Constitutional Law - 01

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An Introduction & Core Principles of

Constitutionalism

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Authored by:
2

Nature of Constitutional Law 1. State is static. Government is dynamic

2. Government is the dynamic arm of governing

the state.
State
3. The state is a physical unit, but the
“The state represents a secular society that is
government functions as a governing unit of
characterized by a division between the government
State.
and its subjects. Both entities assert their authority
over all other institutions within a designated
geographical region. Consequently, the state What is the constitution?

functions as an unparalleled legal repository for

social decision-making.” In common law, the Constitution is considered the
central and principal law of a country or nation. It
can be in written or unwritten form and serves as a
The State is an institution established by individuals reflection of the nation's nature, fundamental
with the aim of guiding people towards a life of principles, state organization, regulations,
happiness and dignity. distribution of powers, limitations of authority, and
the extent of sovereignty and its exercise.
According to the modern definition, a state is "a unit
recognized by the international community, with a “The Constitution should express the dreams and
permanent population, well-defined borders, a aspirations of the people”
functioning government, and the ability to engage in
relations with other states."
Modern democratic theories accept the constitution
as the outcome of a social convention, with the
Difference between state and government people being the initiators of this convention. Rulers
emerge as a consequence of this social convention,
and their behaviors and roles are justified within the
framework of this convention. Consequently, prior
to the emergence of the concept of a system, there
existed a theory concerning the relationship between
the people and the state. Throughout the inception of
the state, unwritten laws or traditional state practices
governed its functioning.

An Introduction and Core Principles of Constitutionalism

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The emergence of the state and the establishment of - Defining the powers of three organs of the
its powers occurred through the constitution itself. government
Initially, there was no universally accepted - Fundamental Rights
prescribed method or law regarding its formation.
All legal authority originates from the Constitution,
However, once a constitution was established, all
as it delineates the authority and scope of laws and
subsequent state activities were conducted in
regulations. While individuals may not always have
accordance with the accepted constitution.
direct familiarity with the Constitution, it empowers
“It is that. But it is more. It is the Birth certificate of all laws and regulations that directly impact their
Nation” – Windleyer Judeye lives.

The Constitution has evolved into the highest law of As the Constitution is forged through the collective
the state, governing all matters in accordance with its power of the sovereign people of a state, its authority
provisions. It serves as both the foundation and the and validity are derived from the people themselves.
wellspring of power, from which all other legal
Based on the aforementioned facts and taking into
authorities derive their legitimacy.
account the contemporary understanding of the
Constitution, we can summarize some possible
interpretations as follows.

01. The Constitution serves as the paramount

law of a nation and acts as the fundamental
source of governance.

02. It reflects the economic, social, political,

and ideological aspects of a country, capturing
the thoughts and aspirations of its people.

03. The Constitution establishes the legal

framework that formalizes the connection
between individuals and the state.

- G Norm of the Country 04. It is the primary mechanism through which

- Provide Procedure for enacting laws powers and responsibilities are allocated
- Different method of Passing among the three branches of government.
- Constitutional amendments should be
accorded with special procedures
- Constitutionality of Bills (S 122)

An Introduction and Core Principles of Constitutionalism

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Hence, regardless of whether a state is democratic, To ensure the supremacy of the Constitution, the
socialist, or built on any other political principle, the following elements must be satisfied:
aforementioned common practices tend to prevail.
1. Check and balancing: The Constitution should
Nevertheless, Professor Stanley Alexander Smith, in encompass all relevant aspects of governance and
his book "Constitutional & Administrative Law," establish a system of checks and balances to prevent
asserts that there is no pre-defined or model form for any one branch or authority from becoming
an ideal constitution. Instead, its structure and excessively dominant.
content are shaped by the following factors:
2. Independence of the Judiciary: The judiciary must
- The prevailing forces and circumstances operate independently, free from interference or
during its establishment or revision. influence, to uphold the principles of justice and
protect the rights of individuals.
- Practical considerations aimed at ensuring
ease of implementation. 3. Judicial power of investigation: The judiciary
should possess the authority to conduct
- Drawing from precedents and experiences of
investigations, when necessary, to ensure
the political authorities and their advisors
accountability and fairness.
involved in its construction.
4. Fundamental rights: The Constitution should
Theory of Constitutionalism enshrine the fundamental rights of individuals,
providing legal protections and safeguards against

A constitution is crafted to fulfill the aspirations of any infringement upon those rights.
the citizens of a country. This principle is explicitly 5. Electoral system: The Constitution should
stated in the Preamble of the Constitution of the establish a transparent and fair electoral system that
Democratic Socialist Republic of Sri Lanka of 1978. upholds democratic principles and allows for the

Within a country, the Constitution holds the highest participation of all eligible citizens in the electoral

authority, while the Parliament and the Council of process.

Ministers, led by the Executive President, are For instance, in the 1978 Constitution of Sri Lanka,
subordinate to the Constitution. As the supreme law, specific provisions were included to address these
every law enacted by the Parliament must conform elements, such as:
to the Constitution. Consequently, the notion of
parliamentary independence is not prioritized, and
instead, the concept of people's sovereignty takes a
broader place

An Introduction and Core Principles of Constitutionalism

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- Article 82: Requiring a special majority in The British Constitution is a prime example of this,
Parliament to amend the Constitution. evolving through historical development rather

- Article 83: Mandating a referendum, special than being enacted as a single constitution. The

majority in Parliament, and the President's signature current British Constitution is a compilation of

for amending specific articles of the Constitution. various written documents, including the Petition of
Rights (1688), Rights case (1628), Declaration
- chapter 03: Ensuring the protection of
(1610), Settlement Act (1701), and Magna Carta
fundamental rights.
Convention (1215). Similar examples of countries
- Article 107: Governing the appointment and
with unwritten constitutions include Israel, England,
removal of superior court judges.
New Zealand, and Saudi Arabia.
- Chapter 08: Outlining the structure and functions
However, there are criticisms regarding this
of the Council of Ministers.
classification:
- Article 38(2): Providing a process for the
01. The distinction between written and unwritten
impeachment of the President.
constitutions is not absolute but relative, as stated
- Article 118: Defining the jurisdiction of the by J.A.L. cooray
Supreme Court.
02. The classification of written and unwritten
Classification of Constitutions constitutions is considered illusory, according to
C.F. Strong.
Written / Unwritten (a traditional
classification) 03. This classification fails to reveal the fundamental
characteristics of a constitution.
When the fundamental provisions of a country's
legal framework are consolidated in a single 04. Even in countries with unwritten constitutions,
document, it is referred to as a written constitution. certain aspects of the legal framework may be
Examples of countries with written constitutions written, while countries with written constitutions
include Sri Lanka, India, and the United States. may also have unwritten legal components or legal
traditions.

In summary, the categorization of constitutions as

On the other hand, constitutions that are not
written or unwritten is not without its limitations
codified as a singular document explicitly declaring
and complexities. The nature and composition of a
the fundamental laws of a country are known as
constitution can vary, incorporating written,
unwritten constitutions.
unwritten, legal, and traditional elements
An Introduction and Core Principles of Constitutionalism
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depending on the specific context and historical

development of a country's legal system.
USA situation

Flexible / rigid Constitutions

A constitution is deemed flexible if it can be

amended through a simple procedure, unlike a
special process reserved for amending regular
legislation. Indian situation

Conversely, rigid constitution requires following a

specific method outlined within the constitution
itself to make any amendments.

It is important to note that the interpretation

provided above cannot be regarded as definitive
Indeed, there are criticisms regarding the
and is relative in nature, allowing for different
classification of constitutions based on their
perspectives and understandings.
flexibility or inflexibility. Some of these criticisms
UK Status: include:

1. The flexibility or inflexibility of a constitution is

subjective and contingent upon the aspirations and
character of the people within the society where it is
applied. Different societies may have different
preferences for the level of flexibility or rigidity in
their constitutional frameworks.

2. Regardless of how inflexible a constitution may

Sri Lanka's situation appear, it is still possible to amend it when the need
arises. Even the most flexible constitutions can be
found in the modern political landscape, as societies
recognize the importance of adapting their
constitutional arrangements to changing
circumstances.
An Introduction and Core Principles of Constitutionalism
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These criticisms highlight the dynamic nature of 1. Ability to exercise effective control: A unitary
constitutional systems and suggest that the constitution allows for centralized decision-making
classification based on flexibility or inflexibility may and efficient governance, enabling the central
not capture the full complexity and adaptability of government to exercise effective control over the
constitutional frameworks in practice.
entire territory.

Federal and Unitary Constitutions 2. Clarity on accountability: With a unitary

constitution, there is clear accountability as the

A unitary state refers to a political system where central government is directly responsible for the

power is concentrated under a single central administration of the entire country, making it

government. This central government holds easier to determine who is accountable to the

supreme authority without any significant external people.

influence. The legislative, executive, and judiciary 3. Reduced administrative costs: The absence of a
branches operate under the control of this central complex system of multiple regional governments
government or ruling authority. As a result, there is or autonomous entities can result in lower
no inherent challenge to the central government's administrative costs, as resources can be more
governance power within the subject territory. efficiently allocated and coordinated at the central

Constitutions can take the form of either written or level.

unwritten documents. The legislative body is 4. Effective foreign policy: A unitary constitution
responsible for enacting laws and possesses the provides a unified voice in international affairs,
ability to delegate, restrict, or modify its own allowing the central government to conduct foreign
powers. However, this does not necessarily imply policy more cohesively and effectively.
the absence of subsidiary institutions. Although
Disadvantages of a unitary constitution include:
subsidiary institutions may exist, the central
authority holds significant power and can 1. Potential for authoritarian rule:

potentially abolish them at its discretion. It is not Concentrated power in a unitary system can

mandatory for the judicial branch to possess increase the risk of authoritarian rule, as

investigative powers to check the legality or there may be limited checks and balances on

constitutionality of laws enacted within this system. the central government's authority.

Advantages of a unitary constitution include:

An Introduction and Core Principles of Constitutionalism

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2. Marginalization of minority groups: In I. Two states representing their own citizens

multinational states, a unitary constitution may lead formally divide legislative, executive powers, and
to the dominance of the majority group and revenue resources. Each unit retains authority over
marginalize minority groups, potentially specific issues.
undermining their rights and representation.
II. The central government ensures the fair
It's important to note that the advantages and distribution of power and prevents undue
disadvantages of a unitary constitution can vary encroachment by regional units.
depending on the specific context and the manner
III. The supremacy of the constitution is
in which power is exercised within the system.
emphasized. Amendments to the written
A federal state constitution should not be made unilaterally; they
require the consent of the majority.
A federal state is commonly observed in countries
with vast territories and geographical disparities, IV. The judiciary and the constitution play vital roles
where unity is achieved through diversity. The key in the federal state, especially in resolving disputes
factor in federal systems is the presence of a written between different levels of government.
constitution that upholds supremacy, ensuring the
V. Cooperation between the central and provincial
confidence and respect of both central and regional
governments is essential for effective governance
entities.
within a federal state.
Power distribution is maximized in a federal state,
In summary, a federal state promotes unity while
leading to a division of powers and potential
accommodating diversity through a written
collisions between different levels of government.
constitution, power division, and cooperation
Max Frenkel's Federal Theory highlights key between central and regional entities. The balance
features of a federal state, derived from the word of power, respect for the constitution, and effective
"Foedus," including autonomy, power division collaboration are crucial aspects of a successful
between central and provincial units, supremacy of federal system.
the constitution, and representation of localities in
the media.

Ronald Watts identifies essential elements of a

federal state system, which are as follows:

An Introduction and Core Principles of Constitutionalism