“This evening, a parliament will debate on a law proposal,” we often hear on television, especially during those Corona times. It is not unusual that a legislative government branch decides to change certain parts of laws, put new ones in force and sometimes to even repeal some, because through time, societies are changing and so must laws (and acts) that ensure their stability and people’s safety. Nevertheless, it only rarely happens that somebody does not agree with new rules or regulations to that extent that they are willing to bring this matter even to constitutional court.
Some parents here in Slovenia did so as home-schooling has been lasting for way too long in times of epidemic, and has been, as they claimed, violating their children’s right to education. They sought help in a constitutional court because in their opinion, new intervene regulations are not in accordance with a certain constitutional article. That got me thinking, why is having a constitution even so important for a country, is it even necessary, why is violating it so inacceptable and most importantly, how can it be decided, who will take a huge responsibility for writing it and at the same time be given a privilege to set the rules as they like it?
Constitution is a highest legal act and a collection of principles and rules that define a structure of a state. In addition, it sets basic guidelines for how all three government branches, legislative, executive, and judicial, are ought to operate and how a power of governing is divided among state organs as well as important positions taken by individuals. Although it is of great importance for a stable society, it is surprisingly not necessarily written. Well, it usually is, and most countries have a specific official document accepted as their constitution. On the other hand, United Kingdom’s, Israel’s, and New Zealand’s highest legal act is unwritten (or partially unwritten in Canada’s and Saudi Arabia’s case), according to WorldAtlas.
However, do not take it too literally – word “unwritten” in this context does not mean that those countries do not have any basic principles or rules written; according to Learning Academy, it only means that their constitution is not written down in one place, but has multiple sources instead. For example, it may include parts of laws or acts passed by a parliament, and also be influenced by certain conventions, government’s decisions, or even judges’ decisions about particular legal cases from the past (if a country follows a so-called common-law system, like the United Kingdom).
As far as I see, an advantage of unwritten constitutions is that they are continuously evolving and easily adapted in a way that is most suitable for current social situation. In my opinion, this is great, but only when a country has adequate and responsible people in the highest government positions. If those people make bad decisions, it can quickly negatively impact a constitution and consequently government’s organisation as well, and, in this way, represents a threat to democracy.
Therefore, I am more on the side of a written constitution because it is a legal act that is supreme over all other laws, acts and regulations, and serves as a shield from people in power changing legislature for unjustified reasons, potentially harmful for a country and its citizens. Moreover, it protects our democratic political regime from becoming authoritarian by clearly defining how a government is structured.
Nevertheless, as much as written constitutions are protective, they are also way harder to change than unwritten ones, which makes them beneficial for a political system only if they are written thoughtfully in the first place. I mean, we would not want the highest legal act in our country to have horrible principles while we would have to meet numerous requirements to change its part, or in other words, to make an amendment, right? Therefore, constitutions should be changeable, but still with limitations in order that it cannot be changed too easily and for unjustified reasons. It is also important to mention that some parts of a constitution are unamendable (cannot be changed) because they are so crucial for governing a country or citizens’ protection that they should absolutely and always have legal force.
While deciding about putting laws in force or repealing them is primarily in parliament’s hands, a process of making amendments or even writing a new constitution gives way more participation opportunities to members of public as well. According to Constitution Brief: The Fundamentals of a Constitution that Nora Hedling wrote for International IDEA, making a new constitution or just amending an existing one always begins with discussions among multiple groups, including those in power and opposition groups, as well as majorities, minorities, varied socio-economic classes, and people of different genders.
Then, a so-called constituent assembly is formed. Sometimes, it consists of many members of different professions and diversified backgrounds, while at other times, it is a group of appointed commission or a few legal experts, as Hedling wrote. There should never be only one person in the assembly. Members are either appointed (chosen by somebody in authority) or elected. Firstly, they reach a preliminary agreement with a view to exchange opinions in good faith and peacefully. Then, they debate and, after they agree what to do or which changes to make, they write a new constitution or its part.
They also must be careful that a new constitution will be in accordance with a constitution of a confederation or a union (for example European Union), if a country is its member. At all stages of the process, the rest of citizens are welcome to express their opinion and give suggestions through different types of media, which is not only helpful, but also important to consider because if public does not agree with constitutional changes, they have practically no chances of coming into force. The main reason is that in many countries, such changes need not only legislature (e.g. parliament) approval, but also public approval, expressed through a referendum. If a majority (in some countries even two thirds or more) supports it, then a new constitution or its amendment will come into force.
I support the idea that a process of constitution changing or making involves many different people representing all kinds of groups. First of all, in this way, better solutions are found, and second of all, once a constitution is in force, all existing laws, acts and regulations will have to be in accordance with its principles and all those groups of citizens will have to abide it. I wonder how great the world would be, if people always collaborated like this… 🙂