Definition:
Constitutional law consists three issues: the institutions of the govt, the powers of the govt and the relationship between the govt and the individual citizens.
Constitutional law is the fundamental law, without a constitution the legal system can not operate.
A constitution is a set of rules, generally written, which identify and regulate the major institutions of the stale, i.e. the executive, the legislative and the judiciary; delineates their ambits of power and govern the inter-relationship between them; and explain the rights and freedoms of citizens.
[Thomas Jefferson, Philadelphia July 4. 1776. the United States Declaration of Independence]
“We hold these truths to be self-evident. That all men are created equal. That they are endowed by their creator with certain inalienable rights. That among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive of those ends, it shall be the right of the people to alter or abolish it, and to institute new government, laying its foundations upon such principles, and organising its powers in such form, as shall seem to them most likely to effect their safety and happiness.”the time he mentioned this law didn’t recognise the women participation in law, the man and the white used to control the society. the first time english law recognise in 1975, through the race discremination act 1976. still we don’t have the age discremination act but we are campaigning for that.
Wheare, in his Modern Constitutions, defines the word ‘constitution’ as follows –
The word ‘constitution’ is commonly used in at least two senses in any ordinary discussion of political affairs. First of all it is used to describe the whole system of government of a country, the collection of rules which establish and regulate or govern the government. These rules are partly legal, in the sense that courts of law will recognize and apply them, and partly non-legal or extra-legal, taking the form of usages, understandings, customs, or conventions which courts do not recognize as law but which are not less effective in regulating the government than the rules of law strictly so called.
[This is known as the wider definition of the word constitution]
In almost every country in the world except Britain, the word ‘constitution’ is used in a narrower sense than this It is used to describe not the whole collection of rules, legal and non-legal, but rather a selection of them which has usually been embodied in one document or in a few closely related documents.
Classifications:
a) Written and Unwritten
b) Rigid and Flexible
c) Supreme and Subordinate
d) Federal and Unitary
e) Separated powers and fused powers
f) Republican and monarchical.
a) Written and Unwritten
UK, New Zealand and Israel-unwritten constitution.
The UK’s constitution is unwritten: due to history, the gradual development of the UK constitution, not necessary to frame a single document.
The sources of the UK constitution that are part written and part unwritten: conventions, works of authority, Acts of Parliament, the common law, and EU law.
A written constitution is one contained with a single document or a series of documents, with or without amendments, defining the basic rules of state.
The origins of written constitutions lie in the American War of Independence (1775-83) and French Revolution (1789).
Advantages:
1. Written constitution is very definite where the people can refer to a document which contains all fundamental principles with regard to this structure and working of the government.
2. The powers of the various organs are clearly defined in the constitution and there are fewer chances of confusion and disputes. If a dispute arises, it can be referred to the judiciary, whose duty is to decide it.
3. It is usually stable and avoids the fear of uncertainty.
Disadvantages
1. The major defect is rigid. It may not be-easy to amend the constitution to suit thechanged circumstances.
2. Written constitution may fail to keep itself in touch with the changing needs of the society. Lord Macaulay says, ‘the great cause of revolutions is that while nations move onward, constitutions stand still’.
3. Judges become powerful
Un written Constitution-Advantages:
1. The flexibility.
2. No necessity of breaking the constitution because it can be bent and adjusted to suit the changed circumstances: in times of war or emergency.
3. Society keeps on changing and along with that the constitution must up to date, which is easy in unwritten constitution.
4. Very easy to adjust the relations between various organs of the government.
Disadvantage
1. The main defect is that it is vague and indefinite.
2. Citizens may not be aware of the constitutional system of the country because he can not find the documents which he requires to understand the structure of the government of his country.
3. An unwritten constitution normally requires a very high degree of political consequences among the people to understand its spirit and ordinarily that is not easy to find.
4. An unwritten constitution is unstable and there is no guarantee of solidity and performance.
b) Rigid and Flexible
Dicey described the terms ‘rigid’ and ‘flexible’ in The Law of the Constitution, 10th ed, 1959.
Flexible constitution as:
one under which every law of every description can legally be changed with the same ease and in the same manner by one and the same body.
The British constitution is flexible .The normal legislative process of passing Acts through Parliament is sufficient to change the constitution and this can be done quickly, as in the case of the annual passage of the Prevention of Terrorism Act which has a bearing on a person’s individual rights and freedoms. For example Acts of Union 1707, Parliament Act 1911 and 1949, Human rights Act 1998 have a bearing on the political system.
He defined a ‘rigid’ constitution as:
One under which certain laws generally known as constitutional or fundamental laws cannot be changed in the same manner as ordinary laws.
Marshall and Moodie point out:
A constitution which is inflexible and difficult to amend in the formal sense may have been amended without difficulty in fact. Conversely, a constitutional system which is flexible in the sense of having a formally uncomplicated procedure for legal change may be one in which for political or social reasons fundamental changes are extremely difficult to bring about.
The American constitution is rigid. Although special majorities are needed from the constituent States in the US Congress to change the constitution, the inflexibility of this arrangement is balanced by the activity of the US Supreme Court.
Advantages:
1. Can be changed according to the circumstances. Ex: detention
Disadvantages
1. If a constitution is very flexible then there is a danger of instability.
2. The constitution can be easily manipulated by the hands of the politicians and statesman where they keep on chaining it to suit their whims and vested interests.
3. There is a possibility of confusion and chaos.
Rigid Constitution
Advantages:
1. It is definite, stable and certain. The people of that country know the constitutional law of the country and they have no uncertainty with regard to its future.
2. No dishonest politician or political party can change it overnight.
3. The various interests in the country are protected.
Disadvantages
1. It can not be changed to adjust itself to the changed circumstances.
2. Even things change they lake a lot of time to do so.
3. In many cases people have revolted and set aside a rigid constitution
c) Supreme and Subordinate
A ‘supreme’ constitution refers to a state in which the legislative powers of the governing body are unlimited.
A subordinate constitution is one whose powers are limited by some higher authority.
The Northern Ireland Assembly; the Scottish Parliament and the Welsh Assembly.
d) Federal and Unitary
Federal Constitution
Dicey defined federalism as ‘the distribution of the force of the state among a number of co-ordinate bodies each originating in and controlled by the constitution’.
In a federal constitution several provinces are joined together under one constitution-each of those provinces (States) has the responsibility for dealing with certain matters within its own jurisdiction. The powers and functions of government are divided between the national government and the provinces. Ex: U.S.A, Canada and Australia.
Unitary Constitution
A unitary State is where power is concentrated in one body or in a single source. Dicey noted that it means ‘the concentration of the strength of the State in the hands of one visible sovereign power be that Parliament or Czar’
Britain is a unitary state, where sovereignty resides with the central government. This means that all ultimate power in the UK is held by the central government at Westminster. Any power that local government or regional government appears to have is delegated to it by the central government and can be taken back at any time. Constitution of a unitary state is called a unitary constitution.
The terminology of constitutional & administrative law
[The following extract is taken from Carroll: Constitutional & Administrative Law pp6-13]
“Not all of those who come to the study of constitutional and administrative law for the first time will be entirely familiar with its language and terminology. Thus, for example, difficulty may be found in giving exact definition to, and distinguishing between, such concepts as the Crown, the Monarch, the government, Parliament, etc. Such conceptual problems are understandable as not all of these are capable of being given entirely distinctive and particular meanings. It is hoped, however, that the pages that follow will help to dispel some of these uncertainties and make for greater comprehension of the institutional context in which the subject operates.
a) The Monarch
This is the person who occupies the throne and who, by virtue of which, is recognised by law and tradition as Head of State. The right of succession to the throne is determined both by traditional hereditary principles (i.e. is reserved to the eldest male heir and, in the absence of which, to the eldest female) and by conditions laid down by Parliament in various enactments – principally the Act of Settlement 1700. This provided that in the absence of any issue by Queen Anne (1701-14). The right of succession should be confined to the Princess Sophia of Hanover ‘and the heirs of her body being Protestants’. It was by virtue of this enactment that the first of the Hanoverian monarchs, George 1 {Hi 4-27). Succeeded to the throne after Queen Anne’s death.
As Head of State, the executive, legislative and judicial functions of government are all performed in the Monarch’s name and by his or her appointees. The Prime Minister and other members of the government are the King or Queen’s Ministers. Law is made by the King or Queen in Parliament, i.e. with the consent of the Commons, Lords and Monarch. The same law is administered in the Royal Courts of justice by the King or Queen’s judges.
In this personal sense, it is still accepted that ‘the King can do no wrong’. Hence the Monarch may not be prosecuted for any criminal offence or sued for breach of any civil obligation.
b) The Crown
As the following quotation explains, the term has been given various meanings. The expression ‘the Crown’ may sometimes be used to designate Her Majesty in a purely personal capacity. It may sometimes be used to designate Her Majesty in Her capacity as Head of the Commonwealth. It may sometimes be used to designate Her Majesty in Her capacity as the constitutional Monarch of the United Kingdom. The expression may sometimes be used in a somewhat broad sense in reference to the functions of government and the administration. It may sometimes he used in reference to the Rule of Law … The case for the prosecution is the case for the Crown’ (per Lord Diplock. Town Investments Ltd v Department of the Environment [1978] AC 359).
For all practical purposes, however, and in terms of everyday usage and understanding, it is the fourth of these meanings which should be preferred. Thus when ‘the Crown’ is spoken of in constitutional law. This is normally for the purpose of referring to all those institutions and, in particular, central government departments and those who work within them (civil or ‘Crown’ servants), who are responsible for managing public affairs at a national level.
‘Where … we are concerned with the legal nature of the exercise of executive powers of government, I believe that some of the more Athanasian-like features of the debate in your Lordships’ House could have been eliminated if instead of sneaking of ‘the Crown’ we were to speak of the ‘government’ – a term appropriate to embrace both collectively and individually all the Ministers of the Crown. and parliamentary secretaries under whose direction the administrative work of government is carried on by the civil servants employed in the various government departments … Execution of acts of government that are done by any of then: are acts done by ‘the Crown’ in the fictional sense in which that expression is now used in English public law ‘(ibid.).
In this institutional rather than personal sense, the Crown is a ‘corporation sole’. This means that, unlike the Monarch, it has a definable legal capacity and may sue and be sued in the ordinary courts of law.
c) The Sovereign
d) The state
e) The realm
The fact that the concept of the state does not have any great political or legal significance in the language of English constitutional law is largely due to historical factors and to The ancient nature of the institutions around which the constitution has developed, just as these have survived, so has the language of those earlier times in which such institutions were founded. Hence, according to what may be called the language of tradition, the territory over which the king or queen (now the Crown in the form of the central government) exercised political power by right of succession and/or battle was properly referred to as ‘the realm’. In constitutional law, therefore, the term has a similar meaning to that of ‘the state’ when the latter is used to describe the area over which the government has authority.
f) The government
This is yet another term capable of various meanings. It may be used, for example, as a collective noun for all those who hold ministerial office at any particular time. These will all be persons with seats in the House of Commons or House of Lords (most in the Commons). The number of ministers of which any government may consist is not fixed, but will usually be in the region of one hundred to one hundred and thirty. These will range from the heads of major departments (‘Secretaries of State’), to .second-tank ministers, usually referred to as ‘Ministers of .Slate’, down to the more junior ministers with titles such as ‘Under Secretaries of State’ or ‘Parliamentary Secretaries’.
The ‘government’, in this sense, should not be confused with the political party which ‘won’ the last General Election and holds a majority of the seats in the House of Commons. Hence, after the 1997 General Election, the party ‘in power’ was New-Labour with 419 MPs. Those given ministerial office by Mr. Blair became members of the government. Those not chosen remained merely backbenchers of the parliamentary (New) Labour party.
The word government is also sometimes giver, a more extensive meaning which includes all of those institutions and persons: national levels who are concerned with the making and execution of policy. In this sense the term is not dissimilar to the institutional meaning of’ the Crown’ and would encompass all those ministers and civil servants which comprise the central administration. Government also has a functional meaning in that it may be used to refer to the process through which the nation’s affairs are regulated and protected. In this sense government means an activity rather than a particular combination of individuals or institutions.
g) The Cabinet
This refers to that senior group of ministers (usually 20-24) who meet weekly or twice weekly with the Prime Minister to determine government policy, and action. Most of these will be the heads of major government departments. Others will have responsibility for a variety of activities which must be discharged effectively if the government is to survive and prosper. Hence the cabinet will usually include ministers with responsibility for managing government business in the House of Commons (Leader of the House of Commons) and in the House of Lords (Lord Privy Seal). The Lord Chancellor, who has overall responsibility for the legal system and the Chancellor of the Exchequer’s “No. 2′ at the Treasury, the Chief Secretary to the Treasury, will also be included. It should be noted, therefore, that not all members of ‘the government’ (i.e. all ministers) are members of the Cabinet. Nor is the Cabinet composed purely of those with responsibility for the major government departments (viz. Secretaries of State).
h) The executive
This is a term used collectively to refer to all those institutions and, persons concerned primarily with the implementation, of law and policy. Hence all central and local government departments would generally be included as would the police and the armed forces. Precluded from the definition are all those engaged in making law as opposed to enforcing it. Hence it would be improper to regard Parliament or the judiciary as failing within the term’s usual meaning
i) The legislature
When the term is used in-domestic constitutional and may be understood as referring to the Parliament. For the purposes of enacting legislation the Parliament of the United Kingdom consists of the House of Commons, the House of Lords and the Monarch.
Not all law in the United Kingdom is made by Parliament; many important legal rules are made by the judges and become part of the common law. Others are made by government ministers and local authorities under powers Parliament has delegated to them (delegated or subordinate legislation). In the context of their law making functions, neither the judges, ministers nor local authorities should be understood as parts of the legislature. This remains the case notwithstanding that the most senior judges (the ‘Law Lords’) and all government ministers have seats in one or other House of Parliament.
j) The judiciary
In the United Kingdom all those who preside over courts of law may rightly be defined as members of the judiciary. Those who preside over administrative tribunals would not generally be regarded as falling within the definition.
There is no absolutely convincing formula for distinguishing between the functions of a judge and those who chair tribunals. The practice and procedure of some tribunals is almost indistinguishable from that typical of courts of law (e.g. the Immigration Appeals Tribunal). Those who preside will usually be required to have qualifications similar to those holding judicial office proper. In such cases to deny that the presiding official is ‘a judge probably has more to do with tradition than with functional accuracy. Other tribunals may conduct their proceedings more informally than courts of law and may be staffed by ‘lay persons with only the chairperson being legally qualified (e.g. Social Security Appeals Tribunals). Decision making in others may involve the application of discretion and policy as well as legal rules (e.g. the Civil Aviation authority). In such instances the logic for excluding those presiding from the definition of the word ‘judiciary’ may be more obvious.
Also, in many instances those who chair administrative tribunals are not accorded the same independence and security of tenure (‘i.e. legally guaranteed protection from executive interference) as is normally thought essential from those sitting in courts of
law in the traditional sense.
k) Local government
Local government in England and Wales is the responsibility of the elected councils which direct the affairs of the various county, district and ‘unitary’ authorities in their provision of essential public services. Such authorities are created by and receive their powers from Acts of Parliament. The employees of local authorities are paid out of local funds and are not civil or crown servants.
Local authorities are funded by local taxation (‘council tax’), government grants and through borrowing. In strict constitutional terms, such authorities are not under the direct control of central government. The latter does, however, exercise considerable influence over local government affairs through various statutory procedures, including the inspection of local government services, the requirements for ministerial consent prior to the implementation of certain decisions (e.g. the application of a compulsory purchase order or the closure of a school), the issuing of directions to authorities not fulfilling their statutory obligations and the power to assume responsibility for certain local government functions should an authority be found to be ‘in default’ (see Education Act 1944). The central government may also seek to exert its will through its control of Treasury’ grants to local authorities and its ultimate, albeit seldom used, power to withhold monies where dissatisfied by the standards of service provided by a particular authority.