Muslim law college swat
UK and US constitutions Features U.K constitution Q 1: Discuss the salient features of British Constitution . 1. Introduction: “The English Constitution has made a great circuit of the globe and has become a common possession of civilized man”. (G. B Adams) A Constitution means certain principles on which the Government of the State is organized and which determines the relations between the people and the Government the Constitution of U.K is unique in nature and has provided inspiration for a number of other constitutions in the world. 2. Salient Features of U.K Constitution: Following are the salient features of the U.K Constitution. I. Unwritten: The British Constitution is unwritten in nature but it does not imply that all of its parts are unwritten. It means that it has not been reduced to writing in a single document. Some of the components are found in written from. Such as the Reform Act 1832 and the Parliament Act of 1911 etc. II. Evolution Growth: British Constitution is a result of an evolutionary growth. Constitution efforts as well as needs of time shaped its spontaneous growth. III. Flexible Constitution: British Constitution is a flexible Constitution and parliament can amend it like alterations in the statutory laws by a simple majority. IV. Unitary: British has unitary constitution. All powers of the state are concentrated in the hands of a single government for the whole country. There are no units or states in British. V. Bicameralism: The Parliament consists of two chambers House of Lords and House of Commons. The House of commons is a popular chamber whose member directly elected by the people while the House of Lords is basically a hereditary chamber and its member are nominated by the Queen. VI. Supremacy Of The Parliament: In U.K, Parliament has complete Supremacy or sovereignty. No law enacted by the parliament can be challenged in the court on the plea that is against the constitution. According To De Loeme: “British Parliament can do everything except to make a man into a woman”. VII. Constitution Monarchy: From Constitution point of view, the crown is the repository of the entire Government of authority in British. VIII. Contrast In Theory And Practice: There is sharp contrast between theory and practice in U.K. As ogg points out that “theoretically, British Government is absolute monarchy, its government from signifies constitution monarchy while in practice, the Government structure is closer to republican from. IX. Collective Responsibility: Ministers must stand together and they cannot oppose the government policy every minister is also individually responsible to the House of Commons and the crown. X. Limited Separation Of Power:
Noman khan
Page 2
UK and US constitutions In British, there is limited Separation of power. There is concentration of political powers in the parliament while the cabinet which exercises executive power is just a committee of the parliament. Nevertheless many safeguards have been provided especially under Act of Settlement of 1701 to secure the independence of judiciary from under influence on the part of other two branches on the Government. XI. Independence Of Judiciary: Necessary safeguards have been provided against all sorts of interference in judicial process. Judges are paid liberal salaries and ensured security of service. XII. Rule Of Law: U.K Constitution provides rule of law. The principle of rule of law may be defined as that none of the person in above or below the law. All the persons are equal in the eyes of law. F any person violates the law, he should face the trial of the case in the Government and no person is given imprisonment until his offence is proved in the court. XIII. Fundamental Rights: Fundamental rights of the citizens have not been incorporated in the form of a list in the English Constitution. Constitution law is not the creator but a product of fundamental rights, which have been recognized from time to time by the Courts. XIV. Conventions. Conventions play a vital role in the British political system. A government is formed and removed on the basis of convention. As Prof. Smith says that the conventions are main living source behind the Constitution. XV. Two Party System: Two party system is flourished in British right from the beginning of the parliamentary period. Before the emergence of the present labour party in the second decay of the present century, the fight was between the conservatives and the Liberal party, but now the liberal party has lost its political significance. XVI: Universal Adult Suffrage: Every individual of the age of 18 has the right to vote. XVII. Mixed Constitution: The British Constitution is a mixture of the monarchical, aristocratic and democratic principal. XVIII. Conservativeness: The British Constitution is a symbol of Conservativeness. The trend of the people of U.K is absolutely in favor of old institutions and this concept is existence of conservatism. XIX. Establishment Of Local Government Institutions: The existence of local Government in U.K. Constitution is another comprehensive feature of the Constitution. Local Government institutions are symbols of the civil liberties and freedom of the people. XX. Unreality: Another characteristic of the English Constitution is its unreality. It has righty been pointed out that nothing in it is what seems or seems what it. 3. Conclusion: To conclude, I can say, that U.K. Constitution in neither absolutely unwritten nor absolutely written. It is a combination of both and has made a circuit for the globe and has become the common possession of civilized man.
Q. 2: What are the sources of British Constitution Q. Discuss fully the sources of English Constitution law
Noman khan
Page 3
UK and US constitutions 1. Introduction: The English Constitution is not found in one document. It consists of different elements which are scattered. It came into existence with the passage of time. It can only be understood by reference to long series of acts, traditions and judicial decisions. 2. Sources Of U.K. Constitution: Following are the source of U.K. Constitution. (I) Constitutional landmark (II) Statutes (III) Common Law (IV) Judicial decisions (V) Conventions (VI) Opinion of jurists (VII) Delegated legislation I. Constitutional Landmarks: Constitutional landmark is the combination of documents, charter law. This came into existence in the shape of agreements, contracts, treaties or recognition of rules, by parliament. These laws and charters are very important as source of U.K. Constitution. Examples: (i) Mangna Carta(1215) (ii) Petition of rights(1628) (iii) Bill of rights(1789) (iv) Act of Settlements(1701) (v) Parliament Act of (1911). II. Statutes: The second source of U.K. Constitution is statutes. According to requirements of the people and demands of Government U K Parliament formulated the law which not only played vital role for source of constitution be also delivered coordination among the institution of Government. Following are important statutes, which includes in the source of U.K Constitution. (i) The Habeas Corpus Act, 1671. (ii) The Municipal Corporation act, 1761. (iii) The Reform Act, 1867 (iv) The Judicator Act, 1873 (v) The Representation of people Act 1918 (vi) The Ministry of Crown Act, 1937. III. Common Law: Common law may be defined as those rules which are product of slow process of long historical growth being based upon customs and traditions. These principles are not set down in any statute or ordinance. The Courts recognize these principles. The prerogatives of the crown, the right of trial by jury the right of freedom of speech rest almost entirely on common law. IV Judicial Decisions: Another source of U . K .Constitution is to be found in judicial decisions. Judicial decisions are the judgments and interpretations of courts, which define the scope and limitations of the different charters, statutes and common law. Following are also landmark judicial decisions in UK history. Bushell, s case (1670) established the independence of juries. The case of Attorney General v . De Keysers Royal hotel Ltd. (1920) decided that the discretionary powers of the crown were limited by the petition of Rights Act of 1860. The Case of Howell (1678) established the immunity of the judges. The case of wilkas v. Wood, gave the protection and liberty of write and author. v. Convention: According to Prof. Dicey Convention are those customs or understanding as to the mode in which various members of sovereign legislative body should exercise their discretionary anthority. The substantial portion of U K. Constitution is based on convention. These are not codified in
Noman khan
Page 4
UK and US constitutions any book of law. The Courts do not enforce conventions but however, these rules are recognized by the constitution. A. Important Conventions: Following are some of the important convention. (i) The crown has no power to veto a bill passed by both the Houses. (ii) Parliament must be summoned once a year. (iii) Prime Minister will be form House of Commons. VI Opinions Of Jurists : Opinions of jurists are also an important source of U. K . Constitution. The jurists express their opinions in consultation with customs, traditions, judicial decisions and statutes. Some of the important books of different jurists are as follows: (i) Austin , s Law and the customs of the Constitution. (ii) Dicey , s Law of the Constitution (iii) Lords Halsbury , s commentary on the UK constitution. VII statutory Rules Made By Various Authorities: There are various authorities empowered to legislate under parliament Acts like universities and Municipal bodies. The Laws and rules made by these authorities are part of the U.K Constitution. 3- Conclusion: The conclude, I can say, that the English constitution is a growing organism. It has been undergoing a slow process of evolution for centuries. The idea of revolution is alien to its working. It is not derived from a single source but form several and it is still a growing Constitution
Q.3: Explain the Role Conventions in U.K. 1- Introduction: Most of the U.K. Constitution is combination of rule of conventions. Conventions regulated the most fundamental aspect of the British administrative system. The name given to the conventions of the constitution is the indefinite number of customs, traditions and precedents from an integral part of the U.K. constitution. 2- Definition Of Conventions: (I)Definition By Dicey: “Conventions are those customs of understanding as to the mode in which various members of sovereign legislative body should exercise their discretionary authority”. (II)Definition By J.S Mill: “The Conventions are nominated as unwritten principles of the constitution”. 3- Kinds Of Conventions: Conventions may be distributed into the following kinds. (i) Parliament and executive conventions. (ii) Legislative procedure and parliament conventions. (iii) Government and legislative conventions. 4- Importance Of Conventions: The conventions plays a very important role in the U.K. Constitution. There are based on usage and is derived from willingness of the people. The Constitutional history of the U.K. growth and power of the cabinet is product of the conventions. 5- Aims And Objects Of Conventions: The aim and object of the conventions is: (i) To ensure the supremacy of the House of Common. (ii) To make the constitution work in conformity with the prevalent and changing ideas and
Noman khan
Page 5
UK and US constitutions needs. (iii) To provide rules for the co-operation and harmonious working of the different parts of Govt. (iv) To secure the administration of the country according to the wishes of the people. 6- Important Conventions: Following are some important conventions: (I)No Veto Power Of Crown: When a bill is passed by both Houses of parliament. It is sent to the King for his assent. Legally he can reject it but according to convention he cannot reject it does not use his veto power. (II)Cabinet Is Responsible To Parliament: Cabinet is responsible to the parliament for the conduct of its affairs. (III)Vote Of No Confidence Against Cabinet: Where the parliament in majority passes a vote of no-confidence against the cabinet it shall have to resign and vacate. (IV)Prime Minister Must Belongs To House Of Common: According to the conventions prime minister must belongs to the house of commons. The object of the convention is to emphasis importance of house of commons which is also the house of people. (V)Election Of The Speaker: The election of the speaker takes place on party lines but after the election and his appointment he become non-party man he becomes neutral. (VI)Highest Court: The House of Lords is the highest Court in England. When the house of lords sits as the highest court for appeal for civil and criminal cases. There are only seven Lords who participate in the discussion. (VII)Right Of Opposition To Express Its Views: According to conventions a speech from govt. side shall be following by a speech from the opposition. When member from one party has spoken in the house, the next speaker must belong to the opposition. (VIII)The Parliament Must Be Called Once A Year: Parliament must be summoned for the dispatch of its business at least once a year. (IX)Prime Minster May Ask The King For Dissolution: When a ministry is defeated in the house of commons the prime Minister can go to the King him to dissolve the house of Commons. (X)Formation Of Government: After general elections the King has to summon the Leader of the majority party to from the ministry. The prime Minister is given free hands in the selection of his colleagues. (XI)Collective Responsibility Of Ministers. The minister are responsible collectively to the house of commons even if one minister is defeated the whole ministry must resign. (XII)Finance Minister Belongs To House Of Common: According to the conventions the Finance Minister must belongs to the house of commons. (XIII)Same Courts For Govt, Servants: There are same Courts for government servant and general public. (XIV)Re-election Of Speaker: Speaker can be re-elected as many times as he pleases it is said once as speaker always a speaker.
Noman khan
Page 6
UK and US constitutions (XV)Relations With Dominions: The relations of the mother country with dominions are regulated by conventions. (XVI)Money Bills Originate In The House Of Commons: It is the convention in England that money bills originate in the house of commons . (XVII)Dominance Of House Of Common: In case of difference of opinion the opinion of the house of commons shall prevail over that of the house of Lords. 7- Sanction Behind Conventions: Following are different sanctions in view of jurists. (I)The Fear Of Impeachment: Some writers say that true sanction behind conventions is the fear of impeachment, but it is not a sufficient sanction behind conventions. (II)The Rule Of Law: According to Prof. Dicey, conventions are observed because their non-observance will sooner later lead the offender into conflict with the Courts. The force which in the last resort compels obedience of convention is the power of the law itself. (III)Public Opinion: According to ogg, the real sanction behind conventions are obeyed because the public opinion. Convention are obeyed because the public opinion demand that they must be obeyed. The public opinion well not tolerate their violation. (IV)Code Of Honour: According to Lowell. Conventions are obeyed and observed because they are code honour. 8- Conclusion: To conclude, I can say, that conventions are admittedly no law in the sense of rules which will he be enforced by the courts. Still they are nearly as binding as law. The conventions provide the flesh which clothes the dry bones of law and have enabled a rigid framework of Govt. to keep pace with the changing political ideas and the needs of the people.
Prerogatives of Crown Q4.What are different prerogatives available to Crown 1- Introduction: The Constitutional history of England begins with an absolute monarchy. The King was absolute Sovereign. He was the source of all legal powers, but with passage of time the powers of king was decreased. The prerogative is the residue of discretionary or arbitrary authority which at any time is legally left in the hands of the crown. 2- Difference Between King And Crown: Following are the differences between the King and Crown. (i) The Crown is an institution whereas the King is an individual who holds the institution. (ii) There can be a demise of the King but not of the crown. (iii) The king is the part of crown but the crown is not part of King. (iv) The Crown is a legal person Personifying the State whereas the King is merely is temporary human occupant. 3- Definition Of Crown’s Prerogative: Crown’ s Prerogatives means the powers exercised by the King in virtue of Common law or customs. 4- Origin Of Crown’s Prerogative: In the early days of tribal chieftaincy, the King used to manage the affairs of the people. This
Noman khan
Page 7
UK and US constitutions executive power was the first and historical source of the Crown’ s prerogative. Secondly the Norman Kings who combined in themselves the executive, legislative and judicial functions were in the position of feudal land owner and as such enjoyed certain rights. 5- Prerogatives Of The Crown: The prerogatives of the crown may be classified as under. I. Personal Prerogatives II. Political Prerogatives I. Personal Prerogatives: Following are the personal prerogatives of the crown (i) King can do Wrong: The maxim has two-fold meanings: (a) It means that by no proceeding Known to the can the King be made personally responsible for any act done by him (b) In second place it means that on one can plead the orders of the crown in defense of only act, not otherwise justifiable by law. (ii) King never Dies. The king has the attribute of immorality. The demise is immediately followed by the Succession. II. Political Prerogatives: These may be further divided into following. A. Domestic Prerogatives B. Foreign Prerogatives A. Domestic Prerogatives: Following are the domestic Prerogatives. (I) Administrative Prerogatives: Following are the administrative prerogatives of the crown. The creation of press The creation of Corporations The appointment and dismissal of Ministers and other Government Officials. Declaration of war The Crown is the Chief Commander of Armed Forces. (ii)judicial Prerogatives: (a) Fountain of Justice: The King is the fountain and general conservator of the peace of the Kingdom. All criminal proceedings run in the King’ s name. (b) Appointment of Judges: The King has the right of erecting Courts of justice and judges are appointed in the King’ s name. (c) Power of Pardon: The King can with few exceptions pardon all offences against criminal law either before or after conviction. (d) Not Subject to Law: It is the King in Parliament who makes all laws. He makes the Acts of his subjects and not for himself. Therefore, the King is not bound by the statute unless it is made applicable to him expressly or by necessary implication. (iii) Ecclesiastical Prerogatives: (a) Power of Appointment: By virtue of these prerogatives, the King appoints high ecclesiastical Officers e.g. appointment of Arch Bishop. (b) Head of Church:
Noman khan
Page 8
UK and US constitutions The crown is the head of the Church in England: (c) Summoning of Conventions: The Crown Summons Church Conventions. (iv) Legislative Prerogatives: (a) Power to Legislate: The King has power at Common Law to legislate for conquered and ceded colonies. (b) Summoning of Parliament: The King has the power of Summoning the Parliament. (c) Dissolving of Parliament: The King also has the power of dissolving the Parliament of the advice of Prime Minister. (d) Assent on Bills: The Kings also has the prerogative of giving Royals assent to Bills passed by both Houses of Parliament. (e) Address to Parliament: The King also address to parliament in every new Session. (f) Appointment of Peers: The appointment of peers are made by the Crown. B. Foreign Prerogatives: Following are the Prerogatives of the Crown in relation to foreign affairs. (ii) power to Make Treaties: It is the prerogative of the King to make treaties. (iii) Declaration of War and Peace: It is the King who declares war and peace with other countries. (iv)Power Of Recognition: The King has the power to recognize the power status of a foreign country or of its government. He can do so by receiving the representatives of other states. (v)Appointment of Ambassadors: The King appoints the representatives or ambassador of his own country abroad. 6- Conclusion: To Conclude, I can say, that the prerogatives is the name for the remaining portion of the Crown’ s original authority. It dose not include the powers exercised by him in virtue of a parliamentary Statute. At present the Crown’ s is much restricted as he cannot claim any prerogative opposed to Common Law or Act of parliament or liberties of the subject and except personal prerogatives, it is the cabinet that exercise the prerogatives powers in the name of the King.
Q.5: Discuss the Composition and Legislate power of House of Lords. 1- Introduction: The House of Lords is the oldest house in the world and has been in Constitution existence in one from or other for more than a thousand years. It is the upper house of the British Parliament. It is generally stated that the house of Lords is a hereditary house. 2- Composition Of House Of Lords: The member of house of Lords fall into seven distinct categories. I. Hereditary Peers: About nine-tenth of the members belong to this category-peerage is granted by the crown and he may create as many peers as he like. The Majority of people becomes peer, because they Per chance happen to be eldest Grand sons of an ancestor, who was first created a Peer.
Noman khan
Page 9
UK and US constitutions II. Representative Peers Of Scotland: Their number is 16 and are elected by Scottish peer in accordance with the provisions of the treaty of union 1707. III. Representative Peers Of Ireland: When Ireland was united with English the lrish peers were entitled to elect 128 members but since 1922 when Ireland was declared a free state no new peer have been created. IV. Lords Of Appeal: They are 9 in numbers and are appointed by the crown under the provisions of the Appellate jurisdiction Act, 1876 to assist the house in the performance of its judicial functions. V. Spiritual Peers: They are 26 in number two are Arch Bishop’s of York and Canterbury and 24 are Senior Bishops of the Church of England. VI. Princes Of The Royal Blood: Male adult members of royal family who have attained maturity and are within specified degree of relationship are appointed as members of House Of Lords. VII. Life Peers: These members are created under the provisions of the life peerage act 1958. They are the persons who have held high offices in the state and have since retired e.g. minister, speakers etc. 3- Number Of Members: The number of members are not fixed. The numbers varies from time to time. 4- Nature: The House of Lords is called conservative chamber. It was commonly described as the hereditary and partly democratic in composition. Peerage both hereditary and life are created by sovereign on the advice of Prime Minister. 5- Disqualification: Following persons cannot become the members of the house of Lords. 1. Insane 2.Minor 3. Convict 4. Bankrupt 6- Presiding Officer: The House of Lords is Presided by a Lord Chancellor who is member of the cabinet. 7- Privileges Of The House of Lords. Following privileges are available to the house of Lords. I. Freedom Of Speech: The Lords can express their views freely can access to the Sovereign to discuss public affairs. II. Free Access To The Sovereign: Every member of house of Lords can access to the Sovereign to discuss public affairs. III. Right To Determine Its Own Composition: The lords have right to determine its own compositions. IV. Right To Publish Opinion: The Lords can publish their opinion in official papers. V. Freedom From Arrest: No member can be arrested when parliament is in Session. VI. Right To Receive Writs Of Summons: They have the right to receive individuals writs of summons to attend Parliament. VII. Trial Of Impeachment Cases: They have the right to try impeachment case brought by House of Commons. VIII. Exemption:
Noman khan
Page 10
UK and US constitutions It enjoys exemption from serving as jurors. IX. Determination Of Peerage: The House has the right to determine disputed claims to peerage. 8- Powers And Function Of House Of Lords: Following are the powers of House of Lords: I. Legislative Powers: After the passing of Parliament Act 1911, the legislative powers of the House of Lords may be discussed under the following heads. (i) As Regards Money Bills: As regard control over financial bill the House of Lords is practically ineffective. All the money bills introduce in the house of Commons and if the House of Lords withholds their assent to it for more than a month, it would be presented to the King and would become law on receiving the Royal Assent despite the fact at the Lords did not concur with it. (ii) As Regards Non-money Bills: Non-money bills may be introduced in the House of Lords. A non-money bill passed by the House of Commons in two Successive Sessions with an interval of at least of one year between its first reading in the first and second reading in its Second Session, it will become a law after having received the Royal Assent irrespective of its having been rejected by the Lords. So in legislative sphere, House of Lords has lost much of its significance. II. Executive Powers: The Lords have the powers to ask question from the Government and have a full right to debate its policies but the House can only cross-examine the cabinet ministers and the cabinet is not responsible to it. III. Judicial Powers: The House of Lords has three fold Jurisdiction or powers in this regards. (i) It has original power to try peers in case they are involved in any treason or felony against national interest. (ii) It is also authorized to hear impeachments sent to it by the House of Common but now this jurisdiction has lost all its importance due to the acceptance on ministerial responsibility. (iii) It also acts as the highest Court of appeal in U.K. IV. Other Powers: The House of Lords performs an important function of discussing such social and political questions, which are not ready for legislation. 9- conclusion: To conclude, I can say, that the House of Lords is an ancient institution of the world, which plays his role in Conventional way for accomplishment of legislation. Before the passage of the Parliament Act of 1911. The House of Lords was in all respect co-ordinate in powers with the House of Commons but after the Parliament Act of 1911, the position is quite different and now the House of Lords is a mere shadow of its former self.
Q.6: House of commons is the most powerful organ of the British parliament Explain. 1- Introduction: “ The Sovereignty of parliament resides in the House of Commons.” (R.G Neumann) “ House of Commons is the center of the English political system….. The sun around which all other bodies revolve”. (Gladstone)
Noman khan
Page 11
UK and US constitutions The house of Commons is the lower and popular chamber of the British parliament. It is most remarkable assembly in the world and is elected by the people in general election. 2- Composition Of House Of Commons: I. Strength: The present strength of House of Commons is 650. II. Term Of House: The members of the House of Commons are elected for a term of five years, unless the House is dissolved earlier by the Queen on the advice of the prime Minister. 3- Qualification And Election Of House Of Commons: I. Qualifications Of Candidates Of House Of Commons: Following are the qualification for a candidate to contest election for house of commons. (i) He or she, as the cases may be, must be a British subject. (ii) Must attain the age of 21years. (iii) Not otherwise disqualified such as (a) Holder of judicial officers (b) Bankrupts (c) Civil servants (d) Members of the armed forces and the police force (e) The directors of the nationalized commercial companies; and (f) Clergymen. II. Election: Parliament elections are of two Kinds. (i) General election held when a new House of common is to be elected and these must be held within 20 days of the dissolution of a sitting parliament. (ii) By –elections held when a vacancy occurs in the House due to the death or resignation of a sitting member or when a member is made a member of the House of Lords. A. Adult Franchise: According to the representation of the people Act 1949 as amended by the 1969 Act, following are the qualification of a person entitled to vote (i) Must be a British subject (ii) 18 years of age or above (iii) Whose name is recorded in the voter, s register of his constituency. 4- Presiding Officer Of House Of Commons: The meeting of the House of Commons are presided over by speaker. He is elected by the House when a new parliament meets for the first time. 5- Powers And Functions Of The House Of Commons: I. Legislative Powers: The house of commons enjoys vast powers in the filed of law- making. It can modify the existing law and the can make or repeal any law whatsoever. It define the national policy and has the right to change the constitution. II. Financial Powers: The House of Commons wields great authority over the nation, s purse. According to opinion of Prof. Madison who holds the purse, holds the power. According to the Act of 1911 all money bills must originate in the House of Commons and the power of House of Lords is limited in this respect. III. Administrative Powers: The House of commons also attains the powers of Administration because this House controls the administration by way of questioning the cabinet members.
Noman khan
Page 12
UK and US constitutions According To Prof .Munro: An obligation rest upon the House of Commons to exercise a day to day control over the Ministry in such a way that fundamental disagreement between the executive and the representatives of the people will be clear and manifest. IV. Delegated Legislation: Parliament being Supreme, may delegate powers to whomever it will and it may similarly withdraw the powers that it has delegated. It may delegate its powers to Government Department to Supplement, amplify and apply statutes passed by the parliament. 6- Privileges Of The House Of Commons: Following are the privileges of the House of Commons: I. Freedom Of Speech: The House enjoys freedom in the House in the matter of debates. II. Right To Regulatm: House has the right to regulate its own Constitution including the right to exclude or expel members. III. Exclusion Of Strangers: The House also has the right to exclude strangers form the House. IV. Right To Prohibit Publication: House has the right prohibit publication of its own debates. V. Freedom From Arrest: Freedom form arrest in Civil Cases for a period of 40 days before and after the Sessions of parliament but this privilege not extend in Criminal Cases. VI. Right To Enforce Privileges: House has the right to enforce its privileges and commit for contempt for breath of its privileges. 7- Conclusion: To conclude, I can say that the House of Commons, is the most vital part of the British Parliament. Since 1922 the House had assumed final powers of law making which are firmly shared with the House Lords. In reality parliament means. House of Common when a minister consults parliament, be consults the House of Common, when the Queen dissolves parliament, she dissolves the House of Common when a parliament has made a law, it means that the House of Commons has legislated upon it.
Ministerial Responsibility Q7: Discuss fully the Ministerial “Responsibility” under British Constitutional System. 1- Introduction: Once of Salient Feature of the British cabinet is Ministerial responsibility. The cabinet members are responsible to the House of commons individually as acts of commission or omission within their departmental or governmental spheres. 2- Meaning Of Ministerial Responsibility: According to Prof. Dicey it means two utterly things as under. I. Parliamentary Responsibility: This is the liability of Minister to lose their offices. When they cease to retain the confidence of the House of Commons. If a Minister do not do not resign from his office, there is no provision in law to compel him to vacate his office. This is matter of conventions and not of law. It is called parliament responsibility.
Noman khan
Page 13
UK and US constitutions II. Legal Responsibility: Legal Responsibility means that every ministers is answerable to a Law of Court for the acts Crown because every act of the Crown is countersigned by the Minister. This is a matter of law and not merely a matter of conventions. 3- Origin Of Ministerial Responsibility: Before the Glorious of Revolution of 2688, the Britain King were absolute rulers but when parliament become the Sovereign body, it beggar to punish the ministers by means of impeachment. The King then began to choose Minister from parliament. Thus a convention began a minister should win the confidence of the parliament and he should resign if fail. During the nineteenth century the concept of Ministerial responsibility was fully developed. 4- Main Aspects Of Ministerial Responsibility: According of Prof Munro, there are three aspects of Ministerial responsibility which are the followings. I. Responsibility To King: It is the responsibility of the ministers to keep the king informed of what they do. This aspect of responsibility only means that it is the duty of cabinet to keep the king informed of all it decisions. II. Responsibility To One Another: The Cabinet as a whole is answerable for the acts of it member. The minister should either agree with the decisions of the Cabinet or resign. The Ministers are also responsible to one another. The Ministers have follow the policy which has been decided upon in the joint meeting of the ministers. III. Responsibility To The House Of Commons: The minister are also responsible to the house of the commons. The ministers can also criticized by the members of the House of Commons. Every Minister is responsible to the house. The cabinet can remain in office only so long so long as at enjoys the confidence of the house of commons. 5- Scope Of Ministerial Responsibility: The responsibility of minister is individual as well as collective. I. Individual Ministerial Responsibility: Individual, each minister is responsible to parliament for the work of his department of which he is a political head he is also personally liable for any breach of law, for which he is answerable before a Court. A Minister, who commits a mistake in this departmental policy and is not defended by the prime Minister, is individually responsible for it and must resign. But if the prime Minister or the Cabinet comes to his defense, it becomes a matter of collective responsibility. II. Collective Ministerial Responsibility: It means the responsibility of all Minister , whether they are included in the Cabinet or not or have participated in the cabinet the policy, he remains equally responsible for it. 6- Merits Of The Concept Of Ministerial Responsibility: This doctrine confers the three merits on the British system of Government. I. Responsibility To Public: It makes the Government answerable to the public. II. Unity Of Cabinet: If infuses unity in the Government, the Minister know that their cabinet will remain in office only so long as they are united. Anyone who disagrees with the policy should either resign or be removed by the Queen on the advice of prime Minister. III. Efficiency In Government:
Noman khan
Page 14
UK and US constitutions In enhances efficiency in the Minister Work. Every Minister must keep himself informed of what his colleagues and the cabinet as a whole are doing. 7- Conclusion: To ,conclude, I, can say, that doctrine of Minister Responsibility deeply influenced the growth and development of the parliament and cabinet system of Government parliamentary Government is not Government by parliament but of minister who are answerable before parliament for their acts and policies. .Q8: Explain the Committee System of England Parliament. Q. write a comprehensive note of the Committee of the House of Commons 1- Introduction: The Committee System is employed by all the legislatures of the world. It has become an essential part of legislature’s procedure. In U.K. every bill has to go through an appropriate Committee after the second reading. It enables the parliament to dispose of more bills in a time. 2- Committee System In U.K. Most of the work in the House of Committee is done by the Committees. The proceedings of the Committees are secret in nature and the rules are not rigid. I. Reasons For Committee System: Following are the reasons which led to the increasing use of Committee. (I) House of Committee is a huge body and the true purpose of measures introduced in the House cannot be properly understood unless it assign preliminary work to certain committees. (II) Complication in the legislation and the desire of the members to speak. (III) The great pressure of legislative work, which cannot be furnished without help from small Committee. II. Selection Of Committee: All the Committee excluding the committee of the whole House are Selected by the Committee of Selection. The members of the Committee are chosen at a conference between the Government and opposition leaders. 3- Kinds Of Committee: Following are the different Kinds of Committees in U.K. (I) Committee Of The Whole House (II) Standing Committees (III) Select Committees (IV) Private Bills Committees (V) Joint Committee I. Committee Of The Whole House: It consists of the members of the House of Commons excluding the speaker. It is presided over by the chairman, chosen in the beginning of each parliament. Following are the distinguish features of its meetings which distinguish it from the sitting of the House itself viz. (i) The rules of procedure are relaxed. (ii) A member can speak as many times as he like. (iii) No closure motion can be moved. (iv) The mace which is the symbol of the speaker’s authority is placed under the table. A. Types Of Committee Of The Whole House: Following are the different types of committees of the whole House. (i) Ordinary Committee of the Whole House on a Bill: It comes into being when the House resolve than an ordinary bill shall go to the Committee
Noman khan
Page 15
UK and US constitutions of the whole rather than to a standing Committee or a Select Committee. (ii) Committee of the Whole House on A Money Resolution: It deals with the financial legislation and matters. (iii) Committee of Supply: It comes into being to discuss the expenditures. (iv) Committee of Ways and Means: It comes into being to consider revenue measures. II. Standing Committee: It is an important Committee and almost all public bills except money bills go upstairs to a Standing Committee. These are five in number one of which is exclusively for Scottish bills and the other four are known alphabetically as A, B, C and D. (i) Number of Member: Each Committee Consists of 16 to 50 members and the speaker appoints the president. The Scottish Committee consists of all members from Scotland and a few others who have experience or Knowledge of Scottish or welsh affairs. In all other Committees, the Government and the Opposition have proportionate representation. III. Select Committee: Select Committee are appointed to discuss about the special bills. These Committees consists of expert persons, which provide the information regarding important affairs and research about the legislation process. They are really Committee of investigation and examination. It collects evidence, examine witnesses Sift evidence and draw up reasoned conclusions and reports to the house. (i) Number of Member: A select Committee usually consists of 15 members. (ii) Kinds of Select Committee: From the point of view of their existence, there are two kinds of Select Committees. (a) Ad-hoc Select Committee: It cease to exist as soon as it work of inquiry has come to an end. (b) Session Select Committee: It term lasts a Sessions of the Parliament. IV. Private Bills Committee: These are appointed to dispose of the private bill in Parliament. It works quite impartially and its report, whether for or against the bill, is always accepted by the House. In the House of Commons, the number members of a private bill Committee are four while in the House of Lords it is five. V. Joint Committees: These consists of members from both Houses of Parliament and mutually consult and consider about the bill in a collective way, which relates to the both Houses. 4- Conclusion: To conclude, I can say that Committee stage is very important in the life of a proposed bill after the second reading, the bill is handed over to one of concerned Committee so that detail views of bill may be completed and the House considers the bill later at the report stage in the light of the report of the Committee.
Q.9: Explain the cabinet system under the British Constitution Q. Discuss Nature And Functions of English cabinet 1- Introduction: “cabinet is central stone of political arch.”
Noman khan
Page 16
UK and US constitutions (Prof. Lowell). The cabinet is the real executive of the British System. It is also called the ministry of the government. The cabinet has been defined as a body of royal adviser, chosen by the prime Minster in the names of the crown. The Cabinet must acknowledge the Supremacy of the prime Minister and follow the policy laid down by the prime Minister. 2- Evolution Of Cabinet System: Originally cabinet was committee of the privy council which became too, large for administration work. King Charles II (1660-85) began to consult a small group of privy councilors in matter of state. The cabinet is called the child of Privy Council. In the reign of Charles II the Cabinet acquired a formal shape. The cabinet system further developed during the reign of William III and Queen Anne. During the reign of George I, the Office of the prime Minister came into existence. 3- Nature Of The British Cabinet: The Cabinet is a body unrecognized by law. Its existence is only customary, i.e. based on custom or convention. 4- Composition Of British Cabinet: The Crown sends for the recognized leader of political party which has the majority called prime Minister and asks him to form the Cabinet. 5- Feature Of The Cabinet System: Following are the features of the cabinet system. I. Exclusion Of The King From Cabinet: The Queen or King dose not attend the cabinet meeting. It has become Constitutional convention. II. Co-Operation Between Cabinet And Parliament: There is complete co-operation and harmony between the cabinet and the parliament. III. Leadership Of The Prime Minister: The prime Minister plays dominant role cabinet. The cabinet is formed by the prime Minister. He is the Keystone of the cabinet arch. IV. Secrecy: The meetings of the cabinet are secret and private. Every members of cabinet takes the oath of Secrecy. The discussion is not disclose in the public. V. No Legal Status: The British cabinet has no legal statues. There is no mention of cabinet in the written part of the Constitution. The Cabinet is called the child of the conventions. VI. Ministerial Responsibility: The Cabinet members are responsible l to the house of common individually as well as collectively and they are liable to law for their acts. VII. Political Homogeneity: Political Homogeneity means, s that all the members of the Cabinet should have similar views of their policies the members of cabinet have same views because they belong to one political party. VIII. Collective Responsibility: The members are collectively responsible. The result is that all the member’s work as a team. The cabinet stands or falls together as a unit. IX. Unity Of Cabinet: Unity of cabinet is the outstanding features of British cabinet system. The cabinet always acts as Unity. They are supposed to face the House with one voice. 6- Functions Of The British Cabinet:
Noman khan
Page 17
UK and US constitutions Following are the important functions of the British parliament. I. Policy Determining Functions: The Cabinet is policy formulating body. The Cabinet discuss and decide all sort of national and International problems. The Cabinet decides the measures which are ti received priority. II. Exceucitve Functions: The cabinet is the real executive. (i) The Cabinet formulates the general policy of the Government. (ii) It determines the foreign policy of the Government. (iii) The Cabinet determines measure for war and peace. (iv) All important appointments are made by the cabinet. III. Legislative Functions: The Cabinet the controls the Legislatives activities. (i) The parliament is summoned on the advice of the cabinet by the King. (ii) The speech of the King in parliament is prepared by the cabinet. (iii) The cabinet explains all bills which are to be passed in the parliament. (iv) The cabinet guide he leader of house in the parliament. IV. Financial Functions: The Cabinet play important role the regard. It prepares the budget for the country and is responsible for the whole expenditure of the stock. The chancellor of exchequer is the finance minister of the country and in the member of the cabinet. V. Judicial Functions: (i) The judges of important Courts are appointed on the advice of cabinet by the king. (ii) The rules and regulation for judiciary are prepared by the cabinet. (iii) The power of pardon, reprieve and respite is exercised by the king on the advice of the Cabinet. 7- Conclusion: To conclude, I can say, that the working of the cabinet system in England is a process of sloe and evolution prime Minister is the head cabinet who forms his cabinet , under the order of king , amongst who member of the parliament cabinet exercises large powers in almost every sphere of Governance.
Q.10: What are different powers available to Prime Minister of England 1- introduction: In British, there is parliamentary from of government. The Prime Minister being the head of the State occupies a very important position. He is rightly called the Keystone of the Cabinet arch. He is the outstanding personality in England. According to the conventions of the country Prime Minister must belongs to House of Commons. 2- position Of Prime Minister In Britain. The Prime Minister of England occupies a Unique position in the Government. I. Lord Morely Says: “Prime Minister is the Keystone of the cabinet arch.” II. Marriot Says: “Prime Minister is the political Ruler of England.” III. According To OGG: “Prime Minister is moon among the Starts.” IV. According To Prof. Laski: “He is the Pivot around which the entire government machinery revolves.” V. Prof. Munro Says:
Noman khan
Page 18
UK and US constitutions “Prime Minister is the captain of the State.” 3- Evolution Of Office Of Prime Minister: The Office of Prime Minister is a result of mere accident. Robert Walpole was the First Prime Minister of U.K. who has commissioned to preside over the meetings of the Cabinet because George I did not know English Language. But not until 1878 did the term “Prime Minister” makes its appearance in any public document. It was in the treaty of Berlin that the Lord Beaconsfield was referred to as “First Lord of Her Majesty’ s Treasury. Prime Minister of U.K” then the Act of 1917 and Act of 1937 recognise the office of Prime Minister. 4- Appointment Of Prime Minister: The Prime Minister is appointed by the King. After the general election in the country the King invites the person who has majority in the house to from the government. 5- Functions And Powers Of Prime Minister: Following are the powers and important functions of the Prime Minister. I. Leadership Of The Cabinet: Prime Minister is the leader of his Cabinet. He is dominating personality in the cabinet. He appoints the minister. The agenda of Cabinet is prepared under his guidance. II. Leadership Of The House Of Commons: The Prime Minister is leader of House of commons. He represent cabinet in the house of commons. He is the chief spokesman of the government and all important announcement in the house are made by him. III. Source Of Communication Between King And Cabinet: The Prime Minister is a source of communication between King and cabinet. He plays a vital role between King and Cabinet. IV. Control Over Foreign Affairs: The Prime Minister controls over foreign affairs. He formulates foreign policies. He also attends international conference. V. Power Of Appointment: Important appointment are made by the crown on the advice of the Prime Minister he can appoint: (i) Ambassadors of Country. (ii) Diplomatic representative. (iii) Governor-General of dominions. (iv) Governor of Colonies. (v) Finance Minister (vi) Member of Cabinet. (vii) Civil and Military Officer. VI. National Leader: The Prime Minister is the national leader of the country. He makes all policies for his country. He is the leader of his people. VII. Chairman Of Various Bodies: The Prime Minister is the Chairman of various bodies. He is the ex-officio chairman of the important committees. VIII. Acknowledged Leader Of His Party: The prime Minister is the acknowledge leader of his party which is the majority party in the parliament. IX. Chief Adviser Of The Crown: The Prime Minister is the Chief Adviser of the Crown. He gives advises on important matters. X. POWER Of Dissolution:
Noman khan
Page 19
UK and US constitutions The Prime Minister is the only person who is authorized to advise the king to dissolve the house of commons. Prime Minister should consult the cabinet on the issue of dissolution. XI. Policy Maker: The Prime Minister is the Policy maker. All important policies are made by him. XII. Settlement Of Disputes: The Prime Minister settle the disputes between the different departments of the governments. 6- conclusion: To conclude, I can say, that the British Prime Minister is a great force in U.K. He is the representative of the nation in the Parliament and as Prof. Laski says “The British Prime Minister can do what the German Emperor and the American President and all chairman in the Committees in U.S Congress cannot do for he can alter the law or repeal it and can direct all the forces of the State”.
Law making procedure Q11:Discuss the Parliament Procedure for law making under British Constitution. 1- Introduction: “All means of formulating laws tend to be swallowed up in the one great, deep and broadening sense, legislation.” (Woodrow Wilson) In U.K . , every law begins as a bill, which is a legislative proposal put before parliament for its approval. It is read three times in each House of parliament and after receiving royal assent , becomes an Act or law. 2- Process Of Law Making: The process of legislation varies with the kinds of bills, put before the parliament. I. Kinds Of Bills: Following are the different Kinds of Bills. A. Public Bills B. Private Bills. A. Public Bills: A public bill is one which affects the general interests of the country as a whole or a large part of the community e. g . a bill for compulsory primary education. It may be either (i) Money Bills, or. (ii) Non-money Bills (i) Money Bills: Money bills deals with financial matters and it certified as a money bill by the speaker. They can originate only in the House of Commons, by a minister. (ii) Non-Money Bills None-Money Bills not deals with financial matters. It may be divided into two classes. (a) Government Bills: These are bills brought before the parliament by a minister after the approval of cabinet (b) Private Members Bills: A private member, s bills is one that is introduced by any member of parliament other than ministers. B. Private Bills: A private bills is one which relates to the one locality or an individual or an institution e. g., a bill to control private schools. 3- Method Of Legislation:
Noman khan
Page 20
UK and US constitutions The method of legislation may be discussed under the following heads. I. Passing of Non-Money public Bills II. Passing of Private Bill. 4- Passing Of Non-Money Public Bills: The various stages through which every public bills has to cross may be explained as under. I. Bill Drafting: The first step in the drafting of the bill itself. It must be laid down in exact words and be complete in every respect. (i) In Case of Govt. Bills: It is prepared by a public dreftsman in the office of the parliament counsel to the treasury and in must get the approval of the cabinet before it is presented before the parliament. (ii) In Case of Private Member, s Bill: In such a case, it is drafted by the member himself or with the help of anyone whom he may employ for the purpose. II. Introduction And First Reading: (i) In Case of Govt. Bills: There are two methods of introducing it, either on a motion or on a written notice. The first method has fallen into disuse. The normal methods is no written notice as prescribed in standing order No.35. The mover gives a notice of introduction which is printed in the orders of the Day on the day appointed the speaker calls the names of the movers to present his bill the clerk , s table. Sometimes only a “Dummy Bill” is Placed on the table of the clerk. The Clerk of the House reads out the title of the bill and as soon as he read the title the introduction along with its first reading is over. (ii) In Case of Private Member, s Bill: Private member can introduce bills by putting their cards in the box at the clerk , s table. The clerk then draws the lots and the member whose name is forts drawn gets opportunity to introduce his bill on the first available Friday of the Session. (A) Mode Of Introduction: A private Member can introduce his bill either by a written notice or by a motion for leave the “Ten minute Rule” Having had the good fortune to get his bill on the notice paper, the member moves that it be read a first time and secures it a second reading. III. Second Reading: (i) In Case of Govt. Bills: On day fixed in advance by an order of the House, the mover of the bill moves it that it be now read a second time. He explains the bill and then a general debate follow in which members of both sides of the house participates. (ii) In Case of Private Member, s Bill: As there is lager number of private Member wager to introduce bills on Friday ,a ballot is taken and the member who wins it , he can moves for its second reading on that day. Then the same procedure as other public bills shall follow. IV. Committee Stage: Having passed its second reading the bill enters the Committees State. It goes to one of the five standing Committees as directed by the Speaker unless the House directed it to be sent to a committee of the whole on grounds of its exceptional importance or highly controversial nature. V. Report Stage: In Report Stage the House discussed the bill as reported by the committee. It is a very lengthy stage as every clause is discussed and voted. If the Govt. considers the bill of an
Noman khan
Page 21
UK and US constitutions urgent nature, it may resort to motion for closure. VI. Third Reading: When all the clauses of the bill have been voted upon in the report stage, the bill enters the third reading stage. At this stage no amendments other than purely verbal ones are in order. The idea behind third reading is that the House should take one more look at the bill as amended before if finally gives its approval. VII. Bill In House Of Lords: When the bill is passed in the House of commons, then the bill is presented in House of Lords. There, the bill completes the proceeding in a short time. If there is a dispute between both the House, an exchange of written massages taken place between them and in case if no agreement is reached then by virtue of parliament Act, 1949, the House of Common can again pass the same bill in the next Session with an interval of one year in the 2nd reading in the First Session and 3rd reading in the 2nd Session, and then the bill shall be deemed to have been passed by both the Houses. VIII. Royal Assent: The last stage in the Royal Assent is signified with much ancient ceremony. No king or Queen of England Since 1707 has eve refused to sign a bill put before him or her for royal assent. 5. Passing Of Private Bills: I. Presentation Of Bill: Every private bill is presented in the form of petition by some person, not the member of the parliament, but act through a firm of parliamentary agents. ll. Formalities Regaridng Bills: the promoters of the bill must pay special fees and comply with certain conditions before their bills are considered by parliament. (i) They must give notice to person whose interests may be affected by the bill. (ii) They must send notice to Government departments concerned. (iii) They must present a petition attached to the bill to the parliament and deposit it at the private Bill Office by 27th November. III. First Reading: The private bill is read at the first stage which is formal one. IV. Second Reading: In the second reading, general principles of bill are discussed. V. Committee Stage: The Committee Stage is very important as bill which are classified as unopposed are sent to a Committee called the Committee of Reference and the opposed bills are sent to one of the private Bill Committees. VI. Report: After the hearing of the bills, the Committee prepares a report, favourable or unfavourable and present it in the House. The House acts according to the report. VII. Third Reading: The third reading is a formal one and is shorter in nature. VIII. Bill In House Of Lords: After third reading the bill is sent to the House of Lords, and the same procedure as public bill followed. IX. Royal Assent: After the passing of the bill form both houses, it is sent for the Royal Assent and become a law after getting it. 6-Conclusion:
Noman khan
Page 22
UK and US constitutions To conclude, I can say, that the law making process is a very important one as it often determines the faith of the nation U.K. Parliament attains the vast powers in the field of legislation there is a special procedure for passing of law in U.K. and it often depends upon the nature of the bills proposed.
Q. 12: Briefly discuss the judicial system of England. 1- Introduction: Justice in British is honest and impartial and is available to all people whether they are rich or poor. This is due to the independence of judiciary and the rule of law. Judiciary is the pride of British heritage and plays a positive role for protection of rights and liberty of individual. 2- Features Of British Judicial System: Following are the salient features of British Judicial System. I. Rule Of Law: The Rule of law is outstanding feature British Judicial System. It means that none of the persons is upper or below the law and all persons are equal in the eyes of the law on all subjects. II. Neutrality: The Courts are neither in U.K. and never support any party, neither plaintiff nor defendant. The Courts complete the requirement of justice in neutral manners and perform their functions and powers according to provisions of law. III. Independence Of Judiciary: The Courts of U.K. are free from all the pressures and decides the cases on merits. The Act of Settlement of 1701 provides that the judges in England will hold office during good behavior. IV. Jury System: Jury System is another unique feature of British Judiciary. In all Serious criminal cases, the accused must be tried not by a judge alone but also by a jury which is a group of laymen who are appointed to assist the judges in administration of justice. In all civil cases involving an accusation against the moral character of either of the parties, that party may demand a verdict by a jury. V. Speedy Justice: Speedy Justice is another feature of U.K. Judicial System cases are disposed of quickly. This is due to two reasons. (i) Judges possess greater discretion in dealing with legal technicalities, and (ii) The judicial rules of procedure are made by a special rule committee, consisting of the Lord chancellor and ten other persons who are eminently familiar with law. VI. Equality: The Courts in U.K. represents the principles of equality. U.K Legal System is accusatorial and not inquisitorial. It is the duty of the prosecution to prove its case beyond reasonable doubts and on its own merits. VII. Open Trial: Open trial in also a characteristic of U.K. Judicial System. The trial must take place in open courts in the full lime light of press publicity. VIII. Co-Ordination In Judicial System: In U.K. the Courts are distributed into two kinds viz., criminal and Civil Courts and there is a Coordination in the judicial system. There are no separate administrative Courts in England. IX. Guardian Of Civil Liberties: The Judges have played an important part in safeguarding the liberties of Englishmen, as the fundamental rights have not been incorporated in the Constitution.
Noman khan
Page 23
UK and US constitutions X. No Uniform Judicial Organization: There s no uniform judicial organization throughout the united kingdom. There is one set of Courts in England and whiles and another set of Courts in Scotland. The set of Courts in Northern Ireland is also different. XI. Dual System Of Bar: There exists a dual system of Bar in the U.K. The lawyers are divided into two parts. The solicitor and the barristers, while the solicitor deal with the clients and prepare cases, it is the barrister, who argue them in the Courts. XII. No Judicial Review: On account of the sovereignty of Parliament, the institution of judicial review dose not exist in England. No Court of law can declare ultra a law passed by the British Parliament on account of its unconstitutionality. 3- Organization Of The Judiciary: The Present judicial system of U.K. is based on the Acts passed during the period of 1873 and 1879 and it also a result of various reforms, one of which was adopted in 1969. The Court are divided into two types. (i) Civil Courts (ii) Criminal Courts (I) Civil Courts: The Cavil Courts deal with private law or disputes between one private citizen and another. The organization of Civil Courts is distributed as follows. (i) County Courts: The lowest Court of the Civil Courts is county Court. They were established in 1848 for the purpose of making justice more easily available in local areas. There are 337 County Courts. Under the Courts Act, 1971 each County Courts has one or more circuit judges, assigned it is by Lord chancellor. (ii) High Court of Justice: It is situated in London. This Court has jurisdiction on cases, not under the jurisdiction of County Courts. It is also an appellate Courts against the Decisions of County Courts. It is distributed into three division. (a) Queen’ s Bench Division: This bench his jurisdiction about the cases of general civil nature, income tax, insurance, trade and taxation also. (b) Chancery Division: It has jurisdiction on various kinds of cases such as minor person, administration of property of deceased persons, problem of bankrupt persons and mortgage of property etc. (c) Probate, Divorce and Admiralty Division: It has jurisdiction on various cases including the probate divorce and various cases regarding shipping affairs. (iii) Court of Appeal: This Court has jurisdiction of appeal against the decision of the High Court of justice. Some appeals are filed directly against the decisions of the County Courts. The presiding judge is called Master of the Role. It Consists of 14 Lords justice of appeal and of Lords chancellor and all three presidents of Bench division of the High Court of Justice. (iv) House Of Lords: House of Lords is highest Court of appeal in Civil matters. Its consists of ten Lords of appeal in ordinary. (II) Criminal Courts:
Noman khan
Page 24
UK and US constitutions A Criminal Court deals with breaches of public law. The organization of Criminal of ten Lords of appeal in ordinary. (i) Justice of Peace and Stipendiary Magistrates: The Honorary Judges are appointed on the various localities to decide the criminal cases of pity nature. These judges are called Justice of pace. The respectable and noble persons of the locality are appointed by Lords chancellor on the seat of Justice of Peace. In big cities to decide the cases of pity nature instead of justice of peace stipendiary magistrates are appointed. (ii) The Quarter Session Courts: This Court has jurisdiction on important cases and heinous offence but dose not try cases involving death sentence or highly complicated. It is also an Appellate Court against the decisions of Justice of peace and stipendiary magistrate. These Courts are conducted four times in a year. (iii) The Court of Assizes: These are the Local Courts to try the Criminal Cases and is branch of High Court. This Court is conducted in each country twice a year it has jurisdiction on the various heinous offences such as imprisonment or death. (iv) The Criminal Court of Appeal: The Criminal Court of Appeal has jurisdiction against the decisions of Sessions Court and the Court of Assizes regarding appeals. It normally consists of three judges who are usually Lords justices of appeal or judges of the High Court. (v) House of Lords: House of Lords is the highest Court of appeal in Criminal Cases Appeal gives permission to file the appeal in House of Lords or where there is any legal problems in lower Court’ s decision or it required statutory interpretation. 4- Conclusion. To conclude, I can say, that the judiciary plays a vital role in U.K. for providing justice to the people. The importance of judiciary may be described in a way that Act of Parliament are not self-operative, they have to be applied by men and application involves interpretation by a Court. For centuries past, the judicial organization in Britain was a bewildering collection of Courts, but now the Courts are arranged into a hierarchical order of lower and higher criminal and Civil Courts.
Q .13: Write an essay on Rule of Law Q .what do you understand by the rule of the law and whether there are some exceptions to it under British System 1- Introduction: The rule of law is the product of centuries of struggle of the British people for the recognition of their fundamental right. In U.K. law is supreme and every act of Government must be authorized by law, either by Statute Law passed by parliament or by Common Law which has been recognized for many hundreds of years. 2- Meaning Of Rule Of Law The principle of rule of law may be defined as under. “Rule of law implies that none of the persons is above of below the law. All the persons are equal in the eyes of the law. If any person violates the law, he should face the trial of the case in Court.” 3- Dicey, S Exposition Of The Rule Of Law: The English jurist Dicey’ s has gives a exposition of the conception the rule of law in his book
Noman khan
Page 25
UK and US constitutions “Law of the Constitution,” first published in 1885. He gave following meanings to this concept. I. No Arbitrary Punishments: No man is punishable or can lawfully made to suffer in body or goods except for a distinct breach of law established by the ordinary Court of land. So all persons accused of an offence should be tried in as ordinary Court of law in the ordinary legal manner and no one it to by deprived of his life, liberty and property. II. Before Law Equality : Secondly . rule of law implies that in U.K. every citizen, rich or poor high or low is subject to the same law and the same Courts of Law. U. K. law dose not make any distinction between Government and those of ordinary citizens. If any public official dose any wrong to an individual or exceeds the power vested in him by law, he can be sued an ordinary Court and tried in the ordinary manner. III. Judicial Decisions: Finally, rule of law means that the general principles of the Constitution are the result of judicial decisions determining the rights of private persons in particular case brought before the courts. 4- Parlamentary Sovereignty And The Rule Of Law: Rule of Law favours parliamentary Sovereignty under the ordinary law of the land, discretionary authority in denied to the executive. The Courts are denied by Government of any sort of discretionary powers. But there are times when parliament is called upon to exercise its Sovereign power by granting the executive discretionary authority by means of an emergency of temporary legislation or when for the sake of legality itself, the rules of law must be broken. This act of breaking laws for legalizing illegalities is the supreme exercise of the parliamentary Sovereignty. 5- Instances Of Rule Of Law: Following are important instances of rule of law. I. The Right To Personal Freedom: People have personal Freedom in England. No person can be arrested without lawful reasons. II. The Right To Freedom of Decision: People of England have right to freedom of decision. Media is independent. Everyone can criticize the policies of Government. III. The Right To Public Meeting: People have right to public meeting and form the political parties. IV. Ministerial Responsibility: Ministerial Responsibility is important instance of the theory of rule of law. If one Minister do wrong other become responsible for his actions. 6- Exceptions: Following are the exceptions to Rule of Law. I. Crown Is Not Responsible For The Wrongs Done By Its Officer: Crown is not responsible for the wrongs done by its officers. A Government Official is personally responsible for his mistakes made in his official capacity. II. Public Officers Are Not Liable For The Wrongs Of Their Subordinates: Public Officers are not liable for the wrongs of their subordinates because are certain acts which have conferred some privileges and immunities to public authorities. III. Judges Of The Courts: Judges cannot be held responsible for anything dose by them in the Official course of their
Noman khan
Page 26
UK and US constitutions business. IV. Foreign Rulers: Foreign rulers cannot be tried any Court in England for any wrong committed by them. V. Diplomatic Representatives: Diplomatic Representatives cannot be tried by any Court in England. VI. Servants Of Crown Has No Protection If Dismissed: If crown dismisses his servants. They have no protection against the crown even thought they are dismissed without a just Cause. VII. Crown, S power To Refuse Or Grant Passport: Crown has power to refuse or grant passport to travel in any country. The order of the crown cannot be challenged in any Court. VIII. Cancellation Of Citizenship: If the citizenship of someone is cancelled it cannot be challenged in any Court. IX. Power Of Home Minister To Naturalize Aliens: The action of home Minister regarding naturalization of aliens cannot be challenged in a Court of Law. X. Time Of Proceedings Against Public Servant: It is essential to take action against public servant within six months from the date of the cause of action regarding any excess, neglect or default of public authority. The right of action laps after six months. XI. Justice Of peace:’ Justice of peace are not liable for any act if the act is not wrongful or malicious. XII. Trade Unions: Trade Unions in England enjoy lit of immunity from law. 7- Conclusion: To, conclude, I can say, that the rule of law establishes the dominance of law but it has nom quiet modified. There are several limitations which indicate that the rule of law is not fully adhered to in England today.
Q.14: How the right of Englishman are enforced. Discuss 1- Introduction: “U.K. Constitution is Combination of Conventions in which the Government machinery perform its functions for many years and protect the fundamental rights of individual”. (Prof. Munro) The right of individual are interlink with the state which does not create them but recognizes them. The U.K. Constitution is unwritten one and fundamental rights are not well-explained in it. 2- Meaning of Right I. According To Prof. Salmond: “Right is combination of those interest which are not only recognized by the state but perform the responsibility of protection also”. II. According To Prof. Laski: “Rights are the requirements of life, without is individual never accomplish the Personality:. 3- Fundamental Rights In U.K. The U.K. Constitution is unwritten and the provisions of fundamental Rights are not protected by way of Constitution. The growth and development of fundamental Rights in U.K. is the result of the following charters. I. Magna Carta II. Bill of Rights
Noman khan
Page 27
UK and US constitutions III.Petiton of Rights IV.Habeas Corpus 4- List Of Fundamental Rights: I. Rights To Personal Freedom: The people have right to personal freedom because the Government does not arrest the persons or individuals until they violate the law. No person is deprived of his liberty. II. Right To Freedom Of Conscience: The people have the right to freedom of conscience so that every individual adopt any religion according to his faith without any interference. III. Right To work: Every person has right to work according to his own will and is given opportunity regarding work according to his ability and performance. IV. Right To Property: Every citizen has right to collect property and there is complete liberty for sale and purchase of the property under the limitation of the law. V. Right To Education: Every person has right to avail education and the Government takes measurement for arrangement regarding education facilities. VI. Right To Paid Adequate Wages: Every person had a right that when he gives service to any institution or department, he is given adequate wages according to his work. VII. Right To Live: Every person has right to live and the Government takes measurement for protection of the individuals and removes all the hindrance for survival of the life. VIII. Right To Leisure: The right adequate leisure has importance in U.K. for welfare of the individuals as well as liberty. The workers are also given refreshment and recreation during working period. IX. Right To Reputation: This is fundamental Right of every person that he take the help of judicial proceedings against those persons who defame him or disturb his reputation. X. Political Right: Every Citizen has political right in U.K Such as the right to vote and to participate in election process. XI. Right To Freedom Of Speech: Every person has the right to freedom of speech so that he may express his views in a liberal manner. XII. Right To Equal Status: All the persons are equal in the eyes of the law. All the citizens have given equal status and law is enforced without any discrimination. XIII. Right To Freedom Of Public Meetings: Everyone has a right to form political parties and all political parties and associates have right for public meetings. P 5- Conclusion: To conclusion, I can say, that the fundamental Rights in U.K. have been protected by means of Rule of law and the role played by judiciary, as the nature of U.K. Constitution is unwritten. According to Prof. Kaming. “The constitution protects the right of the individual and when the rights of the individuals affect then the courts provide the relief to aggrieved person”.
Noman khan
Page 28
UK and US constitutions US constitution Features of US constitution 1- INTRODUCTION: A Constitution consists of those fundamental rules which determine and distribute functions and powers among the various organs of the Government, as well as determine the relations of the governing authorities with the people. The Constitution of the U.S. sets forth the nation's fundamental laws and is the Supreme Law of the land. 2- SALIENT FEATURES OF U.S. CONSTITUTION: Following are the Salient features of U.S. Constitution. (I)WRITTEN: American Constitution is in written form. It is very brief Constitution, originally consisted of preamble and seven Article but now 26 amendments have been made in it. (II)ENACTED: U.S. Constitution is and enacted constitution given by the convention in Philadephia and officially adopted on March 4, 1789. (III)SOVERIGNTY OF THE PEOPLE: the preamble of the U.S. Constitution laid emphasis on the sovereignty of the people. It starts with the words. "We the people of the United States". Which clearly indicated the soverignty of the people. (IV)SUPREMACY OF CONSTITUTIONAL LAW: The Constitution of U.S. is the basic law of the country to quote Constitution itself. "This Constitution and the laws of the United States which shall be made in pursuance there of ............ shall be the Supreme Law of the land. (V)CONVENTIONS: Conventions played an important role in the development of the Constitution and they are also the basic feature of the U.S. Constitution e.g. the growth of the cabinet of the American President is the result of convention. (VI)RIGID: American Constitution is a rigid Constitution because requires a special procedure to amend it. Every amendment, which can be moved in two different ways, must be ratified by the three-fourths of the state will be and elected one. (VII)REPUBLICAN: The U.S. Constitution guarantees to every state a republican form of Government the head of every state will be an elected one. (VIII)FEDERALISM: The Constitution of U.S. establishes a federal form of Government. A Constitutional division of powers has been made between the centre and the federation units. The Constitution enumerates the powers of the centre and leaves the residue of powers to be exercised by the federating states.
Noman khan
Page 29
UK and US constitutions (IX)PRESIDENTIAL: The U.S. Constitution provides for the presidential form of Government. The Constitution vests executive powers to the president. He is not responsible for his acts and policies to the legislature. He is elected by the people for the term of four years. (X)BICAMERALISM: Article I Section 1 of the U.S. Constitution made bicameral legislature. In House of representatives, representation is on the basis of population and Senate, each state has equal representation, two Senators from each state. (XI)SECULAR: America is a secular state. It is stated that congress shall make no law respection the establishment of religion of prohibiting the free exercise of religion. (XII)BALANCED GOVERNMENT: The Constitution Guarantees the balanced Government in the state. The house of representative would reflect the attitudes of the popular or democratic elements and the senate would reflect the views of the aristocratic elements. The two chambers would serve as a check on each other. (XIII)SEPARATION OF POWERS: The Constitution is based on the doctrine of separation of powers. All the three branches of the Government viz legislative, executive and judiciary have been kept separate from each other. The personnel of each branch are chosen by different procedure, the functions are also different and there is no interference in each department. (XIV)CHECKS AND BALANCES: In America, there is a system of checks and balances, each branch has weapon with which to check the others. The President has a qualified veto over laws enacted by congress. The congress can check the President by impeaching him. The president and the senate elect the judges of Supreme Court and Judges has the power to interpret the laws. (XV)JUDICIAL REVIEW: The study of American Constitution is in large measure a study of judicial decisions and opinions. The constitution does not specifically grant the Courts the power to interpret the Constitution but it furnishes sufficient verbal basis for the power. The first assertion of the power against an act of congress was made in 1803 in Chief Justice Marshal's famous opinion in case of "Marbury vs Madison". (XVI)INDEPENDENCE OF JUDICIARY: The Constitution gives judges a large measure of independence. The founder fathers took special precautions to isolate the judiciary from executive and legislative influence. (XVII)DUE PROCESS OF LAW: Another feature of the American Constitution is the right to due process of law. The Federal Government and the State Governments are forbidden to deprive anyone of life, liberty and property without due process of law. It means that any person suspected of violation the law must be dealt with Noman khan
Page 30
UK and US constitutions according to the established rules and not arbitrary. It also demands that the Act of legislature and executive both at the centre and in the states must be reasonable. (XVIII)BILL OF RIGHTS: The U.S. Constitution Guarantees the propels a large number of fundamental right. These rights were not enumerated in the original draft of the Constitution but by subsequent amendments these rights have been secured. The first ten amendments were made to incorporate the fundamental rights. (XIX)DUAL CITIZENSHIP: The U.S. Constitution provides for dual citizenship for the people of United States. An American is the citizen of the U.S.A. and also of the state wherein he or she is domiciled. (XX)SPOILS SYSTEM: This System is associated with the name of President Andrew Jackson. According to it, when the new president takes. over the charge of administration, the entire administration of the previous president is streamlined and he made fresh appointments without taking into account ability, experience etc. (XXI)REPRESENTATIVE DEMOCRACY: The American constitution establishes a representative democracy. All mattes of Government are left in the hands of chosen representatives. (XXII)DIFFERENT CONSTITUTIONS FOR THE FEDERATION AND THE STATES: The States which joined the American Federation have their own Constitutions, which were allowed to exist as before. This wash helpful in avoiding the bulk of the Constitution. (XXIII)CONSTITUTIONAL LIMITATION: another outstanding feature of the U.S. Constitution is found in the number of limitations, which it contains. There are many things which neither the national nor the State Governments may do such as framing bills of attainder or granting titles of nobility. (XXIV)OMISSIONS: The Constitution is distinctive not only for what it contains but for what it omits, its silence on some points is eloquent. For example, the Constitution provides that the house shall choose its own speaker but does not say what his powers shall be this element made the Constitution flexible. CONCLUSION: To conclude, I can say, that the American Constitution is the oldest written Constitution in force in any nation of the world. It establishes the form of Government and defines the rights and liberties of the American People. It also lists the aim of Government and the methods of achieving them.
Growth of US constitution INTRODUCTION: American Constitution is a rigid Constitution but in spite of it, the process of overhauling and modernizing the constitution is going groom the very beginning till today. Noman khan
Page 31
UK and US constitutions "The American Constitution has been worn away in one part, enlarged in another, modified in a third, by the ceaseless influences playing upon the people. It has necessarily changed as the nation has changed". (Lord Bryce) 2- DEVELOPMENT OF U.S. CONSTITUTION: The original constitution of the U.S. consists of seven articles containing not more than seven thousand words has now evolved and enlarged into a vast Constitutional system. The need to change a constitution arises for following reason. (i) It was originally framed to satisfy the requirements of the original 13 States but the change in the social, economic and political life of the people needs the change in the constitution. (ii) The text of the Constitution itself being such as to require interpretation or explanation. 3- FACTORS WHICH LEAS TO THE DEVELOPMENT OR GROWTH OF U.S. CONSTITUTION: Following factors are responsible for the growth of U.S. Constitution (i) Constitutional Amendments. (ii) Legislation (iii) Judicial Interpretation
(iv) Executive Actions
(v) Conventions (I) CONSTITUTIONAL AMENDMENTS: Though the process of amending the Constitution has been extremely slow yet it has led to its growth so far 26 amendments has been made in the constitution. (II) LEGISLATION: The Constitution is in several ways a skeleton, the details of which are left to be filled in by the laws of the congress and to a lesser degree, of state legislatures. For example, Article III of the constitution states that "there shall be one Supreme Court and such inferior courts as the congress may from time to time ordain and establish" on this basis the congress laid the foundation of American judicial system. Such as determined the composition organization of judiciary etc. (III) JUDICIAL INTERPRETATION: The growth of the constitution by means of judicial interpretation is both unavoidable and enormous. The constitution is drafted in general words, phrases and terms the meanings of which the judges have to find out. The Supreme Court has been legislating the constitution by deciding hundreds of thousands of cases brought before it. (IV) EXECUTIVE ACTION: The president and various heads of department have developed the constitution by their executive rulings, orders and actions. For Noman khan
Page 32
UK and US constitutions example Washington, in availing of the constitutional provisions regarding the heads of departments set up cabinet. (V)CONVENTIONS: A convention is a usage or custom which by long repetition and practice has obtained the force and sanctity. U.S. Constitution is also developed by the conventions. Some important Conventions are as under. (i) Direct presidential Election: The Constitution provided for and indirect election of the president but by convention, the election has become more or less direct. (ii) Member of House of Representative must belong the Constituency: Member of the house of representative must belongs to the constituency from which he is to be elected. (iii) Position of Speaker: The power and prestige of the speaker of the house of representative are determined by the convention and usages. (iv) Cabinet System: The growth of American cabinet system is also based on conventions. (v) Steering Committee: Steering committee is not known to the constitution. It is product of conventions. (vi) Procedure of House of Representative: The procedure regarding the conduct of the House of Representatives is based on convention. (vii) Senatorial Courtesy: The president of America consults the Senator of the area when he makes appointments. It is called 'Senatorial courtesy'. (viii) Money Bills: Money bills are originated in the lower house of congress. (ix) Explanation of Policies: After election president explain his policies and address the congress. (x) Election of Chairman of Committees: Chairman of committees is elected on seniority basis. It is by convention. (xi) Residence: The president and vice-president must belong to different states of the U.S.A. CONCLUSION: To conclude, I can say, in words of Woodrow Wilson that the original American Constitution is just like Magna Carta and it has sprouted out of a small seed into a big tree. The U.S. Constitution has changed and developed in many ways. It is not stannant unprogressive and unchanging but is growing one.
Federalism 1-INTRODUCTION: Noman khan
Page 33
UK and US constitutions U.S.A was the first modern democratic state which opted for a federal form of Government. The fathers of the U.S. Constitution were aiming at Unions of regional autonomy and the national unity. It could be possible only this form of Government. 2- MEANING OF FEDERALISM: "A Federal form of Government provides for a Union of States in which authority is divided between the centre and the States. Both the centre and the states work autonomously within their domains" 3-CONCEPT OF FEDERALISM IN U.S. CONSTITUTION: The Constitution of the United States was framed by the original 13 members states under an atmosphere characterized by jealousy, bitterness, suspicion and political fear. They were not prepared to abdicate their sovereignty altogether they wanted to retain their autonomy to some extent. The federalism was thus a compromise between the centrifugal and centripetal tendencies. Originally it was federation of 13 states which is now raised to 50 states. 4- FEATURE OF U.S. FEDERATION: Following are the salient features of U.S. Federalism. (I) PROHIBITION OF SECESSION: There is no possibility of separation of states from Federal Government in the Constitution of U.S.A. (II) FEDERAL SUPREMACY: Federal Laws are superior to the laws of the States. (III) RIGID CONSTITUTION: American Constitution is a rigid constitution the process of amendment in the constitution is difficult. (IV) DIVISION OF POWERS: A Constitutional Division of power has been made between the centre and the States. The Constitution contains three lists of subjects viz.
a list of what the congress can do a list of what the congress cannot do a list of what the states cannot do foreign relations and treaties declaration of war admission of new states currency and coinage honouring on the nation's credit regulation of foreign and inter-state commerce armed forces postal services patents and copyrights regulation of weights and measures etc.
Noman khan
Page 34
UK and US constitutions (i) Residuary Powers: The Residuary subjects were given to the states the 10th amendment clearly provided that the powers not prohibited by it to the states were reserved to the states. (ii) Importance of Residuary Powers: The residuary powers of States Constituted an important limitation on the authority of the central Government within the sphere of these powers, the states are autonomous and supreme and the Federal Government is supreme within its own sphere. This is the essence of American Federalism. (v) INDEPENDENT JUCICIARY: Judiciary is independent and most powerful institution in U.S.A. and it is the guardian of Constitution. (vi) SUPERMACY OF CONSTITUTION: The Constitution is the Supreme Law in a Federation and in U.S.A., it is made Supreme. (vii) BISCAMERAL LEGISLATURE: American Legislature has two houses the senate and the House of Representatives. In senate the representation is made on parity basis, 2 senators from each state. (viii) DUAL SYSTEM: Federalism of America is Symbol of double system. States have their own legislatures, executive and judiciary. 5- FEDERAL STATE RELATIONSHIP IN THE U.S. FEDERATION: The relationship between the Federal and the State Government has been patterned in following ways. (I) DUAL FEDERALISM: At first, the principle of Dual Federation was dominant. According to it, the constitution was interpreted to carve out separate field of authority for the national Govt. and the States. (II) COOPERATIVE FEDERALISM: The principle of Cooperative Federalism upholds the supremacy of the Federal Government and extension of its powers in Cooperation with the authority of the State Government. (III) CREATIVE FEDERALISM: Owing to the rapid growth of the cities or Urban Areas the old style city administration and the State Government in whose areas these cities are situated have been unable to cope with these problems both financially and administratively. The aim of creative federalism was to revitalize the state and city Governmental bodies and to improve the lines of the co-ordination between the Central and State and local branches’ of government and administration. 6- TREND OF STRONG CENTRAL GOVERNMENT: With the passage of time the powers of the centre increased substantially. Following factors are responsible for the trend of centralism in U.S.A. (I) PHYSICAL ECONOMIC AND SOCIAL CHANGES: The expansion of territory the Noman khan
Page 35
UK and US constitutions growth of population, the increasing complexity of economic and social organization led to the growth of the Federal Government. (II) THE CIVIL WAR: The supremacy of the National Government was established after the end of the civil war. The defeat of the southern states gave a negative verdict on the state autonomy. (III) CONSTITUTIONAL AMENDMENTS: The Federal Government has also attained authority through Constitutional amendments. For example, the 16th amendment removed the restriction imposed by section 9 by providing that the Congress shall have power to levy and collect taxes on income from whatever source derived. (IV) INTERPRETATIONS OF SUPREME COURT: The Constitutional interpretations by the Supreme Court have increased the authority of Federal Government. "Maryland Vs. McCulloh" "The Supreme Court stressed that according to the clause in Constitution, the congress possessed and implied power to establish bank in any part of the country and any state law imposing any restriction on it was illegal." (V) FEDERAL GRANT-IN-AID: The Fiscal Supremacy of the National Government has forced the states to seek feral help for financing their social services and this leads to the strong Central Government. (VI) INTERNATIONAL SITUATION: The International Situations after the World War II forced U.S.A to have a strong centre to meet the requirements of the time. => According to White: "The most obvious giant pushing us towards the centre is the Russian bear". (VII) ROLE OF POLITICAL PARTIES: The growth and organization of the political parties and national lines have made the centre strong. (VIII) ROLE OF PRESIDENTS: The powerful president have issued rules and regulations in the exercise of their authority widen in the federal government e.g. Roosevelt's "new deal" policy has widened the Control of Federal Government over subjects originally within State jurisdiction. (IX) CONFIDENCE IN THE NATIONAL GOVERNMENT: The People of U.S.A. have looked to the National Government for solving their problems at all stages and their desire to make the country big and prosperous Noman khan
Page 36
UK and US constitutions leads to strong centre. (X) DEFENCE OF THE COUNTRY: The Constitution empowers the National Government to protect the country from external aggression and this problem of common defense leads to increase the authority of the Federal Government. (XI) DEVELOPMENT OF NATIONAL PRESS: The National Press has also fostered a spirit of National Unity among the people of U.S. This has induced the people to grant more power to the Federal Government. 7- CONCLUSION: The conclude, I can say, that U.S. Constitution provides a federal form of Government the Constitution is the supreme law of the country and a Supreme Court is provided to protect the constitution and resolve the disputes likely to crop up between the centre and the sates. To beging with the centre was kept weaker than the states but with the passage of time the National Government has been generally encroaching upon the state right with impunity but the states still have a large degree of autonomy.
President Powers 1- INTRODUCTION: The range of President's function is enormous. He is ceremonial head of the state. He is vital source of legislative suggestion. He is the final source of all executive decision. He is the authoritative exponent of Nation's Foreign Policy" (Laski). In America, the President is responsible for making policies and is accountable to the Nation. A competent person can exercise even those powers which are not laid down in the Constitution. 2- ELECTION OF PRESIDENT: Article II of the Constitution of U.S.A. deals with the office of president in America. The Constitution provided that the President should be elected by an electoral college, consisting of as many presidential electors as is the number of members in both the house of the congress. 3- POSITION OF PRESIDENT: The Constitution of U.S. has vested the executive power in the President but the Noman khan
Page 37
UK and US constitutions Presidency has not remained what it was made by the Constitution. It has growth by the statutes, convention and by the personality of its incumbents. In a very real sense the presidency is what a president makes it. 4- SOURCES OF POWERS OF PRESIDENT: Following are the sources from where the President of the U.S. derives his powers and authority. (i) Constitution
(ii) Statutes of Congress
(iii) Supreme Court decisions
(iv) Usages and customs
5- POWERS OF U.S. PRESIDENT: The power of U.S. President can be classified under following heads. (i) Executive Power (iii) Judicial Powers
(ii) Legislative Powers (iv) Financial Powers
(I) EXECUTIVE POWERS The Constitution has vested the executive powers in the President, but it is mainly silent on questions of ways and means of exercising it, except in a few respects. Different aspects of President's executive powers are as follows. (i) Enforcement of law: The President is responsible for the enforcement of Constitution and the laws which are made by the Congress. In case of resistance, the president has the power to use force. (ii) Powers of Appointment: Article II of U.S. Constitution gives the list of the appointments to be made by the President with the advice and consent of the senate, however all inferior appointments can be made by the president alone. (a) Recess Appointment: The President can appoint a person dugin the recess of the Senate and when the Senate meets. it can refuse to confirm the appointment, but it can continue till the end of the Session President Collidge made use of this technique to keep Charles B. Warren in office as Attorney-General. (b) Senatorial Courtesy: It is Convention that the Senate gives approval of the Presidential's appointments of Federal Officials in the district of the State, if the senator of that particular district gives his consent, but if the senators of that state does not give their consent, than the President has to face the consequences i.e. Senatorial COurtesy wich means that the Senate will not approve the Presidential appointment. (iii) Powers of Removal: The Constitution is silent about the question of Noman khan
Page 38
UK and US constitutions removing the officers whom the President appoints. There was a dispute whether it should be exercised by th President alone or with the advice and consent of the Senate but this dispute was settled by the Supreme Court of U.S. in Myer's case. "MYERS VS UNITED STATES (1926)" "It was held that it is the power of the President to remove an officer apponted by im and senate without consent of the senate" (iv) Chief Administrator: The President is the head of the National Administrator. He has the power to supervise its operations and has the right to control the entire administration. (v) Military Power: The President is the Supreme Commander of the armed forces of the United States. and he is responsible for the defence of the United States. He is fully autorized to deploy the armed forces anywhere in and out of the country. => "MARTIN VS MOTT (1827)" "It was declared that president can use military in emergency with full authority". (vi) Executive Privilege: The President has the right to claim executive privilege for materials under his control. => UNITED STATES VS NIXON (1974) "The Supereme Court ruled that the President does have a limited executive privilege". (II) LEGISLATIVE POWERS:Under certain conventions, President's role in legislation becomes extensive while the congress has itself appreciated the legislative role of the President. (i) Messages: President can send messages to the Congress Conveying his proposals on important issues. Such proposals from the President are given full consideration during legislation. The famous message to congress include President's Wilson 14 points. (ii) State of the Union Address: The opening address of the President at each Session of Congress is known as the state of the union message. At the beginning of each Session the President is required by law to send congress a budget message and economic report. (iii) Convening Extra Session of the Congress: The President Can't Summon ordinary Sessions of the COngress but can summon its extra ordinary Sessions under Special Conditions like when emergencies arise.
Noman khan
Page 39
UK and US constitutions (iv) Veto Power: The President can exercise his veto power in the legislative field. There are following kinds of veto power (a) Suspensive Veto: According to it, he can return the bill to the Congress for reconsideration. If the bill is passed by 2/3 majority of the congress, it shall become law without the President's consent (b) Pocket Veto: In case; the Session of the Congress adjourns before the expiry of ten days while the bill has not been approved by that time, it will die termed as pocket veto. (c) Item Veto: Item Veto has been passed in 1996 according to which the President can approve parts of a bill and veto other parts before the item veto the congress had been able to get measures by using Riders clause. (V) Executive Decrees and Order: The President is autorized to promulgate executive decrees and orders and these are as valid as laws. (vI) Direct Pressure on the Congress: The President is the leader of the nation. When his efforts to convince the House prove futile, he make a bid for a popular support. (III) JUDICIAL POWERS: A President enjoys the following judicial powers. (i) Appointment of judges: The President appoints judges with the approval of the Senate. (ii) Power of Pardon and Reprieve: The President has the power to grant pardon and resprieves. A pardon is a release from liability of punishment. It may be absolute or conditional. => EXPARTE GROSSMAN (1925)" "It was held that the President has power to pardon the Sentence for contempt of Court." (iii) Ammensty Power: President may also grant ammensty.; it is a group pardon given to batch of offender e.g. president Jafferson set free all persons convicted under the Sedition Act of 1789. (IV) FINANCIAL PWERS: Following are the financial powers of the President. (i) General Manger of Financial Affairs: The President of America is the General Manager of Financial affairs of the Government. He directs and control finance affairs. (ii) Control Over Budget: federal budget is prepared by the bureau of Budget Noman khan
Page 40
UK and US constitutions under the Supervision of the President Serves as a guide to legislative action on annual appropriation for Government activities and programmes. (V) POWERS IN FOREIGN AFFAIRS: Following are the Powers of President in relation with Foreign affairs. (i) Diplomatic Power: American President has been regarded as the Chief Spokeman of America in its relations with Foreign Govenments. The most important funtion of the President is to formulate foreign policy, which revealed in presicential messages and speeches. (ii) recognition of States: The President has the authority to recognize countries and governments. This he does simply by receiving diplomatic representatives of the countries concerned. (iii) Treaty Making Power: The President has the power to make treaties with other governments with the ratification of two third majority of senate. (iv) Agreement making Powers: The American President can make agreement with foreign states and it is not subject to ratification of Senate. (v) Declaration of War: The American President has power to declare war with the consent of congress. (vi) Termination of Hostilities: The American President has exclusive right to terminate hostilities. 6- EMERGENCY POWERS: (I) MEANING OF EMERGENCY: An emergency is a more extensive and serious crisis in which the whole nation is involved. (II) SOURCE OF EMERGENCY POWERS: The American Constitution is silent about the emergency powers of the president but the president can exercise certain powers during emergency. The Supreme Court has held that emergency does not create powers nor does it increase powers already gives by the Constitution. But the congress can confer upon the president many powers which he may exercise at the time of emergency. =>
ACCORDING TO JUSTICE CLARK:
"The Constitution does grant to the President Exclusive authority in times of grave and imperative national emergency. In fact to my thinking such a grant may well be necessary to the very existence of the constitution itself" (III)
KINDS OF EMERGENCY: President may proclaim two types of emergencies.
Noman khan
Page 41
UK and US constitutions (a)
Limited emergency
(b)
Unlimited emergency
(IV) LIMITATION ON EMERGENCY POWERS: The President has to act within the limits set by the constitution, otherwise his actions can be declared invalid by the Supreme Court. 7- IMPE." ACHMENT OF PRESIDENT: According to Section IV of Article II of U.S. Constitution the President shall be removed from office on impeachment for and conviction of treason, bribery or other high crimes and misdemeanors. (I) PROCEDURE OF IMPEACHMENT: The House of Representatives adopt by resolution, articles of impeachment charging the president with certain high crimes and chooses leaders to direct the prosecution before the senate which acts as judicial tribunal of impeachment. The Senate may convict the president by two-third majority of its member present and voting. President Johnson was the only President against whom impeachment procedure was adopted but even he could not be convicted. 8- CONCLUSION: To Conclude, I can say, that the President of America, is one of the most powerful personalities in the present day International world. As John Kennedy says. "It is the President who has to decide when to lead the congress, when to consult it and when to act solely.
Election of president 1- INTRODUCTION: The U.S. Constitution provides for the presidential form og Govt. the farmers of the U.S. Constitution spent a lot of time in deciding upon the method of electing the president. After a good deal of discussion they adopted a plan of indirect election of the President by electoral college which is now embodied in Article II, sections 1, 2 and 3 of the Constitution. 2- QUALIFICATIONS FOR THE PRESIDENT: The Constitution imposes three tests on a candidate for the presidency. (I) AGE: A Candidate must not be less than 35 years of age (II) CITIZENSHIP: A Candidate must be natural born citizen of the U.S.A. (III) RESIDENCE: A Candidate must have resided fourteen years within the country however it is not to be interpreted as a continuous and uninterrupted period of 14 years preceding election.
Noman khan
Page 42
UK and US constitutions 3- MODE OF ELECTION: The mode of election of U.S. President is the indirect one the constitution provided that the president should be elected by an electoral college consisting of as many presidential electors as is the number of members in both the House of the congress. 4- STAGES OF PRESIDENTIAL ELECTION: In practice there are following stages of the election of U.S. President. (I) NOMINTION OF PRESIDENTIAL CANDIDATES: The candidates for the presidency are nominated by the parties. Since 1832, the two major parties i.e. the Democrats and the republicans have established the practice of choosing their representatives at national conventions. (II) COMPAIGN: After the nomination of the Presidential Candidates and their subsequent election by their respective party conventions, nation-wide presidential campaign starts. => The parties set up national and states committees and open headquarters in two great cities. => Each party issues a campaign text-book which contains the party platform, the biographies of the candidates and other material required for propaganda purpose. (III) NOMINATION OF PRESIDENTIAL ELECTORS: The next stage is nomination of the presidential electors in the several states. These electors are important party leaders. (IV) ELECTION OF PRESIDENTIAL ELECTORS: The next stage in the Presidential election falls in November of the election year when presidential electors are to be elected. Section 1 of the Article II of the Constitution of U.S.A. deals with the election of presidential electors (Electoral College) (i) Number of Presidential Electors: The Electoral College consisting of as many presidential electors as is the number of members in both the house of the congress. At present there are to be 538 members in the Electoral College as the House of representative and senate consist of 438 and 100 members respectively. (ii) Representation Made by EACH State: Each State is to appoint as many electors as; it has senator and representatives in the congress. (iii) Method of Election: The method of election of Presidential electors has been left to be determined by the state legislature concerned. To begin with, they were elected by the state Noman khan
Page 43
UK and US constitutions legislature. Now they are elected by the people of the state concerned. (iv) Election of President by Electors: The presidential electors meet in the capital of each state on the first Monday after the 2nd Wednesday in December and Record their votes for the Presidential candidates. (v) Voting: A certificate of election is then sent to the chairman of the senate by each state on 6th, January, the congress meet in a joint Session, where votes are counted. The person securing an absolute majority of votes is declared elected. To secure absolute majority, a candidate must receive 270 or 538 votes. 5- INSTALLATION: After the election, the new president is installed into office on January 20 of the ensuring year by taking the oath of office. 6- TERM OF OFFICE: The presidential term is four years and according to the 22nd amendment a president can stand for re-election only once. 7- REMUNERATION OF PRESIDENT: The U.S. President receivers a salary of $ 200,000 a year and extra $ 50,000 for expenses, occupies and official resident and enjoy other privilege such as travel and official entertainment allowances. 8- SUCCESSION: The Article II, Section I, clause 5 of the constitution provides that if president 's office falls vacant due to his death resignation, impeachment or inability to discharge the powers and duties of the said office, the vice-president succeeds to his office for the remaining period of his term. 9- CONCLUSION: To conclude, I can say that in practice American president is directly elected by the people the presidential election campaign begins a year and four months before the election day, costing the country more than one billion dollars and is perhaps the longest and most complicated process. Amendment Procedure of U.S.A Constitution Introduction The process of Amendment in USA constitution is so rigid. It is discussed in Article V. The proposal of amendment may be by two third majority of congress or by the two third majority of states. And it must ratify by the three fourth majority of states. The Article V of constitution deals with the process of Amendment. Stage of Process There are two stages of the Amendment one is proposal and second is ratification. (i) Proposal When any one wants to amend something in constitution. He proposal it. There are two way of proposal Noman khan
Page 44
UK and US constitutions (a) By Congress The proposal of Amendment may be by any house of the congress. And if it passed by two third majority than it send to other house. After its passed by two third majority. Than the proposal is complete by the congress. (b) By States The proposal may be by the two third majority of the states for amendment. (ii) Ratification After proposal the bill ratify by the three fourth majority of the states. If it is passed by three fourth majority than acceptable otherwise null and void. The ratification may be three types (
a)
By state legislature
(b) By specific convention held in state for this purpose Time Limit for Ratification In the constitution, there is no time limit for ratification. It is said that one bill is ratified in eight years. After that, the time is fixed for three years. Merits and Demerits of Process (i) Merits It’s merit is that, the constitution is in the same shape. As its forth father brought it in 1787 at Philadelphia convention. (ii) Demerits (a) Rigid It is so rigid. Due is with only twenty seven amendment in the two hundred years. (b) Slowness of Process The process of amendment is so slow with that the decision which are needed instantly not decided. (c) Conservative Process It is the conservative process. It’s four father hot wanted is change it easily. Criticism Against Rigid Procedure of Amendment Procedure for amending American constitution is really very rigid. Therefore, this procedure has to face following criticism (i) Slow Procedure With the passage of time, need change, and it becomes necessary to amend law or constitution so as to meet these ever changing needs. But procedure for amending Noman khan
Page 45
UK and US constitutions American constitution is very slow. Due to its slowness, it usually fails to bring about amendments in time to meet ever changing needs. (ii) Presence of Repealed Parts Usually a part, which is repealed through amendment, is ousted from constitution. Contrary to this, repealed parts are kept inside American constitution and new amendments are described in the end of American constitution. Such situation makes it difficult to understand what parts have been repealed and what amendments have been made. (iii) Non-Participation of People No political party discuss its proposals for amending American constitution during election campaign. In this way, the American are kept away from this procedure of amending American constitution. (vi) Domination of States American constitution is a federal constitution, as far as its amendment is concerned, states have been given too much role as far as its amendment is concerned. Such domination of states creates those complications, which always prove inconvenience to amend American Constitution. Conclusion To conclude, it is stated that a number of amendments have been made to American constitution since its origin. However, such large number of amendments is not a proof that procedure for amending American constitution is very simple and easy. The reality is that most of these amendments have been made due to social, economic and political changes. Judicial Review under USA Constitution 1. Powers to interpret the constitution If a person thinks that the legislature has exceeded its constitutional power in enacting a law, he may challenge the constitutionality of the law in the Court. In deciding the case, the Court interprets the constitution to determine the constitutionality of the Act challenged. This power to interpret the constitution and determine the constitutionality of a statute is called the power of judicial review. 2. Scope of Judicial Review
Noman khan
Page 46
UK and US constitutions Judicial Review does not only apply to federal and State statutes. Its scope is wider. The constitution of the states, treaties made by the Federal Government and the orders issued by the Federal and State executive’s authorities come within its purview. 3. Constitutionality of the legislation In determining the constitutionality of the legislation, the Court is not concerned with the wisdom, experience or policy of legislation. Even if the Court considers the Act unwise and harmful to both the public and private interests, it is its obligation to sustain the act provided it is within the delegated power. 4. Supreme Court, the Guardian of the Constitution Supreme Court is the Guardian of the Constitution. The Constitution has demarcated respective spheres of action of all the three branches of government on the principle of Separation of Powers. Supreme Court has full authority to explain the sphere of all branches of government and that of the central and state governments. 5. Importance of Judicial Review Supreme Court has assumed a rather superior role over other branches of the government by virtue of its power of Judicial Review House of the Congress. While giving liberal interpretations to the Constitutional law, Supreme Court relied mainly on implied powers, i.e., the power of judicial review. 6. Origin of Judicial Review The Supreme Court faced the issue of judicial review for the first time in the case of ‘Marbury v. Madison’ which was decided din 1803. 7. Distinguished Between Judicial Review and Judicial interpretation Judicial Review is different from judicial interpretation of the statutes. In judicial interpretation of the laws, the courts Endeavour to find their meanings as understood by the lawmakers. The do not declare it unconstitutional and therefore null and void. They do not question the powers of the legislature to make the law. In Judicial Review, the courts interpret the constitution in such a manner as to see whether or not the act in question has violated its provision. If so, they declare it unconstitutional and therefore null and void, because it was ultra-vires of the lawmakers concerned, that is, they have exceeded the powers conferred upon them by the constitution. Noman khan
Page 47
UK and US constitutions 8. Advantages of Judicial Review The advantages of the Judicial Review may be summed up as under a. Protection of the Constitution By virtue of its power of Judicial Review, the Supreme Court can effectively keep all the government and their branches within their respective spheres, hence protect the rights of individuals and those of the institutions. b. Growth of the Constitution The Framers deliberately avoided going into the details regarding the organization and working of the governmental machinery. There are many words and terms used in the Constitution which can be interpreted in many contexts. Hence, Chief Justice Martial introduced “Judicial Review” based on implied powers. c. Veto Power exercised by the president President Truman used veto on the Congress laws 226 times; Roosevelt used veto 631 times and Cleave land 583 times. While use of veto power by the president was entirely based on political consideration. And exercise of judicial Review by the supreme court was motivated by constitutionality or otherwise of any law. d. Ultimate safeguard of individual liberty The Judicial Review has got great significance in American system. The system without judicial review may be incomplete. In a country having separation of power and a political system in which the executive is independent of legislative control and the legislature cannot be dissolved earlier than the expiry of its term the power of Judicial Review constitutes the ultimate safeguard of individual liberty. Conclusion By its power of Judicial Review the Supreme Court has always interpreted the Constitution to meet the needs of the times by evolving the doctrine of implied powers, it has made the centre strong at the cost of the states. Without the US Federalism might have failed in these times of growing centralism. It is also said that Judges are under the constitution but the constitution is what the judges say it is. Election of the American President 1. The Presidency is over and about the turbulence of democracy
Noman khan
Page 48
UK and US constitutions The Framers of the constitution intended to keep the Presidency over and above the turbulence of majority rule government. For this reason, they thought it proper to entrust in a constrained body, the order to choose the President. 2. Cabinet The American President chooses his cabinet, which is, best his team of advisers. It has been rightly characterized as the ‘President’s Family’, and the head of the family, the President, inevitably dominates them. The president and his Cabinet are not answerable to the Legislature. The President of the U.S.A is supreme in executive sphere. He exercise “the largest amount of authority ever and as wielded by any man in democracy.” 3. Foremost ruler in the world The United States Constitution vests executive powers in the hands of one individual the President of the United States of American. His powers are so enormous, wide and overwhelming that he has been described as the ‘foremost ruler in the world’. 4. Qualifications In order to contest the election for the office of President and vice President, a candidate should fulfill the following qualifications; He is to be a natural born citizen of American. A candidate should not be less than thirty five years of age. He must has been a resident of American for at least fourteen years (continuous residence is, however, not necessary) 5. Presidential Nomination A national committee of each party calls its own convention and makes the requisite arrangements. The calls are issued in January or February and the conventi8ons meet during the summer. 6. A National Convention at work The thousands of delegates are grouped on the floor by States. An interim chairman is picked. An committee is then appointed in order to scrutinize the credentials of the delegates. Nominations for the office of the President are announced by the Chairman to be in order. The role of States is taken in alphabetical order. After all the nominations have been done, voting beings by a voice vote. When the polling
Noman khan
Page 49
UK and US constitutions goes on, the weaker candidates drop out and votes are shifted around on successive ballots. One roll call follows another until decision is arrived at. After the selection of the Presidential candidate, party nominee for the VicePresidency is chosen. This is followed by a nation-wide Presidential campaign. 7. The Nomination of Electors The next step is the nomination of Presidential electors in the several States. 8. Election of the Electors Every citizen of 21 years of age or more, unless disqualified on certain ground, possesses right to vote. Each of the States chooses as many electors as it has Senators and members of representative in Congress. Presidential electors are chosen in each State as a group and not as individuals. The electoral college is to consist of
535 members. A Presidential candidate can get elected only if he
captures 269 votes of the electors. 9. Election of the President by the Electors The Presidential electors meet on the second Wednesday of December in their respective state capitals and their votes for Presidential and Vice-Presidential candidates. 10. Transmitting and counting of Votes The President of the Senate counts the votes and announces the result which is hardly a guarded secret. 11. Procedure in case no candidates gets absolute majority If no candidate secures the requisite majority, the issue is decided by the House of Representatives which elects by an absolute majority of votes one of the three candidates obtaining the largest number of electoral votes. The members of the House vote State wise, each State having one vote irrespective of its population. This procedure was adopted thrice. 12. Tenure The President is elected for a period of four years. A President can be re elected for a second term and invariably the President in office is elected for a second term. 13. Inauguration of the new President The newly elected President is inaugurated on 20th January. At the inauguration the new President takes the oath of office which is administered by the Chief Justice of the Supreme Court. Noman khan
Page 50
UK and US constitutions 14. Salary and allowances The salary of the President originally was 25,000 dollars a year. It has been revised from time to time and since 1969 it stands at 200,000 dollars a year. Besides, he is to get 100,000 dollars as a general expense fund. 15. Privileges The President enjoys many privileges. He can’t be arrested on the basis of any charge nor can be summoned in a court as an issue. He must be denounced by the Congress.
Noman khan
Page 51
UK and US constitutions
Noman khan
Page 52
