constitutional law essay

constitutional law essay

The Importance of Constitutional Law in a Democratic Society

1. Introduction

Although the protection of individual rights and freedoms may be seen as an overriding theme for the importance of constitutional law, it is an acknowledgement of the realities of political power and the need to seek to control that power which provides the foundation for the theoretical model which this essay espouses. A long historical struggle for rights and a long history in the violations of those rights are what have caused the people of many countries to seek the redress and prevention of abuses by means of a legal protection of their rights and an established legal framework for government action. An example of this in the UK was the increase in the restriction of the monarch’s arbitrary power, and the destruction of the notion that the king was above the law. The events leading to the Civil War caused the enshrining of the right to liberty in the Habeas Corpus Act, the Act of Settlement reinforced the rights of parliament and established that public money could not be spent without parliamentary consent, and the Bill of Rights, the often cited zenith in the UK’s constitutional history, which fundamentally changed the nature of government by setting out that there neither could be taxation nor standing army during peacetime without consent of parliament. Evident throughout these events is a movement towards providing a legal protection of certain rights and freedoms and a legal framework for government action.

From a theoretical viewpoint, the importance of law can be assessed through the extent to which it provides a setting in which the individual can pursue their goals freely, without the arbitrary interference of others. The principal way in which law provides such a setting is through the protection of rights and freedoms. The area of constitutional law addresses itself to providing the legal framework within which the exercise of state power takes place, and in so doing, it has an impact on the way in which the rights of individuals are protected.

This essay argues that the ongoing importance of constitutional law in a democratic society can be attributed to the fact that it provides a framework that protects and preserves the rights of individuals while at the same time preventing the abuse of power by those in public office. It is suggested that the UK not only has a long history in the combining of constitutional and administrative law but that, more importantly, throughout that history the prevailing characteristic has been the extent to which the law has sought to limit the power of those who rule and to increase the rights of subjects of the realm. In assessing the influence of the legal framework, the UK is used as a case study against which the theoretical model elaborated can be tested.

2. Historical Background of Constitutional Law

Constitutions divide the different government powers among the organizational bodies and establish general relationships between the political institutions and the political community. Constitutions are important as they control and limit the use of power and also state what is lawful and unlawful. This will mark the end to arbitrary governmental powers where laws can just be disregarded and authority can be misused. Constitutions also protect people from abuses by the government and result as a means of promoting national unity.

Before we go into the reasons as to why we need a constitution, let us first find out what a constitution is. A constitution is a supreme law that lays down the framework of the state. It is a set of rules that control the government and its relationship with the governed. It also provides a legal framework for the state itself and sets out how changes are to be made in the government and the state. The word state here refers to the government and the people, who have a common identity and a sense of nationhood.

3. Key Principles of Constitutional Law

The system of ‘lawful authority’ ensures that whenever the government or public officials are involved in legal issues or disputes, they are bound by public law and must act within their public power. This is by far the most significant form of power. Finally, at the bottom of the hierarchy are the citizens who democratically elect representatives for the sole purpose of public service. A clear allocation of power assists representatives, public officials, and the courts, and it is the obligation of those citizens at the base of the hierarchy to ensure that they are acting in the best interest of the public, starting with the decisions that led to their election or appointment.

Hierarchical structures are a common feature in constitutions around the world. They outline the power distributions between the different levels of government. This is significant in a democratic society due to the principles of autonomy and self-governance. A clear allocation of power allows those that are governed to have a clear understanding of who has the power to make decisions in governance, whether it is local government deciding on local issues or national government making decisions that affect the entire nation. Furthermore, this prevents the abuse of power as it creates a system of ‘checks and balances’ whereby each level of government monitors the others’ actions.

If we are to speak of a nation that possesses a constitution, we are to assume that the state in question is one that has a degree of political sophistication. Constitutional law is a reflection of that sophistication. It is a complex concept that is, nonetheless, crucial for a nation’s democratic society. That said, there are a number of key principles that are universal in their importance to the understanding of constitutional law.

4. Role of Constitutional Law in Protecting Individual Rights

There are two main ways how constitutional law protects the rights of individuals. The first is through the structure and allocation of power in a governmental system, and the second is through the substantive rights and freedoms possessed by individuals within a society. The structure of government in a society that is grounded on constitutional law seeks to promote and maintain an effective and efficient government that will not abuse its power. The allocation of power is usually set out in a constitution, which is a supreme law that binds those and government and as a result should be the foundation for which laws are created. The constitution will usually set out the various branches of government (the executive, the legislature and the judiciary) and will also define their functions and limits. An example of this can be seen in the United States where the constitution in Articles I, II, and III defines the legislative, executive and judiciary and also provides for the separation of powers between these three branches. This system seeks to ensure that the government will never be too powerful and in turn will never encroach upon the rights of the individuals within the society. This is because the elected representatives in any democratic government have a mandate from the people, but it is a limited mandate to govern only in the way that is beneficial to the people. An end to achieve this goal is the requirement that any use of public funds be pursuant to specific legislation and not merely by the passing of a budget. This was seen in South Africa where it was held that a budget made by the executive was invalid due to it not being through pursuant to any legislation. Another method by which constitutional law seeks to protect rights is by the entrenchment and regulation of the various rights and freedoms possessed by individuals within a society. This is done in order to ensure that these rights cannot be simply discarded at the will of the current government or by the passing of new legislation. A government in society is transient and while political parties or individual leaders may come and go the individual and collective rights of those within the society must be maintained. This would be an implied truth in common law systems particularly those of the Commonwealth where it is generally held that just because there is no specific provision for a right does not mean that it does not exist. This led to the development of fundamental rights through case law and statutes. However it was found that often such rights were illusory and ephemeral and could often be taken away or diminished by simple legislation. An example of this can be seen in Singapore with the right to be free from detention without trial. While this was an implied right as an extension from the right to personal liberty, it was a right that could and was taken away by the passing of various legislation. In more recent times there has been a move towards the codification and indeed the constitutional entrenchment of fundamental rights. This would be seen in the United Kingdom with the passing of the Human Rights Act 1998, it being an example of codification of rights, and more recently in New Zealand there have been discussions regarding the enactment of a supreme constitution. An example of the entrenchment of rights would be found in Part II of the New Zealand Bill of Rights Act 1990 which sets out the rights and freedoms of the individual and makes it clear that any legislation that is inconsistent with the rights contained therein is invalid. This will indeed provide a higher level of protection than rights have historically had in New Zealand and will provide for greater accountability on the part of the legislature and judiciary when making and interpreting law. This however requires a change in the fundamental attitudes and political culture of the society itself as rights are an expression of what is morally acceptable and the more recent constitutional protection of rights is a recognition of the fallibility and self-interest of the government and the need to protect the rights of the people from the abuse of state power.

5. Conclusion

A good, just, and fair system of governance is a right of citizens in any state. It is evident that free and fair elections are necessary to form a government and a system of administration. The recent trend in many countries is of a government through the back door. What I mean to say is that many people’s representatives are getting into power and being appointed in the administration. This is because the law provides certain loopholes which enable these representatives to escape from their offices of public service and take up some post in the administration. For example, a recent ordinance passed by the mayor of Mumbai, where the municipal councillors will not be government servants. This type of move tends to spoil the system of governance. A government servant will take more interest in the administration as compared to a person who is not a government servant. Now if we have to prevent such types of moves, we have to take into consideration that certain laws have to be made preventing these representatives from leaving their offices during the election period and also there should be no scope for them to take up some post in the administration. Now the effectiveness of these laws will depend upon the extent to which they are in conformity with the constitution, as any law made in contravention of any provision of the constitution is liable to be declared null and void. Hence it is seen that there is a close nexus between constitutional law and administrative law. Any provision in the constitutional law determining the eligibility of any post in the administration by any person is nothing but a source of law and it is administered by the courts. This mandate is known as the judicial review, and the courts judge the laws whether they are in conformity with the constitution. Hence, administrative law is closely related to constitutional law and any change in the latter will have an impact on the former.

Constitutional law is a mirror reflecting the social and economic structure of the state. As the social and economic changes in the community affect the people, it tends to reflect the changes in the constitution. This is because the constitution is the set of rules which are fixed and tells the guidelines as to how the government should provide a system of governance, good laws, and a structured system of administration. It also outlines the process by which the governed people can change the rules that they will be governed under. Hence, it is a very important body of law, and in a democratic state, the significance of constitutional law is even greater.