The People’s Republic: Constitutional basis

CONTINUED FROM LAST WEEK

THERE are three types of constitution. They are unitary, federal, and confederai.

Where a given State has only one authority in which supreme legislative power is vested, such a State is said to have a unitary constitution. On the other hand, when a number of states unite, the resulting union will be called a composite state, and each State in the union a constituent State. The Authorities in the composite State and in each constituent State will be known respectively as Central and Regional Authorities. Now, if the supreme legislative power or functions in the union are divided between the central’ Authority on one hand and the regional authorities on the other, in such a manner as to make the central and regional authorities co-ordinate with and independent of one another in the discharge of the functions expressly or by necessary implication ‘vested in them,then the constitution under which these arrangements are made is known as a federal constitution.

A confederal constitution is easily distinguished from a federal constitution. While the central and regional authorities under a federal constitution are co-ordinate and independent of one another, under a Con federal constitution, the central authority is, to a large extent, dependent on the regional authorities. In other words, the central authority is neither co-ordinate with nor independent of the regional authorities. For all practical purposes, it owes its existence to the sufferance of the regional authorities.

A federal and a confederal constitution is invariably a written constitution, for the simple reason that the division of functions between the central and regional authorities which is inevitable, together with the attendant numerous provisions, cannot be left to what Harold Laski has graphically termed ‘the hazards of human memory’.

There are, however, two known methods for dividing these functions. Under the first method, the powers of the Central authority are clearly stated in the constitution, and are included in what is usually termed the exclusive legislative List. All other powers not so stated are known as residual or residuary functions,

and are exclusively vested in the regional authorities. The converse of this is the case under the second method. Here the residuary functions are vested in the central authority. It is now common form, under the two methods, to specify a number of functions which the central or the regional authority may perform at its pleasure; with the proviso that if any law enacted by the Legislature of a constituent state is inconsistent with any law enacted by the legislature of the composite State, the former shall be void to the extent of the inconsistency. These functions are usually set out in what is generally known as the concurrent List. The Indian constitution is unique in that it purports to set out in writing all the functions of the composite and constituent States in addition to the concurrent functions. On this score, the indian constitution errs on the side of superfluity, and makes the task of judicial interpretation unusually difficult in the case of dispute between the Indian government and a provincial government, as to who has the right to exercise a given function.

Before considering which of the three types of constitution is suitable, the first thing to ascertain is whether or not the state in question consists of only one nation or of more than one nation or linguistic group. This is of extreme importance, because an error in this regard may lead to a more or less permanent state offriction and disharmony within the state concerned.

Much of the constitutional instability and political upheaval in different parts of the world, and especially in Africa, would be considerably reduced if constitution-makers in those countries took the trouble, or were objective enough, to ascertain and acknowledge the difference between NATION and TRIBE.

From its definition, we have seen that the distinctive and inseparable characteristics of a nation are common language, common culture, and sometimes common ancestry, According to Dr. Rivers, a tribe is a social group of a simple kind; its members speak a common dialect, have a single government, and act together for such common purposes as warfare. It will be seen, therefore, that a nation consists of a number of tribes; a tribe in turn is composed of clans, whilst a clan is a collection of consanguinous families. All the tribes in a nation, though they speak different dialects, also speak the same language which is their mother-tongue, share the same culture, and sometimes claim a common ancestry. The members of these tribes, to borrow the words of Keeton, will tend to cohere even if separated under different governments’; witness the irresistible tendency to cohere on the part of the Greeks in Cyprus and Greece, on the part of the Gelman-speaking people in the two Germanies, and on the part of the Ewe-speaking people in Togo and Ghana.

To classify a NATION as a TRIBE is unscientific in the extreme, and is bound to lead to serious and unpleasant consequences in the process of applying and employing such classification. In the confusion resulting from this error, two or more nations will be lumped together and treated as if they possess the same cultural characteristics.

CONTINUES NEXT WEEK

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