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Circumstance Of Politics:
A premise in the discourse of modern-day states is the need to make collective decisions in a plural society in which people
disagree not only as to perceptions of the good, but also as to more fundamental precepts of justice on which society founded. This
problem is common to both public and private law. It is to be acknowledged that courts in private law will routinely develop
doctrine that is reflective of defensible, albeit contestable, normative assumptions and will often balance competing values.
Similarly, the courts develop doctrine within criminal law that is premised on conceptions of moral responsibility and justifiable
excuse. They mould contract law by considerations relating to matters such as consent, autonomy, bargain and the like. We need
to be mindful of this when considering the premise against judicial review in that courts should not be in general involved in
cases where there are contentious value assumptions or difficult balancing exercises then the premise is unsustainable, since it
would destroy adjudication across large areas of private as well as public law.
It should moreover not be forgotten that judicial review is built on certain assumptions concerning the relationship between the
legal and political branch of government, necessitating the deployment of criteria such as rationality or proportionality, which, it
can be accepted, allow room for judicial evaluation.
Abhorrence of arbitrary power: Every person in society is governed by law, including governmental officials and law-enforcement
(https://www.facebook.com/sharer/sharer.php?u=https://www.lawteacher.net/free-law-essays/administrative-law/constitutionalism-goodofficials. The court can apply the doctrine of ultra vires equally to every government agency and official for acts that are outside
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authority conferred by law. Also, a person
can only be punished for a breach of an existing law or regulation, and never for
breach
of a law not existing at the time doing something.
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b)text=Constitutionalism%20&%20Good%20Governance:%20A%20Dangerous%20Servant%20%20Law%20Teacher&url=https://www.lawteacher.net/freeEquality before the law: Courts must apply laws equally to all people regardless of their race, class wealth, religion, etc. Every
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accused
person should be entitled to a fair trial, to be informed of the allegations against have an opportunity
to rebut the charge
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against
him, to have an opportunity to rebut the charge against him and to have his conduct assessed by impartial judges.
A formal, rational court system: Formality and rationality describe a system with much predictability and little discretion, a
system with regular, open and stable procedure. The advantage of such a system is that its behaviour is consistent and objectively
verifiable.
Judicial independence and separation of powers: The judiciary should be independent of the legislative and executive, and every
judge should be free to decide matters before him without any improper influences, inducements or pressures. The power of a
government should be split into three are adequate checks and balances to minimize the possibility of the abuse of power. All
state functionaries must at all times act in accordance with the law and no act of state should be autocratic, oppressive, capricious
or against the law.
Rule of Law and John Locke: While discussing the concept of rule of law, it is indispensible to have a deep invasive study about
John Locke, as among the modern thinkers he has given the most pervasive view about rule of law and constitutionalism.
Locke might have done more than any other to shape Anglo-American attitudes toward constitutionalism. In the whole Englishspeaking world, a Lockean theory of rights informs social & political practices and institutions". Sometimes academic
commentators defend constitutional freedom of association by suggesting that it is an indispensible part to a system in which the
purpose of government is" Lockean. In the same way, some United States Supreme Court cases invalidate laws restating freedom
of association as they threat to emasculate a basis of Lockean principle-the distinction between private as distinguished from
state conduct".[18]In legal field, Locke is commonly assumed not to have expressed his thought about associations in general
terms" but rather to have focused his concern [on] freedom for one kind of association, the church."[19]While giving a
convincing view about the constitutionalism he emphasises on rights and duties of individual and liberty to form private
association as this is the most important essence of a state where rule of law is well-established-the freedom of expression and
association. Theoretically, the rights and responsibilities Locke recognizes in private societies issue from a more comprehensive
meditation on the strengths and weaknesses of liberalism. At first glance, Locke seems to justify the right to private society in a
fairly optimistic view of human nature. Society recognizes and builds on mens natural social and friendly affections, and it does
so particularly by encouraging particular associations that reflect their members individual characters, needs, and interests. Yet
throughout his mature corpus, Locke acknowledges dangers with the wrong sorts of societies. They restrain free thought;
encourage partisanship and injustice, authoritarianism and fanaticism; and generally destabilize the common opinions that glue
together a liberal political order. Lockes liberalism recognizes in citizens the rights to think, believe, and associate as they please,
but only to the extent that such rights threaten neither the basic material interests that government protects nor the moral and
political consensuses that makes liberalism possible.
Constitutionalism and public accountability: In this postmodern era, dedication to the ideals of democracy, rule of law and
traditions of accountability, embedded in constitutionalism, and defined in terms of good and responsible governance, has
become a core value in measuring the performance of governments and regimes. The prevention of corruption in the public
sphere, and the effective monitoring of the fiscal responsibility of one arm of government to another have thus become critical
values from which no regime will officially or even consciously shirk.
In contemporary times, the challenge of curbing corruption through formal processes of accountability in the public sphere has
assumed prominence at diverse national, regional, inter-governmental, institutional levels, and in normative and policy terms.
Numerous frameworks and instruments now exist at those levels addressing the menace of corruption and abuse of fiscal
responsibility.[20]It must be mentioned, however, that the approaches each state has adopted to tackle the challenge of
corruption in the public sphere varies from state to state.
Certainly, a wealth of scholarly literature exists on the phenomenon of corruption in the African milieu, within which this article
is located, and where the incidence is described as ranging from rareto widespreadto systemic."[21]A commentator has
even remarked that the vast assemblage of literature on the subject is a mix of stereotypes and fallacies."[22]This article does
not seek to revisit all that has been written on the subject and makes no pretension about proffering answers to all connected ills
in Africa. What is of particular interest to this author is the marked pattern among states of the Commonwealth to establish a
parliamentary mechanism that confers on the legislature the power to examine public expenditure within the constitutional
context.
Although some latest empirical theories trace the origin of modern political systems from the philosophical ideas of the Greek
Republics, it has never been an easy task to delimit the historical ideas of law-ordered societies.[23]Despite the fact that
constitutionalism continues to mean different things to different writers in different political contexts[24], certain notions have
become invariable. While some contend that constitutionalism requires a set of codified norms in written form, others have
argued that the unwritten constitutional model of the United Kingdom dispenses with the necessity of a written constitution.
Various reasons are usually canvassed by constitutionalists for these arguments[25].
In todays legal parlance, constitutionalism implies governance according to the rule of law, an important universal norm that
negates arbitrary rule[26]. Closely linked to this neo-liberal conception is the existence of a written constitution that stipulates
separation of governmental powers; checks and balances; judicial review; accountable governance; rule of law; and, a bill of
rights.18
All these ideas converge in giving the basic framework for the concept of public accountability in various legal traditions,
the British
Commonwealth inclusive.
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for establishment of constitutionalism:
To establish a stable good governance the state should necessarily
possess
a written constitution by which the rule of law would be(https://twitter.com/intent/tweet?
established. The constitution must define the powers, duties and
law/constitutionalism-good-governance-a-dangerous-law-essays.php)
functions
of
the
president
and
cabinet.
These
must
include:
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the
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authorizing statute
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Constitutionalism
and the Rule of Law
the duty to consult with parliament and the governor of the central bank to ensure that economic plans and fiscal policies are
compatible
the duty to govern in accordance with principles of good governance, exercising powers transparently and in accordance with the
rule of law
that appointments to public offices, boards and parastatal committees be made public and if possible through a competitive
appointment process
that tendering for the supply of goods and services to the state must be transparent
that there be a duty to furnish reports on request to parliament and to other constitutional bodies such as an ombudsman and a
controller-general
that there is a requirement to abide by codes of conduct enacted by parliament
If a directly elected presidential system is adopted, the candidate should be required to win a majority of the votes in a majority of
the regions.
that states should adopt a bicameral legislature with the second chamber composed of representatives elected by the regions.
The legislature should be composed only of elected representatives.
Military representation in the legislature should be phased out.
The legislature should enact all legislation, take initiatives in drafting codes of conduct, ratify treaties and review international
contracts.
The legislature should exercise oversight over the military
The constitution must provide for a code of conduct to be endorsed by national and regional legislators as well as executive
officers.
The legislation providing for a code of conduct should be passed within a prescribed period.
The code of conduct should require a full disclosure of assets before taking office and upon leaving office.
Severe penalties for bribery and corruption must be prescribed by law.
Where parliamentary or executive immunity is provided, such immunity should be limited to acts carried out during the course of
duties as a public official, not extended to all acts.
The constitution must rationalize institutions through reform, and this should include the abolition of the Supreme Advisory
Council (DPA)
Conclusion: In the present world, it is the most controversial political topic that whether a particular state is lack of
constitutionalism and as obvious result of which it lacks good governance or not. It is now well established that to run a peaceful
state there should absolute balance and harmony among the prevailing constitutionalism, public accountability and rule of law.
However, conflict arises in two ways: firstly, as a protest against lack of constitutionalism and secondly, intervention of third party
to establish rule of law.
It is not only enough to conclude about thinking only establishing rule of law but a special reference should also be made
regarding judicial review as an effective instrument to uphold rule of law. No attempt will be made to summarize the entirety of
the previous analysis. It is healthy or there to be debate concerning the legitimacy of judicial review. This debate has hitherto
focused on constitutional review, and in particular strong constitutional review. It
is however readily apparent from the preceding discussion that political constitutionalists have also challenged non-constitutional
review. This challenge should be taken seriously. This paper responds to these arguments and advances a view of moderate legal
constitutionalism, which best captures, the relationship between courts and politics in a constitutional democracy, and coheres
more generally with the way in which legal doctrine evolves.
And above all the state should possess a constitution as it can provide and secure a framework for democracy, decentralization
and deregulation and for the development of the country. Being difficult to amend, it gives security and reassurance to the
community. By restating common aspirations, it also provides a basis for national identity. It is expected that such fundamental
laws must be clear in their objectives, and be in tune with the needs, aspirations and spirit of the country.
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