Constitutional Law
Constitutional law is arguably the most important and supreme law of the state. Without it there could be no other laws, the state would not be able to function and would fall apart. Constitutional law is a part of public law that deals with the basic and inalienable fundamental principles by which a democratic state and its socioeconomic structure operates. This includes the manner with which the government (the “Executive”) performs and executes its functions within its competent authority, the legislative manner with which statutes and regulations are enacted into laws (generally by an independent parliament or senate - the “Parliament”), the manner in which disputes are resolved (generally by an independent judiciary and court system applying the rule of law*- the “Judiciary”), the electoral method and system and the rights and obligations of its “Citizens”.
Objectives of a Constiturion
One of the key tasks of constitutions within this context is to indicate hierarchies and relationships of power. To achieve this aim a constitution should at least provide for:
- Clear definitions, guarantees and protection of the basic rights of citizens, including what are known as basic human rights.
- Demarcation and division of the role, the powers, the competences, the jurisdiction and the structure and the election of the three basic entities of a state i.e. the Executive (the government and wider public sector), the Parliament or legislature, and the Judiciary, and
- The relationship between central and local government, supreme and district courts, lower and upper legislative houses and a demarcation and division of their competences.
Operation of a constitution
Fundamental constitutional principles operate in such manner so as to:
- Grant specific powers:
- To the Executive such as to govern, to tax and to spend for the welfare of the population.
- To the Judiciary such as to judge, to issue decisions, orders, prerogatives, warrants or
- To Parliament such as to enact any laws.
- Or place specific limits:
- To the Executive such as prohibiting unlawful police arrests or seizures or oblige holding elections after being in power for a specific term, or not allowing the President to remain in power for more than a predetermined number of terms (usually two).
- To the Judiciary such as to allocate their competences and jurisdictions, or
- The Parliament such as to prohibit it from enacting laws on its own accord and without the consent of the Executive that increase expenditure, or to prohibit it from changing the constitution without a referendum or a qualified or special majority. In bicameral legislatures, there may be specific procedures before a new law can enter into force e.g. second or third readings of bills.
- Or grant specific rights to citizens. Human rights or civil liberties form a crucial part of a country's constitution and uphold the rights of the individual against the state. In most jurisdictions the constitution includes a bill of rights. These rights are intended to ensure the implementation and provision of protection for basic and fundamental socioeconomic and political standards that a state is obliged to provide its citizens .
The vast majorities of states have codified written constitutions, although the jus commune (common law or law of the land) i.e. customary, law, traditional law., conventions, case-law international conventions, rules and norms (e.g. in trade, in shipping etc.) may also be considered as part of a state’s constitution. A notable exception is the United Kingdom which does not have a constitution written in one document by relies heavily on written and unwritten “constitutional” rules and conventions without any generally accepted “list” or method to separate constitutional or other laws and conventions.
Our Services
As lawyers in this area we are working to ensure that government bodies and departments are acting within the law and in the public interest. If the state does not implement the laws and regulations under national and international law fairly or in the public interest then a lawyer than can apply constitutional principles to make sure that there is no abuse of executive position or authority.
* The rule of law popularised by DIcey:
(1) All citizens have legal duties and are also liable to punishment as determined by ordinary law rather than by arbitrary decrees, fiats, firmans, royal mandates or unfettered discretion (i.e. by general and regular rather than by special and extraordinary law). No one is above the law including governors, lawmakers, police and judges.
(2) All disputes between citizens and the government should be determined by ordinary public courts applying ordinary law (i.e. general, public and regular courts rather than special, private and extraordinary courts), and
(3) The fundamental rights of the citizens (Human rights) are based on natural, rather than abstract, law of universal and unchanging moral principles underlying all human conduct (e.g. No one can be a judge of his/her own case (be prosecutor, judge and jury all at the same time) and everyone should be judged by an independent and impartial tribunal).
The principle of the “Separation of Powers” expounded by Montesquieu is often regarded as functioning in parallel to the Rule of Law to restraint the powers of the Executive. In most modern states, power is divided and vested into three separate and independent branches: The Legislature, the Executive and the Judiciary.