This document discusses the sanctity of constitutions and amendments to the Malawi Constitution. It begins by defining what a constitution is, noting that constitutions differ from ordinary legislation in their origins, adoption processes, language, inclusion of bills of rights, and methods of interpretation. The document then discusses how Malawi's 1994 Constitution was adopted against a background of rejecting the previous one-party dictatorship. It notes that over 90 sections of Malawi's Constitution have been amended in the first 10 years, with some amendments passed for political expediency rather than national interest. The document aims to examine amendment processes and preserve the Constitution's sanctity by restricting amendments to those that serve national rather than political goals.
Bachelor of Journalism & Mass communication, Indian Govt. Politics, Bjmc i,jm...Rai University
1. The Constitution of India allows for amendments through a process that balances rigidity and flexibility. It categorizes articles based on the threshold for amendment, with some requiring only a simple majority while others require a two-thirds majority with state ratification.
2. During the first 16 years, the Constitution was amended 20 times to address practical difficulties in implementation and accommodate the reorganization of states. While critics saw this as a sign of weakness, there were compelling reasons for amendments during India's early years of independence and political consolidation.
3. Major amendments included those addressing fundamental rights like equality and property rights, legislative lists defining federal powers, and state reorganizations following independence. Later amendments dealt with issues like reservation of seats,
Constitutional governance miniorities and secularism 2YOGENDRA VERMA
The document discusses constitutional governance in India with regards to minorities and secularism. It provides background on constitutional arrangements and defines key terms like constitution, government, and minorities. It then discusses how the Indian constitution establishes a federal parliamentary democratic republic with separation of powers among the executive, legislative, and judicial branches. The executive branch is led by the President, aided by the Vice President and Prime Minister. The two houses of parliament can amend the constitution, subject to limitations like not changing the basic structure. The document also outlines characteristics of minority groups in India and how secularism relates to treatment of minorities.
The origins and meanings of administrative lawtaratoot
The document provides an overview of administrative law, including its origins and meanings. It discusses how administrative law seeks to reduce arbitrariness and unfairness in bureaucratic government through several key principles and cases. It explains that administrative law developed from judicial decisions and statutes to establish standards of due process that administrative agencies must follow, such as requiring a full and fair hearing as outlined in the Morgan v. United States Supreme Court case. It also discusses how Goldberg v. Kelly established that due process requires a hearing prior to terminating welfare benefits.
The establishment of a judiciary with the power of constitutional review — determining whether government actions comply with the constitution’s provisions — is now considered a standard component of a democracy. It is increasingly common to entrust the power of constitutional review to a specialised constitutional court that can issue authoritative decisions on the constitutionality of laws and government actions and can interpret the constitution’s provisions.
A constitutional court can play many important roles, including reviewing the constitutionality of legislation, protecting individual rights, providing a forum for the resolution of disputes in a federal system, enforcing the separation of powers, certifying election results, and assessing the legality of political parties.
Establishing a court with the power to review the constitutionality of laws and government actions provides political parties and groups with a form of “insurance” for future scenarios in which they may not be in government and want to make sure that a government formed by their opponents acts within the limits of the constitution. A constitutional court is a means of institutionalising the commitment made by all parties when drafting the constitution to abide by its provisions. Furthermore, foreign investors often regard an independent and well-functioning judiciary as a sign of a country’s stability and investment potential. There are many options in designing a constitutional court, yet some recommendations can be made on a number of key design questions:
1. Rule of law refers to a system where law governs a nation rather than individual government officials, and people are ruled by law instead of individual men.
2. A key scholar defined three aspects of rule of law: supremacy of law, equality before the law, and predominance of legal spirit.
3. While not explicitly mentioned in the Indian Constitution, Indian courts have recognized rule of law as a basic governing principle and have expanded its scope through judicial decisions establishing principles like separation of powers and judicial review.
Principles of constitutional interpretation of list prepared by Rajashree J J...sundarsasane
This document discusses principles of constitutional interpretation in India. It begins by explaining that constitutional interpretation should be dynamic, pragmatic and elastic rather than static, pedantic or rigid. It then outlines several key interpretation principles applied to the constitution, including harmonious construction, pith and substance, and colourable legislation. Harmonious construction means provisions should be interpreted together rather than in isolation. Pith and substance examines a law's true nature or essence. Colourable legislation prohibits indirect means of doing what is directly prohibited. The document also discusses occupied field, residuary power, repugnancy, and territorial nexus principles.
This document discusses the constitutional development in Pakistan. It begins by defining what a constitution is - the fundamental laws and principles that govern a country. It then discusses different types of constitutions such as written, unwritten, and partly written. It also discusses federal vs unitary constitutions and flexible vs rigid constitutions. Finally, it provides details on some key events and reforms in Pakistan's constitutional history, including the first Muslim constitution established by Muhammad and the Minto-Morley Reforms of 1909 which expanded representation.
The document discusses the doctrine of repugnancy in Indian law. It defines repugnancy as an inconsistency between two legal instruments. Repugnancy can arise in three situations - direct conflict between laws, when laws cover the same field, or when a law is intended to occupy a field. For repugnancy to be established, the inconsistencies must be irreconcilable. The Supreme Court has interpreted that in cases of repugnancy, the Central law will prevail over the State law. The document outlines several cases that discuss applying the repugnancy doctrine when Central and State laws conflict.
Bachelor of Journalism & Mass communication, Indian Govt. Politics, Bjmc i,jm...Rai University
1. The Constitution of India allows for amendments through a process that balances rigidity and flexibility. It categorizes articles based on the threshold for amendment, with some requiring only a simple majority while others require a two-thirds majority with state ratification.
2. During the first 16 years, the Constitution was amended 20 times to address practical difficulties in implementation and accommodate the reorganization of states. While critics saw this as a sign of weakness, there were compelling reasons for amendments during India's early years of independence and political consolidation.
3. Major amendments included those addressing fundamental rights like equality and property rights, legislative lists defining federal powers, and state reorganizations following independence. Later amendments dealt with issues like reservation of seats,
Constitutional governance miniorities and secularism 2YOGENDRA VERMA
The document discusses constitutional governance in India with regards to minorities and secularism. It provides background on constitutional arrangements and defines key terms like constitution, government, and minorities. It then discusses how the Indian constitution establishes a federal parliamentary democratic republic with separation of powers among the executive, legislative, and judicial branches. The executive branch is led by the President, aided by the Vice President and Prime Minister. The two houses of parliament can amend the constitution, subject to limitations like not changing the basic structure. The document also outlines characteristics of minority groups in India and how secularism relates to treatment of minorities.
The origins and meanings of administrative lawtaratoot
The document provides an overview of administrative law, including its origins and meanings. It discusses how administrative law seeks to reduce arbitrariness and unfairness in bureaucratic government through several key principles and cases. It explains that administrative law developed from judicial decisions and statutes to establish standards of due process that administrative agencies must follow, such as requiring a full and fair hearing as outlined in the Morgan v. United States Supreme Court case. It also discusses how Goldberg v. Kelly established that due process requires a hearing prior to terminating welfare benefits.
The establishment of a judiciary with the power of constitutional review — determining whether government actions comply with the constitution’s provisions — is now considered a standard component of a democracy. It is increasingly common to entrust the power of constitutional review to a specialised constitutional court that can issue authoritative decisions on the constitutionality of laws and government actions and can interpret the constitution’s provisions.
A constitutional court can play many important roles, including reviewing the constitutionality of legislation, protecting individual rights, providing a forum for the resolution of disputes in a federal system, enforcing the separation of powers, certifying election results, and assessing the legality of political parties.
Establishing a court with the power to review the constitutionality of laws and government actions provides political parties and groups with a form of “insurance” for future scenarios in which they may not be in government and want to make sure that a government formed by their opponents acts within the limits of the constitution. A constitutional court is a means of institutionalising the commitment made by all parties when drafting the constitution to abide by its provisions. Furthermore, foreign investors often regard an independent and well-functioning judiciary as a sign of a country’s stability and investment potential. There are many options in designing a constitutional court, yet some recommendations can be made on a number of key design questions:
1. Rule of law refers to a system where law governs a nation rather than individual government officials, and people are ruled by law instead of individual men.
2. A key scholar defined three aspects of rule of law: supremacy of law, equality before the law, and predominance of legal spirit.
3. While not explicitly mentioned in the Indian Constitution, Indian courts have recognized rule of law as a basic governing principle and have expanded its scope through judicial decisions establishing principles like separation of powers and judicial review.
Principles of constitutional interpretation of list prepared by Rajashree J J...sundarsasane
This document discusses principles of constitutional interpretation in India. It begins by explaining that constitutional interpretation should be dynamic, pragmatic and elastic rather than static, pedantic or rigid. It then outlines several key interpretation principles applied to the constitution, including harmonious construction, pith and substance, and colourable legislation. Harmonious construction means provisions should be interpreted together rather than in isolation. Pith and substance examines a law's true nature or essence. Colourable legislation prohibits indirect means of doing what is directly prohibited. The document also discusses occupied field, residuary power, repugnancy, and territorial nexus principles.
This document discusses the constitutional development in Pakistan. It begins by defining what a constitution is - the fundamental laws and principles that govern a country. It then discusses different types of constitutions such as written, unwritten, and partly written. It also discusses federal vs unitary constitutions and flexible vs rigid constitutions. Finally, it provides details on some key events and reforms in Pakistan's constitutional history, including the first Muslim constitution established by Muhammad and the Minto-Morley Reforms of 1909 which expanded representation.
The document discusses the doctrine of repugnancy in Indian law. It defines repugnancy as an inconsistency between two legal instruments. Repugnancy can arise in three situations - direct conflict between laws, when laws cover the same field, or when a law is intended to occupy a field. For repugnancy to be established, the inconsistencies must be irreconcilable. The Supreme Court has interpreted that in cases of repugnancy, the Central law will prevail over the State law. The document outlines several cases that discuss applying the repugnancy doctrine when Central and State laws conflict.
This document summarizes the key concepts of rule of law and separation of powers in India. It discusses how the rule of law establishes that the country is governed by law rather than individuals. It then examines the meaning of separation of powers and how powers are separated between the executive, legislature, and judiciary in the Indian constitution. In particular, it notes that while complete separation is not possible, the three branches exercise checks on each other to maintain a balance of powers.
The document discusses the rule of law and its implementation in India through the Indian judiciary and constitution. It provides an overview of the key principles of the rule of law as defined by Dicey, including equality before the law, laws determined by regular courts rather than officials, and fundamental rights arising from ordinary law. It examines how these principles are reflected in the Indian constitution through provisions like Articles 14, 21, and the independence of the judiciary. The judiciary has played an important role in strengthening the rule of law in India and expanding its meaning as part of the basic constitutional structure. Important cases are discussed that have upheld the rule of law against arbitrary government action and preserved its essence in Indian democracy.
This document provides an overview of the key concepts of constitutionalism including:
- Constitutionalism involves limiting political power through rights provisions like free speech and structural provisions like separation of powers.
- Key aspects include respect for the rule of law, respect for human rights, checks on governmental discretionary powers, and responsible government through mechanisms like judicial review.
- The rule of law principles encompass legality, limits on executive discretion, an impartial justice system, and compliance with human rights values.
- Separation of powers means distributing the legislative, executive, and judicial powers across different government branches to prevent the concentration of full state power in one entity and promote accountability.
Administrative law governs the decision-making of government administrative agencies and ensures they follow proper procedures. It expanded in the 12th century as more agencies were created to regulate social, economic, and political spheres. Administrative law checks abuse of government power, ensures impartiality and accountability of officials to citizens, and protects citizen rights from overreach. It also divides government into three branches: the legislature that makes laws, the judiciary that interprets laws, and the executive that implements laws.
Introduction and the concept o administrative law, its meaning, definition, objects, nature, functions, sources, theories and need.
History and Growth of Administrative law in UK, US, France and India.
This document summarizes key points from an article on constitutional law in Pakistan.
The article discusses the distribution of legislative powers between the federal and provincial governments according to Part V and Chapter 1 of the Pakistani constitution.
It outlines that the federal parliament has exclusive power to make laws on matters in the Federal Legislative List, while provincial assemblies have power over matters not in that list. Both levels of government can make laws around criminal law, procedure and evidence.
The article then examines various constitutional law doctrines that relate to legislative powers, such as the doctrines of colourable legislation, pith and substance, and occupied field. It also discusses how conflicts between federal and provincial laws are resolved based on the doctrine of rep
This document outlines the learning objectives, course materials, methods of learning, and provides an introduction to the course on Administrative Law. The key objectives are to introduce students to administrative law concepts, case law, regulatory issues, and how to deal with government agencies. Students will learn through reading materials including textbooks, case law, and regulatory documents. The methods of learning will include lectures, presentations, group work, assignments and modules. Administrative law governs the powers and procedures of administrative agencies and their relationship with the public.
Federal FeaturesThe federal features of the Constitution include:(1) A written constitution which defines the structure, organization and powers of the central as well as state governments(2) A rigid constitution which can be amended only with the consent of the states(3) An independent judiciary which acts as the guardian of the constitution.(4) A clear division of powers between the Center and the States through three lists- Union list, State list and Concurrent list(5) The creation of an Upper House (Rajya Sabha) which gives representation to the states, etc.
In this ppt we discuss the basic of administrative law with separation of power. It will helpful for those students who are preparing for law entrance examination. It will be also helpful for those students who are Pursuing LLB or LLM.
Administrative law is one of the important subject of law. It is very complicated topic . Here i provide you a Basic note of Administrative that will be helpful to your law entrance examination.
The document analyzes approaches to constitutional interpretation, specifically originalism versus a living document approach. It summarizes the key tenets of each view, including that originalists believe the constitution should be interpreted based on its original public meaning, while living document theorists argue it can evolve with changing times. The document also notes criticisms of both views, such as originalists making exceptions not supported by the original text, and living document views potentially undermining founding principles of liberty. Overall it argues the originalist approach grounded in the constitution's text and history best protects individual liberties.
The document provides an introduction to administrative law. It discusses how administrative law evolved in response to the growth of the modern welfare state and increased government powers. It defines administrative law and discusses its purpose and scope. Specifically:
1) Administrative law developed to control and regulate the exercise of executive power as governments assumed new social and economic roles. It aims to balance expanded state power with legal limits and protection of individual rights.
2) Administrative law is defined as the body of law governing the organization and powers of government agencies, and the principles and rules for exercising power in relation to citizens.
3) The primary purpose of administrative law is to control government power through mechanisms like judicial review, while also facilitating good governance,
1. The Supreme Court ruled on a case challenging the process used to grant licenses for mobile phone spectrum.
2. The minister of communications had changed the application cutoff date and approved licenses without a transparent bidding process, ignoring recommendations to auction licenses.
3. The court held that the minister's actions were arbitrary and violated the constitutionally guaranteed principles of equality and rule of law. Changing dates and bypassing proper procedure to benefit certain applicants showed misuse of power.
4. The state must manage public resources like spectrum in a manner that benefits citizens, not arbitrarily, and the license approval process was ruled unconstitutional.
The document discusses the concept of rule of law. It outlines Dicey's three principles of rule of law: absence of arbitrary power, equality before the law, and that rights come from judicial decisions rather than a constitution. However, it notes the concept has evolved and modern definitions see rule of law ensuring dignity and full development of individuals through political, social and economic conditions in addition to civil/political rights. It concludes true rule of law requires a democratic system with criticism of government and competing political parties.
This document discusses different conceptions of the rule of law, including formal, substantive, and functional definitions. It analyzes each approach's advantages and disadvantages. The document also examines the rule of law in Bangladesh based on provisions in its constitution. Though the constitution contains protections, these are outweighed by negative provisions and lack of enforcement. True rule of law requires separation of powers and reform of institutions like the judiciary, law enforcement, and parliament.
The document discusses rule of law in Bangladesh based on its constitution and realities. Key points:
- The Bangladesh constitution pledges to realize a socialist society where rule of law, fundamental rights, equality and justice are secured for all.
- However, in reality access to law and equality before it are only for the privileged. The judiciary has some independence but lower courts are controlled by the executive. Arbitrary arrests and detentions still occur under certain laws.
- Reforms are needed such as separating the judiciary from the executive, appointing an ombudsman, reforming law enforcement, and forging national unity around constitutional values to strengthen rule of law in Bangladesh.
The document discusses various sources of law and tools for legal research. It begins by outlining the process of legal research and different types of legal systems. It then describes primary sources of law such as constitutions, statutes, court decisions, treaties and customary law. Secondary sources like commentaries, journals, dictionaries are also discussed. The document also explains tools for locating legal information like law reports, legislative digests, case citators and equivalent case tables. It concludes by mentioning electronic databases that provide access to various legal sources.
Nigeria’s first national assembly and the challenge of democratic governance ...Kayode Fayemi
This document summarizes and analyzes the challenges faced by Nigeria's first National Assembly in the country's Fourth Republic, which began in 1999 after years of military rule. It discusses the Assembly's role in democratic governance and its responsibilities related to lawmaking, oversight of the executive branch, and representation. The summary examines the Assembly's composition, the political context of its establishment during a hurried democratic transition, and the high expectations and challenges it faced in helping consolidate Nigeria's young democracy and address issues like corruption, economic decline, and security problems.
This document provides an overview of constitutions and constitutionalism. It defines a constitution as the supreme law that establishes the framework for how a country is governed. Constitutions can be written, like in the US and Rwanda, or unwritten and based on traditions as in the UK. The document discusses the key elements and features of different types of constitutions, including flexible vs rigid and unitary vs federal systems. It provides historical context and examples to explain the concepts of constitution and constitutionalism.
The document discusses the definition and key characteristics of a constitution. It states that a constitution establishes the fundamental powers and framework of government by distributing powers among branches for the benefit of citizens. A constitution serves as the supreme law that all other laws and governmental actions must conform to. The Philippine constitution specifically is a written, conventional, and rigid constitution.
This document summarizes the key concepts of rule of law and separation of powers in India. It discusses how the rule of law establishes that the country is governed by law rather than individuals. It then examines the meaning of separation of powers and how powers are separated between the executive, legislature, and judiciary in the Indian constitution. In particular, it notes that while complete separation is not possible, the three branches exercise checks on each other to maintain a balance of powers.
The document discusses the rule of law and its implementation in India through the Indian judiciary and constitution. It provides an overview of the key principles of the rule of law as defined by Dicey, including equality before the law, laws determined by regular courts rather than officials, and fundamental rights arising from ordinary law. It examines how these principles are reflected in the Indian constitution through provisions like Articles 14, 21, and the independence of the judiciary. The judiciary has played an important role in strengthening the rule of law in India and expanding its meaning as part of the basic constitutional structure. Important cases are discussed that have upheld the rule of law against arbitrary government action and preserved its essence in Indian democracy.
This document provides an overview of the key concepts of constitutionalism including:
- Constitutionalism involves limiting political power through rights provisions like free speech and structural provisions like separation of powers.
- Key aspects include respect for the rule of law, respect for human rights, checks on governmental discretionary powers, and responsible government through mechanisms like judicial review.
- The rule of law principles encompass legality, limits on executive discretion, an impartial justice system, and compliance with human rights values.
- Separation of powers means distributing the legislative, executive, and judicial powers across different government branches to prevent the concentration of full state power in one entity and promote accountability.
Administrative law governs the decision-making of government administrative agencies and ensures they follow proper procedures. It expanded in the 12th century as more agencies were created to regulate social, economic, and political spheres. Administrative law checks abuse of government power, ensures impartiality and accountability of officials to citizens, and protects citizen rights from overreach. It also divides government into three branches: the legislature that makes laws, the judiciary that interprets laws, and the executive that implements laws.
Introduction and the concept o administrative law, its meaning, definition, objects, nature, functions, sources, theories and need.
History and Growth of Administrative law in UK, US, France and India.
This document summarizes key points from an article on constitutional law in Pakistan.
The article discusses the distribution of legislative powers between the federal and provincial governments according to Part V and Chapter 1 of the Pakistani constitution.
It outlines that the federal parliament has exclusive power to make laws on matters in the Federal Legislative List, while provincial assemblies have power over matters not in that list. Both levels of government can make laws around criminal law, procedure and evidence.
The article then examines various constitutional law doctrines that relate to legislative powers, such as the doctrines of colourable legislation, pith and substance, and occupied field. It also discusses how conflicts between federal and provincial laws are resolved based on the doctrine of rep
This document outlines the learning objectives, course materials, methods of learning, and provides an introduction to the course on Administrative Law. The key objectives are to introduce students to administrative law concepts, case law, regulatory issues, and how to deal with government agencies. Students will learn through reading materials including textbooks, case law, and regulatory documents. The methods of learning will include lectures, presentations, group work, assignments and modules. Administrative law governs the powers and procedures of administrative agencies and their relationship with the public.
Federal FeaturesThe federal features of the Constitution include:(1) A written constitution which defines the structure, organization and powers of the central as well as state governments(2) A rigid constitution which can be amended only with the consent of the states(3) An independent judiciary which acts as the guardian of the constitution.(4) A clear division of powers between the Center and the States through three lists- Union list, State list and Concurrent list(5) The creation of an Upper House (Rajya Sabha) which gives representation to the states, etc.
In this ppt we discuss the basic of administrative law with separation of power. It will helpful for those students who are preparing for law entrance examination. It will be also helpful for those students who are Pursuing LLB or LLM.
Administrative law is one of the important subject of law. It is very complicated topic . Here i provide you a Basic note of Administrative that will be helpful to your law entrance examination.
The document analyzes approaches to constitutional interpretation, specifically originalism versus a living document approach. It summarizes the key tenets of each view, including that originalists believe the constitution should be interpreted based on its original public meaning, while living document theorists argue it can evolve with changing times. The document also notes criticisms of both views, such as originalists making exceptions not supported by the original text, and living document views potentially undermining founding principles of liberty. Overall it argues the originalist approach grounded in the constitution's text and history best protects individual liberties.
The document provides an introduction to administrative law. It discusses how administrative law evolved in response to the growth of the modern welfare state and increased government powers. It defines administrative law and discusses its purpose and scope. Specifically:
1) Administrative law developed to control and regulate the exercise of executive power as governments assumed new social and economic roles. It aims to balance expanded state power with legal limits and protection of individual rights.
2) Administrative law is defined as the body of law governing the organization and powers of government agencies, and the principles and rules for exercising power in relation to citizens.
3) The primary purpose of administrative law is to control government power through mechanisms like judicial review, while also facilitating good governance,
1. The Supreme Court ruled on a case challenging the process used to grant licenses for mobile phone spectrum.
2. The minister of communications had changed the application cutoff date and approved licenses without a transparent bidding process, ignoring recommendations to auction licenses.
3. The court held that the minister's actions were arbitrary and violated the constitutionally guaranteed principles of equality and rule of law. Changing dates and bypassing proper procedure to benefit certain applicants showed misuse of power.
4. The state must manage public resources like spectrum in a manner that benefits citizens, not arbitrarily, and the license approval process was ruled unconstitutional.
The document discusses the concept of rule of law. It outlines Dicey's three principles of rule of law: absence of arbitrary power, equality before the law, and that rights come from judicial decisions rather than a constitution. However, it notes the concept has evolved and modern definitions see rule of law ensuring dignity and full development of individuals through political, social and economic conditions in addition to civil/political rights. It concludes true rule of law requires a democratic system with criticism of government and competing political parties.
This document discusses different conceptions of the rule of law, including formal, substantive, and functional definitions. It analyzes each approach's advantages and disadvantages. The document also examines the rule of law in Bangladesh based on provisions in its constitution. Though the constitution contains protections, these are outweighed by negative provisions and lack of enforcement. True rule of law requires separation of powers and reform of institutions like the judiciary, law enforcement, and parliament.
The document discusses rule of law in Bangladesh based on its constitution and realities. Key points:
- The Bangladesh constitution pledges to realize a socialist society where rule of law, fundamental rights, equality and justice are secured for all.
- However, in reality access to law and equality before it are only for the privileged. The judiciary has some independence but lower courts are controlled by the executive. Arbitrary arrests and detentions still occur under certain laws.
- Reforms are needed such as separating the judiciary from the executive, appointing an ombudsman, reforming law enforcement, and forging national unity around constitutional values to strengthen rule of law in Bangladesh.
The document discusses various sources of law and tools for legal research. It begins by outlining the process of legal research and different types of legal systems. It then describes primary sources of law such as constitutions, statutes, court decisions, treaties and customary law. Secondary sources like commentaries, journals, dictionaries are also discussed. The document also explains tools for locating legal information like law reports, legislative digests, case citators and equivalent case tables. It concludes by mentioning electronic databases that provide access to various legal sources.
Nigeria’s first national assembly and the challenge of democratic governance ...Kayode Fayemi
This document summarizes and analyzes the challenges faced by Nigeria's first National Assembly in the country's Fourth Republic, which began in 1999 after years of military rule. It discusses the Assembly's role in democratic governance and its responsibilities related to lawmaking, oversight of the executive branch, and representation. The summary examines the Assembly's composition, the political context of its establishment during a hurried democratic transition, and the high expectations and challenges it faced in helping consolidate Nigeria's young democracy and address issues like corruption, economic decline, and security problems.
This document provides an overview of constitutions and constitutionalism. It defines a constitution as the supreme law that establishes the framework for how a country is governed. Constitutions can be written, like in the US and Rwanda, or unwritten and based on traditions as in the UK. The document discusses the key elements and features of different types of constitutions, including flexible vs rigid and unitary vs federal systems. It provides historical context and examples to explain the concepts of constitution and constitutionalism.
The document discusses the definition and key characteristics of a constitution. It states that a constitution establishes the fundamental powers and framework of government by distributing powers among branches for the benefit of citizens. A constitution serves as the supreme law that all other laws and governmental actions must conform to. The Philippine constitution specifically is a written, conventional, and rigid constitution.
Constitutional development in pakistan by ammara batool iiuiAmmaraAwanKhan
This document provides an overview of the constitutional history of Pakistan through various acts and documents:
1) It outlines some key British acts that shaped governance in the subcontinent like the Indian Act of 1858 which ended East India Company rule and transferred power to the Crown, and the Indian Councils Acts of 1861 and 1892 which gradually increased representation.
2) It also discusses reforms like the Minto-Morley reforms of 1909 which introduced separate electorates for Muslims and increased representation.
3) The document then provides details on the Government of India Act 1919 and discusses the various constitutions of Pakistan - the 1956, 1962 and 1973 constitutions - as well as the process of constitutional amendment.
ANALYZING THE CONSTITUTIONAL RULES OF INTERPRETATIONAnushka Singh
The document discusses principles of constitutional interpretation in India. It begins by defining interpretation and discussing the importance of constitutional interpretation. It then outlines some key principles that Indian courts use in interpreting the constitution, including:
1. The principle of pith and substance, which examines the true nature and subject matter of a law.
2. The principle of eclipse, which deals with pre-constitutional laws that conflict with fundamental rights.
3. The principle of severability, which holds that if part of a law is unconstitutional, only that part should be invalidated, not the whole law.
4. The principle of colourable legislation, which examines whether a law indirectly achieves something the legislature does not have direct
The document provides an overview of Pakistan's constitutional history from 1909 to 1973. It discusses several key acts and constitutions:
- The Minto-Marley Reforms of 1909 expanded legislative councils and gave Muslims separate representation.
- The Government of India Act of 1935 established a federal structure and provincial autonomy.
- The 1956 constitution established Pakistan as an Islamic republic with fundamental rights and a parliamentary system.
- The 1962 constitution established a powerful presidential system but centralized power in the presidency.
- The 1973 constitution returned to a parliamentary system with a ceremonial president, bicameral parliament, and protection of fundamental rights and Islamic provisions.
This document discusses the key concepts and classifications of constitutions. It defines a constitution as a written document that establishes the fundamental powers and principles of government. The document then summarizes the key sections and purposes of the Philippine constitution, including defining the structure of government, rights of citizens, and processes for amendment. It also briefly outlines the history of Philippine constitutions, including the Malolos Constitution, 1935 Constitution, 1973 Constitution, and the current 1987 Constitution.
This document discusses the key concepts and classifications of constitutions. It defines a constitution as a written document that establishes the fundamental powers and principles of government. The document then summarizes the key sections and purposes of the Philippine constitution, including defining the structure of government, rights of citizens, and processes for amendment. It also briefly outlines the history of Philippine constitutions, including the Malolos Constitution, 1935 Constitution, 1973 Constitution, and the current 1987 Constitution.
The document provides information on key aspects of the Constitution of India:
- It is the longest constitution in the world, originally with 395 articles and now with over 400 after amendments.
- It draws from various other constitutions around the world, combining the best features of federal, unitary, parliamentary and presidential systems.
- Key features include fundamental rights, directive principles, an independent judiciary with power of judicial review, adult suffrage, and emergency provisions.
- It establishes India as a sovereign, socialist, secular, democratic republic with goals of justice, liberty, equality and fraternity.
The document provides an overview of constitutional development in Pakistan, beginning with definitions of key concepts like constitution and discussing Pakistan's various constitutions over time. The major constitutions discussed include the 1956 constitution, which established Pakistan as a federal parliamentary republic, the 1962 constitution under Ayub Khan's military dictatorship, and the 1973 constitution, which re-established parliamentary democracy and provincial autonomy.
This document provides an overview of the conceptual framework and historical development of constitutions in Ethiopia. It discusses key concepts like the meaning of a constitution and constitutionalism. It then outlines the historical origins and evolution of constitutions from early civilizations like the Babylonians, Hebrews, Romans, and Greeks. It notes that the first written constitution in Ethiopia was introduced in 1931 to gain international recognition, but it did not provide genuine freedoms. The 1931 constitution was revised in 1955 due to factors like the federation of Eritrea with Ethiopia. The document also describes the traditional Ethiopian constitutional documents of Fetha Negest and Kibre Negest, and outlines the purposes and forms that constitutions can take.
The document discusses the constitutional development in Pakistan, beginning with definitions of a constitution and describing how laws in Muslim states are derived from the Quran and hadith. It outlines different types of constitutions like written, unwritten, partly written, federal, unitary, flexible, and rigid. Key events in Pakistan's constitutional history discussed include the first Muslim constitution under Muhammad, British reforms like the Minto-Marley Reforms of 1909 and the Government of India Act 1935 which established provincial autonomy and an all India federation. The objectives of Pakistan's 1956 constitution which established an Islamic federal republic with fundamental rights and an independent judiciary are also summarized.
This document summarizes a presentation on constitutions. It defines a constitution as the fundamental law of a state that determines legal relations between the government and its subjects. There are different types of constitutions including evolved/enacted, legal/real, written/unwritten, and flexible/rigid. Qualities of a good constitution include clarity, brevity, comprehensiveness, and flexibility. A constitution establishes the structure of government, protects fundamental rights, and can be amended through various processes like referendums. In conclusion, the constitution is important for both citizens and the state by providing social protections and serving as the framework for governance.
Constitutional development in pakistan by Ammara Battool iiuiAmmaraAwanKhan
This document discusses the constitutional development in Pakistan. It begins by defining what a constitution is - the fundamental laws and principles that govern how a country is organized. It notes that in Muslim states like Pakistan, laws come from the Quran and teachings of the Prophet Muhammad rather than a written constitution. The document then discusses different types of constitutions like written, unwritten, federal, unitary and flexible vs rigid. It also examines Pakistan's first Muslim constitution established by Muhammad and several reforms that expanded legislative representation over time.
The document discusses the concept of a constitution, including its meaning, nature, purpose, and types. It provides details on the Philippine Constitution of 1935, including its framing, ratification, sources of influence, scope, and amendments. Specifically, it notes that the 1935 Constitution was drafted by a constitutional convention authorized by the Philippine Independence Act, was ratified by the Filipino people, and drew influence from sources like the US Constitution and previous organic laws in the Philippines. The Constitution was intended for both the Commonwealth and eventual Republic of the Philippines.
Meaning of Constitution
In broad sense, the term constitution
refers to that body of rules and principles
in accordance with which the powers of
sovereignty are regularly exercised.
It maybe defined as that written
instrument by which the fundamental
powers of the government are established,
limited, and defined and by which these
powers are distributed among the several
departments or branches for their safe
and useful exercise for the benefit of the
people. Nature and purpose or function of
constitution
the charter creating the government. It has the
status of a supreme or fundamental law as it
speaks for the entire people from whom it derives
its claim to obedience.
It is binding on all individual citizens and all
organs of the government.
It is the law to which other laws must conform
and in accordance with which all private rights
must be determined and all public authority
administered.
It is a test of the legality of all government
action, whether proceeding from the highest
official or lowest functionary.
The document discusses the structure and powers of the Philippine government based on the Constitution. It notes that the government is divided into three branches - legislative, executive, and judicial - based on the separation of powers doctrine. The legislative branch, or Congress, has the power to create and repeal laws, appropriate funds, levy taxes, and approve treaties. These powers are delegated by the people through the Constitution but are subject to checks and balances from the other branches to prevent abuse of power.
Introduction Every Society has its own set of.pdfbkbk37
The document discusses the doctrine of separation of powers in Ireland's constitution. It explains that the constitution divides government power among the legislative, executive, and judicial branches to prevent any one branch from abusing its authority. It also allows the branches to check each other through a system of checks and balances. The document then analyzes whether the doctrine could be used to challenge public health orders issued by Ireland's health minister during the COVID-19 pandemic. It concludes that while the minister has authority delegated by the Oireachtas to make regulations, the orders could still be subject to judicial review to ensure they are constitutional.
Model essay should the uk adopt a codified constitutionmattbentley34
The document discusses the arguments for and against the UK adopting a codified constitution. Key points include:
- Codified constitutions are more rigid and difficult to amend than uncodified constitutions like the UK's, making codified constitutions less able to adapt to changing times.
- Codified constitutions could lead to "judicial tyranny" as unelected judges, not accountable to the public, would have power to interpret and police the constitution.
- Adopting a codified constitution would abolish the UK's principle of parliamentary sovereignty by which Parliament can make or change any law.
- On balance, the document concludes the UK should not adopt a codified constitution due to the risks of inf
Similar to Amendments to the constitution discussion paper 7 (20)
Model essay should the uk adopt a codified constitution
Amendments to the constitution discussion paper 7
1. The Malawi Law Commission
CONSTITUTIONAL REVIEW PROGRAMME:
DISCUSSION PAPER NO. 7
AMENDMENTS TO THE CONSTITUTION & PRESERVATION OF ITS
SANCTITY
“No work of man is perfect. It is inevitable that in the course of time, the
imperfections of a written constitution will become apparent. Moreover,
the passage of time will bring changes in society, which a constitution
must accommodate if it is to remain suitable for the nation. It was
imperative, therefore, that a practicable means of amending the
constitution be provided.”
Thomas Jefferson
June, 2006
4. 1. Introduction
Malawi’s current Constitution was adopted provisionally on May 18 1994. It
came into force a year thereafter on May 18 1995. Between 1994 and 2005,
Parliament passed nine Constitution Amendment Acts amending well over 90
sections.1
Two of these Acts, which amended 24 sections, were passed within
the one-year period the Constitution was in force provisionally. Two
Amendment Bills failed to pass2
and two more were withdrawn.3
In either
instance the government succumbed to public pressure following massive civil
society lobbying against the proposed amendments. There are two
outstanding Constitution Amendment Bills that, if passed, will amend, at a
minimum, a further 18 sections.4
Some of the amendments passed during the last 10 years were passed to
improve the text of the constitution, correct textual errors and clear
ambiguities identified during its provisional application.5
However, it became
undeniably clear during the 1st
National Conference on the Review of the
Constitution that a significant number, if not all the non-technical amendments
1
Anthony Kamanga “Amendments to the Constitution Since 18th
May 1994,” Paper presented
to the 1st
National Constitutional Review Conference, Capital Hotel, Lilongwe, March 28-31,
2006.
2
Constitution (Amendment) Bill 2002, the Open Terms Bill, and the Constitution
(Amendment) Bill 2005, on s.65, both were introduced as Private Members Bills, cf Kamanga,
pp 25-26.
3
Constitution (Amendment) Bill 2002, the “Third Term” Bill and Constitution (Amendment) Bill
2004 on the extension of the lifespan of the National Compensation Tribunal, and see
Kamanga p 27.
4 Anthony Kamanga “Amendments to the Constitution Since 18th
May 1994,” Paper
presented to the 1st
National Constitutional Review Conference, Capital Hotel, Lilongwe,
March 28-31, 2006, P. 2
5 Ibid.
1
5. passed or proposed to address “political realities” and “fill perceived gaps”,
were in fact passed solely to serve political expedience and to achieve self-
seeking interests of the leaders of the ruling United Democratic Front [UDF].6
Of the 13 Constitution Amendment Bills presented in Parliament, at least two
were introduced as private members’ Bills. In retrospect, coupled with a little
hindsight, it is evident that the ‘Open Terms’ Bill, introduced by Khwauli
Msiska, MP, was craftily designed to extend Dr. Muluzi’s hold on the
presidency. It was generally believed that the approach of a Private Member’s
Bill was one way to veil the diabolical intent behind the proposed amendment.
Of the remaining two, both presented during the current term of Parliament
under the presidency of Dr. Bingu wa Mutharika, one was intended to extend
the application of s.65 to target Members of Parliament that joined the
Government side after President Mutharika resigned from the UDF.7
The
other was intended to provide for a “National Governing Council” in
anticipation of his impeachment; a further demonstration of the ill intent of
most amendments so far enacted or proposed, at serving selfish political
goals.
It is against this background that this discussion paper is prepared as part of
the resource materials to the Special Law Commission on the review of the
Constitution. The paper’s primary objective is to present in its appropriate
perspective, the sanctity of the Constitution juxtaposed with a sobering
examination of the numerous and oft-unjustified amendments to the
6
Ibid.
7
Dr. Bingu wa Mutharika became president as a UDF candidate. He subsequently resigned
from the UDF and established his own political party, the Democratic Progressive Party.
2
6. constitution in the first ten years of its operation. It is hoped that in highlighting
the sanctity of the Constitution as the supreme law of the land, the paper will
serve to guide Commissioners towards the greater need to fully preserve that
sanctity and prevent self-seeking individuals from abusing the mechanism of
constitutional amendment during their stay in office. This, it is hoped, will be
achieved in part through a presentation of the values and principles that ought
to prevail and remain paramount when debating mechanisms and processes
for effecting constitutional amendments. These mechanisms, as will be
illustrated, must necessarily guarantee that amendments to the constitution
only serve to advance national interests rather than political expedience. To
that end, the paper will examine, on a comparative basis, the mechanisms
and processes in selected jurisdictions and those in the Malawi Constitution.
In conclusion, the paper seeks to exhort the Commission to consider practical,
yet more restrictive, mechanisms and procedures for amending the
Constitution in order to safeguard its entrenched sanctity and preserve its
integrity.
3
7. 2. The Sanctity Of The Constitution
2.1 Constitutions defined
The Oxford English Dictionary defines a constitution as "a body of
fundamental principles or established precedents according to which a state
or organisation is governed".
The Collins Dictionary says a constitution consists of "the fundamental
principles on which a state is governed, especially when considered as
embodying the rights of subjects".
Black’s Law Dictionary defines a constitution as the “organic and fundamental
law of a nation or state, which may be written or unwritten, establishing the
character and conception of its government, laying the basic principles to
which its internal life is to be conformed, organizing 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.”
Black’s Law Dictionary goes further to suggest that a constitution may be
regarded as a charter of government deriving its whole authority from the
governed. In this sense a constitution is presented as the written instrument
agreed upon by the people of a country, or federation, as the “absolute rule of
action and decision for all branches, departments and officers of the
government, which can only be changed by the authority which established it
4
8. by amendment; and in opposition to which any act or ordinance of any such
department or officer is null and void”.8
None of these definitions expressly highlight the character a constitution
should necessarily assume; whether written or unwritten. In the latter part of
Black’s definition, however, there is an implicit introduction of the notion of the
existence of some form of document. “Constitution” in this sense means a
document having a special legal sanctity, which sets out the framework and
principal functions and operations of the different branches of government and
their interrelation with one another and individual citizens.9
This is true of
nations like Malawi, India, South Africa and the United States. Some theorists
suggest that to view a Constitution as a document is to construe the term
narrowly.10
The United Kingdom would possess no Constitution. When
construed broadly, the “constitution” represents more than just a document. It
represents the collection of rules defining the composition, functions and
interrelationship of the institutions of government and delineating the rights
and duties of the governed.11
In this broad sense, the United Kingdom does
posses a Constitution and a body of constitutional law.
At the core of either concept is the undeniable representation of an intangible
but very real contract between those exercising the power of government and
the governed. This collection or body of principles, traditions and cannons
8
Black’s Law Dictionary, Sixth Edition (St. Paul Minn.: West Publishing Co. 1990) p 311
“constitution”
9
A. W. Bradley and K. D. Ewing, Constitutional and Administrative Law, 12th
Ed, (London,
Longman) p. 4.
10
Stanley De Smith & Another, Constitutional and Administrative Law, (Suffolk, Penguin
Books, 1998) pp 3-13, passim. See also A. W. Bradley, op cit, pp 4-5.
11
Ibid-p. 6.
5
9. ranks paramount over any act or conduct of the government. They cannot be
changed or altered except in accordance with the authority that established
the Constitution.12
2.2 Constitutions and Ordinary Legislation Contrasted
Constitutions differ from regular legislation in a number of significant ways.
They usually have peculiar origins, are often adopted or enacted by special
bodies and are drafted in a unique language and will most likely contain a Bill
of rights. Constitutions also differ from regular legislation in the way they are
interpreted and the relatively high pedestal they possess in the hierarchy of
laws.
Constitutions, unlike ordinary legislation, have a unique and distinct origin and
background. All too often, constitutions have emerged out of conflict or
revolution, either by a nation seeking self-determination from colonial
dominance or a subsequent generation rising against an earlier oppressive
government. The United States Constitution was conceived in the wake of the
new American nation seeking independence from the British to ensure that its
people would not suffer the despotic absolute rule of the British and European
monarchs; and to secure liberty and security both for the union and individual
citizens.13
Malawi’s current constitution was forged against a background of a
thirty year one party dictatorship that left many oppressed, exiled or dead
12
Ibid-p. 10.
13
S.E Finer, et al, op cit p7
6
10. during the first 30 years of independence. Of course, there was a Constitution
during this period but it hardly ever protected the people or their rights. The
government ranked supreme and could carry out any act or conduct without
regard to the provisions of the constitution.14
In 1993, the people of Malawi
rejected that Constitution and form of government. They adopted a more
robust Constitution, which recognised basic human rights and a form of
government that would be accountable to the people.15
Similarly, a rejection of
the apartheid system with all its repressive elements led to the birth of the
new South African Constitution in 1994 and which was confirmed in 1996.
Constitutions, unlike regular legislation are rarely passed by regular
parliaments. They are often adopted by special conventions. The US
Constitution was adopted by a convention of the States on September 17,
1787.16
The US Congress only began to sit in December 1789.17
In Germany
a special Parliamentary Council adopted the German Basic Law on May 8,
1949.18
Similarly in Malawi it was a specially created National Consultative
Council19
that supervised the formation of and adopted the current
Constitution, which was then enacted by a specially convened parliament on
16th
May 1994.
14
Msaiwale Chigawa, “The Fundamental Values of the Republic of Malawi Constitution of
1994” Paper presented to the 1st
National Constitutional Review Conference, Capital Hotel,
Lilongwe, March 28-31, 2006
15
Section 12
16
Ibid p.115
17
Robert J. Steamer & Richard J. Maiman American Constitutional Law, Introduction and
Case Studies (New York; McGraw-Hill, inc 1992) p12
18
ibid, p127
19
A body of several registered political parties, established by an Act of Parliament in 1993.
7
11. Written constitutions usually reflect the beliefs and political aspirations of
those who framed it.20
Drafted in lofty and emotional language they almost
always mirror the mindset of a nation at that crucial period when they were
adopted. Emotional words, inspirational preambles and broad sweeping
provisions make up the contents of constitutions. Regular legislation, on the
contrary, is more technical in form and language and tends to address specific
areas of the law.
The South African Constitution begins with the words, "We, the people of
South Africa, recognise the injustices of our past; honour those who suffered
for justice and freedom in our land; respect those who have worked to build
and develop our country; and believe that South Africa belongs to all who live
in it, united in our diversity."
The preamble to the US Constitution establishes the reason for the
Constitution, reflecting the desires of the framers to improve on the
government they currently had, to ensure that the government would be just,
and would protect its citizens from internal strife and from attack from the
outside. It would be of benefit to the people, rather than to their detriment.
And, perhaps as importantly, it intended to do the same for the future
generations of Americans.”21
20
A. W. Bradley, op cit p. 6
21
http://www.usconstitution.net (Visited on May 30, 2006)
8
12. Malawi’s preamble to the Constitution is also telling. “The people of Malawi,
recognizing the sanctity of human life and the unity of all mankind, guided by
their private conscience and collective wisdom, seeking to guarantee the
welfare and development of all the people of malawi, national harmony and
peaceful international relations, desirous of creating a constitutional order in
the republic of malawi based on the need for an open, democratic and
accountable government..adopt this Constitution.”
Constitutions and constitutionalism go hand-in-hand with human rights, which
are often entrenched in a Bill of rights.22
The first 10 amendments in the US
Constitution comprise the Bill of rights; chapter 2 of South Africa's 1996
Constitution contains its Bill of rights. Malawi’s Bill of rights is contained in
chapter 4. These rights include rights to equality, human dignity, life and
privacy, among others, as well as the freedoms of religion and expression.
Constitutions are interpreted differently from ordinary legislation. In construing
regular legislation, many approaches exist, but the dominant rule is to assign
words their plain and ordinary meaning. Constitutions are interpreted broadly
to reflect the intent of their framers. This was emphasised by Banda CJ, in
Gwanda Chakuamba, Kamlepo Kalua, Bishop Kamfosi Mnkhumbwe vs The
Attorney General, The Malawi Electoral Commission and the United
Democratic Front23
: -
22
http://www.constitutionalcourt.org.za (Visited on May 30, 2006)
23
MSCA Civil Appeal No. 20 of 2000 (unreported).
9
13. “It is clear […] that it is to the whole Constitution that we must look
for guidance to discover how the framers of the Constitution intended
to effectuate the general purpose of the Constitution.” 24
The Constitution itself expressly entrusts powers to develop principles to be
applied in interpreting the Constitution to the judiciary.25
These principles must
promote the values that underlie an open and democratic society.26
The
Judiciary is enjoined to take full account of the provisions of the fundamental
principles and the provision on human rights.27
The judiciary is further
encouraged where applicable, to have regard to current norms of public
international law and comparable foreign case law.28
In Fred Nseula vs Attorney General and Malawi Congress Party29
Banda CJ,
again reiterated the significance of employing special principles in the
interpretation of the Constitution: -
“Constitutions are drafted in broad and general terms which lay down
broad principles and they call, therefore, for a generous interpretation
avoiding strict legalistic interpretation. The language of a Constitution
must be construed not in [a] narrow legalistic and pedantic way but
broadly and purposively. The interpretation should be aimed at
fulfilling the intention of Parliament […] all the provisions bearing
24
At pp 5-6.
25
Section 11
26
Section 11 (2) (b)
27
See Chapters III and Chapter IV of the Constitution
28
Section 11 (c)
29
MSCA Civil Appeal No. 32 of 1997 (Unrep).
10
14. upon a particular subject must be brought to bear and to be so
interpreted as to effectuate the great purpose of the Constitution.” 30
In the United States the interpretation of the constitution has been
fundamental to its legal, political and social development. The interpretation
has been dynamic and fluid. The words of the constitution have been
accorded different meanings at different times depending on the social and
political needs of a particular generation.31
2.3 Preserving the Sanctity of the Constitution
It has been suggested that constitutional law concerns the relationship
between the individual and the state from a particular viewpoint; the notion of
law. And that law does not exist in a social or political vacuum.32
The rules of
constitutional law that govern political relations will within a given society
reflect a particular distribution of political power. Constitutional law expresses
what may be a very high degree of consensus about the organs and
procedures by which political decisions are taken. In a stable democracy,
constitutional law reflects the value that people attach to orderly human
relations, to individual freedoms under law and to institutions such as
parliament, political parties, free elections and a free press.33
30
At p 9.
31
http://www.usconstitution.net/ (visited on May 9, 2006 and see page 20 below on amending
the American Constitution.)
32
A. W. Bradley, op cit p. 3
33
A. W. Bradley, op cit p. 3
11
15. “Constitutional law is one branch of human learning and experience
that helps to make life in today’s world tolerable and less brutish than it
might otherwise be.”34
By their very nature therefore, constitutions posses a significance and sanctity
often ignored and taken for granted. Because nations pin their hopes, ideals
and aspirations on the successes of their constitutions, it becomes imperative
that constitutions be accorded the sanctity and respect reflecting such
solemnity.
The Malawi Constitution asserts its supremacy over all branches of
government.35
It binds the acts and conduct of the executive, the laws passed
by the legislature, and the decisions passed by the Judiciary,36
while ensuring
equal protection to all peoples.37
In the resolution of all political disputes and
application of all laws, the constitution is the supreme arbiter and ultimate
source of authority.38
Any act or law inconsistent with the constitution is
invalid.39
It is easy to speak of the sanctity of the Constitution. The preservation in
reality of such inviolability and whether it retains any significance and
reverence in law and political association entirely depends on how each state
venerates its own constitution.
34
Ibid P. 4
35
Section 10
36
Section 4
37
Section 4
38
Section 10 (1)
39
Section 5
12
16. The US Constitution is one of the shortest constitutions ever drafted. It has
been hailed as an example of brevity and clarity.40
Much of this stems from
the fact that it enumerates merely the principal features of the federal
government and refrains from regulating state government machinery.
Another feature of the US Constitution that has ensured its success is its
malleable flexibility coupled with the enormous resourcefulness of the judicial
branch in interpreting the words of the constitution to reflect the national
interests and needs of each passing generation.41
The balance is carefully
achieved in giving such awesome power to the judicial branch by reserving for
the Congress power to correct judicial miss-interpretation of the constitution.42
In contrast, the India Constitution is one of the most detailed, elaborate and
longest constitutions, with 444 articles, 12 schedules and 117, 369 words in
the English version.43
While the Constitution of India draws extensively from
Western legal traditions in its enunciation of the principles of liberal
democracy, it is distinguished from many Western constitutions in its
elaboration of principles reflecting aspirations to end the inequities of
traditional social relations and enhance the social welfare of the population.44
Granville Austin has said that probably no other nation's constitution "has
40
S.E Finer, op cit p7
41
Ibid, p15. See also http://etext.virginia.edu/jefferson/quotations/jeff1000.htm visited an May
4 2006.
42
Consider the 11th
Amendment which limited the original jurisdiction of the US Supreme
Court after its ruling in Chisholm –v- State of Georgia 2 US 419 (1793)
43
http://en.wikipedia.org/wiki/Constitution_of_India, the free encyclopaedia p 1, visited on
May 4 2006.
44
Ibid p 3.
13
17. provided so much impetus toward changing and rebuilding society for the
common good” as the Indian constitution. 45
On the other hand the most graphic disdain and disregard towards a
consitution is perhaps displayed best by the Russian Communist Government
prior to the fall of the Soviet Union.46
Whether a Constitution is accorded any reverence reflects an individual
state’s regard or disregard towards a desire to conform to the norms, cannons
and principles it has chosen to abide by. No amount of restrictions in the
constitution on powers of amendment or government will of itself, serve to
uphold its sanctity without the political will of the government and those in the
legislative branch to respect its provisions and the pronouncements of the
judicial branch exercised with wisdom and sobriety.
45
Ibid p 3.
46
The [Russian] regime’s attitude to law and the constitution displayed a striking contrast
between its words and its deeds. Mikhail Gorbachev, USSR leader, successfully upgraded
the electoral process and the role of the legislature at the expense of the Party, and the years
of perestroika (1987-1991) resounded with sermons extolling and slogans proclaiming the
rule of law. But laws soon became weapons in the struggle to save the Uninon and in the
battle between the Russian Parliament and the President. The heads of state of three of its
members, (Russia, Ukraine, Belorussia) announced its end at the Minsk Agreement of
December 8 1991, and four days later the Russian Supreme Soviet ratified the agreement
and denounced the 1922 Union Treaty. On December 25, 1991, Mikhail Gorbachev resigned
as USSR President and on the following day an inquorate Union Parliament wound up the
legislative, executive and judicial branches. During the following two years, the same disdain,
and contempt, was displayed by both the Russian Congress and the President. Constitutional
Amendments, requiring a two-thirds majority of the Congress, were constantly being
introduced and immediately adopted. At the same time President Boris Yeltsin was issuing a
stream of Presidential edicts of all kinds. Throughout the following eighteen months
competing drafts of a new constitution were produced and debated. On September 22 1993,
on the ground that ‘the security of Russia is a higher value than formal conformity to
contradictory norms created by the legislative branch of government’, the president dissolved
the legislature. He had no legal power to do so, as the constitutional Court promptly pointed
out, so on October 7 he suspended that body. The physical challenge of removing members
of parliament was overcome by arms: the House of Parliament … was fired on, killing scores
of occupants; it was then taken by force. Th speaker and others were detained and
imprisoned. See S.E Finer, op cit pp 11-12 for a fuller treatment of the subject.
14
18. In The Registered Trustees Of The Public Affairs Committee –v- The
Attorney General and The Speaker Of The National Assembly and The
Malawi Human Rights Commission (amicus curiae)47
Justice Chipeta offers
an apt summation: -
“Our … Constitution … is the document that contains the wishes
and aspirations of our people. The more genuinely we give it
attention and the more sincerely we evaluate its enabling provisions
without rushing to disable them by trying to force them to fit in some
ancient and expiring doctrinaire concepts, the nearer we will get to
the justice regime the framers of the Constitution contemplated for
the people of Malawi.” 48
This is a clear recognition and an incontrovertible emphasis of the import the
framers of the Constitution placed on it as a means through which national
goals and justice for the people of Malawi can be attained. It is only prudent
therefore that those in leadership positions and who retain the power to guide
the direction of our constitutional development should constantly bear in mind
the momentous responsibility they assume. They owe it to every Malawian to
desist from undertaking initiatives that destabilize the inviolability of the
constitution and these principles we have set for our nation. The past 10 years
have shown with glaring lucidity that those so far entrusted with our
constitutional future had little regard for the sanctity of the constitution. This
review consequently offers a unique opportunity for self censure for the
47 Civil Cause Number 1861 Of 2003 (HC) (Unrep)
48 At page 2.
15
19. Malawi nation to decide how the sanctity of the constitution can be fortified
and the destiny of all Malawians be guaranteed in the protection afforded by
the constitution. Clearly this calls for a sober and frank confrontation with our
dark temperaments that compel us as leaders to place our individual interests
above those of the many deserving but unrepresented peoples of Malawi.
16
20. 3. Comparative Constitutional Amendment Procedures
The provisions on the means by which a constitution may be amended are of
both juridical and political importance: they are themselves an exercise of the
constituent power in spelling out how its own creation may be changed; they
divide the amending power among people, legislature, and executive, or
between a federation and its components; and they may express basic
values.49
Thomas Jefferson, a founding father of the United States, wrote extensively
on politics and government. His avid observations on constitutional
amendments are instructive and present some level of sobriety in balancing
the need to amend the constitution in response to each generation’s needs
against the overriding desire to preserve the sanctity of the constitution. He
argues that whatever form a constitution takes, great care must be taken to
provide a mode of amendment when experience or change of circumstances
shall have manifested that any part of it is unadapted to the good of the
nation.50
He further asserts that a greater facility of amendment is certainly requisite to
maintain it in a course of action accommodated to the times and changes
through which any nation is ever passing. He points out that time and
49
S.E Finer, et al, Comparing Constitutions, (Oxford: Clarendon Press, 1995) p13
50
Thomas Jefferson to A. Coray, 1823. See T. J. On the Constitution.
17
21. changes in the condition and constitution of society may require occasional
and corresponding modifications to its constitution.51
While he acknowledged the error of looking at constitutions with
sanctimonious reverence to the point of deeming them the ark of the
covenant, too sacred to be touched, he admitted that recurrent and untested
alterations of laws and constitutions was equally unjustifiable and imprudent.
He acquiesced that moderate imperfections are better tolerated since once
known, they can be accommodated and practical means of correcting their ill
effects be devised.52
“But I know also that laws and institutions must go hand in hand with
the progress of the human mind. As that becomes more developed,
more enlightened, as new discoveries are made, new truths disclosed
and manners and opinions change with the change of circumstances,
institutions must advance also and keep pace with the times."
"Those who [advocate] reformation of institutions pari passu with the
progress of science [maintain] that no definite limits [can] be assigned
to that progress. The enemies of reform, on the other hand, [deny]
improvement and [advocate] steady adherence to the principles,
practices and institutions of our fathers, which they [represent] as the
51
Thomas Jefferson to Edward Livingston, 1825.
52
Thomas Jefferson to Samuel Kercheval in 1816.
18
22. consummation of wisdom and acme of excellence, beyond which the
human mind could never advance." 53
To this end, Jefferson advocated episodic reviews of the constitution to gauge
whether there be necessity to adjust it to the ever dynamic progress of the
state. He maintained that this, however, ought to be done after the passage of
a generation.54
"Let us provide in our constitution for its revision at stated periods.
What these periods should be nature herself indicates. By the
European tables of mortality, of the adults living at any one moment of
time, a majority will be dead in about nineteen years. At the end of that
period, then, a new majority is come into place; or, in other words, a
new generation. Each generation is as independent as the one
preceding, as that was of all, which had gone before. It has then, like
them, a right to choose for itself the form of government it believes
most promotive of its own happiness; consequently, to accommodate
to the circumstances in which it finds itself that received from its
predecessors; and it is for the peace and good of mankind that a
solemn opportunity of doing this every nineteen or twenty years should
be provided by the constitution, so that it may be handed on with
periodical repairs from generation to generation to the end of time, if
anything human can so long endure."55
53
Thomas Jefferson to John Adams, 1813.
54
Thomas Jefferson believed 19 years to be an appropriate period carry out periodic reviews
of the constitution.
55
Thomas Jefferson to Samuel Kercheval, 1816.
19
23. 3.1 The American Constitution
Amending the United States Constitution is not easy.56
The US Constitution
spells out two ways for how it can be amended one of which has never been
used before. The first method is for a Bill to pass both halves of the
legislature, by a two-thirds majority in each. Once the Bill has passed both
houses, it goes on to the state legislatures for ratification. Sometimes a period
will be prescribed within which an amendment must be ratified by the states or
it automatically lapses.57
The last amendment to be ratified was the member’s
salary amendment and was adopted in 1992 while the “equal rights”
amendments failed ratification and was never adopted, as were several
others.58
The second method prescribed is for a Constitutional Convention to be called
by two-thirds of the legislatures of the States, and for that Convention to
propose one or more amendments. These amendments are then sent to the
states to be approved by three-fourths of the legislatures or conventions. This
route has never been taken, and there is discussion in political science circles
about just how such a convention would be convened, and what kind of
changes it would bring about.59
56
http://www.usconstitution.net/constam.html visited on April 26 2006.
57
Compare the 27th
Amendment. Congress will normally put a time limit (typically seven
years) for the Bill to be approved as an amendment for example, see the 21st
and 22nd
dealt
with at http://www.usconstitution.net/constam.html visited on April 26 2006.
58
Ibid.
59
Ibid.
20
24. Regardless of which of the two proposal routes is taken, the amendment must
be approved by three-fourths of states. The amendment as passed may
specify whether the Bill must be passed by the state legislatures or by a state
convention. Amendments are sent to the legislatures of the states by default
and passage by the legislature or convention is by simple majority.60
The US President usually has no role in the formal amendment process,
although he sometimes makes his opinion known. He cannot veto an
amendment proposal, nor a ratification.61
“The negative of the President applies only to the ordinary cases of
legislation: He has nothing to do with the proposition, or adoption, of
amendments to the Constitution.”62
Another way the Constitution's meaning is changed is often referred to as
"informal amendment" which is when the interpretation of the Constitution can
change over time.
There are two main ways that the interpretation of the Constitution changes,
and hence its meaning. The first is simply that circumstances can change.
One prime example is the extension of the vote. In the times of the
Constitutional Convention, the vote was often granted only to monied land
holders. Over time, this changed and the vote was extended to more and
60
Ibid
61
Article 5, see also the Supreme Court decision in Hollingsworth v Virginia 3 USC 378
[1798].
62
http://www.usconstitution.net/constam.html, op cit.
21
25. more groups. Finally, the vote was extended to all males, then all persons 21
and older, and then to all persons 18 and older. The informal status quo
became law, a part of the Constitution, because that was the direction the
culture was headed. Another example is the political process that has evolved
in the United States: political parties, and their trappings (such as primaries
and conventions) are not mentioned or contemplated in the Constitution.63
The second major way the meaning of the Constitution changes is through the
judiciary. As the ultimate arbiter of how the Constitution is interpreted, the
judiciary wields more actual power than the Constitution alludes to. For
example, before the Privacy Cases,64
it was perfectly constitutional for a state
to forbid married couples from using contraception; for a state to forbid blacks
and whites to marry; to abolish abortion.65
Because of judicial changes in the
interpretation of the Constitution, the nation's outlook on these issues
changed. These changes in meaning are significant because they can happen
by a simple judge's ruling and they are not a part of the Constitution and so
they can be changed later.
One other way of amendment is also not mentioned in the Constitution and
has never been used referred to as “popular amendment”.66
63
Ibid.
64
The Privacy Cases, which included... determined that …, see for example…
65
Ibid.
66
Endorsed by Framer James Wilson. The topic is examined in some length in Akhil Reed
Amar's book, The Constitution: A Biography, for which visit
http://www.usconstitution.net/constam.html
22
26. The notion of popular amendment comes from the conceptual framework of
the Constitution. Its power derives from the people; it was adopted by the
people; it functions at the behest of and for the benefit of the people. Given all
this, if the people, as a whole, somehow demanded a change to the
Constitution, should not the people be allowed to make such a change? As
Wilson noted in 1787, "... the people may change the constitutions whenever
and however they please. This is a right of which no positive institution can
ever deprive them."67
“It makes sense if the people demand a change, it should be made.
The change may not be the will of the Congress, nor of the states, so
the two enumerated methods of amendment might not be practical, for
they rely on these institutions. The real issue is not in the conceptual. It
is a reality that if the people do not support the Constitution in its
present form, it cannot survive.”68
Lastly it is worthwhile to note that the US Constitution clearly enumerates
which articles comprised the original constitution and which ones were added
as amendments. This is significant in that anybody clearly understands which
provisions are a correct statement of the constitutions and which ones were
amended or repealed.
67
Ibid
68
Ibid, but cf Akhil Reed Amar's book, The Constitution: A Biography, at
http://www.usconstitution.net/constam.html
23
27. In contrast, the Malawi Constitution amendments are not clearly spelt out.69
When one peruses through either the 1994 or the 2001 Constitutions, one
hardly determines which provisions are operational and which ones are not.
This casts a high and worrisome level of uncertainty over the Constitution’
textual accuracy. It is not too difficult to imagine one most easily mistakenly
reading and considering a provision of the of the Constitution as the correct
statement of the law without knowledge that it has since been amended.
There clearly is a need to articulate, in a simple and systematic manner,
which provisions have been amended; which ones have been repealed and
which ones comprise the original Constitution. Anything less will only
compound the problem of deciphering which is the correct version of the
Constitution.
3.2The Indian Constitution
An amendment to the Indian Constitution is understood to be an extremely
difficult affair although during the period of its existence it is one of the most
frequently amended constitutions in the world.70
It normally needs at least
69
In the absence of Anthony Kamanga’s paper (See note 1 above), it would not have been
easy to determine how many amendments have been effected to the Constitution since 1994,
let alone determine which edition of the Constitution represents the most up to date version of
the text of the Constitution.
70
Contrast with the South African Constitution, which is also considerably difficult to change.
Section 74(2) states that Bills amending the Constitution require a two-thirds majority in the
National Assembly and a supporting vote of six of the nine provinces represented in the
National Council of Provinces. Some parts are even more firmly entrenched, e.g. a Bill
amending Section 1, which sets out the founding values, requires a 75 percent majority.
24
28. two-thirds of the Lok Sabha and Rajya Sabha to pass it.71
The first
amendment came only a year after its adoption and instituted numerous minor
changes. Many more amendments followed, at a rate of almost two
amendments per year since 1950. Many matters that would be dealt with by
ordinary statutes in most democracies must be dealt with by constitutional
amendment in India due to the document's extraordinary detail. Most of the
Constitution can be amended after a quorum of more than half of the
members of each house in Parliament passes an amendment with a two-
thirds majority vote. Articles pertaining to the distribution of legislative
authority between Union and State governments must also be approved by 50
percent of State legislatures.
By simple majority of the Parliament: Amendments in this category can be
made by a simple majority of members present and voting, before sending
them for the President's assent.
By special majority of the Parliament: Amendments can be made in this
category by a two - third majority of the total number of members present and
voting, which should not be less than half of the total membership of the
house. By special majority of the Parliament and ratification of at least half of
the state legislatures by special majority. After this, it is sent to the President
for his assent.72
71
The two houses of Parliament in India. See generally,
http://en.wikipedia.org/wiki/Constitution_of_India for a fuller treatment of the subject. (Visited
on May 4 2006)
72
Indian Constitutional development has given rise to the “Basic Structure” doctrine,
developed by the Indian Courts during the 70’s amidst a fierce battle for supremacy between
it and the legislature. Under the doctrine, parliament cannot effect an amendment to the
25
29. 4. Amending The Malawi Constitution
Chapter XXI provides for amendments to the Constitution. Parliament has
power to amend the constitution provided certain conditions are satisfied.73
Parts of the Constitution listed in the Schedule, including Chapter XXI can
only be amended when two conditions are met; first, the proposed
amendment must be put to a referendum and a majority of those voting
should favour the amendment and second the electoral commission should
certify to the speaker that it was so put. Parliament can then amend the
Constitution by a simple majority.
Parliament can amend those parts of the schedule, including Chapter XXI,
without a referendum if the amendment does not affect the substance of the
constitution provided the speaker certifies that it does not and a two-thirds
majority support the amendment.
It is noted that no proposal to amend parts of the Constitution listed in the
Schedule has been presented since the Constitution’s adoption in 1994
except the attempt to amend the schedule itself under the failed amendment
to s.83 on the third term.74
It is not clear therefore how such amendment
Constitution, which purports to offend its basic structure. The topic is dealt with more fully in
Discussion paper 2 and was touched obiter by Justice Chipeta in his judgment in The
Registered Trustees Of The Public Affairs Committee –v- The Attorney General and The
Speaker Of The National Assembly and The Malawi Human Rights Commission (supra).
Suffice to say however; that others argue, including this author that the doctrine exceeds
precepts of judicial activism and descends into the schism of legislative usurpation by the
Judiciary.
73
Section 196
74
The purport was to include the amended s.83 into the schedule so that subsequent
attempts to amend it should only be effected through a referendum. To date maybe the worst
example and form of abuse of the amendment process in attempting to effect an amendment
26
30. would in practice be carried out. It is worth observing, however, that the so
called entrenchment provision suggests a possible means of amending the
parts of the Constitution listed in the schedule on the satisfaction of two
conditions and Parliament would proceed to amend such provisions in the
same manner all other amendments have been effected. It only requires the
Speaker to certify that a proposed amendment to any part of the Constitution
listed in the Schedule does not affect the substance of the Constitution for
Parliament to amend it ordinarily. There is no provision whether such
amendment would be subject to Judicial Review. Giving the Speaker
jurisdiction to determine whether an amendment of parts of the Constitution
listed in the schedule does not affect the substance or effect the Constitution
under s.196 (2) clearly breaches the principal of separation of powers. By its
very nature it is argued that the act or process of certifying whether a
particular amendment proposal affects the substance or effect of the
constitution suggests the bearer of such responsibility will exercise judgment
on the interpretation to be placed on such proposed amendment and its effect
on the constitution. Clearly, this is the purview of the judiciary under s. 9 of the
Constitution. If any institution be vested with such power it ought rightly be the
Judiciary, perhaps the Chief Justice as head of the judiciary.75
of an entrenched provision by a sitting Government. Some called the attempt “backdoor”
amendment of the schedule.
75
Others argue that the Speaker’s decision to certify an amendment in this manner would be
an administrative rather than a quasi-judicial act subject to Judicial Review and therefore
there is no need to remove this power from his office. On the other hand, if the Chief Justice
were vested with power to determine the question controversy would arise whether his
decision would also be subject to judicial review.
27
31. Parliament can amend Parts of the Constitution not listed in the Schedule by a
two-thirds majority.76
All past amendments to the Constitution, whether
passed, failed or withdrawn related to parts not listed in the schedule.77
4.1 Bills to Amend the Constitution
As noted earlier, several of the Bills presented to amend the Constitution
during the past decade were Private Member’s Bills.78
A number of papers
presented at the 1st
Constitutional Review Conference centred on the
question whether or not Members of Parliament should be allowed to
introduce proposals to amend the Constitution through Private Member’s
Bills.79
There was much controversy around this question during plenary and
debate.80
Neither the Constitution nor the House Standing Orders provide specific
procedures on introduction of different types of Bills to amend the constitution.
Both the Constitution and the Standing Orders only provide general
procedures for introduction of Bills. In determining the question at hand, it is
imperative to elucidate how ordinary Bills are dealt with in the Standing
Orders.
76
Section 197
77
But see note 64 above.
78
The “Presidential Open Terms” Bill by Khwauli Msiska MP (2002), the “Section 65” Bill by
John Tembo MP (2005) and the “National Governing Council” Bill by I. I. Matola MP (2005).
79
Malawi Law Commission, Summary Of The Proceedings Of The First National Conference
On The Review Of The Constitution, (Malawi Law Commission, April 2006) (Unpublished) p7
and 32 et seq.
80
ibid
28
32. The Constitution introduces three types of Bills; Private Bills, Government
Bills, and Private Member’s Bills. Although the Constitution does not speak of
Public Bills, the Standing Orders group Government Bills and Private
Member’s Bills as Public Bills and distinguishes them from Private Bills. A
Private Bill is said to be one promulgated by an agency that is not part of the
government and introduced in Parliament on behalf of the agency where such
agency is mandated by an Act of Parliament to do so.81
It is difficult to
imagine an agency under Malawi law empowered as such. There does not
seem to be any agencies of this nature in existence; but for illustration’s sake,
an example, I surmise, would be where an agency such as the Anti Corruption
Bureau is empowered to promulgate a Bill that affects the substantive
provisions of its enabling Act.82
That Bill, if introduced in Parliament on behalf
of the ACB, would be a Private Bill.83
On the other hand, a Public Bill is any Bill, which is not a Private Bill.84
It
follows then that all Bills introduced in Parliament whether by Government or
private members are Public Bills.
The Standing Orders distinguish between Government Bills and Private
Member’s Bills. A Government Bill is a Public Bill promulgated by the
government and introduced in the Assembly by or on behalf of government.85
A Private Member’s Bill is a Public Bill promulgated by a member and
81
SO 113. See also s.66 (2) (b) (i) & (ii) of the Constitution.
82
The Corrupt Practices Act; the proposal to exempt the ACB seeking consent from the DPP,
for instance.
83
Even if presented by a Minister.
84
SO 108
85
SO 109
29
33. introduced by that member.86
Any member of parliament can introduce a
Private Member’s Bill.87
In the United Kingdom, the distinction between a Government Bill and a
Private Member’s Bill are not so dissimilar from what we have. However, the
distinction between a Private Bill and a Public Bill are starkly different. Under
English law, a Public Bill is one that is introduced to alter the general law or
deal with public revenue, the general administration of justice, the constitution,
the election of local authorities or other public bodies.88
A Private Bill is a Bill
introduced to confer powers or benefits on an individual or corporate body.89
This is in stark contrast to the distinction obtaining under Malawi law between
Private and Public Bills both as envisioned in the Constitution and as
expanded in the Standing Orders. Research into whether there is a peculiar
history behind the couching of the distinction under Malawi law did not draw
any pragmatic result.
Either way, it would seem that Members of Parliament are allowed to
introduce Private Member’s Bills that affect the substantive law both in Malawi
and the United Kingdom.90
Strictly speaking, the Bills would be Public Bills in
either case and in both jurisdictions. Only a single Bill was found since 1994
published for introduction in Parliament as a Private Member’s Bill purporting
86
SO 110
87
SO 111 (1)
88
Halbury’s Laws of England, 4th
Ed, (London; Butterworths, 1997) p 441.
89
Ibid.
90
That is, England and Wales, see note 83 above.
30
34. to alter or amend a substantive Act.91
The Bill, published under the hand of O.
I. Mkandawire, MP, sought to amend the Reserve Bank of Malawi Act.92
Thereafter, no Private Member’s Bill was introduced until 2002 when Khwauli
Msiska, MP introduced the “Open Terms” Bill, not just to alter or amend any
substantive law, but to amend the Constitution itself.93
It was only defeated
after full debate in Parliament. There have been two more attempts to amend
the Constitution through Private Member Bills since then.94
In the absence of any peculiar history in our constitutional development to
justify, or indeed explain the distinction between Private and Public Bills in the
Malawi constitution, it is compellingly evident there was an intention by the
framers to mirror the distinction obtaining at common law in England between
Private and Public Bills. The actual couching of the clause in the Malawi
Constitution and Standing Orders may have turned out to be something of a
misnomer, perhaps. This would be true as some argue; that Private Member
Bills are a necessary safeguard to allow Members of Parliament initiate
legislation in the unlikely event the executive, for one reason or another, did
not, was unable or indeed was reluctant to initiate legislation by itself.
Although of doubtful practical significance, this can only be sustained, if at all,
only with reference to regular legislation but not proposals to amend the
91
The Reserve Bank of Malawi (Amendment) Bill 1996.
92
Act No. 8 of 1989 to ensure only the use of politically neutral features on Malawi’s currency.
The Bill was neither introduced nor debated, the controversy having been resolved differently
somehow.
93
Constitution (Amendment) Bill, 2002, Malawi Gazette Supplement, May 24 2002
94
The first, introduced by John Tembo, MP, Constitution (Amendment) Bill 2005, published in
the Extraordinary Gazette, June 17 2005 which was defeated and the second, by I. I. Matola
MP, Constitution (Amendment) Bill 2005, published in the Malawi Supplement Gazette,
October 7 2005, which has not yet been tabled and may never be.
31
35. Constitution. The position in our Constitution and Standing Orders was most
likely copied from England, where there is no written constitution. Again
Private Members’ Bills can only be justified if restricted to regular legislation.
Obviously in England this does not raise much controversy because of the
absence of a written Constitution. Where there exists a written Constitution,
as in Malawi, it makes no political nor legal sense, to say the least, to extend
to Members of Parliament the right introduce Private Members’ Bills to amend
the Constitution. Checking Members of Parliament from introducing Private
Members’ Bills to amend the Constitution is not only logical but also decidedly
crucial, especially in a fledgling and embryonic democracy as Malawi’s. The
amendment of the Constitution should be a universally acceptable process;
one not to be entrusted to the wisdom of individual Members of Parliament,
however intelligent they may profess to be or are perceived to be by their
peers. Furthermore, there is need to always bear in mind the separate
functions of the three branches of government especially in relation to which
branch is empowered by the Constitution with responsibility of initiating
legislation.95
Finally, the doctrine of separation of powers96
compels us to acquiesce that
the constitution grants different functions to different branches of government
and that this ought to rank paramount when determining which branch of
Government was granted the responsibility of initiating legislation and policy.97
The framers of the constitution would not have intended to duplicate the
95
S. 7 of the Constitution
96
For a comprehensive discussion of the separation of powers, see discussion papers 1, 2, 3
and 6.
97
S. 7 of the Constitution
32
36. functions of government by granting the same duties to two different branches
of government. On this premise, the only logical way to interpret section 7 is
to read it in its strict and plain sense: -
The executive shall be responsible for the initiation of policies and
legislation and for the implementation of all laws which embody the
express wishes of the people of Malawi and which promote the
principles of this Constitution.
This argument allows for only one way to effectively preserve the sanctity of
the Constitution. Any and all amendments to the Constitution should only be
effected through the executive on consultation and participation of all
Malawians. The Malawi Law Commission is well suited by virtue of its
Constitutional mandate to undertake periodic reviews of the Constitution and
advise whether circumstances obtain at any point in time to warrant
amendments to the Constitution. It is also in accord with this observation that
the further observation is made that all of the amendments effected within the
last decade have all been effected to achieve private interests of particular
individuals. What this means is that in large part, the Constitution has served
Malawi well in these last ten years and has needed no major amendment in
its substantive provisions. Viewed from such perspective, it makes good
sense to revise the processes of amending the constitution in order to reflect
this philosophy.
33
37. 5. Conclusion
The Malawi constitution has been amended scores of times in the 10 years it
has been in force. Some were intended to right textual inaccuracies and
evident ambiguities acknowledged during the interim application. Almost all
the amendments that affected the Constitution in a substantial way seem to
have been effected for political expedience not in the national interest.
The Constitution is a special law that should be respected and held in high
esteem by all branches of government. It is the supreme law of the land and
should not be abused to achieve political gains by select individuals.
It is inevitable that amendments to the Constitution will become necessary as
time goes by. We must at the same time provide for a means of amending the
Constitution while at the same time protecting it from abuse by politicians bent
on bending it to achieve self-serving goals.
The Constitution is very explicit in its distribution of power and it has placed
the responsibility of initiating legislation and formulation of policy in the
executive. However, when considering amendments to the Constitution,
regard should be had to the higher need for national interest rather than
power to the government of the day.
34
38. Maybe the time has come to reinforce the procedures for amending the
constitution to ensure that its sanctity is preserved and amendments are only
effected in the national interest.
35
39. References
Bibliography
Amar A. R. The Constitution: A Biography, quoted at
http://www.usconstitution.net/constam.html
Black’s Law Dictionary, Sixth Edition (St. Paul Minn.: West Publishing Co.
1990)
Bradley A. W. & Ewing K. D. Constitutional and Administrative Law, 12th
Ed,
(London, Longman)
Chigawa M. “Fundamental Values of the Constitution of Malawi” Paper
presented to the 1st
National Constitutional Review Conference, Capital
Hotel, Lilongwe, March 28-31, 2006
De Smith S. & Brazier R. Constitutional and Administrative Law, (Suffolk,
Penguin Books, 1998)
Finer S. E. and Another, Comparing Constitutions, (Oxford: Clarendon Press,
1995)
Halbury’s Laws of England, 4th
Ed, (London; Butterworths, 1997)
Kamanga A. “Amendments to the Constitution Since 18th
May 1994,” Paper
presented to the 1st
National Constitutional Review Conference, Capital
Hotel, Lilongwe, March 28-31, 2006.
Summary Of The Proceedings Of The First National Conference On The
Review Of The Constitution, C. Silungwe, Ed, (Malawi Law
Commission, April 2006) (Unpublished)
Steamer Robert J. & Maiman Richard J. American Constitutional Law,
Introduction and Case Studies (New York; McGraw-Hill, inc 1992)
Web Sites
http://www.usconstitution.net
http://www.constitutionalcourt.org.za
http://etext.virginia.edu/jefferson/quotations/jeff1000.htm
http://en.wikipedia.org/wiki/Constitution_of_India
Cases
Chisholm –v- State of Georgia 2 US 419 (1793)
36
40. Fred Nseula vs Attorney General and Malawi Congress Party MSCA Civil
Appeal No. 32 of 1997 (Unreported)
Gwanda Chakuamba, Kamlepo Kalua, Bishop Kamfosi Mnkhumbwe vs The
Attorney General, The Malawi Electoral Commission and the United
Democratic Front, MSCA Civil Appeal No. 20 of 2000 (unreported)
Hollingsworth v Virginia 3 USC 378 [1798]
The Registered Trustees Of The Public Affairs Committee –v- The
Attorney General and The Speaker Of The National Assembly; The Malawi
Human Rights Commission (amicus curiae) Civil Cause Number 1861 Of
2003 (HC) (Unreported)
______________________
37