5. God or Religion: a preamble may include references to God. This is acceptable
only where the vast majority of the country’s population believe in a single
God, otherwise the preamble will become socially divisive. Conversely, a
preamble may emphasise the separation of state and religion, or the state’s
secular character.
The Functions of a Preamble
Constitutional preambles have three main functions:
• Educational: the preamble is the part of a constitution which is most frequently
mentioned in educational and public arenas. Unlike the constitution itself, which
is usually a very long document with complex provisions, the preamble is
relatively short and is usually written in more accessible language.
• Explanatory: A preamble serves to specify the reasons for the constitution’s
enactment and, sometimes, the basic principles expressed in it.
• Nation-building: A preamble can serve to express or consolidate national identity
and unity.
The Legal Effect of a Preamble
The legal effect of a preamble varies according to its type:
The ceremonial-symbolic preamble: this is persuasive and symbolic and, generally,
has no legal force. The preamble to the US Constitution is an example; another is the
preamble to the Canadian Charter of Rights and Freedoms, which states simply:
“Whereas Canada is founded upon the principles that recognize the supremacy of
God and the rule of law”. The preamble to the so-called “Kariba Draft” constitution is
yet another example.
The interpretative preamble: this embodies a guiding framework for interpreting a
constitution, usually by setting out values and principles that are inherent in the
constitution. When it is possible to interpret a constitutional provision in several
different ways, the courts will prefer the interpretation consonant with the preamble.
Often however, constitutions – such as the South African constitution – contain a
statement of principles in the body of the constitution which serves this purpose.
The substantive preamble: this type of preamble can serve as an independent
source for rights that are not mentioned in the body of the constitution. A prime
example is the French Constitution, the preamble to which offered independence to
France’s overseas territories in accordance with the ideals of liberty, equality and
fraternity.
Unifying or divisive?
Just as preambles can foster national integration by forging a common identity, they
can also drive people apart and contribute to social tension. This can occur if the
preamble reflects the views of only one group or contains questionable historical
assertions.
Accordingly, the language used in a preamble should be both inspiring (if it is a
ceremonial-symbolic preamble) and non-contentious. It should stress what binds the
people together and not be divisive. If it contains a historical narrative it should be
inclusive.
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