6 Constitutionalism in advanced industrial countries

Pampa Mukherjee

Objectives of Study

→   To know the meaning of Constitution

→  To understand the concept of Constitutionalism

→ To differentiate between Constitution and Constitutionalism

→   To trace the journey of Constitutionalism in United Kingdom

→    To be familiar with Constitutionalism in United States of America

Key Words

↔                Constitution

↔                Democracy

↔                Constitutionalism

↔                Idea of Constitutionalism

↔                Adherence to the restrictions by the government

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Constitutionalism is the noble spirit behind any Constitution. It is a government in which power is distributed and also limited by laws. The system of laws must be obeyed by the rulers of the day. Constitutionalism is a complex body of ideas that describes clearly the principle from which the government derives its authority. The government has to function but limited by a body of a fundamental law. Constitutionalism opposes any kind of arbitrary rule by a person or a group of persons. It simply means that public or government officials are not free to do anything. They are not free to behave in any manner as they please. The very essence of Constitutionalism is a limited government which is directed by a higher authority, the will of the

Difference between Constitution and Constitutionalism

A Constitution is a body of ideas, a system of fundamental principles that not only describes and prescribes the nature of functions of the government but also enumerates the limits of a government. A Constitution is an arrangement that decides as to how the society is to be governed by structures politically, legally and socially. The nature of democracy is directly affected by the Constitution of the land. A Constitution is a group of those principles according to which the relations between the governed and the government are adjusted. It also decides the powers of the government. On the other hand, Constitutionalism is a group of those ideas that restrict the govt. in using its powers. A Constitution is desirable as one essential trait for Constitutionalism. Montesquieu has given the democratic world the idea of ‘Separation of Powers’ and ‘Checks and Balances’ between the Legislature, Executive and Judiciary, the three organs of the government . In a democracy there is a separation of powers between the

Legislature, Executive and the Judiciary. They work independently yet also work interdependently with each other. They keep a check on each other, thus curbing any tendency of any kind of arbitrary rule. Another basic tenet of Constitutionalism is rule of law. It is the law which should be supreme in a country. A limited government is another essential ingredient in Constitutionalism. The government has power and a limit on these powers is Constitutionalism. When we practice Constitutionalism, it means that the government, as well as the people, it represents have voluntarily moved away from arbitrary government. Despotism and arbitrary powers have no link with Constitutionalism. Every Constitution should have an inbuilt system of restrictions. The inbuilt system of restricting a government from using its powers arbitrarily is called Constitutionalism. Only when we have this provision, can citizens of a country enjoy the various liberties and freedoms. Only then would equality and justice prevail.

But a vocal promise from any government does not guarantee Constitutionalism. When governments observe and practice these limitations itself, we can be assured that the government is working according to the idea of Constitutionalism. ‘In framing a government which is to be administered by men over men, the greatest difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself’.1 The aim of any government is to find and work for the collective good of the society. Any government cannot satisfy everybody but its efforts should be to fulfill the interests of the maximum people.

1     Faizan Mustafa, ‘Celebrate Constitutionalism ; Without it Constitution is rendered meaningless’, The Tribune, Chandigarh, 30 November, 2015, p. 7. But it has to work in such a way that the dignity of individuals remains intact. It also means that the government should not interfere in the personal space of the individual. The liberties of the citizens should not be compromised. The government is supposed to promote and protect certain liberties of the people. The government has power to help people enjoy their liberties. This same power of the government needs to be limited. ‘Constitutionalism is basically the anti-thesis of authoritarianism. The main purpose of drafting a Constitution is to limit or restrict the power of government and its three organs’.2

History of Constitutionalism

Two renowned scholars Thomas Hobbes and John Locke propagated the theory of an unlimited sovereign. They felt that no control, no limits were applicable on the sovereign who framed laws but were not applicable on the sovereign himself. On the other hand, we have John Austin, an English legal theorist who believed that law is command of the sovereign and that no one except the sovereign could command himself/herself/itself. We have the example of Magna Carta which was signed in 1215 that restricted the powers of the Monarch. One of the earliest documents, the Magna Carta is arguably the best initiative to limit the government. It is the most celebrated document because it believed in the inherent dignity of the individual. It promised that the King could not levy taxes on his whims and fancies and no one could be imprisoned without trial. The Petition of Rights signed in 1628 between the King and the Parliament is another strong guarantee for the rights of the subjects against the arbitrary rule of the Monarch. It protected the civil rights of the common people. It saved them from forced loans levied by the King and also prevented soldiers from being stationed in people’s homes.

The Bill of Rights in 1689 further cemented the dignity of people of United Kingdom. It guarantees rights of the citizens and also the power of the Parliament. The Bill of Rights of 1689 was just one of the inspirations for the United States to pass its Bill of Rights giving freedom and rights to the American citizens. Passed in 1789 incorporating ten amendments, the Bill of Rights in the US guarantees the citizen not only respect but also checks arbitrary rule. Besides the Magna Carta, Petition of Rights and Bill of Rights, the Habeas Corpus Act of 1679 and the

2    Ibid.Parliamentary  Acts  of  1911  and  1949  are  the  other  important  documents  that  encourage

Elements of Constitutionalism

Drafting a Constitution and adapting it does not mean that Constitutionalism is in vogue in that country. Constitutionalism can be felt when the government of that country observes the limitations and practices according to it. Constitutionalism means when the government has powers but limits itself and does not act arbitrarily. ‘Governmental power must be restricted so the government does not destroy the very values it is supposed to promote’.3 A government which wants to act as a despot will not stop just because there are restrictions within the Constitution. Governments need to look inwards and follow the restrictions on its own. The endeavour of respecting human dignity should be so deep entrenched that the government can pass on the same trust to the people and vice-versa. The government has to work according to the Constitution and according to the ethos of the Constitution. The government should not ever think itself above law. A democratic structure expects the government to tow the line of the

3   Ibid.

people. Democracy encourages representative government where sovereignty rests with the people. The representatives elected by the rulers have to exercise authority on behalf of the people. The peoples will matters. It is genuine and it has to be accepted. Only then can democracy, true in spirit, be established. A despotic or an authoritarian regime cannot do justice to democratic norms for they have no respect for the mandate of the people. Democracy and Constitutionalism are closely knitted. The practice of one leads to the survival of the other. Rule of law is not applied or given any importance in authoritarian regimes. This is not a good sign for Constitutionalism. In such regimes, though a Constitution may be drafted and maintained. Constitutionalism has scant regard. Rule of law provides equality to all people. Even the public officials are included in rule of law. An Independent Judiciary,Habeas Corpus and Judicial review are steps to guarantee Constitutionalism under rule of law. Constitutionalism would be considered the supreme document of the land only when rule of law is established. It advocates supremacy of law and a political system governed by laws, rules and regulations. Friedrich says ‘ Constitutionalism by dividing power provides a system of effective restraints upon governmental action. In studying it , one has to explore the methods and techniques by which such restraints are established and maintained. It is a body of rules ensuring fairplay, thus rendering the government ‘ responsible.’4 The govt. has to conform to certain rules and regulations. Under Constitutionalism the govt. has to work according to defined procedures. The media which is also termed as , ‘ the fourth estate,’ functions freely and effectively. The existence and flourishing of a plural society where all have freedom , equality and dignity are the other hall marks of Constitutionalism. Change is peaceful and not violent so that the political system does not have to undergo any stress. The restrains on the govt. have to be effective.

Constitutionalism in United Kingdom

United Kingdom boasts of an unwritten Constitution yet because of the various conventions that are highly respected by the people and because the conventions have stood the test of centuries, political scientists feel that United Kingdom has a vibrant Constitution. Though

4  Carl J. Friedrich, 1964, Constitutional Government and Democracy , Oxford and IBH, Calcutta, p. 25 the Constitution is un-codified, yet the spirit of Constitutionalism is followed in practice . Democracy in United Kingdom is the result of centuries of struggle against despotism and tyranny. The struggle for rights and dignity of the citizen spanned centuries. Alongwith the struggle between the Parliament and the King, the floating of new ideas by great political scientists themselves gave a new impetus to the idea of Constitutionalism. The Habeas Corpus 1679 which was passed during the reign of Charles II prevented arbitrary imprisonment of any citizen and further gave the Courts the power to examine the reasons and lawfulness behind a person’s detention. The Parliament Act of 1911 and 1949 confirmed the domination of the House of Commons over House of Lords as the latter was considered a ‘Conservative stronghold’ and would put obstacles in the way of progressive legislation.

The Representation of the People Act 1918 also known as the Fourth Reform Act was a step to include all men over the age of 21 and all women above the age of 30 into the electorate system. The Representation of the People (Equal Franchise) Act 1928 gave all women over the age of 21 the right to vote. This Act is also known as the Fifth Reform Act or the Equal Suffrage Act. It was the Conservative Party that passed this Act which was surprising because prior to

this, the Liberal Party had initiated reforms in the nineteenth century. The Acts and Conventions have been inter-woven so delicately and so intricately that they give a push to Constitutionalism in the correct direction. The dialogue between Conventions and Acts of the Parliament is healthy as most Acts are framed keeping the various Conventions in mind. Conventions are rules that are not enforced by the law-courts. They are rules of the Constitution that prescribe the way in which legal powers should be exercised. They are usually unwritten yet they are important for they either limit powers of the government or clearly demarcate powers. They list how the State should function. Many conventions have been codified. Conventions and Acts together keep Constitutionalism alive in United Kingdom. Sir Ivor Jennings argues that legal rules cannot be separated from conventions while political scientists like A.V. Dicey separate the conventions from law. But the most important point is that conventions are respected in the United Kingdom. Conventions have the consent of the people, they take centuries to evolve and they have time and again proved equal to the trust reposed on them by the people. They limit the government and guarantee the smooth functionary of the political system. The main emphasis of the various Acts and Conventions is to uphold the dignity of the individual. Constitutionalism is alive in United Kingdom because it has suitable mechanisms to counter the powers of the State and credit goes to the government that it observes the sanctity of the limitations placed on it.

The effort was to suppress the autocrat, the despot and to work for the well-being of the whole society. Irrespective of one’s origin, every single individual has to be looked after. Constitutionalism can be seen in practice when the government respects the limits placed on it and works for the common good. In United Kingdom, Constitutionalism exists in a robust manner. The role of the Oppoition as a ‘Shadow Cabinet’ is constructive. The Speaker resigning from his/her Party and playing a neutral role in the House of Commons is another trait of a vibrant spirit of Constitutionalism. The Monarch, happy to function with the advice of the Cabinet and ready to offer advice and help makes Constitutionalism in U.K. a successful experiment.

Constitutionalism in the United States

In the United States which has the oldest written Constitution Constitutionalism means that the government derives its authority from the people. Constitutionalism is also based on the principle that the government is limited by a body of fundamental law. The Constitution of the United States was the first to adopt Montesquieu’s theory of separation of powers and checks and balances. The power of judicial review of the Supreme Court of the United States is a great check on the President of the United States as well as the Congress. The powers of the government are further limited by a Federal Constitution that gives nearly equal powers to the states. The American Constitution and Constitutionalism defends the individual’s natural rights. The American Constitution can be seen working when the citizens freedom of speech, religion are protected alongwith their right to life and property. The architects of the Constitution safeguarded these rights by stressing on having adequate checks on the powers of the government. Equality under law was just one step among others to check the arbitrary rule by a few. The Bill of Rights guaranteeing rights to the US citizen has another such step. The first ten amendments gave rights to the US citizen in a written form.

In the history of the United States, the Declaration of Independence of 1776, the framing of the Constitution in 1787 and the ratification of the Bill of Rights in 1791 are momentous steps in the journey of the Constitutionalism. The Constitution–makers were clear that the ultimate sovereign were the people. The government derived its sovereignty from the people. Though the day to day government affairs are carried on by a few elected representatives, yet the people remain the one with popular sovereignty. The government remains dependent on the people from whom they draw their powers. And it is the people who have the right to change the government or even amend the Constitution. Separation of Church and the State is another wise and rational step to check exploitation of the people as well as to check arbitrary rule. Impartial rules, that is, the rule of law governs the relationship between individuals as well as between individuals and the state. The beauty of rule of law lies in the fact that it is equally applicable on the rulers, elected representatives and all the public officials.

The smaller states , in the United States, were determined not to be dominated by the larger states, so the Constitution was framed according to the Virginia plan which is based on representation by population and the New Jersey plan that gave equal representation to all states. This is known as the ‘Great Compromise’. The result, while Senate gives equal representation to all states irrespective of population, the House of Representatives is composed on the basis of population. The balance of power has changed hands with the passage of time. The legislature was very powerful once and is described first in the Constitution. The powers have shifted to the Executive and the Supreme Court gradually. Powerful personalities as President and rulings/judgments by the Supreme Court have made them assume more powers. The distribution of powers between the Federal government and the States creates tensions. The States remain apprehensive of the Centre and its authority to step unto the spheres of the states. The restraint on the part of the Centre over itself in dealing with the states is a good example of Constitutionalism in practice. On the other hand, there are various platforms where the States co-operate with the Centre, but by keeping their powers intact.

Democracy is defined through free and fair elections, various liberties and rights. But democracy goes beyond all this. Democracy can be successful only when Constitutionalism exists. The later flourishes when rule of law is established, liberties are practiced, individual dignity is respected and by evolving a system that will not violate the rights. The final goal is to restrain the authority of the government and to defend the individual’s rights and liberties.

But even in the United States, the low voter turn-out and the control of few families on the political system is a great set-back to Constitutionalism. The high costs of campaigning and participation discourages the common person to contest elections. There has to be an honest deal

between the elites and various pressure interests groups to encourage maximum participation of the people. The monopoly of the elites has to be broken for Constitutionalism to continue in the same spirit of envisioned by founding fathers of the United States Constitution. Moving a step further after drafting a Constitution, putting the various provisions in practice and subsequently evolving new healthy practices are the hall-marks of American Constitutionalism.

The active role of the judiciary in many advanced countries as well in the developing countries is being termed as Juristoicracy. Democracy means rule of the majority but with increasing migration of people across continents, there are minorities present in every country. America itself is known as a ‘racial melting pot’, where one loses one’s race, prejudice of all kinds and becomes an American citizen with all rights and no discrimination. Minorities, in any country might feel threatened from the tyranny of the majority. Democracy in the real sense means not a rule by the majority but a democracy where minorities are protected by some written rules that even the Parliament cannot change and it becomes the duty of the judges to protect those rights of the vulnerable. In a nutshell, it is judicial review and Constitutionalism that can save the people of different countries from the tyranny of the majority. The elected representatives, of course, do not like the idea of judicial activism but the empowerment of the judiciary and the rights being constitutionalised seem to be the answer to protect the rights of people anywhere.

Conclusion

In a nutshell, we can say that Constitutionalism is a very positive concept which acts as a limit on the governments. Constitutionalism as an idea is growing since the past few decades. War, emergency, totalitarian regimes are the biggest enemies of Constitutionalism. In a war the govt. might restrict the rights of the citizens and take overwhelming powers in its hands, though temporarily. It might cite various reasons for justifying the increase in powers. But the greatest demand of the people should be that they should see to it that the govt. should restore the powers back to the people and place the restrictions back on itself. Emergencies like floods, famines, terrorist attacks etc. can again force the govt. to take , at times, harsh steps. Totalitarian regimes that crush the people’s will are the greatest threat to Constitutionalism. Such regimes do not have any qualms to power. Their means as well as their end is to usurp power. In such regimes, democracy, Constitution and Constitutionalism , all are in danger. Such dangers have to be mitigated , rather they have to be eliminated for Constitutionalism to flourish. In the past, Constitutionalism and Democracy were taken as one. Democracy has been welcomed as a government in which the people rule through their elected representatives. Constitutionalism is one step ahead of Democracy. It makes a democracy, a real democracy, where emphasis is laid on the restrictions on the government and where the government adheres to those restrictions.

References and Essential Readings:

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• Huntington, Samuel “The Change to Change: Modernization, Development and Politics”, inC.E. Black’s, ed., Comparative Modernization: A Reader, Free Press
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• Sarangi, Asha (2009), ed., Language Politics in India, New Delhi: Oxford University Press
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• and New York: Routledge