Constitutions, Law

and Judges
SESSION 17
Constitution

 a set of rules, written and unwritten, that seek to establish the duties, powers and
functions of the various institutions of government; regulate the relationships
between them; and define the relationship between the state and the individual.
 Provide a description of government itself, a neat introduction to major
institutions and their roles.
 Linchpin of liberal democracy
 No Constitution is perfect: Inaccuracies, distortions and omissions can be found
in all constitutions
 Nothing to prevent a constitution being undemocratic or authoritarian
 Objective: to lay down certain meta-rules for the political system: rules that
govern the government itself
History

 Traditionally drew on the idea of a higher moral power, usually religious in

character
 Egyptian pharaohs acknowledged the authority of Ma’at or ‘justice’,
 Chinese emperors were subject to Ti’en or ‘heaven’,
 Jewish kings conformed to the Mosaic Law and Islamic caliphs paid respect to
Shari’a law
 Constitutions are late 18th century creations. The ‘age of constitutions’ was
initiated by the enactment of the first ‘written’ constitutions: the US constitution
in 1787 and the French Declaration of the Rights of Man and the Citizen in 1789
 means of establishing a new political order following the rejection, collapse or
failure of an old order
Classifications
1. Form of the constitution and status of its rules (whether the constitution is
written or unwritten, or codified or uncodified)
2. Ease with which the constitution can be changed (whether it is rigid or flexible)
3. Degree to which the constitution is observed in practice (whether it is an
effective, nominal or façade constitution)
4. Content of the constitution and the institutional structure that it establishes
(whether it is, for example, monarchical or republican, federal or unitary, or
presidential or parliamentary)
1. Form or Status of the constitution
 Codified constitution:
 A constitution in which key constitutional provisions are collected together in a single legal document,
popularly known as a ‘written constitution’ or ‘the constitution’.
 Constitutions is authoritative – Supreme law of the Land
 Statute law: Law that is enacted by the legislature
 Two-tier legal system exists, in which the constitution stands above statute law
 Certain of its provisions are entrenched, in the sense that it is difficult to amend or abolish them.
 Must be justiciable, meaning that all political bodies must be subject to the authority of the courts and, in
particular, a supreme or constitutional court
 Uncodified constitution:
 A constitution that is made up of rules drawn from a variety of sources, in the absence of a single
authoritative document
 Supposedly embodied in custom and tradition
 Uncodified document implies that the legislature enjoys sovereign or unchallengeable authority
Codified Constitutions

 Strengths  Weaknesses
 Laws entrenched, safe from undue  Rigid, less responsive
interference  Regular elections might be better
 Limits parliaments’ power constrain on govt
 Judges are able to affectively use it to  Judges are usually unelected
constrain others  Invented constitutions may be less
 Individual liberty is ensured respected
 Educative purpose, goals and values  Inevitably biased
delineated
2. Ease with which the constitution can be
changed
 UK criticized for being an elected dictatorship
 Parliamentary sovereignty: the absolute and unlimited authority of a parliament or
legislature, reflected in its ability to make, amend or repeal any law it wishes
 Various degrees of flexibility are possible
 the flexibility of a constitution is not directly proportional to the formality of its
procedures and rules
 their meanings are subject to constant revision and updating through the process of
judicial interpretation and reinterpretation
3. Degree to which the constitution is
observed
 If the practical affairs of government correspond to the provisions of the
constitution.
 this occurs because the constitution has the capacity, through whatever means, to
limit governmental behaviour
 Real issue is thus the significance and regularity of such violations.
 States have sham or façade constitutions.
 Often in dictatorial states
4. Content of the constitution and the
institutional structure
 Monarchical or republican, unitary and federal constitutions
 Differentiate between what are seen as parliamentary constitutions and
presidential constitutions
 The key here is the relationship between the executive and the assembly:
 In parliamentary systems, the executive is derived from and accountable to the
assembly;
 In presidential systems the two branches of government function independently on the
basis of the separation of powers
Purpose of Constitution

 Empower states
 Establish unifying values and goals
 Provide government stability
 Protect freedom
 Legitimize regimes
Empower states

 Mark out the existence of states

 Make claims concerning their sphere of independent authority.
 Without one they lack formal jurisdiction over a particular territory, or a
governing apparatus that can effectively exercise that jurisdiction.
Establish unifying values and goals

 Embody a broader set of political values, ideals and goals.

 Have ideological priorities
 The creators of constitutions seek to invest their regime with a set of unifying
values, a sense of ideological purpose and a vocabulary that can be used in the
conduct of politics
Providing government stability

 Complex patterns of social interaction can be maintained only if all concerned know
the ‘rules of the game’ and, therefore, who can be expected to do what
 Constitutions provide rules of the game
 Formalize and regulate the relationships between political bodies and provide a
mechanism through which conflicts can be adjudicated and resolved.
 Varying in their degree of specificity and their effectiveness, all constitutions fulfil
the vital function of introducing a measure of stability, order and predictability to
the workings of government.
Protecting freedom

 In liberal democracies, their central purpose is to constrain government with a

view to protecting individual liberty.
 Constitutions tend to be viewed as devices for establishing and maintaining
limited government
 Do this largely by defining civil rights and liberties, often through the means of a
bill of rights
 Negative and positive rights
Legitimize the regime
 Explains the widespread use of constitutions, even by states with constitutions
that are merely nominal or a complete façade. This legitimation process has
 Two dimensions.
 the existence of a constitution is almost a prerequisite for a state’s membership of the
international community and for its recognition by other states.
 the ability to use a constitution to build legitimacy within a state through the promotion
of respect and compliance amongst the domestic population. To make the constitution
more effective in this respect, attempts are often made to promote veneration for the
constitution itself, either as a document of historical importance or as a symbol of
national purpose and identity
Do they work?

 Usually when they are supported by a range of other cultural, political, economic
and social conditions.
 must correspond to the political culture; successful constitutions are as much a
product of the political culture as they are its creator.
 so many of the model liberal-democratic constitutions bequeathed to developing
states by departing colonial rulers failed to take root.
 Constitutional rules guaranteeing individual rights and political competition may
be entirely irrelevant in societies with deeply entrenched collectivist values and
traditions, especially when such societies are struggling to achieve basic economic
and social development
Do they work?

 Whether or not a constitution is respected by rulers and accords with the interests
and values of dominant groups
 Whether they are adaptable and whether they have the ability to remain relevant
despite changing political circumstances.
 Generally, successful constitutions are sufficiently flexible to accommodate
change within a broad and enduringly relevant framework
 Such changes, however, can be said to have occurred within the constitution, in
that core principles such as the separation of powers, federalism and individual
liberty have continued to be respected, albeit in renewed form
The Law

 Law is a distinctive form of social control, backed up by the means of

enforcement; it defines what may and what may not be done.
 Morality is concerned with ethical questions and the difference between ‘right’
and ‘wrong’; it prescribes what should and what should not be done.
 19th century ‘science of positive law’
 Its purpose was quite simply to free the understanding of law from moral,
religious and mystical assumptions
 ‘legal positivism’ which defined law not in terms of its conformity to higher moral
or religious principles, but in terms of the fact that it was established and
enforced: the law is the law because it is obeyed
Laws

 Primary rules regulate social behaviour and can be thought of as the content of the
legal system: criminal law is an example
 Secondary rules are rules that confer powers on the institutions of government
 Role of law is to protect each member of society from his or her fellow members,
thereby preventing their rights and liberties from being encroached on.
 Law should be ‘above’ politics, a neutral character, should not favour one over
another, judges should independent and not be political
Judiciary
 Branch of government that is empowered to decide legal disputes.
 The central function of judges is to adjudicate on the meaning of law, in the sense that they interpret or
‘construct’ law.
 The significance of this role varies from state to state and from system to system.
 In states with codified constitutions, where it extends to the interpretation of the constitution itself, and
so allows judges to arbitrate in disputes between major institutions of government, or between the state
and the individual.
 International law and International Courts
 Liberal democratic systems: that judges are strictly supposed to be independent and non-political actors
– Idealized image
 In reality judiciary is best thought of as a political, not merely a legal, institution. Judges play a vital role
in such undeniably political activities as conflict resolution and the maintenance of state authority.
 Debate about the political significance of the judiciary revolves around two more controversial questions
– may have external or internal bias
Biases
 External bias:
 the influence that political bodies, such as parties, the assembly and government, are able
to exert on the judiciary
 supposedly kept at bay by respect for the principle of judicial independence
 Internal bias:
 stems from the prejudices and sympathies of judges themselves, particularly from those
that intrude into the process of judicial decision-making
 the key factor is not so much how judges are recruited, but who is recruited
 socialist critique - the judiciary articulates the dominant values of society, and so acts to
defend the existing political and social order
 biased against women, racial minorities, and, indeed, any group poorly represented
 underpinned by the social exclusivity of judges and by the peculiar status and respect that
the judicial profession is normally accorded
Do judges make policy
 In practice, judges impose meaning on law through a process of ‘construction’ that
forces them to choose amongst a number of possible meanings or interpretations.
 All law is judge made law.
 Range of discretion available to judges and the significance of the laws that they
invest with meaning, vary considerably.
 Depends on two factors:
 the clarity and detail with which law is specified. Generally, broadly-framed laws or
constitutional principles allow greater scope for judicial interpretation.
 the existence of a codified or ‘written’ constitution. The existence of such a document
significantly enhances the status of the judiciary, investing it with the power of judicial
review.
 Judicial Activism: The willingness of judges to arbitrate in political disputes, as
opposed to merely saying what the law means.
Tasks and Questions

 Try to read up the Constitutional History of Pakistan online

 How many times and in what many ways has the Constitution of Pakistan been
amended since 1947?
 See how Judges are appointed in Pakistan
 What kind of Judicial activism has taken place in Pakistan?
 What internal and external biases do judges have in Pakistan?
 Should law making be done on basis of a system of morals? Ups and downs of
that approach?
 Are laws, constitutions, courts enough to protect people’s liberties? How does it
work in Pakistan?