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Tampus, Mary Grace G. POSC138CCAB POSC-LPS 3 August 20, 2013

Rule of law and constitutionalism, these are few of the terms I often hear that areusually associated with Politics and Governance and are usually uttered by teachers and the

textbooks. Oftentimes, rule of law and constitutionalism are equated and in juxtaposition witheach other. Due to its frequent usage, it has gradually lost its meaning and is commonly usedas a clichd term instead of using it to what it really means therefore, let us revisit andremember its origin and as to their roles in the contemporary times.

Rule of law is often characterized as if it comprised rules of a game, applied to everyone,serving to regulate most if not all forms of social, political and economic activity andaccordingly we are ruled by it with the people who are vested with powers to make,administer and apply such rules. Rule of law is said to be in its highest form when it is beingupheld by branches of government (i.e. executive, legislative, and judiciary) in conductingtheir functions. To make sure the rule of law is being upheld; laws are enshrined in aconstitution that will then serve as the evident guide or the limit for people in accordance to

their actions whether socially, politically or economically to which the concept ofconstitutionalism then comes in. Constitutionalism, like the rule of law, is variously defined,and often connotes an entire body of ideals as well as ruleswritten and unwritten, legal andextra legal which effectively describe rather than formulate a government and its operation.Since the ancient times, the Constitution the bearer of laws representing the peopleaccording to Aristotle, defined the way of life, including the culture, religion, and moreunderpinning their administrative and law making institutions of people. In Aristotles time,constitution making was placed in the hands of the well-to-do and to which the commonpeople is deprived. However, in the middle ages, the relationship between the king and thelaw was given importance in regards to constitution making. In Bractons (Bracton 1968, 33)words: The King must not be under man but under God and under the law, because lawmakes the King. Let him therefore bestow upon the law what the law bestows upon him,namely rule and power, for there is no rex where will rules rather than lex. Such type of rulesposes a great threat to the goodness of the civil society because laws, no matter how neutralthey may seem when it becomes an instrument for the powerful might easily become bad inthe sense of the failure to protect democratic rights of the people and in the 20 th century, itwas observed that fear was one of the most destructive yet the most common form of moderncontrol, that people obey the law simply because they fear the punishment associated ofbreaking the law.

In general, even with the varying times, rule of law and the concept of constitutionalism onlywant to achieve the common good and upholding the intention of the law which is to help thepeople avoid in committing a political transgression that may harm or deprive another mans

right.

After the discussion on the rule of law and constitutionalism, let us now direct the stream ofdiscussion to the basis of the concepts stated above which is the constitution. During the latemiddle ages and early modern times, constitutions were mainly devices for establishing rightsand limiting powers to which until now, it is still emphasized in academic literatures onconstitutions. Constitution, as stated above, is usually defined as set of rules and ideals formaking collective decisions that can solve human coordination and cooperation dilemmas to

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which two sets of rules can be distinguished: to regulate allocations of functions, powers andduties among various agencies and offices of government and those that define relationshipsbetween the offices and agencies to the public.

In accordance to the first rule and second rule, all political regimes have been based on theformula of one-person office combined with multiple-person offices. The rationale for such isthat while one person institution may be effective at decision making and implementation,multiple-person institution may be more representative of the differing interests and values inthe society. In the modern times, a few constitutional models may be compared to such rulesuch as constitutional monarchy, modern democracy, parliamentary regime andpresidentialism. In the model of constitutional monarchy, it reunites one-person non-electedmonarch with executive powers and a multiple person elected assembly with legislativepowers. With broadening suffrage and democratization, non-elected monarchs power werereduced while those elected assembly expanded, especially regarding the control ofexecutive ministers thus moving towards the parliamentary model. In the parliamentaryregime, enhancing the role of electing assembly and limiting monarchs executive power isemphasized wherein the parliament became the sovereign institution, also assuming power of

appointing and dismissing ministers while the monarch remained ceremonial. In suchframework, the prime minister has indeed become the new one-person relevant figure but thecabinet has weakened to which we can infer that the theory of dualism in not being upheld.Lastly, the presidential dominance associated with veto power over legislation and his controlover army which is usually supplemented with long presidential terms and re-elections,unconstrained powers to appoint and remove members of the cabinet and etc.

All constitutions explicitly provide processes for amendments and it is up for the people to

acknowledge such changes in the constitution or not. Since we have already established theimportance and significance of the constitution it is also important to learn on challenges theconstitution might face in accordance to the complexities of modern day today. Since constitutionsare tagged as the result of the collective decision making of people, people acknowledge changes

in the constitution if they themselves made such changes (e.g. through Peoples Initiative) ratherthan the changes proposed by the formal body and if they think the changes made are gearedtowards their welfare. It can be a tough challenge if the law made is deemed harsh but is reallyintended for the common good (e.g. death penalty).