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Daily RC Article 128

Reframing Constitutional Governance: Exploring Political and Legal Perspectives

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Despite its British origin, the political versus legal constitutionalism debate is not confined to the United Kingdom (UK) or its former colonies that adopt Westminster-style parliamentary democracy. This is understandable since constitutions – as the normative underpinning of political processes that frame the relationship between the ruling and the ruled – are inevitably influenced by politics. Leaving aside the technicalities engendered by variations on the power of national apex courts (or the functional equivalents) to scrutinize parliamentary legislation, the political versus legal constitutionalism debate has centred on the role of the court relative to the political branches – especially the legislature – in decisions on constitutional matters.

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Notably, political constitutionalism does not set itself apart from legal constitutionalism by taking the view that the constitution comprises whatever results from the balance of political forces, as pre-modern constitutional orders suggest. Instead, political constitutionalists challenge the legalist claim that, as fundamental law, the constitution is to be given authoritative meaning by judicial interpretation in the way in which the court interprets non-constitutional laws. From the political constitutionalist perspective, the meaning of a constitution as the normative framework governing political interaction only manifests itself in the democratic political process with the elected national legislature sitting at the centre. Ultimately, the political versus legal constitutionalism debate comes down to the institutional question of whether the parliament or the court is in a better position to make sense of the constitution and therefore to decide on constitutional matters.

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At first glance, this question appears to be another instance of how a normative debate is entangled with institutional choice. It concerns the allocation of power: which institution – the parliament or the court – should be entrusted with the power to render official interpretations of the constitution? Yet, a closer look reveals that what lies beneath the question concerns not only power but also authority: can the state, through its institutions, command loyalty and compliance with the legal precepts from citizens with authority? For political constitutionalists, it is the parliament that legitimates the state's claim to authority thanks to its representative and elective character; for legal constitutionalists, the state's constitutional voice only sounds authoritative when it comes from the judicial bench. In this light, living in a constitutional order means that one obeys the state when the latter decides through its designated constitutional organ that can speak authoritatively. Emerging from this political landscape is a relationship of domination – that is, sovereignty. At its core, the political versus legal constitutionalism debate assumes an institutional conception of sovereignty according to which either the legislative or the judicial institution occupies the seat of sovereignty – that is, the notion of ‘organ sovereignty’.

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It is true that a political order framed in constitutional terms remains one of sovereignty. So is it that a constitutional order cannot survive without enforcement. Nevertheless, owing to their shared assumption of organ sovereignty, both political and legal constitutionalism fall short in accounting for the dynamics of constitutional ordering and thus render a limited explanation of how law and politics interact constitutionally. Put simply, the assumed organ sovereignty is only a function of a continual dynamic socio-political process that has resulted in constitutional governance.

The article delves into the debate between political and legal constitutionalism, highlighting the tension between parliamentary authority and judicial interpretation in defining a constitution's essence and authority. It explores how this debate extends beyond power allocation to the underlying concept of authority, posing questions about obedience, legitimacy, and sovereignty within a constitutional order. Ultimately, it critiques both perspectives for their reliance on 'organ sovereignty' and argues for a broader understanding of constitutional governance rooted in dynamic socio-political processes.
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