The Constitution must empower the judiciary with the power to interpret, protect and defend the Constitution and the fundamental rights and freedoms of the people against the possible legislative and executive excesses. These are the basic features which must be present in every good Constitution.
In fact, a constitution must have both a certain degree of rigidity as well as an ability to change for keeping pace with the changing times. An excessive rigidity or excessive flexibility should be avoided. The Constitution of India is partly rigid and partly flexible. In several respects, it is a rigid constitution but in practice, it has mostly worked as a flexible constitution.
A government which maintained law and order, defined property rights, served as a means whereby we could modify property to rights and other rules of the economic game, adjudicated disputes about the interpretation of the rules, enforced contracts, promoted competition, provided a monetary frame-work engaged in activities to counter technical monopolies and to overcome neighbourhood effects widely regarded as sufficiently important to justify government intervention, and which supplemented: private charity and the private family in protecting the irresponsible, whether madman or child — such a government would clearly have important functions to perform.
The consistent liberal is no anarchist.
The great difficulty lies in this: you must first enable the government to control the governed: and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.
The role of a constitution is to provide scope for good government, while at the same time placing limitations on the powers of the governors.
The doctrine of the separation of powers, involving a system of checks and balances, is basic to liberal constitutionalism. The system of checks and balances begins with the separation through a constitution of judicial, executive and legislative powers. However, it goes much further. It operates also within each branch of the state, in the division of powers between state and federal governments and the distribution of powers between the state, other institutions and individuals in the community. Within the legislative sphere, power is distributed between the component parts of parliament (Senate, House of Representatives and the Governor-General). The power of each House is diffused among its many members. A majority is necessary for the House to act. Each House has a different constituency and/or is elected at periodic intervals and is therefore constrained by the necessity of being responsive to the electorate.
Within the executive sphere ministers, besides having a duty to govern in the interests of the whole nation, are obliged to work with public service. The impartiality of the public service (undermined in recent years) acts as a brake upon favoritism, corruption, discontinuity, nepotism and inefficiency. On the other hand, executive decision making and policy determination remain in the hands of the ministry. Under the Westminster system, the ministry is further constrained by the reserve powers of the Crown and by ministerial responsibility to Parliament.
Within the judiciary, power is distributed amongst a hierarchy of courts in the context of judicial independence. The judiciary is the guardian of the constitution and acts as a check on the abuse of the executive and legislative powers.
Under federal constitutions, there is also a division of powers between states and the central government usually involving a divided allocation of subjects of legislative power — which is another check on the extent of power.
The system of checks and balances also operates outside the constitution and the law. Democracy, the electoral system, free expression and criticism the investigative media and the existence s of countless strong and not so strong independent institutions cumulatively operate as a system of checks and balances on those exercising private and public power.
THE ROLE OF LAW
The role of law and the legal system in the theory and practice of Anglo-American democracies in the pro-interventionist era were underpinned by the following principles:
The supremacy of law, which means is that all persons (individuals and governments) are subject to the law;
A conception of justice that emphasizes interpersonal adjudication, law based on faults, and the importance of procedures:
AN INDEPENDENT JUDICIARY;
The exercise by Parliament of legislative power and restrictions on the exercise of legislative power by the executive. Because of limitations of space, I propose to focus briefly on only some of these.
JUSTICE
The concept of justice has three facets: interpersonal adjudication, law based on fault, and an emphasis on procedures.
Justice is based on the rights and duties of the individual. The liberal concept of justice is an interpersonal one: resolution of the conflict between individuals. Social justice, involving society and social groups, is directly antagonistic to the liberal idea of justice. It is nebulous as a concept and unachievable in practice. Its proponents increase state power in the attempt to realize it, with counterproductive results.
The second facet of liberal justice is that no one should be punished or disadvantaged except for fault (intentional, reckless, or negligent wrongdoing, strict liability applying in exceptional circumstances). The idea of fault is a golden thread running through the fabric of the legal order. A system of sanctions based on fault presupposes known and pre-existing standards of conduct that bind the community. The abdication of the fault basis of liability leads to ever-expanding government, as in the case of, for example, the Australian industrial relations system and consumer protection laws. In the field of family law, the fault has been rendered all but irrelevant in the annulment of marriages, grant of custody, the award of maintenance, and the settlement of property.
COMMON LAW
In the present context, 'common law' describes the body of legal principles and concepts that were evolved over many centuries by judges in the English courts of law. These principles include such values as honesty, the pursuit of truth, responsibility, fairness in interpersonal relations, concern for one's immediate neighbors, respect for property, loyalty, and duty to one's spouse and children, the work ethic and keeping one's word. The emphasis is on the duty and responsibility of the individual, without which no civilization can endure.
The common law method, as compared to legislative reform, results in gradual change through the determination of individual disputes in which parties present contending arguments regarding just conduct. In settling these disputes the courts draw upon precedents embodying the public morality. These principles, as Charles Francis, QC, put it in an unpublished talk,
'represent the collective legal wisdom distilled over many centuries from the finest legal minds in the English-speaking world for the express purpose of defining, protecting and enforcing human rights and obligations'
Through the process of disputation, debate and impartial adjudication, the common law reconciles conflicting interests and develops the necessary constraints on the liberty of the subject.
LEGISLATION
The common law method, like all human creations, is imperfect. It can usefully be supplemented and modernized by legislation. But modernization is not the same as social engineering. The problem with the modern method is that the common law is being smothered out of existence and legislation has become the primary source of social regulation. Legislators and bureaucrats claiming a pearl of superior wisdom indulge in structuring and ordering society in disregard of community consciousness and values. This kind of legislative activism leads to a progressive erosion of human rights under the guise of safeguarding public interests. The common law method, in contrast, assimilates the public morality into legal principles through the direct participation of citizens in the assertion of their individual rights. The restrictions on individual liberty that evolve from this process have a greater relationship to the needs of the people as perceived by the people themselves.
The law of Nigeria consists of courts, offenses, and various types of laws. Nigeria has its own constitution which was established on 29 May 1999. The Constitution of Nigeria is the supreme law of the country. There are four distinct legal systems in Nigeria, which include English law, Common law, Customary law, and Sharia (Islamic) Law. English law in Nigeria is derived from colonial Nigeria, while common law is a development from its post-colonial independence. Customary law is derived from indigenous traditional norms and practices, including the dispute resolution meetings of pre-colonial Yoruba land secret societies and the Èkpè and Okónkò of Igboland and Ibibioland. Sharia Law (also known as Islamic Law) is used only in Northern Nigeria, where Islam is the predominant religion. The country has a judicial branch, the highest court of which is the Supreme Court of Nigeria.
The Nigerian constitution recognizes courts as either Federal or State courts. A primary difference between both is that the President appoints Justices/Judges to federal courts, while State Governors appoint Judges to state courts. All appointments (federal or state) are based on the recommendations of the National Judicial Council.[citation needed]
The Federal courts are the Supreme Court, the Court of Appeal and the Federal High Court.
The State courts include the High Court of a State, the Customary Court of Appeal of a State and the Sharia Court of Appeal of a State. Each of the states (currently thirty-six) is constitutionally allowed to have all of these courts. However, the predominantly Muslim northern states tend to have Sharia courts rather than Customary courts. The predominantly Christian southern states tend to have Customary courts and not Sharia courts.[citation needed]
Due to the fact that the Nigerian capital (known as happy town or The Federal Capital Territory, FCT) is not a state, it has no Governor. Its courts that are equivalent to the state courts have their Judges appointed by the President and are thus federal courts. The FCT courts are: the High Court of the FCT, the Customary Court of Appeal of the FCT and the Sharia Court of Appeal of the FCT
Meaning and Definition:
In simple words, we can say a Constitution is the constitutional law of the state. Constitutional law enjoys the position of being the supreme and fundamental law of the state. It lays down the organization and functions of the government of the state. The Government can use only those powers which the Constitution grants to it.
1. "Constitution is the collection of principles according to which the powers of the government, the rights of the governed and the relations between the two are adjusted. -Woolsey
2. "Constitution is a body of judicial rules which determine the supreme organs of state, prescribes their modes of creation, their mutual relations, their spheres of action and the fundamental place of each of them in relation to the state." -Jellinek
Importance of the Constitution:
Each state has a Constitution which lays down the organization, powers, and functions of the Government of the State. The government always works according to the Constitution, no law or order of the government can violate the Constitution. The constitution is the supreme law and all government institutions and members are bound by it.
Types of Constitution:
1. Written Constitution:
A written constitution means a constitution written in the form of a book or a series of documents combined in the form of a book. It is a consciously framed and enacted the constitution. It is formulated and adopted by a constituent assembly or a council or a legislature.
Garner writes, "A written constitution is a consciously planned constitution, formulated and adopted by deliberate actions of a constituent assembly or a convention." It provides for a definite design of government institutions, their organizations, powers, functions, and inter-relationships.
It embodies the constitutional law of the state. It enjoys the place of supremacy. The government is fully bound by its provisions and works strictly in accordance with its provisions. A written constitution can be amended only in accordance with a settled process of the amendment written in the constitution itself. It is a duly passed and enacted Constitution. The Constitutions of India, the USA, Germany, Japan, Canada, France, Switzerland, and several other states, are written constitutions.
2. Unwritten Constitution:
with several wells settled, but not wholly written rules and conventions. The people know their Constitution. They accept and obey it, but do not possess it in a written form. An unwritten constitution cannot be produced in the form of a book.
However, an unwritten constitution is not totally unwritten. Some of its parts are available in written forms but these do not stand codified in the form of a legal document or a code or a book. According to Garner, "an unwritten constitution is one in which most and not all, rules are unwritten and these are not found in any one charter or document."
Difference between Written and Unwritten Constitutions:
(1) A written constitution is written in the form of a book or document, whereas an unwritten constitution is not written in such a form.
(2) A written constitution is a made and enacted by a constituent assembly of the people. An unwritten constitution is the result of a gradual process of constitutional evolution. It is never written by any assembly.
(3) A written constitution is usually less flexible than an unwritten constitution. An unwritten constitution depends mostly on unwritten rules or conventions which do not require any formal amendment.
(4) A written constitution is definite. Its provisions can be quoted in support or against any power exercised by the government. An unwritten constitution cannot be produced in evidence. It has to be proved by quoting its sources and practices.
However, the difference between written and unwritten constitutions is not organic. A written constitution has written parts in the majority. Along with these, it also has some unwritten parts in the form of conventions. In an unwritten constitution, most of the parts are unwritten and are not written in the form of a book. However, some of its parts are also found written in some charters and other documents.
3. Flexible Constitution:
A Flexible Constitution is one which can be easily amended. Several political scientists advocate the view that a flexible constitution is one in which the constitutional law can be amended in the same way as an ordinary law. Constitutional amendments are passed in the same manner by which an ordinary law is passed
.
British Constitution presents a classic example of a most flexible constitution. The British Parliament is a sovereign parliament which can make or amend any law or constitutional law by a simple majority. Laws aiming to affect changes in constitutional law or in any ordinary law are passed through the same legislative procedure i.e., by a simple majority of votes in the legislature. Similarly, a Constitution is flexible when the procedure of amending it is simple and the changes can be made easily.
(A) Merits of a Flexible Constitution:
(i) First, a major merit of the flexible constitution is its ability to change easily in accordance with the changes in the social and political environment of the society and state.
(ii) Secondly, it is very helpful in meeting emergencies because it can be easily amended.
(iii) Thirdly, because of its dynamic nature, there are less opportunities for revolt. The constitution has the ability to keep pace with the changing times. The people do not feel the need for revolutionary changes.
(B) Demerits of a Flexible Constitution:
(i) First, a flexible constitution is often, a source of instability. Flexibility enables the government in power to give it a desired dress and content.
(ii) Secondly, it is not suitable for a federation. In a federation, a flexible constitution can lead to undesirable changes in the constitution by the federal government or by the governments of federating units.
4. Rigid Constitution:
The Rigid Constitution is one which cannot be easily amended. Its method of amendment is difficult. For amending it, the legislature has to pass an amendment bill by a specific, usually big, majority of 2/3rd or 3/4th. For passing or amending an ordinary law, the legislature usually passes the law by a simple majority of its members.
A rigid constitution is considered to be the most fundamental law of the land. It is regarded as the basic will of the sovereign people. That is why it can be amended only by a special procedure requiring the passing of the amendment proposed by a big majority of votes which is often followed by ratification by the people in a referendum.
The Constitution of the United States of America is a very rigid constitution.
(A) Merits of a Rigid Constitution:
(i) First, a rigid constitution is a source of stability in administration.
(ii) Secondly, it maintains continuity in administration.
(iii) Thirdly, it cannot become a tool in the hands of the party exercising the power of the state at a particular time.
(B) Demerits of a Rigid Constitution:
(i) First, the chief demerit of a rigid constitution is that it fails to keep pace with fast-changing social environment.
(ii) Secondly, because of its inability to change easily, at times, it hinders the process of social development.
(iii) Thirdly, it can be a source of hindrance during emergencies.
Thus, there are both merits and demerits of Flexible and Rigid Constitutions. The decision whether a state should have a flexible or a rigid constitution should be taken on the basis of the needs and wishes of society. No hard and fast rule can be laid down as to whether a state should have a flexible or a rigid constitution.
5. Evolved Constitution:
An evolved constitution is one which is not made at any time by any assembly of persons or an institution. It is the result of a slow and gradual process of evolution. Its rules and principles draw binding force from the fact of their being recognized as ancient, historical, time-tested and respected customs and conventions.
Some of these conventions get recognized by law and hence become enforceable while others are followed because these are supported by public opinion, their practical utility and moral commitment in their favor. Evolved Constitutions is the product of historical evolution and of political needs and practical wisdom of the people. The Constitution of Great Britain presents a key example of an evolved constitution.
6. Enacted Constitution:
An Enacted Constitution is a man-made constitution. It is made, enacted and adopted by an assembly or council called a Constituent Assembly or Constitutional Council. It is duly passed after a thorough discussion over its objectives, principles, and provisions. It is written in the form of a book or as a series of documents and in a systematic and formal manner. The Constitutions of India the USA, Japan, China and most of the other states are enacted constitutions.
Qualities of a Good Constitution:
1. The constitution must be systematically written.
2. It should incorporate the constitutional law of the state and enjoy supremacy.
3. It should have the ability to develop and change in accordance with the changes in the environment and the needs of the people.
4. It should be neither unduly rigid nor unduly flexible.
5. It must provide for Fundamental Rights and Freedoms of the people.
6. It should clearly define the organization, powers, functions inter-relations of the government of the state and its three organs.
7. It must provide for the organization of a representative, responsible, limited and accountable government.
8. It must provide for:
Constitution enjoys supreme importance in the state because:
1. It reflects the sovereign will of the people.
2. It lies down of the aims, objectives, values, and goals which the people want to secure. .
3. It contains a description and guarantee of the fundamental rights of the people.
4. It gives a detailed account of the organization of the government. The organization, powers, and functions of its three organs of the and their interrelationship.
5. In a federation, the Constitution lays down the division of powers between the central government and the governments of the federating states/provinces. It is binding upon both the center and the state governments.
SUMMARY
After tribal people first began to live in cities and establish nations, many of these functioned according to unwritten customs, while some developed autocratic, even tyrannical monarchs, who ruled by decree, or re personal whim. Such rule led some thinkers to take the position that what mattered was not the design of governmental institutions and operations, as much as the character of the rulers. This view can be seen in Plato, who called for rule by "philosopher-kings."[48] Later writers, such as Aristotle, Cicero, and Plutarch, would examine designs for the government from a legal and historical standpoint.
Every democratic Constitution guarantees to the citizens protection against arbitrary governmental actions. A democratic state, like India, has a written and supreme constitution which binds all its people and their government
The Renaissance brought a series of political philosophers who wrote implied criticisms of the practices of monarchs and sought to identify principles of constitutional design that would be likely to yield more effective and just governance from their viewpoints. This began with the revival of the Roman law of nations concept and its application to the relations among nations, and they sought to establish customary "laws of war and peace" to ameliorate wars and make them less likely. This led to considerations of what authority monarchs or other officials have and don't have, from where that authority derives, and the remedies for the abuse of such authority.
A seminal juncture in this line of discourse arose in England from the Civil War, the Cromwellian Protectorate, the writings of Thomas Hobbes, Samuel Rutherford, the Levellers, John Milton, and James Harrington, leading to the debate between Robert Filmer, arguing for the divine right of monarchs, on the one side, and on the other, Henry Neville, James Tyrrell, Algernon Sidney, and John Locke. What arose from the latter was a concept of government being erected on the foundations of first, a state of nature governed by natural laws, then a state of society, established by a social contract or compact, which bring underlying natural or social laws, before governments are formally established on them as foundations.
CONCLUSION
Constitutions are often, but by no means always, protected by a legal body whose job it is to interpret those constitutions and, where applicable, declare void executive and legislative acts which infringe the constitution. In some countries, such as Germany, this function is carried out by a dedicated constitutional court which performs this (and only this) function. In other countries, such as Ireland, the ordinary courts may perform this function in addition to their other responsibilities. While elsewhere, like in the United Kingdom, the concept of declaring an act to be unconstitutional does not exist.
A constitutional violation is an action or legislative act that is judged by a constitutional court to be contrary to the constitution, that is, unconstitutional. An example of constitutional violation by the executive could be a public office holder who acts outside the powers granted to that office by a constitution. An example of constitutional violation by the legislature is an attempt to pass a law that would contradict the constitution, without first going through the proper constitutional amendment process.
REFERENCES
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4. Sarkar, Siuli (2009). Public Administration In India. PHI Learning Pvt. Ltd. p. 363. ISBN 978-8120339798.
5. Kashyap, Subhash (1994). Our Constitution – An introduction to India's Constitution and Constitution Law. National Book Trust, India. p. 3. ISBN 978-8123707341.
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9. The historical and institutional context of Roman law, George Mousourakis, 2003, p. 243
10. Gordon, Scott (1999). Controlling the State: Constitutionalism from Ancient Athens to Today. Harvard University Press. p. 4. ISBN 978-0674169876
11. "Africa :: Nigeria". The World Factbook. Central Intelligence Agency (United States).
12. "CourtofAppealAct". nigeria-law.org. Retrieved 19 October 2016.
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14. "CODE OF CONDUCT BUREAU AND TRIBUNAL ACT"
15. "Sharia Courts in Nigeria". insideislam.wisc.edu. Retrieved 18 October 2016. |first1= missing |last1= in Authors list (help)
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