Who Do Constitutions Really Serve?

Constitutions vary from nation to nation depending on the needs of the people and a country’s history with autocracy and political instability. Democracies and other forms of constitutional governments can exist without a formal document serving as a written constitution – as is the case in Great Britain – but generally countries draft formal documents which undergo revisions and amendments before being implemented as the absolute law. Depending on the needs of the people and the relationship between them and the ruling authorities of a country, a constitution can have various functions. In the United States, the constitution served as the foundational document on which the government was built and against which all laws and government actions are held to determine their legitimacy. In Sweden, the long history of the country and its democratic process mean that the constitution is less of a founding document and more of a temporary contract between the people in power and the common people which is revisited and rewritten whenever one party feels a significant change is necessary. In Bahrain, on the other hand, the constitution was used as a tool of appeasement and a way to maintain political legitimacy in the face of globalization and pressures for liberalization in the Middle East in the late 20th century. Using these three nations as examples for the numerous and diverse ways a constitution can be created and used, the true role of a constitution can be determined. A constitution is a system of rules, checks and balances, and ideologies that form the basis of a government from which all other laws are derived and serves as a tool of negotiation between the people and the leaders of a nation to give political legitimacy to the government in power.

Constitutions are documents created between a government and its people to establish institutions and guidelines for government actions and behaviors so that the government can be held accountable. As Kim Lane Scheppele describes, “The American Constitution was the first complete written national constitution. But it was neither the first constitution of a general government, nor the first written constitution.” Many Ancient Greek city-states and preexisting nations had various supreme codes of law but they were either incomplete or not written down. In the case of Great Britain, there exists an unwritten constitution which the government follows and is comprised of various laws and norms. After the American constitution was ratified, the idea of a comprehensive written constitution became popular throughout the world, especially in post-colonial countries and developing nations due to pressures from imperial powers and the influence of Westernization. Constitutions have generally become longer and more specific as more countries have experimented with the process.

There are many types of constitution-drafting processes that have been developed over the years, which include debate in direct or indirect assemblies, consulting experts and academics, or a citizen’s assembly or referendum. The popular perception is that the most important aspect of a constitution is the fundamental rights that it establishes. Really a constitution is simply a codification of the organization and institutions of a government and so the aspect of the constitution which deals with the responsibilities and limits of the federal government is the most crucial – and what ends up being the most problematic if not written with enough clarity. The main problem associated with the Pakistani government and constitution is corruption, which resulted from an unclear delineation of duties and responsibilities. When constitutions are bogged down with too many details and conflicting information, it makes it easier for the intention to be misinterpreted or misused which results in violations of public trust. A constitution is, in essence, a show of trust. The people trust the government to stay within the lines of the constitution and the government trusts the people not to revolt.

The relationship between government and people is personal and unique to each nation and manifests itself in different ways to address specific situations and fill certain roles. There are essentially three roles a constitution can fill depending on the reason for its creation and the specific relationship between the people and the government. The first is when a constitution is used as the founding document of a new country. This was the case for post-colonial nations after they freed themselves from imperial control, the prime example being the United States of America. The U.S. Constitution was ratified in 1789 and served as a foundational document for the fledgling American government created after the end of the Revolutionary War. The initial document was short and contained the guiding principles of the government and the most basic and sacred laws. It was amended shortly thereafter to include the Bill of Rights, which protects certain rights and liberties for the citizens.

There was uncertainty about whether or not the constitution was necessary or what form it would take, but the final product established a guideline for the relationship between the federal government and the states, and on what ground future laws and rights could be built. The Federalist Papers serve as an excellent source for the thought process behind the creation of the constitution, the titles of the individual papers clueing readers into the major threats to a new democratic government, such as: “foreign force and influence,” “war between the States,” and “domestic faction and insurrection.” The U.S. Constitution has been amended many times since its original ratification and first round of amendments. As definitions of citizenship and people’s values changed, amendments and provisions were added so that the document could adapt to the evolving society. The original wording and document have never been changed, however, only amended in later writings. This follows the document’s intention, which was to be a foundation to build on rather than a prescriptive all-encompassing political guidebook. This concept has become muddled in recent decades as debates over the constitutionality of certain rights or protections become less about the legality and interpretation of the constitution itself and more about the political implications of each choice. This politicization of the U.S. Constitution has altered the function of the document from a supreme law to a tool to enact a partisan agenda.

The second general role a constitution can fill is that of a living document adopted by an already democratically-inclined nation to codify preexisting practices and norms. Sweden, for example, has a long history as both a sovereign nation as a democracy, with individual liberties and the structure of the government fluctuating over the centuries. The first constitution-like document was created in the 14th century and the basis of popular representation was introduced in the 15th century in the form of the Riksdag. Sweden’s constitution is not a single foundational document but four separate acts which, put together, comprise the fundamental rights and supreme law of the nation. The Instrument of Government act which outlines the governmental institutions of the country and the roles of respective officials and employees has existed for centuries and is reevaluated and rewritten whenever the citizens protest or are dissatisfied with the current system.

 In the early 1800s Sweden turned towards a parliamentary system and in the 1900s the four fundamental laws were established, which are the Instrument of Government, the Freedom of the Press Act, the Fundamental Law of Expression, and the Succession Act. The constitution has been amended several times, but the caveat is that no new law can contradict the rights and protections enumerated in the four fundamental laws. The country of Sweden predated the formation of the official document and so in this case the function of the constitution is not as a foundation for a new country but rather a temporary document with a few key pillars that can be revisited and reevaluated as times change. The constitution serves as a living document which represents the relationship between the people and the government which already existed but is now codified.

The final possible function of a constitution is to provide political legitimacy to governments dealing with instability and public unrest due to internal conflicts or a slow process of democratization. The current constitution of Bahrain was written and enacted in 2002 in response to dissatisfaction with the first constitution from 1975 and permanently codified the principles from the National Action Charter. There has been a slow process of liberalization and democratization in Bahrain due to its proximity to Saudi Arabia and strong influence from their very conservative Wahhabi Islamic government. Bahrain was a British protectorate until 1971 when it became an independent emirate. In 2002 Bahrain established itself in its new constitution as a kingdom and set down new restrictions on authoritarian power and delineated individual rights more extensively.

During the past few decades, globalization has increased and the United States and other Western nations have become more and more involved economically and politically with the Middle East. Social media use has also increased access to information and improved international communication. During the uprisings that occurred in 2011 in many Arab countries, Bahrain experienced civil unrest but quickly dampened revolts with the help of Saudi military forces. Many Bahraini citizens complained about human rights violations committed during the crackdown on the protestors. Because of the new constitution which stipulates protection for people accused of crimes and guarantees for personal freedoms, the king of Bahrain was placed under both legal and moral pressure from the international community to investigate these accusations.

The Bahrain Independence Commission of Inquiry released a report which described in great detail the accusations, all the legal implications of each incident, and what the responsibility of the government of Bahrain was moving forward in dealing with violations of citizens’ constitutional rights. This report represents the ability of the people to use the constitution as a concrete measure to hold the government accountable. It also took pressure off of the Bahraini government after the violence and made them appear more democratically legitimate. These examples demonstrate how constitutions can vary based on the unique needs and characteristics of individual countries, but their primary role in democratic systems is to define the relationship between the people and the government to protect both sides and maintain peace and stability. As partisanship, right and left-wing extremism, and distrust of leadership and democratic institutions is globally on the rise, it is important to remember the foundations of constitutional governments and the role of governments within societies to represent and protect the people. Constitutional governments are nothing more than the codification and enforcement of rules determining what governments can do to people, and what people can do to each other. Governments must remember the pact they have made with the people they serve, and people must remember the power they have to shape their governments to suit their needs.

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