Constitutional Law and Political Institutions

1. Constitutional Law and Political Institutions Dr. Denis Bikesha University of Rwanda School of Law

2. General Introduction • Seems familiar to many because most of its concepts are used in people’s daily life (legal or political aspects) • Unlike concepts such as those of Private Law, Public Law concepts e.g. • elections, referendum, presidency of the republic, dissolution of the parliament, political regimes, political systems, political parties or constitution, are usually familiar to people even those who are not lawyers. • We will fully discuss these concepts in this course for clarity.

3. Contd • We will be interested in scientific understanding of these concepts (legally). • To be aware of the relevance of linking theories to reality, linking the facts to the rule of law. • Should know that political facts are part of constitutional law but the latter is not equal to political science but a legal science. • Instead we should be able to link what we have observed from the political realities to the rule of law that should apply. • Students are expected to go beyond the readings of the lecturer and explanation to read other materials in the spirit of research for more knowledge.

4. Contd • Students should however come to class because the lecturer helps students to understand contested issues and facilitates debates that may be contextualized to a given situation. • To understand this course, students should also be able to make an organized exposé of a question of law with solid arguments embracing broadly issues with a summarising and critical spirit usually done in debates. • Why is Constitutional Law a very important subject? • All fields or disciplines suppose the existence of the state and state creates and implements law. • It is the state that elaborates the framework and organizes the creation of law in relation to different actors including private actors or individuals ( C.L. base)

5. Contd • Any training of any lawyer should start by mastering the state phenomenon that has characterized and still characterizing people and societies since time immemorial. • C.L. shows that some concepts e.g constitution, government, elections, democracy, power…may be known in a different sense from what the course introduces to students. They may be disappointed when it reaches to debates or exams. • Modern constitutional lawyers no longer take the only legal approach but also include realities subject to political science while dealing with constitutional issues because of changes and evolutions made in this field of law.

6. Contd • The study of constitutional law implies the consideration of the constitution as a unique document containing rules and organizing powers within the state. • The study also requires the consideration of other constitutional systems ( bearing in mind that some old democracies do not even have written constitutions…e.g. U.K) • C.L requires a prevailed place and particular attention in the study of the legal system of any state because it is the one that organizes and frames the whole political system of a country. • It is worth noting that the study of both formal and substantive constitutional matters is relevant though each requires different methodology.

7. Contd • Formal will cover things such as: • its wording, degree of comprehensiveness, coherence or possible lack of clarity, its rules of amendment, i.e. all questions of textual interpretation or matters of validity. • There is also the problem of efficacy, or the degree to which the paragraphs of the constitution match with the institutions in terms of how the country is governed…substantive aspects. • Purposes of a political scientist and a constitutional lawyer are different, the latter is more oriented towards the formal side and the system of legal articles, whereas the former is more focused on the substantive side (the institutions which actually govern behaviour.)

8. CHAPTER 2: GENERALITIES • Countries possess an identifiable document(s) called the constitution, embodying the most important rules of the government of the country. • The study of Constitutional law calls for an understanding of what lies behind and beyond the constitution, so that the constitution can be understood as a central feature, but not the sole feature of the rules regulating the system of government. • complete studies of constitutional law are likely to range into history, political and legal theory, and political science, legislative and political practice • Bill of Rights such as freedom of expression, equality, socio-economic rights may not be enough without scrutinising recent judicial interpretations

9. Contd • They appear to be far more significant than what the framers of the constitution and its amendments meant or thought they meant by those expressions (importance of courts’ decisions). • Quite often, the text of the constitution is not intended to be taken literally. So what happens? • The implementation of these provisions are to be made by the judiciary empowered to give the right and actual meaning to them Meaning of Constitution and Constitutional law • Constitutional law is that branch of public law that concerns the constitution of a state. • The role and powers of the institutions within the state and with the relationship between the citizen and the state.

10. Cont’d • The term of constitution is a set of rules, a living, dynamic organism, which at any point in time will reflect the moral and political values of the people. • No constitution can be acquired without understanding the historical background of the State, which reveals the moral and political influences that have pushed the constitution as it exists today. • The broad meaning of constitution is the sense that the constitution simply refers to the entire body of rules by which a state is governed. • The constitution here refers not to a written document, but to the actual manner in which a country is ruled, the regime or the set of fundamental state institutions and their functioning.

11. Contd • The narrow meaning is taken in the sense that in nearly all-modern states (save for the UK, Israel and New Zealand) have constn, or at least the major part of it, is embodied in a single, written document, or a short series of documents. • In its narrow sense, the constitution refers to this written document or series of documents. • In this sense, the most famous written constitution and the first to be established, in 1787, is that of the USA. • UK hasn’t such a document but other kind of documents that have constitutional status e.g. from the Magna Carta of 1215 to Acts of Parliament such as the Habeas Corpus Act of 1679 and the Bill of Rights of 1689. • In addition, there exist customary law, conventions and most recently the European Community law

12. Contd • A state’s constitutional law comprises more than the written constitution. It also encompasses constitutional customs, constitutional conventions, constitutional precedents where the courts interpret the constitution and ordinary laws with constitutional implications. • Even in countries that have a compact document; customary law, precedents or conventions do play an important role. • In US, precedents in the form of a number of key decisions by the Supreme Courts, concerning the interpretation of the Constn have played a major political role for determining constitutional practice. • A key ingredient in the constitutional law is customary law or precedents, even if there may be strong codification.

13. Gap between a constitution and its applicability • Some considerations: • It is not always necessary that a state have such a document because states may operate based on constitutional practice made up of customary law and other relevant documents and practice. • The existence of a codified document does not mean that it remains the sole document of constitutional importance. Why? It is impossible to cover each aspect of const’nal practice in one single document. • The existence of a codified constn does not in anyway guarantee that the country in qn is ruled in accordance with the provisions of this document. These’re 2 separate qns that must be dealt with differently: the existence of a constn is one thing and its implementation is another.

14. Cont’d • In some countries, the formally enacted const’n may be almost irrelevant to the actual way in which the country is governed, the constitution having been suspended or simply neglected. • In other countries, key rules in the const’n may be considered old fashioned or obsolete at the same times as the rules actually employed in governing the country have not been codified or even laid down in any other document. • The distance between the written constitution and the real regime may be very large, as when dictatorships employ a written fallacious constitution. One wonders if these could be called const’n while the aim is supposed to limiting powers.

15. Controversy • Two const’nal contexts have been differently evaluated: - The constitution of a country should be stated explicitly in a set of written rules that are clearly and coherently formulated and that are implemented as closely as possible to the intent of those who framed the constitutions. • The opposite standpoint emphasisesconstitutional practice. The living constitution of a country can never be fully codified. • Const’nal institutions change all the time, adapting to new circumstances in a way that can make constitutional statutes outdated by the time they are enacted. • It is more important to get the institutions right than to enact a comprehensive formal constitution and this is the argument of constitutional pragmatism (practicality).

16. Assessing the debate • American constitutionalism is a blend (mixture) of both formalism and constitutional pragmatism, they uphold the oldest formally valid constitution in the world, while at the same time, interpretation and legal review plays a major role in changing the content of the constitution without amending its written rules. • It has been considered that lawyers should rely not only on the written constitution but also on institutions, on the reality on the ground in dealing with constitutional issues. • Why? The distinction between constitutional articles and institutions has far-reaching implications for constitutional theory. • Also, the formal aspect of constitutional law does not cover all substantive issues governing the political sphere of a country. • It is France, at Toulouse University that Political Institutions were added Constitutional Law by Maurice Hauriou in 1954. • This approach has the advantage of combining the law to the fact and therefore to get their whole picture and interactions.

17. The notion of constitutionalism and related concepts • Constitutionalism begins in a technical sense when the English term constitution was first used in its current political science context in the late 17th C. • Constitutionalism was introduced in the mid 18th C and it is a concept borrowed from Anglo-American political science. • Constitutionalism is part of constitutional and democratic theory. • There is no single one unanimously accepted definition of constitutionalism. • Grey remarked: ‘Constitutionalism is one of those concepts, evocative and persuasive in its connotations yet cloudy in its analytic and descriptive content, which at once enrich and confuse political discourse.’

18. Contd • In the context of political theory, constitutionalism often signifies concern with the problem of how the institutions of a state are to be organised in order to secure the basic rights of men and women or citizens. • Ihonvbere considers constitutionalism as a constitution –making process (see his own words in the main text p.13) • This definition is however problematic. It reduces constitutionalism to the process of constitution making or to the making of democratic and legitimate constitution. It cannot assist in understanding constitutionalism in countries with constitutions that have been in operation for centuries with little or minor amendments and where the people do not need go through a new process of constitution making. • Constitutionalism does not imply that every generation should embark on the process of constitution making.

19. Contd • Others have defined constitutionalism as a political form in which a body of fundamental laws establishes the powers of government and institutionalises important limits for its operation • Constitutionalism is also sometimes confused or identified with human rights, written constitutions, separation of powers and judicial review. All these writings reveal that there is no accepted definition of constitutionalism. • It is perceived as either a set of rules aimed at achieving a specific end or a body of values underlying the government of a society by lawyers and political scientists respectively. • Two main approaches to constitutionalism may be distinguished: the traditional and the modern ones • According to traditional approaches i.e procedural and negative constitutionalism, Ihonvbere points it out that liberal concept of constitutionalism rests on two main pillars: limited government and individual rights.

20. Cont’d • The limitation of government by law.” Some have called it “limited government”, others “a man -made device to limit the arbitrariness of government.” • For others, no government should ever have unlimited power to do whatever it wants, since every political system is likely to relapse into arbitrary rule, unless precautions are being taken. • Traditional approaches of constitutionalism appears that constitutionalism is grounded on the notion of limitation of state power by means of law. • Ivison argues that negative constitutionalism seems an incomplete formulation of what constitutionalism means. Constitutions are about preventing abuses of powers, but also about things that are more positive too.

21. Modern: Substantive and positive constitutionalism • Modern constitutionalism is said to be more concerned with values. • New constitutions proclaim to be based on a number of core values and these democratic values must be promoted in the interpretation of the constitution in general and of the Bill of Rights in particular i.e. substantive and positive constitutionalism. • To give effect to democratic values, the state should be more effective and more active and be given more powers than under negative constitutionalism - rights based conception. Assessing the above debate • Traditional and modern approaches as well as rules and values are not mutually exclusive, but reinforcing. • In short, constitutionalism is a doctrine, which is concerned with rules and values. • Formal, procedural and negative constitutionalism should not be

22. Cont’d • Formal, procedural and negative constitutionalism should not be stressed at the expense of substantive and positive constitutionalism and vice versa. • We take the view that constitutionalism is a legal and political idea, principle or doctrine; it is based on both rules and values. • Arguably, it is both an evolutionary and a revolutionary concept.

23. CHAPTER 3: CLARIFICATION OF CONSTITUTIONAL CONCEPTS & PRINCIPLES • Every State has a constn irrespective of what the type is: • formal constn in the shape of an explicitly laid down basic law protected by a special const’nal court; • substantive constn in the form of a tacitly understood set of customs and conventions that make up a const’nal practice. • Democratic regimes tend to adhere to the doctrine of const’lism i.e. the idea that there shall exist institutions that constrain (coerce) the exercise of state power while satisfying the needs of the society. • what more precisely, is the r/hip between democracy, const’lism and the constit’nal state? • P’ples of democracy are usually entrenched in the constn of a given state. When these’re followed and obeyed, there will be democracy b’se of the existence of const’lism.

24. Constitution v. State • The connection between the constitution and the state is so close that a constitutional framework sh’d necessarily be part of the state, no matter written or not lest there is dictatorship. • Often, dictatorships employ façade (disguised) constitutions as when they suspend the constitution and rule by means of martial law. • Although dictatorships may have a written constitution, they may be said to never be constitutional states. • A constitutional state is identified by a constitution that really constraints the exercise of political power and protects citizens’ rights.

25. Constitution v. Democracy • Democracy implies self-government and constitutionalism implies limited government. The tension between these is found in both liberal and conservative arguments on the value of constitutionalism. • Liberal argument: political officials cannot obey the popular will of the electorate if they are constrained by a constitution drawn up by the elite. In this sense, a const’n is inherently undemocratic and serves the interests of the political elite. • Conservative argument: a const’n may well be the product of the elite but it serves to protect against tyranny of the majority and excesses democratic rule. Const’n v. Power • The state has two faces: the power and the rule of law. • The former is an expression of the state’s capacity to take action. • The state as power and authority is captured in the concept of sovereignty.

26. Cont’d • The latter follows from the fact that the state cannot but act in terms of legal order • The power of the state derives from its command over vast resources in the form of money, people and rules. • System of institutions identified by statute law, customs or precedents and conventions will help the state to employ these power resources. • On the other hand, stated the other way around, the legal order comprises laws that regulate the state and all its powers. • The scholars who followed the reasons of the state tradition claim that power takes precedence over the rule of law, whereas the constitutionalist scholars claim that morality requires state power to be tamed (controlled) by legal restrictions that bind the rulers. The constitution would contain the most fundamental rules that structure and restrain state power.

27. Constitution with some of its functions • Constitution refers to the “framework according to which a political society is structured by means of the law, and where permanent institutions with specific and pre-determined functions and rights are created, through law.” (See: Strong C F (1972), Modern Political Constitutions) • Constns are there to satisfy the demands of the citizens of a state that their rights will be protected and that the power of government will be limited; • Should satisfy the demands and expectations of separate communities that form a political unit. • It is only in the context of the values, aspirations and ideals of a particular people that the constitution becomes something important, otherwise it would be like any other legal doc. • Also, the ideals of a constitution are important not only as a legal principle but also as a political one.

28. Cont’d • Being a fundamental and normative law, the constitution is the foundation of political societies: it defines the principles and rules to resolve general common issues as well as private ones. • Constitution is in principle superior to all other laws. It is not the law of the power in place; it is the law that is above and organises the exercise of this power. • It is the act of a community of persons who are committed themselves to be free and who fix their own law for themselves. • It is an act of sovereignty that facilitates the creation of a democratic political society, i.e., a society of free persons who obey laws not other persons.

29. Characteristics of written constitutions • Constitutions have 3 major characteristics: • They derive from the sovereign; • They generally constitute the higher law of the land and • their provisions are entrenched with such authority that they cannot be altered with ease. • Constituent power • An authority, which is both outside and above the system having the power to establish the constitution. • In liberal democratic societies, people are normally constituent power. • This usually means that, only after the people have approved the constitution, will it take effect. Therefore, in liberal democratic states, the people’s approval of the constitution legitimises the political system that the constitution creates. • This may be done directly by the people through referendum or indirectly, through the people’s representatives.

30. Cont’d • What is the difference between original constituent power and subsidiary constituent power? • The former refers to the authority that has established the constitution while the latter refers to the authority entitled to make subsequent amendments to the document itself. • The latter body will only do this in the form, procedures and circumstances described by the constitution itself. Hierarchy of laws • The constitution is the highest and fundamental as it is the source of authorisation for all other laws. • All laws made by the government are subordinated and inferior. • Some authors Such as DE LACHARRIÈRE have even shown their hostility to the control of constitutionality of law. • However, others such as L. FAVOREU, are very much attached to this control.

31. Cont’d • DE LACHARRIÈRE affirms that there is no need to such a control because both ordinary laws and the constitution are made by elected assemblies, not for themselves but as bodies to express the will of the sovereign, the people. • Therefore, no need to affirm that the will in the constitution is higher than the will in the ordinary law, while even the will in the constitution might be older than the actual will in the law ( ex. the point of view in France in 1958.) • Consequently, the parliament and the executive will be of extraordinary powers and adopt laws even when these laws are inconsistent with the constitution. • Also, to the effects of the control, Judges that will be asked to question the constitutionality of laws may use their own judgment in the place of that of the people. • The result will be what has been called: the government of judges or le gouvernement des juges.

32. Cont’d • The control ensures the state guided by the rule of law and respectful of human rights. • Can unfair and uncontrolled laws adopted by the political party or the coalition in power (executive and parliament) compete with errors or mistakes of judges when dealing with the constitutionality of laws? • It is nowadays commonly accepted that a written constitution should be superior to other laws because it is the source of authority and all laws are subordinate to it. • It would be possible for even legislation enacted by parliament or legislature to be challenged in a court of law on the grounds that it is repugnant (inacceptable) to the constitution • In the Marbury v Madison 1803, the US Supreme Court concluded it had it possessed the power to review legislation for its conformity with the constitution, even though the constitution did not expressly confer this power upon the Court.

33. The idea in Marbury v Madison 1803 • All power entrusted to government comes from the people. It is thus understandable that under such a constitutional arrangement there is a strongly held belief that government holds its power on “trust” for the people. • As a result both law-making and executive powers are conditionally conferred on those who hold public office, subject to the doctrine of trust, which will be enforced by the courts in the name of people. • It is in this context that Chief Justice John Marshall (September 24, 1755 – July 6, 1835 held: (See citation on the next slide)

34. Mr. Justice John Marshall John Marshall (September 24, 1755 – July 6, 1835) was the fourth Chief Justice of the Supreme Court of the United States (1801–1835). His court opinions helped lay the basis for United States constitutional law and many say made the Supreme Court of the United States a coequal branch of government along with the legislative and executive branches. Previously, Marshall had been a leader of the Federalist Party in Virginia and served in the United States House of Representatives from 1799 to 1800. He was Secretary of State under President John Adams from 1800 to 1801. Marshall dominated the Court for over three decades (34 years) and played a significant role in the development of the American legal system

35. c “Certainly all those who have framed written constitutions contemplated them as forming the fundamental and paramount law of the nation, and, consequently, the theory of every such gov’t must be, that an act of the legislature, repugnant to the const’n is void. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a gov’t with limited and unlimited powers is abolished, if those limits do not confine the powers upon whom they are imposed, and if acts prohibited and acts allowed are of equal obligations. It is a proposition too plain to be contested that the const’n controls the legislative act repugnant to it; or, that the legislature may alter the const’n by an ordinary act. Between these two alternatives, there is no middle ground. The const’n is either superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when legislature shall please to alter it. If the former part of the alternative is true, then written const’ns are absurd attempts, on the part of the people, to limit a power in its own nature illimitable.”

36. Cont’d • It is possible, accordingly, under such a constitutional arrangement, for the constitutional court to effectively redefine the relationship between the governors and the governed, the state and its citizens. By this means, the constitution is renewed and reinvigorated. • For example the Bill of Rights amendment of 1787: All persons born or naturalised in the USA, and subject to the jurisdiction thereof, are citizens of the US and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the US; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the law...(Art XIV, Section 1, ratified 9 July 1868). • This has been termed as ‘equal protection’ clause and has been the focus on the development of equal civil and political rights in the US.

37. Equal treatment • In 1896, the Supreme Court of the US was called upon to determine whether the policy of segregation of black and white citizens was lawful under the constitution. The court ruled that ‘separate but equal treatment’ laws did not amount to a denial of the equal protection of the law. • When however, in 1954, the question of ‘equal protection’ came again before the Supreme Court concerning segregation in schools of a number of states, the Court was to rule that such a ‘treatment’ violated the Fourteenth Amendment of the Constitution. • This was a significant step in the protection of the black’s rights, though the ruling did not amount to an effective end of segregation that continued on other grounds. • The Constitution should provide whether there should be a specific court to be called Constitutional court and whether this specialised organ will be dealing with cases from some political authorities or from individuals.

38. Cont’d • The same constitution will also provide for the procedure to be followed before competent organs on issues regarding constitutionality of laws. This procedure will usually be a direct demand against the law (contrôle par voied’action) or an indirect demand (contrôle par voied’exception) when this derives from an ordinary case submitted to ordinary courts. • La voie d'action est la demande d'annulation ou de réformation par une juridiction d'un acte unilatéral ou d'un contrat. Elle se distingue de la voie d'exception par laquelle la nullité ou l'invalidité de l'acte n'est soulevée qu'à titre incident. Entrenchment • The provisions of a constitution are usually entrenched so that they may only be repealed or amended if special procedures are followed. • The authority given to the constitution stems from the constituent power itself and latter is democratically the people.

39. Cont’d • Therefore the same will of the people should regulate how and by who this will can be actualised and reinvigorated. • The rationale behind this is that since the constitution is the higher law, which is made by the constituent power, modifications, by the subsidiary constituent power should be approved by the same authority through the constitution itself. • some times the subsidiary constituent power may make some usurpation of this constituent’s power, when instead of modifying some few authorized provisions, it goes beyond by modifying almost the whole document without calling for the adoption of the new constitution. This practice, though rare, was called by some authors, such as Liet-veaux, ‘fraude à la constitution’.

40. Classification of constitutions • According to K C Wheare, we can have the following classification: • written and unwritten • rigid and flexible • supreme and subordinate • federal and unitary • separated powers and fused powers • Republican and monarchical. • One may add another emerging classification i.e. presidential and Parliamentary constitutions.

41. 1. Written and unwritten Constn • A written constitution is one contained within a single document or a series of documents, with or without amendments, defining the basic rules of the state. • The origins of written constitutions lie in the American War of Independence (1775-1783) and the French Revolution (1789). • Others derive from the grant or devolution of legislative power from previous imperial powers to colonies dominions. • The feature, which characterises all states with written constitution, is that there has been a clear historical break with a previously pertaining constitutional arrangement, thus, providing the opportunity for a fresh constitutional start ( See Wheare). • This has been the practice since 1787 when the American Constitution was drafted, other countries have been imitating. • In Uk unlike France and US, their constitutional law isn’t expressed in a single written constitution for which modifications require formal procedures. It is said to be an unwritten constitution.

42. Cont’d • UK’s constitution is neither written nor rigid. • There is no facility in the UK for a court to declare an Act of Parliament to be illegal or unconstitutional. • UK is built on the principle known as parliamentary sovereignty or supremacy i.e. the British Parliament can pass any laws it likes (including laws changing the constitution). 2. Rigid and flexible constitutions • The protection of the const’n from repeals and amendments with ease. • The rules are entrenched i.e. making difficult/preventing amendments/repeals and this is what makes a const’n rigid. • We can say the UK const’n is flexible while the one of US is rigid. • UK will only base on legal controls considering the effectiveness of laws and the support of the electorate.

43. c. Supreme and subordinate const’n • Supreme is a state in which the legislative powers of governing body are unlimited. • Subordinate is the opposite i.e. the powers of the parliament are ltd by some higher authority. d. Federal and unitary constitutions • Federal Const’n means there is division of powers between central gov’t and individual states or provinces e.g. in the USA, Canada, Australia, Nigeria and Malaysia. • The powers divided bt’n the Federal Gov’t and states or provinces will be clearly set down in the constituent doc. Some powers will be exclusively reserved to the Federal Gov’t (most notably such matters as defence and state security and international relations). • Other powers allocated exclusively to the regional gov’t (such as planning and the raising of local taxation) • The common feature of Federal states is the sharing of power bt’n central and regional.

44. Cont’d • In contrast, in the unitary system, there is a hierarchical arrangement which may permit control others tiers (levels) by the national government. e. Separated powers and fused powers • The doctrine of separation of powers is of great antiquity, dating back at least to Aristotle. John Locke, Viscount Bolingbroke and Baron Montesquieu gave further expression to the idea. • Powers are vested in the principal institutions of the state – legislature, executive and judiciary – should not be concentrated in the hands of any one institution. Fused involves one powerful instn. Why is this separation important? • The object of such a separation is to provide checks on the exercise of power by each institution and also to prevent the potential for tyranny which might otherwise exist. • There’s clear defined boundaries to power, and provisions restraining one institution from exercising the power of another.

45. f. Republican and monarchical constitutions • A republic is a state having as its figurehead a democratically elected President, answerable to the electorate and to the constitution. • Presidential office is both a symbol of statehood and the repository of many powers. • The president will enter into treaties, make declarations of war in the name of the state, and will represent the state on formal international and domestic occasions. • In USA, the president has responsibility for proposing legislation to give effect to the political programme which gave him the mandate of the people. • However, s/he has no formal power to initiate legislation and it is the Congress of the USA which will ultimately determine the acceptability of legislative proposals. • In the UK, it is very different; The Queen is the head of state and all acts of government are undertaken in the name of the Crown.

46. Cont’d • This statement implies that great power is accorded to the Queen but in reality with the exception of important residual powers, this is not the case. • In reality, the Queen is the figurehead, the symbol of the nationhood on a domestic and international level. The Crown also represents the continuity of the state. • The legal powers held by the Crown are for the most part exercised in her name by the elected government of the day. • The monarch in Western Europe conception is no longer politically powerful. His or her role remains mainly ceremonial and symbolic. Which one of these two Constitutions is advisable? • It may be difficult to determine which one of these two Constitutions is advisable, the trend is for new Constitutions to proclaim republics.

47. g. Presidential and Parliamentary Constitutions • This is an emerging classification of Constitutions • The growth of the presidential executive was due to a belief that one of the ways in which the government could be limited was by separating powers. • In strict separation of power within the presidential system, each constitutional organ is independent and cannot act upon the other; there is neither political accountability of the president before the Parliament nor presidential power to dissolve the parliament e.g US. • Gov’ntal power is exercised by the elected president alone who is also the head of the gov’t. • The parliamentary system entails collaboration of powers in w/c reciprocal means of action exist bt’n the gov’t and the parliament. • Thus, the political accountability of the gov’t be4 the assemblies is followed by the right of dissolution in the hand of the head of state or the head of gov’t.

48. Cont’d • Government power is indeed shared between a head of state with limited power and a government headed by a prime minister, which determine and conduct the State policy. • There is no clear cut however, between these functions particularly in Africa but also in France where the President who is elected shares power with the Prime minister who is appointed by the President. State What is a state? • A state is defined as a political entity, constituted of a territory (defined by boundaries), a population and a system of organised government. Entitled with sovereignty, the state personifies the legal personality of the nation. • The nation here has to be distinguished from the state. You may have a state-nation or a nation-state.

49. Difference between a state and a political community • If every state is necessarily a political community, the contrary is not necessarily true. • Today, there are yet political communities, which are, not states. However be noted that it is always important for a political community to be the subject of constitutional protection and provisions. • This is because a state is the favoured mean through which large communities of millions of people aspire to achieve democracy. Functions of the state States consist of structures and functions. Functions refer to duties and objectives that must be reached and structures refer to the institutions and procedures that enable the realisation of these functions.

50. Functions of a state • generation of commonly shared goals through socialisation and the development of commonly shared ideas; • provisions of mechanisms for decision making including the institutions and the procedures for decision making; • provisions for the rules and procedures for leadership selection, • establishment of mechanisms for the articulation and aggregation of the interests that must be taken into account in the determination of public policy; • maintenance of order through the definition of agreed-upon rules and the effective enforcement of these rules; & • preservation of the political system. • These functions are summarily in 3 categories: the legislative, executive & judicial functions.