CLASSIFICATION OF CONSTITUTIONS

CONTENTS

1.0       Introduction

2.0       Objectives

• Main Content
• Definition of Constitution
• Unwritten and Written Constitution
• Rigid and Flexible Constitution

4.0       Conclusion

5.0       Summary

6.0       Tutor-Marked Assignment

7.0       References/Further Readings

INTRODUCTION

In Unit 1, you were introduced to the definition and sources of constitutional law. In this unit, we shall be looking at the classification  of the constitution. The Unit begins by giving a brief definition of constitution, its nature, functions and origin.

OBJECTIVES

By the end of this unit, you should be able to: define constitution; and

explain the different types of constitutions.

MAIN CONTENT

Definition of Constitution

Attempts have been made by many authors to define the word “Constitution”. Some writers adopt the simplistic view point of defining “Constitution” as the means by which a people organize themselves into a political community and define the aims and objectives of their association, the condition of membership, the organs and powers necessary for the conduct of the affairs of the association and duties and responsibilities of those organs to the individual. This kind of arrangement exists even at the lower level of clubs and associations.

Linking the constitution with the government, Nwabueze has suggested that: “… a constitution refers simply to the frame or composition of a government, to the way in which a government is actually structured in terms of organs, the distribution of powers within it, the relations of the organs inter se, and the procedures for exercising power.”

From this definition, we can deduce that a constitution must concern itself with the structures of government as well as organs and the interrelationship of such organs.

The Webster’s New Twentieth Century Dictionary defines Constitution as (a) the way in which a government, state, society is organized; (b) the system of fundamental laws and principles of government, state, society, corporation etc. written or unwritten; (c) a document or set of documents in which these laws and principles are written down. This definition emphasizes the function and nature of a constitution.

Blacks Law Dictionary defines constitution as “the organic and fundamental law of a nation or state which may be written or unwritten, establishing the character and organising the government and regulating, distributing and limiting the functions of its different departments and prescribing the extent and manner of the exercise of sovereign powers”.

The above is made clearer by the definition contained in the Oxford Law Companion as follows: “A Constitution is the:

1. Body of rules prescribing the major elements of the structure and organisation of any group of persons, including clubs, associations, trade unions, political parties and citizens of a state.
2. The fundamental political and legal structure of government of a distinct political community, setting such matters as the Head of State, the legislature, the executive and judiciary, their constitutional powers and relations”.

NATURE, FUNCTION AND ORIGIN

The nature of the constitution has been aptly put by Hon. Justice Adolphus G. Karibi-Whyte as the “...Fons et origo of the exercise of powers, the employment of rights, and discharge of obligations…”  Some of the functions of the Constitution as contained in the 1999 Constitution of Nigeria are as follows:

1. It states the aims and objectives of the people. See the
2. It establishes a national government.
3. It controls the relationship between the governments. See part II of the first
4. It defines and preserves personal liberties. See chapter
5. It contains provisions to enable the government to perpetuate itself…. See sections 1, 2, and 3

The preamble of the 1999 Constitution lays solid foundation for the political element and origin of the constitution. It states that “We the People of the Federal Republic of Nigeria having firmly and solemnly resolved to live in unity and harmony … and to provide for  a constitution for the purpose of promoting the good government do hereby make, enact and give to ourselves the following constitution….”

The constitution could be decreed by the existing government as was done for instance by the military government in 1979 and 1999.

Hood Phillips has suggested that the word “Constitution” could be used in two different senses; the abstract and the concrete. In the abstract sense, it refers to the system of laws, customs and conventions which define the composition and power of organs of the state and regulate the relations of the various state organs to one another and to the private citizens. In the concrete sense, it is a document in which the most important laws of the Constitution are authoritatively ordained. This brings us to the issue of the written and unwritten (flexible and rigid) constitutions.

Unwritten and Written Constitutions

UNWRITTEN CONSTITUTION

Great Britain remains the most often referred to nation with an unwritten constitution. In Britain, it is difficult to point at a single document as the constitution of the country as is usually the case for countries with written constitutions like Nigeria. This does not mean that the British people are not guided by political philosophies which exist under a constitution. They are only obtained in various documents.

At the time of the Norman Conquest, constitutions were of a customary nature. After the Civil War of the 17^th Century, Oliver Cromwell drew up an instrument of Government in 1653. This instrument served as the constitution and it came to an end seven years after the restoration of the monarchy.

The Laws of the unwritten British Constitution comprise of three kinds of rules; statute, common law and custom. In view of contemporary development, it is necessary to include international conventions. Treaties are not themselves part of the British Laws except they are so transformed.

Statutes are epitomised by Acts of Parliament and subordinate legislation. It must be stated that they consist of the most important constitutional principles that are found in concrete constitutional documents as they exist today. For instance, the famous Magna Carta of 1215 which resulted from successful efforts by the medieval landowners to wrench some rights, the 1688, progenitor of Fundamental Human Rights provisions in written constitutions, the Act of Settlement of 1700, the Act of Union with Scotland of 1706, the Statute of West Minister, the Supreme Court of Judicature Act, 1925, the Nigerian Independence Act of 1960, e.t.c. If all these pieces of legislation and others are put together, in the words of Professor Mitchell; “by the use of scissors and paste, it would be possible to produce out of the Statute Book a ‘Constitution’ which would be very nearly complete”.

Agreeing with this contention, Oluyede added that such a British Constitution would be complete in view of the fact that a written constitution cannot contain more than a section of Constitutional Law. Such a Constitution as suggested by Professor Mitchell, will be well detailed and will have the effect of pervading nearly all facets of Constitutional Law of England as well as having a strong historical and anthropological bearing with its setting. It may be difficult to include customs, conventions as well as judicial pronouncements into this constitution. One way out will be to legislate on such matters that have been settled under these three different headings and transform them. According to Prof. Sokefun, this may be exhuming Cromwell who fashioned out the only Constitution that was ever used in Britain  between 1653 and 1660 and it will definitely produce a detailed unit document that could be referred to as the British Constitution.

It is necessary to refer to delegated legislation as well as judicial discussions, custom and literary authority when discussing the unwritten constitution of Great Britain. In the case of delegated legislation, it must be pointed out that these are pieces of legislation derived from the exercise of powers endowed upon Ministers and other arms of State. They come in the form of orders, regulations or bye-laws. The power is also conferred on the Queen-in-Council to legislate on matters of emergency or when it is necessary to give effect to enabling Acts.

As judicial decisions also developed into Constitutional Law in England, in Watson V. Walter (1868) L.R. 4 Q.B 73, the principle of qualified privilege was extended to unauthorized reports of parliamentary debates. In Ridge V. Baldwin (1964) A.C 40 H.L, the famous principle of audi alteram partem was reaffirmed.

For custom to be accepted as part of the Constitutional Law in England, it need not have been adjudicated upon by the court, but it must be judicially recognized. To be recognized, it must be certain, reasonable, obligatory to the subjects, as well as possessing continuous existence coupled with immemorial antiquity. Literary authorities are sometimes relied upon as statements of Constitutional Law in England. The dependant factors are usually the reputation of the author and the date.

WRITTEN CONSTITUTION

A Constitution is referred to as written according to Hood Phillips, when the most important constitutional Laws are specifically enacted. By this, a specific legislative enactment on the organization of a state and administration of justice, as well as other national constitutional issues are provided for. This usually produces a single document with a limited number of sections which may be amended from time to time to suit the prevailing circumstances.

Where there is a written constitution, such document is taken to be an organic instrument which claims superiority over and above any other document in the state. The constitution thus formed establishes a framework and principles of government in broad and general  terms with a view to applying to varying conditions in the several  communities in the state.

The clearest characteristic of all written constitutions is that it is possible to point to one document or a combination of documents, as the Constitution. A good example of a combination of documents is the experience of Nigeria when there were four Regions in the country and each Region had its own constitution while there was another for the Federation. Written constitutions are now widespread in the world. Such constitutions invariably spell out the three arms of government namely, the Legislative, the Executive and the Judiciary.

The most fundamental attribute of written constitution is that it cannot  be changed, amended or repeated like an ordinary enactment. Thus it may have the characteristic of rigidity. This leads us to the discussion of Rigid and Flexible Constitutions.

Flexible and Rigid Constitutions

Bryce makes reference to distinction between flexible and rigid constitutions. This distinction has a strong bearing on the mode of amendment of the constitution. The opinion had been lobbied by Dicey that, a flexible constitution is that under which every description can legally be changed with the same ease and in the same manner and same body.

This approach is supported by Hood Phillips who adds that the  flexibility of the British Constitution is a corollary to the fact that no written constitution or higher law is binding on the Parliament. As  would be seen later, it is not only written constitutions that possess the flexible quality. To emphasize this point, Bryce cites the example of Singapore whose constitution is written but is entirely flexible and the constitutions of the Australian States which are written and largely flexible. A look at the Nigerian Constitution will show that the Constitution is written and flexible. This is because the Constitution provides for modes of altering it, though streamlined and intricate as contained in section 9.

Whether a written constitution is flexible or rigid depends on how easy or otherwise it is to amend. It is however a common saying that the main fundamental attribute of a written constitution is rigidity, that is, it cannot be changed, amended or repealed like an ordinary enactment. This view tends to ignore the fact that there could be a written but flexible constitution which allows for easy amendment as the need may arise like a constitution for a colonized community; for example, the Nigerian Constitutions of 1922, 1946 and 1951. They could all not only be amended at will by the colonial power, but also abrogated just like  the Military did to the 1963 Republican constitution in January 1966 and the 1979 Constitution in January 1984. Dicey has said that a rigid constitution is “one under which certain laws generally known as Constitutional or fundamental laws cannot be changed in the same manner as ordinary laws”. The Nigerian Constitution cited above partially belies Dicey’s definitions of Rigid and Flexible Constitution.

A more complete reaction to Dicey’s view in this matter is provided by Hood Phillips when he said inter alia that: “A more significant classification of the types of constitution is that into ‘flexible’ and ‘rigid’ metaphors given currency by Bryce…Unwritten Constitutions are in practice flexible, but written constitutions are not necessarily rigid.…”

It is perhaps better to describe each constitution according to its wording rather than give a broad classification of written and unwritten to determine the rigidity or flexibility of a constitution.

CONCLUSION

In conclusion, it is only safe to admit that any Constitution can only be considered in entirety by its whole text to know the category it fits into. There cannot be any straight jacket rule for written and unwritten constitutions in terms of flexibility or rigidity.

SUMMARY

In this unit, you learnt about the constitution and the various categories  it can be classified into. You should by now be able to define the constitution and explain its various classifications.

TUTOR-MARKED ASSIGNMENT

 

1.	a.	Define Constitution.
	b.	How rigid is the Nigerian Constitution?

 

REFERENCES/FURTHER READINGS

Sokefun, J.A. (2002). Issues in Constitutional Law and Practice in Nigeria. In honor of Dr. Olu Onagoruwa: Edited by Justus A. Sokefun.

Nwabueze, B.O. (198). The Presidential Constitution of Nigeria. Webster’s New Twentieth Century Dictionary.

Blacks Law Dictionary, fifth Edition.

The Oxford Law Companion, 1980.

Karibi-Whyte, A. G. (1987) “The Relevance of the Judiciary in the Polity in Historical Perspective”. Lecture delivered at the Nigerian Institute of Advanced Legal Studies.

Constitution of the Federal Republic of Nigeria, 1999.

Hood ,Phillips. Constitutional and Administrative Law, 7^th Edition. Gardiner, S. R. (1906). Constitutional Documents of the Puritan

Revolution 1625 -1660.

Oluyede, P. A. O. Constitutional Law in Nigeria, 1992. Mitchell, J. D. B. Constitutional Law, 2^nd Edition.

Bryce. Studies in History and Jurisprudence, Vol.1 Essay 3. Dicey, A.V. (1914). Law of the Constitution.