Updated: Thursday January 14, 2010/AlKhamis Muharram 29, 1431/Bruhaspathivara Pausa 24, 1931, at 07:00:39 PM
Why we study constitution of
Executive settles the disputes and makes the rules. Distribution of the power is maintained among the federation and units and separation of the powers between institutions.
Salient Features of the British Constitution:
Although the British constitution is not compiled in a book like
2. Evolutionary: It is not rigid but gone through from the changes of all the times. USA Constitution has a date and place when it was ratified contained particular contents but on the other hand British Constitution has not these qualities.
3. Supremacy of Parliament: Because there is no written constitution so there is no limit on framing the laws. There is no limit on parliament to enact laws. No difference between constitutional law and ordinary law. Simple majority passes both types of laws. There is neither superior law nor inferior or subordinate law. Parliament can repeal every sort of law or Act. Present parliament is supreme parliament. She is not subject of any Law, Act, principle. Parliament is not absolutely supreme. She can repeal the Indian Independence Act, 1947, but there are many moral, international law and other restrictions to do this practice.
4. Rule of Law: It means that society will be run according to the rules and regulations. Every citizen can do everything, which is not prohibited by the law but parliament has to follow law. Parliament can do everything, which is allowed by the law. Both statements have same meaning. Law is formed to govern the people and not the sovereign.
5. Conventious: Unwritten practices, which control the discretionary powers of constitutional office holder. Head of State will act on the advice of the Prime Minister. But the name of Prime Minister is not mentioned at all anywhere. Prime Minister is most important figure of the system, but his name is not used at all. King is Head of the State, Selections of the Head of Government, Selection of Cabinet, based on conventions.
It is not rigid as the constitution of
7. Bicameral: It means it has two houses in parliament, i.e., House of Lords and House of Commons. Members of the House of Commons are elected through the process of elections democratically, while members of House of Lords are inherited. There are retired judges, politicians, bishops, technocrats, eminent scientists, players, and writers etc.
Single system of government. There is no other independent government. In
9. Constitutional Monarchy: Monarchy is inherited and constitutional. King is Sovereign but all the powers rest to the Parliament. King has not dominated role.
10. No strict separation of powers: All the organs of the State are not separated except the judiciary.
Sources of British Constitution: Sources means what is material on which British Constitution is based.
There are three sources on which British Constitution is based, i.e., Legal Sources, Conventional Sources, and Advisory Sources.
1. Legal Sources: There are three legal sources, i.e., Statue Law, Case Law, and Customary Law.
a. Statue Law (Parliament Acts): All the laws, which are passed by the British Parliament, are called statue law, like Bill of Rights 1668 – no tax can be levied or no army action can be taken without permission of parliament. No one can suspend any law without any reason, Act of Settlement 1700 – all the organs of the government will be independent particularly judiciary will be independent, Parliament Act 1949 – how the parliament will be formed and what are the rights of the Crown, Magna Carta 1215 – it the bases of the rule of law and also contains the rights of the people in a democratic set up, and Crown Proceeding Act 1947 – a person can sue the government
b. Case Laws – means judge made laws: It contains to Common Law and Interpretation of Statue Law. Common Law also has two kinds, i.e., Local Customs and Common Customs. Local customs are those that vary place to place like law of inheritance, marriage etc., and Common Customs are those, which are similar all over the country like Finance Act, Tariff Act, Traffic Rules etc. As far as interpretation of statute law is concerned they give some meaning, or explanations to the statutes.
c. Customary Law: Customs that are not made part of law. It forms basic structure of British constitution. British constitution does not vest power to the organs of the government but there are certain customs that determine the powers of the organs of the government. King is ruler, courts decide the cases, working of parliament, parliament itself is a Court, basic institutions and the parliamentary proceedings, supremacy of the parliament, both houses of the parliament are master of their business are similar kinds of the customs. These customs are not written elsewhere but it fact that all the business of the British society is being carried on by the customs.
Customs are immemorial of nature and have force of law. Customs are enforced as law. These are not found in books.
2. Conventional Sources: Political practices/usage, which have been adopted to curtail/reduce the discretionary powers of the king/queen or other high officers. Queen has many powers but practically she does not exercise such powers, and the elected people exercise them. Selection of Prime Minister is convention. Every job is done by the queen/king on the advice of Prime Minister. Leader of the majority party in House of Commons is elected, as Prime Minister is also a convention.
All other ministers are also appointed by king/queen on the advice of Prime Minister.
All ministers are collectively answerable to the parliament. No one can speak against government. If anyone has any objection can discuss in party meeting; otherwise he has to resign before he speaks against the government policy.
If vote of no confidence is passed against Prime Minister, he may either resign or may dissolve the House of Commons for fresh election.
Parliament will meet once in a year.
Prime Minister draws his salary as Secretary and not as Prime Minister because Prime Minister has no legal status while Secretary has legal status. Parliament itself is conventional.
These all are conventions of British Constitution
Conventions are those which are:
1. No immemorial origin;
2. Product of last 250 or 300 years; and
3. Have not force of law.
3. Advisory Sources: These are those which found in books, journals, and articles.
Rule of Law means principles of general application given by state to control human behavior. It is a body of principles, recognized and applied by state in the administration of justice. Any principle, which governs human behavior generally, is law. Every law curtail, restricts our liberty. Why we accept law, we are slaves of law.
In simple term it means that all the people should be governed and controlled according to principle and should no discrimination among them at all. It has been generally in our civilization that people prefer rule of law and they are governed by rule and not by the will of a single one. In primitive societies principles were provided by the customs. By using customs law was made. They had legal status. How one can dispose of his property, how the price is determined, all were dealt by the customs. Customs were used to provide principles. Customs could not be changed easily and sometime they could not be used to provide principles and failed. Customs are changed very slowly; even there is not change in 100 years. All was dealt with old style. If change is required, then customs are failed to accompany the social needs. Customs had no role after a long period. When customs diminished then religion came and filled in the place of customs. Apostles came with revelation and they provided moral conduct. This rule of conduct was based for the controlling of human being. The King/Queen governed once a time people. They were superior of the society. A new era emerged. Society was peaceful and customary law was available to control people. All was OK. Society was gaining strength. All were free to choose their profession. They joined different professions. A new set up came with new values that people would be governed by the will of single one person and by the law and principles. Concept of natural law emerged. It was higher than the man made laws. There was no defect in religion. People were governed by the natural law and not by the will of ruler. Now concept arises:
1. No will be tried in two cases at a time.
2. Law of evidence emerged.
3. Safeguards are provided for the retention of property.
4. Impartial judgement came into existence.
5. No torture will be used for getting of confession, etc.
With the passage of time, natural law gave national law. Internal nature was same while external nature was different. Every state in modern time has right to have her-own law. Natural law made national law. Natural law comes to focus of national law. Now people respect the parliament because it is composed of the people of their own representative, they have authority; they act according to the wishes of the people. Parties follow manifestos. This system is better than of judges who sit in a closed room and decide the fate of people without knowing their wills. New political system contains upper and lower houses, parties, oppositions, and people wishes. Now another problem came into being. Representatives come from upper class and they make laws for upper class negating the lower class of labour, tenants, common people etc.
To over come this situation supreme law is made. It is reflection of the wishes of the people. It makes the people stronger and guarantees the rule of law.
If there is no rule of law, there is always uncertainty. Law protects the rights of individuals. There is no rule exists in jungle. Cat may catch mouse and dog may cat. There are so many difficulties and problems in the rule of law to the law-breakers. Law of marriage has many customs. Simply marriage is agreement between a couple with consideration in the presence of two witnesses. But there are so many formalities, i.e., engagement, Hina Customs, Marriage Ceremony, valima, or invitation after the marriage etc.
Religion is also a source of law. It has played very important role in society. There are many types of laws, i.e., natural laws, and judge made laws, man made laws, common law etc.
It is not a solid concept. Different writers tried to give it different meaning in different time. There was a move to propagate natural laws. They are above human being and man made rules of rulers. First of all there was religion who revolted against man made laws and then advocated true rule of Allah, law which is higher than man made law. God had sent rules through Apostles through the centuries to make human being man as the most eminent of created beings of mankind. General consensus of the people was religion. Musa revolted against Pharaoh. Such rule of law is important than of man made. Aristotle also said that the rule of law is better than rule of man. The king is under law because law creates him. King is not rule but subordinate of higher law. People started struggle against king, then supported the opponents of king. They expounded the concept of rule of common law. New theory establishes that parliament is law making authority. Acts of parliament are continuos today and subordinate legislation also. In many countries British constitution has been adopted. When we take rule of law, take supremacy of constitution. Theories of all times or era contain one thing common that is rule of man. Most of colonies have being disappearing slowly. No monarch is followed. They are nothing than ceremonial head now. Now he never rules. In all countries power has been vested to people. Monarchy is giving away today. People think that what quality lies in a person who is sitting in capital? Concept of democracy has emerged. Democracy is the historical development of rule of law.
People should be governed, regulated, or ruled by law. Law has some uniform principles. They are predetermined. Everyone knows what is crime, i.e., theft, robbery, dacoity, rape, drinking etc. And everyone knows what evil is inflicted in case of commission of such crimes. What is prohibited and what is allowed. These things are not determined after commission of the offence. If standard is laid down that whoever will get 45% marks will be declared pass, 60% marks will achieve first division then everyone, will definitely try to follow rules otherwise disparity will occur. Duty of law is predetermined.
It is also general in application and not meant to individual. It is also outcome of long and long process. It excludes the unreasonableness and unfairness. People should be governed by the law and not by the individual. Later on Aristotle advocated the rule of law being better than individual. Coke of England insisted on the dominance of law over the king. American constitution emphasizes on due process of law, which means not rule of law, but only good laws are regarded.
However concept of law kept changed time to time with natural law and divine law. Generally people’s thinking are towards good laws. People’s emphasis shifted from natural law to national law. A national state established. Now law is created by state itself. In the days of Coke, emphasis was on common law, and judge made laws.
After 1688, supremacy of parliament established. Now in modern times rule of law means rule of constitution. Constitution is considered superior than all laws. Professor Dicey expounded this theory in Law of the Constitution.
1. Everyone is subject to law. Government is under law. King is subject of law. No one is immune. All have to follow law.
Everyone, in the eyes of law, is equal and
discrimination has been disappeared. Poor or rich, white or black are not
subject. He compares it with French system where separate courts are
established to deals government and civil cases separately. While in
i) Law and order is better than of anarchy. It must be achieved. Government must have power to maintain law and order. It brings peace. Why it is necessary and given top priority? It provides atmosphere to do certain types of things. If teacher is delivering lecture and students are quarrelling or conversing with each other, what will be the consequences of the lecture? All the progress, which we have made so far, is result of Rule of Law. Where there, Rule of Law is maintained, there it brought prosperity, economic growth, and development etc.
ii) A government must be regulated by Rule of Law. She must follow these laws. If there is no Rule of Law is maintained, courts cannot decide the cases at liberty. This is the basic difference between the democracy and dictatorship. Government has to take actions as per pre-decided rules. Government becomes ineffective if the proper remedy is not provided against the wrongs. This object cannot be achieved until or unless force is not applied. Independent judiciary is necessary.
iii) There are three certain universal standards relating to the relationship of state and people:
i) Every offender is punished once in a crime and no double jeopardy.
ii) No torture is applied for confession and impartial trials are carried on.
iii) Burden of proof lies on state, being victim in criminal cases. Hearsay evidence is not allowed.
We insist on quality of law. Our process of law means rule of good and fair laws. Rule of Law has universal standards. It has been developing in local context. It was first natural law, and then it was converted into common law, later Acts of Parliament, and now due process of law.
European courts deal the cases as per European conventions. In Delhi Declaration, in 1959, the study of Rule of Law was conducted and suggested two principles:
i) There must be politically effected government for socioeconomic development. Effective government and not the excellent government necessary for socioeconomic development.
ii) There must be adequate control over the government. Article 5 of the Pakistan Constitution provides Rule of Law.
Conventions of the
Definition: Conventions are the unwritten rules of constitution, practices that regulate discretionary powers of state authorities at highest level.
King had executive, judiciary, and legislature powers but later they were separated among the other organs. Now parliament is the organ responsible for law making and most powerful particularly after the revolution of 1688.
Executive is under control of Queen so far. Foreign affairs, nominations and welcome of high commissions, welfare, nomination of religious leader or head of the church, social set up etc. are the powers of King or Queen.
right of law making, tax, and sanctioning of army. King desires to rule of
parliament. Queen appoints ministers, senior member of the house of common as
Prime Minister. Power has been transferred from King to Parliament. Power speaks
Examples of important conventions:
1. Prime Minister: Who will be the Prime Minister? People know very well during the elections that who will be. What will be the position of the Prime Minister? How other ministers will be elected? The Queen offers leader of the majority party as Prime Minister. He is nominated from House of Commons. He knows the time of election.
2. Sovereign: King or Queen or Monarch acts on advice of Prime Minister. He or She cannot do anything at own. Advice of Prime Minister, Cabinet, Minister, or Privy Council is given to crown. All administrative matters are dealt on the advice of Prime Minister or Cabinet.
3. Government of Prime Minister: All acts are done on the advice of Prime Minister.
4. Ministers are members of the parliament: Queen nominates them on the advice of Prime Minister.
5. Ministers Act Collectively: Decision of cabinet is acceptable to all. If anyone disagree, he must resign and then criticize. No one can disagree.
6. Cabinet (Prime Minister and Ministers): They are responsible regarding all the acts in parliament. Mistake of one is mistake of all.
7. Parliament’s removal: Parliament can be dissolved upon vote of no confidence. There are two way outs, either government resign or dissolution and holding of fresh election.
8. Annual Meeting: Parliament should meet at least once in a year otherwise no finance bill will be passed and no tax will be levied.
9. Dissolution of Parliament: Parliament may be dissolved on the advice of Prime Minister and fresh election may be held. Prime Minister remains Prime Minister until successor is elected.
Role or Objectives or Functions or Purposes of Conventions:
1. Check and Balance in the System: Crown and Prime Minister are governed by the conventions. All the powers are vested to Crown who is obliged to follow the advise of Prime Minister. Prime Minister is the leader of majority party in House of Commons. He always takes into consideration the wishes of party members. Party members, too, take into consideration the wishes of public. If opposition party or people want to get rid of government, Queen may dissolve the government. If Prime Minister resigns, all the cabinet resigns.
of Constitutional growth: Since the British constitution is unwritten, so
there is great room to cover its requisite portion with conventions. People of
3. Bridge between democracy and monarchy: Queen has many rights but practically she is dependent of Prime Minister’s advice. Prime Minister is the person of majority party who makes and run the government. In this way conventions are the feelings of old days.
4. Wishes of the People: People always want change. Similarity gives disgust to them. But it is fact that they do not want to leave their heritage. They want innovation without affecting the foundations. Convention is the only way to achieve their objectives.
5. Advantages of Monarchy: Queen is impartial ruler and acceptable for all groups of the society. In the absence of government she runs the government functions. There is no need of elected representative. She gets control of government when the cabinet is not in operation. She is head of the state. No one group criticizes her. These principles are the product of conventions.
Constitution: In contrast to USA Constitution that is more rigid,
conventions provide flexibility to make the political and social system
flexible for the peoples of
Supremacy of Parliament: Parliament is a product of long standing of historic struggle. There are certain stages in constitution, which have reduced the powers of king and increased the powers of parliament. Some of them are as follows:
1. Proclamation and Ordinances: Proclamation is the Act of Parliament while ordinances are laws made by executives. All the powers of law making either proclamation or ordinances were vested to king, i.e., an individual. Later justice Coke gave his ruling in judicial decision that king has no authority to make laws in the form of proclamation and ordinances. So courts have reduced the powers of king consequently it has increased the powers of parliament to make it superior.
It is an important power of any government of the world. Same situation is with
Law/Military: In earlier time, king was the Head of Army. This was the
inherited position and member of royal family were acquired this position step
by step. King had power to send troops to snatch territory to rule over. He
lost inheritance in parliament affairs. In 1628, by Petition of Rights, it was
prohibited that king may move troops during the peacetime within country. It
was held in 1688, that no army could be maintained without consents of parliament.
There is no permanent army in
4. Exemptions and dispensations: Law is given by parliament and king has no authority to make laws. It was exemption to king to suspend the certain part of parliamentary law to enforce on certain people. This right was available to him and was frequently used to support his special persons. Now this right has been taken away.
6. Executive powers: Ministers are responsible collectively. Cabinet exercises all powers of government, which is part of parliament.
Examples of the supremacy of British parliament:
1. Life of parliament: It was governed by Triennial Act. It was liable to be dissolved on discretion. Its life was then three years. A law was passed to extend its life, in 1715, for seven years. Then again its life was reduced upto five years, according to Parliament Act, 1911. Septennial Act, 1715, made its life seven years. Now parliament at its on liberty to reduce or extends her life self at any time.
2. Succession of crown: It means who will be next of king or who will take responsibilities of throne after the death of king. Old male descendant takes over kingship. This rule is named Primogeniture. Male descendants are preferred over female. Females are not totally deprived. If there is no male alive, then daughter is made Queen. Act of Settlement, 1700, and Act of Abdication, 1938, have resolved this matter. If king is issue-less, then kingship moves toward to older brother and inherits in his family and cannot be diverted.
4. Prerogatives of crown: Many discretionary powers are vested in crown, but many of them have been taken away. Bill of Right, 1688, has taken away most of powers of crown.
5. Political influence: Political conventions have reduced the power of crown and given to parliament. Most of conventions have become Acts, rests are still conventions, and some of them are vested to crown and he off and on exercise them.
Are there any limitations on parliament: There are certain practical limitations which parliament may face. These are as follows:
1. Public opinion: No one, even dictator, can go against strong public opinion. Parliament is composed of elected people who are supposed to act upon wishes of people. It respects people, but the Act of Parliament cannot be challenged.
2. Party manifestos: At the time of election every party contests the election with the aim that they will do certain things if they come into power. They cannot deviate from their manifestoes. If they go against their commitments, they have to face their results. Most of members will lose their seats in forthcoming election. The most popular slogan of democratic government is:
Democracy is form of government of people, government by people, and government for people.
Of cannot be changed with off, by cannot be changed as buy, and for cannot be changed as far.
4. Rights of the people: There are certain rights of people, such as, property, personal freedom, education, marriage etc. These rights make limited the powers of parliament.
5. International relations: Today nations live in society as a country. No one, even richest, can go against international law.
Parliament has central position and has
positive role in
House of Lords is upper house and non-elected. Its composition was simple. All inheritor members are either appointed by king or acquiring membership by inheritance. Now other members are included. Today it is quite diverse. Hereditary members are 850 or 860. Spiritual Lords have fix nominations of 26. They belong to church. Life Lords are in between of 230 to 240. They are product of Life Peers Act, 1958. They do not inherit their membership. They are the persons who do not want to come to parliament or they cannot come through democratic process. They are eminent and beneficial for government and society. Law Lords are also fix to 11.
Reforms: This is non-democratic house. It is just consultative house. According to Parliament Act, 1911, it cannot reject any bill passed by House of Commons. It can just delay bill for two years if it is ordinary bill and finance bill can be delayed for two months. Parliament Act, 1945, has also reduced this duration of delay from two years to one year and two months to one month. This house has no right of vote. Purpose to delay the bills is to think about it in calm environment. It is discussed at all in the best interest of public.
Although it has no powers, but it performs some important functions:
1. It is a chamber of parliament passed by House of Commons.
2. Correction: It provides chances to cool down emotions and political sentiments.
3. Simple delay: It cannot revise the bill but simply delays the bill maximum for one year or one month. It is also called delaying house.
4. Introduction of non-contravention public bills which include common benefit of public. Bill that is contrary to public interest or opinion will never see the light of the day. It will be killed.
5. Private bills can be originated in House of Lords by private members.
6. House of Lords is forum where free and full discussions take place on political, social, economic, and international issues.
Lower House is highly political and short debating house.
Crown and its prerogatives: There are two classes of crown prerogatives, i.e., personal and political prerogatives.
1. King can do no wrong:
2. King never dies:
3. King never infant: However he is one day old or born soon after the death of king, he has right to be king. If he is minor, how he runs the matters of government? There is law under which a tutor is appointed who acts on the behalf of that young boy. Despite a tutor or committee he runs the matters of government, even actually he is not the king.
4. Acts of parliament are not applicable to him unless specifically mentioned in law.
Political prerogatives of British Crown:
1. Dissolution of parliament:
2. Appointment of Prime Minister and Ministers:
3. Appointment of Civil and Military Officials:
4. Appointment of ambassadors:
5. Signing treaties:
6. Declaration of war and peace:
7. Acquisition of property:
8. Maintaining of law and order:
9. Signing bills:
10. Hereditary and life lords:
11. Summoning the parliament:
12. Appointment of judges:
13. Appeals from overseas:
14. Head of the army:
15. Head of the clergy (church):
King does not exercise these powers himself individually. He requires the advice of Prime Minister.
Parliamentary System of Government:
1. Evolutionary: British parliamentary system came into being through the process of conventions. After signing the Bill of Rights Act, powers were transferred from King to Parliament.
2. Based on conventions: British parliamentary system is based upon conventions. Powers are transferred from Monarchy to Parliamentary system. Nomination of the Prime Minister from the majority party is the convention. Address of the King or Queen is written by the Prime Minister is also a convention.
3. Democratic: Government is answerable to parliament and people.
4. Party based: British parliamentary system is based on party system. Every party takes part in the election. They put their Manifestos before the people at the time of election. They are independent in the nominations of their candidates.
5. Responsible government: Government is responsible for the act of its members of parliament. Act of one minister is act of the government.
6. Joint responsibility: British parliamentary system is based on joint responsibility. Mistake of one minister is the mistake of all cabinet. Prime Minister has to suffer if there is any slot.
7. Dominance of House of Common: At the time of beginning of the parliamentary system both houses had equally responsibility and were equal in their business. But later on House of Common delegated more powers and the powers of the upper house reduced time to time. Now upper house has very nominal role in system. Upper house cannot refuse or reject the bill passed by the Lower House. They can only delay bill for one month if it is monetary bill and one year if bill is related to non-monetary matters.
separation of power: There is no separation of power like in
9. Flexibility/unwritten: Since the British system is evolved through conventions so it is flexible and unwritten. There is very easy system to modify the law.
10. Pre-eminence of Prime Minister: Prime Minister is leader of the majority party. He has the mandate of people and has considerable influence on party. He is spokesman of party and conveys the messages to king and in public, press, social level, and any other form. He appoints all ministers. He has leading role. He advises to king. Nothing can be done in which he has no consents. Prime Minister is the person who chairs meetings of cabinet. He decides time of meetings, agenda, and discussion. He closes the meetings. King or Queen act on the advice of Prime Minister. Prime Minister conveys all the discussions to king. He can individually convey his opinion to king. He did not bring many matters in the cabinet. What is to be discussed and when, it is upto his sole discretion. He has many discretionary powers. Every Tuesday Prime Minister and King or Queen meets privately.
General principles of procedure: Both houses are masters of their own business.
Courts do not interfere in the working of parliament. Money bill is originated only in House of Common.
Types of Bills: Bill is the proposal to legislate the law.
1. Public Bills: Related to general system of society, like law of amendment, criminal system, change in law, education, change in taxation etc.
2. Private Bills: Deal with particular issue or individual like Indemnity, Railway, Airline, Corporation etc.
3. Hybrid Bills: Mix types bills.
4. Private Members’ Bills: Initiated by the members other than government members.
1. Proposed by government member.
2. Goes to cabinet.
3. Parliament, introduction, law department, legal drafting, experts.
4. Lower or Upper Houses.
5. Money bill only in House of Common. All the rest bills may originate in either house.
9. If upper house disagrees, one-month delay in case of money bill, and one year delay in case of ordinary bill.
10. Assent of King or Queen: Finally King or Queen sign the bill. Bill remains bill and cannot converted into Act or Statute until or unless King or Queen signs it. Since four hundred years King or Queen have never refused to sign any bill. So it is convention that he or she will sign the bill passed by the government of people.