In
political science
Political science is the scientific study of politics. It is a social science dealing with systems of governance and power, and the analysis of political activities, political thought, political behavior, and associated constitutions and ...
, constitutional autochthony is the process of asserting constitutional
nationalism
Nationalism is an idea and movement that holds that the nation should be congruent with the State (polity), state. As a movement, nationalism tends to promote the interests of a particular nation (as in a in-group and out-group, group of peo ...
from an external legal or political power. The source of
autochthony is the
Greek
Greek may refer to:
Greece
Anything of, from, or related to Greece, a country in Southern Europe:
*Greeks, an ethnic group.
*Greek language, a branch of the Indo-European language family.
**Proto-Greek language, the assumed last common ancestor ...
word αὐτόχθων translated as ''springing from the land''. It usually means the assertion of not just the concept of
autonomy, but also the concept that the constitution derives from their own native traditions. The autochthony, or home grown nature of constitutions, give them authenticity and effectiveness. It was important in the making and revising of the constitutions of
Bangladesh
Bangladesh (}, ), officially the People's Republic of Bangladesh, is a country in South Asia. It is the List of countries and dependencies by population, eighth-most populous country in the world, with a population exceeding 165 million pe ...
,
India
India, officially the Republic of India ( Hindi: ), is a country in South Asia. It is the seventh-largest country by area, the second-most populous country, and the most populous democracy in the world. Bounded by the Indian Ocean on the ...
,
Pakistan
Pakistan ( ur, ), officially the Islamic Republic of Pakistan ( ur, , label=none), is a country in South Asia. It is the world's List of countries and dependencies by population, fifth-most populous country, with a population of almost 24 ...
,
Ghana
Ghana (; tw, Gaana, ee, Gana), officially the Republic of Ghana, is a country in West Africa. It abuts the Gulf of Guinea and the Atlantic Ocean to the south, sharing borders with Ivory Coast in Ghana–Ivory Coast border, the west, Burkina ...
,
South Africa
South Africa, officially the Republic of South Africa (RSA), is the southernmost country in Africa. It is bounded to the south by of coastline that stretch along the South Atlantic and Indian Oceans; to the north by the neighbouring count ...
,
Sierra Leone
Sierra Leone,)]. officially the Republic of Sierra Leone, is a country on the southwest coast of West Africa. It is bordered by Liberia to the southeast and Guinea surrounds the northern half of the nation. Covering a total area of , Sierra ...
,
Zambia
Zambia (), officially the Republic of Zambia, is a landlocked country at the crossroads of Central, Southern and East Africa, although it is typically referred to as being in Southern Africa at its most central point. Its neighbours are ...
and many other members of the
British Commonwealth
The Commonwealth of Nations, simply referred to as the Commonwealth, is a political association of 56 member states, the vast majority of which are former territories of the British Empire. The chief institutions of the organisation are the C ...
.
This proposition found doctrinal support in the influential theory propounded by the legal philosopher,
Hans Kelsen
Hans Kelsen (; ; October 11, 1881 – April 19, 1973) was an Austrian jurist, legal philosopher and political philosopher. He was the author of the 1920 Austrian Constitution, which to a very large degree is still valid today. Due to the ris ...
, which had it that it was inconceivable for a legal system to split into two independent legal systems through a purely legal process. One of the implications of Kelsen’s theory was that the basic norm (''grundnorm'') of the imperial predecessor’s Constitution would continue to be at the helm of the legal system of the newly liberated former colony despite the legal transfer of power, precisely because the transfer of power was recognised as ‘legal’ by the Constitution of the imperial predecessor.
Ireland
A process of constitutional autochthony occurred in the
Irish Free State
The Irish Free State ( ga, Saorstát Éireann, , ; 6 December 192229 December 1937) was a State (polity), state established in December 1922 under the Anglo-Irish Treaty of December 1921. The treaty ended the three-year Irish War of Independ ...
between 1932 and 1937. The
Fianna Fáil
Fianna Fáil (, ; meaning 'Soldiers of Destiny' or 'Warriors of Fál'), officially Fianna Fáil – The Republican Party ( ga, audio=ga-Fianna Fáil.ogg, Fianna Fáil – An Páirtí Poblachtánach), is a conservative and Christian ...
government elected in 1932 led by
Éamon de Valera
Éamon de Valera (, ; first registered as George de Valero; changed some time before 1901 to Edward de Valera; 14 October 1882 – 29 August 1975) was a prominent Irish statesman and political leader. He served several terms as head of governm ...
, who had opposed the
Anglo-Irish Treaty
The 1921 Anglo-Irish Treaty ( ga , An Conradh Angla-Éireannach), commonly known in Ireland as The Treaty and officially the Articles of Agreement for a Treaty Between Great Britain and Ireland, was an agreement between the government of the ...
in 1922 that had created the state, stripped the Irish Free State of many of the state symbols that it saw as being overtly reminiscent of British rule. Among the amendments made to the
Constitution
A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity and commonly determine how that entity is to be governed.
When these princip ...
were the abolition of the
Oath of Allegiance
An oath of allegiance is an oath whereby a subject or citizen acknowledges a duty of allegiance and swears loyalty to a monarch or a country. In modern republics, oaths are sworn to the country in general, or to the country's constitution. Fo ...
(by the ''Constitution (Removal of Oath) Act 1933''), appeals to the United Kingdom's
Judicial Committee of the Privy Council
The Judicial Committee of the Privy Council (JCPC) is the highest court of appeal for the Crown Dependencies, the British Overseas Territories, some Commonwealth countries and a few institutions in the United Kingdom. Established on 14 Augus ...
(by the ''Constitution (Amendment No. 22) Act 1933''), and the office of the
Governor-General
Governor-general (plural ''governors-general''), or governor general (plural ''governors general''), is the title of an office-holder. In the context of governors-general and former British colonies, governors-general are appointed as viceroy t ...
(by the ''
Constitution (Amendment No. 27) Act 1936''). The
abdication
Abdication is the act of formally relinquishing monarchical authority. Abdications have played various roles in the succession procedures of monarchies. While some cultures have viewed abdication as an extreme abandonment of duty, in other societ ...
of
Edward VIII
Edward VIII (Edward Albert Christian George Andrew Patrick David; 23 June 1894 – 28 May 1972), later known as the Duke of Windsor, was King of the United Kingdom and the Dominions of the British Empire and Emperor of India from 20 January ...
in December 1936 was used to significantly redefine the royal connection.
Dáil Éireann - 12 December, 1936. Executive Authority (External Relations) Bill, 1936 - Committee Stage.
/ref>
In 1937, the Irish Government introduced a whole new constitution that replaced the 1922 Constitution, which as originally enacted had been agreed with the British Government following the 1921 Anglo-Irish Treaty
The 1921 Anglo-Irish Treaty ( ga , An Conradh Angla-Éireannach), commonly known in Ireland as The Treaty and officially the Articles of Agreement for a Treaty Between Great Britain and Ireland, was an agreement between the government of the ...
. This changed the legal name of the country to Ireland (in English) and Éire (in Irish). It was possibly a break of legal continuity, since the new constitution was not enacted by the Dail but merely approved by it pending a plebiscite through statute, but was instead given legitimacy by the people of Ireland through a plebiscite
A referendum (plural: referendums or less commonly referenda) is a direct vote by the electorate on a proposal, law, or political issue. This is in contrast to an issue being voted on by a representative. This may result in the adoption of ...
.
The process de Valera engaged in from 1932 to 1937 has been described by Professor John M. Kelly and others as 'constitutional autochthony'.
India
Independence was formally granted to India by the enactment of the Indian Independence Act 1947
The Indian Independence Act 1947 947 CHAPTER 30 10 and 11 Geo 6is an Act of the Parliament of the United Kingdom that partitioned British India into the two new independent dominions of India and Pakistan. The Act received Royal Assent on 18 ...
though the executive decision to grant India independence was arrived at earlier in the Cabinet Mission Plan in 1946. It was under this Plan that the Constituent Assembly was envisaged and charged with the mandate of drafting the new Constitution for India. This was legally recognised in Section 8 of the Independence Act. The Cabinet Mission Plan had envisaged that the new Constitution would be put to the Crown-in-Parliament for approval.
The framers introduced two deliberate procedural errors in the enactment of the Constitution of India in violation of the Independence Act:
# They did not put the Constitution to the approval of the either the British Parliament as envisaged by the Cabinet Mission Plan or the Governor-General as envisaged in the Indian Independence Act 1947;
# Following the Irish precedent, Article 395 of the Constitution of India repealed the Indian Independence Act — something the Constituent Assembly did not have the authorisation to do.
In doing so, the framers not only repudiated the source which authorised them to enact the Constitution but it was also a denial, albeit symbolic, of Indian independence being a grant of the imperial Crown-in-Parliament.
References
External links
Reflections on the Australian Constitution
Better Governance for Wales: An Analysis of the White Paper on Devolution for Wales by Alan Trench (PDF)
{{DEFAULTSORT:Constitutional Autochthony
Political science terminology
Political history of Ireland