CONSTITUTIONALISM

LECTURE TWO

Aspect & characteristics

definition

What you

will

revise?

LECTURE TWO

Ideas and theories that

put limitations on

political power & of

the government’s

sway over citizens in particular.

Basically, it is a tool to limit government’s power.

Concerned with both the framework as well as the spirit that breathes within

the provisions in that framework.

Number of

separate but

related features

of a democrat

ic political system.

define

Right provisions

Safeguards rights

These rights operate as legal constraints upon

the political process.

Structural provisions

include s.o.p, representative

system, etc.

ensure that government act in the interests

of the public rather the self-

interested representatives.

LECTURE TWO

Control of govt power

• Lord Acton – “All power tends to corrupt & absolute power corrupts absolutely”.

• The government must be limited by law.

• It is interrelated with the idea of ‘separation of powers’, ‘rule of law’ & ‘limited government’.

Respect for law

loyalty to Constitution

Citizens must accept the limits on

their freedom

Similar to the idea of rule of

law

Officials must observe the limits on their powers

Internalisation of values

loyalty to the letter as well as the spirit of

the Constitution

Requires commitment to

‘internalise’Demands observance

Sir Ivor Jennings immortal words “provide the flesh

to clothe the dry bones of the law”.

Respect for human rights

Respect for liberty & equality

Guarantees for human freedom &

dignityFC -fundamental liberties (Articles

6-13)

A fair balance between conflicting demands of power

& liberty, freedom & responsibility & the might of the state & the rights of the

citizens.

Controls over discretionary

powers

Institutional

safeguards against

abuse of powers

Effective judicial control governm

ent should

not itself be

destructive of the values it

was intended

to promote

Checks & balances

Responsible

government

Accountability or

answerability of the governme

nt If individual rights/interests is affected, appropria

te compensa

tion should be

givenAn obligation to explain & justify decisions made or action taken

Constitutional

models & control

mechanisms

including constitutionalism, check & balance, federalis

m, judicial review,

elections, &

SUHAKAM

Entrenchment of

constitutional values

The constituti

on provides effective legal & political

restraints upon the exercise of state

power to amend or

repeal laws

dealing with

constitutional

safeguards.

Independent

judiciary

According to Smith,

“constitutionalism is

practised in a country where the governmen

t is genuinely

accountable to an

entity or organ

distinct from itself… and where there are effective

legal guarantees

of civil liberties

enforced by an

independent

judiciary…”

LECTURE TWO

Free and fair

elections

held in order to elect the

government

Example: Adolf

Hitler’s regime came to power

through an

election. Successiv

e governme

nt in Israel have

succeeded at the polls but genocidal policies against

Palestinians in

occupied territories

.

does not guarantee

that constitutionalism is

being practiced.