Constitutionalism and democracy: A critical analysis

INTRODUCTION

The term ‘constitutionalism’ (or maybe rather: modern constitutionalism) refers to a specific way of thinking and theorizing about the constitution. Modern constitutionalism, as Walker puts it, ‘came first and foremost to be defined in functional opposition to absolutism, as a guarantee of limited (by law) government …’.9 Whereas constitutions may take different forms (and may, for example, also constitute dictatorial forms of government), constitutionalism is linked up to the idea of limited government through mechanisms such as a mixed constitution (balancing several groups in society), separation of powers, checks and balances, human rights, etc. Constitutionalism thus contains an inherent tension as it simultaneously aims to constitute political power (and a political society) and tries to limit this power through legal means.

Constitutionalism and democracy are an integral part of each other. We may think that they cannot live alone or they are incomplete without each other but that’s not a point of view which we as a law student should have.

Constitutionalism is the idea associated with the political theories of John Locke and the founders of American republic, that government can and should be legally limited in its powers, and that its authority or legitimacy depends on its observing these limitations.

Constitutionalism can be considered as fruits in the plant of democracy. Fruits are essential for plants as they add up to their value but plants can be alive without fruits also.

Every country in the world has some form of government and they have constitution which tells how that form of government will run in the country but constitution does not tell anything about importance of constitutionalism in that country.

Constitutionalism can be rather defined as philosophical aspect of constitution, which is thought an integral part of every country having constitution but not necessary for its survival.

“Constitutionalism is not merely a bundle of constitutional rules but rather a way of political life of a nation.”

Constitutionalism is not only a bundle of rules or rights and duties but it if shapes the political life of a nation. For better understanding we may consider example of our neighbour country Pakistan, they also have a constitution but there is lack of constitutionalism among its citizens.

Every nation has a political life and how long the life will be depends on whether constitutionalism exists in the heart and should of people of that nation or not.

Form of government can be seen a ‘A way in which any nation lives its political life.’ So democracy is one of the ways in a nation spends its political life.

Considering the two aspects, life of anyone depends on how he/she lives it, so there exists a direct nexus between democracy and constitutionalism.

DOES DEMOCRACY NEEDCONSTITUTIONALISM?

In the words of Abraham Lincoln

“Democracy is government of the people, by the people and for the people” this means democracy resides in people. People of the country are the main power in any democracy. How democracy will work will depend on people of the country.

Also constitutionalism is philosophy behind the constitution which exists in people of the country. Considering both the arguments it can be seen that people of the nation are the ones who decide political life of both nation and democracy.

Nexus of constitutionalism and democracy

Democracy has evolved as political reality in the contemporary scenario; it is a political system which emphasises on rule of the majority. In every society on the world, the issue revolves around discussion on when a political system will adopt democracy.

Democracy is recognised as the best moral and legitimate way to administer a society the reason behind is involvement of citizens and consciousness among them.

Democracy has be recognized as the only moral and legitimate as the only moral and legitimate way through which a society can be administered.

Democracy sets the basic principles on which a good government must run. These principles include: justice, equity, freedom, liberty, openness, accountability and transparency in government. Constitutionalism on the other hand provides guidance to democracy in terms of individual rights, limited welfare rights, checks and balances.

Democratic consolidation is incomplete without the support of constitutional liberalism. Constitutionalism means adherence to the letter and spirit of the constitution. A constitution in the context of this paper is defined as the whole body of fundamental laws, customs, conventions, principles, rules and regulations according to which a particular government of a country or an organization operates.

Meanwhile, it is not an overstatement to contend that constitutionalism provides the principles by which democratic government is governed.

THESE PRINCIPLES ARE:

EQUALITY BEFORE LAW

Everyone is equal before Law and nobody is above Law, Article 14 of the Indian constitution which enshrines the concept of rule of law talks about equality. Everyone should be treated equally.

LIMITATION IN THE EXERCISE OF THE FUNCTIONS

It means the powers and functions performed by those in power should not be absolute. There should be reasonable restrictions on them.

FUNDAMENTAL HUMAN RIGHTS

Every citizen should have fundamental human rights. Constitutionalism enhances the need for fundamental human rights. Every citizen should have rights like liberty of thought, right to life and it these rights are arbitrarily taken away he can go to court of Law.

POPULAR SOVEREIGNTY

Constitutionalism promotes the right of every citizen to vote and be voted.

JUDICIAL

INDEPENDENCE

Constitutionalism supports independence of judiciary. Judiciary acts as a watch dog against arbitrary functions of the legislature and if it won’t be independent the very function of it of keeping check on arbitrary actions will fail.

CONCLUSION

Democracy is the only weapon for overcoming backwardness of any nation and for securing recognition and respect from the international community.

A corner stone of democratic government is adherence to the letter and spirit of constitution, That is, those who govern should govern according to the dictates of the Law. The law stipulates the type, nature and scope of government, as well as the nature of relationship among the organs of government. Every citizen should be provided equal opportunity to every citizen and provisions should be made on how liberty of people can be protected.

The constitutionalism talks about the fundamental human rights, which includes right to life, right to dignity of human person, right to personal liberty, right to fair hearing, right to private family life, right to freedom of religion, right to vote and others that are the essence of democracy, the inescapable sine qua non.

The post Constitutionalism and democracy: A critical analysis appeared first on The Daily Guardian.

Recommended For You

About the Author: - -