Does every state have a constitution?
Perhaps yes, as even totalitarian regimes have laws which establish institutions which exercise powers. On that account, even monarchies have had a constitution. But on the other end of the spectrum, you have the Indian or the American constitution, which not only establish these institutions (Supreme Court, Election Commission, Parliament) but also limit how these institutions exercise power. But is that a necessary condition? Must constitutions limit power? What about a declaration on a piece of paper that Henry VIII can do whatever he wants to do? Should that not be considered a ‘constitution’? In this post, I argue that they should not. A piece of paper which establishes institutions but does not limit what they can do, is simply not a constitution. On that premise, I submit that North Korea can never have a constitution as Kim Jong Un can do whatever he wants to do. Before justifying why imposing limitations on institutions is essential, I discuss what are constitutions. I argue that constitutions are entrenched higher laws whose purpose is to contain disagreements by providing sufficient guidance. Considering this understanding of constitutions, the second part of the post examines what is constituting institutions. The last part posits that constitutions must also necessarily limit the powers of the institutions they constitute, in order to be constitutions. Simply put, while constituting institutions is a necessary function, it is not sufficient.
WHAT ARE CONSTITUTIONS?
Hans Kelsen in his work described constitutions as a higher law. In fact, it is necessary to see constitutions as a higher law. This is because every action of institutions established by constitutions have value only because of normative meaning conferred upon those actions by the constitution. For example, a bill passed by majority of the members of the Parliament in the United Kingdom (UK) is law which must be followed by everyone because the Constitution of UK authorises the creation of law in that manner. The corollary is that if a bill is approved by the Parliament in a manner which is not consistent with the requirement prescribed by the Constitution, it will not constitute law even if its defenders claim it be one. Similarly, in HLA Hart’s conception of law, constitutions are secondary rules of recognition which provide the authoritative criteria of identifying primary rules. If penal laws were not passed by a competent legislature, it would be open for the private citizens to simply ignore the content of the legislation thus passed. Thus, secondary rules such as constitutions, tell us how to differentiate between what is law and what is not. Therefore, on both Kelsen’s and Hart’s account, constitutions are higher laws which provide the mechanism of differentiating valid and invalid state action.
The second crucial quality of constitutions are that they are entrenched documents. Entrenchment implies a sense of permanence or at least rigidity against change. This quality of constitutions is best understood in contradistinction to ordinary laws. A law enacted by a legislature can be amended or repealed by complying with the procedure prescribed by the constitution. Typically, this would involve garnering support of majority of the legislators. But if the legislators can amend or repeal the constitution with the same ease as they change ordinary legislation, there wouldn’t be a material difference between constitutions and ordinary legislation. Maintaining this difference is important because constitutions reflect norms which are integral to not only the functioning but also the identity of the polities they establish. This is unlike ordinary laws which provide mechanisms to address specific problems. These mechanisms can change based on ideological, policy-based or day to day political considerations, unlike constitutional norms which should be protected from such changes (Esthar Ayut J, Movement for Quality Government in Israel v. the Knesset). Further, the benefit of entrenching constitutions is that it prevents frequent changes, and enables the polity established by the constitution to obtain stability. As such, most constitutions require either a super-majority or a referendum to effect a change. In some jurisdictions such as Germany and India, certain parts or features of constitutions cannot even be changed. Considering this understanding of Constitutions, the next part examines whether it is enough for constitutions to only constitute governmental and law-making institutions
WHAT IS CONSTITUTING INSTITUTIONS?
Constituting involves establishing bodies which possess legislative, executive and judicial powers, and defining the relationship between these bodies and the public. It could further involve prescribing the scope of the authority of these bodies, the manner in which they will operate, how their members will be selected or elected, the tenure of those members and the process to remove them from their posts. Constituting institutions enables constitutions to fulfil part of its role as a higher law. This function is part of a constitution’s role as higher law because the establishment of these bodies confers legal sanctity on their actions. Conferring legal sanctity enables constitutions to fulfil their integrative role of containing disagreements (Dieter Grimm). People may disagree regarding the efficacy of laws passed by legislature but they cannot dispute that those laws are binding upon them. Therefore, constituting institutions is a necessary feature of constitutions.
WHY IS CONSTITUTING NOT ENOUGH AND LIMITING NECESSARY?
There are several reasons why constituting is not enough, and constitutions must proceed to limit the roles of the bodies they establish.
First, if constitutions have to retain their crucial quality of being entrenched documents, they must impose limitations on law-making or governmental bodies. As mentioned above, entrenchment is necessary for two reasons – a) constitutions reflect integral norms; b) these integral norms should not be changed easily to confer predictability. Entrenchment is achieved by limiting the powers of the legislature or the executive from making changes to the constitution. This limitation can be procedural. For example, in India if the Parliament wants to amend the constitutionally prescribed jurisdiction of courts, it must obtain ratification of legislatures of at least half the states. The limitation can also be substantive, such as in Germany where the legislature cannot alter individual rights guaranteed by their constitution.
Second, and as an extension of the point made above, constitution must limit the legislature from enacting ordinary laws which are contrary to the constitution. If legislature could do so, it could effectively amend constitution without complying with procedure to amend it. In effect, it will indirectly be able to do what it is prohibited from doing directly.
Third, constitutions prescribe scope of institutions they establish and as such, must limit these institutions from operating outside their jurisdiction. Here, merely constituting bodies and assigning functions is not sufficient. Constitutions must also specify when the jurisdiction of one institution ends and that of other begins. In constitutions which establish parliamentary systems, this means that the legislature cannot confer administrative or executive responsibilities on legislators. It cannot grant monies to legislators to carry out developmental works in their constituencies because they would interfere with the domain of the executive. Similarly, the executive cannot typically perform legislative functions. Exceptionally, executive can enact ordinances if constitutions permit but there are limitations on such law-making power, such as the obligation to seek post-facto approval of the legislature.
Lastly, constitutions also limit institutions by prescribing the manner in which disagreement between institutions are resolved. This is because disputes are typically resolved by conferring a veto on one institution over the others. Common law constitutionalists would vest this veto in courts over other bodies. This would mean that if there is a question on whether the legislature has acted beyond its jurisdiction, the decision of courts would be authoritative. Those who believe in parliamentary sovereignty would vest this power with the legislature so that the courts cannot strike down legislative action or that executive must always act according to the will of the legislature. The point here is that this veto must be vested in some body irrespective of where it is in fact vested. If constitutions do not do so, disagreements between institutions would be resolved based on realpolitik rather than a method which is conferred with normative meaning. In my account, however, it is not necessary for constitutions to limit through a bill of rights, how executive or the legislature impinge individual rights. There are several constitutions such as the UK and Australia which do not have a bill of rights. Further, my description of constitution as higher entrenched laws whose singular purpose is to limit disagreement, does not require that constitutions also limit the state from restricting individual rights. My description, however, does require that powers of institutions constituted by constitutions are limited to ensure that: a) they respect the entrenched status of the constitution; b) they do not exercise power which has not been in them; and c) if they do exercise power not vested in them, there must be a prescribed manner of resolving disputes between institutions established by the constitution.
