Identify And Discuss The Advantages And Disadvantages Of Written And Unwritten Types Of Constitutions Essay

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A constitution is a body of fundamental principles or established precedents according to which a state or organization is governed, especially when embodying the rights of subjects. A constitution sets out how all the elements of Government are organized and how power is carved up among different political units. It contains rules about what power is wielded, who wields it and over whom it is wielded in the governing of a country. As a kind of deal or contract between those in power and those who are subjected to this power, a constitution defines the rights and duties of citizens and the devices that keep those in power in check. A constitution is the supreme law of the land in any given country and no other law may conflict with it, nor may the government do anything that violates it. Constitutions exist as national and regional. Two types of national constitutions that exist are the written (codified) constitution and the unwritten (uncodified) constitution. Countries like the United Kingdom, Israel and New Zealand possess the unwritten constitution while countries like India, United States and states of the Commonwealth Caribbean possess the written constitution. A written constitution is one that is contained in a single document which is the one source of constitutional law in a state. Written constitutions are often the product of some dramatic political change such as a revolution as was the case of America and the gaining of independence by the Commonwealth Caribbean countries from Britain. The process by which a country adopts a constitution is closely tied to the historical and political context driving these fundamental changes. The legitimacy and longevity of codified constitutions have often been tied to the process by which they were initially adopted. States that have codified constitutions normally give the constitution supremacy over ordinary statute law. Unwritten constitutions are the product of an ‘evolution’ of laws and conventions over centuries. There are advantages and disadvantages to both types of constitutions. Major principle and key constitutional provisions are entrenched, safeguarding them from intervention by the Government of the day. An entrenched constitution cannot be altered in any way by a legislature as part of its normal business concerning ordinary statutory laws. The strongest level of entrenchment exist in those constitutions that state that some of the most fundamental principles are absolute, i.e. certain articles may not be amended under any circumstances. For example the German Federal Constitution which states that human dignity on the basis of human rights is protected. The fundamental rights or the right to life are outlined. The Bill of Rights are clearly outlines which deals with rights to equality, human dignity, life, privacy, freedom of speech, freedom of religion and expression, labour relations, education, children and legal process. A Bill of Rights place limitations on the Government and creates an area of freedom for the people. Individual liberty is more securely protected and authorative Government is kept at bay. The Government is ‘straight jacketed’, so absolute power cannot be the norm of the government. The Constitution is supreme over ordinary statute law. If there is any conflict between a legal statute and the constitution, all or part of the statute are declared ultra vires by a court, and struck down as unconstitutional. The constitution of the United States had many unforeseen shortcomings which the Founding Fathers could not have envisioned over two hundred years ago. These had to be patched through amendments, but have been honoured by Governments, and no dictatorship has been able to take hold of it. The opposite effect of this was seen with the constitution of Argentina written many years after in 1853 and was a better document, but did not prevent a succession of dictatorial Governments from ignoring it, such as the Peron’s Military Government which ignored the fundamental rights of the people. In Argentina a state of emergency was declared 52 times to bypass constitutional guarantees. Non political judges are able to police the constitution to ensure that its provisions are upheld by other public bodies. The judiciary is unique in that it is not elected, but it is independent. Judges in Trinidad and Tobago and the rest of the Commonwealth Caribbean are appointed by the various Judicial and Legal Service Commissions. As a result no one, especially a corrupt politician can interfere in the work of the constitutional courts. The constitution is protected by the legal bodies of the courts, such as the Supreme Court, the Constitutional Courts or the High Courts of the various countries. The responsibility of the court is to protect constitutionally established rights and freedom. Any constitutional violation by the executive, such as a politician who abuses the power of his established office can be held accountable in court. This was evident in Trinidad and Tobago, where many felt that the last Prime Minister, Patrick Manning abused the powers of his office, and on many occasions was taken to court for judicial review. The German Constitutional Court is a special court dedicated solely to the protection of the constitution. Constitutional courts are powerful instruments of judicial review with the power to declare “unconstitutional” a law that is deemed incompatible with the constitution. France has a Constitutional Council which judges the constitutionality of laws before the ratification process. The power of the legislature is constrained, cutting its sovereignty down to size. A crucial function of a constitution and a classic feature of democracy is the division of power among the three pillars of Government, i.e. the legislative, the executive and the judiciary. The legislature makes laws and monitors the executive. The executive makes policy, proposes laws and implements laws passed by the legislatures and the judiciary tries cases and administer justice. Each arm of the state keeps watch over the powers of the other. The courts can judge the actions of the legislature and the executive but cannot pass laws. The legislature can make laws but cannot hand down judgments or take executive action. The challenge is to ensure that the executives do not wield its authority without being contained by the other branches. Division of power in this way ensures checks and balances within the system in a country. Lord Action’s assumption was, “power corrupts: absolute power corrupts absolutely”. The concentration of all power into the hands of one individual or group places them in a position to abuse that power and thus to instill fear into the common man, hence the need for the doctrine of the separation of powers in a democracy. The written document has an educational value in that it highlights the central values and overall goals of the political system. The ceremonial preamble of the Trinidad and Tobago’s constitution makes reference to the supremacy of God, fundamental human rights and freedoms. The American constitution also draws reference to God. The constitution of the Republic of South Africa 1996 which is called the “birth certificate” of a new South Africa states the hopes and aspirations of the nation torn apart by apartheid. This preamble recognizes the injustices of the past and honours those who suffered for injustices and freedom and respect for those who work to develop the country and believe that South Africa belongs to all who live in it, united in diversity. One disadvantage of the written constitution is that it is more rigid and may therefore be less responsive and adaptable than an unwritten one. It is the view of many politicians and academics globally that a constitution should grow with the society in keeping with that particular time in the historical development of the country. This type of constitution does not allow for a great amount of organic change over time and does not easily take into account the needs of the democratic system and the people. A majority is needed in Parliament to attempt any kind of modification. The United States constitution is stuck with old provisions that people think are a bad idea, e.g. the right to bear arms and the right to a jury trial in federal cases involving more than twenty dollars. After time most of these old provisions are ignored or never used in a modern society, since they are not relevant to the needs of the people. Last year the St. Vincent Government attempted constitutional reform, but needed a majority of seventy five percent of the voters in a referendum. The Government was not able to get this majority, so they are stuck within the confines of their old constitution. Within the last couple of years the People’s National Movement under the Prime Minister Patrick Manning, of Trinidad and Tobago attempted constitutional reform, but they did not have a majority in Parliament so they went about it in a different way. The draft proposed constitution was printed and widely distributed to citizens of the country so that their views were shared. Throughout the country there were public meetings and consultation with the people. The people were given a forum to express their desire or disgust for the proposed constitutional document. There was also consultation with the leader of the opposition, because the support of the opposition was needed to make any kind of amendment to the proposed constitution. The second disadvantage of the written constitution is that Government power may be more effectively constrained by regular elections than by a constitutional document. In democratic countries, General Elections are held ever so often so that the people can decide who forms the next Government. In the United States, elections are held every four years, but a President cannot serve more than two terms, so he cannot run for office after his second term is up. This is another way to keep someone out of the Presidency for too long, like in some of the African countries where it is noted that Presidents who
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