18 Constitutional Government

Sanjay Kumar

Introduction

Constitutional government is a government that runs according to the Constitution of the land. It refers to a government which is limited by the Constitution which might be written or unwritten. The rules and policies of the government are limited by a constitution which describes the basic law of the land. A constitution is a set of established principles according to which a state is governed. The constitution is a set of legal document or documents and they are concerned with different levels of organization. It is a government of law and not of arbitrary rulers. Constitution resolves many conflicts before they arise for the constitution provides a framework within which the government has to function. ‘… Constitutions are scripts in which a people inscribe the text of their professed collective destiny. They write down who they think, they are what they want to be, and the principles that will guide their interaction along that path in the future’.1 Constitution presents the people of a vision, shared vision for which they would aspire collectively. The Constitution authorises the government to act and to frame rules, regulations and laws for the country it governs. It limits political power and puts and puts certain constraints on the government of the day. The Constitution acts as a regulator of the state’s activities over its citizens. It stops the state and its agency, the government, from intruding into the sphere of the individual. It limits the government of the day and acts as a stern elder to the government. The restraints are effective and reasonable. It sees to it that the rule of law prevails. ‘…Constitutions express the overtaking principles within which non- constitutional law and the legal system, generally operates’.2 The Constitution gives sufficient authority to the government while clearly demarcating the role of the state and the rights of the individuals.

They help in compromises within the political system. A Constitution defines how a country is to be governed. A Constitutional government, then, governs according to the powers given to it by the Constitution. In a Constitution law, rule of law is established and the institutions, their functions are recognised. Constitutional government is a limited government, a government which acts according to a specific set of rules.

Constitutionalism is a system where the functions of the government are distributed by a legal document called the Constitution and the majority agrees with it. ‘…a Constitution differs how a country is governed, if there in power governs according to the Constitution’.3 The aim of a Constitution is to establish in the country it governs. The concept of Constitutionalism is old as it was developed by Aristotle. The authority to derive power comes from the Constitution. Democracy gives an added impetus to the idea and spirit of Constitutionalism. It is not individuals who are supreme, even if they are elected but the law which is supreme. Constitutionalism encourages liberty, equality and justice to flourish. ‘Constitutionalism Uday S. Mehta, Constitutionalism in Nirja Gopal Jayal, Pratap Bhanu Mehta, The Oxford Comparison to politics in India, 2015, Oxford University Press, p. 15.

Rod Hague and Martin Harrop, Comparative Government and Politics, 2015. OUP, p.

233. Peter B. Harris, Foundations of Political Science, 1976, Hutchinson, London, p. 87.

embraces the idea that a government should not be permitted to anything its officials please, but should conduct itself according to equitable and agreed procedures. The purpose of this restriction on its freedom of action is of course to safeguard a fundamental area of freedom for

its citizens’.4 The Constitution prevents the government from doing many things. Constitutionalism is concerned with how power should be used. A government without a Constitution can degenerate into absolutism, chaos and further lead to tyranny.

Growth of Constitutionalism

Constitutionalism has a long history. We can trace the growth of Constitutionalism to the Greeks and the Romans. Plato was against the idea of Constitutional government but his disciples, Aristotle had faith in constitutionalism. Aristotle believed in limiting the authority of the government. The Romans laid down the principles of representation, codifying the law and laying the ground for law, both civil and criminal. They strengthened the idea of constitutionalism by separation as well as distribution of powers. After the fall of the Roman Empire, the world was eclipsed by feudalism, which was characterized by disintegration and degeneration. But Christianity and its universalism provided a new way to the world. The Pope’s supremacy led to the subservience of the monarchs. France, Spain, England were the countries which challenged the authority of the Pope and developed the idea of constitutionalism. The Renaissance and Reformation movements gave a big impetus to constitutionalism. These ages were characterized by rationality, reasoning and a secular outlook. In England, the glorious Revolution of 1688 was the first step so usher in Constitutionalism and put it on firm footing. The powers of the King were reduced and the Parliamentary form of government became deeply entrenched. In U.S.A., the American Declaration of Independence of 1776 declared that all men are equal and when any government doesn’t respect the individuals than the latter have the right to challenge it, change it and remove it. In France’s Declaration of the Rights of Man tried to establish Constitutional government by declaring that men are born and equal in rights and the aim of every political association is the reservation of the practical and imprescriptibility of the rights of man’. Thus, these western countries have helped in evolving and cementing the spirit of Constitutionalism.

4    Smita Srivastava, An Introduction to Political Ideologies, 2012, Pearson, p. 49.

Constitutional government in developing countries

In the developing countries, there are instances where there are many governments that have flouted the norms of their respective Constitutions but these are encompassing examples of governments which have functioned according to the dictates of their Constitutions. The developing countries in Asia, Africa and Latin America are besotted by too many problems. Having a colonial past has not helped much. As soon as a country declares itself independents, a certain set of leaders take over the reins of the country. The struggle that they have led for independence has to be converted into a struggle to pull out the country from the malaise of poverty, hunger, deprivation as well as the evils left by the colonial masters. Every country has paucity of funds vis-à-vis the problems it faces. Finance us required for everything. Moreover, the people do not understand the nature and extent of the problems. They were shown a vision and they just want its fulfillment. The successive leaders, at times, do not have the knowledge, skill and the urge to serve the people. They are more bothered about their petty interests, retaining their seats, encouraging their family members to enter the political arena (dynasty politics) or busy consolidating their gains. This leads to the people getting frustrated. A section of the people take advantage of the situation and either manage a coupe overthrow the elected government by means that are not considered fair. The Constitution is brushed aside and the leaders rule by their own whim. There is scant regard for the Constitution or the ideals that are professed by it. Thus, in the developing countries, we have many examples of governments that are Constitutional and many that are non- Constitutional.

Usually, wherever the Constitutional government fails to take off or maintain its legality, the military led by a leader with a greater vision takes over. Constitutional government is not guaranteed if a country is casually introduced to Universal Adult Franchise, elections, political parties, rule of law, Parliament and a Constitution. These ingredients go vital to democracy and to the Constitution have to be well-ingrained into the political system. Unfortunately, in the developing countries, these countries have not been able to penetrate deep into the political system. ‘It is evident that a building to house what looks like a parliament does not infact create a parliament. Still less does it create the most difficult and subtle of all western political devices, a legal opposition’.5 In most of these countries, Constitution exists, is codified and a lot of effort has gone into framing the Constitution but it has not been absorbed by the country’s political culture. The Constitution in most of the electorate as a whole, who do not, at times, even know about its sanctity and importance. The Constitutions are just not taken seriously. Probably, the failure of the Constitutional government is also because there are too many structures in these traditional societies that cannot be assimilated or incorporated in the formal Constitutions. We have the example of the ‘Ombudsman’, the grievance officers who are a great asset in the western political systems but have not found many takers in the political systems of the developing countries. ‘The significance that the Ombudsman has in Asia is that he has an important pubic ‘face’ while it is interesting that the officers of the Japanese Inspection Bureau (who are in effect those who deal with problems and grievances) receive ‘matters’ and ‘requests’ rather than ‘complaints’.6 In the developing countries, personal links, ‘face’ ‘law as a means of obtaining their rights’ and the VIP (Very Important Person) are major detriments to the effective functioning of the Constitutional government. In the developing countries, the government is limited as dictated by the Constitution but in fact ground reality differs. The government assumes powers promising to enjoy only those powers granted to it by the Constitution but many flout Constitutional norms once in power. They stop being accountable to people or to any other body for e.g., the Judiciary and go out of the way to suppress it or go around it. In many countries, the government elected for a limited tenure extends its tenure with the help of un- constitutional means.

Case of Asia

The countries which were a colony of the British were more successful in the experiment of a Constitutional government than their counterparts which were colonies of the French. ‘In Asia, and Africa and in the Caribbean, the former colonies of Britain, such as India, Nigeria, Zambia etc. have been more successful in operating a Constitutional government than the former colonies of continental European powers. The British colonialism was of much mild vanity and in a way, fostered the growth of democratic institutions in the colonies. When, therefore, these colonies gained their independence they had each functioning democratic apparatus and also mentrained in them’.7 Besides a few countries, like India, most of the countries could not maintain the spirit of a constitutional government for a long time r there were long pauses. The Constitution of India came into existence on January 26, 1950 after debates and much discussion. The government is limited, rule of law prevails and the government is elected by the citizens of the country. The precedents of the Constitution, the Government Acts of 1909, 1919 and 1935 had emphasized the need for having a Constitutional government in India. Dr, Ambedkar, who contributed immensely to the framing of the Indian Constitution believed in Constitutional democracy.

V Peter B. Harris, op. cit., n. 3, p. 89.

Ibid.

Colonies gained their independence they had each functioning democratic apparatus and also mentrained in them’.7 Besides a few countries, like India, most of the countries could not maintain the spirit of a constitutional government for a long time r there were long pauses. The Constitution of India came into existence on January 26, 1950 after debates and much discussion. The government is limited, rule of law prevails and the government is elected by the citizens of the country. The precedents of the Constitution, the Government Acts of 1909, 1919 and 1935 had emphasized the need for having a Constitutional government in India. Dr, Ambedkar, who contributed immensely to the framing of the Indian Constitution believed in Constitutional democracy.

‘As a liberal thinker, Ambedkar was hardcore believer in the value of Constitutional democracy having irrevocable elements of social and economic democracies, in addition to political democracy’.8 He was impressed by the concept of ‘rule of law’ which helped in establishing equality, justice and stability. Except the period of Emergency in India, the governments have proved themselves to be Constitutional governments. With periodic elections, limited government, accountability to the people and a limited tenure, India has managed to nurture Constitutional governments despite the occasional hiccups of caste, language, religion and region.

Pakistan, India’s immediate neighbor, has not been so fortunate. Pakistan took birth on August 14, 1947 but could not continue for long as a constitutional, democratic government because of the high ambitions of its leaders, military generals etc. Though the Quadi-i-Azam, Mohammed Ali Jinnah, ‘advocated the compatibility of democracy and Islamic principles’,9 these successors did not seem to agree. He behaved that ‘the ideological structure of Islam’s world view was conducive to democracy’.10 Yet, Liaquat Ali Khan, the first Prime Minister of Pakistan was assassinated in 1951. Pakistan got its first Constitution in 1956 the then President, Iskander Mirza suspended the 1956 Constitution in 1959.

     S. R. Maheshwari, Comparative Government and Politics, 2004, Lakshmi Narain Agarwal, Agra, p. 70.

Chkarabarty, Bidyut, Pandey Rajendra Kumar, Modern Indian Political Thought Text and Concept, 2014, Sage, New Delhi, p, 95.

Ibid., p.152

Ibid.

     In Pakistan, the founding leaders believed that sovereignty was with the Almighty alone. ‘The authority of the people was a sacred trust from Allah to be described within the limits prescribed by him’.11 But, despite all the limitations, there have been too many violations. Iskander Mirza did all this with the support of the Army. General Mohammad Ayub Khan exiled Iskinder Mirza and the former controlled the government. Ayub Khan ruled for ten years, citing different reasons till he was deposed by General. Yahya Khan. Zulfikar Ali Bhutto came to power in 1971 but the military intervened and Gen. Zia-ul-Haq seized power and ruled without the Parliament or people’s verdict, In 2000, General Pervez Musharraf overthrew the elected government and ruled till 2007.

Bangladesh took birth as a nation on December 16, 1971. The Constitution included features like, secularism democracy, nationalism and socialism besides giving the people Fundamental Rights. President Mujibur Rahman was assassinated on August 15, 1975 and the Army with the military generals ruled Bangladesh for the next 15 years i.e. upto 1990. The authoritarian rule sapped at the nation’s strength and curbed people’s freedoms. Lt. Gen. Ziaur Rahman assumed power through a military coup in 1977 and was, then, assassinated in 1981. He was succeeded by Lt. Gen. Hossain Mohammad Ershad in 1982 and ruled arbitrarily till December 1990. The tussle for power continues. The military tried to step in 2007 but the Awami League won the elections in 2009. The civilian governments are trying hard to establish a constitutional government and Bangladesh is rambling towards the idea of a constitutional government.

In Burma (Myanmar), the Burmese armed forces is not a constitutional government. There is no respect for rule of law, freedoms of the people and the opposition is suppressed. Aung Sen Kuyi, the principle opposition leader was placed under house arrest for many years. The government comprising of military generals wrote a new Constitution and ruled by their ever-changing rulers. Though, things are changing now in Burma, with the release of Aung Sen Kuyi, but the past many years have seen Burma in the grip of an unconstitutional government.

Turkmenistan adopted a new Constitution in 1992 with all the provisions of rights for its citizens. One of the breakaway Republics of the erstwhile U.S.S.R. it soon degenerated into a personal fiefdom of President Sapamurat Niyaz ____ruled by decree by bypassing the legislature. A one-man dictatorship, elections were a farce and he was accountable to none. He renamed the months of year after his family members and banished dissidents to mental hospitals.

President Gurbanguly Berdymukhamedov who was re-elected in Turkmenistan in 2012 continues to rule keeping Constitutional norms at bay. Life imprisonment is given liberally and prominent leaders are not traceable. The internet is heavily regulated and any opposition to the government is considered treason.

Thailand is controlled by a military junta. The ruling party, whose name is, ironically, National Council for Peace and Order (NCPO) has persecuted all critics. The media is censored and all discussions and debates are prevented. Nepal, once a monarchy, has modified itself with the changing times, though the going has been very tough. King Mahendra ascended the throne in 1955 and bypassed the Council of Ministers. Elections were held in February 1959 but the King dismissed the first popularly elected Prime Minister, B.R. Koirala in 1960. He banned opposition. After his death, his son, King Birendra ascended the throne, but organized the ‘Back-to-the Village National Campaign (BYMC). It was only a ploy to control all political parties. The Jan Andolan’ of 1990 challenged the powers of the King which resulted in the King conceding many concessions to the people. His brother, King Gyanendra, came to the throne in 2001 after the assassination of his brother, King Birendra. King Gyanendra dismissed whatever rights the people had attained after a long struggle. But after large scale protests, he had to resign in 2006 and relinquish powers.

Nepal is in the midst of adjusting itself to a new Constitution. The government in Nepal is trying to accommodate various groups and interests. Thus, it can be called a Constitutional government for it is adhering to the Constitution which was adopted on September 20, 2015.

Sri Lanka is one country that remained embroiled in a civil war for many decades. The Liberation of Tamil Tiger’s Elaam (LTTE) spearheaded a campaign against the governments for depriving the Tamil population of equal rights from the Sinhalese population. The government, then, ruled by coercion and force. ‘Rule of Law’ and constitutional norms were ignored. But after decades of efforts, the government has managed to wipe off the LTTE and the endeavours to maintain the sanctity and legality of a constitutional government.

President Maumoon Abdul Gayoom ruled Maldives for 30 years since 1978 without holding elections or answerable to the people. He repressed people, silenced critics and brutally killed people. The MDP (Maldivian Democratic Party) led by Mohammed Nasheed won the elections in October 2008 but the judiciary which was connected to the old regime created hurdles in his path that he was forced to step down. Nasheed was arrested and imprisoned for 13 years.

Constitutional Government in Africa

Many countries of African continent ruled by customs and traditions have not taken very kindly to the idea of a Constitution and Constitutional governments. The idea of kinship, tribes, hierarchy is deep-rooted which leads to right power structure and control in the hands of a few. Brumundi under President Nkuninziza remained isolated from all Constitutional norms when the President decided to continue in power for the third tenure. When the opposition protested the suppressed all dissent and protests. President Joseph Kabila got a bill passed in Congo to remain in power indefinitely. Hosni Mubarak of Egypt, who was ousted from power in 2011 during the Arab spring ruled the country since 1980 without holding elections. Keeping the Constitution aside he has his own logic and reasoning. He bludgeoned his way through all legislation.

In Liberia, Charles Taylor ruled till 2003 denying the people the basic rights. Consecration of children below 15 years, torture, detention and suppression of dissent was a norm till he was imprisoned and was sentenced to 50 years in prison.

Rule of Law doesn’t prevail in Robert Mugabe’s Zimbabwe. Ordering the killing of

20,000 civilians in a fit of madness in Matabeleland in Western Zimbabwe is one example of his brutality. Systematic killing of people and gradually crushing opposition has been Mugabe’s mission and he has been successful. Equatorial Guinea under President Teodoro Obiang Ngueme Mbasogo engages itself in torture, unfair trades and arbitrary detention. There is no talk of Constitution or following constitutional norms. Muanmmer Gaddafi in Libya remained in harness for 40 years since 1969. He hanged his opponents publicly and dissent was declared

illegal under Law 75 of 1973. He used his personal Revolutionary Guard Corps to crush opposition. Nigeria’s General Sani Abache bade goodbye to freedom of speech, expression, assembly and rule of law from 1993 to 1998. President Bashar-al-Assad banned freedom of assembly, association and expression in Syria and arrested people and made them prisoners of conscience. Every news was filtered and any excuse was used to intimidate and people. The situation in Sudan, Somalia’s Rivanda, Ethiopia, Cameroon etc. does not augur well for the people as the governments, in a majority of the cases, are not Constitutional government. The idea of democracy and a Constitutional government is alien to the people of the African Continent.

One dictator is replaced by another who is equally, if not worse. The Constitution and all its norms are freely violated with no rationale, reason or logic.

Conclusion

‘A Constitution sets out the formal structure of the state, specifying the powers and institution of central government, and its relationship with other levels. In addition, Constitutions express the rights of citizens, and, in doing so, create limits on government. A codified Constitution is set out in a single document; an uncodified Constitution is among a range of documents and influenced by tradition and practice.12 A Constitution specifies a power map which defines the various structures of government. A Constitutional government draws its strength from the Constitution of the land. The Constitution is a holy document of the political system and adherence to it can only iron out the various problems of the government. A Constitutional government would always find its journey made easy when it would adhere to the rule of law, separation of powers, checks and balances, equality, freedom, which are all professed by any Constitution committed to democracy. Burundi and Libya met their doom at the hands of a few republican elites between 1960 and 1970. Many African monarchies were wiped off in the name of progress, development to be headed in by democracy. The Constitutional government has not been a success story in Africa because of the lack of internalization of the Constitutional spirit in the system. The breakdown of the traditional order and inability of the countries to reconnect and institutionalize modern concepts of democracy lead to the present problems of breakdown or failure of Constitutional governments. The African countries fall prey to ethnic conflict. They are highly volatile because of the dangerous rush of corrupt leaders and political institutions, poverty, instability and insecurity. People are polarized along racial lines. The societies are highly stratified. Economic mismanagement and unequal distributions of gains leads to lack of trust between the people and the leaders. The authoritarian leaders, governments get chance to good power. A leader like Nelson Mandela, because of his personal struggle and charisma could bring about negotiation and accommodation in Africa. But no other leader has that aura to bring about reconciliation among the various warning groups and bring about the formation of a responsible, Constitutional government. Poverty and politicization of every issue complicates the process of government formation. Denial of basic human rights and lack of security among the people leads to rise of authoritarian regimes and failure of Constitution norms.

In many countries of Asia and Africa, the traditional order that worked well according to their societies was broken down when the colonial masters stepped in with their own rules, habits and attitude. These traditional societies could not adjust and adapt to the new political order completely. Problems, thus, persist in these countries. ‘Many Asian and African governments could not co-opt the changes due to lack of social and economic infrastructures for the will of the government. They do not possess the dynamic, class-based industrial social order. Besides, the ideology of individualism underlying the western parliamentary system is alien to the people of Asia and Africa’.13 A few countries like India have been able to adapt, though it too had the small but dangerous stint of Emergency clamped on the nation by the then Prime Minister, Mrs. Indira Gandhi. The stability of the government is a serious issue in the developing countries. The political institutions in these countries have failed to develop[ which leads to the breakdown of the constitutional machinery. A constitutional government is one in which the authority of the government is limited and is the authority of each organ of the government. The powers of the government, when restrained by a constitution achieve legitimacy. The restraints are legally enforceable. A Constitution is an arrangement of governance and tells a way as to how to go about in the administration of a country. Extending rights to the citizens, implementing rule of law in letter and spirit, protecting the citizens against undue and uncalled interference by authorities, division of powers and checks and balances are all hallmarks of constitutionalism and a constitutional government. According to Cart J. Friedrich, constitutionalism is both the practice of politics according to ‘rules of the game’, which insure effective restraints upon governmental and other political action, and the theory – explanatory and justificatory – of this practice’.14 Democracy, Constitution and constitutional government can flourish only in a particular culture, a culture where mature public opinion exists and is encouraged. In most of the African countries, the norm is, ‘one man, one vote, one-time where one-party, ‘dictatorship’ becomes a norm after a certain period. The challenge is to make the people vote thoughtfully. People have reached that democracy or not lead to freedom. Constitutions unheated from the colonial powers did not guarantee establishment of democratic institutions. The Constitutions failed to work without a strong alert middle class and efficient leaders. So, we have Omar Bongo who ruled Gabon for 41 years and 155 days.

Paul Biya who ruled Cameroon for 40 years and 313 days, Kaison Phomvihan, who ruled Laos for 37 years and 244 days, Joap Broz Tito of Yugoslavia who ruled for 36 years and 157 days and Akdon Diouf who ruled Senegal for 30 years and 35 days. The list is endless and so are their atrocities. The different dictators used different titles to get reverence of the people. Kim II-sung and Kim Jong II used titles like ‘Great Leaders’ and ‘Dear Leader’ respectively Muanmmar-al-Gaddafi used the titles of ‘Guide of the First of September Great Revolution of the Socialist People’s Libyan Arab Jamahriya’ and ‘Brotherly Leader and Guide of the Revolution, Nicolas Ceausescu of Romania called himself, ‘Conducator’ (Romanian for leader) and Saparmurat Niyazov of Turkmenistan called himself ‘Turkenbashi’ (Head of all the Turkmens). These dictators at all the democratic institutions aside alongwith the concept of constitutional government. Thus, we can conclude that constitutional government has to go a long journey in the developing countries of Asia and Africa,

Suggested Readings

• Caramani, Daniele, Comparative Politics, 2011, Oxford University Press.
• Gauba, O.P. , An Introduction to To Political Theory, 2013,Macmillan, Delhi.
• Hague, Rod and Harrop, Martin, Comparative Govt. and Politics, An Introduction, 2015, Palgrave Macmillan, Replika, New Delhi.
• Harris B. Peter, Foundations of Political Science, 1976, Hutchinson, London.
• McKinnon, Catriona, Issues in Political Theory, 2012, Oxford University Press.
• Misra, K.K., Contemporary Political Theory, 1983, Pragati, Delhi.
• Andrew Heywood, Political Theory, An Introduction,2012, Palgrave Macmillan