General introduction to constitutionalism


                                                                                                                                                                                                                                                                                                                                                                                                                Constitutionalism
Concept and Meaning of constitutionalism
Constitutionalism is a new political concept which is related with constitution. It emphasize on the restriction and effective control over political power for the achievement as well as for securing human values, beliefs and acceptance, which are existed in political party or society.

The Liberal Democratic Concept of constitutionalism; emphasize or give supreme importance to the “Individual Liberty” and its rightful security. For this;
®     Rule of law, Supremacy of constitution, Limited government, Independence judiciary, Peaceful transformation, Separation of power, Decentralization, Human rights, Religious impartiality, Economic and social justice, Equality, Liberty etc. plays very important role.

In same way, Communism Concept of constitutionalism also agrees in limited Government. But in these two concept i.e. Liberal Democratic concept and Communism concept, we can find differences through their own aims and objectives. The Liberal Democratic concept is not on the side of economic and social equality. They ignore the existed economic inequality and accept only the constitutionalism as a choice of means or an instrument.

But communism advocate in economic and social equality, constitutionalism is taken as an means or instrument and economic power is taken as main basis for political power. The communism thinks that, most important work is to being the place of supreme economic power under the control of public authority. For this they think that it is essential to make equal distribution of property and public ownership over the means of production and distribution. In the absence of this, it would be impossible to effectively limit and control over the misuse of political power, and aim and objectives of constitutionalism cannot be accomplished.
The most important thing is that we should not forget that Democracy and constitutionalism are deeply related to each other.

The main theme of constitutionalism is that the political system must be executed through law and rules. It means that the governance should not be executed through the basis of law. For this there should be limited government when the limited government, comes forefront we need to ask three Questions:-
In what form limitation or restrain are imposed?
What is the nature of limitation or restrain?
How they are practiced?

The perfect restraints should be implemented in free will over both a ruler and ruled. In other word, constitutionalism is that place of rules, which guarantees the good behavior and plays an important role to make responsible to the government. The constitutionalism has the deep relationship between, Rule of Law, Supremacy of constitution or law and Limited Government.

While we discuss about constitutionalism we must discuss about democracy as well. In democracy, we should not forget four 4 things they are:
Periodical Election
Liberty
Equality (Rule of Law)
Respect for Public opinion (Human dignity)
The democracy must secure people’s voting rights. It should provide the right to participate in periodical election, to elect their representative. It means it should secure the Universal Adult Franchise. Not only this, the presence of equality is also needed, as per rule of law, each and every person are equal in the eyes of law. There should be psychological equality, economical equality etc.

In same way, Liberty is also needed in democratic state, “Liberty” not in the sense that by hampering other’s liberty when enjoying yours. The public opinion should be respected by government and through their representatives. For the constitutionalism there must be the democracy, which leads to form a constitution. In general, understanding democracy means the full people’s participation.
According to Abraham Lincoin,
                                                   “Democracy is a government of the people, for the people and by the people.”
Therefore, Democracy is the element of constitution. The constitution has two most important things:-
®     Constitution must proscribe powers
®     Constitution should prescribe procedure
So, for constitutionalism there must be democracy, supremacy of constitution, supremacy of power and limited government etc.

Definition of Constitutionalism

According to Charles H. Madiwain
Constitutionalism Ancient and Modern Corn well university press 1947 pp. 21-22

“Constitutionalism recognizes the necessity for government but insists upon a limitation being placed upon its power. It connotes in essence, therefore a limitation on government; it is the antithesis of arbitrary rule; its opposite is despotic government, the government of will, instead of the law.”

According to K.C Wheares Page 137
“Under constitutionalism two types of limitations are imposed on the government power is proscribed and the procedure prescribed.”           

According to Prof. S.A. de Smith,
Constitutionalism and Administrative law (Penguin Books Ltd. 1998 p.4)
“ Constitutionalism is practiced in a country where the government is genuinely accountable to an entity or organ distinct from itself, where elections are freely held on a wide franchise at frequent intervals, where political groups are free to organize in opposition to the government in office and where there are effective legal guarantees for fundamental civil liberties enforced by an independent judiciary; and he may not be easily persuaded to identify constitutionalism in a country where any of those conditions are lacking.”  

Essential component of constitutionalism
1)      Written constitution
2)      Limited Government
3)      Separation of power
4)      Democracy
a.       Periodical election
b.      Liberty
c.       Equality- (Rule of law)
d.      Respect for public opinion (Human dignity)
5)      Accountability of the government
6)      Transparency
7)      Representative Government
8)      Good Government
9)      Justice
a.       Distributive justice
b.      Collective justice
10)  Judicial activism
11)  Basic structure theory
12)  Basic interest theory
Roscoe Pound:-
a.       Personal interest
b.      Social interest
c.       National interest
13)  Political parties role
14)  Multi-party democracy
15)  Ethnicity
16)  Pluralism            

Two Forms of Constitutionalism
Although there are various forms of constitutionalism here we have discuss two forms of constitutionalism they are as below:
      Legal Constitutionalism
      Political Constitutionalism

1)      Legal Constitutionalism
a.       Independence Judiciary
b.      Judicial activism
c.       Public Interest litigation
d.      Separation of power with check and balance
e.       Justice
f.       Rule of law
Legally – If legal rights/ fundamental rights are violated then we can drag the issue in court and bring solution through court.
For example; Protection of Fundamental Right, Human right, women right, child right etc.

2) Political Constitutionalism
a.       Election
b.      Directive principle and policy
c.       Forms of government
d.      Role of Opposition
e.       Role of political parties
f.       Role of Political institutions
g.       Appointments
h.      Public opinion

If the government does not do any good to people then the people will not vote to that party. But, cannot go to court, if government do not execute properly than people drag or collapse that government by not giving vote.
Political constitutionalism is not justifiable matter (reasonable matter)
Political constitutionalism is essential for legal constitutionalism.
                                                                                                                             

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