary, might