Constitutionalism or constitutional government is the most well known system of state administration in the world today. Constitutionalism can be briefly described as adherence to the system of constitutional government. It is an ideology founded upon, especially, in a written constitution. Most countries in the world has a written (codified) constitution. Only Britain, New Zealand and Israel have not written their constitutions. States (country) with unwritten (not codified) constitution, have convention (constitutional practice/custom) as their policy and administrative guidelines.
Constitution (written or unwritten) is defined as collection of rules governing a state (country) containing the principles or the system applicable in the state administration. The Constitution also manifests the state ideology and manifestos. The constitution creates the organs of government, that are executive, legislative and judiciary. The constitution gives them powers and limits their powers.
Thus, constitutional rules and principles or the constitutional system must not bestow upon the organs of government unlimited powers. The constitution must limit their powers and make them answerable to the people in all their actions. Thus, a government created by constitutional rules and principles is known as “limited government” or “constitutionalism”. Consequently, one may say that the basic objective of constitutionalism is to limit the powers of the governmental organs.
In manifestation of constitutionalism, the modern theory develops the principles of separation of powers and promulgate the rule of law theory. Briefly, separation of powers indicates there must not be overlapping of powers, membership and institutions among this organs. For instance, a member of legislative must not exercise the power of executive and a member of execution must not exercise the power of a member of judiciary. Separation of powers theory also promotes judicial independence. Nonetheless, separation of powers theory in constitutionalism is not entirely possible in reality, especially in the British model. In reality, the overlapping is unavoidable. Meanwhile, rule of law is a basic concept in constitutionalism theory aiming at preserving and protecting fundamental rights of the people; avoiding abuse of powers and promoting equality and equitable principles.
Madinah Charter can be taken as a model for Constitutionalism or limited government although separation of powers may not be the outstanding elements in the Charter. Madinah Charter does not exactly provide for a total separation of powers, but the values that the Charter introduced was a doctrine of limited powers (of organs or government). In addition, it is obvious in its provisions that Madinah Charter is a Bill of Right of all Madinah inhabitants, disregards of their origins, race, tribes or religion.
Madinah Charter was written and promulgated by Prophet Muhammad for Madinah administration. Professor M. Hamidullah rightly claimed that it was the first written constitution in the world. This claim is uncontested as no other studies has shown of any earlier documented system of state administration having the values of limited government and rule of law. Thus, Madinah Charter can be said as a remarkable contribution to the modern constitutionalism principles which especially trivial in a modern nation state concept having multi-religious and multi-cultural subjects.
In modern sense Madinah Charter formulated a form of constitutionalism principle by acknowledging limited government and preserving, protecting and promoting human rights. It introduced the rule of law principles by upholding the rights and duties of all people and treat them equitably. Madinah Charter empowers the organs of government but at the same time preserved the rights of people within the ambit allowed and, as a matter of responsibility, people are obliged to be loyal to the state.
The Madinah Charter was promulgated for a plural society, recognising the rights and duties of everyone, disregard of their religions and tribes. The Charter is the most outstanding example of a multi-ethnic, multi-religious and multi-cultural constitution introducing the theory of human rights and human duties towards his state. The Charter introduced a model of a nation state acknowledging the powers and the limits of powers of the organs government organs. In this respect, the Madinah Chater is a materialization of the verse in al-Quran which means “O people, We created you from the same male and female and rendered you into distinct peoples and tribes that you may recognize one another. The best of you in the sight of God is the most righteous.”
Prof. Hamidullah rightly stated in his book The First Written Constitution, ” … this new constitution … brought with it very important, and … very revolutionary change and improvement, by providing the people with a central public institution for seeking justice, in place of everyone seeking it with the power of his own hand or, at best, that of his family. This epoch-making innovation … brought an end for all times to the chaos of tribalism and which laid the basis for a wider institution, viz a State.”
