358 MIZAN LAW REVIEW Vol. 3 No.

2, September 2009

NOTES CORNER

CONSTITUTIONALISM
Maru Bazezew*

Meaning of Constitutionalism
Today, constitutionalism has become as important an issue as that of good
governance. In ordinary parlance, constitutionalism may be defined as a
‘belief in constitutional government.’ But what does constitutional
government refer to? Does is it refer to a government with a constitution or
government established according to a constitution, or a government acting
according to a constitution? The concept seems to lack clarity.
Constitutionalism can be defined as the doctrine that governs the
legitimacy of government action, and it implies something far more important
than the idea of legality that requires official conduct to be in accordance with
pre-fixed legal rules.1 In other words, constitutionalism checks whether the
act of a government is legitimate and whether officials conduct their public
duties in accordance with laws pre-fixed/ pre-determined in advance.
The latter definition shows that having a constitution alone does not
secure or bring about constitutionalism. Except for a few states which have
unwritten constitutions, today almost all the nations/states in the world have
constitutions. This does not, however, mean that all these states practice
constitutionalism. That is why constitutionalism is far more important than a
constitution.

Features (Characteristics) of Constitutionalism

According to Barnett, constitutionalism embraces limitation of power (limited
government), separation of powers (checks and balances) and responsible and
accountable government.2 Henkin3 identifies popular sovereignty, rule of
law, limited government, separation of powers (checks and balances), civilian
control of the military, police governed by law and judicial control, an

*LL.B, LL.M, Lecturer, St. Mary’s University, College Faculty of Law

1
Hilaire Barnett, Constitutional and Administrative Law 5 (London: Cavendish
Publishing Limited, 3rd edi., 2000(1995)
2
Ibid
3
Michael Rosenfield ed., Constitutionalism, Identity, Difference and legitimacy,
Theoretical Perspectives 4042 (Durham: Duke University Press, 1994)
3(2) Mizan Law Rev. NOTES ON CONSTITUTIONALISM 359

independent judiciary, respect for individual rights and the right to self-
determination as essential features (characteristics) of constitutionalism.
We shall thus focus on the following basic elements:
1. Popular sovereignty
2. Separation of Powers (checks and balances)
3. Responsible and accountable government
4. Rule of law
5. An independent judiciary
6. Respect for individual rights
7. Respect to self-determination
8. Civilian control of the military
9. Police governed by law and judicial control

1- Popular Sovereignty
Popular sovereignty envisages the fact that the public is the source or fountain
of all governmental authority. The legitimacy of any governmental power is
derived from the consent of the public. In other words, the government
acquires its mandate from the people.
The source of all sovereignty lies essentially in the nation. No corporate
body, no individual may exercise any authority that does not expressly
emanate from it.4 Even though there is a certain sovereign entity which is
empowered to govern, ultimate sovereignty resides in the nation. The power
of such sovereign entity emanates from the public.
In other words, the public is involved in the decision making process
which may take different forms. The most obvious one is election of
representatives. The public is entitled to elect representatives who represent
it. However, such election should be free, open (transparent) and fair. When
the public loses confidence in its representatives and where the latter fail to
represent the interest of the public, representatives may be recalled before the
expiry of their term of office.
Referendum is the other mechanism by which the sovereignty of the
public is manifested or expressed. Before a government makes a decision or
takes any action which affects the interest of the public, constitutionalism
requires it to consult the public and listen to what the public says. The case of
France is worth mentioning. The President of the Republic may (on the basis
of a proposal from the government when parliament is in session or on a joint
motion of the two assemblies) submit to a referendum any government bill

4
Article 3, 1789 French Declaration of Human Rights
360 MIZAN LAW REVIEW Vol. 3 No.2, September 2009

which deals with the organization of the public authorities or with reforms
relating to the economic or social policy of the nation or which provides for
authorization to ratify a treaty although not contrary to the constitution.5 The
bill is promulgated by the President of the Republic provided that the
referendum is in favor of such government bill.6 However, if the outcome is
otherwise, it may not be promulgated.
In some liberal democratic countries like USA, Uk, France, Federal
Republic of Germany etc, the principal role of the public is to control the
activities of the government and to exercise a sort of veto power which goes
beyond mere participation.7

2-Separation of Powers (Checks and balances)

Under constitutionalism, power is not concentrated in any one organ of the
state. It is diffused (divided) among the three organs of the state i.e., the
legislature, the executive and the judiciary. If power is monopolized by any
one organ of the state there could be abuse of power, tyranny and
dictatorship. Nor can there be liberty. For example, the legislature, in addition
to its law-making power is not allowed to exercise the roles of the executive;
and the judiciary is not allowed to execute the laws which it interprets. These
two powers are reserved to the respective organs i.e. the executive and the
judiciary, respectively. Here-below, a comparative overview of four legal
systems including Ethiopia is made on the basis of law making power and
judicial review.
a) USA
In the United States of America, the three organs of state and their respective
powers and duties are enshrined in the constitution. Similarly the system of
checks and balances is embodied in the constitution. According to the US
Constitution, Congress (i.e., the House of Representatives) and the Senate are
the sole law making power. Any bill which is initiated in and passed by the
House of Representatives shall be submitted to the Senate. The Senate shall
deliberate on the bill. If the bill is accepted by the Senate, it shall be
submitted to the President for approval. If the President approves such Bill or
fails to make his objections within 10 days (excluding Sundays), the draft bill
shall become law. However, if the President objects to the draft bill, he shall
return the bill to the House where it originated together with his objection.
This shows that the President is exercising his veto power on bills passed by

5
French Constitution (1958) Article 11
6
Id
7
Finer, S.E, Comparative Government, (Penguin, 1970) pp 30-40
3(2) Mizan Law Rev. NOTES ON CONSTITUTIONALISM 361

Congress. This clearly shows the system of checks and balances at work.
However, even though the bill is returned to Congress, if two-thirds of the
members of each house sitting separately pass the bill, it shall become a law
despite the objection of the President. So Congress can override the veto
power exercised by the President.8
After the bill becomes law, it can still be subject to the scrutiny of courts.
Even though no inherent or express power is given to the courts by the
Constitution, courts are empowered to check the constitutionality of such law.
If it is found contrary to the constitution, it shall be declared null and void.
Therefore, courts in USA are endowed with the power of judicial review.
The principal feature of the US Constitution is that it does not allow an
individual to exercise different powers or act in different capacities at the
same time. For example, members of Congress are not allowed to become
members of the Executive or the Judiciary and the vice-versa except when the
Vice-President chairs the senate and the Chief Justice presides over the
Senate at the time when the Us President faces impeachment.9
b) France
France is another example where the three organs of the state are identified in
the constitution. An Act passed by the parliament, before becoming law, shall
be submitted to the President of the Republic. The latter shall promulgate the
Act within 15 days. However, if the president has any objection, he may ask
the parliament to reconsider the act or a section within the act.10 Once the act
is promulgated, it is not reviewable by ordinary courts, but it shall be subject
to judicial or constitutional review. There is an “autonomous institution”
called Constitutional Council. It is this institution which is empowered to
check the constitutionality of acts passed by the legislature. The institution is
composed of nine judges. Three of the judges are appointed by the President
of the Republic. The other three are appointed by the President of the
National Assembly and the remaining three are appointed by the President of
the Senate.11 The appointments seem purely political. Even the respective
Presidents may appoint their own friends or those who match their political
colour.
An act of Parliament may be referred to the Constitutional Council
before promulgation so that its compatibility with the constitution can be

8
USA Constitution, Article 3 Section 7
9
Id
10
Supra, note 5, Article 10
11
Id
362 MIZAN LAW REVIEW Vol. 3 No.2, September 2009

checked. It is the Constitutional Council which is entrusted with the power of

judicial or constitutional review. The decision of the Constitutional Council is
final and non-reviewable. The persons who are entitled to refer an Act to the
Constitutional Council for review are the President of the Republic, the Prime
Minister, the Presidents of the two houses and 60 (sixty) Deputies or
Senators.12 Ordinary citizens are not allowed to refer an act to the
Constitutional Council. One of the reasons why the Constitutional Council
was introduced is to protect the executive from encroachment by the
parliament.
c) Germany
In the Federal Republic of Germany, the parliament is composed of the
Bundestag which is directly elected by the constituency and the Bundesrat
which represents the different Landers. Federal laws adopted by the
Bundestag shall be submitted to the Bundesrat for its consent. It shall become
law when the Bundesrat consents or fails to make a demand for a joint
committee within three weeks (Articles 77(2) or fails to enter an objection
within two weeks (Article 77(3) or withdraws its objection or if the objection
is overridden by the Bundestag. 13
The laws passed by the parliament after counter-signature by the federal
Chancellor shall be certified by the president and are promulgated.14 After
promulgation, the law may be subject to constitutional/judicial review. The
Federal Constitutional Court is empowered to check the compatibility of such
laws with the Basic law. According to Article 93 of the Basic Law, even
individuals are allowed to lodge their complaint to the Constitutional Court.
d) Ethiopia
In the three legal systems highlighted above, both houses are involved in the
lawmaking process and laws passed by the parliament are subject to
constitutional or judicial review. In Ethiopia, the FDRE Constitution
identifies and states the respective powers and duties of the three organs of
the state, i.e., the legislature, the executive and the judiciary. Compared to the
aforementioned legal systems, the House of Federation does not have any role
in the lawmaking process. The lawmaking process is absolutely unicameral.
Moreover, once a draft law is discussed and passed by the House of People’s
Representatives, it shall be submitted to the President for signature. However,
if the President fails to sign the draft law within 15 days, it shall become a

12
Id
13
German Basic Law, Article 78
14
Id
3(2) Mizan Law Rev. NOTES ON CONSTITUTIONALISM 363
15
law. The provision does not allow the President to forward his objection to
the House of People’s Representatives.
Although laws adopted by the House of People’s Representatives are
subject to review, such review does not fall within the jurisdiction of ordinary
courts. Our ordinary courts are eviscerated of the power of checking or
reviewing the constitutionality of laws passed by the house. Such power is
already reserved to the second chamber i.e., the House of Federation. The
House of Federation is assisted by a technical group called Constitutional
Inquiry.
Members of the House of Representatives are also members of the
Executive. An individual is allowed to have two different capacities at the
same time. These are thus some of the instances where the system of
separation of powers or checks and balances are blurred under constitutions
which pursue parliamentary form of governments as can be observed in the
FDRE constitution. Such legal regimes (as in the case of UK) put in place the
legal and institutional framework which ensures that the origin of
appointment to executive offices does not allow members of the executive
branch of the government to have legislative functions after they assume
executive responsibilities.

3- Responsible and Accountable Government

“If an American or English were asked what the first indispensable
requirement of his government is, it is ten to one that would reply that his
government was the servant of the people.”16
In the democratic nations (countries) people perceive their government as
their own servant. The government is there to serve their interest or act as the
steward of their interest. The governments assume office in the name and on
behalf of the public for the benefit of the public. Article 15 of the French
Declaration of the Human Rights recognizes the right of the society to ask a
public official to account for his/her administration. In the opinion of the
writer, the relationship between the government and the public/ the citizen is
analogous to the relationship between a principal and an agent. The agent is
there to act in the name and on behalf of the principal. He is expected to act
diligently in the best interest of the principal until such time that the period of
authorization expires. When the agent fails to act in the best interest of the

15
The FDRE Constitution, Article 57
16
Supra, note 7
364 MIZAN LAW REVIEW Vol. 3 No.2, September 2009

principal or fails to account for his performance or fails to act diligently, the
principal may revoke the authorization
The same applies in the relationship between a government and the
public. As a government assumes office in the name and on behalf of the
public, it is directly accountable or responsible to the public. When a
government (i.e., the agent) fails to act in the best interest of the public (i.e.,
the principal), the latter revokes authorization through the ballot box.

4- Rule of Law
Rule of law denotes a government of laws and not of men. Individuals
working within the state machinery are expected to exercise their official
duties and responsibilities in accordance with the law. In other words, rule of
law represents the supremacy of law.
According to Dicey, 17 rule of law envisages the following:-
• No one is punishable except for a distinct breach of law established in
the ordinary legal manner before the ordinary courts of the land;
• No person is above the law;
• Courts play a vital role in protecting the rights of individuals.

A- No one is punishable except for a distinct breach of law established in

the ordinary legal manner before the ordinary courts of the land:-
The first component of rule of law is related to the principle of legality. If a
certain behavior is not categorized as a criminal act by the constitutionally
mandated lawmaking organ, it is not treated as a criminal act and is not
punishable. It is treated as an innocent act.
Secondly for an act to be punishable, the act must be classified or
identified as a criminal act by the legislature through the law-making process
enshrined in a constitution and other laws. Finally, once a certain behavior is
classified as a criminal act, the accused should be tried and punished by the
ordinary courts. Ordinary courts refer to courts established in accordance with
a country’s constitution. It may not include any extra-judicial or extra-
ordinary court not recognized by the constitution of the land.

B- No one is above the law

These words express the absolute supremacy of law over arbitrary power
including widespread discretionary power of government. We are all human

17
Albert Venn Dicey, Introduction to the Study of Law of Constitution 188 (London and
New York, Macmillan, 1995)
3(2) Mizan Law Rev. NOTES ON CONSTITUTIONALISM 365

beings created in the image of God, and we should be treated equally before
or under the law without discrimination on the basis of status, wealth, race,
nationality, gender, sex, etc. Every person from a president down to a shoe-
shiner should equally become subject to the law.
Similarly, even though avoidance of discretionary power is totally
impossible, the manner in which such power is to be exercised is strictly
monitored. Discretionary power is one of the reasons for the prevalence of
corruption. According to Professor Klitgaard, corruption is defined as
monopoly of power plus discretion minus accountability.

C- Rights are based on the actual decision of courts

According to Dicey, the mere recognition of rights in a constitution alone
does not secure or ensure the rights of an individual. The rights recognized by
a constitution and other laws are to be protected or defended through the
medium of courts whenever these rights are infringed.

5- An Independent Judiciary
In liberal democracy the individual is at the center, and “Judicial
independence is the hallmark of liberal democracy”.18 The rights of
individuals are ensured and respected. Courts play a vital role in ensuring and
respecting the rights of individuals. An independent judiciary is the
cornerstone of a free society and rule of law.19 As it is already discussed
hereinabove, rule of law envisages a government of laws. A government is
obliged to act according to laws set by the legislature. However, if there is
failure to adhere to the laws, an independent judiciary shall check such
events.
An independent judiciary is also necessary to maintain the supremacy of
a constitution. If the legislature comes up with a law which is contrary to the
constitution, an independent judiciary, through the principle of judicial or
constitutional review, has the power to declare it null and void. Hamilton in
Federalist 78 stressed the role of courts in reviewing the constitutionality of
laws passed by the legislative organ as follows;-
Limitation of this kind can be preserved in …no other way than through the
medium of courts of justice, whose duty it must be to declare all acts
contrary to the manifest tenor of the constitution void.

18
Robert A.Goldin and William A. Schambra ed., The Constitution, the Courts and the
Quest for Justice 25(Washington DC, American Enterprise Institute Press, 1999)
19
Peter H. Russel &David M.O’Brien ed., Judicial Independence in the Age of
Democracy 25(Charlottesvile, The University Press of Virginia, 2001)
366 MIZAN LAW REVIEW Vol. 3 No.2, September 2009

As Hamilton expounded, although checking the constitutionality of laws

passed by the legislative organ is not the only role or function of courts,
courts are bound to review whether laws passed by the legislature are
constitutional. The whole purpose of judicial or constitutional review is not to
snatch the powers given to other organs or to create judicial despotism, but to
maintain the supremacy of the constitution i.e., the supreme law of the land.
In addition, judicial independence helps judges to discharge their judicial
functions without fear or favor. Bhagwati stated that Justice can become
fearless and free only if institutional immunity and autonomy are granted.20
Bhagwati stressed the autonomy of the judiciary as an institution; yet, the
independence of the institution is inseparable from the independence of
individual judges.
Moreover, the decision or judgment rendered by courts must be
executed. If decisions are overturned by other organs of the state, the
independence of the judiciary shall be at a risk. It is a threat to the very
independence of the judiciary. The judiciary shall become like a lion without
teeth.
Furthermore, the sitting of judges in particular benches should be
handled by the courts themselves. Any external entity must not be allowed to
order a court in the assignment of judges to cases.

6- Ensure and Respect Individual Rights

The incorporation of the rights of individuals in a constitution and other laws
is essential, but not an end by itself. It is a means to an end. It must be seen
that these rights are duly respected and protected.
Article 1 of the UN Charter included the promotion and encouragement
of respect for human rights and fundamental freedoms for all without
distinction as to race, sex, language or religion. Similarly Article 55 of the
UN Charter states that the United nations shall promote universal respect for
and observance of human rights and fundamental freedoms for all without
distinction as to race, sex, language, or religion. In addition Article 56 of the
Charter imposes obligation on member states to ensure the observance of
Article 55 of the Charter.
A similar provision is enshrined in the International Covenant on Civil
and Political Rights. Article 2 of the Covenant stipulates that “each state party

20
H.M. Seervai, Constitutional law of India, 2617(Delhi:N.M Tripathi Private Ltd.
Bombay, 4th edi., 1996)
3(2) Mizan Law Rev. NOTES ON CONSTITUTIONALISM 367

to the present covenant undertakes to respect and to ensure to all individuals

within its territory and subjects to its jurisdiction the rights recognized in the
present covenant without distinction of any kind such as race, colour, sex,
language, religion, political or other opinion, national or social origin,
property, birth or other status.”
There are certain basic rights which may not be derogated from even at
the time of state of emergency. According to Article 4 (2) of the Covenant,
the Articles dealing with the right to life, the right not to be subject to torture
or cruel or inhuman or degrading treatment or punishment, not to be held in
slavery and servitude, not to be imprisoned due to non performance of
contractual obligation, not to be held guilty or convicted for any criminal
offence which is not criminalized at the time of the commission of the crime
and omission or imposing heavier penalty, the right to be recognized as a
person and the freedom of thought, conscience and religion may not be
derogated in time of public emergency.
By virtue of Article 4(1) of the Covenant, a state of public emergency
must be officially proclaimed. Since it says proclaimed, it must be proclaimed
by the legitimate organ or authority authorized to do so by the constitution.
Secondly, the emergency must threaten the life of a nation as a whole. During
a state of emergency, derogation from the obligations imposed by the
Covenant is possible except as regards the aforementioned rights which are
absolutely non-derogable. The derogation should be to the extent required by
the exigencies of the situation. Such derogation shall not violate other
international obligations imposed on the state concerned and would not be
implemented by discriminating on the basis of race, colour, sex, language,
religion or social origin.
Furthermore, pursuant to Article 4(3) of the Covenant, the state
exercising state of public emergency is obliged to notify other state parties to
the Covenant the provision which is derogated from and the time when such
state of emergency is to cease.

7- Respect for Self-determination

Self-determination refers to the right of a people living in a territory to
determine the political and legal status of the territory, for example, by setting
up a state of their own or by choosing to become part of another state.21

21
Akehurst’s Modern Introduction to International Law, 326( London and New York: 7th
edi., 1997)
368 MIZAN LAW REVIEW Vol. 3 No.2, September 2009

However, this right is granted to colonies and dependent states. This is clearly
stated under Article 1(2) and 55 of the UN Charter.22
The right to self-determination is also recognized under Article 1(1) of the
International Covenant on Civil and Political Rights. It reads as follows:
All peoples have the right of self-determination. By virtue of that right they
freely determine their political status and freely pursue their economic,
social and cultural development.
In the 1918 Soviet Union Constitution, the right of self-determination was
recognized although it was not practicable until the Soviet Union broke up
into different autonomous republics after the introduction of perestroika.
According to Viladmir Lenin, self-determination in the sense of secession or
forming an independent state is possible only for culturally distinct groups.23

8- Civilian Control of the Military

“Our principle is the party commands the gun, and the gun must never be
allowed to govern the party.”24 Mao Zedong.
According to the above statement, the party is sovereign or autonomous. It is
the party which governs the gun (the military). To some extent the theme of
Mao Zedong’s statement seems to hold true in the contemporary world as
well. In democratic countries, it is the democratically elected officials who
are allowed to govern or control the military, although technical affairs are
left to the military personnel.
Instead, if full autonomy or sovereignty is granted to the military leaders,
they might divert the democratic decision-making process and may use force
which may go the extent of coup or military dictatorship. The military may
also crush democratic political opposition, through intimidation and use of
physical force and interfere with domestic elections. Samuel Adams stated
that even when there is a necessity of the military power, wise and prudent
people will always have a watchful and jealous eye over it.25 Elbridge Gerry,
a delegate to the American Convention also stated that standing armies in
time of peace are inconsistent with the principles of Republican Government,
dangerous to the liberties of a free people and generally converted into
destructive engines for establishing despotism.26

22
Id
23
Wikipedia, the free encyclopedia
24
Id
25
Id
26
Id
3(2) Mizan Law Rev. NOTES ON CONSTITUTIONALISM 369

9- Police Governed by Law and Judicial Control

The prime responsibility of ensuring peace and order is borne by the police. It
shoulders the duty of bringing wrong-doers to justice. However, when the
police discharge such duties, constitutionalism requires them to honor and
respect the rights, dignity and freedoms of individuals including wrong-doers
and persons suspected of offences. It is to be noted that a suspect has the
right to be presumed innocent until proved guilty by the competent court.
The Universal Declaration of Human Rights and the International
Covenant on Civil and Political Rights prohibit torture, cruel, inhuman and
degrading treatment and arbitrary arrest and/or detention. Similar provisions
are incorporated in the FDRE constitution:-
• Every person is to be protected from cruel, inhuman and degrading
treatment(Article 18(1);
• Persons arrested are entitled to be notified promptly in the language they
understood the reason for their arrest (Article 19(1);
• Persons arrested must be informed promptly of their rights to remain
silent (Article 19(2);
• Persons arrested must be brought to court within 48 hours (Article 19(3).
In order to check whether the police adhere to and respect the above
fundamental principles and rights of arrested persons, courts should keep an
eye on the police. If, for example, any evidence is obtained through torture,
the evidence is considered illegal and courts /reject the evidence.
In general, the police are expected to act according to the law. When,
instead, the police violate the laws they are entrusted to enforce, the result
turns out to be not only an assault on human dignity and the law itself, but the
creation of barriers to effective policing.27
The practical effects of police violations are multifold : 28
• Public confidence is eroded;
• Civil unrest is exacerbated;
• Effective prosecution in courts is hampered;
• The police is isolated from the community; and
• Results in the guilty going free and the innocent being punished.

27
A manual on Human Rights Training for the Police, United Nations, New York and
Geneva, 1997
28
Id