Encuestas aplicadas a docentes

There is always the need that at every point to stay back and review a federal constitution, especially to know whether it is still capable of being adapted to the needs and aspiration of the community for which they were established. Thus, Wheare says,

…a brief review of the working of federal government may be attempted.

Perhaps the best way in which to begin this review is to consider how far federal governments have shown themselves capable of being adapted to the needs of the communities for which they were established.²⁷³

Critically, one of the essential characteristics of the federal constitution is its rigidity, or being too conservative, too difficult to alter, which it was criticised. Therefore, Wheare‟s study of federal government is truly to ascertain its workability, and whether it supports this (above)

270Ibidem

271 The militia was, in theory, composed of all men (or women) of military age. In practice, it was composed of a small force of volunteers which spent part of its time in drill and encampment and received a payment for these services.

272 Wheare, op. cit. p. 190

273Ibid. p. 209

107 general criticism. Furthermore, to ascertain also whether such excessive rigidity and conservatism, if it exists, is an inevitable consequences of a federal system.²⁷⁴

Wheare argues that there are several methods by which changes may be brought about in federal governments. And the most obvious method is through Amendment of the Constitution. And it is as a result of this method of amendment process in federation that led political scientists to classify constitutions as being rigid or flexible. What is the meaning of rigid or flexible constitution?

Wheare advances the meaning by defining rigid constitution as “one which enjoys an authority superior to that of the other laws of the state, and can be changed only by a method different from that whereby those other laws are enacted or repealed.” While flexible constitutions, on the other hand, “are those which stand upon an equal footing with other laws and which can be changed by the same process as other law.”²⁷⁵ On this definition, Wheare alleges, the constitutions of the United States, Switzerland, Canada and Australia would be classed as rigid, for they are intended to be supreme over the legislature – general and regional – which they create or recognise, and they cannot be altered by these legislatures acting through the ordinary process of legislation.²⁷⁶ The four federations adopted different methods in amending their constitutions. This work reviews it one after the other.

In Switzerland, the amendment of the constitution requires always the consent of a majority of the electors voting in the referendum, and of a majority of the electors voting in a majority of the cantons; and on some occasions, the consent of the general legislature also, the process has been used frequently and successfully. For instance, since 1874, when the constitution of 1848 was submitted to a general revision, there had occurred, up to 1962, 125 plebiscites in

274Ibidem

275Ibidem

276Ibidem

108 Switzerland upon constitutional questions.Of these sixty-four were referenda upon constitutional amendments submitted to the people by the general legislature. Forty-nine of these proposals were accepted. This is a high proportion indeed. Of the remaining plebiscites, forty-nine were proposals for amendment of the constitution presented on the initiative of 50,000 voters. Seven only of these were accepted by the people. Then there were thirteen cases where the general legislature offered proposals as substitutes for those offered on the initiative of 50,000 voters, and in nine out of these thirteen cases, the proposals for amendment which commended themselves to the general legislature have in most cases been adopted by the people.²⁷⁷ Therefore, if the Swiss constitution is rigid, the Swiss people are flexible. They have been ready to use an amendment process which, from its careful safeguards, might have proved a conservative and obstructive force to adapt their constitution to what they conceived to be needs of their time.²⁷⁸

In Australia, their amendment bears striking semblance with that of Swiss, and was borrowed from Switzerland. They have refused on most occasions to alter their constitution. From the foundation of the commonwealth in 1901 until 1963 proposed constitutional amendments were submitted to the people by referendum on twelve separate occasions; only four were carried by the requisite majority of all electors voting and of a majority of electors in a majority of states. With the exception of the proposal of 1910;²⁷⁹ 1928 and 1946 (social service), each proposal to extend the powers of the commonwealth has been rejected, and in all cases, except three, this rejection was registered by a majority of all the electors voting.

The majority of the Australia electorates, in so far as it has expressed its views upon the matter in referendum, had been, in general, opposed to the encroachment of the commonwealth upon the sphere reserved by the constitution to the states.

277Ibid. p. 210

278Ibidem

279 Commonwealth taking over state debt irrespective of the date at which they are contracted

109 In this respect while Swiss electorates have been liberal or flexible in its use of a rigid amendment process, the Australia electorates have been conservative. Whereas in Australia attempts were made to obtain alteration in the constitution, as reflected in most amendments rejected, to extend the powers of the commonwealth parliament over matters concerning the state governments.These are not the case in United States.²⁸⁰

In United States of America, amendments may be initiated at the instance of two-third of both houses of congress or by convention called by congress at the request of the legislatures of two-thirds of the states. Amendments initiated by congress or by convention may be ratified either by the legislatures of three-fourths of the states or by conventions in three-fourths of the states, as the one or the other mode of ratification may be proposed by congress. In practice all amendments so far have been initiated by congress except in one change of note in the sphere of public finance. Unlike in Australia where attempts were made to obtain alteration in the constitution to extend the powers of commonwealth parliament over matters concerning state governments, no comparable attempts were made in the constitution of United States, to alter the distribution of power or function between the general and state governments. But it would be a mistake to conclude that the powers of the general government had not been extended by other constitutional amendments means. To do so, Wheare argues, would be to overlook or ignore an important sentence which appears in the XIIIth, XIVth, XVth and XVIIIth amendments, among others; congress shall have power to enforce this article by appropriate legislation.²⁸¹

There are perhaps some signs of a great rigidity in the process than in the Switzerland and Australia. The legislatures of the states may be more tenacious of their powers than the people of the states; the three-fourths majority is more difficult to obtain than the simple

280 Wheare, op. cit. p. 212

281Ibidem

110 majority required in Switzerland and Australia. But on the whole it would seem that it is the conservatism of the people, not the rigidity of amending process, which explains the relatively few changes made in American constitution so far as the division of powers between general and state governments are concerned.²⁸²

Canada provided until 1949 the extreme example of a federation with, in law, no amending process under its own control. And even now the parliament of the United Kingdom alone has power to alter the British American Act in respect of the division of powers between Dominion and provinces. An important question is raised: “How much consent is requisite before the Dominion parliament may ask the United Kingdom parliament to legislate and before that parliament may itself feel free to accede to the request. At present it would seem that any amendment, to which Quebec or Ontario objected, would not be pursued. This veto by a single province imposes a greater rigidity in practice upon the amending process in Canada than is imposed by law in the other three federations.²⁸³

Judicial Review: Wheare was of opinion that the amendment of the constitution was not as a result of the extension of the power of general government as was remarked earlier.

Nevertheless, the fact remains that the power of general government is being extended. This makes Kenneth C. Wheare to query: What has made it possible? He was able to deduce it from judicial review of the constitution; thus, he say, “It was the result, in large measure, of the interpretation of the constitution by the court.”²⁸⁴K. C. Wheare proceeds with illustrations to buttress the fact of the role of the court in the constitutional interpretation. His many examples are sufficient to illustrate how far the flexibility of a federation depends upon the manner in which judges exercise their function. They have it in their power in many cases to

282Ibid. p. 213

283Ibid. p. 214

284Ibid. p. 215

111 adapt the constitution to the changing needs of the time. They can do this without violating their oath to the constitution.

Then what is the function of the court as regards to constitution? According to Wheare, Court may adapt but they may not amend, they may follow common sense, but they may not follow mere expediency. They may have opinion but they may not be partisan. They may choose to treat a constitution as a living instrument, but they must treat it first of all as a constitution…. They can give a broadening construction of existing powers, but they cannot assign to one authority powers explicitly granted to another.²⁸⁵

Thus, the two factors, according to Wheare, which determine the rigidity and flexibility of federal governments which have so far been discussed - the process of constitutional amendment and the exercise of judicial review – have this in common that they operate upon the actual law of the constitution.

Wheare deems it interesting to consider factors which operate not upon the strict law of the constitution but upon the practice of the constitution; factors which accept the existing division of legal powers, but operate upon the governments which exercise the powers so divided. The factors are: usage and customs or convention. By usage, Wheare means some usual way of behaving which government follow but which they do not recognise as completely binding. By custom or convention, Wheare means some method of behaving which is regarded binding, though it lacks the actual force of law. The question is how the operation of usage and convention has affected the rigidity and flexibility of the federal government or constitution? Wheare argues,

At the outset it has to be affirmed that usage and convention cannot alter the rules of the law which govern the distribution of powers between general and regional governments. They may nullify certain legal powers by making it constitutionally improper to exercise them, and in this way actually restrict in practice the extent of the powers of general and regional governments. They may establish certain rule which requires that some powers should not be exercised except with certain consents or after consultation. Here again in

285Ibid. p. 223

112 practice the extent of a power may be affected, but in law the power is still there and it may be used. Above all, usage and convention cannot make it possible for a general and regional government to make laws on a topic which is, by the terms of the constitution, beyond its powers.²⁸⁶

But usage and convention are not confined in their working to matters of the kind. Thus, Wheare argues, “they enter into sphere which, for want of a more exact term, may be called intergovernmental co-operation.”²⁸⁷ Here, Wheare is trying to demonstrate not really the way in which the general and regional government exercise their powers upon each other, or restrict each other in the exercise of their powers, but how each, operating within its own allotted sphere, is able to offer help to the other, or to receive help from the other. He believes that in the line of the co-operation, flexibility in the working of federal government may most easily be found.²⁸⁸

Wheare gave two main areas in which there is room for inter-governmental co-operation in the federation: as relations between general and regional government and inter-regional/state relations. In the relation between the general and regional government, through the effects of the division of powers, co-operation is needed to ensure that co-ordinated and complete administration of the divided fields is attained. Whereas in the area of inter-regional/state relations, if each regional government keeps completely to itself, many matter will suffer from diversity of regulations, and government itself will be less efficient because the experience of other states will have been neglected. In both these spheres some attempts at co-operation have been made in the United States, Canada and Australia, and in some cases the same machinery operates in both spheres.²⁸⁹ Arguing further from the point of view of usage, Wheare exemplified the inter-governmental relation in the meetings of the chief executives of the general and regional governments in periodical conferences. In United

286Ibid. p. 224

287Ibidem

288Ibid. p. 226

289Ibid. p. 227

113 States there is the Governors‟ conference; in Australia there are the Premiers‟ conferences;

and in Canada there is the Dominion-Provincial conference, and inter-provincial conference.

Wheare at a point briefly surveys the methods by which federal governments may be modified and adapted. According to him, federal governments have a high degree of adaptability. One of such is war-time. Thus, he argues,

In war-time, all four federations have been shown to possess the power to adjust their pluralistic structure to the necessities of unified and total war effort.

This proved possible from the terms of their constitutions as interpreted by the courts.²⁹⁰

This supports the above proposition because, “it proved possible also because of the willingness of regional governments to co-operate and to supplement the legal powers of their general government with their co-ordinated efforts.”²⁹¹ The working of federal governments in war time demonstrates quite clearly that in some situations at any rate there is amply adaptability in a federal structure. The second one is the time of economic crisis. In it the degree of adaptability has not been great. Most federation, like Canada, has been largely unable to modify their federal government to meet the demands of economic depression. This is as a result that there is not usually obvious or overwhelming support of all the regions/states/cantons in favour of new deal or modification. Like in Canada case, Wheare argues, it was more of the conservatism of the Canadian people than the rigidity of the constitution which left the Canadian federal system largely unchanged. Australia and United States achieved the modification by governmental co-operation and judicial interpretation, while Switzerland by constitutional amendments.²⁹²

3.8 Tendencies and Prospects of Federal Government in Kenneth C. Wheare’s