CONSTITUTIONALISM, UNIVERSAL AND SPECIFIC

Essentially, constitutionalism is a particular response to a basic paradox in the political, economic, and social life of every human society. On the one hand, it is not practically possible for all citizens to participate equally in the conduct of the daily affairs of their country at large.

It is also clear, on the other hand, that people tend to have different views and conflicting interests regarding matters of sharing political power, development, and allocation of economic resources, social policy, and service. The state is the agency charged with the mediation of these differences of opinion and conflicts of interests. But since this function is supposed to be performed by those who control the apparatus of the state, who are human beings with their own biases, opinions, and interests, the question is how to ensure that they will not exceed or abuse their powers. Constitutionalism signifies a system of government that seeks to enable those who have no direct control over the apparatus of the state to ensure that their views and interests are well served by those who are in control of the state. All aspects of constitutionalism, whether regarding the structures and organs of the state or their operation in the making and implementation of public policy, administration of justice, and so forth, follow from this basic reality of all human societies today. This relationship between the population at large and those who are in control of the apparatus of the state can be understood and evaluated in terms of how representative and accountable is the government of a country to all segments of its population. In other words, a society enjoys constitutional governance to the extent that processes of representation and accountability are working properly.

This conception of constitutionalism is sometimes expressed in terms the right to self-determination, namely, the right of people to freely determine their political status and pursue economic, social, and cultural development.

But the realization of this right should be seen as a continuous process, rather than being exhausted or extinguished by the achievement of political independence from external colonial rule. Political independence is a necessary but insufficient condition because a people can be as oppressed by the internal hegemony of a ruling class or group, or an exclusive ideology, as they can be by external colonial rule. While internal hegemony is generally harder to resist than external colonial rule, it is even harder to resist when it is justified in the name of religion.

To conceive constitutionalism in terms of the ability of people to influence the course of events that shape their lives at the personal, familial, and communal level would emphasize the need to safeguard the necessary “public space” for people to safely and freely seek and exchange information regarding public policy issues, and to organize with others for action in furtherance of their own objectives. This basic conception of constitutionalism would also indicate that equal access to and ability to use such public space must be secured for all citizens of a country. It would therefore follow that the essential nature and basic function of constitutionalism preclude the exclusion of any citizen from the full benefits of citizenship because of gender or religious beliefs. This point is of particular concern in this chapter, as I explain later.

It may also be helpful at this stage to note the relationship between structures, institutions, and processes of specific constitutional traditions, on the one hand, and the values and objectives that can be extrapolated as universal features of constitutionalism in general, on the other. Commonly accepted features of constitutionalism, such as the principles of popular sovereignty, separation of legislative, executive, and judicial powers, and independence of the judiciary, are normally realized through different structures, institutions, and processes in various countries. As discussed in the final chapter, for example, separation of powers and independence of the judiciary can be secured either through structural and institutional arrangements, as in the United States, or by means of deeply entrenched political “conventions” and traditions of practice in the political culture of a country like the United Kingdom.

A sharp distinction between conventions and traditions in this sense, on the one hand, and structures and institutions, on the other, can be misleading because each model requires or presupposes some degree or form of the other for its proper functioning. That is, structures and institutions require conventions of practice for their proper functioning, and constitutional “conventions,” in the British sense of the term, also rely on some structures and institutions. Differences in emphasis on one or the other model are the product of the historical experience and context of the country, rather than the result of a deliberate single choice that was made at a specific point in time. In the final analysis, what is important is the ability of the system to achieve the desired constitutional objectives, rather than the precise manner in which it seeks to do that.

But this does not mean that all conceivable systems are equally conducive to the sustained realization of the separation of powers or independence of the judiciary as principles of constitutionalism. While this is usually a matter of degree, there is a point where some mechanisms are too inadequate to be acceptable if the principle in question is to be upheld at all. For instance, while some executive discretion in the appointment and tenure of judges is unavoidable, total reliance on the “good faith” of those responsible for such determinations without external checks or safeguards will defeat the principle of the independence of the judiciary. For example, allowing such executive discretion to discriminate on grounds of sex or religion in making judicial appointments amounts to the total repudiation of the principle of constitutionalism itself. As explained below, this is the sort of constitutional objection to traditional formulations of Shariʿa that cannot be overlooked as merely minor variation in practice.

Nevertheless, it does not follow that unacceptable models can easily and quickly be replaced by more appropriate ones.

As clearly illustrated by the post-independence experiences of many African countries highlighted in chapter 3, the transplantation of structures, institutions, and processes that are found to be successful in one setting or another is a profoundly difficult task that requires extensive adaptation and careful development. This requires time and patience for such institutions to work, which is why I am arguing for withholding categorical judgment, while working for the incremental success of constitutional governance in each case. The point to emphasize here is that both the emergence of consensus on certain features of constitutionalism, and their detailed formulation and implementation in each country, are the product of particular experiences in specific global and local contexts. In other words, the meaning and implications of constitutionalism for a given country is the product of the interaction between broad universal principles and specific local factors and processes. The universal principles themselves are distilled from the specific experiences of a wide variety of countries, which were in turn produced by a similar interaction between the universal and the local in their respective context.

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Source: An-Na'im Abdullahi Ahmed. African Constitutionalism and the Role of Islam. University of Pennsylvania Press,2006. — 216 p.. 2006

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