Unwritten and Written Constitutions

UNWRITTEN CONSTITUTION

Great Britain remains the most often referred to nation with an unwritten constitution. In Britain, it is difficult to point at a single document as the constitution of the country as is usually the case for countries with written constitutions like Nigeria. This does not mean that the British people are not guided by political philosophies which exist under a constitution. They are only obtained in various documents.

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At the time of the Norman Conquest, constitutions were of a customary nature. After the Civil War of the 17th Century, Oliver Cromwell drew up an instrument of Government in 1653. This instrument served as the constitution and it came to an end seven years after the restoration of the monarchy.

The Laws of the unwritten British Constitution comprise of three kinds of rules; statute, common law and custom. In view of contemporary development, it is necessary to include international conventions. Treaties are not themselves part of the British Laws except they are so transformed.

Statutes are epitomised by Acts of Parliament and subordinate legislation. It must be stated that they consist of the most important

constitutional principles that are found in concrete constitutional documents as they exist today. For instance, the famous Magna Carta of 1215 which resulted from successful efforts by the medieval landowners to wrench some rights, the 1688, progenitor of Fundamental Human Rights provisions in written constitutions, the Act of Settlement of 1700, the Act of Union with Scotland of 1706, the Statute of West Minister, the Supreme Court of Judicature Act, 1925, the Nigerian Independence Act of 1960, e.t.c. If all these pieces of legislation and others are put together, in the words of Professor Mitchell; “by the use of scissors and paste, it would be possible to produce out of the Statute Book a ‘Constitution’ which would be very nearly complete”.


Agreeing with this contention, Oluyede added that such a British Constitution would be complete in view of the fact that a written constitution cannot contain more than a section of Constitutional Law. Such a Constitution as suggested by Professor Mitchell, will be well detailed and will have the effect of pervading nearly all facets of Constitutional Law of England as well as having a strong historical and anthropological bearing with its setting. It may be difficult to include customs, conventions as well as judicial pronouncements into this constitution. One way out will be to legislate on such matters that have been settled under these three different headings and transform them. According to Prof. Sokefun, this may be exhuming Cromwell who fashioned out the only Constitution that was ever used in Britain between 1653 and 1660 and it will definitely produce a detailed unit document that could be referred to as the British Constitution.

It is necessary to refer to delegated legislation as well as judicial discussions, custom and literary authority when discussing the unwritten constitution of Great Britain. In the case of delegated legislation, it must be pointed out that these are pieces of legislation derived from the exercise of powers endowed upon Ministers and other arms of State. They come in the form of orders, regulations or bye-laws. The power is also conferred on the Queen-in-Council to legislate on matters of emergency or when it is necessary to give effect to enabling Acts. As judicial decisions also developed into Constitutional Law in England, in Watson V. Walter (1868) L.R. 4 Q.B 73, the principle of qualified privilege was extended to unauthorized reports of parliamentary debates. In Ridge V. Baldwin (1964) A.C 40 H.L, the famous principle of audi alteram partem was reaffirmed.

For custom to be accepted as part of the Constitutional Law in England, it need not have been adjudicated upon by the court, but it must be judicially recognized. To be recognized, it must be certain, reasonable, obligatory to the subjects, as well as possessing continuous existence

coupled with immemorial antiquity. Literary authorities are sometimes relied upon as statements of Constitutional Law in England. The dependant factors are usually the reputation of the author and the date.

WRITTEN CONSTITUTION

A Constitution is referred to as written according to Hood Phillips, when the most important constitutional Laws are specifically enacted. By this, a specific legislative enactment on the organization of a state and administration of justice, as well as other national constitutional issues are provided for. This usually produces a single document with a limited number of sections which may be amended from time to time to suit the prevailing circumstances.

Where there is a written constitution, such document is taken to be an organic instrument which claims superiority over and above any other document in the state. The constitution thus formed establishes a framework and principles of government in broad and general terms with a view to applying to varying conditions in the several communities in the state.

The clearest characteristic of all written constitutions is that it is possible to point to one document or a combination of documents, as the Constitution. A good example of a combination of documents is the experience of Nigeria when there were four Regions in the country and each Region had its own constitution while there was another for the Federation. Written constitutions are now widespread in the world. Such constitutions invariably spell out the three arms of government namely, the Legislative, the Executive and the Judiciary.

The most fundamental attribute of written constitution is that it cannot be changed, amended or repeated like an ordinary enactment. Thus it may have the characteristic of rigidity. This leads us to the discussion of Rigid and Flexible Constitutions.