CREATING A CONSTITUTION FOR A NEW NATION

Creating a constitution for a new nation



Creating a Constitution for a New Nation

Introduction

Constitutionalism, which regulates the set-up and legalizes the exercise of state power, as well as entrenching the relationship between state and society, matured in the context of liberal democracies that place emphasis on civil and political rights and clearly separate the public and the private sphere. There are two senses in which constitutionalism has traditionally sought to limit state power through fundamental rights (1) in relation to the legislature's ability to enact laws (Rechtsstaat or “constitutional democracy”) and (2) in relation to the exercise of executive power (“limited government”) in accordance with the rule of law, the separation of powers, democracy, procedure, and judicial review. To be sure, civil society does not require the express protection of fundamental rights (see only the Nunashunan Union before the Human Rights Act came into force). But fundamental rights, once enacted, cannot underwrite themselves. The protection of liberty and the assertion of individual commitments require the monopoly of force, which the state, or the “public” domain of government, possesses. The “private” domain of civil society cannot protect itself against threats to liberty that emanate not from the executive but from the legislature, and it is for this reason that constitutionalism fights on two fronts: against the executive and against the legislative branches of government. The state is the social organization that decides on the legitimate use of the sanction. Through its control of the police and the military, the state has a monopoly of coercive power that it can use to enforce private (ordinary) law against private individuals should all else fail. The purpose of constitutionalism is to prevent even the legislature from arbitrary coercion, and fundamental rights are an additional guarantee that the state is itself bound by fundamental rights and that the private realm should be protected from arbitrary interference by civil rights.

Discussion

The raison d'être of constitutionalism is the legalization of political rule, which it achieves by tying law making and law enforcement to positive law. Constitutions not only constitute, but also regulate, the highest power. In so doing constitutionalism promotes a normative understanding of law by focusing on attributes and qualities that law should possess. At one level, constitutionalism is an ideal for government: It stipulates that government should be limited by the law-based exercise of power and the predictable determination of the rights of individuals, as opposed to an arbitrary or other mode of government. In other words, the government can only act on the basis of, and is therefore limited by, law. (Sunstein, 2001)

At another level, constitutionalism is also an ideal for law. The government can respect the constitution merely by ensuring that it and its officials always act within the law. But the law itself must also live up to certain standards, such as certainty, clarity, stability, predictability, generality, and, especially, no retroactivity. Constitutional statutes are different from ordinary ones for three ...