What Is Concept Of Constitutionalism

 The concept of constitutionalism is that of a political system governed by or under a constitution that ordains essentially limited government and rule of law as opposed to arbitrary, despotic, authoritarian or totalitarian rule. Constitution of a country lays down the basic structure of the political system under which its people are to be governed. It establishes the main organs of the state — the legislature, the executive and the judiciary, defines their powers, demarcates their responsibilities and regulates their relationships with each other and with the people. Constitutional government, therefore, should necessarily be democratic government. Also, constitutionalism is a natural concomitant of a written constitution inasmuch as a written constitution is bound to define and delimit the powers and functions of various organs of the state and a government under a written constitution can only be a limited government. But, it is certainly conceivable that some countries - there have been many examples — may have written constitutions which are not really democratic. It can be said that they have constitutions but not constitutionalism - Also, there are instances where there is no written constitution, but democracy and constitutionalism prevail Israel and U.K are obvious examples.

When we talk of constitutionalism, we normally mean that there are rules creating legislative, executive and judicial powers, but also that these rules impose limits on those powers. Often these limits are in the form of individual or group rights against the government, like rights to free expression, association, equality and due process of law. But constitutional limits come in a variety of forms. They can concern such things as the scope of authority (e.g., in a federal system, provincial or state governments may have authority over health care and education while the federal government's jurisdiction extends to national defence and transportation); the mechanisms used in exercising the relevant power (e.g., procedural requirements governing the form and manner of legislation); and civil rights (e.g., in a Charter or Bill of Rights). Constitutionalism in this richer sense of the term is the idea that government can and should be limited in its powers and that the beginning of its authority depends on its observing these limitations.

In discussing the history and nature of constitutionalism, a comparison is often drawn between Thomas Hobbes and John Locke who are thought to have defended, respectively, the notion of constitutionally unlimited sovereignty versus that of sovereignty limited by the terms of a social contract containing substantive limitations. But an equally good focal point is the English legal theorist John Austin who, like Hobbes, thought that the very notion of limited sovereignty is incoherent. For Austin, all law is the command of a sovereign person or body of persons, and so the notion that the sovereign could be limited by law requires a sovereign who is self-binding, who commands himself or herself. But no one can "command" himself or herself, except in some figurative sense. So the notion of limited sovereignty is, for Austin (and Hobbes), as incoherent as the idea of a square circle. Though this feature of Austin's theory has some surface plausibility when applied to the British Parliamentary system, where Parliament is often said to be "supreme" and constitutionally unlimited, it faces obvious difficulty when applied to most other constitutional democracies such as one finds in the United States and Germany, where it is clear that the powers of every organ of the State are legally limited by a constitution.

Another important feature of constitutionalism is that the limits upon the powers of organs must be such as are amendable only by law or by way of "constitutional convention." In other words, those whose powers are constitutionally limited — i.e., the organs of State — must not be legally entitled to change or exceed those limits at their pleasure. Most written constitutions contain amendment procedures which can be triggered by, and require the participation of, the government bodies whose powers they limit. But these procedures invariably require something more than a simple decision on the part of the government of the day to invoke a change. Sometimes constitutional assemblies are required, or super-majority votes, referenda, or the agreement of not only the central government in a federal system but also certain number or percentage of the governments of regional units within the federal system. Amendments to meet the changing societal needs not only facilitate a degree of stability over time (a characteristic aspiration of constitutional regimes), it is arguably a requirement of the very possibility of constitutionally limited government.

Some scholars believe that constitutional rules do not exist unless they are in some way enshrined in a written document. Others argue that constitutions can be unwritten. The latter cite, as an obvious example of this possibility, the Constitution of the United Kingdom. However, it must be noted that although the UK has nothing resembling the American Constitution and its Bill of Rights, it nevertheless contains a number of written instruments which arguably form a central element of its Constitution. Magna Carta, (l215_A.D.) is perhaps the earliest document of the British Constitution, while others include the Petition of Rights (1628) and the Bill of Rights (1689). Furthermore, constitutional limits are also said to be found in certain principles of the common law, explicitly cited in landmark cases concerning the limits of government power. The fact remains, however, that Britain seems largely to have an unwritten constitution, suggesting strongly that writtenness is not a defining feature of constitutionalism.

The idea of constitutionalism is usually that of putting legal limits on power and authority of State organs. But, there is more to a constitution than constitutional law. It includes constitutional conventions, practices and precedents. Also, it must be understood in the context of constitutionalism that it is wrong to regard a country's constitution as a mere inert document. For, constitution is not only what is written in the text of the constitution. Constitution is a living organism of functioning institutions. It keeps constantly growing, evolving. Every constitution gets meaning and content only from the manner in which and the people by whom it is operated, the effects it acquires from how it is interpreted by courts of the land and what conventions and practices grow around it in the actual process of its working.

 

A democratic political system becomes a prerequisite for constitutionalism to flourish. A political system which is in conformity with the principles of constitutionalism must of necessity, inter alia, provide restraints and limitations on the exercise of powers by the organs of the State. Sovereignty belongs to the people but constitutionalism forbids the people from attempting political change through violent means. It has got to lay down a system of checks and balances. Separation of powers between the legislature, the executive and the judiciary is one such device and in case of federal systems, distribution of powers between different tiers of government, is another. Arbitrary powers in the hands of any individual or institution — even if conferred by a constitutional document — are a negation of the concepts of constitutionalism, sovereignty of the people and basic rights of individual citizens.