What is Constitution?

• A constitution is the rule book for a state. It sets out the fundamental

principles by which the state is governed.

• It describes the main institutions of the state and defines the relationship

between these institutions (for example, between the executive, legislature,

and judiciary).

• It places limits on the exercise of power and sets out the rights and duties

of the citizen.

A constitution is the rule book for a state. It sets out the fundamental principles

by which the state is governed. It describes the main institutions of the state and

defines the relationship between these institutions (for example, between the

executive, legislature, and judiciary). It places limits on the exercise of power

and sets out the rights and duties of citizens.

Types of Constitution:Codified, Uncodified, Flexible and Inflexible

Constitutions

That difference between a codified and uncodified constitution is also reflected

on the fact that what is written in the constitutional document becomes a superior

law that can only be judged by a Constitutional Court. This brings us to another

classification of constitutions as “flexible”, such as the British constitution that

can be amended with ease, and “inflexible”, such as the US constitution, which
contains entrenchments that make it very difficult to make constitutional

changes. The 1973 constitution of Pakistan is called a semi-rigid constitution

because the method of amendment in it is neither too difficult nor too easy. A two-

third majority of the Parliament (National Assembly and Senate) is required to

make an amendment in the constitution. In constitutions of the inflexible type, it

is the constitution, not the legislature that is supreme. Arguably, codified

constitutions provide mechanisms to effect constitutional changes. However,

making those changes is not necessarily easy. In the Canadian Constitution of

1982, the whole of Part V of the constitutional document lays down the

procedures for constitutional amendment, and as a consequence, the constitution

is criticised for being at a standstill.

Most countries have the rule book codified in a single document, known as a

codified (or written) constitution. Codified constitutions are typically produced

following a revolution (like the American constitution of 1787 or the French

constitution of 1791); or total defeat in war (like the post-war constitutions of

Germany and Japan); or a complete collapse of legitimacy of the previous system

of government (like post-apartheid South Africa, or post-Soviet Russia); or the

attainment of independence (like all the countries of the former British empire).

None of these things have happened to the UK, which is why it has never had

cause to codify its constitution. (Our one revolution, in the 17th century, did

briefly produce a written constitution: Cromwell’s Instrument of Government).

Codified constitutions contain fundamental, superior law, and are harder to

amend than ordinary law. Constitutional change typically involves approval by a

super-majority in the legislature, or a referendum, or sometimes both. For

example, an amendment of the Japanese constitution requires approval by a super

majority of two-thirds of both houses of the Diet, and then by simple majority in

a popular referendum. Amendment of the US constitution requires two

thirds vote in both Houses of Congress, followed by ratification by three

quarters (38 out of 50) of all the state legislatures.

Constitutional change can also be achieved by interpretation or re-interpretation

of the constitutional text by the courts. Because of the high threshold required to

amend the constitution, in some countries (such as the US) judicial decisions can

be as important in revising the constitution as the process of formal amendment.

The Functions of a Constitution

• Constitutions can declare and define the boundaries of the political community.

These boundaries can be territorial (the geographical borders of a state, as well as

its claims to any other territory or extra-territorial rights) and personal (the

definition of citizenship). Thus, a country’s constitution often distinguishes

between those who are inside and those who are outside the polity.
• Constitutions can declare and define the nature and authority of the political

community. They often declare the state’s fundamental principles and

assumptions, as well as where its sovereignty lies. For example, the French

Constitution declares that ‘France is an indivisible, secular, democratic and social

Republic’ and that ‘National sovereignty belongs to the people, who exercise it

through their representatives and by means of referendums’ (Constitution of the

Fifth French Republic).The Constitution of Pakistan(Objective Resolution )

states that Whereas sovereignty over the entire universe belongs to Allah

Almighty alone and the authority which He has delegated to the State of Pakistan,

through its people for being exercised within the limits prescribed by Him is a

sacred trust; The Constitution of Ghana (1992) states that, ‘The Sovereignty of

Ghana resides in the people of Ghana in whose name and for whose welfare the

powers of government are to be exercised’.

• Constitutions can express the identity and values of a national community. As

nation building instruments, Constitutions may define the national flag, anthem,

and other symbols, and may make proclamations about the values, history and

identity of the nation.

• Constitutions can declare and define the rights and duties of citizens. Most

constitutions include a declaration of fundamental rights applicable to citizens.

At a minimum, these will include the basic civil liberties that are necessary for an

open and democratic society (e.g. the freedoms of thought, speech, association,
and assembly; due process of law and freedom from arbitrary arrest or unlawful

punishment). Many constitutions go beyond this minimum to include social,

economic, and cultural rights or the specific collective rights of minority

communities. And some rights may apply to both citizens and noncitizens, such

as the right to be free from torture or physical abuse.

• Constitutions can establish and regulate the political institutions of the

community— defining the various institutions of government; prescribing their

composition, powers, and functions; and regulating the relations between them.

It is almost universal for constitutions to establish legislative, executive, and

judicial branches of government. In addition, there may be a symbolic head of

state, institutions to ensure the integrity of the political process (such as an

electoral commission), and institutions to ensure the accountability and

transparency of those in power (such as auditors, a court of accounts, a human

rights commission or an ombudsman). The institutional provisions typically

provide mechanisms for the democratic allocation and peaceful transfer of power

(e.g. elections) and mechanisms for the restraint and removal of those who abuse

power or who have lost the confidence of the people (e.g. impeachment

procedures, motions of censure).

• Constitutions can divide or share power between different layers of government

or sub-state communities. Many constitutions establish federal, quasi-federal or

decentralized processes for the sharing of power between provinces, regions, or

other sub-state communities. These may be geographically defined (as in most

federations, such as Argentina, Canada or India), or they may be defined by

cultural or linguistic communities (e.g. the 1994 Constitution of Belgium, which

establishes autonomous linguistic communities in addition to geographical

regions).

• Constitutions can declare the official religious identity of the state and

demarcate relationships between sacred and secular authorities. This is

particularly important in societies where religious and national identities are

interrelated, or where religious law has traditionally determined matters of

personal status or the arbitration of disputes between citizens.

Why is a constitution important?

• A constitution is important because it ensures that those who

make decisions on behalf of the public fairly represent public

opinion.

• It also sets out the ways in which those who exercise power may

be held accountable to the people they serve. And it sets out

where government powers end by guaranteeing individuals’

 specific rights and freedoms. These rights help to assure the

protection and promotion of human dignity, equality and liberty.

• Constitutions may provide for the division of powers between

the central government and the regions. Constitutions should be

agreed rather than imposed so as to provide an acceptable

framework for the settling of different political views. They help

provide for a stable society by ensuring that, although everybody

may not agree with the government all the time, the people accept

the legitimacy of the system of choosing governments.

What does a constitution contain?

A constitution will often contain a number, if not all, of the following

features:

• A Preamble: This sets the constitution in context, outlining the state’s

fundamental values and objectives.

• The Identity of the State: The constitution may set out the official

language or languages, the country’s flag, who is eligible to be a citizen

and the position of the state in the world.

• A Bill of Rights: The constitution will set out the rights of individuals and

the circumstances in which these may be limited or suspended.

• Commitment to the rule of law: Many constitutions endorse the rule of

law, whereby laws must be clear and accessible, equally enforced, and

where people have the opportunity to assert their rights in courts where

they must receive a fair trial before independent and impartial judges.

• The Role and Composition of the Legislature (Law Making Body): The

constitution will set out who will make up the legislature and how its

members will be chosen. There may be one or two bodies and the

constitution will say what their respective roles are.

• The Role and Composition of the Executive (President/ Prime Minister/

Ministers): The constitution will determine who will be part of the

executive and how they will be chosen. It sets out the powers of the

executive including those of the head of the executive (president / prime

minister). In some constitutions the head of state has a great deal of

powers, and in others the head of state is more in the nature of the

representative of the people, and the main executive power is wielded by

a prime minister. The constitution also sets out how the executive is

accountable for the exercise of power to the legislature, the courts and the

people.
• The Structure and Appointment of the Judiciary: The constitution sets

out conditions for choosing judges and their independence from the other

branches of government (the legislature and the executive) as well as the

kinds and levels of courts. The role and method of appointment of the

government legal advisor (Attorney General) and public prosecutors will

also normally also be provided for in the constitution.

• Provisions for Elections: The constitution sets out requirements for

elections. These may include which voting system is to be used,

regulations for political parties, who may stand for election and

regulations regarding how elections are to be carried out fairly and

honestly.