Human Rights Correspondence School, Asian Human Rights Commission, Hong Kong
The structure of modern nations has been shaped with government being divided into executive, legislative and judicial bodies, with the commonly accepted notion that these bodies and their powers must be separated. This is one of the most fundamental tenets of modern governance, and as such is a key characteristic of any constitution. Of course, the separation of powers does not mean these bodies function alone; rather they work interdependently, but maintain their autonomy. Other tenets include the idea of limited government and the supremacy of law. Together, these can be termed the concept of constitutionalism.
In other words, constitutionalism is the idea that government should be limited in its powers and that its authority depends on its observation of these limitations. In particular, these limitations relate to legislative, executive and judicial powers. A constitution is the legal and moral framework setting out these powers and their limitations. This framework must represent the will of the people, and should therefore have been arrived at through consensus.
If these are taken to be the basic tenets of constitutionalism, then not all states with constitutions will have embraced constitutionalism; authoritarian governments or military dictatorships do not fulfil the tenets of the supremacy of law or the separation of powers. The judiciary in Cambodia for instance, is highly subordinate to the executive, blurring boundaries between the two arms of government. The huge number of disappearances of alleged political activists in Pakistan is a clear violation of the rule of law. The message sent to society in these cases is clear: it is not the constitution that reigns, but those in power. It is therefore important to distinguish between adopting
This article consists of edited extracts from Lesson Series 49 of the Human Rights Correspondence School, Asian Human Rights Commission, on constitutionalism and human rights. The second half of the lesson consists of a case study on the 1997 Constitution of Thailand. The full lesson can be read online: www.hrschool.org.
a constitution and genuine constitutionalism. This distinction becomes particularly important when constitutions are adopted to protect the interests of the ruling regime. A constitution is not merely a document introduced by the state with the title of ‘constitution’. Many authoritarian regimes introduce such documents to justify arbitrary rule. Thailand for instance, has had a new constitution virtually every time there is a change of power. A genuine constitution however, is an attempt to limit and reverse all forms of arbitrariness.
Democracy and constitutionalism
Authoritarian governments are by their very nature unconstitutional. Such governments think of themselves as above the law, and therefore see no necessity for the separation of powers or representative governance. Constitutionalism however, is primarily based on the notion of people’s sovereignty, which is to be exercised—in a limited manner—by a representative government. Thus, there is a very important and basic link between democracy and constitutionalism.
Just as mere constitutions do not make countries constitutional, political parties and elections do not make governments democratic. Several Asian countries have been termed ‘illiberal democracies’, for while they have periodic elections, they are not governed by the rule of law and do not protect the rights and liberties of their citizens. India and Sri Lanka are examples of such countries, where the politicization of public institutions is common, where politicians and government officials are deemed above the law and where there is significant violence against minorities and marginalized groups. Genuine democracies rest on the sovereignty of the people, not the rulers. Elected representatives are to exercise authority on behalf of the people, based on the will of the people. Without genuine democracy, there can be no constitutionalism.
Rule of law
Rule of law refers to the supremacy of law, applied equally to all persons, including government and state officials (See Lesson Series 40 for a detailed study of the rule of law and human rights in Asia). There are two aspects to the relationship between constitutionalism and rule of law: not only is constitutionalism the institutional basis for rule of law in any society, it is also safeguarded by the rule of law. Following basic principles of constitutionalism, common institutional provisions used to maintain the rule of law include the separation of powers, judicial review, the prohibition of retroactive legislation and habeas corpus. The independence of law making bodies is established, as is independence for judges in articulating and interpreting laws. Genuine constitutionalism therefore provides a minimal guarantee of the justice of both the content and the form of law.
On the other hand, constitutionalism is safeguarded by the rule of law. Only when the supremacy of the rule of law is established, can supremacy of the constitution exist. Constitutionalism additionally requires effective laws and their enforcement to provide structure to its framework.
Process of constitution making
It is now clear that the constitution is an essential document, laying out the framework of a nation’s political, economic and social structure. How should such an important document come into being? First, it is necessary to note that not all constitutions are written documents. The greatest example of a constitution that cannot be found in a written format is the British constitution, which has been developed slowly over many centuries. Modern constitutions though, tend to be found in written documents.
A framework for a country’s governance and structure cannot be laid out without deep intellectual and societal agreements on political, legal and moral issues. In order to arrive at such agreements, there must be considerable public debate and discussion prior to the adoption of any constitution. Such discussion must take into account that all societies will have conflicting interests. While certain interests will inevitably predominate, the impartial protection of rights and liberties should ensure that such dominant interests do not harm others. Drafting a constitution is therefore very much related to democracy and the rule of law.