Advantages and Disadvantages of Written and Unwritten Constitutions

Codified and Uncodified Constitutions

Identify and discuss the advantages and disadvantages of written and unwritten types of constitutions.

A constitution is a body of fundamental principles or established precedents according to which a state or organization is governed, especially when embodying the rights of subjects. A constitution sets out how all the elements of Government are organized and how power is carved up among different political units. It contains rules about what power is wielded, who wields it and over whom it is wielded in the governing of a country.

Types of a constitution: Written and unwritten

As a kind of deal or contract between those in power and those who are subjected to this power, a constitution defines the rights and duties of citizens and the devices that keep those in power in check. A constitution is the supreme law of the land in any given country and no other law may conflict with it, nor may the government do anything that violates it.

Constitutions exist as national and regional. Two types of national constitutions that exist are the written (codified) constitution and the unwritten (uncodified) constitution.

Countries like the United Kingdom, Israel and New Zealand possess the unwritten constitution while countries like India, United States and states of the Commonwealth Caribbean possess the written constitution. A written constitution is one that is contained in a single document which is the one source of constitutional law in a state. Written constitutions are often the product of some dramatic political change such as a revolution as was the case of America and the gaining of independence by the Commonwealth Caribbean countries from Britain.

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Advantages of a written constitution

The process by which a country adopts a constitution is closely tied to the historical and political context driving these fundamental changes. The legitimacy and longevity of codified constitutions have often been tied to the process by which they were initially adopted. States that have codified constitutions normally give the constitution supremacy over ordinary statute law. Unwritten constitutions are the product of an ‘evolution’ of laws and conventions over centuries. There are advantages and disadvantages to both types of constitutions.

Major principle and key constitutional provisions are entrenched, safeguarding them from intervention by the Government of the day. An entrenched constitution cannot be altered in any way by a legislature as part of its normal business concerning ordinary statutory laws. The strongest level of entrenchment exist in those constitutions that state that some of the most fundamental principles are absolute, i. e. certain articles may not be amended under any circumstances. For example, the German Federal Constitution which states that human dignity on the basis of human rights is protected.

The fundamental rights or the right to life are outlined. The Bill of Rights are clearly outlines which deals with rights to equality, human dignity, life, privacy, freedom of speech, freedom of religion and expression, labour relations, education, children and legal process. A Bill of Rights place limitations on the Government and creates an area of freedom for the people. Individual liberty is more securely protected and authorative Government is kept at bay. The Government is ‘straight jacketed’, so absolute power cannot be the norm of the government.

The Constitution is supreme over ordinary statute law. If there is any conflict between a legal statute and the constitution, all or part of the statute are declared ultra vires by a court, and struck down as unconstitutional. The constitution of the United States had many unforeseen shortcomings which the Founding Fathers could not have envisioned over two hundred years ago. These had to be patched through amendments, but have been honoured by Governments, and no dictatorship has been able to take hold of it.

The opposite effect of this was seen with the constitution of Argentina written many years after in 1853 and was a better document, but did not prevent a succession of dictatorial Governments from ignoring it, such as the Peron’s Military Government which ignored the fundamental rights of the people. In Argentina a state of emergency was declared 52 times to bypass constitutional guarantees. Non political judges are able to police the constitution to ensure that its provisions are upheld by other public bodies.

The judiciary is unique in that it is not elected, but it is independent. Judges in Trinidad and Tobago and the rest of the Commonwealth Caribbean are appointed by the various Judicial and Legal Service Commissions. As a result no one, especially a corrupt politician can interfere in the work of the constitutional courts. The constitution is protected by the legal bodies of the courts, such as the Supreme Court, the Constitutional Courts or the High Courts of the various countries. The responsibility of the court is to protect constitutionally established rights and freedom.

Any constitutional violation by the executive, such as a politician who abuses the power of his established office can be held accountable in court. This was evident in Trinidad and Tobago, where many felt that the last Prime Minister, Patrick Manning abused the powers of his office, and on many occasions was taken to court for judicial review. The German Constitutional Court is a special court dedicated solely to the protection of the constitution. Constitutional courts are powerful instruments of judicial review with the power to declare “unconstitutional” a law that is deemed incompatible with the constitution.

France has a Constitutional Council which judges the constitutionality of laws before the ratification process. The power of the legislature is constrained, cutting its sovereignty down to size. A crucial function of a constitution and a classic feature of democracy is the division of power among the three pillars of Government, i. e. the legislative, the executive and the judiciary. The legislature makes laws and monitors the executive. The executive makes policy, proposes laws and implements laws passed by the legislatures and the judiciary tries cases and administer justice.

Each arm of the state keeps watch over the powers of the other. The courts can judge the actions of the legislature and the executive but cannot pass laws. The legislature can make laws but cannot hand down judgments or take executive action. The challenge is to ensure that the executives do not wield its authority without being contained by the other branches. Division of power in this way ensures checks and balances within the system in a country. Lord Action’s assumption was, “power corrupts: absolute power corrupts absolutely”.

The concentration of all power into the hands of one individual or group places them in a position to abuse that power and thus to instill fear into the common man, hence the need for the doctrine of the separation of powers in a democracy. The written document has an educational value in that it highlights the central values and overall goals of the political system. The ceremonial preamble of the Trinidad and Tobago’s constitution makes reference to the supremacy of God, fundamental human rights and freedoms. The American constitution also draws reference to God.

Disadvantages of a written constitution

The constitution of the Republic of South Africa 1996 which is called the “birth certificate” of a new South Africa states the hopes and aspirations of the nation torn apart by apartheid. This preamble recognizes the injustices of the past and honours those who suffered for injustices and freedom and respect for those who work to develop the country and believe that South Africa belongs to all who live in it, united in diversity. One disadvantage of the written constitution is that it is more rigid and may therefore be less responsive and adaptable than an unwritten one.

It is the view of many politicians and academics globally that a constitution should grow with the society in keeping with that particular time in the historical development of the country. This type of constitution does not allow for a great amount of organic change over time and does not easily take into account the needs of the democratic system and the people. A majority is needed in Parliament to attempt any kind of modification. The United States constitution is stuck with old provisions that people think are a bad idea, e. . the right to bear arms and the right to a jury trial in federal cases involving more than twenty dollars. After time most of these old provisions are ignored or never used in a modern society, since they are not relevant to the needs of the people. Last year the St. Vincent Government attempted constitutional reform, but needed a majority of seventy five percent of the voters in a referendum. The Government was not able to get this majority, so they are stuck within the confines of their old constitution.

Within the last couple of years the People’s National Movement under the Prime Minister Patrick Manning, of Trinidad and Tobago attempted constitutional reform, but they did not have a majority in Parliament so they went about it in a different way. The draft proposed constitution was printed and widely distributed to citizens of the country so that their views were shared. Throughout the country there were public meetings and consultation with the people. The people were given a forum to express their desire or disgust for the proposed constitutional document.

There was also consultation with the leader of the opposition, because the support of the opposition was needed to make any kind of amendment to the proposed constitution. The second disadvantage of the written constitution is that Government power may be more effectively constrained by regular elections than by a constitutional document. In democratic countries, General Elections are held ever so often so that the people can decide who forms the next Government. In the United States, elections are held every four years, but a President cannot serve more than two terms, so he cannot run for office after his second term is up.

This is another way to keep someone out of the Presidency for too long, like in some of the African countries where it is noted that Presidents who serve for more than twenty years or so, allow the power to go to their heads, and as a consequent use the constitution and the military to stay in power for an unlimited number of years, which history has proven is unhealthy for the development of those countries, since those countries have been plagued with civil war, unrest and economic problems. The third disadvantage is that constitutional supremacy resides with non elected judges rather than with public accountable politicians.

By virtue a politician is accountable to the people and in a democratic country like Trinidad and Tobago if one is not satisfied by a Member of Parliament he can take action, as was the case when a Muslimeen member was disgruntled because his daughter could not attend a Catholic School with her traditional Muslim garb. The gentleman went into the office of the Education Minister and demanded accountability. Others politicians are also asked to publicly account because in those cases the media intervene to voice the grievances of the people. However judges are not accountable to anyone for their actions, whether they are right or dead wrong.

They are insulated from outside interference. Judges can be easily corrupted in cases where they have large debts or have vices that they need money to maintain. It is a common sight to see judges at exclusive casinos in Trinidad and Tobago. One of their hobbies is gambling, and it is well known that most gamblers are always in debt because the mathematical probability of all gambling games is designed for the players to lose most of the time. Once criminal elements know which judges are in debt, they can easily reach out financially to these judges, and of course for favors in return.

In the past in Trinidad and Tobago judges took bribes in the form of money, land, houses, and luxurious estates in order to drop charges, throw out a case or find some legal technicality or loophole to dismiss a case. During the 1970’s, 1980’s and early 1990’s the well known drug dealer and killer Dole Chadee had every single one of his cases dismissed at the Princes Town Magistrate’s court, and it was the same judge who sat on those cases, because he was not accountable to anyone, not even the Prime Minister at the time.

The Medellin Drug Cartel in Columbia controlled the drug trade in that country during the 1980’s and they were untouched by politicians and law enforcement during their reign. Judges had to drop charges against any member of this Cartel if they ever went to court because the Cartel Bosses threaten the judges with violence and death. Because these judges had the power to drop these cases and were not accountable to any political directorate, they had no choice but to throw the cases out, else they and their families would have face executions by the drug cartel.

The fourth disadvantage of a written constitution is that constitutional provisions are enshrined in customs and conventions and may be more widely respected because they have been endorsed by history and not invented or drawn up by humans On major advantage of the unwritten constitution is its flexibility and responsiveness to change. It is easily adapted to change and amendments. It is flexible and adaptable to different customs, and since the British population is more diverse now than ever with immigrants from all different societies, cultures and races, this is important.

The laws have been flexible to allow Muslim men to have more than one wife in British society. The laborious process of amendment does not have to be done simply because a minor change in political practice. For example, if the minimum age to vote was to be changes from 18 to 17, in the United States, a formal amendment would take years any may even fail to happen for a number of years because of procedural reasons. Such a change in the United Kingdom could easily be done in a matter of hours.

Advantages of an uncodified constitution

Therefore the unwritten constitution allows for a great amount of organic change over time, to easily take into account the changing times and needs of the democratic system. It allows itself to be shaped by the needs of the people, adopting as required by circumstances. It is quite common for out of date or unworkable bits of laws to be discarded for new procedures and customs. Non written traditions and customs carry greater weight in the United Kingdom as oppose to the written constitution. The British people are extremely proud of their monarchy, their historical achievements, their progressive democracy, their freedom and dignity.

Disadvantages of an unwritten constitution

They are the world’s oldest democracy and as a result the people are proud to respect the conventions and uphold law and order in society. The first major disadvantage of the unwritten constitution is that there is no single text that can be invoked and there is no definition of state powers and no limits except “customs”, meaning that whatever compromise is necessary between current opinion and the Government sense of virtue may come into conflict. The British constitution exists in every single piece of legislation ever passed in Parliament.

These also exist in common law, treaties with foreign powers, analysis and comments made by experts such as politicians and academia. Since the British constitution is the product of evolution of laws and conventions over centuries which include written source and e. g. constitutional statutes enacted by Parliament (House of Communities Act 1972, Human Rights Act 1998), and also unwritten sources such as constitutional conventions, observation of precedents, royal prerogatives, customs and traditions , such as always holding a General Election on Thursdays.

Altogether these constitute the British constitutional Law. The other disadvantage is that only a select few can acquire such knowledge of the unwritten constitution since they are scattered across many documents. Thus it is only these select few who are able to interpret it and what is worrying is that these people might be the ones to connive in constitutional subversion. Most British people would struggle to put their hands on what their rights are or in which text they can locate these literature.

So the responsibilities that goes with being British may never fully be understood by the average citizen because those rights are scattered across a host of different places. The next disadvantage is that “delete and insert” can be done on the constitution if by chance one day a written one is implemented. Minor violations would go unnoticed because the average citizen is not aware of the various types of British laws. The Parliament could easily fox a written constitution to serve itself and executive members without the public ever being aware of this.

Another disadvantage is that limits to state powers are not clearly expressed and this is of great concern to the knowledgeable people of British society. Parliament has unlimited law-making powers and there is no clear separation of powers among the three arms of the Government. Historically the United Kingdom has not had a definition of individual rights and freedoms. The 1689 Bill of Rights sets out the powers of the Parliament, but relies on the notion of residual freedom and the concept of parliamentary sovereignty.

Therefore individual rights remained dependent on the ad hoc statutory protection or upon judicial protection under common law. The closest thing the United Kingdom has to a Bill of Rights is the Human Rights Act of 1998 which incorporates the European Convention of Human Rights 1950 into domestic law. The ability of ordinary people to challenge the actions of various institutions of Government is formally limited to the acts of public authority by section six.

The new counter-terrorism measures appeared to erode civil liberties in the wake of the September 11th 2001 attack in New York, and the July 7th 2005 bombings of the subway in London. The last disadvantage is the question of British sovereignty. The entry of the United Kingdom into the European Union in 1973 was a major constitutional development, bringing Britain under the supranational jurisdiction of the European Union in a limited number of areas, which has gradually grown over the years.

This illustrates the erosion of the United Kingdom unfettered sovereignty. Well known British politicians over the years have commented publicly on this issue of Britain slowly losing its sovereignty. After World Was Two the American troops seized covert plans from the Germans that outlined another future attempt by to unify Europe under German rule, but this time without the use of war. It entailed the unification of Europe which Hitler wanted to achieve by use of force and the military, and the ultimate destruction of America.

This information has been declassified within recent years. One has to question the diplomatic motives behind the driving force of the European Union and its acceptance of Britain into the Union, so Britain should seriously think about it sovereign erosion. Although there are differences between written and unwritten constitutions with respect to their advantages and disadvantages, one must carefully consider the usefulness of a constitution and its promotion of democracy and the rights and freedom of the people.

We can see that although the United Kingdom does not have a written document, it is the oldest and one of the greatest democracies in the world. The British people are proud and law abiding. The United Kingdom has so far been a peaceful and stable country, whereas countries like China, Russia, North Korea, Vietnam and Myanmar all have written constitutions, but basic human rights are not enjoyed by a number of citizens of those countries. A perfect example of democracy that truly respects the rights, freedom and aspirations of the people is in the United States where there is a written constitution.