CONSTITUTIONALISM AND RULE OF LAW

1. CONSTITUTIONALISM AND RULE OF LAW eadarkoh

2. Scope of Presentation • Elements and Substance of a Modern Constitution • The Meaning of Constitutionalism • Rule of Law • Relationship between Constitutionalism and Rule of Law eadarkoh

3. The Modern Concept of Constitution • We normally, consider constitutions as recent development. • Even though the evolution of the British Constitution is sometimes traced back to: • The Bill of Rights of 1689, and • The Act of Settlement of 1701 • Or even the Magna Carta 1215 • The ‘age of constitutions’ was initiated by the enactment of the first ‘written constitutions: • the US Constitution in 1787 and • the French Declaration of the Rights of Man and the Citizen in 1789. • The examples of the United State of America and revolutionary France did the following: • provided in form and substance a model for later constitution-makers to follow, • shed light on why and how constitutions come about. eadarkoh

4. The Modern Concept of Constitution (cont’d) • Constitutions are normally put in place after major political developments. • First, they enacted to mark a major breach in political continuity, usually resulting from an upheaval such as war, revolution or national independence. • Second, constitutions are above all a means of establishing a new political order following the rejection, collapse or failure of an old order. • In this light, the revival of interests in constitutions since the 1970s • (with new constitutions being adopted in countries such as: • Portugal, Spain, Canada, Sweden and the Netherlands, • The issue of constitutional reform becoming more prominent in, for example, the UK, India and Australia) indicates growing disenchantment, even disillusionment, with existing political system. eadarkoh

5. The Modern Concept of Constitution (cont’d) • In general, political conflict assume a constitutional dimension only when those demanding change seek to redraw, and not merely readjust, the rules of the political game. • Constitutional change is therefore about the reapportionment of both power and political authority. • For instance: • despite the enactment of four successive constitutions, in 1918, 1924, 1936 and 1977-the Soviet Union strove with limited success to achieve legitimacy. • This occurred both because: • Many of the provisions of the constitution, notably those stipulating individual rights, were never respected, • Major principles like the Communist Party’s monopoly of power simply did not correspond with the values and aspirations of the mass of the Soviet people. eadarkoh

6. Constitutions and Legitimacy • Conformity to accepted rules may be a necessary condition for legitimacy, but it is not a sufficient one. • Constitutional governments may establish legitimacy if they ensure that government rests upon the consent of the people. • The idea of consent arose out of social contract theory. • John Locke, for instance, was perfectly aware that government had not in practice developed out of a social contract, but argued, rather, that citizens ought to behave as if it had. • He developed the notion of ‘tacit consent’ and implied agreement amongst citizens to obey the law and respect government. • Political participation is thus the active expression of consent. eadarkoh

7. Constitutions and Legitimacy (cont’d) • Many forms of political rule have sought legitimacy through encouraging expressions of popular consent. • This applies even in the case of fascist dictatorships like Mussolini’s Italy and Hitler’s Germany, where considerable effort was put into mobilizing mass support for the regime by plebiscites, rallies, marches, demonstrations and so on. • Even one-party states, such as orthodox communist regimes, found it desirable to maintain elections in the hope of generating legitimacy. eadarkoh

8. Constitutions and Legitimacy (cont’d) • Quite simply, voters rarely regarded non-competitive election as meaningful form of political participation. • The act of voting is a genuine expression of active consent. • Liberal-democratic regimes maintain legitimacy through their willingness to share power with the general public. • The significance of single-party and single-candidate elections was however, limited to their propaganda value. eadarkoh

9. Elements of a Modern Constitution The constitution of the modern nation-state contains three main elements. • First, it establishes the principal institutions of government and relationships among these institutions. • division of executive, legislative and judicial responsibilities (separation of powers). • Second, constitutions provide for a distribution of governmental power over the nation’s territory, unitary or federal systems. • Finally, constitutions provide a compendium of fundamental rights and duties of citizens including their rights to participate in the institutions of government. • Some constitutions emphasize economic and social rights as much, if not more, than political and legal/procedural rights. eadarkoh

10. The Substance of Constitutions • A Preamble: The preambles usually state the authority by which the constitutions are established and for what purpose. • The preamble to the constitution of Ghana, for example states that: In the Name of the Almighty God, we the people of Ghana, in the exercise of our natural and inalienable right to establish a framework of government which shall secure for ourselves and posterity the blessings of liberty, equality of opportunity and prosperity; in a spirit of friendship and peace with all peoples of the world; and in solemn declaration and affirmation of our commitment to; freedom, justice, probity, and accountability; the principles that all powers of government spring from the sovereign will of the people; the principle of universal adult suffrage; rule of law; the protection and preservation of fundamental human rights and freedoms, unity and stability of our nation; do hereby adopt, enact and give to ourselves this constitution”. eadarkoh

11. The Substance of Constitutions (cont’d) • The constitution of the United States of America has the following preamble: • “We, the people of the United States in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, to ordain and establish this constitution for the United States of America”. eadarkoh

12. The Substance of Constitutions (cont’d) • The Structure of Government: All constitutions specify the major organs of the government, mode of appointment and removal of Public office holders. • Distribution of Power: Most constitutions have rules specifying what the various organs of government and the main governing officials are authorized to do. • The powers of the three organs of government; the legislature, the executive and the judiciary, are spelt out in detail in the constitution. • All federal constitutions distribute powers between the national and unit governments. • The 1999 Constitution of Nigeria for example gives certain specific delegated or enumerated powers to the national government and reserves the rest for the states. eadarkoh

13. The Substance of Constitutions (cont’d) • Rights of Individuals: All modern constitutions provide for individual and collective rights. These rights are of two main types. • First, there are those constitutionally guaranteed individual freedoms, civil liberties, and political, social, legal and participatory rights. • Second, there are obligations of government. • These include guarantees of the rights to work, to education and to safety of individuals. • In the 1992 Constitution of Ghana, the rights and liberties of citizens are provided for in two chapters; under the headings: • Fundamental Human Rights and Freedoms (chapter five) and • The Directive Principles of State Policy (chapter six). eadarkoh

14. The Substance of Constitutions (cont’d) • Amendment Procedures: Most constitutions specify the procedures by which they may be formally amended. • Amendment procedure varies from constitution to constitution. • Very few modern constitutions for example New Zealand and Britain are flexible in the sense that they can be amended by the same procedure used to pass laws. • Most constitutions are rigid; they can be formally amended by special procedures more difficult to accomplish than is the ordinary legislative process. • According to K.C. Wheare, “the special amendment procedures of the rigid constitution will be changed only after careful thought and not wantonly”. • Rigid procedures also allow the people an opportunity to express their views before changes are made. • This will prevent overbearing president from recklessly embarking on frequent changes to the constitution. eadarkoh

15. The Meaning of Constitutionalism • Constitutionalism is a political condition in which the constitution functions as an effective and significant limit on government. • In thought and in practice, constitutionalism consist in the belief that there must be a set of rules, procedures and institutional arrangements which effectively limit the exercise of governmental power and authority. • To G. Sartori, the kind of government constitutionalism insists on is limited government. • Limited government is also called ‘moderate government, constitutional government or free state. eadarkoh

16. The Meaning of Constitutionalism (cont’d) • Limited government is the very opposite of arbitrary government where governance is conducted at whim and caprice of the leader of the state. • The limits imposed by a constitution are sometimes said to embody a ‘higher law’-the enduring will of a people. • Predictability of action is the basic premise of constitutionalism while capriciousness or unpredictability is the mark of tyranny or dictatorship of one man. • Military government qua military government is dictatorship no matter how benevolent. • Where constitutionalism characterizes a regime, the constitution is antecedent to government, and those who govern are constrained by its terms. • Constitutionalism may be maintained by the practice of judicial review. eadarkoh

17. The Meaning of Constitutionalism (cont’d) • Constitutionalism entails the fundamental principle of accountability or responsibility of the rulers for their policies and actions to the ruled. • The reality of constitutionalism depends also on whether there are political forces genuinely independent of the government of the day powerful enough to insist on the government’s observance of constitutional limits. • The core idea of constitutionalism is that of countervailing power- the idea that power must be checked by power, or as James Madison puts it, “ambition must be made to counteract ambition”. eadarkoh

18. The Meaning of Constitutionalism (cont’d) • Constitutionalism also emphasizes conciliation, compromise, and self-restraint: • the ability and willingness to make just and inclusive decisions. • the ability and willingness to undertake many-sided and often prolonged negotiations while respecting and considering the other person’s point of view. • Obviously, constitutionalism entrenches the principle of accountability, probity, integrity among others. • There are two major ways of limiting the power and authority of government. • These are constitutional limitation, and • constitutional criticism. eadarkoh

19. The Meaning of Constitutionalism (cont’d) • A documentary constitution may spell out some of those things which are considered unlawful for government to do. • These are termed ‘outside limits’ • This was exactly what the founding fathers of the US did. • A good number of ‘outside limits’ are also found in the 2nd, 3rd, and 4th Republican Constitutions of Ghana where certain things are out of bounds. • For instance, under article 107 of the 1992 Constitution, Parliament shall not have the power to pass any law: • (a) To alter the decision or judgment of any court as between parties to that decision, or judgment or eadarkoh

20. The Meaning of Constitutionalism (cont’d) • (b) Which operates retrospectively to impose any limitations on or to adversely affect the personal rights and liberties of any person or to impose a burden, obligation or liability on any person except in the case of a law enacted under articles 178 to 182 of the constitution. • Constitutional criticism refers to the situation where one may not commit oneself in advance to ‘outside limits’ but would reserve at anytime the rights to criticize the government. • Example, to the effect that an action or decision of government has contravened a provision of the constitution is founded on the principle of constitutional limitation. • Constitutional limitation and constitutional criticism work together. eadarkoh

21. Mechanisms for ensuring Constitutionalism • The first mechanism is separation of powers. • The doctrine of separation of powers proposes that each of the three functions of government (legislation, execution and adjudication) should be entrusted to a separate branch of government: • legislature, executive and the judiciary. • The purpose of separation of powers is to fragment government power in such a way as to defend liberty and keep tyranny at bay. eadarkoh

22. Mechanisms for ensuring Constitutionalism • Independence of the judiciary. • Judicial independence is a constitutional principle that there should be a strict separation between the judiciary and other branches of government. • In most liberal democracies the independence of the judiciary is protected by: • their security of tenure (the fact that they cannot be sacked), and • through restrictions on the criticism of judges and court decisions. • In practice, the independence of judges may be compromised because of the close involvement of political bodies in the process of judicial recruitment and promotion. • This is why some analysts have referred to the objectivity of the judiciary only as a veneer. eadarkoh

23. The Meaning of Constitutionalism (cont’d) judicial review. • The power of judicial review was first exercised by Chief Justice John Marshall, in a case Marbury V. Madison (1803). • Judicial Review is the power of the judiciary to review and possibly invalidate laws, decrees and other actions of other braches of government notably the legislature and the executive. • It is seen by many as the cornerstone institution of liberal constitutionalism, as it ensures a government of laws. • Judicial review is greatly enhanced by written constitutions. eadarkoh

24. The Meaning of Constitutionalism (cont’d) Bill of Rights • A bill of rights is a constitutional document that specifies the rights and freedoms of the individual, and so defines the legal extent of civil liberty. • Entrenched bills of rights can be distinguished from statutory ones. • An entrenched bill of rights is enshrined in ‘higher’ law and thus provides the basis for constitutional judicial review. eadarkoh

25. The Meaning of Constitutionalism (cont’d) • Entrenched amendment procedure • Constitutions especially written ones have procedures for amendment. • This makes the amendment of various provisions in the constitution • Transparent, • Constitutional, and • prevents a group of people or a potentially tyrannical president to amend portions of the constitution at whim eadarkoh

26. The Meaning of Constitutionalism (cont’d) Rule of law • Rule of law is the principle that law should ‘rule’ in the sense that it establishes a framework to which all conduct and benhaviour conform, applying equally to all the members of society, be they private citizens or government officials. eadarkoh

27. The concept of Rule of Law • There seem to be a consensus among political and constitutional experts that the rule of law is the bedrock of constitutionalism. • Some even think that it is synonymous with constitutionalism. • Constitutionalism demands legality and legality implies the existence of law so an action/decision of a public official is legal because it is in accordance with the laws. • As John Locke said in his book “The Second Treatise of Civil Government”, the laws must be enacted or passed in advance by the appropriate authorities and then published for the information of the citizenry. eadarkoh

28. The concept of Rule of Law (cont’d) • The laws direct public officials as to what decisions or actions they must take and how they must take them. • The laws also direct the citizens concerning what the legal consequences of their actions would be. • The laws whatever their existence; once they have been passed is considered supreme. • This means all including public officials must obey the law. • Briefly, this is what is meant by legality namely: strict conformity or adherence to the law irrespective of its contents or substance. • In the Aristotelian and Christian traditions, natural law is presented as something resembling an eminent moral imperative and is applicable to and recognizable by all humans. • This is an account of all of them being the creatures of the same God/Allah. eadarkoh

29. Historical Perspectives of Rule of Law • The idea that nations ought to be governed by impartial, binding laws is not new. • Aristotle argued that the rule of law is almost always superior to the rule of unrestrained individuals. • He based his argument on the concept of fairness, which individuals are subject to appetites and passion for physical, mental and psychic satisfaction, the law represent or should represent “reason free from passion”. • Therefore a government of laws is superior to one of individuals. eadarkoh

30. The concept of Rule of Law (cont’d) • In his book, ‘The Laws’, Cicero stated as follows: • “There is nothing better than reason, which it exist in both man and God, the first common possession of man and God is reason. But those who have reason in common must also have right reason in common. And since right reason is law, we must believe that men have law also in common with God”. • John Lilburne, an English political radical said: • “The law of God or the law of reason is written in the heart of every man teaching him what is to be done”. eadarkoh

31. The concept of Rule of Law (cont’d) • John Locke said “The state of nature has a law of nature to govern it which obliges everyone- a reason which is that law teaches all maintained who will but consult it that being all equal and independent, no one ought to harm another in his life, liberty or possession”. • A basic tenet of all the quotations is that there are certain principles of human conduct discoverable by human reason to which human-made laws must conform. • Locke (1632-1704), defended the rule of law on the basis of its important relationship to individual freedom. • Locke believed that meaningful freedom could not exist outside the realm of law and politics and that good government must conform to certain important rules (for instance, taxes should not be levied without the consent of the people). • To Locke, these rules constituted ‘laws’ in that they comprise fundamental maxims of political life. • In other words, because they state the essence of what civil society was all about, to Locke they represented ‘laws above the law’ that necessarily and justly placed limitations on lawmakers, no matter how large a majority such lawmakers commanded. eadarkoh

32. The concept of Rule of Law (cont’d) • From Locke’s concept of a ‘higher order’, the idea of constitutionalism evolved. • As Locke noted (and as the inscription above the entrance to the Department of Justice building in Washington, D.C., reads), “wherever law ends, Tyranny begins”. • The significance of this tenet is the underlying assumption that human-made laws are not necessarily just or fair. • Therefore such laws cannot be considered supreme once they have been enacted. • In formulating the rule of law, the constitutionalists also proceed on similar assumptions namely that the rule of law articulates the fundamental belief of constitutionalism and not all things are lawful to government. • The rule of law involves the form of the law which is to be understood in this respect in two senses: • the specific, and • the general. eadarkoh

33. The Mechanisms of Due Process of Law (Rules of Natural Justice) • In the specific sense, the rule of law spells out certain procedural rule which the public officials must follow conscientiously in order to ensure what in American constitutional practice is called ‘due process of law’. This includes; • The authorities must hear both sides of the case or dispute, • They should not be judges in their own course, • They should consider all the relevant factors of an issue before them, • They should not be biased by fear/ favour/private interest, • Not only shall justice be done but it shall be seen to be done, • Good reasons should be given for decisions taken. eadarkoh

34. The concept of Rule of Law (cont’d) • These rules apply not only in the court rooms but also to all kinds of public officials (the legislature, the security services etc). • There are many other rules such as a man shall not be found guilty of any offence until he has been tried before a competent court of justice (court of competent jurisdiction). • Confessions acquired through torture go against natural justice. • There is no rule for what is called penal retrospective legislation, i.e. no person shall be found guilty of an offence which is not specifically stated in the criminal code. eadarkoh

35. The concept of Rule of Law (cont’d) • In the general sense, the rule of law is based on certain broad principles namely, freedom, justice and human dignity. • The action or decisions of public officials are criticized and assessed in terms of these broad principles. • The rule of law is incomplete if the law, decisions and actions of public officials do not enhance freedom, justice and human dignity. • It is in the combination of the specific and general sense that the rule is considered to be more than mere dignity . • Some even say that the rule of law is the same as constitutionalism itself. eadarkoh

36. The concept of Rule of Law (cont’d) • Clearly established legal frameworks are necessary to create a predictable and secure living and working environment for entrepreneurs, farmers, and other economic actors. • It calls for uniform application of the laws,-the rich and the poor are dealt with in the same way. eadarkoh

37. The concept of Rule of Law (cont’d) A fair and effective legal frame work requires that: • A set of rules that are known in advance exist, • The rules are enforced, • Means exist to ensure the application of the rules, • Conflict resolution is a function of binding decisions made by an independent and reliable judiciary. • That, procedures are in place for changing the rules when they cease to favour the purpose for which they were intended. eadarkoh

38. Guiding Assumptions of Constitutionalism and Rule of Law Our thesis is that: • First, constitutionalism is a necessary foundation of the rule of law; • Secondly, liberal constitutionalism acts as a minimal guarantee for the justice of both the content and the form of law; • Thirdly, liberal constitutionalism strikes a proper balance between rule of law and rule of person. • Finally, constitutionalism is safeguarded by the rule of law. eadarkoh