KC Wheare Modern Constitutions (OUP 1960) Ch 1, 2, 3 and 4 pp 1-66

1. What is a constitution?
The word constitution has been used in two senses. One, as a document embodying the
rules that regulate the government. The second, as a set of legal and extra-legal rules that
establish and govern the government. These extra-legal rules include customs,
understandings, practices etc.

It is impossible to study the constitution as a mere set of rules as separate from the other
general principles (both legal and non-legal) and other rules enacted by the legislature
which are supplementary to the constitution. These laws are sometimes called organic
laws. The constitution in many countries merely laws down the broad and general
principles of various institutions. It is these organic rules that regulate how exactly they
are constituted and how they function. Eg. Representation of people’s act governing
elections in India. Another important aspect of the usage of the word constitution in the
broader sense is that it includes the interpretation given to the constitution by the Courts
that may supplement or modify certain of its provisions.

Supremacy attributed to the constitution over other laws is a characteristic of most of the
constitutions. This is in most cases evident from the fact that the amending procedure for
the constitution is made more difficult than for other laws (in some cases this requires the
cooperation of bodies outside the legislature). In most countries, laws that conflict with
the constitution are void. Some people even argue that countries like New Zealand whose
constitution can be amended by the same process as any other law, does not have a
constitution at all.

The basic reason why many countries wanted to have a constitution is because they
wanted to make a fresh start (eg. India) and hence wanted to put down in writing at least
the basic principles of their proposed form of government.
The reason why the procedure for amendment of the constitution is made more difficult
than that for ordinary laws is because the objective of the constitution is to limit the
powers of the government. Hence the nature and extent of the limitation on the
government to amend the constitution is indicative of the extent to which the constitution
aims to limit the power of the government. This limitation to amend may also indicate
that the framers of the constitution did not want it to be dealt with lightly and without
proper care and caution. This may also because they wanted to maintain a certain kind of
relationship between the executive and the legislature or because they wanted the
judiciary to have a position independent of both of these or because they wanted to grant
some rights to the citizens that they did not want the legislature to take away etc.

When no restriction is found on amendment of the constitution it means either that the
constitution is not given due importance or that it is treated with such great respect that it
is respected without any legal restrictions on its amendment.

The reasons for Britain not having a constitution is that it never had a fresh start (which
was earlier described as one of the reasons for the formation of a constitution) instead it
had a restoration or going back to the old norms. Why it did not have a constitution even
at the time of union is because it was not a federal union i.e. the parliaments of the
uniting provinces no longer existed. Though there was indeed a certain set of rights that
were guaranteed to the uniting countries which was earlier considered to have been un-
amendable, all of these have been either amended or repealed.

2. How constitutions may be classified?

Conventionally, constitutions used to be classified into written and un-written. But by the
broad definition of what a constitution is, all countries have a written constitution (in the
sense that it refers to a single document or a collection of documents containing the rules
which govern the government). The author discards the classification of constitutions into
written and unwritten and suggests that a better distinction would be between countries
having a written constitution and no written constitution (constitution in the narrow
sense).
No country can have an unwritten constitution. Britain certainly has a constitution, only
difference being that it is not embodied into a single document and on the other hand is
spread over a number of statutes, legislations etc. Hence it would be more appropriate to
say that Britain does not have a written constitution than to say that it has an un-written
constitution.

Classification into rigid and flexible – depending on the amendment procedure.

But how difficult it is to amend a constitution cannot be viewed merely as a function of
how difficult or easy the legal procedures for its amendment are. It depends on the other
hand on the political and social groups in a community. If a majority overwhelming
majority of the population agree that there must be a change in the constitution, it will be
done irrespective of how difficult the procedure for carrying it out is. Hence the author
suggests that the classification into rigid or flexible should be based on how many times
in practice the constitution has been amended.

Another classification is based on the competence of the legislature to amend the

constitution. Constitutions whose amendment is not within the sole competence of the
legislature are said to be supreme Constitutions. In cases where the constitution stipulates
that it shall be amended only by a special majority of the legislature, the constitution is
supreme to that extent. (not to a great extent)

Based on the division of powers, constitutions are divided into federal and unitary. In a
federal constitution, the powers are divided between a government for the whole country
and a government for parts of the country which are independent of each other and both
of which have limited powers. None is subordinate to the other. Both are co-ordinate.
In a unitary constitution, the government of the whole country is the supreme law making
body. It may by its own discretion permit other legislatures to make laws, but it has the
power to overrule all these laws; these laws are subordinate.
There are also constitutions that reserve different areas for legislatures of the whole
government and provincial legislatures, but give certain limited powers to the
government of the whole country over the provincial government. These constitutions are
called quasi-federal constitutions. (Ex. Indian constitution) A comparison of the practice
of government in certain quasi federal countries would show that some quasi federal
countries in practice act as unitary governments because they use their control over the
provincial government most of the time.

Federal constitutions are generally supreme and rigid to prevent the government of the
whole country from altering the distribution of powers between the governments and
converting it to a unitary constitution.

A constitution by which the government of the whole nation is subordinate to the

government of the parts is called a ‘confederation’.

Based on the method by which powers are divided between the various organs of the
government.
Separation of powers in its extreme form would mean that the executive, legislative and
judicial powers of the government are confided in separate institutions and there is
overlapping of neither functions nor persons.

The variation in the degree of separation of powers between different constitutions is

clear from the fact that while the American constitution does not provide for the President
(head of executive) to be a part of the congress, the Indian constitution requires that the
ministers (heads of executive) must be members of the congress.

It is not right to conclude that separation of powers is not possible in a parliamentary

executive. It is important to remember that it is only the ministers or the heads of
executive that are part of the legislature and the majority of the executive including civil
servants and other officers are not part of it. Hence a separation of powers between the
legislature and the executive is very well possible in a parliamentary executive as well. In
fact, the rule in presidential executives that no person holding an office in the government
shall be a member of either house applies to parliamentary democracies as well just with
the exception of ministers, though it is true that this exception makes a lot of difference.
Based on who the head of the state is, constitutions can be classified into republican or
monarchical. Where the head of the state is elected – republic. Where it is a hereditary
ruler – monarchy. What we get out of a study of constitutions on this basis is little more
than the fact that symbols of monarchy are not incompatible with free government and
that symbols of a republic are very much compatible with autocracy.

3. What a constitution should contain

There are two schools of thought on what a constitution must contain – one group of
people who believe that it must purely be a set of rules and another that it must be a
statement of ideals, a confession of faith etc. The argument advanced in favour of a short
constitution is that it is not a document meant to be read by the public. Hence only its
basic objectives need be mentioned and the rest should be deduced from the objectives
themselves.

It is only obvious that a constitution which provides for a unitary government would be
simpler and shorter than one which provides for a federal government. This is because in
a unitary government, the constitution only has to lay out the functions of the legislature,
executive and judiciary and the mutual relations between the three. On the other hand a
federal constitution needs to mark out the spheres of functioning of the two governments,
place limitations on the legislature and ensure its supremacy etc.

The author suggests that it would be a good practice to provide only a single list for
division of powers because the words in the list could be later interpreted in ambiguous
ways and the confusion only doubles when you have more than a single list. He also
suggests that it would be better to list the powers of the provincial governments and leave
the rest to the parliament since it is impossible to foresee what important areas might
come up in the future.