17.1 Constitutionalism Means More Than Just Having A Constitution
From The Role Of A Constitution part of 'The Australian Achievement' by (1996)

There is a fundamental contrast between constitutions which limit power and constitutions which exist at the pleasure of those in power.

Most countries have a basic document of government called a constitution. There were constitutions in the former USSR, other former communist countries, the former South Africa, China and current communist and other totalitarian regimes, where governments and legislatures professed or profess to function in accordance with their constitutions. The Constitutions confer wide ranging power on and discretions to governments to suppress and oppress their peoples. Can it be said that constitutional government has prevailed or prevails in these countries? Something more than the existence of a constitution is required for an effective system of constitutional government. Further analysis is required to exclude sham constitutionalism. The constitutional system of government exists where a constitution is supreme and regulates the exercise of power by the main organs of government, with the consequence that every act of ministers and public servants is carried out in accordance with the law and every such act is authorised by the law. But this formulation too requires qualification. Governments and legislatures may act in accordance with law, but the content of law may be harsh and unjust. Laws may confer wide and unfettered discretionary powers over fundamental or important matters which affect individuals or institutions, giving power to governments to oppress their subjects.

Apart from the above there are four essential underlying factors of a constitutional order. They are:

  1. A system of elections held reasonably frequently, based on universal adult franchise, such elections not being rigged or manipulated by the government of the day;
  2. Existence of rights of freedom of expression, freedom of person and freedom of property;
  3. A judiciary separated from the executive and the legislature which has power to control unlawful acts of the legislature and the executive, and which in fact exercises this power;
  4. Limitations and controls on use of wide discretionary or emergency powers.

See also section 4.4.

An organised state may have a constitution, but constitutionalism means something more than just having a constitution. It means government subject to a just constitution and body of law. Thus, it could not be argued that constitutionalism prevailed in countries such as the former Soviet Union merely because they had a constitution. There are also countries which maintain a facade of constitutionalism. For example, in Singapore, there is a system of constitutional government (government in accordance with law and the constitution, Parliament, Cabinet system and a judiciary) but with numbered election ballots (so that the way an individual votes can be identified), a tame judiciary and permanent emergency powers legislation. In South Africa under apartheid there was a constitution and respect for it, a separate judiciary, but no universal adult franchise and permanent exercise of emergency powers. In Sri Lanka and India under Mrs Gandhi, there was a system of constitutional government co-existent with a permanent state of emergency. When there is a state of emergency the government can by-pass Parliament as a law making body and create emergency regulations which confer wide powers and govern under these powers.