Manual What is a Constitution?

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But it does more than just describing the nuts-and-bolts of the functioning of the state.

Constitution Definition:

Our Constitution also reflects the hopes and aspirations of a nation torn apart by apartheid. And this leads us to the question of what makes a constitution unique. A constitution like ours may, at first glance, look just like any other Act passed by the legislature. But it is not an Act of Parliament: Constitutions are unique - for many reasons. Most constitutions emerge out of special circumstances. Sometimes, as in the case of South Africa, they are a product of turmoil, upheaval and even revolution. It's no surprise that the quest for democracy, self-determination and human rights forms the backdrop to many modern African constitutions.

And, given South Africa's past, it's not surprising that our Constitution frequently stresses the need to create a society that is "open and democratic", and that it emphasises dignity, justice and equality. Linked to the question of origins is one of ideals. A look at the first page of the document reveals that the language used in our Constitution is at times quite emotive - not the dry legal jargon you find in Acts of Parliament.

They were dealing with the hopes of a nation being reborn - but also had to keep one eye on the very real fears created by the decades of despair that had led the country to this juncture. There's a good example in the preamble: Constitutions and constitutionalism go hand-in-hand with human rights. Rights are often entrenched in a special part of a constitution, called a bill of rights. It is this part of the Constitution that has attracted the greatest interest - and has had the greatest impact on South Africans - in the past few years.

These provisions deal with the rights to equality, human dignity, life and privacy, among others, as well as the freedoms of religion and expression. They also touch on labour relations, children, education and the legal process. See the page on the Bill of Rights for more. The Constitution itself is protected, which means it is more difficult to change it than it is to change a ordinary laws. Section 74 2 states that bills amending the Constitution require a two-thirds majority in the National Assembly as well as a supporting vote of six of the nine provinces represented in the National Council of Provinces.

Some parts are even more firmly entrenched. There is much debate in legal circles about the correct approach to interpreting legislation. Historically, in the case of normal statutes, words were given their plain and literal meaning. But this is not always appropriate for a text such as the Constitution, which needs to be read with an eye to the values that run through it.

A clause in the Bill of Rights even makes this explicit: Section 39 1 says: Lastly, the Constitution including its amendments and schedules - the sections that flesh out details such as the design of the flag and the oath the president takes is well over pages long. The notion of a bill of rights for South Africa can be traced back to an ANC document in the early s. The Freedom Charter of carried the idea forward.

Unable to load user with ID: What is a constitution? What is constitutional supremacy? This brings us to the doctrine of the separation of powers. What is the separation of powers? What else do constitutions say? How do constitutions differ from other legislation? Constitutions have special origins A constitution like ours may, at first glance, look just like any other Act passed by the legislature. Constitutions reveal a country's hopes and ideals Linked to the question of origins is one of ideals.

Constitutions are harder to change The Constitution itself is protected, which means it is more difficult to change it than it is to change a ordinary laws. Constitutions are interpreted in a special way There is much debate in legal circles about the correct approach to interpreting legislation. The history of the idea. An uncodified constitution is one that is not contained in a single document, consisting of several different sources, which may be written or unwritten; see constitutional convention. Codified constitutions are often the product of some dramatic political change, such as a revolution.

The process by which a country adopts a constitution is closely tied to the historical and political context driving this fundamental change. The legitimacy and often the longevity of codified constitutions has often been tied to the process by which they are initially adopted and some scholars have pointed out that high constitutional turnover within a given country may itself be detrimental to separation of powers and the rule of law.

States that have codified constitutions normally give the constitution supremacy over ordinary statute law. That is, if there is any conflict between a legal statute and the codified constitution, all or part of the statute can be declared ultra vires by a court, and struck down as unconstitutional.

In addition, exceptional procedures are often required to amend a constitution. These procedures may include: Constitutions may also provide that their most basic principles can never be abolished, even by amendment. In case a formally valid amendment of a constitution infringes these principles protected against any amendment, it may constitute a so-called unconstitutional constitutional law. Codified constitutions normally consist of a ceremonial preamble , which sets forth the goals of the state and the motivation for the constitution, and several articles containing the substantive provisions.

In ethnic nation-states such as Estonia , the mission of the state can be defined as preserving a specific nation, language and culture. As of [update] only two sovereign states, New Zealand and the United Kingdom , have wholly uncodified constitutions.


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The Basic Laws of Israel have since been intended to be the basis for a constitution, but as of it had not been drafted. The various Laws are considered to have precedence over other laws, and give the procedure by which they can be amended, typically by a simple majority of members of the Knesset parliament. Uncodified constitutions are the product of an "evolution" of laws and conventions over centuries such as in the Westminster System that developed in Britain.

By contrast to codified constitutions, uncodified constitutions include both written sources — e. Some constitutions are largely, but not wholly, codified. For example, in the Constitution of Australia, most of its fundamental political principles and regulations concerning the relationship between branches of government, and concerning the government and the individual are codified in a single document, the Constitution of the Commonwealth of Australia. However, the presence of statutes with constitutional significance, namely the Statute of Westminster , as adopted by the Commonwealth in the Statute of Westminster Adoption Act , and the Australia Act means that Australia's constitution is not contained in a single constitutional document.

It means the Constitution of Australia is uncodified, it also contains constitutional conventions , thus is partially unwritten. The Constitution of Canada , which evolved from the British North America Acts until severed from nominal British control by the Canada Act analogous to the Australia Act , is a similar example. Canada's constitution consists of almost 30 different statutes.

The terms written constitution and codified constitution are often used interchangeably, as are unwritten constitution and uncodified constitution , although this usage is technically inaccurate. A codified constitution is a single document; states that do not have such a document have uncodified, but not entirely unwritten, constitutions, since much of an uncodified constitution is usually written in laws such as the Basic Laws of Israel and the Parliament Acts of the United Kingdom.

Uncodified constitutions largely lack protection against amendment by the government of the time. For example, the UK Fixed-term Parliaments Act legislated by simple majority for strictly fixed-term parliaments ; until then the ruling party could call a general election at any convenient time up to the maximum term of five years. This change would require a constitutional amendment in most nations. The presence or lack of entrenchment is a fundamental feature of constitutions.

An entrenched constitution cannot be altered in any way by a legislature as part of its normal business concerning ordinary statutory laws, but can only be amended by a different and more onerous procedure. There may be a requirement for a special body to be set up, or the proportion of favourable votes of members of existing legislative bodies may be required to be higher to pass a constitutional amendment than for statutes.

The entrenched clauses of a constitution can create different degrees of entrenchment, ranging from simply excluding constitutional amendment from the normal business of a legislature, to making certain amendments either more difficult than normal modifications, or forbidden under any circumstances. Entrenchment is an inherent feature in most codified constitutions. A codified constitution will incorporate the rules which must be followed for the constitution itself to be changed. The US constitution is an example of an entrenched constitution, and the UK constitution is an example of a constitution that is not entrenched or codified.

In some states the text of the constitution may be changed; in others the original text is not changed, and amendments are passed which add to and may override the original text and earlier amendments. Procedures for constitutional amendment vary between states. In a nation with a federal system of government the approval of a majority of state or provincial legislatures may be required. Alternatively, a national referendum may be required. Details are to be found in the articles on the constitutions of the various nations and federal states in the world.

In constitutions that are not entrenched, no special procedure is required for modification. Lack of entrenchment is a characteristic of uncodified constitutions; the constitution is not recognised with any higher legal status than ordinary statutes. In the UK, for example laws which modify written or unwritten provisions of the constitution are passed on a simple majority in Parliament.

No special "constitutional amendment" procedure is required. The principle of parliamentary sovereignty holds that no sovereign parliament may be bound by the acts of its predecessors; [58] and there is no higher authority that can create law which binds Parliament. The sovereign is nominally the head of state with important powers, such as the power to declare war; the uncodified and unwritten constitution removes all these powers in practice.

In practice democratic governments do not use the lack of entrenchment of the constitution to impose the will of the government or abolish all civil rights, as they could in theory do, but the distinction between constitutional and other law is still somewhat arbitrary, usually following historical principles embodied in important past legislation.

For example, several British Acts of Parliament such as the Bill of Rights , Human Rights Act and, prior to the creation of Parliament, Magna Carta are regarded as granting fundamental rights and principles which are treated as almost constitutional. Several rights that in another state might be guaranteed by constitution have indeed been abolished or modified by the British parliament in the early 21st century, including [ citation needed ] the unconditional right to trial by jury , the right to silence without prejudicial inference, permissible detention before a charge is made extended from 24 hours to 42 days, and the right not to be tried twice for the same offence.

The strongest level of entrenchment exists in those constitutions that state that some of their most fundamental principles are absolute, i. An amendment of a constitution that is made consistently with that constitution, except that it violates the absolute non-modifiability, can be called an unconstitutional constitutional law. Ultimately it is always possible for a constitution to be overthrown by internal or external force, for example, a revolution perhaps claiming to be justified by the right to revolution or invasion. In the Constitution of India, the Supreme Court has created the Doctrine of Basic Structure in Kesavananda Bharti's case stating that the essential features of the Basic structure cannot be amended by the Parliament.

The Court has identified judicial review, independence of Judiciary, free and fair election, core of Fundamental Rights as a few of the essential features which are unamendable. However, the Supreme Court did not identify specific provisions which are in the category of absolute entrenchment. An example of absolute unmodifiability is found in the German constitution.

Articles 1 and 20 protect human dignity, human rights, democracy, rule of law, federal and social state principles, and the people's right of resistance as a last resort against an attempt to abolish the constitutional order. Article 79, Section 3 states that these principles cannot be changed, even according to the methods of amendment defined elsewhere in the document, until a new constitution comes into effect. Another example is the Constitution of Honduras , which has an article stating that the article itself and certain other articles cannot be changed in any circumstances.

Constitution Definition

Constitutions also establish where sovereignty is located in the state. There are three basic types of distribution of sovereignty according to the degree of centralisation of power: The distinction is not absolute. In a unitary state, sovereignty resides in the state itself, and the constitution determines this.

The territory of the state may be divided into regions, but they are not sovereign and are subordinate to the state. In the UK, the constitutional doctrine of Parliamentary sovereignty dictates than sovereignty is ultimately contained at the centre. Some unitary states Spain is an example devolve more and more power to sub-national governments until the state functions in practice much like a federal state. A federal state has a central structure with at most a small amount of territory mainly containing the institutions of the federal government, and several regions called states , provinces , etc.

Sovereignty is divided between the centre and the constituent regions. The constitutions of Canada and the United States establish federal states, with power divided between the federal government and the provinces or states. Each of the regions may in turn have its own constitution of unitary nature.

A confederal state comprises again several regions, but the central structure has only limited coordinating power, and sovereignty is located in the regions. Confederal constitutions are rare, and there is often dispute to whether so-called "confederal" states are actually federal. To some extent a group of states which do not constitute a federation as such may by treaties and accords give up parts of their sovereignty to a supranational entity.

For example, the countries constituting the European Union have agreed to abide by some Union-wide measures which restrict their absolute sovereignty in some ways, e. Constitutions usually explicitly divide power between various branches of government. The standard model, described by the Baron de Montesquieu , involves three branches of government: Some constitutions include additional branches, such as an auditory branch.

Constitutions vary extensively as to the degree of separation of powers between these branches. The president is accountable to the people in an election. In parliamentary systems, Cabinet Ministers are accountable to Parliament , but it is the prime minister who appoints and dismisses them. In the case of the United Kingdom and other countries with a monarchy, it is the monarch who appoints and dismisses ministers, on the advice of the prime minister.

In turn the prime minister will resign if the government loses the confidence of the parliament or a part of it. Confidence can be lost if the government loses a vote of no confidence or, depending on the country, [60] loses a particularly important vote in parliament, such as vote on the budget. When a government loses confidence, it stays in office until a new government is formed; something which normally but not necessarily required the holding of a general election. Many constitutions allow the declaration under exceptional circumstances of some form of state of emergency during which some rights and guarantees are suspended.

This provision can be and has been abused to allow a government to suppress dissent without regard for human rights—see the article on state of emergency. Italian political theorist Giovanni Sartori noted the existence of national constitutions which are a facade for authoritarian sources of power.

What is a Constitution?

While such documents may express respect for human rights or establish an independent judiciary, they may be ignored when the government feels threatened, or never put into practice. An extreme example was the Constitution of the Soviet Union that on paper supported freedom of assembly and freedom of speech ; however, citizens who transgressed unwritten limits were summarily imprisoned. The example demonstrates that the protections and benefits of a constitution are ultimately provided not through its written terms but through deference by government and society to its principles.

A constitution may change from being real to a facade and back again as democratic and autocratic governments succeed each other.

Constitutions are often, but by no means always, protected by a legal body whose job it is to interpret those constitutions and, where applicable, declare void executive and legislative acts which infringe the constitution. In some countries, such as Germany , this function is carried out by a dedicated constitutional court which performs this and only this function.

In other countries, such as Ireland , the ordinary courts may perform this function in addition to their other responsibilities. While elsewhere, like in the United Kingdom , the concept of declaring an act to be unconstitutional does not exist. A constitutional violation is an action or legislative act that is judged by a constitutional court to be contrary to the constitution, that is, unconstitutional. An example of constitutional violation by the executive could be a public office holder who acts outside the powers granted to that office by a constitution.

An example of constitutional violation by the legislature is an attempt to pass a law that would contradict the constitution, without first going through the proper constitutional amendment process. Some countries, mainly those with uncodified constitutions, have no such courts at all. For example, the United Kingdom has traditionally operated under the principle of parliamentary sovereignty under which the laws passed by United Kingdom Parliament could not be questioned by the courts.

Judicial philosophies of constitutional interpretation note: From Wikipedia, the free encyclopedia. For other uses, see Constitution disambiguation. Great Law of Peace. This section possibly contains original research. Please improve it by verifying the claims made and adding inline citations. Statements consisting only of original research should be removed. September Learn how and when to remove this template message. This section needs additional citations for verification. Please help improve this article by adding citations to reliable sources. Unsourced material may be challenged and removed.

December Learn how and when to remove this template message. Fundamental Laws of England. Constitutional court and Constitutionality. Public Administration In India. National Book Trust, India. Ministry of Law and Justice of India. Archived from the original on February 23, Retrieved December 17, Constitutionalism from Ancient Athens to Today.

Muhammad at Medina and R. Serjeant "The Constitution of Medina. Analysis and translation of the documents comprised in the so-called "Constitution of Medina. Serjeant argues that the constitution is in fact 8 different treaties which can be dated according to events as they transpired in Medina with the first treaty being written shortly after Muhammad's arrival. The Formation of the Classical Islamic World: Annali dell'Islam, Volume I. Skizzen und Vorabeiten , IV, Berlin: Reimer, , p 82f who argue that the document is a single treaty agreed upon shortly after the hijra. Wellhausen bases this judgement on three considerations; first Muhammad is very diffident about his own position, he accepts the Pagan tribes within the Umma, and maintains the Jewish clans as clients of the Ansars see Wellhausen, Excursus, p.

Even Moshe Gil a skeptic of Islamic history argues that it was written within 5 months of Muhammad's arrival in Medina. Retrieved July 12, Retrieved November 10, Exiled in the land of the free: Johansen ; Donald A. American History Through the Voices of the Indians. Retrieved November 23, Indians and Colonists at the Crossroads of Empire: The Albany Congress of Retrieved January 5, Native American Legacy of Freedom. Constitutions of the World. A History of Spain and Portugal: Eighteenth Century to Franco.

University of Wisconsin Press. The Spanish pattern of conspiracy and revolt by liberal army officers In the wake of Riego's successful rebellion, the first and only pronunciamiento in Italian history was carried out by liberal officers in the kingdom of the Two Sicilies. The Spanish-style military conspiracy also helped to inspire the beginning of the Russian revolutionary movement with the revolt of the Decembrist army officers in Italian liberalism in — relied on junior officers and the provincial middle classes, essentially the same social base as in Spain. For both Portuguese and Italian liberals of these years, the Spanish constitution of remained the standard document of reference.

Emond Montgomery Publications Ltd. A Dictionary of Aggressive Common Sense. Journal of Economic Perspectives. The American Economic Review. Retrieved 7 May Article gives information on the procedures for amending each of the Basic Laws of Israel. Political Constitution of through reforms; Article ". Political Database of the Americas in Spanish. Category Index Outline Portal. Retrieved from " https: Constitutions Sources of law. Webarchive template wayback links CS1 maint: Views Read View source View history.

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