Status of the People in Modern Constitutions - Essay Example

Status of the ‘People’ in Modern Constitutions al Affiliation) Status of the ‘People’ in Modern Constitutions in regardto European Civil Law Most countries in the world today have a constitution that is considered supreme over all other forms of laws within the borders of that country. All constitutions in democratic countries have to be approved by ‘The People’, and lay emphasis on the protection of ‘The People’, with law experts translating this to say that the main purpose that the constitution of any country serves is to protect the rights of all citizens as a priority above all other uses1. As events take place all over the world, it has become imperative to assess the state of ‘The People’ with a keen look at the extent to which the law has transformed in regard to the rights and privileges accorded to the people. The world has numerous legal systems2. International law is a concept that has come to gain great importance at the global level, whether created through formal agreements among willing states in the form of treaties and other forms of agreement or whether they are created by the participation of sovereign states. Transnational entities like the European Union have come up with their legal structures that guide their actions, with each member of the European Union having its own constitution3. Secular law is created by man, and can be changed at the will of man, thus the phrase ‘We, the People’. This phrase is common among the world’s best examples of constitutions such as the Constitution of the United States. This is in contrast to religious law, which is taken as divine and created by a deity. Religious law is largely based on belief, with believers getting guidance on how to conduct themselves. Secular law on the other hand deals with the external actions of man and how these actions affect others4. The European Union has come up with a Civil Justice Programme5. This programme aims at eliminating the numerous challenges that stand in the way of the functions of civil proceedings across the borders of member countries. This is with the aim of improving the lives of people and business establishments by promoting their access to justice. The decision to establish this programme was arrived at by the European Parliament, a continental body that formulates laws for the European Union and has members representing each of the European Union member states. Its formation was in a bid to complement the Fundamental Rights and Justice programme, and strengthen the protection of freedom of the people, justice and security of the people. The Civil Justice Programme operates with the objectives of fostering cooperation among the member states in regard to judicial matters, improving the dissemination of information on the EU member countries’ legal systems, improving mutual knowledge in matters of civil law, legal practitioners and professions in the EU member states’ judicial and legal systems in addition to working to ensure that there is sound implementation, the concrete and correct application of civil law and evaluation of instruments in the community in regard to judicial cooperation in both commercial and civil matters6. Modern constitutions do not do much to protect the ‘people’, as they stipulate to do. As things stand, there are so much questions being asked on constitutionalism than ever. Constitutions are under attack the world over and it increasingly becomes clearer that the people have taken a back seat in the priorities of most governments. The world is struggling to strike a balance between the processes of force and the orderly procedure provided by the law7. It has been observed that the processes of law are becoming more popularly used because they are deemed as being quicker and more effective than the provisions of these constitutions. Thomas Paine wrote in the 17th century that the newly promulgated American constitution was ‘to liberty what grammar is to language’8. He added that ‘A constitution is not the act of a government, rather of a people constituting the government, and a government without a constitution is a power without right’. Paine prominently wrote that governments gave themselves power as they pleased, in total disregard of the fact that the people held all the power9. This is just one individual’s view of constitutionalism, which remain shared by a large number of people today. These statements clearly express the difference between the new understanding of the conscious creation of fundamental law by a people, commonly referred to as the new definition of the term ‘constitution’ and the older and more traditional where the word ‘constitution’ was only applied to the weighty principles to be derived from the existing institutions within a country, their establishment and their development. the best illustration of the older view was given by Bolingbroke in 1733, when he said: By ‘Constitution’ we mean, whenever we speak with propriety and exactness, the assemblage of laws, institutions and customs, derived from certain fixed principles of reason, directed towards certain fixed objects of public good, that compose the general system, according to which the community hath agreed to be governed… We call this a good government, when…the whole administration of public affairs is wisely pursued, and with a strict conformity to the principles and objects of the constitution10 It is imperative to note the difference between the opinion that Paine holds and the one held by Bolingbroke. According to Bolingbroke, any action by the government that goes contrary to the provisions of the constitution has participated in exercising ‘power without right’. The view according to Paine, it is safe to deduce, is that that kind of a government is not the best for the people. Bolingbroke posited that a government may be estimated and compared by the way they conform to reason, and that the actual customs of a country and its laws provide the best safety in the criterion of what that reason really is. The failure of a government to conform renders it a bad government, but Bolingbroke says explicitly that it is not a government without right. He does not expressly say or even imply that such a government can be disobeyed, except by events such as the occurrence of a revolution. Both writers curiously offer the same example of what qualifies to be termed as an unconstitutional enactment, which is the English Septennial Act. This Act was enacted in 1716, and was criticised by many people for being outside the provisions of the constitution even by British citizens. Paine even said that the Septennial Act was proof that there existed no constitution in England. Bolingbroke held the view that the Septennial Act of 1716 would have appeared as ‘monstrous’ to the revolutionaries, who were reacting against the arbitrariness attached to the growing notion that parliament was regarded as omnipotent. Paine came up with an explanation that has been regarded as essential in the study of the state of the ‘people’. He stated that there is a big difference between a people’s constitution and that particular people’s government, regardless of whether the government of the day is entrusted to a representative assembly or to a king. He went further to state that the constitution occupied a higher position than the government in order of importance, since the government gets its power from the people through the constitution and as such the people limit the activities of the government to be within the confines of the constitution. If the government goes against the constitution, it is not a government that listens to the will of its people and so does not qualify to be termed as a good government because it has exercised power without right11. Paine’s seems to imply that any country that does not see to it that the government and the constitution are separate should not regard itself to have a constitution, because there is no set of laws to check the excesses of the government12. It is difficult to deduce that countries that subscribe to the European Civil Law have been at the forefront in advocating for the rights of their people, putting the people first13. European governments have well-structured systems in place intended to serve the people. England, for example, has had a system of government that has been in place since medieval times and still is in effect. However, the people have gained more protection from the tyranny that comes with royalty; they have managed to move farther from the monarch system and adopt the political system of governance because with a political system they can exercise their rights in a somewhat free atmosphere. With a monarchy, any opposition against the government would be regarded as rebellion against the country. Such cases would be treated as treason, and the individual would be sent to the gallows in full view of the public. The extension of the democracy in England, which comes with the right to vote, happened in recent history, to indicate how young democracy is in the world. However, with civilization came new systems of government. The political system has provided more democratic space for the members of the public, but has not yet provided the ultimate results that were expected at the beginning. England has remained largely aristocratic. Evidence of this is seen when one looks at the people who make up the House of Commons. Despite the expansion of civil rights allowing civilians to run for office, the aristocratic system still hovers in the air as aristocratic traditions continue to limit and control the ability of Parliament to extents unknown to many in the contemporary world. These traditions were in place for hundreds of years and were inherited into the current era. They serve as inhibitions to the work of Parliament, with almost the same effectiveness that legal prohibitions have. A point to note is that if this system is not transformed then the essential legal restraints that are required for such an establishment remains a pipedream. The doctrine of parliament being omnipotent will not be questioned and as such, parliament shall continue operating without the necessary checks in place to ensure the elected representatives of the people are productive in their work and are in actual sense, serving the interests of the people who elected them to power. It is widely believed that the doctrine of the omnipotence of the national assembly and the House of Commons in England, and other parliaments within Europe, have not been questioned because they have not yet provoked or interfered with the interests of a mightier force or authority. Such aristocratic tendencies have served to widen the gap between the government and the electorate. Such disconnect brings about more unrest, as the people get more inclined to think that they have been abandoned by their government, especially in the wake of disasters and attacks such as terrorist attacks. Despite the establishment of systems in European countries, the state of the inhabitants remain subject to government decision, instead of the vice versa. Successive governments that were elected to power on the platform of increased democratic space have shrunk this space even further by sponsoring bills in parliament and enacting laws that serve to oppress the common citizen. Such bills touch on vital sectors such security, education, healthcare and even taxation. This situation is not unique to England. In the year 2013, there were riots in Sweden that rocked the entire continent14. These riots were a depiction of the situation in regard to the socioeconomic disequilibrium that continues to affect the common citizen in Europe. The levels of frustration continue to rise among the people if the frequency with which these riots occur are anything to go by. Income inequality, in more commonly used terms the wealth gap that is there between the rich and the poor, has been slimming globally while expanding in most European countries since the 1980s. The Gini Coefficient, which is widely used in the measuring of inequality in income, indicates that the rich in most parts of Europe have continued to become richer, while the poor in Europe have continued to become poorer since that period until now15. The widening of income inequality has not just taken place in Eastern Europe, but also among the wealthiest societies in Europe. Some countries in Europe where inequality has continued to rise over the decades include Germany, Finland, Norway, Luxembourg, Austria, Norway and Sweden, which was recently rocked by riots by an angry population16. The constant continuity in the widening of the gap between the rich and the poor has indicates the deep malaise among the European societies. This rot was exacerbated further by the Euro crisis, which was also caused by poor economic decisions made and led to a drop in the value of currency in most European countries. The big difference in incomes has uncovered so many issues of concern that European lawmakers need to address further beyond the short term fiscal and economic concerns. Eurostat, a European data company, undertook a research to look into the poverty index of European countries in the year 2010. The findings of the research work revealed that the number of individuals who even after receiving social transfer funding can be classified as being at risk of poverty made up 20 per cent of population of Eastern Europe. These figures read as 17 per cent in Italy and 18 per cent for the United Kingdom. The average figure has since slightly improved to a little more than 16 per cent. The global economic crisis that hit the world in 2008 contributed to high rates of unemployment in Europe. Since then, the rates of unemployment have been on an upward trend, save for a brief period that was in the year 2010. Unemployment levels reached an all-time high in recent times, rising to 11.8 per cent as at the end of the year 2012. Unemployment among the youth is alarming, with the figures approaching 60 per cent in Spain and Greece, while they are almost reaching 40 per cent in Portugal and Italy. The effects of the rates of unemployment being very high are grave and cannot be overstated17. To begin with, high unemployment rates are known to cause brain drain among the young people, corresponding with a population that is older over a period of time. Societies in which the government has had to create a social compact in order to offer a wide variety of entitlements to serve the long term can expect a disastrous outcome. The population of individuals above the age of 65 has tripled since the year 1960, up to 30 per cent from 10 per cent. This has in turn increased the spending of European governments on benefits to the elderly to an approximate 40 per cent of the total social spending, with healthcare taking up approximately 30 per cent of the fund. With the tax base of these countries increasingly shrinking and the percentage of people in the population depending on entitlements rising every year, an explosive situation is at hand. The people continue to face tough times, with governments losing their tax bases, thus having less money to spend on the needs of the population. On average, in Europe, there was a fall in total taxes collected by 2 per cent between the years of 1995 and 2010. Some countries experienced bigger drops, with some being as high as 6 per cent falls in their gross collection of taxes over the same period. These statistics show that the governments of European countries are not putting in efforts to cushion the people against the shocks of the market. Some of the fiscal and monetary policies put in place to improve the situation better end up being retrogressive. European governments have increased Value Added Tax to respond to their shortfalls in tax collection and counter the decline in revenues. The effects of such gradual erosion in the standards of living have manifested themselves in a number of ways. To begin with, there has been an up surge in the rates of crime across Europe. European citizens are constantly under pressure from individuals looking for ways of surviving the harsh economic times, sometimes through illegal means. The people worst affected are fellow citizens. In addition to the increase in the crime rates, there have been numerous attempts at toughening the immigration laws in Europe, with some level of success. However, these countries risk a backlash from the immigrants and people who belong to minority groups. The emergence of radical political parties has not come as a surprise to many people, with the sense of order slowly fading away. The sense of security that the people should have in their government is slowly being eroded as the European governments fail to address the plight of their people. Their failure to enact laws that would guard their economies against economic depression and spill over effects of poor economic performance by other countries has proved to be an expensive price to pay18. It would be realistic to state, therefore, that the place of ‘the People’ has been taken over by other interests and as such, it would be potent to admit that Paine’s dictum held and still holds as true. The ‘people’ need to take it as a matter of general principle that a government which in any state constitutes its ranks with whatever power it pleases shows all the signs of a government operating without a constitution. The constitution sets limits on the powers of the government, limits which should not be exceeded. The result of this is that the limits and forms followed in the process of ‘constituting’ forms the epitome of a ‘constitution’ that by character is superior to any acts made by any government that it creates. If, for instance, the people through the constitution have allowed the government some defined power, then it is a forgone conclusion that government cannot perform any act outside of the accorded powers19. The best scenario would be to have all constitutional governments operate within the confines of the constitution. These constitutions should have the necessary frameworks that make it difficult to amend without the involvement of the people. The limits set for government actions have to be fundamental in some sense; not just due to the reason that they are not complicated, but also because they cannot easily be altered by the normal legal processes. This will go a long way in ensuring the accountability of government to its people20. The ‘people’ have not had their interests taken care of in the manner that they should. In this regard, it is imperative to note that the European Civil Law allows for an individual to seek redress in court in order to compel the government to perform certain actions that are in favour of the social well-being of the people. Precedence has already been set in British courts in cases such as R v Secretary of State for Foreign and Commonwealth Affairs (1995) where the presiding judge, Lady Justice Rose stated that statutory powers have to be used with dedicated attention to the real purpose as to why they were put in place however permissive they could be. She also said in her judgement that statutory powers have to be used for relevant and proper reasons. Through the courts, it is possible to protect the rights of the people as stipulated in the constitutions of the member countries21. The European Union has made efforts to ensure justice to the people is not curtailed by politics22. In this regard, the European Union formed the European Human Rights Commission to help with the protection of the rights of the people in the member countries and in the fair administration of justice to victims. This is a step in the right direction towards realizing a more just society in the countries in Europe. The establishment of a Court in charge of justice in Europe is also regarded as efforts towards making sure that the people have access to justice outside of their country. Because the court has jurisdiction in all of the member states in the European Union, the citizens of the countries that make up the European Union can take up cases at the ECJ. However, any case that goes to the ECJ has to be forwarded by the lower courts, in this case the high courts of the country in question. In order to restore the position of the people in the constitution, the legal system has to be more inclusive in terms of minority groups in the society. This is because the constitution protects the rights of all persons within the borders of a given country. The absence of constitutional security for minority interest groups should be a recipe for disaster, since they may be citizens yet they are treated as illegal immigrants. If this group of people becomes comfortable, there will be fewer cases of riots23, giving the instruments of the economy ample environment to operate, with less time spent dealing with issues of protests in the streets and in institutions24. Laws guiding the conduct of players in the political field are present, but they are seldom regarded25. Political figures have been known to have a lack of respect towards the constitution, engaging in power broking at the expense of good leadership that the people deserve, and which is a fundamental right protected by the respective constitutions of every European. It is in order that a continental body be set up to look into the political activities in all the member countries to ensure that no politics is played with the important matters upon which human life depends. European Civil Law covers constitutional matters26. Due to that, the court should seek to be involved in cases that have been taken to courts within the member states. This will provide the European Court of Justice with the knowledge that it may need to translate and interpret laws within the member countries so that it does not prosecute the innocent on account of the misinterpretation of the law27. Being a continental court, the ECJ should also serve as the final court of appeal in cases that have not been properly handled within the country28. The people should be more involved with matters of the law in order to know the limits to which the constitution guides behaviour of every individual and the government. The knowledge of the provisions of the constitution will contribute to increased participation in government affairs. This way the public can be a watchdog, checking the excesses of the government. The public will also adopt the rule of law and use it to select leaders who they trust will be able to improve their condition. The lack of knowledge on legal matters has been taken advantage of by successive governments, who have ridden on the ignorance of the members of the public to act outside of the constitution for a long time29. Knowledge of legal matters will enable members of the public to question government activities such as irregular procurement procedures, illegal detention among other issues30. The public will also be aware of the budgeting process and how the government intends to spend public resources. This will ensure the government does not engage in functions that will be wasteful of public money. The public should also demand accountability from state corporations which engage in business on behalf of the government to ensure they engage in profitable ventures with the interest of the public at heart. References A comparative overview of European legal systems RSS Np nd Web 18 Apr 2014 . Augenhofer Susanne A European Civil Law – for Whom and What Should it Include? Reflections on the Scope of Application of a Future European Legal Instrument European Review of Contract Law 7 2 (2011) 22 Print. Barrett Gavin Towards a European civil code: reflections on the codification of civil law in Europe ; [reproduces the proceedings of a Colloquium organised by the Academy of European Law on the "European Civil Code(s)"] London Palgrave Macmillan 2002 Print Bleich Erik Carolina Caeiro and Sarah Luehrman. State responses to ‘Ethnic Riots’ in liberal democracies: evidence from Western Europe European Political Science Review 2 02 (2010) 269-295 Print. COUNCIL IN FAVOUR OF LIMITING EUROPEAN CIVIL LAW PROCEDURES TO CROSS-BORDER CASES.(Brief Article). European Report [London] 10 Sept. 2005: 16 Print Civil Justice Programme. - Justice. N.p., n.d. Web. 18 Apr. 2014. . Civil law: European judicial cooperation. Luxembourg: Office for Official Publications of the European Communities 2005 Print Dickey, Christopher. "Europes Time Bomb; the French Riots Should Be a Wake-Up Call: What Is Normal Is No Longer Sustainable." Newsweek [London] 21 Nov. 2005: 3. Print. EU Civil Legal systems law Np nd Web 19 Apr 2014 . GOTHENBURG EUROPEAN COUNCIL: RIOTS TARNISH SWEDISH PRESIDENCYS RECORD European Report [London] 20 June 2001: 4. Print. Rothschild Nathalie Whats Behind Swedens Youth Riots? The Christian Science Monitor 28 May 2013 12 Print. Zimmermann Reinhard Roman law, contemporary law, European law: the civilian tradition today Oxford [England: Oxford University Press, 2001. Print Read More