Constitutional Law

MEANINGS AND CLASSIFICATION OF CONSTITUTIONS

1. DEFINITION OF CONSTITUTION

In lay terms, a constitution is a set of rules which governs an organisation. However, to a Constitutional lawyer, the term constitution in reference to a sovereign means as follows;

(a) Narrower Sense:

• Thomas Paine and Dc Tocqueville: according to them Constitution means the aggregate of only those written principles which regulate the administration of the state. In the sense that, if the Constitution cannot be produced in a visible document, it cannot be said to be a Constitution at all.

• A written document which defines the basic rights of the Governed and the limitation of the government. 

• A document which contains (those) rules which provide the framework for government.

Criticism

Sir Ivor Jennings, author of The Law and the Constitution, offers a balanced evaluation of this apparent paradox by saying:

If a constitution means a written document, then obviously Great Britain has no constitution. In countries where such a document exists, the word has that meaning. But the document itself merely sets out rules determining the creation and operation of governmental institutions, and obviously Great Britain has such institutions and such rules. The phrase ‘British constitution’ is used to describe those rules.

• According to Lord Bryce –“Constitution is the aggregate of laws and customs under which the life of the state goes on “. 

Criticism

This definition by Bryce is a narrower one as he was highly influenced by the constitutional system of Great Britain. Since, with exception of Britain and New Zealand, nowhere in the world a Constitution can be said to be an aggregate of laws and customs.

(b) Wider Sense:

• According to K.C. Wheare, Hood Phillips and Gilchrist, the term “Constitution” is used to denote all written and unwritten principles regulating the administration of the State. 

• Professor KC Wheare defines the constitution of a state as:

“... the whole system of government of a country, the collection of rules which establish and regulate or govern the government.” [1966, p.1]

• Basic rules, written and unwritten, which create and control government.

Other Definitions

• Aristotle defines a Constitution as “the way of life the state has chosen for itself “.  Such a definition is very ancient and no clear characteristics of a Constitution can be found in it.

• According to C.F Strongs, “A Constitution may be said to be a collection of principles according to which the powers of the government, the rights of the governed and relation between the two are adjusted“. 

• Constitution is refers as a body of agreed rules and principles starting how the power of governing a country are given and how these powers are to be exercised.

SUMMARY: “Constitution”

(a) The fundamental and organic laws and principles of a country or state that create a system of government and provide a basis against which the validity of all other laws is determined. [Webster’s New World Law Dictionary (2006:92]

(b) The fundamental and organic law of a nation or state that establishes the institutions and apparatus of government, defines the scope of governmental sovereign powers, and guarantees individual civil rights and civil liberties. [Black’s Law Dictionary (2009:353) 9th Ed.]

2. KEY ITEMS IN DEFINING THE TERM, “CONSTITUTION”

(a) With regard to Unwritten/Flexible Constitution

• It is not in any way superior to any other law

• There cannot be any distinction between fundamental law  and ordinary law

• Parliament can amend any constitutional law by ordinary law making procedure and hence constitutional law exists on the same footing with other laws of an ordinary nature.

(b) With regard to Written/Rigid Constitution

  

• A grund norm (Hans Kelsen’s “grund norm” theory);

• Mother law;

• The governing wheel of the state;

• The constitution is considered as the supreme or fundamental law of the land i.e. on point of status it is placed  above all other laws of the country;

• No law is above the constitution and all ordinary laws get their validity and force from the constitution i.e. no law can be inconsistent with the constitutional law;

• No other law or government action can supersede the provisions of the Constitution;

• Constitutional law is considered the corner stone or touch-stone or yard-stick to test the validity of all other laws, be it public or private, substantive or procedural.

• Parliament cannot amend any constitutional law by ordinary law making procedure. 

NB: Refer also the “Basic Structure Doctrine” in the case of Kesavananda v. State of Kerala, All India Reports (AIR) 1973 Supreme Court

1461.

3. SOURCES OF THE CONSTITUTION/CONSTITUTIONAL NORMS

(a) The People 

The constitution is the embodiment of the will of the people on how they want to live and to govern themselves, i.e. People’s will/people’s power/sovereignty.

This argument is exemplified by the preamble to the Constitution of the USA which states that;

“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

NB: See also the Preamble to the Constitution of Tanzania, 1977

Note: Key Historical events in the Development of Modern Constitutional Law

Magna Carta (1215), Petition of Rights (1648), Glorious Revolution (1688), American Revolution (1775–83), French Revolution (1789), Bolshevik/October Revolution (1917), and Perestroika and Glasnost which sparked the 2nd Bourgeois revolution in 1989.

(b) Statutory Instruments/Acts of Parliament

Normally, laws made by the parliament derive their legitimacy from the Constitution. However, there are moments where the parliament makes law that have constitutional significance, e.g. the Treaty of Union between Tanganyika and Zanzibar (1964), Acts of Union (1964), the Bill of Rights (Act No. 15 of 1984) and etc.

(c)  Judicial precedents/Interpretations (Court Decisions)

E.g. refer various judgments by Hon. Judge Mwalusanya and Lugakingira on Constitutional, Human and people’s rights.

(d) Conventions and Customs

These are normally made up of unwritten practices of the parliament, the judiciary and the executive that are of constitutional nature. (e.g. UK Constitution).

(e) International Conventions/Treaties

Agreements between states within the international community usually form party and parcel of superior laws of the land, in respective states. (Article 63(3)(e) of the Tanzania Constitution, 1977).

• Refer monism and dualism practices in relation to international laws.

• Part 3 (Article 12-24 of the Tanzania Constitution is a product of UDHR, ICCPR, ACHPR and other international and regional instruments on Human rights).

(f) Academic works of eminent Jurists and political scientists

The works of eminent constitutional writers of scholarly nature may have persuasive value to a constitutional court’s decision. Such works may be used in framing new constitutional rules or provisions or in assisting interpretation of certain provisions of the constitution. E.g. writings by Prof. Issa Shivji on constitutionalism and Acts of the Union. 

4. FUNCTIONS OF A CONSTITUTION

The essence of having a Constitution in any civil society is to organise, distribute and regulate state powers. It usually set out the structure of the state, the major state institutions, and the principles governing their relations with each other and with the state’s citizens. 

 (a) Legitimising/regulate state powers

• It creates basic legal framework within which vital state powers can be exercised 

• Giving legitimacy to the government and defining the powers under which a government may act. As such, the constitution sets limits both to the powers which can be exercised and to the manner in which they may be exercised. [Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803)].

• The constitution defines the legality of power. This notion is particularly opposite in a country with a written constitution and a Supreme Court which is conferred with jurisdiction to rule on the legality of government action.

(b) Ideological

Set out basic state economic, political, religious ideologies; e.g. socialism, multiparty democracy, secularism, and etc. (see, Article 3 and 9).

E.g. the preamble to the Constitution of the United Republic of Tanzania (1977) states, inter alia, that;

“NOW, THEREFORE, THIS CONSTITUTION IS ENACTED BY THE CONSTITUENT ASSEMBLY OF THE UNITED REPUBLIC OF TANZANIA, on behalf of the People, for the purpose of building such a society and ensuring that Tanzania is governed by a Government that adheres to the principles of democracy and socialism and shall be a secular state.”

(c) Organising

Establishing offices, political positions and key state institutions or machineries; e.g. the office of the Controller and Auditor General (CAG), CHRAGG, Army (TPDF), and etc.

(d) Distributing

• Separating and control legislative, executive and judicial powers (Article 4).

SUMMARY: A constitution of the state has the following main functions:-

• To declare the existence of the state, its name, people, character, political ethos and system;

• To declare the territorial boundaries of the state (Article 2);

• To establish organs of governance, provide for recruitment, disciplining of public officials and provide for the management of the state;

• To provide for and guarantee the basic rights and freedoms of the subjects;

• To provide for the security and defence of the state;

• To manage and run public service and the economy;

• To conduct foreign affairs and take part in global governance;

QZ: What about prerogative or inherent powers?

5. CLASSIFICATION OF CONSTITUTION

(a) Classification according to the form by which Constitutions are embodied (how it appears): 

• Written Constitution

A written/codified/documentary constitution is one contained within a single document or a series of documents, with or without amendments, defining the basic rules of the state. The origins of written constitutions lie in the American War of Independence (1775–83) and French Revolution (1789). [E.g. France, USA, Tanzania, and etc.].

• Unwritten Constitution

Unwritten/uncodified/non-documentary is one that is not contained in a single document, consisting of several different sources, which may be written or unwritten. What Britain has instead is an accumulation of various statutes, conventions, political customs, judicial decisions (common laws), treaties, and exists in some scattered documents which collectively can be referred to as the British Constitution. E.g. UK, Israel, New Zealand and etc. In these countries, the constitution is a collection of historical documents, statutes, decrees, conventions, traditions, and royal prerogatives.

Challenges

Classification of Constitution (written and unwritten) is not a scientific one since no Constitution can, in practice, be fully written or unwritten, an unwritten Constitution must have some written elements. Likewise, a written constitution cannot be fully written, some elements of it exist in unwritten form. For example, British Constitution is unwritten but some important elements of it are contained in written documents like Magna Carta (1215), The Petition of Right 1628, The Bill of Rights 1689, The Act of Settlement 1700, The Treaty of Union 1706, The European Communities Act 1972, The royal prerogative/proclamations, Acts establishing devolution, The Human Rights Act 1998, and etc. 

On the other hand, the US constitution is written but some important Constitutional subjects like political party organization, cabinet, committee of the Congress, working procedure of the Congress etc. are not written they are largely based on political custom or convention. Therefore, the distinction between written and unwritten Constitution is one of degree rather than of form. C.F. Strongs comments that a classification of Constitutions’ on the basis of whether they are written or unwritten is illusory.

(b) Classification according to the mode of amendment/Method of changing the constitution: 

This classification rests primarily on the question whether or not constitutions can be easily amended.

• Flexible Constitution

The Flexible or Elastic Constitution is the kind of constitution that can easily be changed (usually, an Unwritten Constitution, i.e. a constitution that has few or no special amending procedures. The Parliament can alter constitutional principles and define new baselines for government action through ordinary legislative processes, e.g. UK and Canada Constitution.

• Rigid Constitution 

The Rigid or Inelastic Constitution is the kind of constitution that cannot be easily amended (usually, a Written Constitution). Moreover, it is a constitution whose terms cannot be altered by ordinary forms of legislation, only by special amending procedures. That is to say, if the constitution itself provides that particular amendment, then it could be possible to amend the Constitution, e.g. Article 98 of the Tanzania Constitution, 1977.

Note:

The framers of a written constitution, endeavouring to provide a comprehensive legal framework for the state, will naturally seek to protect its constitutional provisions from subsequent repeal or amendment.

(c) Classification according to the form of the government/classification based on the nature and form of the state and its governance: 

• Federal constitution

 Under a federal constitution exists a division of powers between central government and the individual states or provinces which make up the federation. The powers divided between the federal government and states or provinces will be clearly set down in the constituent document. Some powers will be reserved exclusively to the federal government (most notably, such matters as defence and state security); some powers will be allocated exclusively to the regional government (such as planning and the raising of local taxation); and others will be held on the basis of partnership, powers being given to each level of government with overriding power, perhaps, reserved for central government. The common feature of all federal states is the sharing of power between centre and region – each having an area of exclusive power, other powers being shared on some defined basis. E.g. the USA, Canada, Australia, Nigeria, Malaysia, Germany, Switzerland and etc.

• Unitary Constitution 

Constitutions of this nature exist in a state where a government is formed after a union of two or more sovereign states. A state is governed as a one single unit in which the central government is supreme and any administrative divisions exercise only powers which their government chooses to delegate, e.g. Tanzania (Zanzibar and Mainland Tanzania), U.K (Scotland, Wales, N. Ireland and England) and etc.

• Republican Constitution 

A republic constitution exists in a state which has its figurehead a (usually) democratically elected President, answerable to the electorate and to the constitution. Presidential office is both a symbol of statehood and the repository of many powers. E.g. Tanzania, Kenya, Malawi Constitutions.

• Presidential Constitution

Under this constitution model, the head of the executive branch is also head of state, and is not a member of or directly responsible to the legislature, e.g. Tanzania, Kenya, Uganda, and etc.

• Parliamentary Constitution (Westminster model): 

Is a form of a Constitution of a state in which the chief executive is a Prime Minister who is a member of and is responsible to the legislature, e.g. U.K, and Israel. 

  

NB: The Prime Minister or President is a Member of Parliament and so are his Ministers.

• Aristocratic (monarchical) Constitution 

Such constitution exists where the government is headed by a monarch and hereditary in nature. Usually, the office of head of state is held until death or abdication and is often hereditary and includes a royal house (King or Queen), e.g. U.K. [the Queen or King is the head of the state (not necessary the government, i.e. he/she plays a ceremonial role in the administration of the government)].

• Democratic state constitution 

It is a Constitution which allows all adult citizens an equal say (whether directly or indirectly) in the decisions that affect their lives or state governance, e.g. US, UK, Tanzania, and etc. 

• Dictatorial (undemocratic/autocratic) constitution

Is a type of a Constitution which vests state powers in one person or group of persons or organs, with the exclusion of others, e.g. Constitution of Libya during Khadafy regime.

(d) Classification according to the political system of the state: 

• Monoparty (Socialistic) Constitution: 

A constitution of a state is characterized by single-party rule or dominant-party rule of a communist party and a professed allegiance to a Leninist or Marxist-Leninist or communist ideology as the guiding principle of the state. E.g. China, former Soviet Union, Cuba, Tanzania before 1992 and etc.

• Multiparty (Liberal) Constitution: 

Here, the constitution does not restrict freedom of political association, e.g. Russia Constitution, Tanzania, Kenya, and etc.

OTHER TYPES OF THE CONSTITUTION 

• Supreme Constitution

A ‘supreme’ constitution refers to a state in which the legislative powers of the governing body are unlimited.

• Subordinate/Ordinary Constitution

A subordinate constitution is a state in which the legislative powers are limited by some higher authority.

• Separated powers’ Constitution

Is the Constitution which vest powers in the principal institutions of the state – legislature, executive and judiciary (i.e. state powers are not concentrated in a single institution). This arrangement is most readily achievable under a written constitution. E.g. US Constitution

• Fused powers’ Constitution

These are kind of Constitutions found in totalitarian states or purely monarchical states. Under such a constitution [you] will find a single figure, or single body, possessed with the sole power to propose and enact law, to administer the state, and both to apply and to adjudicate upon the law.

Ref: Professor KC Wheare (1966, Chapter 1):

6. CHARACTERISTICS OF THE TANZANIA CONSTITUTION

In summary, it can be said that it:

(a) Is largely written in character;

(b) Is inflexible/rigid in nature;

(c) Is supreme;

(d) Is unitary in structure, 

(e) Exhibits mainly but not completely separated powers; and

(f) Is republican/presidential

REFERENCES:

Alder, J. (2002) General Principles of Constitutional and Administrative Law. 4th Ed. New York, Palgrave Macmillan (pp.39-59).

Barnett, H. (2002) Constitutional and Administrative. 4th Ed.  London, Cavendish Publishing Limited Law (pp. 3-15, Chapter 1).

Carroll, A. (2007) Constitutional and Administrative Law. 4th Ed. England, Pearson Education Limited (pp.16-50, Chapter 2).

Mvungi, E.S.A (2007) Constitutional Law in Context: A Book on General Principles of Constitutional Law. Vol. I, unpublished (pp. 5-9, Chapter 1).

Phillips, O. H., (1787) O. Hood Phillips’ Constitutional and Administrative Law. 7th Ed., Sweet & Maxwell Ltd.

Wheare, K.C. (1964) Modern Constitutions. Oxford University Press, London, 1964