Constitutionalism: Comparative study of Constitutions around the world

Constitutionalism is the principle that a government’s authority is derived from and limited by a constitution, ensuring the rule of law and protection of individual rights. It establishes a framework for governance based on fundamental laws and principles.

Constitutionalism

Introduction

In the complex world of politics and governance, constitutionalism stands as a beacon of hope for those who value order, fairness, and the rule of law. This modern concept promotes a political order governed by laws and regulations, advocating for the supremacy of the law over the rule of individuals. Constitutionalism is deeply rooted in principles of nationalism, democracy, and limited government. At its core, it embodies the system of ‘divided power,’ a separation of powers that has been eloquently described by Carl Friedrich as “providing a system of effective restraints upon governmental action” and ensuring “fair play” while holding the government accountable.

In essence, constitutionalism signifies the presence of a constitution in a state, or a fundamental law of the land, that sets limits on the government’s arbitrary actions, guarantees the rights of the governed (the people), and defines the operations of sovereign power. Constitutions can take two main forms: written and unwritten.

Table of Contents

Written Constitution vs. Unwritten Constitution

A written constitution refers to a systematically codified and structured document containing explicit rules and regulations for governing a nation. It often strikes a balance between rigidity and flexibility, adapting to the evolving needs of a nation while upholding its fundamental principles. The judiciary holds the power to ensure the supremacy of the constitution, acting as a safeguard against government overreach. Examples of nations with written constitutions include the USA, India, Australia, France, Denmark, and Japan.

On the other hand, an unwritten constitution relies on rules, conventions, customs, and traditions, rather than being codified in a single document. Unwritten constitutions are typically more flexible and, instead of the constitution itself, it’s often the Parliament or Legislature that holds supreme authority. A notable example of an unwritten constitution is found in the United Kingdom, where the Magna Carta serves as a precursor to the unwritten constitution. Other countries with unwritten constitutions include the UK, Israel, Saudi Arabia, New Zealand, and Canada, where some parts of the law remain unwritten and based on conventions.

British Constitution

The British Constitution, one of the most influential and enduring constitutions, is characterized by its unwritten nature. It is a constitution deeply rooted in rules, conventions, customs, and traditions, dating back centuries. Its sovereignty was firmly established during the Glorious Revolution of 1688, and it’s often considered the mother of all modern constitutions. Britain is a parliamentary democracy with constitutional monarchy. The British Constitution follows a unitary form of government and is highly flexible, allowing for amendments like any other ordinary law. It also embraces bicameralism, with the House of Lords (Highest court of land) and the House of Commons playing key roles.

Features of the British Constitution:

Flexibility: The British Constitution is characterized by its flexibility, as it can be amended through a simple parliamentary process, allowing for additions or deletions at any time. This makes it adaptable to changing needs.

Nominal Monarchy: While the Queen serves as the nominal head of state, the actual government functions independently. Laws require the Crown’s acceptance, but the role of the monarch is largely symbolic, leading to a democratic constitutional limited monarchy in practice.

Parliamentary Sovereignty: The British Parliament is supreme and holds the highest legislative authority. There is no provision for judicial review, making all parliamentary decisions legally and constitutionally supreme. The British Parliament, includes the House of Commons and the House of Lords. The executive is responsible to the Parliament, particularly the House of Commons, and the monarch serves as the nominal executive with limited powers, subject to the advice of the Cabinet. The British political landscape thrives on a two-party system, with the Conservatives and the Labour Party taking center stage.

Unitary Structure: The British political system follows a unitary structure, with all governmental functions centralized within one national government. There is no division of powers between central and state-level governments.

Parliamentary Government: The executive, led by the Prime Minister, is accountable to the Parliament. All governmental powers are exercised collectively and individually by the cabinet, making it responsible to the legislative body.

Rule of Law: Britain upholds the rule of law, a principle ensuring the supremacy of law and its equal application to all citizens, including the government. This concept was articulated by British jurist A.V. Dicey.

Independence of Judiciary: The British Constitution safeguards the independence of the judiciary, ensuring that the legal system functions without undue influence from other branches of government. As there is no written constitution in Britain the rulings of the judiciary are also considered important and equivalent to laws. A.V dicey remarked on the British constitution as the judge made.

Checks and Balances: The principle of checks and balances is observed in the British Constitution, where laws passed by Parliament require the Queen’s approval before implementation. Similarly, any orders issued by the Queen must be countersigned by a minister.

Absence of Separation of Powers: Unlike some other systems, the doctrine of the separation of powers is not fully applied in Britain. Instead, there is a close interplay between the executive and legislative branches, with some overlap in their functions.

American Constitution

The American Constitution, in contrast to the British system, is a written constitution that came into force in 1789 following the Declaration of Independence in 1776. It is a concise document of 18 pages, which lays out the supreme framework for federal government while leaving states with the flexibility to design their governments. This constitution consists of 7 articles in total known for its rigidity, with specific procedures for amendment in place.

Features of the United States Constitution:

Supremacy of the Constitution: The United States Constitution is the supreme law of the land, and no other law or authority can override it. It serves as the highest legal authority. The American constitution is known for its rigidity as its amendment process is too complex.

Separation of Powers: The Constitution incorporates the doctrine of separation of powers, as proposed by Montesquieu. It mandates that the legislative, executive, and judicial branches of government work independently and perform separate functions.

Judicial Review: The American judiciary holds tremendous power, exercising judicial review in its highest form, ensuring the supremacy of the Constitution and safeguarding the fundamental rights of the American people, as outlined in the Bill of Rights. The power of judicial review, allowing it to declare any law null and void if it is found to be inconsistent with the Constitution. This feature ensures that laws comply with the principles outlined in the Constitution. The Supreme Court of the U.S consists of a total 9 Judges.

Republican and Presidential Form of Government: The United States operates as a republic, with the President serving as the head of state. All executive powers are vested in the President, who is elected by the people, following a presidential system. The President of the U.S is elected every four years and can be re-elected to serve a maximum of two terms. In the U.S, the executive is not responsible to the legislature i.e. U.S president and its minister do not sit in congress. 

President Johnson became the first president to be impeached by the House, but he was later acquitted by the Senate by one vote. The Constitution gives the House of Representatives the sole power to impeach an official, and it makes the Senate the sole court for impeachment trials.

Dual Citizenship: The U.S. Constitution provides for dual citizenship, granting individuals both American citizenship and citizenship in their respective states. This duality reflects the federal system of government in the United States.

Popular Sovereignty: The American Constitution is rooted in the concept of popular sovereignty, meaning that the authority of the government is derived from and accountable to the people. This principle emphasizes the importance of citizen participation in the democratic process.

Bicameral Legislature: The United States has a bicameral legislature, consisting of two houses: the House of Representatives and the Senate (The most powerful upper house in the world). The Senate, with two members from each state, is a formidable second chamber. This arrangement ensures a system of checks and balances and allows for representation at both the federal and state levels.

Spoils System: Historically, the United States employed the spoils system, where incoming presidents appointed their supporters to various government positions. However, this practice often led to inefficiency and corruption in American politics. Over time, the spoils system has been reformed, with greater emphasis on merit-based appointments and civil service regulations.

France Constitution: A Blueprint for Governance

The Constitution of the Fifth Republic in France has played a pivotal role in establishing constitutional stability in the country. Since its enactment on October 4, 1958, this constitution has guided France through complex political landscapes and offered a unique model of governance. Framed by a Constituent Assembly inspired by General De Gaulle, the Fifth Republic’s Constitution combines elements of both a presidential and parliamentary system, crafting a distinctive form of government.

Features of French Constitution:

Mixed Presidential-Parliamentary Model

The French Constitution embraces a mixed presidential-parliamentary model, where executive powers are divided between the President and the Prime Minister. The President, directly elected by the people, serves as the head of state. While not a purely nominal figurehead like the Indian President, the French President is not an all-powerful executive akin to the U.S. President. In times of emergency, the President’s authority can expand significantly. Typically, the President appoints the Prime Minister and presides over Council of Ministers’ meetings.

On the other hand, the Prime Minister is responsible for the daily operations of the government, including national defense and ensuring law execution. While the Prime Minister is not a member of Parliament, they are accountable to Parliament, which holds the power to pass votes of no confidence or censure motions. This authority can force the Prime Minister’s resignation or lead to the dissolution of Parliament. Furthermore, while ministers are not members of Parliament, they actively participate in parliamentary activities, except when it comes to voting on measures, showcasing a unique blend of parliamentary and presidential elements within the French executive.

Supremacy of the Constitution

The French Constitution holds the highest authority in the land, with every organ of the government deriving its powers from this foundational document. The Constitution itself is rigid, guiding the nation’s governance within a unitary system. France follows the principle of secularism, ensuring a clear separation between religion and the state.

The French Constitution establishes a multi-party system, with the motto of the Republic being “Liberty, Equality, and Fraternity.” While rights and liberties are not laid out in a separate chapter, they are enshrined in the Preamble, guaranteeing social and political rights to the citizens. The bicameral system in France consists of the National Assembly, the lower house, and the Senate, the upper house. The National Assembly, being popularly elected, holds more power.

The Constitution also institutes a unique institution, the Constitutional Council, responsible for determining the validity of laws and orders made by Parliament and the government. This council serves as both an Election Commission and Election Tribunal in parliamentary elections, offering a distinct feature of the French political landscape.

Chinese Constitution: Navigating a Unique Socialist System

The Constitution of the People’s Republic of China has been a cornerstone of governance since its adoption on December 4, 1982. With its roots in socialism and the leadership of the Communist Party of China (CPC), the Chinese Constitution navigates a unique path within the global political landscape.

Features of Chinese Constitution:

Preamble: Ideological Framework and Democratic Centralism

The preamble of the Chinese Constitution outlines its ideological goals, incorporating principles of Marxism, Leninism, and Maoism. It emphasizes the principle of democratic centralism and replaces the old definition of China as a “Dictatorship of the Proletariat” with “People’s Democratic Dictatorship.” This combination of ideology and democratic norms forms the basis of China’s governance.

Socialist Supremacy and One-Party System

China operates as a socialist country, with supremacy given to socialist ideology. The Constitution acknowledges the leadership of the Communist Party of China (CPC) as a central guiding force. Within this framework, China maintains a one-party system where the CPC wields significant power. The party’s elite members hold key positions in the government, and while some youth organizations and working groups affiliated with the party participate in decision-making, other political parties have limited influence.

Legislative and Executive Branches

The National People’s Congress (NPC), a unicameral legislature with over 3000 members, is the top decision-making body in China. NPC members are elected by regional congresses, autonomous regions, municipalities, and the People’s Liberation Army. While theoretically the NPC holds ultimate authority, a smaller body, the Standing Committee of the NPC, handles most of the legislative work.

The State Council, headed by the Premier and State Councilors, serves as the executive body. The President of the Republic holds the position of head of state.

Committed Judiciary and Rights and Duties

The Chinese Constitution establishes a committed judiciary, dedicated to the goal of socialism. The Supreme People’s Court and the Court of Procuratorates handle legal matters. Chinese law is not systematically codified, relying more on conventions than laws for dispute resolution.

The Constitution grants fundamental rights to citizens, including the right to vote, freedom of speech, and gender equality. Citizens are also bound by certain duties, including cooperating with socialist leadership, preserving public property, and maintaining law and order.

German Constitution: A Beacon of Stability

The German Constitution, known as the Basic Law (Grundgesetz), serves as the foundation for one of the world’s most robust parliamentary democracies—the Federal Republic of Germany. Rooted in a complex historical background, this constitution has played a pivotal role in shaping modern Germany.

Historical Background

The journey to the current German Constitution is steeped in historical complexity. Until the 19th century, the territory we now know as Germany was a patchwork of kingdoms, city-states, and principalities, loosely held together within the Holy Roman Empire. The 19th century saw a series of transformations, from the German Confederation after the defeat of Napoleon to the adoption of the Frankfurt Constitution in 1849. In 1867, the North German Confederation was established under Otto von Bismarck, leading to a new constitution in 1871 with the formation of the German Empire.

However, this empire gave way to the Weimar Republic in 1919, which endured a period of unstable governance and ultimately saw the rise of the Nazi Party. Adolf Hitler’s appointment as Chancellor in 1933 marked a dark era, lasting until Germany’s defeat in World War II. In the post-war landscape, Germany was divided into the Federal Republic of Germany (West) and the German Democratic Republic (East). The reunification of Germany in 1990 solidified the present-day Federal Republic of Germany, which retains a slightly amended version of West Germany’s 1949 Constitution.

Key Features of the German Constitution

Federalism:

  • The German federal state comprises a central government (Bund) and 16 constituent states (Länder or Bundesländer).
  • These constituent states hold significant powers in areas such as policing, law, culture, and disaster control.
  • The cities of Berlin, Hamburg, and Bremen also enjoy federal state status.

Democracy:

  • The German Constitution upholds the democratic principle that all state authority is derived from the people, who exercise their power through elections and specific governmental bodies.
  • It enforces the separation of powers, ensuring constitutional limits, democratic representation, and rational power discharge.

Executive:

  • The executive branch consists of the President, Chancellor, and Federal Ministers.
  • The President serves as the Head of State, while the Chancellor heads the government.
  • The Chancellor and ministers set federal government policies.

Legislature:

  • The federal legislature comprises two houses: the Bundestag (lower house) and the Bundesrat (upper house).
  • The Bundestag includes 598 seats, filled through a mixed electoral system, combining majority vote and proportional representation.

Judiciary:

  • Germany maintains an independent judiciary, including the Federal Constitutional Court, Supreme Federal Courts, and other Federal Courts.
  • The Federal Constitutional Court plays a pivotal role in interpreting the Basic Law and resolving disputes.

The German Constitution is a testament to the country’s commitment to federalism, democracy, and the rule of law. It has provided the framework for a prosperous, stable, and democratic Germany since its inception.

Switzerland Constitution: A Model of Direct Democracy

Switzerland, often referred to as a “confederation,” boasts a unique constitutional structure and a deeply entrenched tradition of direct democracy. Process of unification of Switzerland began in 1291 and was completed by 1848. The Swiss Constitution has been subject to multiple revisions and amendments over the years to adapt to changing circumstances. The most recent version, as of my last update, is the Swiss Federal Constitution of 1999. The Federal Constitution of the Swiss Confederation serves as the guiding document for this multi-lingual, multi-religious nation composed of 26 cantons with each having their own constitution. 

Important Features of the Swiss Constitution

Federalism:

  • Switzerland’s federal structure is distinctive. The nation comprises a federal republic of 26 cantons, which hold substantial autonomy.
  • Even the cities of Berlin, Hamburg, and Bremen have their own separate cantonal status, reflecting the principle of local governance.
  • Residual powers rest with the cantons, and powers have been explicitly divided between the federation and cantons based on national or local importance.

Rigid Constitution:

  • The Swiss constitution is rigid in character and its amendment is difficult and complicated. This constitution is more rigid than the Indian Constitution, but less than the US Constitution.

Democracy:

  • Swiss democracy is deeply rooted, and all authority is derived from the people.
  • The Basic Law emphasizes the people’s exercise of state authority through elections, votes, and specific governmental bodies.
  • The Swiss Constitution upholds the separation of powers, distributing authority among the executive, legislature, and judiciary.

Legislature:

  • Switzerland’s Federal Assembly is bicameral, consisting of the Council of States (upper chamber) and the National Council (lower chamber).
  • Members serve four-year terms, and both chambers have equal status.

Executive:

  • The Federal Council, a seven-member executive council, leads the federal administration.
  • The Federal Council is elected by the Federal Assembly for four-year terms.
  • Switzerland does not have a single executive leader; instead, the President and Vice President of the Confederation are elected annually from among the Federal Council members.

Judiciary:

  • Switzerland has a Federal Supreme Court, with judges elected for six-year terms by the Federal Assembly.
  • The Federal Supreme Court deals with issues related to the Basic Law, disputes between cantons and the federation, and other legal matters. The Swiss judiciary has only limited power of judiciary view.

Direct Democracy:

  • Switzerland boasts a strong tradition of direct democracy, where citizens have a significant role in governance.
  • Mandatory referendums are required for changes to the constitution, and optional referendums can be requested for changes to laws.
  • Citizens can also present constitutional popular initiatives to propose amendments to the federal constitution.
  • Swiss citizens can challenge laws passed by parliament by gathering 50,000 signatures, leading to a national vote to accept or reject the law.

Switzerland’s Constitution, with its federal structure, commitment to democracy, and emphasis on direct citizen participation, stands as a model of stability and effective governance. The nation’s unique approach to separation of powers and direct democracy continues to be a source of inspiration for democratic systems worldwide.

Conclusion

In this comparative study of constitutions around the world, we have witnessed the rich tapestry of constitutionalism that shapes the governance of nations. From federal structures to direct democracy, the principles of constitutionalism serve as the cornerstone of ensuring governments’ accountability, upholding individual rights, and fostering stability. It is a testament to the enduring power of written charters and the rule of law in safeguarding democracy and promoting a just society, transcending borders and cultures.

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