Constitutional Law: Principles and Practices

Abstract

The law and its political foundations are constantly changing. These include, for example, immigration, asylum, and prisoners’ rights, the eviction of tenants, pawnbrokers’ rights, and access to adoption records, victims’ rights, press freedom and euthanasia. The Alcon bury Case in particular involved the relationship between political decisions taken by a minister and the rule of law. On the one hand, the Strasburg case law seems to have been systematically applied and a moderate approach adopted. On the other hand also, significant differences of approach are emerging between individual judges. Other developments have been influenced by the ‘’Nolan Principles of Public Life’’ which have pervaded several areas of law, including bringing political parties within a legal regime. There have been also changes in electoral law and developments in the law of judicial review, notably in relation to the doctrines of ‘’unreasonableness’’ and legitimate expectations and the bias rule. There has also been important new literature including extra judicial writings from senior judges and dealing with the influence of the common law on the constitution. The main stand point of this book is that constitutional law pre-eminently concerns the management of disagreement about the exercise of power. As Holmes J remarked, ’the Constitution is made for people of fundamentally different views’’ (Lochner v. New York (1905), 19 US 45 at 767). Hence, in a democracy, the task of constitutional law is to provide mechanisms that prevent one set of values from being permanently dominant while at the same time trying to keep order and to adjudicate fairly between competing pretenders to power. Constitutionalism form the core of good government in the modern democratic world to check on the powers of the different organs of government and the protection of liberty and fundamental rights of individuals within that sovereign territory. All efforts are made by the developed and the developing countries in upholding the rule of law, which are guaranteed through the constitution, to promote democracy for a just and fair society. However good the notion of the constitution is, there are different definitions applied by different stakeholders on the notion of what forms a good democratic polity and good constitution and constitutionalism. It is against this background that an elaborate research has been conducted by the author of the subject matter. At the very basic constitutional law can be described simply as the law relating to the constitution. A constitution represents a set of basic rules and principles which govern the government or the state. H. Barnett identifies constitutional law as concerned with the role and powers of institutions within the state and with the relationship between the citizen and the state. In other words, constitutional law concerns, among others, the following elements: i) The principal institutions of the state, viz, Parliament, the government, the courts and devolved/decentralized state bodies; ii) The specific roles and functions conferred on these institutions, together with the nature and extent of their powers; iii) The procedures and mechanisms used to oversee, regulate and check these powers(parliamentary control over the government and legal controls; iv) The ways in which these institutions relate to one another; v) The ways in which these institutions related to the individual; vi) The basic fundamental rights of the individual( for example, the right to life and free speech and how- and to what extent- these rights and freedoms can be protected from infringement by the state. Hence, constitutional law is the law relating to the constitution, the state institutions, their powers, together with how they relate to the individual.