Con s t i t u t i on ali s m: A Pe r sp e c t i v e of Con s t i t u t i on al La w

By Yam Kumar Yonjan

(Ph.D. Scholar on Constitutional law)

Abstract

In constitutional jurisprudence, constitutionalism is assumed as a backbone of democratic

government and welfare state. It is a philosophy or principle of constitution which any
government in the world is essentially required to be abided by provisions envisioned in the
constitution and constitutional law. Constitutionalism is a doctrine which is concerned to limited
government and set out the relationship between the citizen and the government, that a
government ’ s authority is determined by a body of laws or constitution. The doctrine of
constitutionalism governs the socio-political and economic relationship within a given nation
with the distribution of state power through the constitution. The concept of Constitutionalism is
defined as the doctrine that governs the legitimacy of government action and it implies
something far more important than the idea of legality that requires official conduct to be in
accordance with pre-fixed legal rules.. Constitutionalism is the core value of good governance
and democracy in the world today and it provides the necessary checks and balances to use of
excessive state power for different organs of government. Although, constitutionalism is
sometimes, regarded as a synonym for limited government that is only one interpretation and by
no means the most prominent one historically. As a narrower sense, constitutionalism refers to
efforts to prevent arbitrarygovernment. However, a notion of the constitutionalism forms a good
practice of democracy at large and constitutional government which is important for achieving
development to all. In this article, the researcherhas tried to describe briefly to the general idea
and principles of constitutionalism as compared to the global practice. Similarly, the writer has
analyzed to the philosophical notion and basic characteristics of constitutionalism which has
been presently perceived by the most of the countries of the world as a central idea to ensure rule
of law and good governance.

Keywords: Constitutionalism, Limited Government, Democracy, Separation of power and Rule

of law

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1. Introduction

Constitution is the fundamental law of the land. It is called as a supreme law, highest law, legal
document and political document. Right and responsibility are given to people in the constitution.
It is the blueprint, guideline, road map or directive for governance system. Constitution is made
on the basis of social contract theory. It is the reflection of general will of the people. The
democratic constitution is made to end arbitrary rule and for limited government. On the other
hand, it is the proof of political agreement concluded between the rulers and the ruled.1 A

constitution is a charter of government deriving its whole authority from the

governed" (Black's Law Dictionary). The constitution sets out the form of the

government. It specifies the purpose of the government, the power of each

department of the government, the state-society relationship, the relationship

between various governmental institutions, and the limits of the government.2 The

Oxford Advanced Learner's Dictionary defines a constitution as a system of laws and

principles according to which state is governed.3 Constitution is the mechanism

under which the laws are to be made and not merely an act which declares what

the law is to be. A constitution must not be construed in any narrow or pedantic

sense, and that construction most beneficial to the widest possible amplitude of its

power, must be adopted.4 A constitution is a charter of government deriving its whole

authority from the governed. In order to have a proper understanding of the term
constitutionalism, we must first understand the meaning of terms like constitution and

1
The Constitution of Nepal: On the Touchstone of Constitutionalism and Good Governance, Journal of Political Science,
Volume XVII, The Constitution of Nepal - Nepal Journals Online, available athttps://www.nepjol.info.com. (Accessed on
March 21, 2022).

2
Inam, Syed Tazkir, Constitutionalism: Changing Paradigm (September 23, 2010). Available at
SSRN: https://ssrn.com/abstract=1681530 or http://dx.doi.org/10.2139/ssrn.1681530. (Accessed on March 22, 2022).

3 Oxford Advanced Learner's Dictionary. (1989). 4th edi. p. 251.

4 India Cement Limited vs. State of T. N., 1 SCC 12: AIR 1990 SC 85.

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constitutional law. A constitution may be said to be a collection of principles according to which
the powers of the government, the rights of the governed and the relations between the two are
adjusted and envisioned. In other words, it may be described as a frame of political society
organized through and by law, in which law has established permanent institutions with
recognized functions and definite rights. According to K. C. Wheare, in Modern

Constitutions (1966), the word 'constitution' is commonly used in at least two senses in any

ordinary discussion of political affairs. First of all it is used to describe the whole system of

government of a country, the collection of rules which establish and regulate or govern the

government. In almost every country in the world except Britain however, the word

'constitution' is used to describe not the whole collection of rules, legal and non-legal, but

rather a selection of them which has usually been embodied in one document or in a few

closely related documents.5 According to According to Scwartz, the word Constitution means a

written organic instrument, under which governmental powers are both conferred and
circumscribed.6 The constitution sets out the form of the government. It specifies the purpose of
the government, the power of each department of the government, the state-society relationship,
the relationship between various governmental institutions and the limits of the government.7
The Constitution is a living document. Constitutional provisions have to be construed having
regard to the march of time and the development of law. It is, therefore, necessary that while
construing the doctrine of basic structure due regard be had to various decisions which led to
expansion and development of the law. 8 The vast majority of contemporary constitutions

describe the basic principles of the state, the structures and processes of

5
Retrieved from http://www.bitsoflaw.org/public/constitutions/study-note/degree/classification-introduction.(Accessed on
March 23, 2022).

6
Retrieved from https://www.legalserviceindia.com,Constitution And Constitutionalism. A Study Perspective In India.
(Accessed on March 23, 2022).

7
Inam, Syed Tazkir, Constitutionalism: Changing Paradigm (September 23, 2010). Available at
SSRN: https://ssrn.com/abstract=1681530 or http://dx.doi.org/10.2139/ssrn.1681530.(Accessed on March 23, 2022).

8 I. R. Coelho (Dead) By LRs. vs. State of Tamil Nadu and Ors. SC 319 AIR (1999).

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 government and the fundamental rights of citizens in a higher law that cannot be

unilaterally changed by an ordinary legislative act. This higher law is usually referred

to as a constitution.9 So often, written constitution comprises also a body of

traditional or customary practices that may or may not be considered to be part of

the entire constitution. Virtually, a legal binding document called the constitution is

generally accepted or not accepted by every government but many governments

claim to be governed by the provisions of the constitution in a consistently

constitutional manner. However, though most governments claim to govern by the

statutes very few governments or states especially in developing countries are good

at adhering to the provisions of their own constitutions.10

1.1 Meaning of Constitutional Law

Constitutional law is the law relating to constitution and constitutionalism. Constitutional law is
the the body of law those legal principles which determine the constitution of the state that is to
say, the essential and fundamental portion of the state organization. 11 The expert of constitutional
law, A. V. Dicey defines constitutional law as the term is used to include all rules which directly or
indirectly affect the distribution or exercise of power of the sovereign power in the state.12

9 Retrieved from https://constitutionnet.org/sites/default/files/what_is_a_constitution_0.pdf, What Is

a Constitution? Principles and Concepts (2014) The International Institute for Democracy and
Electoral Assistance (International IDEA) an intergovernmental organization with a mission to
support sustainable democracy worldwide. (Accessed on March 24, 2022).
10
Constitutionalism is descriptive of a complicated concept, deeply embedded in historical experience, which subjects the
officials who exercise governmental powers to the limitations of a higher law. Constitutionalism proclaims the desirability of
the rule of law as opposed to rule by the arbitrary judgment or mere fiat of public officials…. Throughout the literature
dealing with modern public law and the foundations of statecraft the central element of the concept of constitutionalism is
that in political society government officials are not free to do anything they please in any manner they choose; they are
bound to observe both the limitations on power and the procedures which are set out in the supreme, constitutional law of
the community. It may therefore be said that the cornerstone of constitutionalism is the concept of limited government
under a higher law (Blaustein et al 1986; Blaustein et al 1971). Available at https://chicagounbound.uchicago.edu ›
viewconten. (Accessed on March 24, 2022).

11 K. C. Wheare. (1976), Modern Constitutions, London: Oxford University Press, Second Reprinted Edition, p. 2.
12 Retrieved from https://oll.libertyfund.org › Dicey: His Life & Law of the Constitution.(Accessed on March 24, 2022).

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Constitutional law is a body of law which defines the role, powers, and structure of

different entities within a state, namely, the executive, the parliament or legislature,

and the judiciary; as well as the basic rights of citizens and, in federal countries such

as the United States and Canada, the relationship between the central government

and state, provincial, or territorial governments.13 Constitutional law is the body of

rules, doctrines, and practices that govern the operation of political communities. In

modern times the most important political community has been the state.

Modern constitutional law is the offspring of nationalism as well as of the idea that

the state must protect certain fundamental rights of the individual.14 Constitutional

law deals with the fundamental principles by which the government exercises its

authority or power. In some instances, these principles grant specific powers to the

government, such as the power to imposition of tax to the citizens and spend it for

the welfare of the state and population. Most nations, such as the United

States, India, and Singapore, constitutional law is based on the text of a document

ratified at the time the nation came into being. Other constitutions, notably that of

the United Kingdom 15 rely heavily on uncodified rules, as several legislative statutes

and constitutional conventions, their status within constitutional law varies, and the

terms of conventions are in some cases strongly contested. 16

13
Retrieved from https://en.wikipedia.org/wiki/Constitutional_law. (Accessed on April 20, 2022).

14
Retrieved from https://www.britannica.com/topic/constitutional-law. (Accessed on April 20, 2022).

15
Blick, Andrew; Blackburn, Robert (2012), Mapping the Path to Codifying - or not Codifying - the UK's Constitution , Series
paper 2. Centre for Political and Constitutional Studies, King’s College London, Parliament UK, (Accessed on April 20, 2022).

16 Markwell, Donald (2016). Constitutional Conventions and the Headship of State: Australian Experience. Connor Court.
Publishing Pty Ltd ISBN 9781925501155. Available at https://law.unimelb.edu.au. (Accessed on April 20, 2022).

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1.2 The Concept of Constitutionalism

Constitutionalism can be defined as the doctrine that governs the legitimacy of government
action, and it implies something far more important than the idea of legality that requires official
conduct to be in accordance with pre-fixed legal rules.17 Constitutionalism is a doctrine that a
government’s authority is determined by a body of laws or constitution. Although
constitutionalism is sometimes regarded as a synonym for limited government, that is only one
interpretation and by no means the most prominent one historically. More generally
constitutionalism refers to efforts to prevent arbitrary government.18 Constitutionalism is the idea,
often associated with the political theories of John Locke and the founders of the American
republic, that government can and should be legally limited in its powers, and that its authority
or legitimacy depends on its observing these limitations. This idea brings with it a host of vexing
questions of interest not only to legal scholars, but to anyone keen to explore the legal and
philosophical foundations of the state.19 Constitutionalism is the constraining of government in
order to better effectuate the fundamental principles of the political regime. It can be argued that,
in a sense (often associated with Aristotle), every country has a constitution. That is, every
country has a governmental framework which can be described and categorized. Alternatively,
constitutions might be identified specifically with a written document that formalizes the
framework of government. Constitutionalism has often been associated specifically with
liberalism, with the protection of individual rights against the state.20 Constitutionalism is a
modern concept that desires a political order governed by laws and regulations. It stands for the
supremacy of law and not of the individuals; it imbibes the principles of nationalism, democracy
and limited government. It may be identified with the system of divided power21. As Friedrich
says, constitutionalism by dividing power provides a system of effective restraints upon
governmental action. In studying it, one has to explore the methods and techniques by which
17
Hilaire Barnett (1995). Constitutional and Administrative Law (London: Cavendish Publishing Limited, 3rd edi., p. 5
18 https://www.britannica.com/topic/constitutionalism/Legal-constitutionalism-from-the-separation-of-powers-to-rights-and-ju
dicial-review (Accessed on March 25, 2022).
19 Retrieved from https://plato.stanford.edu/entries/constitutionalism/. (Accessed on March 25, 2022).

20 Keith E. Whittington, The Oxford Handbook of Law and Politics, Edited by Gregory A. Caldeira, R. Daniel Kelemen, and Keith

E. Whittington Print Publication Date: Aug 2008 Subject: Political Science, Law and Politics Online Publication Date: Sep
2009. P. 281. DOI:10.1093/oxfordhb/9780199208425.003.001. (Accessed on March 25, 2022).
21
Carl J. Friedrich. (1950) Constitutional Government and Democracy: Theory and practice in Europe and America. Ginn and
Company,. p.25. Available at https://books.google.com.np. (Accessed on March 26, 2022).

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such restraints are established and maintained. It is a body of rules ensuring fair play, thus
rendering the government responsible. Constitutionalism, thus, stands for the existence of a
constitution in a state, since it is the instrument of government, or the fundamental law of the
land, whose objects ―are to limit the arbitrary action of the government, to guarantee the rights
of the governed, and to define the operation of the sovereign power.22 According to Michel

Rosenfeld, there is “no accepted definition of constitutionalism but, broadly,

modern constitutionalism requires imposing limits on the powers of government,

adherence to the rule of law, and the protection of fundamental rights”.23 Similarly

according to McIlwain, constitutionalism means “legal limitation on government. It

is the antithesis of arbitrary rule. Its opposite is a despotic government, the

government of will instead of the law.24

Constitutionalism always stands for limited government. Division of power is basis of civilized
government which is basic foundation of constitutionalism. It stands for the supremacy of law
and not of the individuals; it imbibes the principles of nationalism, democracy and limited
government. It may be identified with the system of divided power.25The notion of
constitutionalism stands for a system having division of powers and an arrangement of checks
and balances so that the government remains responsible; it also desires that the system be
provided with adequate techniques and procedures that can bring about a systematic and orderly
change26 .
22
C. J. Friedrich. (1974). Limited Government; A Comparison. Publisher Englewood Cliffs, N.J., Prentice-Hall. pp 13-14.

23
Retrieved from https://blog.ipleaders.in/constitution-constitutionalism-study-perspective-india/.(Accessed on March 26,
2022).

24
Ibid.
25
Friederich, Karl J. (1994). Constitutional Government and Democracy, Calcutta: Oxford and IBH. Cited by KapilmaniDahal,
The Constitution of Nepal: On the Touchstone of Constitutionalism and Good Governance, Journal of Political Science,
Volume XVII,The Constitution of Nepal - Nepal Journals Online, https://www.nepjol.info.com.(Accessed on April 14, 2022).

26
J. C. Johari (1982). Comparative Politic. Sterling Publishers Pvt. Ltd, New Delhi -110020. p. 269.

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Constitutionalism can be defined as the doctrine that governs the legitimacy of government
action, and it implies something far more important than the idea of legality that requires official
conduct to be in accordance with pre-fixed legal rules. In other words, constitutionalism checks
whether the act of a government is legitimate and whether officials conduct their public duties in
accordance with laws pre-fixed/ pre-determined in advance.27 According to Barnett,
constitutionalism embraces limitation of power (limited government), separation of powers
(checks and balances) and responsible and accountable government. Independent judiciary,
respect for individual rights and the right to self-determination as essential features
(characteristics) of constitutionalism.28 Constitutionalism stands for the existence of a
constitution in a state. It is the instrument of government, or the fundamental law of the land,
whose objects are to limit the arbitrary action of the government, to guarantee the rights of the
governed, and to define the operation of the sovereign power29 . However, a notion of the
constitutionalism forms a good practice of democracy and constitutional government which
important to achieving development for all.30

In contrast, constitutionalism is a normative political theory that contends that all exercises of
governmental power, whether representing the will of one person, elite, or an overwhelming
majority of the citizenry, is subject to important substantive limitations. In short, there are some
things that government cannot do, no matter how faithful it is to proper procedures or well it
mirrors informed and deliberate public opinion. In countries that embrace democracy, that is,
constitutional democracies, constitutionalism expresses democracy's distrust of democracy. 31 The
constitutionalism’ means limited government or limitation on government. It is antithesis of
arbitrary powers. Constitutionalism recognizes the need for government with powers but at the
same time insists that limitation be placed on those powers. The antithesis of constitutionalism is

27 Hilaire Barnett, Constitutional and Administrative Law 5 (London: Cavendish Publishing Limited, 3rd edi., 2000(1995) cited
by MaruBazezew, Mizan Law Review, Vol. 3 No.2, September 2009 constitutionalism, p. 358 .
28
Ibid, p. 358 -359
29 Wheare, K.C. (1951). Modern Constitutions, London ; New York : Oxford University Press,

30 Chulu, Jimmy. Constitutionalism: Doctrines and Practices (June 21, 2016). Available at
SSRN: https://ssrn.com/abstract=2798596. (Accessed on April 14, 2022).

31
W.F. Murphy, Constitutionalism, in International Encyclopedia of the Social & Behavioral Sciences, 2001. Available at
https://www.sciencedirect.com. (Accessed on April 19, 2022).

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despotism. It envisages checks and balances by restraining the powers of governmental organs
by not making them uncontrolled and arbitrary. Constitutionalism comes from political
philosophy and takes the position that a government, in order to be legitimate, must have legal
limits on its powers. Thus, the government's authority ends up depending upon actually staying
within those limits. A government which goes beyond its limits loses its authority and legitimacy.
32
The constitutionalism or constitutional system of Government abhors absolutism - it is
premised on the Rule of Law in which subjective satisfaction is substituted by objectivity
provided by the provisions of the Constitution itself.33

2. Nature of Constitutionalism

The nature of constitutionalism is understood on the basis of components and dimensions of

Constitutionalism practiced all around the world. Constitutionalism is descriptive of a
complicated concept, and deeply imbedded in historical experience, which subjects the officials
who exercise governmental powers to the limitations of supreme law of the land.
Constitutionalism proclaims the desirability of the rule of law as opposed to rule by the arbitrary
judgment or mere fiat of public officials. Throughout the numbers of literature dealing with
modern public law and the foundations of statecraft the central element of the concept of
constitutionalism is that in political society government officials are not free to do anything they
please in any manner they choose; they are bound to observe both the limitations on power and
the procedures which are set out in the supreme, constitutional law of the community. It may
therefore be said that the touchstone of constitutionalism is the concept of limited government
under a higher law. 34 The constitutionalism has prescriptive and descriptive uses in practice. Law
professor Gerhard Casper captured this aspect of the term in noting that: "Constitutionalism has
both descriptive and prescriptive connotations. Used descriptively, it refers chiefly to the
32
Inam, Syed Tazkir, Constitutionalism: Changing Paradigm (September 23, 2010). Available at
SSRN: https://ssrn.com/abstract=1681530 or http://dx.doi.org/10.2139/ssrn.1681530.(Accessed on April 19, 2022).
33 Rameshwar Prasad and Ors. Vs. Union of India (UOI) and Anr. (2006) 2 SCC 1, Available at
SSRN: https://ssrn.com/abstract=1681530 or http://dx.doi.org/10.2139/ssrn.1681530. (Accessed on April 20, 2022).
34 David Fellman, "Constitutionalism", vol 1, p. 485, 491-92 (1973-74) "Whatever particular form of government constitution

delineates, however, it serves as the keystone of the arch of constitutionalism, except in those countries whose written
constitutions are mere sham. Constitutionalism as a theory and in practice stands for the principle that there are—in a
properly governed state—limitations upon those who exercise the powers of government, and that these limitations are
spelled out in a body of higher law which is enforceable in a variety of ways, political and judicial. This is by no means a
modern idea, for the concept of a higher law which spells out the basic norms of a political society is as old as Western
civilization. That there are standards of rightness which transcend and control public officials, even current popular
majorities, represent a critically significant element of man's endless quest for the good life."

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 historical struggle for constitutional recognition of the people's right to 'consent' and certain
other rights, freedoms, and privileges…. Used prescriptively, its meaning incorporates those
features of government seen as the essential elements of the
Constitution."35 Constitutionalism must be distinguished from two somewhat related terms, a
constitution and a constitutional text. As James T. Shot well was fond of saying, every country
has a constitution, most countries have a constitutional text, but very few have constitutionalism.
A constitution, narrowly considered, is the arrangement of public offices and powers within a
nation-state. More broadly defined, as Aristotle came to use the word, a constitution refers to a
way of political life. A constitutional text is the document or documents that try to spell out a
nation's basic political principles, institutional arrangements, divisions of power among those
institutions, means of selecting public officials, and the rights and duties (if any) of private
citizens.36

Comparative constitutionalism may be understood as both a normative and legal practice as well
as a form of comparative political and legal analysis rooted in antiquity. Recent practice,
however, has been propelled by the political and technological changes of the late twentieth
century, particularly the post-Cold War explosion of constitutional reconstruction. The practice
of comparative constitutionalism appears both in the process of constitution-making as well as in
the subsequent jurisprudence surrounding the interpretation of these new constitutions.
Furthermore, the jurisprudence of Constitutional and Supreme Courts around the world has been
increasingly marked by a comparative discourse in which these courts evaluate and discuss the
constitutional arguments made in other jurisdictions. Among academics the idea of
constitutionalism has moved beyond a mere focus on the limitation of state power and has
developed two distinct foci: on the one hand there is a focus on comparing the different
constitutional institutions that are employed to secure democratic forms of government or their
role in shaping particular social issues such as identity and diversity, while on the other hand
there is an emerging focus on constitutional borrowing, adaption, and hybridization37 . It is in this

35
Retrieved from http://www.akleg.gov › basis › get_document , Constitutionalism (Accessed on April 22, 2022).

36
W.F. Murphy, Constitutionalism, in International Encyclopedia of the Social & Behavioral Sciences, 2001. Available at
https://www.sciencedirect.com. (Accessed on April 26, 2022).

37
H. Klug, Constitutionalism, Comparative, in International Encyclopedia of the Social & Behavioral Sciences, 2001. Available at

Electronic copy available at: https://ssrn.com/abstract=4473282

context that comparative constitutionalism provides an opportunity to rethink many of the
longstanding assumptions about traditional constitutional forms so as to understand their role in
the construction and maintenance of different constitutional orders. There are three sets of values
that frame traditional notions of constitutionalism: (1) federalism, or the spatial division of
power; (2) the separation of powers between different branches of government; and (3) the
notion of constitutional rights. Each of these addresses different aspects of the ‘problem’ of
power, its allocation, application, and restriction – within the nation state. While these
constitutional values, with their diverse historical origins, have become increasingly
universalized, their application in increasingly varied historical, cultural, and political contexts
has produced a diversity of approaches and understandings that provide a diverse global text for
political actors, constitution makers, constitutional interpreters, and litigants.38

3. Principle and Practice of Constitutionalism

The principle of constitutionalism is now a legal principle which requires control over the
exercise of Governmental power to ensure that it does not destroy the democratic principles upon
which it is based. These democratic principles include the protection of fundamental rights. The
principle of constitutionalism advocates a check and balance model of the separation of powers,
it requires a diffusion of powers, necessitating different independent centers of decision making.
The principle of constitutionalism underpins the principle of legality which requires the Courts
to interpret legislation on the assumption that Parliament would not wish to legislate contrary to
fundamental rights. The Legislature can restrict fundamental rights but it is impossible for laws
protecting fundamental rights to be impliedly repealed by future statutes39 Constitutionalism is
sometimes regarded as a synonym for limited government and minimal state. In the other, this
doctrine is associated in its turn with minimal or less government. But that is only one
interpretation and by no means the most prominent historically. A more representative general
definition would be that constitutionalism seeks to prevent arbitrary government. At its most

https://www.sciencedirect.com. (Accessed on April 22, 2022).

38
Ibid.

39
I.R. Coelho (Dead) By LRs. vs. State of Tamil Nadu and Ors. AIR 1999 SC 3197.

Electronic copy available at: https://ssrn.com/abstract=4473282

generic level, arbitrariness consists in the capacity of rulers to govern willfully – that is, with
complete discretion - and to serve their own interests rather than those of the ruled.
Constitutionalism attempts to avoid these dangers by designing mechanisms that determine who
can rule, how and for what purposes. However, constitutional traditions differ as to what
precisely counts as an arbitrary act and which mechanisms offer the best defense against their
occurring. The classical, neo-republican tradition of political constitutionalism identifies
arbitrariness with domination of the ruled by their rulers, and seeks to avoid it by establishing a
condition of political equality characterized by a balance of power between all the relevant
groups and parties within a polity, so that no one can rule without consulting the interests of the
ruled. The more modern, liberal tradition identifies arbitrariness with interference with
individual rights, and seeks to establish protections for them via the separation of powers and a
judicially protected constitution40 .

As legal constitutionalism spread, establishing itself not just in former authoritarian regimes but
also in the United Kingdom and Commonwealth countries where political constitutionalism had
hitherto held sway alone, some scholars highlighted drawbacks. Critics of legal constitutionalism
have argued that it has been introduced by hegemonic groups fearing political challenges to their
position. They contend that whereas political constitutionalism responds to majority views
for enhanced and more equal public goods, legal constitutionalism has inhibited such reforms on
grounds of their interfering with individual property and other rights. Of course, important
exceptions exist, with the progressive rulings of the Warren Court (1953–69) in the United States
offering an apparent contrast to the free market decisions of the Lochner era (1897–1937).
Disagreement over the merits of legal and political constitutionalism remains a central element
of 21st-century political discourse.41

4. Characteristics of Constitutionalism

40
International Encyclopedia of political science, B. Badie, D. Berg-Schlosser and L. Morlino, eds., IPSA/Sage, Forthcoming,
2010. (Accessed on April 24, 2022)

41
Constitutionalism- Encyclopedia Britannica,Available at https://www.britannica.com.(Accessed on April 23, 2022)

Electronic copy available at: https://ssrn.com/abstract=4473282

According to Barnett, constitutionalism embraces the limitation of power, the

separation of powers, the doctrine of responsible accountable government and the

protection of individual rights and freedoms.42 Louis Henkini defines popular sovereignty,

rule of law, limited government, separation of powers (checks and balances), civilian control of
the military, police governed by law and judicial control, an independent judiciary, respect for
individual rights and the right to self-determination as essential features (characteristics) of
constitutionalism.43We shall thus focus on these following basic elements of constitutionalism:

a. Popular Sovereignty
Popular sovereignty envisages the fact that the public is the source or fountain of all
governmental authority. The legitimacy of any governmental power is derived from the consent
of the public.44 The principle of any sovereignty resides essentially in the Nation. No

body, no individual may exercise any authority which does not proceed directly

from the nation45 The concept of popular sovereignty lay down that the government derives

its legitimacy from the people through the mechanism of election.46 The source of all sovereignty
lies essentially in the nation. No corporate body, no individual may exercise any authority that
does not expressly emanate from it. Even though there is a certain sovereign entity which is
empowered to govern, ultimate sovereignty resides in the nation. The power of such sovereign
entity emanates from the public.47 Referendum is the other mechanism by which the sovereignty
of the public is manifested or expressed. Before a government makes a decision or takes any
action which affects the interest of the public, constitutionalism requires it to consult the public
and listen to what the public says. The case of France is worth mentioning. The President of the
Republic may (on the basis of a proposal from the government when parliament is in session or

42
by Routledge 2 Park Square, Milton
Hilaire Barnett, (2013 ) Constitutional and Administrative Law , (published
Park, Abingdon, Oxon OX14 4RN Simultaneously published in the USA and Canada by Routledge
711 Third Avenue, New York, NY 10017) 10th edi, , p. 6.
43Michael Rosenfield (1994) Constitutionalism, Identity, Difference and legitimacy, Theoretical Perspectives, Durham: Duke
University Press, p. 4042
44 Maru Bazezew, (2009). Constitutionalism, Mizan law Review, Vol. 3 No.2,.P..358.

45 French Declaration of Human Rights, 1789. Article 3

46 Retrieved from https://byjus.com/free-ias-prep/constitutionalism-upsc-notes/. (Accessed on April 25, 2022)

47
Maru Bazezew, Supra Note 1.

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on a joint motion of the two assemblies) submit to a referendum any government bill which deals
with the organization of the public authorities or with reforms relating to the economic or social
policy of the nation or which provides for authorization to ratify a treaty although not contrary to
the constitution. The bill is promulgated by the President of the Republic provided that the
referendum is in favor of such government bill.48 In some liberal democratic countries like USA,
Uk, France, Federal Republic of Germany etc, the principal role of the public is to control
theactivities of the government and to exercise a sort of veto power which goes beyond mere
participation49
b. Separation of Powers and Checks and Balances

Separation of powers divides the mechanism of governance into three branches of the state i.e.,
Legislature, Executive and the Judiciary. This not only prevents the monopolization of power,
but also creates a system of checks and balances. As this division of powers is in the Constitution
itself, this becomes an effective tool for ensuring Constitutionalism.50Under constitutionalism,
power is not concentrated in any one organ of the state. It is diffused (divided) among the three
organs of the state i.e., the legislature, the executive and the judiciary. If power is monopolized
by any one organ of the state there could be abuse of power, tyranny and dictatorship. Nor can
there be liberty. For example, the legislature, in addition to its law-making power is not allowed
to exercise the roles of the executive; and the judiciary is not allowed to execute the laws which
it interprets. These two powers are reserved to the respective organs i.e. the executive and the
judiciary, respectively.51

c. Responsible and Accountable Government

The government must be accountable to the public and in the democratic nations (countries)
people perceive their government as their own servant. The government is there to serve their
interest or act as the steward of their interest. The governments assume office in the name and on
behalf of the public for the benefit of the public.52In a democratic setup, the government is

48 French Constitution (1958) Article 11.

49
Finer, S.E, (1970) Comparative Government, Penguin, pp 30-40.
50
Retrieved from https://byjus.com/free-ias-prep/constitutionalism-upsc-notes.(Accessed on April 26, 2022).
51
Maru Bazezew, Supra Note 2.
52
Maru Bazezew, Supra Note 3.

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elected so that it can serve the people who help elect it as a representative. It is in this sense that
the electors have a right to demand accountability and answers from their government. Therefore,
when the government fails the expectations of the electorate, the authorization to govern is
revoked by voting them out. If an American or English were asked what the first indispensable
requirement of his government is, it is ten to one that would reply that his government was the
servant of the people.53 The same way applies in the relationship between a government and the
public sentiments. As a government assumes office in the name and on behalf of the public, it is
directly accountable and responsible to the public and to fulfill their requirements.

d. Rule of Law

The presence of rule of law means that the government does not belong to men but to the laws.
Rule of law denotes a government of laws and not of men. Individuals working within the state
machinery are expected to exercise their official duties and responsibilities in accordance with
the law. In other words, rule of law represents the supremacy of law. According to Dicey,54 rule
of law envisages the following:-
• No one is punishable except for a distinct breach of law established in the ordinary legal
manner before the ordinary courts of the land;
• No person is above the law;
• Courts play a vital role in protecting the rights of individuals.

The idea of rule of law, in constitutionalism to to rule of man, is an ancient one. At its core is the
convention that law provides the means of protecting each citizen from the arbitrary rule of
others including the most powerful and absolute ruler. Dicey gave the rule of law mainly three
meanings absence of arbitrary power, equality before law, and the constitution as result of the
ordinary law of the land.55The first component of rule of law is related to the principle of legality.
If a certain behavior is not categorized as a criminal act by the constitutionally mandated
lawmaking organ, it is not treated as a criminal act and is not punishable. It is treated as an
innocent act. The no one is above the law; these words express the absolute supremacy of law

53 The FDRE Constitution, Article 57.

54
Albert Venn Dicey. (1998), An introduction to the study of the law of the constitution (10 th ed), Delhi University Law
Publishing Co. Pvt.Ltd., pp. 188-189
55
Ibid. p. 202-203.

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over arbitrary power including widespread discretionary power of government. We are all human
beings created in the image of God, and we should be treated equally before or under the law
without discrimination on the basis of status, wealth, race, nationality, gender, sex, etc. Every
person from a president down to a shoe-shiner should equally become subject to the
law.56 According to Dicey, the mere recognition of rights in a constitution alone does not secure
or ensure the rights of an individual. The rights recognized by a constitution and other laws are
to be protected or defended through the medium of courts whenever these rights are infringed.

e. Independent Judiciary

Independence judiciary means it should be free from other organs of the state particularly
executive and legislative. It must be free from power, pressure and other things, independence
means that the freedom of judges to decide cases, fairly and impartially, relying only on the fact
and law.57 In liberal democracy the individual is at the center, and “Judicial independence is the
hallmark of liberal democracy.58 The independence of the Judiciary is the essence of any liberal
democracy and the foundation of a free society. The Judiciary is the upholder of Rule of law and
if its independence is taken away, it puts the entire rule of law in jeopardy. The rights of
individuals are ensured and respected. Courts play a vital role in ensuring and respecting the
rights of individuals. An independent judiciary is the cornerstone of a free society and rule of law.
59
An independent judiciary is also necessary to maintain the supremacy of a constitution. If the
legislature comes up with a law which is contrary to the constitution, an independent judiciary,
through the principle of judicial or constitutional review, has the power to declare it null and
void. The law passed by the legislative organ is not the only role or function of courts, courts is
bound to review whether laws passed by the legislature are constitutional. The whole purpose of
judicial or constitutional review is not to snatch the powers given to other organs or to create
judicial despotism, but to maintain the supremacy of the constitution i.e., the supreme law of the
land. In addition, judicial independence helps judges to discharge their judicial functions without
fear or favor. The Justice P. N. Bhagwati stated that Justice can become fearless and free only if
institutional immunity and autonomy are granted.60

56
MaruBazezew, Supra Note 4.
57 Tek Narayan Kunwar (2007) Global; standards of Judicial independence , NJA Law Journal, Vol. 2, National Judicial Academy
Nepal, p.7.
58 Robert A.Goldin and William A. Schambra (1999) The Constitution, the Courts and theQuest for Justice 25Washington DC,

American Enterprise Institute Press, p 25.

59 Peter H. Russe l& David M. (2001)Judicial Independence in the Age of Democracy, Charlottesvile, The University Press of

Virginia, 25.
60 H.M. Seervai, (1996) Constitutional law of Indi a, Delhi: N.M Tripathi Private Ltd. Bombay, 4th edi., p. 2617.

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f. Ensure and Respect Individual Rights

Individual freedom is the pre-requisite of the democratic nation. The rights of the individual
shall be at the highest pedestal for constitutionalism to thrive as a concern of sovereign state. The
constitutional setup of every state gives these rights the importance that they deserve by
engraving them in the Constitution. These individual rights have not only been protected by the
courts but have also been interpreted in a manner where their effect and implementation has
required to be broadened. The incorporation of the rights of individuals in a constitution and
other laws is essential, but not an end by itself. It is a means to an end. It must be seen that these
rights are duly respected and protected.61 The article 1 of the UN Charter included the promotion
and encouragement of respect for human rights and fundamental freedoms for all without
distinction as to race, sex, language or religion.62 Similarly, the article 55 of the UN Charter
states that the United nations shall promote universal respect for and observance of human rights
and fundamental freedoms for all without distinction as to race, sex, language, or religion.63 In
addition Article 56 of the Charter imposes obligation on member states to ensure the observance of
Article 55 of the Charter. A similar provision has been enshrined in the International Covenant on
Civil and Political Rights. Article 2 of the Covenant stipulates that “each state party to the present
covenant undertakes to respect and to ensure to all individuals within its territory and subjects to its
jurisdiction the rights recognized in the present covenant without distinction of any kind such as
race, color, sex, language, religion, political or other opinion, national or social origin, property,
birth or other status.” 64

g. Respect for Self-determination

Self-determination is concerned to the concept of individual liberty, autonomy and freedom. Self
-determination refers to the right of a people living in a territory to determine the political and
legal status of the territory, for example, by setting up a state of their own or by choosing to
become part of another state.65 However, from the perspective of international law, this right is
granted to colonies and dependent states of the sovereign nation. This concept is clearly stated

61
MaruBazezew, Supra Note 5.
62
UN Charter, 1945article (1).
63 UN Charter, 1945 article (55).
64
ICCPR, 1966, article (2).
65 Akehurst (1997)Modern Introduction to International Law, London and New York: 7th edi., p. 326.

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under Article 1(2) and 55 of the UN Charter.66 The right to self-determination is also recognized
under Article 1(1) of the International Covenant on Civil and Political Rights. It reads as all
peoples have the right of self-determination. By virtue of that right they freely determine their
political status and freely pursue their economic, social and cultural development.67 The notion of
self determinations is a right of an individual to exercise of socio-cultural and economic rights
that are guaranteed by the national and international instruments of law and legal system.

h. Civilian Control of the Military

The military force of every state should respect the democratic system and its process. It is the
duty of the every state to protect their citizen. Apart from these features, constitutionalism
envisages that the control of the military should be in the hands of a civilian government. The
military does not interfere in the democratic decision making process or attempt a military coup.
In democratic countries, it is the democratically elected officials who are allowed to govern or
control the military force, although technical affairs are left to the military personnel. Instead, if
full autonomy or sovereignty is granted to the military leaders,they might divert the democratic
decision-making process and may use forcewhich may go the extent of coup or military
dictatorship. The military may also crush democratic political opposition, through intimidation
and use of unnecessary physical force and interfere with domestic elections. Samuel Adams
statedthat even when there is a necessity of the military power, wise and prudent people will
always have a watchful and jealous eye over it.68

i. Police governed by Law and Judicial Control

The prime concern of police should protect the citizen in good governance and they are governed
by the law. The concept of constitutionalism also envisages that police while performing its
duties shall uphold the rights, freedoms and dignity of the individuals, the same can be ensured
by bringing the police under the control of laws and courts.69 The foremost responsibility of
ensuring peace, security and order is borne by the police authority. It should be the duty of the

66
Ibid.
67 ICCPR article 1(1).
68
Retrieved from Wikipedia, the free encyclopedia.(Accessed on April 26, 2022).

69 Retrieved from https://byjus.com/free-ias-prep/constitutionalism-upsc-notes/. (Accessed on April 26, 2022).

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state of bringing wrong-doers to justice. However, when the police discharge such duties,
constitutionalism requires them to honor and respect the rights, dignity and freedoms of
individuals including wrong-doers and persons suspected of offences. It is to be noted that a
suspect has the right to be presumed innocent until proved guilty by the competent court.70 In
general, the police are expected to act according to the law. When, instead, the police violate the
laws they are entrusted to enforce, the result turns out to be not only an assault on human dignity
and the law itself, but the creation of barriers to effective policing.71 The practical effects of
police violations are multifold which are as follows:
• Public confidence is eroded;
• Civil unrest is exacerbated;
• Effective prosecution in courts is hampered;
• The police is isolated from the community; and
• Results in the guilty going free and the innocent being punished.

5. Conclusion

To illuminate from the perspective of the constitutional law, the constitutionalism is a backbone
of democracy and rule of law. It is concerned to the constitutional supremacy, supremacy of law
and civil liberty. The concept of constitutionalism is inevitable and has existed and thrives in
functioning of democracy. There are various dimensions and components of constitutionalism
which are adopted by the most of the countries of the world. The components of
constitutionalism are supremacy of law, supremacy of written constitution, rule of law,
independence judiciary, separation of power and checks and balances, elected government by
periodic election, Judicial review, fundamental rights, strong and accountable opposition and
procedure of amendment of constitution. To some extent, the concept of welfare state and
responsible government towards the citizen is presumed as the new model of the modern
constitutionalism. The constitutionalism cannot grow and sustain in the frustrated and corrupted

70 MaruBazezew, Supra Note 6.

71 Retrieved from https://www.un.org › ruleoflaw › files › training5en. A manual on Human Rights Training for the Police,
(1997) United Nations, New York and Geneva.

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political system that are building up due to the apathy and instability of the government in utter
disregard to constitutionalism which are extremely dangerous for the establishment of welfare
state and this needs to be stopped and controlled through promotion of rule of law and strict
execution law. Similarly, since the constitutionalism is considered as a modern concept that
desires a political order governed by laws and regulations. It always stands for the supremacy of
law and not of the individuals; it imbibes the principles of nationalism, democracy and limited
government. The primary aim of the government is to ensure good governance and establish
welfare of the larger population. As of with the changed context of society, the state institutions
are the bulwark of constitutionalism, the new model of constitutionalism has been expectedly
developed and conceptualized to ensure good governance through delivering the services
effectively.

Introduction of Writer:
Yam Kumar Yonjan, is a practicing Lawyer of the Supreme Court of Nepal. He is
also a teaching faculty member of Nepal Law Campus, Tribhuvan University. He
has completed LL.M. degree from the Nepal Law Campus, Trinhuvan University,
specialization in International Law and Commercial law respectively. He has an
experience of the visiting lecturer of distinct law colleges, resource person at
governmental and non-governmental academic and training institutions.
Presently, he is doing legal practice in the areas of corporate law and
constitutional law and he is also pursuing Ph.D. degree on constitutional law
from the faculty of law, Tribhuvan University.

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