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- Classification of constitutions
Classification of constitutions
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Constitutions are classified in different ways such as;
- Written or Un-written
- Flexible or Rigid
- Presidential or Parliamentary
- Unitary or Federal
- Monarchical or Republican
- Single Party and other Constitutions
- Diarchical and other Constitutions
Written or Unwritten Constitutions
A constitution is said to be written when it is found in a single document.
Written constitution is found in almost every country of the world, except in the United Kingdom.
The idea of a written constitution is a legacy of the revolutionary period in eighteenth and nineteenth-century Europe when, with mixed success, widespread uprisings challenged traditional aristocratic, colonial, and religious regimes.
Since the French Revolution (1789) almost every nation has adopted a written constitution, sometimes as a reaction against a hated previous regime and sometimes to mark a new event such as independence from colonial status[mfn] Alder, J. constitutional and Administrative Law, 5th Edition, Palgrave Macmillan Publishers, New York, 2005[/mfn].
The political significance of a constitution as a single document was stressed by the radical Tom Paine[mfn]8 Paine, T. Rights of Man, (ed. H. Collins), pp.93 and 207[/mfn] who said, a constitution is a thing antecedent to a government, and a government is only the creature of a constitution….
A constitution is not the act of a government, but of a people constituting a government, and a government without a constitution is power without a right.
It is to be noted that though many countries in the world adopted written constitutions the form, purpose, and content of their constitutions differ, however, De Smith[mfn]6 De Smith, S. et al, Constitutional and Administrative Law, 7th Edition, Penguin Group, England, 1994. [/mfn] writes, although written constitutions differ widely in their purposes, form, and content, they normally are found to have two characteristics in common.
the written constitution will be the fundamental law of the land and will be a kind of higher law.
the written constitution will be fundamental law in so as they designate the principal organs and invest them with authority; thus, it will constitute and define the Legislature, and state what is the scope of the law-making power and the procedure for exercising that power.
In other words, a written constitution will be the law behind the law- the legal source of legitimate authority.
It has been argued that written constitutions seek to avoid a concentration of power in the hands of anyone organ of government by adopting the principle of separation of powers, vesting legislative power exclusively in the legislature, executive power in the executive, and judicial power in the courts[mfn]Wade E. C. S. and Bradley, A. W. Constitutional and Administrative Law, Longman inc., New York, 1985[/mfn].
An unwritten constitution means a constitution that is found in various writings- in statutes, law reports,
parliamentary standing orders work authority, and so on, although
the authoritative and reasonably comprehensive document called the
‘Constitution’ is lacking.
the unwritten constitution is found in the United Kingdom where the foundation of the legal system is covered by the doctrine of the legislative supremacy of the parliament and therefore, much greater importance attaches to Acts of Parliament and also to judicial decisions.
Flexible or Rigid Constitutions
A constitution is flexible when it requires no special procedure for amendment.
Any changes that are to be done in a flexible constitution need not pass through a special procedure.
It is taken to be easy to amend a flexible constitution.
A rigid constitution is a type of constitution that requires a special procedure to be followed before it is amended.
A special procedure may take the form of a referendum.
A referendum is defined to mean a direct vote by all the people of a nation or area on some particular political question[mfn]1 Longman: Active Study Dictionary of English.[/mfn].
For example, the Tanzania constitution s rigid, and the procedure to amend the same is provided under Article. 98 of the said constitution.
However, De Smith observes, the rigidity or flexibility of written constitutions cannot be ascertained merely by comparing procedures for a constitutional amendment.
A constitution containing a cumbersome procedure for its own amendment may in fact be very flexible if there is no effective opposition to the party in power, and several modern states have authoritarian regimes.
Therefore, De Smith is of the view that flexibility is a matter of degree, which will not necessarily be predetermined by the formal procedure for a constitutional amendment.
Presidential or Parliamentary Constitutions
Presidential or Parliamentary Constitutions refer to a system of a particular country, whether presidential or parliamentary.
It bears much on the executive branch of government in relation to the legislature.
In Presidential constitutions, the President is both the head of the state and the head of the executive, but he is not a member of a legislative body directly.
Tanzania is a good example of a Presidential system.
In the Parliamentary system, the executive is the Prime Minister who is also a member and is responsible to the legislature, that is, he also sits in parliament when it makes laws.
The President if any, the Queen, or the King remains as head of state, a title that is a mere ceremonial.
Federal or Unitary Constitutions
The federal constitution is found in the Independent States that have come together in a form of a Union for certain reasons and interests, but they preserve their identity and some measure of independence.
The United States of America and Nigeria are good examples of nations that have a Federal constitution.
In the Federal constitution, there is a distribution of power between the federal government and the government of respective States forming the Federation.
A State has the power to make laws that will be applicable in its own territory.
It is possible for each State to have its own constitution etc.
A Unitary constitution is a type of constitution whereby the legislative authority is exercised by one Central power.
This is called a highly developed form of federalism.
In Unitary Constitution the Independent countries or states decide to come together and surrender their sovereignty and form a union.
Uk is a good sample of the unitary constitution.
Monarchical or Republican Constitutions
This class of constitution tells us nothing worth knowing about the form or the substance of government; hence, it is no longer a difference of any general importance.
It is possible that one can have an absolute monarch or very extensive personal discretionary powers (as in Nepal), or one can have very limited personal powers like in the United Kingdom.
It is also possible for one to have a President who is the head of the State but is not the effective executive head of Government (Germany is a good example), or one who is both head of State and head of Government like in the United States of America.
Single Party and other Constitutions
Obviously, a constitution under which only one party can legitimately operate tends to differ from one in which, at least ostensibly (presumably), freedom of political association is permitted.
A constitution for a single-party State is apt to be of a political manifesto.
In such a constitution, lip service (insincerity) may still be paid to the basic freedoms of the individual.
However, in some states with single-party constitutions (as in Uganda), there is more freedom of expression than in States with impeccably liberal constitutions (as in Zimbabwe).
Tanzania, with the 1965 Interim Constitution, was once a single-party state whereby the Party was supreme, over and above the Organs of the State.
However, with the Eighth Constitutional Amendment Act, 1992, Act No. 4 of 1992 a landmark change in the history of constitutionalism was experienced in the country.
The amendment introduced a big change in terms of political party style; it introduced a Multi-party system.
Diarchical and other Constitutions
A diarchical constitution can be defined to be as one in which there is a division of governmental competence between two or more authorities in the State otherwise than on a regional basis.
For instance, law-making powers may be divided between the Legislature and the Executive, the former having the power to pass laws within a defined field and the latter having an autonomous and exclusive power, derived directly from the constitution, to issue decrees, ordinances, or regulations within a defined field[mfn]Nicholas (1970) Public Law at p. 251 [/mfn]