Chapter-One
Basic Concepts of
Constitution and
Constitutionalism.
What is constitution?
There is no hard and fast definition of a
constitution.
Different scholars define it in many ways.
Their differences arise from their experiences of
their own country’s constitution.
Constitution differ in content, nature, purpose,
scope and the like.
For instance, a scholar coming from a society using a
written constitution defines it to suit his own
experiences while a scholar coming from a society
using an unwritten constitution defines it in his
own understanding.
Commonalities among scholars
Constitution is a basic design which deals with the
structure and powers of the government, and rights
and duties of citizens.
Mostly constitution is understood as a document
which has been written and accepted at a particular
point of time(excludes unwritten constitution).
For Aristotle “constitution is a document consisting of
different principles that govern the relationship of
state members.
Aristotle pointed out two aspects of constitution,
ethical and institutional aspect.
The ethical aspect is the aim and goals to be pursued
by a community
The institutional aspect involves the determination of
the sovereign power and the allocation of power
among officials.
Cont’d
According to Woolsey, a constitution is a doctrine
that determines the interactions between the state
and citizens.
Herman Finer, a constitution is a fundamental law in
a given country.
It includes basic principles, values, beliefs and
traditions that direct the internal affairs of the
country and foreign policy directions.
George Lewis describes the constitution as “the
arrangement and distribution of sovereign power in
the community or the form of the government”.
Charles Baregeaud stated that a constitution is the
fundamental law according to which the relations of
individuals within the community are determined.
Cont’d
Generally based on the above definitions one
can say that a constitution is:
The fundamental law of the land
May be written or unwritten
Describes the composition and power of the
government.
States the rights of citizens.
Deals with the relationship between the
governments and governed.
Constitutionalism
Constitutionalism has a variety of meanings.
It is a complex of ideas, attitudes and patterns of
behavior elaborating the principle that the
authority of government derives from and limited
by a body of fundamental law.
It also stands for the principle that the exercise of
political power shall be bounded by rules which lay
down the procedure and determine the validity of
legislative and executive action.
Constitutionalism is a theory that accepts the
necessity of limited government.
It is the realization of the constitution
The elements of constitutionalism(Louis Henkin)
Government according to the constitution
Horizontal and Vertical Separation of power
Sovereignty of the people or democratic governance
Constitutional Review
Independent Judiciary
Bill of Rights
Controlling the Police
Civilian control of the military; and finally
No or limited state power to suspend the
constitution or its parts.
Five functional principles of constitutionalism
(Karl Loewenstien).
1. Differentiation of state function and their assignment
to different state organs or political structures for the
sake of dispersal of power.
2. Planned mechanisms, like check and balance for
achieving cooperation among several power holders.
3. Mechanisms for avoiding conflict and deadlock
between or among two or more power holders.
4. A method to adjust the constitution peacefully to
changing socio-political and economic conditions for
avoiding illegality, violence and revolution.
5. Incorporation of fundamental rights and freedoms,
coupled with the means of protecting them.
Continued
Generally, constitutionalism can be conceptualized as:
The exercise of power should be within the legal
limits.
Intra virus versus Ultra virus
The exercise of power must conform to the notion of
respect for the individual citizen’s rights.
The power conferred to legislative, executive or
judiciary should be sufficiently dispersed to avoid
the abuse of power.
The government shall be accountable to the
electorate.
Continued
Constitutionalism embodies.
The prevalence of rule of law
Accountability and transparency of government
officials
The limitations of power imposed on the organs
of government
It is characterized by division of power
Relationship between government and citizens,
and
The relationship between one authority and
another within the governmental structure.
Contents of a Good constitution
A constitution must have the following
provisions:
1. Organization and form of administration of the
state
2. Functions of different organs of the
government, their powers and mutual
relations
3. States fundamental rights of the citizens
4. The relation of the government with its citizens.
5. The procedure of the government of the
constitution.
Essential requirements of Good Constitution
One constitution cannot be suitable for all states.
The constitution must be developed based on the social
and economic set up of the country.
For example a federal and unitary constitutions.
A good constitution must have the following qualities:
1. Clarity or Definiteness: Every clause of the
constitution should be written in simple language.
2. Brevity: The constitutions should not be lengthy since
it is not a detailed document.
It should contain only important things.
3. Generality: a constitution provides the general
principle of a state and carry on foundation and sets
out general framework of the law and the government.
Cont…
4. Permanency: constitution is made for undefined
period of time.
Constitution serve for a long lap of ages.
Constitutional amendment and judicial interpretation
are two basic ways to ensure the durability of the
constitution.
5. Supremacy: a constitution is a supreme law of the land.
Supremacy clause
Special amendment procedure
Judicial interpretation
6. Comprehensiveness: The constitution should be
applicable to the whole country.
If it is a federation then it must say the structure and
power of the center and provincial government.
Constitution must setout all affairs of a given country
to avoid misunderstanding and conflict.
Cont…
7. Flexibility: The constitution should not be too rigid to
hinder the process of amendment when needed.
8. Declaration of Rights: A good constitution must
contain the fundamental rights of the people.
9. Independence of Judiciary: The judiciary should
function freely and act as the guardian of the
fundamental rights of the people without favor or fear.
Moreover, it should be free from political intervention
by governments and should be given independent
existence.
10. Directive Principles of State Policy:
A good constitution is made of the directive Principles
of the State Policy.
Purpose and functions of Constitution
1. Constitution Provides Framework for Government
As a frame work, a constitution is a plan for
organizing the operation of a government.
That is, constitution provides the structure of a
government that makes the law, enforce the law,
and settle disputes about the making of laws.
Constitution as a framework of government
defines the various structures or bodies of a
government.
It also defines the responsibilities of the
legislature, executive and judiciary arm of
government.
2. Constitution Grants Power to Government
The constitution permits authority to government to
accomplish its tasks and to make different decisions.
Some of the specified powers of the Federal Government
of Ethiopia, as provided by the constitution, are the
power to:
Formulate and apply national policies;
Formulate financial, monitory, and investment strategies;
Formulate laws on the use and prevention of land, and
others;
Design policies on natural resources including historical
heritages;
Establish and administer national defense and police
force;
Formulate and implement policies on foreign relations,
and other powers.
3. Constitution Limits the Power of Government
In a constitutional government, officials are supposed to
respect the constitution.
The constitution limits or restricts the extent of officials’
power.
In this case, the constitution determines what the
authorities must do and what they must not do.
Under such system, government authorities should not do
whatever they wish to do, but according to the
constitution.
The government should not be too strong so that it tends
to abuse the rights and freedoms of citizens.
On the other hand, if the government is too weak it cannot
protect its citizens.
Therefore, constitution needs to grant enough power to
government and also make some limitations on them.
4. Constitution is the Supreme Law of a Country
Constitution is the mother of all other laws.
It is the source of specific laws with regard to
different laws.
All the laws in the country are made to fulfill the
principles and the objectives of the constitution of
the country.
All laws in the country must conform to the
constitution.
Constitution serves as a binding instrument of all
other laws in a country.
Cont…
5. Protects Individual and Collective Rights and Freedoms
To protect the individual and collective rights and
freedoms of people, the constitution should
conspicuously lay down the relationship between the
state and the individual and collective ones.
It should clearly stipulate the relation of government
and the individual and collective rights and freedoms.
6. Constitution Provides Government Stability
Constitution provides government stability in allocating
duties, powers and functions among the various organs
and institutions of government.
Constitution of state acts as “organizational charts”,
“definitional guides” or “institutional blue prints”.
The End! Thank You!
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