T O P I C

2

CLASSIFICATION OF CONSTITUTIONS

W h a t t y p e s o f c o n s t i t u t i o n a r e t h e r e ? C a n w e s o r t t h e m i n t o d i f f e r e n t t y p e s a n d , i f s o , a c c o r d i n g t o

w h a t p r i n c i p l e s ?

LW308: Constitutional Law 2.2

T o p i c 2 c o n c e p t m a p

This map represents the core concepts that we will be covering in this unit, and the relationships between them.

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To p i c O v e r v i e w

In this Topic we will introduce the various systems of classification of constitutions. In turn this will help you understand some of the language used in constitutional theory. The process of classifying constitutions can be more useful than you might expect.

Different types of constitutions reflect different histories and different ideological premises at the time of formation. Consequently an ability to recognise a constitution as a particular type of constitution will give you a lot of information about how it works, what kind of governance institutions exist and how it should be interpreted.

Use PacLII and WorldLII for online legal research into primary resources. Use the Emalus Library student resources page of online assistance.

In this Topic we actually go a bit further than simply classifying different types of constitutions, we also look at the way individual components within any given constitution can be classified. You should remember that learning law is, to some degree, the learning of a technical language and acquiring the conceptual technique which has developed over time in a specific area. Constitutional law and theory has its own specialized system of identifying particular types of constitutional provisions.

We will introduce the various ways of classifying constitutions to try to impart to you some of the technical concepts involved. Remember that when we are introducing these principles we are basically talking about the different ways in which politics can be organised around a constitution. You might think that law has nothing to do with politics at all. In fact it has a great deal to do with politics and always will do.

T o p i c O u t l i n e � Introduction: What is a constitution supposed to achieve? � Criteria for Classifications

- Form

- Content

- Validity

- Adaptability � Relationship to other laws � Conclusion

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L e a r n i n g O u t c o m e s

Upon successful completion of this topic students will be able to:

� Describe several different ways in which constitutions can be classified; � Identify the defining features of particular types of

constitutions; � Explain the important differences between different

types of constitutions; and � Critically analyse the advantages and disadvantages of the

different constitutional traditions in the context of Pacific island countries.

C h e c k l i s t o f A c t i v i t i e s To complete this topic you must:

1. Read the topic guides;

2. Complete the listed readings for this topic; and

3. Complete the activities;

LW308: Constitutional Law 2.5

Introduction

W h a t i s a C o n s t i t u t i o n s u p p o s e d t o a c h i e v e ?

Over the years, philosophers, political commentators and jurists have developed various methods of classifying constitutions. These ways of classification have been adopted in order to assist people to analyse the essential elements of constitutions and compare and contrast them. You can see them discussed in the extract from the Encyclopaedia Britannica, vol. 5, 1977 which is part of your readings.

As we noted above, the idea of classifying something is to simplify an area of potential knowledge and make it more manageable. It is also useful as a starting point. The system of classifying constitutions came into Western political theory via the ancient Greek political philosophers.

We have mentioned Plato and Aristotle before. They are no doubt two of the most substantial contributors to the development of the conceptual tools of political theory. Some of the key concepts they invented we still use today, although perhaps in different ways than they intended.

Both Plato and Aristotle developed a system of classification of constitutions. Remember also that when they used the Greek term for constitution (politeia) this word did not mean quite the same thing as the sense in which a contemporary constitutional lawyer might use it. 'Constitution' to them meant something like the whole of the political system including the relationship which exists between a ruler and his or her people.

Although the actual classes of constitution they talk about are more or less the same, there is some difference between them on just what is to be made of the classification. In the case of Plato, it seems to have assumed that the classification system was based on some kind of cosmological or metaphysical principle such that one could predict the cyclical process of movement from one form of constitution to another. That is Plato saw constitutions as reflecting progress from more primitive types to more developed forms. Aristotle was more concerned to simply classify them according to their characteristics.

There are two intersecting criteria of classification. To these thinkers, a constitution was thought to be good in so far as it involves the ruler acting in the interests of others (the ruled, the governed, the citizens or the subjects) and bad to the extent that it involves a ruler acting (ruling) in his or her own private or selfish interest. Secondly, a constitution can be classified in terms of the degree of unity and disunity implied in it. Unity, in ancient Greek ways of thinking implies order and perfection, whilst disunity (and difference) implies the opposite i.e. disorder and chaos.

These two criteria for classifying constitutions as good or not good systems is still influential today. To simplify all of this, it can be said that the two criteria are: firstly whether a constitution encourages rulers to act in the interests of the general society, (fairness to all people) and secondly whether the constitution is capable of creating stability, order and unity.

Unfortunately the types of constitutions that may promote stability, eg absolute rule by a King who is born to rule, may not promote fairness to all people. A

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constitution that gives everyone an equal say in government might be very unstable as a form of government.

Plato and Aristotle thought that rule by a wise king (Monarchy) would be the ideal form of government, but unfortunately, experience has shown too many times that placing absolute power in the hands of one individual usually ends in disaster. Plato and Aristotle thought that democracy would be too unstable and that the masses would not be enlightened (wise) enough to choose good rulers.

Neither of them thought of democracy as a modern liberal democrat would think of it i.e. as a system of limited constitutional and representative government with guarantees of fundamental rights, the rule of law and a system of free and fair elections. That was a much later invention. In fact, one of the most important features of modern constitutions has been that they have attempted to balance the idea of stability of government and orderliness, with an ideal of ultimate rule by the people. In the end, modern constitutions have limited both the power of the people and the power of the rulers to achieve this balance. Whether this balance is being achieved in any given society at any given time is an open question.

Activity 2.1

Pause there for a moment. Do you think that the dual criteria of fairness and stability are a good way of classifying constitutions or fairly useless? Are all monarchies necessarily good systems of government because they may be more stable? or is democracy sometimes bad because it can be unstable? Is monarchy unfair?

Which is the more important of the two, fairness or stability?

Is it possible to achieve fairness without some level of stability?

Think about these issues for a moment and write down some point that you can review later on.

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C r i t e r i a f o r C l a s s i f i c a t i o n s

The issue of fairness and stability is not so much a means for classifying types of constitutions or components of constitutions, it is more a criteria for assessing how effective a particular type of constitution is at achieving these two commonly valued objectives.

Some bases that have been used for classifying constitutions and components of constitutions are:

� form; � content; � validity; � adaptability; and � relationships with other laws.

We will now look at each of these in more detail.

F o r m

Form

Written/ Unwritten

Legislative/ Conventional

We just investigated theories that classify constitutions according to the type of rule they produce, another method of classification that is often used of constitutions of states based on the form in which the constitution is expressed: that is to say, whether it is written or unwritten, and whether it is expressed in laws or in conventions.

i ) W r i t t e n / U n w r i t t e n

If there is a one document (also taken to be a law) which called the Constitution, the constitution is often described as written. If there is no such single document or paramount law, the constitution is described as unwritten constitution.

The terms "written" and "unwritten", although often used are, in fact, not entirely accurate and may be misleading. The term "written" is not entirely accurate for two reasons: first, there may be parts of a written constitution that are not written at all. These could be parts which are governed by constitutional convention, or by well established practices. Areas such as the procedures and practices of the parliament are often matters which are not expressly stated in constitution, although this varies from place to place.

For example, in the Australian national Constitution of 1901 the roles of the Cabinet, the obligations of responsible government and the office of Prime Minister are not mentioned. Yet these are assumed on all sides to be part of the

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basic fabric of the political system which was inherited from the former colonial power, Great Britain. They were not stated because they were assumed to be obvious in their application. In the 1997 Constitution of Fiji Islands, however, the Constitution is very detailed and explicit on matters such as these. Perhaps this fuels an argument that the British conventions have been displaced, although this has not been clearly established. See for example conjecture about the emergency powers of the President in the 2000 attempted coup in the following reading.

R e a d i n g 2 . 1

THE POWERS OF THE PRESIDENT IN FIJI By Professor Bob Hughes* http://www.vanuatu.usp.ac.fj/journal_splaw/Special_Interest/Fiji_2000/Fiji_Hughes1.html

Accordingly, there may be parts of the constitution which are written, but are not contained in that document or law which is called the Constitution. Examples here include legislation, subsidiary legislation, and the judicial decisions of the Courts and ensuing principles of common law that are of constitutional significance. We will go on in later topics to examine these extra sources of constitutional law in more detail.

Unfortunately the term "unwritten" is also not entirely accurate because there may be parts of an unwritten constitution which are in fact written. The constitution of the United Kingdom for example is considered to be unwritten in the sense that there is no single document known as the constitution. It consists of many constitutional documents which reflect significant moments in the constitutional history of the country, such as the Magna Carta, the Act of Settlement of 1700 and several others. These documents along with established conventions and practices such as those of responsible government make up a complex set of instruments and conventions that interrelate. Such a constitutional system is considered to be unwritten.

It may seem odd to you that Great Britain has an unwritten constitution that has evolved over many hundreds of years, yet most countries that adopt a British style legal system choose to enact a single written constitutional document. There is a good reason for this. The British system is in effect the customary law of Great Britain. It is well understood and respected in Britain, but where an attempt is made to transplant such a system to another country and to other cultures then it is seen as necessary to spell it out in a written document.

What the terms written and unwritten really mean is that the principles of the constitution have not been codified into one principal document, called the Constitution "Codified" and "non-codified" would therefore be more accurate terms to use with regard to the form of a constitution but the terms written and unwritten have been used for so long that they will probably continue to be used, even though not completely accurate. Look for an example at the decision of the Supreme Court of Marshall Islands in In re Nitijela as an illustration (http://www.vanuatu.usp.ac.fj/library/Paclaw/MarshallIslands/MIRLR.pdf). The court in such a case is ruling on the legality (or constitutionality) of procedures surrounding the Nitijela (parliament/congress) of the Marshall Islands. In doing

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so the court is adding to, if also clarifying, the constitutional makeup of the country.

Activity 2.2

Read the decision of the Court of Appeal of Solomon Islands in Bill Hilly v Pitakaka and others. http://www.paclii.org/sb/cases/SBCA/1994/1.html

The court here is ruling on the powers of the Governor General who, as the Queen’s representative is the symbolic head of the country. The ruling adds to the constitutional basis of the role of the Governor-General.

The case involved a constitutional crisis and a question of whether the governor general could take certain actions to resolve the crisis. What did the court decide on the question of whether the governor general was obliged in this instance to act only upon the advice of the prime minister?

The advantages of written constitutions is that most of the primary constitutional provisions are more conveniently available to people. They are contained in one document or law, which can be more directly followed by both officials of government and the people who are governed. However, the disadvantage of a written constitution is that it is contained in one law which is given special status, it may be difficult to change to adjust to changing circumstances.

The advantage of an unwritten constitution is that it may be readily adjusted to changing circumstances that develop. The disadvantages are that it may be able to be changed so quickly as to provide no adequate guide or control for the actions of people.

i i ) L e g i s l a t e d / c o n v e n t i o n a l

Another method of classifying parts of a constitution is by considering whether they take the form of law or that of convention. It is to some extent a matter of degree either way whether a constitution is predominantly legal or conventional. Some mixture of both elements is the norm. This is because it would be impossible for written words to cover every single circumstance. In a sense, the written constitution becomes the skeleton around which the day to day practices take place and continue to develop. For this reason classification on the basis of legal vs. conventional is more useful for describing the different elements of a country’s constitution (written sections and traditional conventional practices) than for comparing systems

Most constitutions in the world today, including in the USP region, are expressed as laws or supreme laws, and so are described as legal. These laws are more precisely the legal effect of the provisions in the written Constitution, legislation, subsidiary legislation and principles of common law. The reference to "legal effect' means that the words have to be interpreted by a court.

However, some parts of constitution, particularly the British constitution, take the form of established practices, or constitutional conventions, and are described as conventional. In the British constitution, for example, notions of responsible and

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representative government the relationship between government and the monarch are almost wholly matters of convention and tradition.

The advantages of a constitution being expressed in laws (at least those which are in writing) is that the writing is available for people to read (although in truth few read it or know about it). It is also expressed, supposedly, in black-and white. However, we will see plenty of instances where it becomes clear that words seldom mean just one thing and just as seldom do they have any clear and straightforward meaning. We will deal with issues of constitutional interpretation by courts later on.

The disadvantage of a constitution being expressed in laws is that these are difficult to change. Because they are so difficult to change, they may be too inflexible. The particular Constitution might have been written some time ago and does not provide sufficient guidance or directive for the actions of the governments of the country.

In Australia the federal constitution can only be changed by referendum. Only a handful of referenda have been successful since 1901. The powers of the federal government are defined by the Constitution but it is clear that they are in need of revision. They are out of touch with the realities of modern political life. Even so, this does little to convince the people that change is appropriate as they fear that the government proposing the change is merely doing so to advance its own interests.

On the converse, it is sometimes said that the disadvantage of it being in the form of established convention, is that these are too easy to change or, perhaps, require no procedures at all for people to change them. Thus they can be changed whenever people wish to do so.

A problem can arise with conventions, when they are broken, there is no clear line of legal recourse. In Australia in 1975 there was a constitutional crisis because several long standing conventions were broken as a means to removing an elected government. A Senator died and was replaced by a senator from a different political party than the deceased senator, then the upper house blocked the supply of money to the government and finally the Governor General sacked the elected government. Each of these actions breached established conventions, in particular the governor general went well beyond the conventional powers of the British crown in sacking an elected government. Despite this, no legal recourse was available to the sacked government because the matters were based on convention, not on written laws in the constitution.

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C o n t e n t

Content

Unitary/ federal

Monarchy / republic

Totalitarian/ democratic

Westminster /other

Sometimes it is useful to classify constitutions according to their contents, particularly what system of government they establish. We have seen some examples of this already above and in the last Topic. The main kinds of different systems are:

( i ) U n i t a r y o r F e d e r a l

A constitution which provides for the important powers of government to be possessed or controlled by bodies located in one part of the country, is often called a unitary or centralist constitution. This is because it provides for governmental powers to be concentrated in one place or centre. The one set of government institutions has final authority for the whole of the country, although there might be several subordinate regional institutions as well. All countries in the USP region (except FSM) are of this kind. Fiji and others have municipal and provincial councils but these do not have independent authority. The central or national government can override them as a matter of law. The key way of identifying whether a country has a unitary system is to ask yourself: “How many parliaments are there?” if there is only one parliament then it is unitary.

If the constitution provides for some substantial legislative power to be exercised from other parts of the country, usually called provinces or states, and these are largely independent from the governmental bodies at the centre of the country, the constitution is called federal or federalist. The constitutions of Australia, Canada, U.S.A. Switzerland and Malaysia and, closer to home, Federated States of Micronesia, are of this kind. The key difference is that states in a federation have some powers that they are legally entitled to exercise without interference from the central government.

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Some national models

Unitary system

UK, NZ

Federal system Australia, US

National

One national

Confederate system

government

government E.U. The states state state

state state

A federal constitution creates two layers of government which coexist and are equal in authority; i.e. they are coordinate rather than subordinate. Federalism divides political authority. It caters for central national government whilst also catering for regional self-government. The national constitution provides for a division of powers between the two levels but there are different ways in which this can be done. The national government might have defined powers with the rest of the powers left to the States (as in Australia). Or the regional or provincial governments might have defined powers with the rest going to the national government (as in Canada).

The most extreme form of federal government occurs when the outlying parts of the country (regions, provinces or states) possess all, or virtually all, important powers of government with regard to their internal affairs, so that it is only with regard to external affairs that the central governments possesses substantial powers. However even in those cases (Australia began with this kind of model in 1901) the balance of power can shift dramatically over time to the central national government.

A federal government is to be distinguished from a confederacy or confederation. In the case of the latter there is no new national entity created at all. There is an aggregation of member states who agree on various common policy areas. The constitution of parts of Fiji in the nineteenth century has been described as confederation and the New Hebrides in 1980 was also a constitution of this kind. Nowadays however there are no constitutions in the USP region which are confederate in character. The European Union is probably the best example of a confederacy because despite the existence of a European parliament, each member nation maintains its own national sovereignty.

The advantage of a unitary constitution is that it provides for a single system for making and administering government policy throughout the country, avoiding duplication of personnel, time and expense, and excessive influence by purely local interests. However in practice, as for example in the United Kingdom and France the forces of regionalism are very strong with constant demands for regional self government and decentralisation. The disadvantages of such a

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constitution is that such policy making and administration may result in inadequate attention by governmental to local needs and aspirations.

The advantage of a federal constitution is that it may allow for policy making and administration that takes full account of local needs and wishes. It provides the benefits of both unity and diversity within the political system at the same time. The disadvantages of such a constitution are that it may allow for policy making and administration to be so subject to local interests. It is difficult to obtain cohesion, consistency and efficiency on those matters, even where that is desirable from the point of view of the country as a whole. It is expensive and confuses lines of authority. It duplicates citizenship and multiplies bureaucracies, legal systems, courts and legislatures amongst other things.

One advantage of a federal system is that by sharing power among several entities it is more difficult for a totalitarian form of government to emerge.

i i ) M o n a r c h i c a l / R e p u b l i c a n

This distinction relates to the way that the head of state is selected: whether he or she is a hereditary monarch, or an elected president. Historically a monarchy was a system in which the monarch held significant power (sometimes even absolute power). In modern times many monarchies have become more democratic passing legislative power to a parliament but still maintaining a formal hereditary monarch as head of state. Republican systems are those which have no hereditary positions.

The Constitution of Tonga provides for King and his heirs to be the Head of State. Go to the Constitution of Tonga. http://www.paclii.org/to/legis/consol_act/cot238/

Read clause 38 regarding the relationship between the King and the Parliament of Tonga. This is an unlimited or absolute monarchy in effect because the king retains significant control over legislative (law making) activity. So the Constitution of these countries can be described as monarchical in character.

The constitution of Cook Islands, Niue, Solomon Islands, Tuvalu, as well as Papua New Guinea, Australia and New Zealand provides for the Queen to be the formal Head of State. The English monarch has a Governor or Governor-General to act as the monarch’s representative in the country. These are more in the nature of constitutional monarchies because the constitution imposes strict limits on the power of the Head of State. Go to the Constitution of Solomon Islands http://www.paclii.org/sb/legis/consol_act/c1978167/ and read sections 1 and 27. These sections appear to confer absolute power but then read section 31 which places limitations on the Governor-generals right of action. This is a standard provision of responsible government systems on the United Kingdom Westminster model.

The Constitution Kiribati, Marshall Islands, Nauru and Vanuatu and more recently Samoa provide that the Head of State shall be a president elected by the legislature (Kiribati, Nauru), or by an electoral college (Vanuatu) or by Parliament (Fiji).

.

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Activity 2.3

Go to the Constitution of Vanuatu http://www.paclii.org/vu/legis/consol_act/cotrov406/ and find the sections of that constitution that detail how the head of state is to be selected.

How is the head of state selected in Vanuatu?

Is this typical of a monarchical or of a republican system? Explain your answer.

It is important to notice that the name given to the Head of State does not indicate clearly their powers. The Queen as monarch has very few powers, whilst the King of Tonga used to have a very wide powers of government, but was limited after the amendment to the Constitution in 2010. The President of Fiji and especially the President of Vanuatu have very limited powers, whereas the Presidents of Marshall Islands, Nauru have much wider powers of government. So the name of the office of the Head of State is neither an accurate description of the power of the holder of the office nor does it tell us much, independently of the particular constitution, of the range of powers of the office bearer.

The advantage of a monarchical constitution is that the head of state holds office for life and can give some stability and continuity to the political system. It is not necessary for difficult decisions to have to be made at frequent intervals as to who should be the head of state. Moreover, the head of state may acquire a personal adherence or loyalty which may help to unify and stabilise the country. The disadvantage of a monarchical constitution is that if the monarch is not well- suited, well-trained, competent or honest enough to perform the office, he or she may cause considerable instability or disaffection. Also, if the monarch dies having no children or only young children there might be great difficulties in choosing a successor who is acceptable.

The advantage in relation to a republican constitution is that it sets up a system for electing the head of state. It can also define who potentially can hold office. It might not be open to all citizens or all classes of citizens. The disadvantage of a presidential system is that the elections may not be very representative of community feeling, and the voting may become very highly politicized.

There is a very significant underlying ideological difference between a republican system and a monarchy. Republicanism asserts that all political power ultimately is derived from the people, whereas, however monarchical systems however democratic they may have become continue to assert that some person has a right to office by virtue of birth. This has some repercussions; the members of a republican country are equal citizens in the fullest sense, whereas the members of a monarchical society are known as subjects, which implies subservience to the monarch.

( i i i ) T o t a l i t a r i a n / d e m o c r a t i c

A totalitarian constitution is one which provides for the government of the country to be totally controlled by one person or group of persons, allowing no

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opposition or rivals. Many would regard the term totalitarian constitution as a self contradiction or oxymoron.

The term totalitarian derives from Hannah Arndt’s work referring to political systems which emerged in the Soviet Union, Germany and Italy between the two World Wars. They were totalitarian in many senses. They allowed no opposition to the ruling Fascist, Nazi or communist parties. A dictatorship is perhaps the same thing but conventionally this refers to the rule of just one person rather than a party organization. There might be little difference in fact. Fascists generally run totalitarian regimes that favour business interests and may also be very racist, communist regimes are also usually totalitarian but tend to resist the power of local and international business interests.

Under a totalitarian system the ruling party can interfere with and control the most basic private aspects of a person's life. There was no area that we might call freedom of the individual. There was nothing whatsoever, such as law or the courts which mediated and protected individuals from interference by the public realm. There was in effect no rule of law.

The advantage of a totalitarian system is that it allows for all of the energies of the government to be directed at carrying out its mission for the country. The government is not distracted by having to play the democratic game. It is not a system where government is dependent on popular support. Most of these governments claim to be highly efficient and committed to some form of social engineering to improve the country for the benefit of everyone in the long run by creating extreme burdens and disadvantages in the short run. They are often committed to some extreme and perverted kind of nationalism and are frequently militaristic. Courts, lawyers and laws might exist but they are usually there merely to carry out the wishes of the ruling party or elite.

There isn't any law which protects the basic rights and freedoms of individuals or groups. The disadvantage of a totalitarian system is that the policies of the government may not be for the good of the country as a whole. In fact they are usually for the benefit for the elite themselves. These regimes are usually militaristic and committed to warfare. Human dignity counts for nothing and whilst they often come to power proclaiming great economic and social reform and improvement they are usually total failures.

We have already said a little about democracy. Its classical sense is perhaps of a system in which the people have a very high level of participation in their own self government. We might well agree with Abraham Lincoln's idea to the effect that democracy is government of the people, by the people and for the people. But this is very difficult to translate into a system which works acceptably in practice.

We now tend to talk of democracy in terms of what should be described as liberal democracy. It is closely tied to the ideal of constitutionalism that we have already examined. A democratic system is one which allows for alternatives to governments to be established and to seek popular support pursuant to a system of free and open elections and a party system. Democracy seems to indicate as well a need for the imposition of limitations on the powers of those who govern such that a person in power is prevented from gaining absolute control.

The doctrine of separation of powers is something that we can look at later on in the course. It seems to require that the rule of law is firmly established such that

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everyone is accorded the same legal and political rights. It also seems to require that the system is in some sense just and fair such that some individuals do not have greater opportunities than others or are conferred special privileges as far as possible. Finally, one would expect that the system provides certain protections to individual citizens against arbitrary interference by the state or those who govern.

The advantages of a democratic system are usually taken as follows. It can provide for alternative policies to be developed, some of which may be better than these adopted by the government, and the government may be pressured to adopt these, or if not, it can be removed from powers, and replaced by a government that does adopt better policies. This helps promote stability because it provides a mechanism whereby people’s dissatisfaction with government can be addressed.

It provides at least some sense in which people have a say in their own government even if that is a matter of voting in infrequent elections. Individual rights and freedoms are protected and the law creates some sense of equality.

The disadvantages of democratic systems are that they do not achieve substantive social justice. Western capitalist systems thrive on individual liberty but do little for community life. Whatever the rhetoric of equality and opportunity they are in practice usually systems of elite control. A significant problem emerging for modern democracies is the growing power of multi national corporations. Many smaller nations simply do not have the economic power to resist the will of large corporations, which are able to play small governments off against one another in return for capital investment. Often the people of the country will not like the outcomes but the governments will feel powerless. Corporations also have achieved significant control of media outlets in developed countries which also perverts the democratic process by denying people ready access to unbiased reporting.

Maintaining democracy requires more than just a democratic constitution, it requires widespread respect for democratic values throughout the community, leaders, government, business, the media, police and the military. Many countries end up as democracies in name only because powerful groups such as the military impose effective control.

Democratic values are under pressure around the world at the moment because of the fear of terrorism. Many governments use this fear as an excuse to curtail individual political rights, and expand the use of secret police forces, political crimes and surveillance.

Democracies can become totalitarian, either gradually the way Hitler obtained control of Germany in the 1930's, suddenly through coups and foreign interference as happened in Chile in 1973, or simply drift that way because the media and governments control the flow of information to the population and use fear to make them accept undemocratic practices.(The war on terror)

( i v ) W e s t m i n s t e r c o n s t i t u t i o n / n o n - W e s t m i n s t e r c o n s t i t u t i o n

The United Kingdom model of responsible government is normally called the Westminster model. Naturally enough many former colonies of the United

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Kingdom have adopted this model. Especially after World War II, Britain became determined to concede greater independence to as many of it’s oversees dependencies as possible. Usually it promulgated for them written constitutions which had contained common features : protection of fundamental rights and freedoms for individuals against governments; constitutional limitations are placed on the Head of State parliamentary sovereignty, separation of executive, legislative and judicial powers of government; a system of representative government where politicians are elected in open elections, a cabinet style of government where the majority party after an election appoints Ministers of the Crown (or Republic)who are responsible individually and collectively for the workings of government departments, and a parliamentary executive i.e. an executive which is responsible to, and dependent for support on, an elected legislative.

Thus constitutions which have these common features or some variant of them are said to have the Westminster model of government. Generally the features involved here were features which were in fact part of the British system of government in the late nineteenth century.

All of the constitutions enacted for countries of the South Pacific after World War II follow the Westminster model. The Constitution of Tonga enacted in 1875 is not of this kind in that it does not contain a very full protection of fundamental rights and freedoms, nor does it contain a parliamentary executive; the Prime Minister and minister of Tonga are appointed and dismissed by the King not by the Legislative Assembly. However, the amendment to Tonga’s Constitution in 2010 provides for the king to appoint the Cabinet Ministers on the advice of the prime minister, who may nominate to ministerial posts, not more than four persons who are not elected representatives (clause 51(2)). The prime minister and elected representatives of cabinet remain as representatives of their electorates.

V a l i d i t y

Validity

Overthrow Termination

Justiciable/ non- justiciable

Nominal/ normative

Entry into force

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Constitutions may be classified according to whether they re recognised by the courts as valid and binding, or whether they are regarded by the courts as invalid and not binding.

The validity of a constitution depends upon two factors; first, whether it has been made in a way that is recognised as valid, and secondly, if it has not been made legally, it has been made as result of a forceful overthrow of existing governmental institutions which the courts have subsequently recognised as effective.

i ) O v e r t h r o w

Normally, of course, a constitution is made by lawful means, for example by popular consent after a series of pre-constitutional meetings or conventions and is accepted as valid, as is the case with most of the constitutions in the South Pacific.

Occasionally, however, attempts are made to make constitutions by means which are unlawful: either the people who make the constitution do not have authority to make a constitution, or they do not follow the legal procedures prescribed for making a constitution. Alternatively, as with the Fiji military in May 2000 and 2006 there might have been some invalid abrogation of an existing constitution, but a belief that whatever the legality of the abrogation, the new regime has been legitimated by popular acceptance or as a matter of necessity. This argument appears on behalf of the Republic of Fiji Islands in Prasad’s case but was rejected by the Court. See Republic of Fiji Islands v Prasad. This was again tested in the High Court and Court of Appeal of Fiji the Qarase v Bainimarama [2009] FJCA 9 case. You can read this case to see how these courts look at the issues relating to the 2006 coup.

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R e a d i n g 2 . 3

Peruse the case of Republic of Fiji v Prasad 2001

http://www.paclii.org/cgi- paclii/disp.pl/fj/cases/FJCA/2001/2.html?query=title+%28+%22republic +of+fiji+v+prasad%22+%29

Do you think the courts will reach a similar conclusion in relation to the most recent coup?

In some cases common law courts have been prepared to accept that such a constitution is valid and binding if the parties making the constitution have forcefully overthrown the existing government and legal institutions established by it, and are in fully effective control of the country. In Mitchell & Others v. Director of Public Prosecutions & Another [1986] LRC (Const.) 35, approved in Prasad’s case in the first instance, Court of Appeal said:

A revolutionary regime should not be accorded legitimacy by this Court unless it is satisfied that, on the whole, the regime had the people behind it and with it. Legality should be achieved only if and when the people accept and approve for in them lies political sovereignty and the Court so finds. This approval they may give ab initio or subsequently. Length of time might or might not be sufficient to infer it. It might be expressed or tacit approval.

Once a constitution is held to be invalid it has really no advantage. As soon as people know that a constitution will not be enforced by the courts, they will not comply with it, nor expect others to do so, and it thereafter serves no useful purpose It can in effect be disregarded and ignored.

Arguments about the validity of a constitution may also take place where there is a dispute at international law about which country or group of people has sovereignty over a particular area. This sort of dispute has arisen in relation to Indonesia's occupation of East Timor and West Papua.

Even although a constitution may be valid, parts of it may not be enforceable, either in law or in fact. Accordingly, constitutions may be classified according to whether aspects of them are enforceable in law or in practice, or not.

( i i ) N o t e n f o r c e a b l e i n l a w / n o n j u s t i c e a b l e / e n f o r c e a b l e i n l a w , j u s t i c e a b l e

Usually all the legal provisions of a constitution are enforceable in law by the courts, or, as it is technically termed, they are justiciable. This follows from the idea that a constitution is the supreme law of the country, as we mentioned above. Occasionally, however, parts of a constitution may be stated, expressly or impliedly, to be not enforceable by the courts, or, as it is more technically termed, non-justiciable.

This is in fact rather common in areas where the framers of the constitution wish to create expectations but do not want to create provisions which citizens or governments can enforce for politically sensitive reasons. Constitutions which

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contain expressions of civic duties on the part of citizens normally state that these provisions are not justiciable. Section 78(3) of the 1990 Constitution of Fiji, section 88(3) of the 1970 Constitution of Fiji section 6 of the 1997 Constitution of Fiji, section 31(3) of the Constitution of Solomon Islands, section 39(3) of the 1978 Constitution of Tuvalu, and section 52(2) of the 1986 Constitution of Tuvalu, are all expressly stated to be not enforceable in a court. Likewise Article 7 of the Constitution of Vanuatu is expressly stated by Article 8 to be non- justiciable. Section 57 of the 1970 Constitution of Fiji was held by the Court of Appeal of Fiji in Madhava v Favley (Readings 1/7) to be non-justiciable, at least so far as it related solely to the internal proceedings of the legislature, and the same view may be taken by the courts of other countries to similar provisions unwritten constitutions which relate solely to the internal proceedings of a legislature.

The advantage of a justiciable constitution is that it can be applied and enforced by the courts so that people will have an incentive to act in accordance with it. The disadvantage of a justiciable constitution is that enforcement by the courts may increase the risks of conflict between the people involved or between the courts and some of the people involved.

The advantage of a non-justiciable constitution is that it provides a guide which may influence what people are to do willingly, where they would be unwilling to do if ordered by a court. Thus it avoids the courts coming into conflict with people who might be able to destroy them or render their work very difficult. The disadvantage of a non-justiciable constitution is that it may be ignored by people.

( i i i ) E n f o r c e a b l e i n p r a c t i c e ( n o r m a t i v e ) n o t e n f o r c e a b l e i n p r a c t i c e ( n o m i n a l )

Most parts of a constitution are in fact respected and obeyed by the people, and carried out in practice. Technically, the Constitution is then described as normative: it is the norm or standard of practice; i.e. what is actually done on a day to day basis. Most parts of constitutions in countries of the USP region are normative.

Sometimes one finds however that parts or all of a constitution are not in fact respected or obeyed by people. Such parts of a constitution are then described as nominal- they exist only in name (from the Latin nomen for name) not in fact or reality.

The advantage of a normative constitution is that people in fact act in accordance with it, and can expect that other people will act in accordance with it also. The advantage of a nominal constitution is that it may serve as a guide or directive for the people of the country to change from their current pattern of conduct to a pattern of conduct that is more in the long term interest of the country. The disadvantage of a nominal constitution is that it may indicate a pattern of conduct that is inappropriate to the current circumstances of the country, or that is just ignored by the people or their government.

The obvious question which emerges currently is whether the 1997 Constitution of Fiji is a normative constitution that is being obeyed and respected or whether it has become nominal since the most recent coup.

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Activity 2.4

Read the terms of the State of emergency declaration of 2006 (reading 2.4)

1. Does this declaration suggest that the constitution is being treated as a normative document or merely as nominal?

2. What do events since that time suggest about whether the 1997 constitution continues to have normative force in Fiji?

( i v ) E n t r y i n t o f o r c e

A valid constitution may have been enacted, but it may not be currently in force. This might be because it has not entered into force as yet, or because it has been terminated. Accordingly, constitutions may be classified according to whether they are currently in operation or as not in operation i.e. inappropriate.

Sometimes constitutions are enacted but do not enter into force until some time afterwards. Constitutions may therefore be classified according to whether they are in force or operative, or not in force or non-operative.

One reason for delaying the entry into force of a constitution could be that some additional appeal or consultation is required to be undertaken or completed before it comes into force. Thus if a written Constitution is to be submitted to a referendum of electors of the country or to the likes of a council of chiefs for ratification or endorsement after it has been enacted, it will not come into force until such time these necessary steps have been taken. Thus the written Constitution of (Western) Samoa was enacted by the Constitutional Convention in 1960, but did not come into force until 1 January 1962 because it had to be submitted to the electorate for approval, which was done in May 1961.

Another reason for delaying the entry into force of a constitution could be that some preparatory work needs to be undertaken by government administrations to prepare for changes that will be produced by the constitution. Again note that the Constitution of Samoa, although endorsed by the electorate in May 1961, did not come into force until over 6 months later to enable the necessary administrative changes to be made to amend the UN trusteeship administered by New Zealand into an independent state. Again the Constitution of Vanuatu although was enacted in October 1979 was not brought into force until 30 July 1980 to enable the necessary administrate changes to be made to cement the British-French condominium into an independent State.

( v ) T e r m i n a t i o n o f c o n s t i t u t i o n , r e p e a l ,

r e v o c a t i o n / a b o l i t i o n , a b r o g a t i o n

A valid constitution which is in force may cease to operate if it is terminated. Termination of a constitution may be brought about lawfully or unlawfully.

If a constitution or parts of a constitution are terminated lawfully, i.e. by the persons authorised by law to do so and in accordance with the procedures prescribed by law, the constitution is usually described as having been repealed or

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revoked. Thus the 1978 Constitution of Tuvalu was repealed by section 6 of the Constitution of Tuvalu Ordinance 1986.

On the other hand, if the constitution is brought to an end unlawfully - i.e. by person not authorised to terminate it, and/or not in accordance with the procedures prescribed by law for terminating the constitution - then the constitution or the part that has been terminated is usually described as having been abolished or abrogated or removed. Thus the Fiji Constitution 1970 was with effect from 25th day of September 1987, wholly removed.

A d a p t a b i l i t y o f a C o n s t i t u t i o n

A d a p t a b i l i t y o f C o n s t i t u t i o n

Special procedures = entrenched constitution

Referendum Special majority

Other procedural requirements

No special procedures for change = not entrenched

It is sometimes convenient to classify a constitution according to the ease with which it may be changed or its adaptability.

Parts of a constitution that may be changed easily, (e.g. that require no special procedures beyond those required for an ordinary law), are usually described as flexible. The legislation and principles of common law that form part of the constitution are in most countries flexible; that is to say, they can be changed like any other legislation and principles of common law. In the 1990 unwritten Constitution of Fiji some parts were in fact flexible.

Parts of a constitution that require a special procedure in order to be changed are sometimes described as 'entrenched' rigid or as non-flexible. Some parts of constitutions in the USP region are entrenched or rigid in that a special majority in the legislature is required to amend them. The Constitution of Niue (s35) and those of Samoa and Vanuatu also require that certain constitutional amendments, after being approved by the legislative, must be submitted to the elective for endorsement. Some constitutions require that there cannot be an amendment of certain sections of the Constitution unless a report has been presented to the legislative relating to the amendment which it can consider; i.e. articles 32 and 33 Constitution of Niue, section 77 (6) 1990 Constitution of Fiji.

The advantage of a flexible constitution is that it can be changed easily so as to adapt to changing circumstances in the country, and to ensure that hostility

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towards the parts of the constitution does not reach a point where people will react violently and social disorder will breakout.

The disadvantage of a flexible constitution, and the advantage of a rigid constitution, is that if that constitution, or parts of it, can be changed too easily, by a simple majority, the rights and interests of minorities may be removed or seriously prejudiced by the majority, or decisions may be made by the majority without adequate information or assessment.

R e l a t i o n s h i p t o o t h e r l a w s

Relationship to other laws

Supreme: Constitution can override inconsistent laws

Subordinate: Later laws can implicitly override constitution

i ) S u p r e m e ( p a r a m o u n t ) o r s u b o r d i n a t e

Constitutions may be classified according to the relationship they bear to other laws in the country.

If parts of a Constitution have greater legal force than all other parts, so that if they are in conflict they can convert them, and reorder them ineffective as void, then these parts of the Constitution are described as being supreme or paramount. If however, parts of a constitution do not have any greater force than other laws, so that if they are in conflict with these other laws, they do not override them and render them void, but will be overridden by them, then those parts of the constitution are described as subordinate.

Where there is a written Constitution, as in all countries of the USP region, except Tokelau, the provision of the written Constitution are usually stated to be supreme, so that if there is any conflict between them and other laws, they override the other laws.

Although it is usual for the provisions of unwritten Constitution to be supreme, it is not essential. The terms of the New Zealand Constitution Act 1852, for example, are not supreme, and have been amended and repealed as a number of occasions.

Legislation, subsidiary legislation and principles of common law which form part of the constitutions of countries in the USP region in then wider sense are not

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usually stated to be supreme, and so may be amended in repealed in the ordinary way i.e. subsequent legislation and subsidiary legislation will repeal earlier legislation and subsidiary legislation which is inconsistent with it, and will set aside principles of common law that are inconsistent with it, provided the meaning is plain.

The advantage of parts of a constitution that are supreme is that they cannot be altered by other laws and will override other laws to the country and as they cannot be altered easily. The disadvantage of parts of a constitution that are supreme is that they may represent, or may come to represent, values or interest that should not be isolated against change, and so may entrench within the legal system values or interests that cease to have general support in the community.

C o n c l u s i o n In this topic we have considered the main fractions that have been used as a basis for classifying constitutions or the components of constitutions. The purpose of this is to make it easier for comparison and assessments to be made of the various constitutions. These features are:

� form of constitution; � contents of constitution; � validity of constitution; � adaptability of constitution; and � relationship with other laws.

K e y T e r m s a n d P h r a s e s

Written constitutions Are those in which most (but not all) of the important rules about governance have been codified into a single written law called the constitution.

Unwritten constitutions

Are those in which there is not a single principal legislative source of rules about governance but these are contained in various written documents and unwritten practices and conventions.

Conventions Although constitutional conventions is a term that can also refer to specific bodies established to write new constitutions, in this topic it refers to established practices that although they may not be written have become an established part of constitutional practice in a country.

Unitary constitution A constitution which provides for the important powers of government to be possessed or controlled by bodies located in one part of the country is often called a unitary or centralist constitution.

Federal constitution If the constitution provides for some substantial legislative power to be exercised from several different parts of the country, usually called provinces or states, and these are largely independent from the governmental bodies at the centre of the country, the constitution is called federal or federalist.

Monarchical system a constitutional system in which the position if head of state is occupied by an hereditary monarch (king or queen).

Republican system Systems in which there is no hereditary monarch and the head of state is a president usually chosen directly or indirectly by the people.

Totalitarian system A totalitarian constitution is one which provides for the government of the country to be totally controlled by one person or group of persons, allowing no opposition or rivals.

Democracy A democratic system is usually one which allows for alternatives to governments to be established and to seek popular support pursuant to a system of free and open elections.

Westminster systems Constitutional systems based upon the English model in which there is a separation between the head of stat (monarch or president) and the head of government (prime minister).

Presidential systems Systems that combine the role of head of state (president) with the role of head of government.

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Justiciable provisions Provisions of a constitution are enforceable in law by the courts.

Non-justiciable provisions

Parts of a constitution may be stated, expressly or impliedly, to be not enforceable by the courts.

Supreme or paramount force:

If provisions of a Constitution have greater legal force than all other laws, then these parts of the Constitution are described as being supreme or paramount.