Updated: Thursday January 14, 2010/AlKhamis Muharram 29, 1431/Bruhaspathivara Pausa 24, 1931, at 07:00:41 PM
Course Contents:
Law is rules and regulations
made by legislature to do something.
What is constitution:
Those principles that form or set the political set up that is called
constitution. It deals with structure of government, its selection, and right
of the people, settlement of disputes.
Some kinds of laws:
Specific, local, public, private, personal, labour, and civil laws.
Constitution
of
Law
forms constitution and constitution forms law. Supreme power is law-giving
authority. Every order is law given by the supreme authority. Order of the
sovereign with sanctions is law. Law is a command or order of sovereign with
sanctions. Punishment is given upon disobedience. Basic purpose of the law is
to organize the society and to maintain the order in the society.
Law
has two types, i.e., Constitutional law and ordinary or statutory law.
Constitutional law is
that which deals with legislature, executive, judiciary, federation, and
fundamental rights (in nutshell deals with government structure), passed by two
third 2/3 majority, and complied in a book, and also called supreme law.
All
other laws are passed with simple majority. If eighty members out of 100
members parliament are present and quorum is achieved, even then 2/3 majority
is required to pass or amend the constitution, i.e., 66 members, but simple
majority is required if an ordinary law is to be made, i.e., 41 members
majority.
Silence
of the people is also the acceptability of the government. How the institutions
are formed. They are formed under the law, which state the rules and
regulations of the institutions. Only executives are government. Law, which is
not acceptable by the legislature, is not law. Provinces are completely
independent in the confederation system of state.
Division
of power is found in Centre or Unitary, while separation is power found in
Institutions. Litigation is proceeded in civil cases while trials are proceeded
in criminal cases. The three organs of the government run entire functions of
the State. Dark ages are between sixth to fifteenth century. Declaration of
Salient Features of American Constitution:
1.
Single Document. Not scattered.
2.
Brief. 7 Articles, 10 or 12 pages, 4,000
words, ½ hours to read.
3.
Written Constitution.
4.
Limited Government. Concept of division of
power to each of organ of government. All organs check to each other.
5.
Popular
Sovereignty: President, members of House of Representatives and
Senate, Judges of Lower Courts, Attorney General, Public Prosecutor, Chief of
Police etc. are elected. No collective responsibility of the members of
executives.
Adversarial Form of Judiciary:
In this form of judiciary degree for judge is not required and people elect
them. Personal knowledge of judge has nothing value. Absolute justice is not
necessary.
Inquisitorial Form of Judiciary:
In this system law degree for judges is necessary. Suo Moto.
Separation of Power:
Theory that every state has three government functions, i.e., to make law, to
enforce law, and to explain law. This theory was presented by Montesque of
If
one organ exceeds from his authority, public will decide at the time of
election so that separation of power may establish. President is elected
directly by people. He is not answerable to congress. He cannot act if congress
do not allow him by law. Every act done by public authority must have
authorization by law. People are allowed to do everything except which is
prohibited while government can do only which is allowed by law. Executive
performs execution of law. President cannot do anything until congress allows
him. He has power of veto to affect congress but congress has power to
re-decide regarding the law, which has been veto by president. President cannot
veto if two third majority passes the law second time. Parliament cannot make
law, which is against constitution, if so, Supreme Court can repeal them by
judicial review. If judge commits corruption, senate may trial him. If Court
explains the law differently, congress can make another law with new
explanation. If a organs is corrupt, they have to go to public after each two
years, so there is powerful president, powerful congress, and powerful
judiciary. Everyone and everything is within control and checked by others.
Everyone can be impeached. One man cannot hold two positions at a time.
To
make amendment in constitutional law, also requires ratification from majority
of states. States assembly is liable to ratify the bill/amendment rather than
governor.
If
a state is to be parted or the change of name is required, then 2/3rd
majority of the concerned is required. There is strong provincial autonomy in
The
Supreme Court (but not the constitutional amendments/laws) can review all the
ordinary laws. Supreme Court interprets the constitutional law. Any law
contrary to constitution may be void. Law is not that law that is published or
printed in paper, but which is recognized by the courts.
Federation
is responsible to regulate commerce, but it has been interpreted differently in
different time. Law is remain unchanged while its application has being
changed.
Judicial Review: When
the US Constitution was made, two laws were recognized, i.e., Federal Law and
State Law. 2/3rd majority made as Supreme Law of the State Constitution. There
are two kinds of amendments, i.e., ordinary and constitutional amendments.
While third amendment it is recognized in state law.
In
1789 a law was passed under the name of the Judiciary Act, 1789. It was said in
US Constitution that all the judiciary powers are vested to Supreme Court or
the other courts that will be made. There are three levels of Court, e.g.,
District Courts, Circuit Courts, and Supreme Court.
Judicial
Review is really a product of the reasoning of the Chief Justice John Marshall.
He first announced it in clear terms in the celebrated case.[1]
President Adams appointed Marbury as a justice of peace in the
In
Founding
fathers made the constitution and divided the powers. No one can be arbitrary
among the organs of government.
Qualifications of the President:
1.
He must be born in
2.
14 years resident of
3.
35 years of age.
Conventions:
1.
All president were Catholic.
2.
No woman has been president.
3.
No black or Negro has been president.
4.
Only two elections. Now it is law.
No
membership of congress is necessary to become president of
Elections of the
Powers and Functions of the
1.
Executive powers.
2.
Legislature powers.
3.
Judicial powers.
4.
As head of US Forces.
5.
Foreign affairs powers.
6.
Appointment powers.
First
of all we will discuss his executive powers.
1.
Executive
Powers: Political system of US is based on the theory of
separation of power in all the three organs of the government, i.e., law making
is vested to congress, while interpretation goes to judiciary, and enforcement
of the law is the duty of executive. There are three aspects of the
He is responsible to run
all the governmental matters, which belong to federal government. These powers
are called administrative powers. He is also responsible to enforce laws made
by legislature. President is not a single man, his all cabinet and office of
president form an institution, which is named president. He sends advises to
congress and affects it. Judiciary also seeks toward president for judicial
matters. Congress cannot make all laws, some of her powers are delegated to
president, that are called delegated legislation. President enforces all laws
made by congress and judicial decisions as well. Executive functions are of two
types, i.e., professional and political. Both are dependent on president.
Person who is called minister in parliamentary system is named as secretary in
2.
Legislative
powers: President affects the process of law making by
sending advises to congress. At the beginning of every year, he delivers the
union of state address to senate, but 90% citizens listen the address. This
address includes the principles and priorities to adopt in sessions of congress
for law making.
He
may initiate the law making process through the members of congress from his
party. This is highly influencing method. He also can veto laws for
reconsideration. But congress again processes the law and passes it with 2/3rd
majority and this needs no assents of president. He can suspend the enforcement
of law due to non-availability of funds. Maximum party members in senate that
satisfy him in his working smoothly being no opposition is faced.
3.
Judicial
powers: He nominates the judges of superior courts. Age of
retirement is not fixed. They can be voluntarily retired with the pension
benefit. Senate ratifies the appointments. Normally all appointment are
ratified if are made with the advice of concerned senators. Executives enforce
decisions of judiciary. Judiciary supports to executive. There are 98 district
courts, while 36 circuit or courts of appeal, and one Supreme Court in
4.
Foreign
policy: President can make treaties outside the country,
but they require ratification of senate.
5.
Appointments
of ambassadors are made by president but require also ratification of senate.
If president sends any special mission, does not required ratification of
senate.
6.
Declaration
of war is subject to ratification of senate. There are no
emergency powers in
There are some differences in
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1.
Membership of parliament or congress is no
necessary even prohibited. |
1.
Membership of parliament is most important
even compulsory. |
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2.
Senate ratifies nominations of ministers
or secretaries made by president by 2/3rd majority of the present
members. |
2.
Ministers are selected and not elected by
Prime Minister. |
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3.
No Nominations without advice and consent
of senate. |
3.
Parliamentary approval is not required. |
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4.
American president is talent hunting and
can take anybody in cabinet any ordinary person from street. |
4.
Talent is not important. Anybody cannot be
taken into cabinet. |
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5.
Cabinet is not answerable to congress. |
5.
Cabinet is responsible to answer each and
every question to parliament. |
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6.
Not answerable to people. |
6.
Answerable to people also at the time of
next election. |
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7.
No collective responsibility. |
7.
Strict collective responsibility. Mistake
of one minister’s is mistake of all ministers. |
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8.
May differ from the opinion of president. |
8.
There cannot be dissenting opinion of the
ministers. |
|
9.
Cabinet meetings are not necessary. |
9.
Cabinet meetings are so necessary. |
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10. No
advises and no consultation with ministers. |
10. Consultation
is very important. |
Vice President
has no role in the
He
has two minor responsibilities, i.e., to preside the senate meetings and to
complete the term. He cannot take part in the discussion of senate. Neither he
has right of vote in election in senate, nor members of the senate like him.
Senate is self-governed institution. If senate needs, may elect one of them as
chairman of senate. If president offers then he may come in meetings. He is not
provided residence. He only draws salary. He is just ceremonial head as the
King or Queen in British political system is. He is elected for four years. He
should be natural born of
Legislature or Congress:
Upper
House is called senate. Its members are elected on the base of equality. Every
state either small or large sends two members in senate, being equal share.
Term of senate is six years. 1/3rd. Members get retirement after two
years. Only members of first senate did not complete the six years’ full term.
2/3rd. Completed only two years and four years term. Since then all
members complete six years term.
Powers of Lower House:
House of Representative makes laws, constitution, and elects speaker and deputy
speaker.
Comparison
of Speaker of House of Representatives of
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1.
There is competition and majority party’s
head is chosen. |
1.
Both parties choose him. |
|
2.
Party representation and protection of
party. |
2.
No party representation. Equal protection
of all members. |
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3.
Remains party member. |
3.
No remains member of party. |
|
4.
Faces competition on second election. |
4.
Faces no competition on second election. |
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5.
Discussion with consents. |
5.
Discussion of member without consents. |
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6.
Remains partial. |
6.
Remains impartial. |
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7.
No more respect as |
7.
More respect and powers he enjoys in
contrast of |
Senate: Membership of
senate is independent of population. It is based on equal share of
representation. This is representation of states and not of the people. Each
state sends two of its members irrespective of its size and population. Total
numbers of senators are hundred from fifty states. Duty of senators is to protect
the interests of the concerned states. Term of senate is six years. 1/3rd.
Members get retirement after two years. Only members of first senate did not
complete the six years’ full term. 2/3rd. Completed only two years
and four years term. Since then all members complete six years term. Senator is
elected for six years. He should be natural born of
In
earlier time election of senate was conducted indirectly as
Senate
shares six big powers of the president as follows:
1.
Ratification of treaties made by the
president.
2.
Ratification of the cabinet selected by the
president.
3.
Ratification of the ambassadors, councilors,
attachés, etc. appointed by the president.
4.
Ratification of the ministers and judges of
the High Court.
5.
Ratification of the bureaucrats.
6.
Ratification of the declaration of war.
Judiciary in
Judicial
review has also two kinds, judicial review of ordinary law and actions of the
government whether they are legal or otherwise.
Judicial review of law has also two kinds as
follows:
1.
Judicial review of state ordinary law
whether in accordance with constitution.
2.
Congress law reviews whether in accordance
with constitution as constitution is superior.
State courts are of four types: County courts, High Court, Supreme Court, and crown courts.
Separation of power:
Judiciary, legislature, and executive are separate organs of the government.
There are three organs having three functions and work independently. Montesque in
System of check and balances:
Check and balance – Executive – v – Senate:
1.
President may sign foreign treaties but
these treaties remain inactive until they achieve ratification of senate.
2.
Appointment of cabinet is responsibility of
president but senate ratifies it.
3.
President with the ratification of senate
nominates ambassadors.
4.
Appointment of judges also requires
ratification of senate.
5.
Bureaucracy appointed by president needs to
be ratified by senate.
6.
President may declare war but it requires
approval of senate in term of ratification.
Check and balance – President – v – Senate:
1.
Senate is law-making house and president may
veto the laws made by senate. However if both houses again pass this law with
2/3rd majority then president’s right of veto is diminished.
2.
Once a year, president delivers the States
of Union address, which is heard by 90% of
3.
President can issue ordinances if senate
compels him, for three months.
4.
This is the function of president as to when
meeting of senate is to be called, on what day, time meeting will be held.
Check and balance – Supreme Court – v –
Senate:
1.
Nomination of judges is duty of president,
but senate ratifies it.
2.
There is no age of retirement. They can
voluntarily retire or senate can impeach them.
3.
Senate ratifies nominations but senate
cannot remove any judge except by impeachment.
4.
Supreme Court controls both president and
legislature. Supreme Court may declare any law contrary to constitution null
& void.
5.
If state law is in contrast to federal
constitution may be repealed.
6.
Judicial review is exclusively right of
Supreme Court. Interpretation can affect president or senate’s law.
7.
President can fix the number of judges. Once
a time it was threaten by president to increase the numbers of judges from 9 to
15, but it was not happened.
Division
of power between Centre and states is made by list of powers. There is only one
list made in
In
Due process of law
means that every law will be made properly, containing no discrimination, no
bias-ness, no injustice etc. Many laws were got repealed after passing 14th
amendment in which words of due process of law were used. It also means
everything must be done with due process of law. It should also be according to
constitution, fair, and reasonable.
Process of impeachment:
·
Allegations are imposed in House of
Representatives.
·
Committee considers the allegations.
·
Discussion takes place.
·
Voting in House of Representatives by 2/3rd
majority passed.
·
Discussion in voting in senate by 2/3rd
majority.
·
Removal of President and taking over by Vice
President.
Kinds of fundamental rights in
1. Political Rights.
(a)
Freedom of speech.
(b)
Freedom of movement.
(c)
Freedom of assembly.
2. Religious Rights.
(a)
Profess of religion.
(b)
Change of religion.
(c)
Religious education.
(d)
Propagation of the religion.
(e)
Establishment of religious institutions.
(f)
Collection of educational funds.
(g)
Construction of religious places.
(h)
Use of religious languages.
3. Economic Rights.
(a)
Right to own property.
(b)
Right to dispose of property.
(c)
Property cannot be taken without adequate
remedy.
4. Personal Rights.
(a)
Equal protection of law.
(b)
No double jeopardy.
(c)
Protection against arrest without lawful
authority.
(d)
No torture for confession.
(e)
To get education in all public institutions.
(f)
Right against slavery.
(g)
No child labour.
(h)
No illegal detention.
(i)
Life and dignity.
(j)
Marriages at own wishes.