TOPIC

CLASSIFICATION OF
CONSTITUTIONS
What types of constitution are there? Can we sort
them into different types and, if so, according to
what principles?

Topic 2 concept map

This map represents the core concepts that we will be
covering in this unit, and the relationships between them.

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To p i c O v e r v i e w
In this Topic we will introduce the various systems
of classification of constitutions. In turn this will help
you understand some of the language used in
constitutional theory. The process of classifying
constitutions can be more useful than you might expect.
Different types of constitutions reflect different histories and
different ideological premises at the time of formation.
Consequently an ability to recognise a constitution as a particular
type of constitution will give you a lot of information about
how it works, what kind of governance institutions exist and
how it should be interpreted.

Use PacLII and

WorldLII for online
legal research into
primary resources.
Use the Emalus
Library student
resources page of
online assistance.

In this Topic we actually go a bit further than simply classifying different types of
constitutions, we also look at the way individual components within any given
constitution can be classified. You should remember that learning law is, to some
degree, the learning of a technical language and acquiring the conceptual
technique which has developed over time in a specific area. Constitutional law
and theory has its own specialized system of identifying particular types of
constitutional provisions.
We will introduce the various ways of classifying constitutions to try to impart to
you some of the technical concepts involved. Remember that when we are
introducing these principles we are basically talking about the different ways in
which politics can be organised around a constitution. You might think that law
has nothing to do with politics at all. In fact it has a great deal to do with politics
and always will do.

Topic Outline
Introduction: What is a constitution supposed to achieve?
Criteria for Classifications
- Form
- Content
- Validity
- Adaptability
Relationship to other laws
Conclusion

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Learning Outcomes
Upon successful completion of this topic students will be able to:
Describe several different ways in which constitutions
can be classified;
Identify the defining features of particular types of
constitutions;
Explain the important differences between different
types of constitutions; and
Critically analyse the advantages and disadvantages of the
different constitutional traditions in the context of Pacific
island countries.

Checklist of Activities
To complete this topic you must:
1. Read the topic guides;
2. Complete the listed readings for this topic; and
3. Complete the activities;

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Introduction
What is a Constitution supposed to achieve?
Over the years, philosophers, political commentators and jurists have developed
various methods of classifying constitutions. These ways of classification have
been adopted in order to assist people to analyse the essential elements of
constitutions and compare and contrast them. You can see them discussed in the
extract from the Encyclopaedia Britannica, vol. 5, 1977 which is part of your
readings.
As we noted above, the idea of classifying something is to simplify an area of
potential knowledge and make it more manageable. It is also useful as a starting
point. The system of classifying constitutions came into Western political theory
via the ancient Greek political philosophers.
We have mentioned Plato and Aristotle before. They are no doubt two of the most
substantial contributors to the development of the conceptual tools of political
theory. Some of the key concepts they invented we still use today, although
perhaps in different ways than they intended.
Both Plato and Aristotle developed a system of classification of constitutions.
Remember also that when they used the Greek term for constitution (politeia) this
word did not mean quite the same thing as the sense in which a contemporary
constitutional lawyer might use it. 'Constitution' to them meant something like the
whole of the political system including the relationship which exists between a
ruler and his or her people.
Although the actual classes of constitution they talk about are more or less the
same, there is some difference between them on just what is to be made of the
classification. In the case of Plato, it seems to have assumed that the
classification system was based on some kind of cosmological or metaphysical
principle such that one could predict the cyclical process of movement from one
form of constitution to another. That is Plato saw constitutions as reflecting
progress from more primitive types to more developed forms. Aristotle was more
concerned to simply classify them according to their characteristics.
There are two intersecting criteria of classification. To these thinkers, a
constitution was thought to be good in so far as it involves the ruler acting in the
interests of others (the ruled, the governed, the citizens or the subjects) and bad to
the extent that it involves a ruler acting (ruling) in his or her own private or
selfish interest. Secondly, a constitution can be classified in terms of the degree of
unity and disunity implied in it. Unity, in ancient Greek ways of thinking implies
order and perfection, whilst disunity (and difference) implies the opposite i.e.
disorder and chaos.
These two criteria for classifying constitutions as good or not good systems is
still influential today. To simplify all of this, it can be said that the two criteria
are: firstly whether a constitution encourages rulers to act in the interests of the
general society, (fairness to all people) and secondly whether the constitution is
capable of creating stability, order and unity.
Unfortunately the types of constitutions that may promote stability, eg absolute
rule by a King who is born to rule, may not promote fairness to all people. A

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constitution that gives everyone an equal say in government might be very

unstable as a form of government.
Plato and Aristotle thought that rule by a wise king (Monarchy) would be the
ideal form of government, but unfortunately, experience has shown too many
times that placing absolute power in the hands of one individual usually ends in
disaster. Plato and Aristotle thought that democracy would be too unstable and
that the masses would not be enlightened (wise) enough to choose good rulers.
Neither of them thought of democracy as a modern liberal democrat would think
of it i.e. as a system of limited constitutional and representative government with
guarantees of fundamental rights, the rule of law and a system of free and fair
elections. That was a much later invention. In fact, one of the most important
features of modern constitutions has been that they have attempted to balance the
idea of stability of government and orderliness, with an ideal of ultimate rule by
the people. In the end, modern constitutions have limited both the power of the
people and the power of the rulers to achieve this balance. Whether this balance
is being achieved in any given society at any given time is an open question.

Activity 2.1
Pause there for a moment. Do you think that the dual criteria of fairness and
stability are a good way of classifying constitutions or fairly useless? Are all
monarchies necessarily good systems of government because they may be more
stable? or is democracy sometimes bad because it can be unstable? Is monarchy
unfair?
Which is the more important of the two, fairness or stability?
Is it possible to achieve fairness without some level of stability?
Think about these issues for a moment and write down some point that you can
review later on.

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Criteria for Classifications

The issue of fairness and stability is not so much a means for classifying types of
constitutions or components of constitutions, it is more a criteria for assessing
how effective a particular type of constitution is at achieving these two
commonly valued objectives.
Some bases that have been used for classifying constitutions and components of
constitutions are:
form;
content;
validity;
adaptability; and
relationships with other laws.
We will now look at each of these in more detail.

Form

Form
Written/
Unwritten

Legislative/
Conventional

We just investigated theories that classify constitutions according to the type of

rule they produce, another method of classification that is often used of
constitutions of states based on the form in which the constitution is expressed:
that is to say, whether it is written or unwritten, and whether it is expressed in
laws or in conventions.
i) Written/Unwritten
If there is a one document (also taken to be a law) which called the Constitution,
the constitution is often described as written. If there is no such single document
or paramount law, the constitution is described as unwritten constitution.
The terms "written" and "unwritten", although often used are, in fact, not entirely
accurate and may be misleading. The term "written" is not entirely accurate for
two reasons: first, there may be parts of a written constitution that are not written
at all. These could be parts which are governed by constitutional convention, or
by well established practices. Areas such as the procedures and practices of the
parliament are often matters which are not expressly stated in constitution,
although this varies from place to place.
For example, in the Australian national Constitution of 1901 the roles of the
Cabinet, the obligations of responsible government and the office of Prime
Minister are not mentioned. Yet these are assumed on all sides to be part of the
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basic fabric of the political system which was inherited from the former colonial
power, Great Britain. They were not stated because they were assumed to be
obvious in their application. In the 1997 Constitution of Fiji Islands, however, the
Constitution is very detailed and explicit on matters such as these. Perhaps this
fuels an argument that the British conventions have been displaced, although this
has not been clearly established. See for example conjecture about the emergency
powers of the President in the 2000 attempted coup in the following reading.

Reading 2.1
THE POWERS OF THE PRESIDENT IN FIJI By Professor Bob Hughes*
http://www.vanuatu.usp.ac.fj/journal_splaw/Special_Interest/Fiji_2000/Fiji_Hughes1.ht
ml

Accordingly, there may be parts of the constitution which are written, but are not
contained in that document or law which is called the Constitution. Examples
here include legislation, subsidiary legislation, and the judicial decisions of the
Courts and ensuing principles of common law that are of constitutional
significance. We will go on in later topics to examine these extra sources of
constitutional law in more detail.
Unfortunately the term "unwritten" is also not entirely accurate because there may
be parts of an unwritten constitution which are in fact written. The constitution of
the United Kingdom for example is considered to be unwritten in the sense that
there is no single document known as the constitution. It consists of many
constitutional documents which reflect significant moments in the constitutional
history of the country, such as the Magna Carta, the Act of Settlement of 1700 and
several others. These documents along with established conventions and practices
such as those of responsible government make up a complex set of instruments
and conventions that interrelate. Such a constitutional system is considered to be
unwritten.
It may seem odd to you that Great Britain has an unwritten constitution that has
evolved over many hundreds of years, yet most countries that adopt a British
style legal system choose to enact a single written constitutional document. There
is a good reason for this. The British system is in effect the customary law of
Great Britain. It is well understood and respected in Britain, but where an attempt
is made to transplant such a system to another country and to other cultures then
it is seen as necessary to spell it out in a written document.
What the terms written and unwritten really mean is that the principles of the
constitution have not been codified into one principal document, called the
Constitution "Codified" and "non-codified" would therefore be more accurate
terms to use with regard to the form of a constitution but the terms written and
unwritten have been used for so long that they will probably continue to be used,
even though not completely accurate. Look for an example at the decision of the
Supreme Court of Marshall Islands in In re Nitijela as an illustration
(http://www.vanuatu.usp.ac.fj/library/Paclaw/MarshallIslands/MIRLR.pdf). The
court in such a case is ruling on the legality (or constitutionality) of procedures
surrounding the Nitijela (parliament/congress) of the Marshall Islands. In doing

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so the court is adding to, if also clarifying, the constitutional makeup of the
country.

Activity 2.2
Read the decision of the Court of Appeal of Solomon Islands in Bill Hilly v
Pitakaka and others. http://www.paclii.org/sb/cases/SBCA/1994/1.html
The court here is ruling on the powers of the Governor General who, as the
Queens representative is the symbolic head of the country. The ruling adds to the
constitutional basis of the role of the Governor-General.
The case involved a constitutional crisis and a question of whether the governor
general could take certain actions to resolve the crisis. What did the court decide
on the question of whether the governor general was obliged in this instance to
act only upon the advice of the prime minister?
The advantages of written constitutions is that most of the primary constitutional
provisions are more conveniently available to people. They are contained in one
document or law, which can be more directly followed by both officials of
government and the people who are governed. However, the disadvantage of a
written constitution is that it is contained in one law which is given special status,
it may be difficult to change to adjust to changing circumstances.
The advantage of an unwritten constitution is that it may be readily adjusted to
changing circumstances that develop. The disadvantages are that it may be able to
be changed so quickly as to provide no adequate guide or control for the actions
of people.
ii) Legislated /conventional
Another method of classifying parts of a constitution is by considering whether
they take the form of law or that of convention. It is to some extent a matter of
degree either way whether a constitution is predominantly legal or conventional.
Some mixture of both elements is the norm. This is because it would be
impossible for written words to cover every single circumstance. In a sense, the
written constitution becomes the skeleton around which the day to day practices
take place and continue to develop. For this reason classification on the basis of
legal vs. conventional is more useful for describing the different elements of a
countrys constitution (written sections and traditional conventional practices)
than for comparing systems
Most constitutions in the world today, including in the USP region, are expressed
as laws or supreme laws, and so are described as legal. These laws are more
precisely the legal effect of the provisions in the written Constitution, legislation,
subsidiary legislation and principles of common law. The reference to "legal
effect' means that the words have to be interpreted by a court.
However, some parts of constitution, particularly the British constitution, take the
form of established practices, or constitutional conventions, and are described as
conventional. In the British constitution, for example, notions of responsible and

LW308: Constitutional Law

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representative government the relationship between government and the monarch

are almost wholly matters of convention and tradition.
The advantages of a constitution being expressed in laws (at least those which are
in writing) is that the writing is available for people to read (although in truth few
read it or know about it). It is also expressed, supposedly, in black-and white.
However, we will see plenty of instances where it becomes clear that words
seldom mean just one thing and just as seldom do they have any clear and
straightforward meaning. We will deal with issues of constitutional interpretation
by courts later on.
The disadvantage of a constitution being expressed in laws is that these are
difficult to change. Because they are so difficult to change, they may be too
inflexible. The particular Constitution might have been written some time ago
and does not provide sufficient guidance or directive for the actions of the
governments of the country.
In Australia the federal constitution can only be changed by referendum. Only a
handful of referenda have been successful since 1901. The powers of the federal
government are defined by the Constitution but it is clear that they are in need of
revision. They are out of touch with the realities of modern political life. Even so,
this does little to convince the people that change is appropriate as they fear that
the government proposing the change is merely doing so to advance its own
interests.
On the converse, it is sometimes said that the disadvantage of it being in the form
of established convention, is that these are too easy to change or, perhaps, require
no procedures at all for people to change them. Thus they can be changed
whenever people wish to do so.
A problem can arise with conventions, when they are broken, there is no clear
line of legal recourse. In Australia in 1975 there was a constitutional crisis
because several long standing conventions were broken as a means to removing
an elected government. A Senator died and was replaced by a senator from a
different political party than the deceased senator, then the upper house blocked
the supply of money to the government and finally the Governor General sacked
the elected government. Each of these actions breached established conventions,
in particular the governor general went well beyond the conventional powers of
the British crown in sacking an elected government. Despite this, no legal
recourse was available to the sacked government because the matters were based
on convention, not on written laws in the constitution.

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Content

Content
Unitary/
federal

Monarchy
/ republic

Totalitarian/
democratic

Westminster
/other

Sometimes it is useful to classify constitutions according to their contents,

particularly what system of government they establish. We have seen some
examples of this already above and in the last Topic. The main kinds of different
systems are:
(i )

Unitary or Federal

A constitution which provides for the important powers of government to be

possessed or controlled by bodies located in one part of the country, is often
called a unitary or centralist constitution. This is because it provides for
governmental powers to be concentrated in one place or centre. The one set of
government institutions has final authority for the whole of the country, although
there might be several subordinate regional institutions as well. All countries in
the USP region (except FSM) are of this kind. Fiji and others have municipal and
provincial councils but these do not have independent authority. The central or
national government can override them as a matter of law. The key way of
identifying whether a country has a unitary system is to ask yourself: How many
parliaments are there? if there is only one parliament then it is unitary.
If the constitution provides for some substantial legislative power to be exercised
from other parts of the country, usually called provinces or states, and these are
largely independent from the governmental bodies at the centre of the country,
the constitution is called federal or federalist. The constitutions of Australia,
Canada, U.S.A. Switzerland and Malaysia and, closer to home, Federated States
of Micronesia, are of this kind. The key difference is that states in a federation
have some powers that they are legally entitled to exercise without interference
from the central government.

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Some national models

Federal system
Australia, US

Unitary system
UK, NZ

Confederate
system

One
national
government

E.U.
state

state

National
government
The states

state

state

A federal constitution creates two layers of government which coexist and are
equal in authority; i.e. they are coordinate rather than subordinate. Federalism
divides political authority. It caters for central national government whilst also
catering for regional self-government. The national constitution provides for a
division of powers between the two levels but there are different ways in which
this can be done. The national government might have defined powers with the
rest of the powers left to the States (as in Australia). Or the regional or provincial
governments might have defined powers with the rest going to the national
government (as in Canada).
The most extreme form of federal government occurs when the outlying parts of
the country (regions, provinces or states) possess all, or virtually all, important
powers of government with regard to their internal affairs, so that it is only with
regard to external affairs that the central governments possesses substantial
powers. However even in those cases (Australia began with this kind of model in
1901) the balance of power can shift dramatically over time to the central
national government.
A federal government is to be distinguished from a confederacy or confederation.
In the case of the latter there is no new national entity created at all. There is an
aggregation of member states who agree on various common policy areas. The
constitution of parts of Fiji in the nineteenth century has been described
as confederation and the New Hebrides in 1980 was also a constitution of this
kind. Nowadays however there are no constitutions in the USP region which are
confederate in character. The European Union is probably the best example of a
confederacy because despite the existence of a European parliament, each
member nation maintains its own national sovereignty.
The advantage of a unitary constitution is that it provides for a single system for
making and administering government policy throughout the country, avoiding
duplication of personnel, time and expense, and excessive influence by purely
local interests. However in practice, as for example in the United Kingdom and
France the forces of regionalism are very strong with constant demands for
regional self government and decentralisation. The disadvantages of such a
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constitution is that such policy making and administration may result in

inadequate attention by governmental to local needs and aspirations.
The advantage of a federal constitution is that it may allow for policy making and
administration that takes full account of local needs and wishes. It provides the
benefits of both unity and diversity within the political system at the same time.
The disadvantages of such a constitution are that it may allow for policy making
and administration to be so subject to local interests. It is difficult to obtain
cohesion, consistency and efficiency on those matters, even where that is
desirable from the point of view of the country as a whole. It is expensive and
confuses lines of authority. It duplicates citizenship and multiplies bureaucracies,
legal systems, courts and legislatures amongst other things.
One advantage of a federal system is that by sharing power among several
entities it is more difficult for a totalitarian form of government to emerge.

ii) Monarchical/Republica n
This distinction relates to the way that the head of state is selected: whether he or
she is a hereditary monarch, or an elected president. Historically a monarchy was
a system in which the monarch held significant power (sometimes even absolute
power). In modern times many monarchies have become more democratic
passing legislative power to a parliament but still maintaining a formal hereditary
monarch as head of state. Republican systems are those which have no hereditary
positions.
The Constitution of Tonga provides for King and his heirs to be the Head of
State. Go to the Constitution of Tonga.
http://www.paclii.org/to/legis/consol_act/cot238/
Read clause 38 regarding the relationship between the King and the Parliament of
Tonga. This is an unlimited or absolute monarchy in effect because the king
retains significant control over legislative (law making) activity. So the
Constitution of these countries can be described as monarchical in character.
The constitution of Cook Islands, Niue, Solomon Islands, Tuvalu, as well as
Papua New Guinea, Australia and New Zealand provides for the Queen to be the
formal Head of State. The English monarch has a Governor or Governor-General
to act as the monarchs representative in the country. These are more in the nature
of constitutional monarchies because the constitution imposes strict limits on the
power of the Head of State. Go to the Constitution of Solomon Islands
http://www.paclii.org/sb/legis/consol_act/c1978167/ and read sections 1 and 27.
These sections appear to confer absolute power but then read section 31 which
places limitations on the Governor-generals right of action. This is a standard
provision of responsible government systems on the United Kingdom
Westminster model.
The Constitution Kiribati, Marshall Islands, Nauru and Vanuatu and more
recently Samoa provide that the Head of State shall be a president elected by the
legislature (Kiribati, Nauru), or by an electoral college (Vanuatu) or by
Parliament (Fiji).
.
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Activity 2.3
Go to the Constitution of Vanuatu
http://www.paclii.org/vu/legis/consol_act/cotrov406/ and find the sections of that
constitution that detail how the head of state is to be selected.
How is the head of state selected in Vanuatu?
Is this typical of a monarchical or of a republican system? Explain your answer.
It is important to notice that the name given to the Head of State does not indicate
clearly their powers. The Queen as monarch has very few powers, whilst the
King of Tonga used to have a very wide powers of government, but was limited
after the amendment to the Constitution in 2010. The President of Fiji and
especially the President of Vanuatu have very limited powers, whereas the
Presidents of Marshall Islands, Nauru have much wider powers of government.
So the name of the office of the Head of State is neither an accurate description of
the power of the holder of the office nor does it tell us much, independently of the
particular constitution, of the range of powers of the office bearer.
The advantage of a monarchical constitution is that the head of state holds office
for life and can give some stability and continuity to the political system. It is not
necessary for difficult decisions to have to be made at frequent intervals as to
who should be the head of state. Moreover, the head of state may acquire a
personal adherence or loyalty which may help to unify and stabilise the country.
The disadvantage of a monarchical constitution is that if the monarch is not wellsuited, well-trained, competent or honest enough to perform the office, he or she
may cause considerable instability or disaffection. Also, if the monarch dies
having no children or only young children there might be great difficulties in
choosing a successor who is acceptable.
The advantage in relation to a republican constitution is that it sets up a system
for electing the head of state. It can also define who potentially can hold office. It
might not be open to all citizens or all classes of citizens. The disadvantage of a
presidential system is that the elections may not be very representative of
community feeling, and the voting may become very highly politicized.
There is a very significant underlying ideological difference between a republican
system and a monarchy. Republicanism asserts that all political power ultimately
is derived from the people, whereas, however monarchical systems however
democratic they may have become continue to assert that some person has a right
to office by virtue of birth. This has some repercussions; the members of a
republican country are equal citizens in the fullest sense, whereas the members of
a monarchical society are known as subjects, which implies subservience to the
monarch.
(iii)

Totalitarian/democratic

A totalitarian constitution is one which provides for the government of the

country to be totally controlled by one person or group of persons, allowing no

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opposition or rivals. Many would regard the term totalitarian constitution as a self
contradiction or oxymoron.
The term totalitarian derives from Hannah Arndts work referring to political
systems which emerged in the Soviet Union, Germany and Italy between the two
World Wars. They were totalitarian in many senses. They allowed no opposition
to the ruling Fascist, Nazi or communist parties. A dictatorship is perhaps the
same thing but conventionally this refers to the rule of just one person rather than
a party organization. There might be little difference in fact. Fascists generally
run totalitarian regimes that favour business interests and may also be very racist,
communist regimes are also usually totalitarian but tend to resist the power of
local and international business interests.
Under a totalitarian system the ruling party can interfere with and control the
most basic private aspects of a person's life. There was no area that we might call
freedom of the individual. There was nothing whatsoever, such as law or the
courts which mediated and protected individuals from interference by the public
realm. There was in effect no rule of law.
The advantage of a totalitarian system is that it allows for all of the energies of
the government to be directed at carrying out its mission for the country. The
government is not distracted by having to play the democratic game. It is not a
system where government is dependent on popular support. Most of these
governments claim to be highly efficient and committed to some form of social
engineering to improve the country for the benefit of everyone in the long run by
creating extreme burdens and disadvantages in the short run. They are often
committed to some extreme and perverted kind of nationalism and are frequently
militaristic. Courts, lawyers and laws might exist but they are usually there
merely to carry out the wishes of the ruling party or elite.
There isn't any law which protects the basic rights and freedoms of individuals or
groups. The disadvantage of a totalitarian system is that the policies of the
government may not be for the good of the country as a whole. In fact they are
usually for the benefit for the elite themselves. These regimes are usually
militaristic and committed to warfare. Human dignity counts for nothing and
whilst they often come to power proclaiming great economic and social reform
and improvement they are usually total failures.
We have already said a little about democracy. Its classical sense is perhaps of a
system in which the people have a very high level of participation in their own
self government. We might well agree with Abraham Lincoln's idea to the effect
that democracy is government of the people, by the people and for the people.
But this is very difficult to translate into a system which works acceptably in
practice.
We now tend to talk of democracy in terms of what should be described as liberal
democracy. It is closely tied to the ideal of constitutionalism that we have already
examined. A democratic system is one which allows for alternatives to
governments to be established and to seek popular support pursuant to a system
of free and open elections and a party system. Democracy seems to indicate as
well a need for the imposition of limitations on the powers of those who govern
such that a person in power is prevented from gaining absolute control.
The doctrine of separation of powers is something that we can look at later on in
the course. It seems to require that the rule of law is firmly established such that
LW308: Constitutional Law

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everyone is accorded the same legal and political rights. It also seems to require
that the system is in some sense just and fair such that some individuals do not
have greater opportunities than others or are conferred special privileges as far as
possible. Finally, one would expect that the system provides certain protections to
individual citizens against arbitrary interference by the state or those who govern.
The advantages of a democratic system are usually taken as follows. It can
provide for alternative policies to be developed, some of which may be better
than these adopted by the government, and the government may be pressured to
adopt these, or if not, it can be removed from powers, and replaced by a
government that does adopt better policies. This helps promote stability because
it provides a mechanism whereby peoples dissatisfaction with government can
be addressed.
It provides at least some sense in which people have a say in their own
government even if that is a matter of voting in infrequent elections. Individual
rights and freedoms are protected and the law creates some sense of equality.
The disadvantages of democratic systems are that they do not achieve substantive
social justice. Western capitalist systems thrive on individual liberty but do little
for community life. Whatever the rhetoric of equality and opportunity they are in
practice usually systems of elite control. A significant problem emerging for
modern democracies is the growing power of multi national corporations. Many
smaller nations simply do not have the economic power to resist the will of large
corporations, which are able to play small governments off against one another in
return for capital investment. Often the people of the country will not like the
outcomes but the governments will feel powerless. Corporations also have
achieved significant control of media outlets in developed countries which also
perverts the democratic process by denying people ready access to unbiased
reporting.
Maintaining democracy requires more than just a democratic constitution, it
requires widespread respect for democratic values throughout the community,
leaders, government, business, the media, police and the military. Many countries
end up as democracies in name only because powerful groups such as the military
impose effective control.
Democratic values are under pressure around the world at the moment because of
the fear of terrorism. Many governments use this fear as an excuse to curtail
individual political rights, and expand the use of secret police forces, political
crimes and surveillance.
Democracies can become totalitarian, either gradually the way Hitler obtained
control of Germany in the 1930's, suddenly through coups and foreign
interference as happened in Chile in 1973, or simply drift that way because the
media and governments control the flow of information to the population and use
fear to make them accept undemocratic practices.(The war on terror)

(iv)

Westminster constitution/non - Westminster

constitution

The United Kingdom model of responsible government is normally called the

Westminster model. Naturally enough many former colonies of the United

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Kingdom have adopted this model. Especially after World War II, Britain became
determined to concede greater independence to as many of its oversees
dependencies as possible. Usually it promulgated for them written constitutions
which had contained common features : protection of fundamental rights and
freedoms for individuals against governments; constitutional limitations are
placed on the Head of State parliamentary sovereignty, separation of executive,
legislative and judicial powers of government; a system of representative
government where politicians are elected in open elections, a cabinet style of
government where the majority party after an election appoints Ministers of the
Crown (or Republic)who are responsible individually and collectively for the
workings of government departments, and a parliamentary executive i.e. an
executive which is responsible to, and dependent for support on, an elected
legislative.
Thus constitutions which have these common features or some variant of them
are said to have the Westminster model of government. Generally the features
involved here were features which were in fact part of the British system of
government in the late nineteenth century.
All of the constitutions enacted for countries of the South Pacific after World
War II follow the Westminster model. The Constitution of Tonga enacted in 1875
is not of this kind in that it does not contain a very full protection of fundamental
rights and freedoms, nor does it contain a parliamentary executive; the Prime
Minister and minister of Tonga are appointed and dismissed by the King not by
the Legislative Assembly. However, the amendment to Tongas Constitution in
2010 provides for the king to appoint the Cabinet Ministers on the advice of the
prime minister, who may nominate to ministerial posts, not more than four
persons who are not elected representatives (clause 51(2)). The prime minister
and elected representatives of cabinet remain as representatives of their
electorates.

Validity

Validity
Termination

Overthrow
Justiciable/
nonjusticiable

Entry into
force
Nominal/
normative

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Constitutions may be classified according to whether they re recognised by the

courts as valid and binding, or whether they are regarded by the courts as invalid
and not binding.
The validity of a constitution depends upon two factors; first, whether it has been
made in a way that is recognised as valid, and secondly, if it has not been made
legally, it has been made as result of a forceful overthrow of existing
governmental institutions which the courts have subsequently recognised as
effective.
i) Overthrow
Normally, of course, a constitution is made by lawful means, for example by
popular consent after a series of pre-constitutional meetings or conventions and is
accepted as valid, as is the case with most of the constitutions in the South
Pacific.
Occasionally, however, attempts are made to make constitutions by means which
are unlawful: either the people who make the constitution do not have authority
to make a constitution, or they do not follow the legal procedures prescribed for
making a constitution. Alternatively, as with the Fiji military in May 2000 and
2006 there might have been some invalid abrogation of an existing constitution,
but a belief that whatever the legality of the abrogation, the new regime has been
legitimated by popular acceptance or as a matter of necessity. This argument
appears on behalf of the Republic of Fiji Islands in Prasads case but was rejected
by the Court. See Republic of Fiji Islands v Prasad. This was again tested in the
High Court and Court of Appeal of Fiji the Qarase v Bainimarama [2009] FJCA
9 case. You can read this case to see how these courts look at the issues relating to
the 2006 coup.

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Reading 2.3
Peruse the case of Republic of Fiji v Prasad 2001
http://www.paclii.org/cgipaclii/disp.pl/fj/cases/FJCA/2001/2.html?query=title+%28+%22republic
+of+fiji+v+prasad%22+%29
Do you think the courts will reach a similar conclusion in relation to the most
recent coup?
In some cases common law courts have been prepared to accept that such a
constitution is valid and binding if the parties making the constitution have
forcefully overthrown the existing government and legal institutions established
by it, and are in fully effective control of the country. In Mitchell & Others v.
Director of Public Prosecutions & Another [1986] LRC (Const.) 35, approved in
Prasads case in the first instance, Court of Appeal said:
A revolutionary regime should not be accorded legitimacy by this Court unless it
is satisfied that, on the whole, the regime had the people behind it and with it.
Legality should be achieved only if and when the people accept and approve for
in them lies political sovereignty and the Court so finds. This approval they may
give ab initio or subsequently. Length of time might or might not be sufficient to
infer it. It might be expressed or tacit approval.
Once a constitution is held to be invalid it has really no advantage. As soon as
people know that a constitution will not be enforced by the courts, they will not
comply with it, nor expect others to do so, and it thereafter serves no useful
purpose It can in effect be disregarded and ignored.
Arguments about the validity of a constitution may also take place where there is
a dispute at international law about which country or group of people has
sovereignty over a particular area. This sort of dispute has arisen in relation to
Indonesia's occupation of East Timor and West Papua.
Even although a constitution may be valid, parts of it may not be enforceable,
either in law or in fact. Accordingly, constitutions may be classified according to
whether aspects of them are enforceable in law or in practice, or not.
(i i ) N o t e n forcea bl e in la w/ non jus tice a ble/ e nforc ea ble
in law, justiceable
Usually all the legal provisions of a constitution are enforceable in law by the
courts, or, as it is technically termed, they are justiciable. This follows from the
idea that a constitution is the supreme law of the country, as we mentioned above.
Occasionally, however, parts of a constitution may be stated, expressly or
impliedly, to be not enforceable by the courts, or, as it is more technically termed,
non-justiciable.
This is in fact rather common in areas where the framers of the constitution wish
to create expectations but do not want to create provisions which citizens or
governments can enforce for politically sensitive reasons. Constitutions which
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contain expressions of civic duties on the part of citizens normally state that these
provisions are not justiciable. Section 78(3) of the 1990 Constitution of Fiji,
section 88(3) of the 1970 Constitution of Fiji section 6 of the 1997 Constitution
of Fiji, section 31(3) of the Constitution of Solomon Islands, section 39(3) of the
1978 Constitution of Tuvalu, and section 52(2) of the 1986 Constitution of
Tuvalu, are all expressly stated to be not enforceable in a court. Likewise Article
7 of the Constitution of Vanuatu is expressly stated by Article 8 to be nonjusticiable. Section 57 of the 1970 Constitution of Fiji was held by the Court of
Appeal of Fiji in Madhava v Favley (Readings 1/7) to be non-justiciable, at least
so far as it related solely to the internal proceedings of the legislature, and the
same view may be taken by the courts of other countries to similar provisions
unwritten constitutions which relate solely to the internal proceedings of a
legislature.
The advantage of a justiciable constitution is that it can be applied and enforced
by the courts so that people will have an incentive to act in accordance with it.
The disadvantage of a justiciable constitution is that enforcement by the courts
may increase the risks of conflict between the people involved or between the
courts and some of the people involved.
The advantage of a non-justiciable constitution is that it provides a guide which
may influence what people are to do willingly, where they would be unwilling to
do if ordered by a court. Thus it avoids the courts coming into conflict with
people who might be able to destroy them or render their work very difficult. The
disadvantage of a non-justiciable constitution is that it may be ignored by people.
(iii) Enforceable in practice ( normative) not enforceable
in practice (nominal)
Most parts of a constitution are in fact respected and obeyed by the people, and
carried out in practice. Technically, the Constitution is then described as
normative: it is the norm or standard of practice; i.e. what is actually done on a
day to day basis. Most parts of constitutions in countries of the USP region are
normative.
Sometimes one finds however that parts or all of a constitution are not in fact
respected or obeyed by people. Such parts of a constitution are then described as
nominal- they exist only in name (from the Latin nomen for name) not in fact or
reality.
The advantage of a normative constitution is that people in fact act in accordance
with it, and can expect that other people will act in accordance with it also. The
advantage of a nominal constitution is that it may serve as a guide or directive for
the people of the country to change from their current pattern of conduct to a
pattern of conduct that is more in the long term interest of the country. The
disadvantage of a nominal constitution is that it may indicate a pattern of conduct
that is inappropriate to the current circumstances of the country, or that is just
ignored by the people or their government.
The obvious question which emerges currently is whether the 1997 Constitution
of Fiji is a normative constitution that is being obeyed and respected or whether it
has become nominal since the most recent coup.

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Activity 2.4
Read the terms of the State of emergency declaration of 2006 (reading 2.4)
1. Does this declaration suggest that the constitution is being treated as a
normative document or merely as nominal?
2. What do events since that time suggest about whether the 1997
constitution continues to have normative force in Fiji?

(iv )

Entry into force

A valid constitution may have been enacted, but it may not be currently in force.
This might be because it has not entered into force as yet, or because it has been
terminated. Accordingly, constitutions may be classified according to whether
they are currently in operation or as not in operation i.e. inappropriate.
Sometimes constitutions are enacted but do not enter into force until some time
afterwards. Constitutions may therefore be classified according to whether they
are in force or operative, or not in force or non-operative.
One reason for delaying the entry into force of a constitution could be that some
additional appeal or consultation is required to be undertaken or completed before
it comes into force. Thus if a written Constitution is to be submitted to a
referendum of electors of the country or to the likes of a council of chiefs for
ratification or endorsement after it has been enacted, it will not come into force
until such time these necessary steps have been taken. Thus the written
Constitution of (Western) Samoa was enacted by the Constitutional Convention
in 1960, but did not come into force until 1 January 1962 because it had to be
submitted to the electorate for approval, which was done in May 1961.
Another reason for delaying the entry into force of a constitution could be that
some preparatory work needs to be undertaken by government administrations to
prepare for changes that will be produced by the constitution. Again note that the
Constitution of Samoa, although endorsed by the electorate in May 1961, did not
come into force until over 6 months later to enable the necessary administrative
changes to be made to amend the UN trusteeship administered by New Zealand
into an independent state. Again the Constitution of Vanuatu although was
enacted in October 1979 was not brought into force until 30 July 1980 to enable
the necessary administrate changes to be made to cement the British-French
condominium into an independent State.
(v )

Termination of constitution, repeal,

revocation/abolition, abrogation

A valid constitution which is in force may cease to operate if it is terminated.

Termination of a constitution may be brought about lawfully or unlawfully.
If a constitution or parts of a constitution are terminated lawfully, i.e. by the
persons authorised by law to do so and in accordance with the procedures
prescribed by law, the constitution is usually described as having been repealed or

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revoked. Thus the 1978 Constitution of Tuvalu was repealed by section 6 of the
Constitution of Tuvalu Ordinance 1986.
On the other hand, if the constitution is brought to an end unlawfully - i.e. by
person not authorised to terminate it, and/or not in accordance with the
procedures prescribed by law for terminating the constitution - then the
constitution or the part that has been terminated is usually described as having
been abolished or abrogated or removed. Thus the Fiji Constitution 1970 was
with effect from 25th day of September 1987, wholly removed.

Adaptability of a Constitution
Adaptability of
Constitution
Special procedures =
entrenched constitution
Referendum

Special
majority

Other
procedural
requirements

No special
procedures
for change
= not
entrenched

It is sometimes convenient to classify a constitution according to the ease with

which it may be changed or its adaptability.
Parts of a constitution that may be changed easily, (e.g. that require no special
procedures beyond those required for an ordinary law), are usually described as
flexible. The legislation and principles of common law that form part of the
constitution are in most countries flexible; that is to say, they can be changed like
any other legislation and principles of common law. In the 1990 unwritten
Constitution of Fiji some parts were in fact flexible.
Parts of a constitution that require a special procedure in order to be changed are
sometimes described as 'entrenched' rigid or as non-flexible. Some parts of
constitutions in the USP region are entrenched or rigid in that a special majority
in the legislature is required to amend them. The Constitution of Niue (s35) and
those of Samoa and Vanuatu also require that certain constitutional amendments,
after being approved by the legislative, must be submitted to the elective for
endorsement. Some constitutions require that there cannot be an amendment of
certain sections of the Constitution unless a report has been presented to the
legislative relating to the amendment which it can consider; i.e. articles 32 and 33
Constitution of Niue, section 77 (6) 1990 Constitution of Fiji.
The advantage of a flexible constitution is that it can be changed easily so as to
adapt to changing circumstances in the country, and to ensure that hostility
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towards the parts of the constitution does not reach a point where people will
react violently and social disorder will breakout.
The disadvantage of a flexible constitution, and the advantage of a rigid
constitution, is that if that constitution, or parts of it, can be changed too easily,
by a simple majority, the rights and interests of minorities may be removed or
seriously prejudiced by the majority, or decisions may be made by the majority
without adequate information or assessment.

Relationship to other laws

Relationship to other laws

Supreme:

Subordinate:

Constitution
can override
inconsistent
laws

Later laws can

implicitly
override

constitution

i) Supreme (paramount) or subordinate

Constitutions may be classified according to the relationship they bear to other
laws in the country.
If parts of a Constitution have greater legal force than all other parts, so that if
they are in conflict they can convert them, and reorder them ineffective as void,
then these parts of the Constitution are described as being supreme or paramount.
If however, parts of a constitution do not have any greater force than other laws,
so that if they are in conflict with these other laws, they do not override them and
render them void, but will be overridden by them, then those parts of the
constitution are described as subordinate.
Where there is a written Constitution, as in all countries of the USP region,
except Tokelau, the provision of the written Constitution are usually stated to be
supreme, so that if there is any conflict between them and other laws, they
override the other laws.
Although it is usual for the provisions of unwritten Constitution to be supreme, it
is not essential. The terms of the New Zealand Constitution Act 1852, for
example, are not supreme, and have been amended and repealed as a number of
occasions.
Legislation, subsidiary legislation and principles of common law which form part
of the constitutions of countries in the USP region in then wider sense are not
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2.23

usually stated to be supreme, and so may be amended in repealed in the ordinary

way i.e. subsequent legislation and subsidiary legislation will repeal earlier
legislation and subsidiary legislation which is inconsistent with it, and will set
aside principles of common law that are inconsistent with it, provided the
meaning is plain.
The advantage of parts of a constitution that are supreme is that they cannot be
altered by other laws and will override other laws to the country and as they
cannot be altered easily. The disadvantage of parts of a constitution that are
supreme is that they may represent, or may come to represent, values or interest
that should not be isolated against change, and so may entrench within the legal
system values or interests that cease to have general support in the community.

Conclusion
In this topic we have considered the main fractions that have been used as a basis
for classifying constitutions or the components of constitutions. The purpose of
this is to make it easier for comparison and assessments to be made of the various
constitutions. These features are:
form of constitution;
contents of constitution;
validity of constitution;
adaptability of constitution; and
relationship with other laws.

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Key Terms and Phrases

Written constitutions

Are those in which most (but not all) of the important rules
about governance have been codified into a single written
law called the constitution.

Unwritten
constitutions

Are those in which there is not a single principal legislative

source of rules about governance but these are contained in
various written documents and unwritten practices and
conventions.

Conventions

Although constitutional conventions is a term that can also

refer to specific bodies established to write new
constitutions, in this topic it refers to established practices
that although they may not be written have become an
established part of constitutional practice in a country.

Unitary constitution

A constitution which provides for the important powers of

government to be possessed or controlled by bodies located
in one part of the country is often called a unitary or
centralist constitution.

Federal constitution

If the constitution provides for some substantial legislative

power to be exercised from several different parts of the
country, usually called provinces or states, and these are
largely independent from the governmental bodies at the
centre of the country, the constitution is called federal or
federalist.

Monarchical system

a constitutional system in which the position if head of

state is occupied by an hereditary monarch (king or queen).

Republican system

Systems in which there is no hereditary monarch and the

head of state is a president usually chosen directly or
indirectly by the people.

Totalitarian system

A totalitarian constitution is one which provides for the

government of the country to be totally controlled by one
person or group of persons, allowing no opposition or
rivals.

Democracy

A democratic system is usually one which allows for

alternatives to governments to be established and to seek
popular support pursuant to a system of free and open
elections.

Westminster systems

Constitutional systems based upon the English model in

which there is a separation between the head of stat
(monarch or president) and the head of government (prime
minister).

Presidential systems

Systems that combine the role of head of state (president)

with the role of head of government.

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Justiciable provisions

Provisions of a constitution are enforceable in law by the

courts.

Non-justiciable
provisions

Parts of a constitution may be stated, expressly or

impliedly, to be not enforceable by the courts.

Supreme or
paramount force:

If provisions of a Constitution have greater legal force than

all other laws, then these parts of the Constitution are
described as being supreme or paramount.