- Mozambique, uniquely among the 54 states, was never part of the British Empire, and its legal system is based on the Portuguese legal system. See further M Hall and T Young ‘Recent Constitutional Developments in Mozambique’ (1991) 35 J of African L 102.
- See further W Dale ‘The Making and Remaking of Commonwealth Constitutions’ (1993) 42 ICLQ 67.
- eg The Singapore Declaration of Commonwealth Principles (1971) <http://www.thecommonwealth.org/Templates/Internal.asp?NodeID=32987> (8 November 2004); The Harare Commonwealth Declaration (1991) <http://www.thecommonwealth.org/Templates/Internal.asp?NodeID=34457> (8 November 2004); The Millbrook Commonwealth Action Programme (1995) <http://www.thecommonwealth.org/Templates/Internal.asp?NodeID=34458> (8 November 2004). See further J Hatchard and P Slinn Parliamentary Supremacy and Judicial Independence: A Commonwealth Approach(Cavendish London 1999) especially the Latimer House Guidelines (1998) reproduced at pp 17–28; W Dale The Modern Commonwealth (Butterworths London 1983).
- I mean here that the literature on constitutions does not seem to have discovered any other models in the sense in which I use the term ‘model'; but naturally in principle it is not at all impossible to add to the list. See further RC van Caenegem An Historical Introduction to Western Constitutional Law (CUP Cambridge 1995). During the hey-day of socialism, one could find many ‘Moscow-model’ constitutions, but these have mainly now disappeared.
- KC Wheare Modern Constitutions (2nd edn OUP Oxford 1966). To similar effect are CF Strong Modern Political Constitutions (7th edn Sidgwick and Jackson London 1966) ch 3; and J Bryce Studies in History and Jurisprudence (Clarendon Press Oxford 1901) vol 1, essays 3 and 4. I Duchacek Power Maps: Comparative Politics of Constitutions (Clio Press Santa Barbara California 1973) takes us little further. These and other traditional classification systems are critiqued but in some ways developed in L Wolf-Phillips Comparative Constitutions (Macmillan London 1972) 46–47. Wolf-Phillips' classifications are codified/uncodified, conditional/unconditional, superior/subordinate, rigid/flexible, indigenous/adventitious, manifest/latent, presidential/parliamentary executive, monarchical/republican, bicameral/unicameral, competitive/consolidatory, programmatic/confirmatory, justiciable/nugatory, federal/unitary.
- Aristotle mounted a huge research project on constitutions of the Greek world in the fourth century BC, and divided them into ‘democracies’, ‘oligarchies’ and ‘tyrannies’. Unfortunately the results are mainly lost, but we can see how it was done from his Constitution of Athens and Politics. In many ways Aristotle's taxonomy is more helpful than our present taxonomy in that it takes account of political realities; but this is too large a theoretical question to pursue here. For present purposes, it is suggested that the term ‘Westminster model’ (see part B) will suffice to describe the area of constitutional theory and activity observed in this article.
- Whether as a result of an accident of history or the direct use of comparison.
- Examples of functioning Westminster-model systems of this kind are Gibraltar and the Falkland Islands.
- Consider the examples of Fiji, Pakistan, Nigeria and Zimbabwe in recent years.
- What follows was written before, but is along the same lines as, Dale(n 2) 72–73.
- This occurs by means of a successful motion of no confidence in the government, or failure of the government to secure passage of bills that are central to its programme.
- Here the head of state and head of government are one and the same person, who is directly elected.
- Bagehot described the cabinet as the ‘buckle’ that joins the executive and the legislature: W Bagehot The English Constitution (Fontana London 1979) 65.
- Dicey's conception of the rule of law implies, famously, the applicability of ordinary rather than special rules of civil and criminal liability to holders of public office.
- SA de Smith The New Commonwealth and its Constitutions (Stevens London 1964); de Smith (n 10).
- D Austin ‘The Transfer of Power: Why and How?’ in W Morris-Jones and G Fischer (eds) Decolonisation and After: The British and French Experience (Cass London 1980).
- M Wright British Colonial Constitutions (Clarendon Press Oxford 1952); K Roberts-Wray Commonwealth and Colonial Law (Stevens London 1966); JC McPetrie ‘Survey of Constitutions Drafted at the Colonial Office Since 1944’ in JND Anderson (ed) Changing Law in Developing Countries (George Allen and Unwin London 1963); K Roberts-Wray ‘The Legal Machinery for the Transition from Dependence to Independence’ in JND Anderson (ed) Changing Law in Developing Countries (George Allen and Unwin London 1963). McPetrie also points to the hundreds of other constitutional instruments drafted in Whitehall during this period. The 33 do not include Australia, New Zealand, South Africa and Canada, where Whitehall influence was felt at a much earlier period, that of self-government and dominion status. The other constitutions of Commonwealth states may be called ‘indigenous’, but still reflect considerable British influence.
- de Smith(n 10) 3.
- I am indebted to Lord Holme of Cheltenham for pointing out to me that with the reforms in judicial appointments currently under way (2004), another of de Smith's ‘characteristic features’, a Judicial Appointments Commission, will become part of the Westminster constitution.
- Israel is another, non-Commonwealth, example.
- Although like the UK, it is in the process of extensively writing down its constitution.
- One is reminded of Bonaparte's famous statement that a good constitution should be ‘short and vague’.
- The extent of freedom of speech, for example, would be better defined by looking at statutes on sedition, internal security, and press licensing than by looking at the constitution. Rules of parliamentary procedure would typically be contained in parliamentary standing orders. Some Westminster-model constitutions even contain a ‘continuing reception’ provision that ties parliamentary procedure to British precedents where the local rules do not settle a particular issue. In this way the rules of the unwritten constitution may continue to apply.
- eg Ghana and Nigeria. See further, JS Read ‘Nigeria's New Constitution for 1992: The Third Republic’ (1991) 35 J of African L 174.
- I say ‘authorization’ rather than ‘authority’, because in most cases the constitution was enacted by means of an Order-in-Council pursuant to statute. The reason for this is not to downgrade the importance of the document, but the opposite—to protect from parliamentary debate and amendment a constitution carefully negotiated with local interests. See further, Roberts-Wray (1963) (n 18).
- [1969] 1 AC 645.
- BP Barua ‘Constitution-Making in India’ in BP Barua Politics and Constitution-Making in India and Pakistan (Deep and Deep New Dehli 1984).
- J Hatchard and PE Slinn ‘The Path Towards a New Order in South Africa’ (1995) 12(4) Intl Relations 1; J Hatchard and PE Slinn ‘Namibia: the Constitutional Path to Freedom’ 17 Commonwealth L Bulletin 644; PE Slinn ‘A Fresh Start for Africa? New African Constitutional Perspectives for the 1990s’ (1991) 35 J of African L 1; F Venter ‘The Emergence of Constitutionalism in Southern Africa in the Late 20th Century’ in G Vergottini (ed) International Conference on African Constitutions, Bologna, November 26–27th, 1998 (Giappichelli Editore Torino 2000).
- See the Constitution of Kenya Review Commission at <http://www.kenyaconstitution/org/enter.htm> (10 November 2004).
- For a useful overview of the new wave of constitution-making in Africa, see J Hatchard ‘Establishing Popular and Durable National Constitutions in Commonwealth Africa’ in M Andenas (ed) The Creation and Amendment of Constitutional Norms (British Institute of International and Comparative Law London 2000). See further, J Hatchard M Ndulo and PE Slinn Comparative Constitutionalism and Good Governance in the Commonwealth: An Eastern and Southern African Perspective (CUP Cambridge 2004).
- Or ‘conditional’, to use Wolf-Phillips' terminology, see n 5.
- This distinction was recognized by the Privy Council in McCawley v The King [1920] AC 691 (PC); distinguished in Bribery Commissioner v Ranasinghe [1965] AC 172 (PC). In the former case the Constitution of Queensland contained no special procedure for amendment, whereas in the latter, the Constitution of Ceylon required a two-thirds legislative majority; thus in the latter, the doctrine of implied repeal was inoperative. Moreover, as is seen in Kariapper v Wijesinha [1968] AC 717 (PC), a special majority in itself may not be sufficient without an express intention of amending the Constitution; see below.
- However, many different methods of entrenchment can be found, even within one constitution. The Federal Constitution of Malaysia, for example, has no less than four methods. For comparison of amendment processes, see AJ Harding ‘The Creation and Amendment of Constitutional Norms: a Comparison’ in M Andenas (ed) The Creation and Amendment of Constitutional Norms (British Institute of International and Comparative Law London 2000).
- This is often seen as a weakness of the Westminster model. A South African Judge argues that the creation of apartheid was facilitated by the ease with which the constitution was amendable: P Olivier ‘Parliamentary Sovereignty and Judge-made Law: Judicial Review of Legislation’ in J Hatchard and P Slinn Parliamentary Supremacy and Judicial Independence: A Commonwealth Approach (Cavendish London 1999).
- Kesavananda Bharati v State of Kerala [1973] All India Reporter SC 1461: readers are not advised to read this case as it is 1005 pages long, and are referred instead to the excellent summary of this and other relevant cases in KYL Tan and L Thio Constitutional Law in Malaysia and Singapore (2nd edn Butterworths Singapore 1997) 132–58.
- D Conrad ‘Constituent Power, Amendment and Basic Structure of the Constitution: A Critical Reconsideration’ (1977–1978) Delhi L Rev 1; DG Morgan ‘The Indian “Essential Features” Case’ (1981) 30 ICLQ 307; M Abraham ‘The Judicial Role in Constitutional Amendment in India: the Basic Structure Doctrine’ in M Andenas (ed) The Creation and Amendment of Constitutional Norms (British Institute of International and Comparative Law London 2000).
- Except Namibia: the Constitution of Namibia, art 131 states: ‘No repeal or amendment of any of the provisions of Chapter 3, in so far as such repeal or amendment diminishes or detracts from the fundamental rights and freedoms contained and defined in that chapter, shall be permissible under this Constitution, and no such purported repeal or amendment shall be valid or have any force or effect.’
- See the cases cited above in n 33.
- The British constitutional reforms of 1997 to date take the UK's Constitution nearer to that of the US. Nigeria and India are sometimes said to display American elements or terminology in their constitutions.
- The United Republic of Tanzania is also a federation of two units: Tanganyika and Zanzibar.
- For India see arts 153–213 of the Constitution of India, and for Malaysia see Federal Constitution sch 8.
- Constitution of India art 356, see K Suryaprasad Article 356 of the Constitution of India: Promise and Performance (Kanishka New Delhi 2001); S Maheshwari President's Rule in India (Macmillan New Delhi 1977); SC Arora President's Rule in Indian States: A Study of Punjab (Mittal New Delhi 1990).
- For parliamentary and presidential systems in the Commonwealth see the appendix to this article.
- De Smith (n 10) defines the Westminster model in these terms, see further D Butler and DA Low (eds) Sovereigns and Surrogates: Constitutional Heads of State in the Commonwealth (Macmillan London 1991); DA Low (ed) Constitutional Heads and Political Crises: Commonwealth Episodes 1945–85 (Macmillan Basingstoke 1988).
- G Marshall Constitutional Conventions: The Rules and Forms of Political Accountability (Clarendon Press Oxford 1986).
- Amusingly seen by an Indian character in S Rushdie The Satanic Verses (Viking London 1988) during Margaret Thatcher's premiership, as ‘two Queens on a single throne’. This bizarre vision of dyarchy is not confined to those exercising poetic licence. Butler and Low (n 45) app II cite numerous examples of what we might call ‘dyarchical malfunctions’ in Commonwealth states (see below).
- The Australian electorate voted in a referendum in 1999 to retain this system instead of moving to a system in which the head of state would be an elected president at federal and state levels.
- Malaysia is unique in this respect, having a constitutional monarch (the Yang di-Pertuan Agong) who is elected rotationally from amongst the nine rulers (who are also constitutional monarchs at the state level) of those states of the Federation that have such a ruler, styled ‘Sultan’ or ‘Raja’.
- In Singapore the President is popularly elected, but exercises only executive powers of a reserve nature. These are very extensive but are of a purely negative or veto-like nature: in other words, the President cannot initiate any executive or legislative action. See KYL Tan and LP Er (eds) Managing Political Change in Singapore (Routledge London 1997).
- B Munslow ‘Why has the Westminster Model Failed in Africa?’ (1983) 36 Parliamentary Affairs 218; IG Shivji (ed) State and Constitutionalism: An African Debate on Democracy (Southern African Printing and Publishing House Harare 1991).
- BO Nwabueze Presidentialism in Commonwealth Africa (Hurst London 1974). For constitution-making in Africa more recently see U Mattei ‘Patterns of African Constitutions in the Making’ in G Vergottini (ed) International Conference on African Constitutions, Bologna, November 26–27th, 1998 (Giappichelli Editore Torino 2000).
- ‘In West Africa we find national boundaries running at right angles to the coast whereas the ethnic lines run parallel’: Munslow (n 51) 221.
- Sri Lanka and Trinidad and Tobago are further non-African examples.
- eg he was passed a note saying ‘we will remove you’ which he took as a threat to his life.
- Tun Datu Haji Mustapha bin Datu Harun v Tun Datuk Haji Mohamed Adnan Robert, Yang di-Pertua Negeri Sabah and Datuk Joseph Pairin Kitingan [1986] 2 Malayan LJ 420, 474, [1987] 1 Malayan LJ 471, [1987] L Rep of the Commonwealth (Const) 16, 126.
- eg Reference by the Queen's Representative [1985] L Rep of the Commonwealth (Const) 56 (Cook Islands); Kenilorea v AG [1986] L Rep of the Commonwealth (Const) 126 (Solomon Islands); Kahar bin Tun Haji Mustapha v Tun Mohd Said bin Keruak [1994] 3 Malayan LJ 737.
- V Kukreja Contemporary Pakistan: Political Processes, Conflicts and Crises (Sage Thousand Oaks California 2003).
- ie bills which raise revenue.
- The leader of the opposition, Malcolm Fraser, was then appointed as a ‘caretaker’ Prime Minister pending elections, on the understanding that he would advise the Governor-General to dissolve Parliament so that the Australian people could decide the issue. The latter resolved it in favour of Fraser's Liberal Party.
- LJM Cooray Conventions, the Australian Constitution and the Future (Legal Books Sydney 1979).
- In Westminster-model systems, the head of government is variously referred to in the constitution as ‘Prime Minister’, ‘Premier’, ‘Chief Minister’ or ‘First Minister’.
- Mustapha (n 57).
- Traditionally, in British constitutional practice, via a motion of no confidence in the government or government failure to obtain passage of an essential bill.
- Adegbenro v Akintola [1962] Western Nigeria L Rep 185, 197, 203, [1962] 1 All Nigerian L Rep 442, 465, [1963] AC 614 (PC), [1963] 3 WLR 63, [1963] 3 All ER 544.
- Stephen Kalong Ningkan v Tun Abang Haji Openg and Tawi Sli [1966] 2 Malayan LJ 187, [1967] 1 Malayan LJ 46 (Borneo); Stephen Kalong Ningkan v Government of Malaysia [1968] 1 Malayan LJ 119, [1970] AC 379 (PC).
- The former Prime Minister of Pakistan, Benazir Bhutto, on gaining the largest number of seats following an election, reportedly even went so far as to bus her fellow parliamentary party members to a remote mountain resort to prevent corrupt floor-crossing.
- T Thomas ‘Anti-Hopping Laws: the Malaysian Experience’ in G Hassall and C Saunders (eds) The People's Representatives: Electoral Systems in the Asia-Pacific Region (Allen and Unwin St Leonards 1997).
- In the UK, Parliament floor-crossing is usually accompanied by demands for the MP's resignation.
- Butler and Low (n 45) app. See also Low (n 45). Even this catalogue under-represents the number of such instances, as they occur in sub-national units too. In Malaysia, for example, there have been repeated difficulties at the state level, resulting in constitutional amendments and other initiatives to ensure constitutional conduct by the heads of states. AJ Harding Law, Government and the Constitution in Malaysia (Kluwer The Hague 1996) 124–27.
- For an interesting discussion of the problems of the Westminster model in Trinidad and Tobago, discussed by the Wooding Commission, which reviewed the Constitution 10 years after independence, see Dale (n 2).
- Sir Kenneth Roberts-Wray, one of the main engineers of the export model, rejecting the notion of constitutional autochthony, wrote ‘I confess that I do not quite understand the urge to have a new constitution produced in such a way that it can claim to be an entirely local product. It is not as if independence constitutions enacted in the United Kingdom are imposed upon the country. They are always the outcome of full consultation and discussion…’. Roberts-Wray (1963) (n 18) 61. Given our knowledge of events since 1963, the histories written about the independence process, and the resistance to development of local democracy prior to 1963, this seems an extraordinary statement.
- See eg BO Nwabueze Judicialism in Commonwealth Africa (Hurst London 1977); PE Slinn and JS Read Editorial Review Law Reports of the Commonwealth (Butterworths London 1990).
- Dale (n 2) 126–30; Nwabueze (n 73); KW Patchett ‘Safeguards for Judicial Independence in Law and in Practice’ [1976] 1 Malayan LJ lv; Latimer House Guidelines on Parliamentary Supremacy and Judicial Independence reproduced in Hatchard and Slinn (n 3).
- See eg the Malaysian case: AJ Harding (n 70) ch 8; AJ Harding ‘the 1988 Constitutional Crisis in Malaysia’ [1990] 39 ICLQ 57; FA Trindade ‘The Removal of the Malaysian Judges’ (1990) 106 LQR 51; Lawyers' Committee for Human Rights Malaysia: Assault on the Judiciary (Lawyers' Committee for Human Rights New York 1990). For Kenya, see G Kuria and JB Ojwang ‘Judges and the Rule of Law in the Framework of Politics: the Kenya Case’ [1979] PL 254.
- [1963] AC 614 (PC) 632.
- Ministry of Home Affairs v Fisher [1980] AC 319 (PC).
- The phenomenon is so common that full citations would be tedious. For an example, see Gubbay CJ's judgment in Catholic Commission for Justice and Peace in Zimbabwe v A-G, Zimbabwe 1993 (4) SA 239 (ZSC) 252, where he rejects a 1968 Rhodesian decision because it predated Fisher, a decision which ‘has more than once received the commendation of this Court’. This case itself has been referred to in several subsequent cases in the Commonwealth.
- See further M Anderson and M Happold Constitutional Human Rights in the Commonwealth (British Institute of International and Comparative Law London 2003).
- Constitution of South Africa s 39.
- C McCrudden ‘A Common Law of Human Rights?: Transnational Judicial Conversations on Constitutional Rights’ (2000) 20 OJLS 499.
- Since Asian Commonwealth states generally obtained independence earlier than African states, and were heavily influenced by the example of the Constitution of India (1950), there are effectively two different models of fundamental rights provisions: the ‘Indian’ model, which was followed more or less in Pakistan, Bangladesh, Burma, Malaysia, Singapore and Sri Lanka; and the ‘African’ model, which was followed elsewhere, principally in the African and Caribbean states.
- [2001] NZAR 21, [2001] 1 LRC 665.
- [2001] NZAR 385.
- 1995 (3) SA 391 (CC). See also President of the Republic of South Africa v Hugo 1997 (4) SA 1 (CC), relating to sex discrimination; Prinsloo v Van Der Linde 1997 (3) SA 1012 (CC); Mohamed v President of the Republic of South Africa 2001 (3) SA 893 (CC).
- T Carothers ‘The Rule of Law Revival’ (1998) 77 Foreign Affairs xx.
Oxford University Commonwealth Law Journal
Volume 4, 2004 - Issue 2