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Silent feature of the UK.USA constitution
- 1. The Innovative LawAcademy The Academy in which we are not only teaching subjects of LLB and law, Even providing Lectures of Communication Skills as well. LLB Notes Part 1 According to HEC Law Syllabus Best For Punjab Uni exam, BZU Uni, ISUB Uni, Quaid e azam Uni, CSS Exam, PMS, Judicial Services Exam & Other all universities exams, UK / USA CONSTITUTION Lecturer: Mobushar Iqbal Chohan Advocate High Court LL.B, LL.M, MSC, DIPL Communication Skill. Office: Fatima & Iqbal Law Chamber Lahore YouTube/Law and Communication skills Facebook/Innovative.law.mobushar Mobile: 0300-0096491 Subscribe My YouTube Channel to gain more knowledge about Law, (LL.B) ( judiciary) and other informative lectures.
- 2. “I am verythankful to my almighty ALLAH for giving me such a courage, success and honor. I am also very thankful to all the students who appreciated my work and received them warmly. In these notes the law has been elaborated with the help of landmark judgments which is delivered by the Hon’ble Courts and has been written for the examination point of view and i hope that these notes will also be received warmly by the students and may led to the success in the examination as well as in their profession. The below-given notes prepared for the students of the LLB. The subject is very technical, and i have taken every step to ensure that these notes may fulfill the need of the students, but there may be some shortcomings or flaws in it, so every suggestion for the improvement of these notes will be warmly welcome.” I Am Very Thankful To You All Your Well Wisher Lecturer: Mobushar Iqbal ADVOCATE HIGH COURT LLB. LLM. Msc. Dipl communication skills CELL NO: 0300-0096491 OFFICE: FATIMA & IQBAL LAW CHAMBER LAHORE INNOVATIVE LAW ACADEMY LAHORE Address: Lower mall around Chauburji Oppo: Butt sweet Hajvari Tower Basement 10-B Lahore
- 3. USA Constitution: Q #01: Explain the doctrine of judicial review. 1) Preface Fact In the United States, judicial review is the ability of a court to examine and decide if a statute or treaty violates the provisions of existing law of the United States Constitution. Judicial review is one of the most important features of the U.S constitution. It is the power of the Supreme Court to declare unconstitutional to an act of the congress which is in the opinion of the court is contrary to the constitution. Judicial review is an exercise of the court which stops congress or executive authority to becoming more powerful or from unlawful usage of their powers 2) Meaning of Judicial review Judicial review is the power of Supreme Court which is used to determine constitutional validity of a legislative act, treaty or other law makings. 3) Judicial review in U.S constitution The U.S constitution has not expressly granted the power of judicial review to the courts but it seems that this power has been granted indirectly in its provision According to Article lll The judicial power shall be vested in Supreme Court and in inferior courts According to Article VI According to this Article, all treaties made or shall be made under the U.S constitution, the U.S constitution shall be supreme law of the land and judges are bound that anything does not happen contrary to U.S constitution 4) Origin of judicial review The power of judicial review was exercise by the court for the first time in 1803, in the following case A. Leading case of Marbury vs madison 1803 1. Facts of the case 1) Marbury was appointed as a justice of peace, in the district of Colombia by
- 4. President Adam, onthe last day of his office, but the commission didn’t be delivered to him 2) The next president and his secretary Madison refused to deliver the commission of Marbury 3) Marbury petitioned a writ in Supreme court under the judiciary act of 1798 2. Decision of the case It is written by Justice Marshall that Marbury, definitely, had a right to his commission. But, more importantly, the Judiciary Act of 1789 was unconstitutional. In Marshall's opinion, Congress could not give powers to the Supreme Court to issue an order granting Marbury’s commission. Therefore, the Supreme Court could not force Jefferson and Madison to appoint Marbury, because it did not have the power to do so 3. Brief arguments of chief justice marshal 1) The constitution is the supreme law of the land and the judges are bound to give value to it 2) When courts are called to give value to a statute passed by congress if it is against the interest of country ,court must give value to the latter statute 3) The powers of the legislatures are defined and limited therefore, legislature should not breach their limits because constitution is written 5) Significance of judicial review This power of Supreme Court or inferior courts prevents constitution from executive power, from congress as well as from all other superior politicians to use their arbitrary decision. By this power courts develops constitution according to the need of time 6) Application of judicial review Following are the application of judicial review 1) Judicial review apply on federal and state law 2) It also apply to constitution of the state 3) It also applies on the treaties made by the federal 4) It also applies on orders issued by the federal and the state of executive authorities 7) Reason for judicial review Following are the reason for the exercise of powers of judicial review 1) To keep the congress and the president within the limits of their powers 2) To increase the authority of Federal government 3) To defend the right of the property
- 5. 4) To defendcivil liberties and rights 8) Important cases of judicial review Following are the important cases of judicial review 1) In McCollum vs. Maryland , the supreme court declared the state law, unconstitional in which tax was imposed on the circulating notes of the bank 2) In 1952 the supreme court declared unconstitutional another law passed by the congress, and gave authority to federal government to take over steel mill of the state 9) Criticism on judicial review The excessive use of powers of judicial review has raised the criticism on it I. Supreme court’s sovereignty The critics fight that the Supreme Court has expended its authority by using this power and due to this it has become more powerful in legislation II. One man domination There is no power above them that can control their decisions, or correct their errors. There is no authority that can remove them from office for any errors or lower their salaries, and in many cases their power is superior to that of the legislature III. Vague test of constitutionality Everything which is against the constitution is unconstitutional but analysis by judicial review is very vague test of constitutionality IV. Social progress The usage of power of judicial review of the supreme on constitutional questions, often jam the wheel of social progress and becomes the reason of unwanted delay in official administration V. Stress only on legal aspects The judges pay more stress on legal aspect and not relies upon social aspects of life such as economic etc. while declaring law unconstitutional VI. Domination of judiciary The power of judicial review of the supreme court to invalidate any law passed by the congress , indirectly is the rejection of the mandate of the people
- 6. 10) Preclude Remarks Thejudicial power of the Supreme Court has not made the supreme court the father of the constitution but it has vested in the final authority of legislation. Courts by this authority can interfere with the acts and policies of other two organs of the government
- 7. Q # 02:Explain the salient feature of American constitution. 1) Preface Fact A constitution means certain principles on which the government of the state organizes and determines the relations between the people and the government. The constitutions of U.S is unique in nature and has provided inspiration to other all constitutions of the world. The object of the constitutions is to provided justice and to take up against issues related to violation of rights 2) Definition of constitution A constitution is a set of fundamental principles according to which a state is governed 3) Main sources of American Constitution Following are the main sources to American constitution 1) Legislation 2) Amendments 3) Interpretation by Judiciary 4) Conventions 5) Presidential actions 6) Decision by executive 7) State action 8) Party system 4) Salient features of U.S constitution Following are the salient features of the U.S constitution 1. Written American constitution is in written form. It is very brief constitution which is consisted of seven Article by now 26 amendments have been made in it 2. Enacted U.S constitution is an enacted constitution which has been given by convention and it officially has been adopted in March 4 1789. 3. Sovereignty of the people The Preface Fact of the U.S constitution empowers the people of the U.S and it starts with the words that, we the people of the united states have sovereign power upon
- 8. constitution 4. Supremacy ofconstitutional law The constitution of U.S is the basic law of the country. The constitutional law of the united states is being considered as supreme law of the land 5. Conventions Conventions played an important role in the development of the constitution and they are also basic feature of the U.S constitution e.g. the growth of the cabinet of American president is the result of conventions 6. Rigid (Sakht) American constitution is a rigid constitution because it requires a special procedure to amend it. Every amendment which can be moved it needs three fourth 75% majority of the member for its modification 7. Republican The constitution of U.S asks to every state for formulation of republican form of government so keeping in view , the head of the state will be an elected by the state 8. Federalism The constitution of U.S establishes a federal form of government. Federal has all constitutional powers and can exercise these powers as supreme authority of the state. 9. Presidential The U.S constitution provides a presidential form of government. The constitution gives all powers in the hand of president of U.S. He is elected by the people for the term of four years. He is not responsible for his acts and policies 10. Bicameralism The U.S Constitution has been created by bicameral legislatures and these are the Senate and the House of Representatives. All constitution are being made by both of these chambers and any amendment needs approval from both of these chambers 11. Secular (Bay Deen) America is a secular state. It has been stated that in U.S constitution that constitution will never make any kind of religious related law even not in favor of religion and not against the religion 12. Balanced government
- 9. According to U.Sconstitution, American government is a very balance government because senate will check the activities of House of Representatives and House of Representatives will check the activities of the senate. The two chambers will check each other 13. Separation of powers The U.S constitution is based on the doctrine of separation of powers. All branches of government as legislatives, executive and judiciary have been kept separate from each other. The personnel of each branch is being chosen by different procedure. There function are also different and they don’t interfere in each other 14. Checks and balances In America there is a very strong check and balance system as president has veto power over the enacted laws by congress and congress has power to impeach him The president and senate elects the judges of the courts and judges has the power to interpret laws 15. Judicial review The United States, judicial review is the ability of a court to examine if any legal provision violates the provisions of existing law of the United States Constitution. The judicial review has power to refuse such provision 16. Independence of judiciary The U.S constitution gives protection to judges and judges are totally independent regarding their judicial decision. U.S constitution save judges from undue influence 17. Due process of law Another feature of the U.S constitution is due process of law. The federal government and the state are forbidden to deprive anyone’s life, liberty without any due process of law. It means if a person makes a mistake and violates the rules of the state he should be dealt with in the laws of the state and he will be punished according to law punishments 18. Bill of rights According to the U.S constitution the people of America has been given a number of rights. These rights were not written in the original draft of the constitution but by subsequent amendments these rights have been secured in first ten amendments 19. Dual citizenship
- 10. The U.S constitutionprovides dual citizenship of their natives. An American is the citizen of the U.S.A as well as citizen of the state 20. Spoils system American system is associated with the name of President. According to it, when the new president takes over the charge of administration, new president made new appointments without taking any pressure etc. 21. Representative democracy The American constitution establishes a representative democracy. All matters of government are in hands of chosen representative 22. Different constitution for federation and the states The states which joined the American federation have their own constitutions, and they all are allowed to keep as before 23. Constitutional limitations Another outstanding feature in U.S constitution that a number of limitations on constitution due to which there are many things which neither government can nor state can in order to secure fundamental rights of the people of U.S.A 24. Omission There is an err in U.S constitution that it makes an omission in it which makes it flexible that for example, constitution says that house shall choose its speaker but its does not tell about the powers of the speaker 5) Preclude Remarks The U.S constitution is the oldest written constitution in all the nations 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 as well as methods of achieving them
- 11. Q # 03:Explain role and powers of U.S President in U.S constitution. 1) Preface Fact The president of United States is performing a lot of functions in order to run the official affairs. He has supreme authority in all aspects of the state as well as he is the executive person of the state elected by the people. U.S president is electoral president who has supreme authority in making foreign policies. In U.S president is responsible for making policies and is answerable to the public. A competent president can exercise his all powers which are not mention in U.S constitution 2) Elections of President The United States presidential election is the indirect elections in which citizens of the United States that are registered to vote in one of the 50 U.S. states. These electors cast their votes in order to choose their beloved president for U.S. Election of Vice President has the same procedure as for president 3) Position of president The U.S constitution has vested the executive powers in the president. The President of the United States is the elected head of state and head of government of the United States. The president directs the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces. The President is considered to be one of the world's most powerful political figures who is leading the world 4) Sources of powers of president Following are the sources from where the president of the U.S derives his power and authority 1) Constitution 2) Statutes of Congress 3) Judicial decisions 4) Customs and traditions 5) Powers of U.S president Powers of U.S president are as under 1) Executive powers 2) Legislative powers 3) Judicial powers 4) Financial powers
- 12. 5) Powers inforeign affairs I. Executive powers The U.S constitution has vested the executive powers in the president. But is silent in the ways that how can these powers be exercised. Different aspects of president’s executive powers are as follows: a) Enforcement of law The president is responsible for the enforcement of laws which are made by the congress. In case of any resistance ,the president has the power to use force b) Powers of appointments U.S president has power of appointments of official on the advice of senate as well as some persons of the state only can be appointed by president Recess (Waqfa) appointment The president can appoint a person during the recess (waqfa) of the senate and when senate come back and it can refuse to confirm the appointment Senatorial courtesy Senate gives approval to presidential appointment of federal official, but if the senator of respective district does not give his consent, then senate will not approve the presidential appointment c) Powers of removal The president has power to remove an officer appointed by him or senate even without the consent of senate d) Chief Administrator The president is the head of the national administration. He has powers to supervise its operations and has the right to control the entire administration e) Military powers The president is commander in chief of the Armed forces of the state. He is responsible for the defense of the United States. He has fully authorized to deploy the armed forces anywhere in and out of the country It was declared that president can use military in emergency with full authority f) Executive privilege According to supreme court of U.S, president of the united states does have a
- 13. limited privilege onthe matters under his control II. Legislative powers Under certain conventions, president has power of legislation and congress has appreciated the legislative role of the president a) Messages President can send messages to the congress having legislative proposals on important issues and congress gives importance to those proposal during legislation b) State of the Union addresses The first address of the president to each session of congress is known as the state of the union addresses. At the first session of congress president is required by law to send congress a budget message and economic report c) Organizing extra session of the congress President can’t summon extra session of the congress but can summon extra sessions of the congress under emergencies arises d) Veto powers The president can exercise his veto power in the legislative field. There are following kinds of veto power Suspensive veto According to it, president can return the bill to the congress for reconsideration. If the bill passed it will become law without the consent of president Pocket veto A pocket veto is easy way to veto a bill. If Congress forwards a bill to the president and president doesn’t sign or reject it, the bill isn’t passed. That’s a pocket veto Item veto According to this, the president can approve parts of a bill and veto other parts , it is called item veto e) Executive decrees and order The president is authorized to broadcast executive decrees and orders and these are as valid as laws f) Direct pressure on the congress
- 14. As the presidentis the leader of the nation. When presidents gets fail to win the confidence of the house. He puts a pressure on the congress in order to achieve his targets III. Judicial powers A president enjoys the following judicial powers a) Appointment of judges The president has power to appoint the judges with the approval of senate b) Power of pardon The president has power to grant pardon to offender. A pardon is a release from liability of punishment. It can be conditional or absolute. c) Amnesty power The president may grant amnesty. It is group pardon given to batch of offenders it means that all offenders would be released having same allegations IV. Financial powers Following are the financial powers of the president a) General Manager of financial affairs The president of America is the general manager of the financial affairs of the government. He directs and control finance affairs b) Control over budget Federal budget is prepared by Bureau of budget under the supervision of president. President submits estimated annual expenditure of the state for approval V. Powers in foreign affairs Powers of president in foreign affairs are as under a) Diplomatic powers The president is regarded as the chief spokesman of America in its relation with foreign government. The most important function of the president is to formulate the foreign policies of the county b) Recognitions of states The president has the authority to recognize countries. He does this ,simply by receiving diplomatic representatives of the respective country c) Treaty making power With the consent of majority of two third of senate, president can make treaties
- 15. with other country d)Agreement making power The president has power to make agreements with other countries and there is consent of the senate is not needed in this regard e) Declaration of war The president of U.S has power to declare war with the consent of senate f) Termination of hostilities The president of U.S has exclusive power to terminate hostilities 6) Emergency powers 1. Meaning of emergency a serious, unexpected, and often dangerous situation of the country which requiring immediate action is called emergency 2. Source of emergency powers The American constitution is silent about the emergency powers of the president but president can exercise certain powers during emergency. While Supreme Court of U.S state that emergency neither create powers nor increase powers which already has been given by constitution. But congress gives a lot of powers to president during emergency 3. Kinds of emergency President may announce two types of emergencies 1) Limited emergencies 2) Unlimited emergencies 4. Limitation on emergency powers The president will have to act within the limits set by the constitution otherwise his action would be declared as invalid by the Supreme Court 7) Impeachment of president According to Article 2, Section 4 of U.S constitution, the president shall be removed from office on impeachment and conviction shall be made against him for bribery or other high crimes and misbehaviors 1. Procedure of impeachment The United States Constitution states in Article II, Section 4 all official shall be
- 16. removed from officeon impeachment. The removal of a sitting President of the United States has never occurred in our history. The senate may convict the president by two third majority of its member. The president Johnson was the only president against whom impeachment procedure was adopted but he has not been convicted 8) Preclude Remarks President of America is one of the most powerful personalities in the present day in an international world. It is president of U.S who has to decide when to lead the congress, when to consult it and when to act solely
- 17. Q # 04:How the President of US is elected, describe in details. 1) Preface Fact The American constitution provides presidential form of government. U.S constitution spent a lot of time in deciding the method of electing of the president. After a good deal of discussion they adopted a plan of indirect election of the president by electoral college which is mentioned in Article 2 sections 1,2 and 3 of the constitution. An election for President of the United States holds after every four years on Election Day. And president is indirectly elected by electors who are members of national parliament . American president is not directly elected by the people of the U.S.A 2) History For the original method of electing the president and the vice president, see Article II, Section 1, of the Constitution. The election of 1804 was the first election in which the electors voted for president and vice president on separate ballots. 3) Qualification for the president Following of the three qualifications have been shared for the election of U.S president I. Age The candidate for president must not less than 35 years of Age. If his age will less than 35 so that he will not be considered for election II. Citizenship A candidate must be natural born citizen of the U.S.A. By birth if a candidate will not be citizen of the U.S.A he will not be considered for election III. Residence A candidate must a resident of the United States for a period of no less than 14 years 4) Mode of election The United States presidential election is the indirect election in which citizens of the United States cast their votes for members of the Electoral College, known as electors. Then these electors cast their votes, known as electoral votes for President of the United States. Each of the states casts as many electoral votes as the total number of its Senators and Representatives in Congress
- 18. 5) Stages ofPresidential election Following are the stages of the election of U.S president I. Nomination of presidential candidates The candidate for the presidency is nominated by the parties. Since 1832 the two parties e.g. Democrates and Republican have established the practice of choosing their representative in national conventions II. Campaign After the nomination of the presidential candidate , parties start nationwide presidential campaign 1) The parties set up national and states committee and open their headquarters in two great cities 2) Each party issues a campaign text-book which contains the party platform, explanation about the candidate ,and other material for required propaganda purpose III. Nomination of presidential electors The next stage is nomination of the presidential electors is the several states. These electors are important party leaders and are selected by the parties IV. Election of presidential electors These elections falls in the November of the election year when presidential electors are to be elected The United States presidential election is the indirect election in which citizens of the United States cast their votes for members of the Electoral College, known as electors V. Number of presidential electors Because electors are the members of the congress and at present, there are 100 members of senate who casts their votes and 438 members of the House of representative who casts their votes for election of president Representatives made by each state Each state is to appoint as many electors as it has senator and representatives in the congress Method of election of elector In start, they were elected by the state legislature. Now they are elected by the people
- 19. of the state Electionof 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 candidate Voting Each state send summary of election of the president to chairman of senate on 6th January, then congress holds a joint session, where votes are counted. The person who gains majority of votes is declared elected for president. The ratio of majority is 270 votes out of 537 votes 6) Installation of President After all the process of election, the new president is installed into office on January 20 by taking the oath of office 7) Term of office The presidential term is four years and according to the amendment 22nd, a president can stand re-election only one more time. According to this amendment a single person can become the president America only for two times and more than 2 times the U.S constitution not give permission 8) Qualifications for vote casting Anyone who is 18 years of age. There is no national list of eligible voters, registered voter are eligible to cast their votes in their residential areas, if they move to a new location, and they typically have to register again. Registration system has been designed to eliminate fraud. 9) Remuneration (Salary) of president The U.S president receives a salary of $200,000 in a year and extra $ 50,000 for official expenses as well as enjoy other privileges such a travel and official entertainment allowances 10) Succession The Article 2 section 1, clause 5 of the U.S constitution provides that if president office falls vacant due to his death, resignation, impeachment or inability to discharge the powers and duties of said office, the vice-president will perform his duties as acting president of this office with in the period of his term 11) Preclude Remarks
- 20. In practice Americanpresident is directly elected by the people. The presidential election campaign begins a year and four months before the election day, campaign cost approximately is more than 1 billion dollars and perhaps this the longest and complicated process for election of U.S president
- 21. Q # 05:Explain the powers of congress or discuss the role of congress in U.S 1) Preface Fact The congress of the United States is a legislative body of the country and its function is to making law. The constitution of United States made the congress more and more powerful. Congress is consisted upon two chambers, Senate and House of representative in which all members have power of legislation .The House and Senate are equal partners in the legislative process. Both senators and representatives are chosen through direct election and people choose them directly in elections 2) Functions and powers of U.S congress Following are the main functions and powers of U.S congress I. Legislative powers a. Law making The congress has power of law making regarding commerce and trade. As well as congress can amend or modify any kind of legislations b. Regulation of monetary (Paisay se mutaliq) system Congress of United States has power to regulate monetary system of the country. And no one can interfere with in these powers congress c. Formation of Armed forces The congress has power to control and organization of Armed forces of the United States. Congress totally overrule on the Armed forces and Armed forces are bound to obey order of Congress II. Executive powers a. Appointments Congress of United States has power of hiring high ranked officials as congress shares his power with the president of U.S b. Creation of new departments Congress has power to create new departments in the country for the betterment of the states c. Fixation of salaries and duties
- 22. Congress fixes thesalaries and duties of the offices as well as fixes the duties of the government department d. Supervision of administrative work Congress supervise the administration work of the country and all departments are answerable to congress e. Making of treaties The congress has power to make treaties with other countries. III. Judicial powers a. Composition of Supreme Court Congress makes law for the composition of the Supreme Court b. Power of appellate Congress has power to cancel the decision of the Supreme Court. No one can challenge congress in this regard c. Impeachment of president and others Congress can conduct proceedings of impeachment against the president, vice president and the speaker d. Confirmation of presidential appointment of judges Congress has power to confirm the appointment of judges of supreme court made by the president e. Creation of courts Congress can create new courts in the country with the need of the time IV. Electoral powers a. Counting of votes Congress meets after every four years and counts votes for president and vice president b. Election of president and vice president If no candidate get fail to gain majority of votes of elector. In this case congress has power to elect three candidates who have received highest votes count V. Investigative powers Congress performs investigative functions through regular standing committee and by special committees set up for the purposes
- 23. VI. Financial powers Congressalone has power to grant money to the federal government. All bills of revenues are initiated in lower house a. Collection of taxes Congress has power to levy and collect taxes ,duties and excises from government departments VII. Emergency powers During the time of national crises congress has emergency powers. These powers are integral in emergency and therefore unlimited VIII. Constituent a. Amendment Congress can amend the constitution by having two third majority in each house or by calling a special convention IX. Inherent powers a. Admission of new states Congress has power to admit new state or can add more states in United states b. Declaration of war Congress can declare war and has full power to use of Armed forces c. Treaties Congress can make treaties with the foreign countries d. Maintenance of Diplomatic relation Congress maintains diplomatic relations with other countries 3) Distinctive features of the congress I. Absence of the leadership There is neither any leader nor any opposition in both house of the congress II. Legislative initiative Legislative initiative is in hands of the private members. Bill are usually moved by the private members III. Parochialism (Tang Nazri) In U.S.A neither a senator nor a representative would obey the party call if it will be
- 24. against the wishesof his states IV. Burden of work Congress deals with a number of businesses. It also deal with all sort of problems relating international and national level affair V. Role of committees Committee plays vital role with in the legislation. All the bills are referred to the committee VI. Pork barrel and log-rolling legislation Congress has to deals with such problems which are affecting specific interests of group and localities VII. Position of upper house The upper house of the congress which is known as senate has dominating over the lower house which is knows as House of Representatives 4) Preclude Remarks The legislative powers of the both house are equal but senate is more powerful than the House of Representatives. Congress of the United states is a bicameral system. Two members from every states are chosen by the people which sits in senate and are called senators. The members of House of Representatives are selected according to their population that’s why there count is more and less according to their state population
- 25. Q # 06:What is the composition and functions of the House of Representation under the U.S constitution? 1) Preface Fact The House of Representative is one of Congress's two chambers, and part of the federal government's legislative branch. The legislature of United States is called congress, the bicameral body. The upper house is called Senate and lower house is called the House of Representatives and main function of the congress is to make law. The number of voting representatives in the House is fixed by law and no more than 435, as well as they all are representing the population of the 50 states. 2) Composition of Congress Article 1 sec 1 of U.S constitution shows that congress is bicameral body. It consists of two houses 1) Senate 2) House of Representatives 3) Composition of House of Representatives The House of Representatives is the lower chamber of the United States Congress. The composition and powers of the House are established by Article 1 of the United States Constitution. It is popular house of congress and more responsible to the public then the senate I. Number of representatives Congress had made an Act of 1920, this Act limits the membership to 435 permanently, which was originally 65 II. Term of House of Representatives In united states constitution the term of House of Representation has been fixed which is only for two (2) years 4) Qualification and election of House of representative 1. Qualifications: Following are the qualifications of the representatives a. Age A candidate must 25 years old in age otherwise candidate will not eligible
- 26. b. Citizenship A candidatemust be citizen of the U.S.A for at least 7 years c. Residence A candidate must be resident of the state from where he wants to take part in election d. Not to hold office of profit Candidate must not hold any office of profit under the government of U.S 2. Election of Representative The House of Representatives has a fixed number of 435 members. Its members serve for two years and after every two years members will be chosen by the people who are at least 18 years of age. And these elections will hold in 50 U.S states 5) Presiding officer of house of Representatives The speaker is the presiding officer of the House of Representatives. The members of the House of Representatives choose their speaker itself at the time when congress meets for the first time after the elections 6) Committee of House of Representatives House of Representatives makes of number of committees and most of the official work is done by these committees 7) Powers of House of Representatives Since U.S.A has a presidential form of government it’s lower chamber does not play the vital role but the chief job of the House of Representatives is to represent the interests of the people The powers of House of Representatives can be categorized as under: I. Legislative powers House of Representatives has equal powers and authority in the making laws or legislation with the coordination of senate. Ordinary bills can be initiated by any of the chamber II. Financial powers The House of Representatives solely has powers to initiate the revenue bills III. Judicial powers The House of Representatives participates in impeachment cases and it has empowered to take action against the president or other civil officers
- 27. IV. Executive powers Theexecutive powers are in hands of both houses. Both houses can declare war and conclude peace. Both senators and representatives are equally responsible to exercise their powers V. Constitutional amendment power The house of representatives participates in constitutional amendments and amendments can be made by the two third majority of both houses VI. Electoral power It depends upon the election of president when no candidate gain high majority of votes then house of representatives can elect three highest vote gainers for nomination of president 8) House of Representatives a weak house The House of Representatives is a weak house. Following are the reasons and causes of the weakness of the House of Representatives. VII. Powerful role of senate The U.S. Senate proposes and considers new laws, approves or rejects presidential nominations, provides advice and consent on international treaties, and serves as the high court for impeachment trials VIII. Short term The term of House of Representatives is only 2 years which is very short. The members works very disappointedly because of their shorter term IX. No executive control The executive who is speaker, is not responsible for the acts of members of the House of Representatives X. Large membership The members of the house of representatives are large in number that’s why there is a limited time on the speeches and they are unable to deliver their point of view regarding any issue under consideration XI. Limitation on freedom of speech There is limitation on speech in the House of Representatives and in senate where freedom of speech is allowed which enables the senators to do more justice to the
- 28. debates XII. Direct electionof senate Each state directly elects two senators for six-year terms. The terms of about one-third (33 %) of the Senate membership expire every two years, earning the chamber the nickname “the house that never dies.” XIII. No leadership Unlike the House of common, there is no leader of the House of Representatives and a spokesman of the government XIV. Locality rule One of the biggest weakness of the members of House of Representatives the Locality rule. The U.S constitution provides that a candidate must belong to the state from where he is taking part in the election. This thing throws hurdles in their path of progress XV. No organization of political party No one organize his political party on different ideology. The idea of the major party and the opposition are much known in the house of representatives XVI. Judicial review The House of Representatives cannot take judicial review on Supreme Court decisions but senate can do this. This thing also makes this house more weak 9) Preclude Remarks The House of Represents various section of the U.S constitution due to its large membership as compared to the senate. It has less authority which makes it a weak house
- 29. Q # 07:Discuss the composition, powers and functions of the senate under the U.S constitution. 1) Preface Fact The senate is one of Congress's two chambers, and part of the federal government's legislative branch. The legislature of United States is called congress, the bicameral body. The upper house is called Senate and lower house is called the House of Representatives and main function of the congress is to make law. The number of voting senators in the senate is fixed by law and no more than 100, as well as they all are representing to their own states from which they belongs 2) Composition of congress Article 1 sec 1 of U.S constitution shows that congress is bicameral body. It consists of two houses 1) Senate 2) House of Representatives 3) Composition of senate The senate is the upper chamber of the United States Congress. The composition and powers of the senate are established by Article 1 of the United States Constitution. It is popular chamber of congress and more powerful then house of representatives I. Number of members The senate is consisted upon 100 members on the basis of two senators from each of the states. These are direct elected members of the state and are senior politicians of the state II. Term of senate The term of senators is six years but one third of them retire after every two years III. Senate a continuous body Senators are chosen for six year and one third out of them gets retire after every two years and only one third are re-elected that’s why senate is continuous body because two third members always remain occupied on their seats and senate has been organized since 1789 4) Qualifications and election of senators
- 30. 1. Qualification Following arethe qualifications of a senator I. Age A candidate must not less than 30 years of age. Otherwise he will not be elected as senator II. Citizenship A candidate must be the citizen of the U.S.A for nine years III. Residence A candidate must be resident of the state from which he has been elected as senator 2. Elections of senators Old method It was constitutionally decided that senators should be chosen by the legislature and this method was active until 1913, then this method was changed by constitutional amendment After seventeenth amendment After 17th amendment, government of the state will elect two members from his state in order to appoint them as senator 5) Presiding officer of senate According to the U.S constitution, the vice president of the united states is the presiding officer of the senate 6) Committees of senate Senate is divided into a number of committees. And each committee performs different functions of the senate. All issues before the senate are referred to the relevant committee for opinion and resolution 7) Powers and functions of senate Following are the powers and functions of the senate I. Legislative powers a) Amendments Senate has power of amendment in the constitution. Senate can amend any law by its two third majority
- 31. b) Initiation ofbills Some important bills which only can be initiated by senate then forwarded to the house of representatives c) Rejection of bills Senate has overall powers to reject any kind of bill without consent of any other. No one can interfere with senate in this regard II. Executive powers a) High appointments All high ranked official’s appointments are subject to the consent of the senate and are advised by the senate b) Aid and advice the president Senate gives aid and advice to the president in all official affairs among the state c) Internal administration control Furthermore, senate controls the internal administration of the country. And interferes in all administrative matter in the state III. Control over foreign affairs a) Ratification of treaties All treaties are being made on the name of president but ratification or approval of senate is necessary in this regard b) Foreign policies Senators have power to make foreign policies of the country and guide the government in foreign affair IV. Judicial power a) Court of impeachment Senate is court of impeachment and in this regard senate has power to impeach president, vice president and other officials of the country b) Appointment of judges The judges of the supreme court are appointed with the consent of senate by president V. Electoral power Senate has power to elect someone for presidential post when no candidate gets
- 32. votes in majority VI.Investigative powers Senate has investigative powers. Senate appoints a committee in order to search or find the purpose for the better administration of justice 8) Senate, the powerful chamber of the world 1. Reason why the senate is powerful? I. Direct executive powers Senate is only legislation authority in the world which has direct executive powers II. Small membership The number of members of senate is very less which is consisted on only 100 members III. Long tenure The tenure of the chamber is long because all senators are elected for the term of 6 years IV. Senior politicians The senators are the senior politicians of the state as well as the country V. Direction election It is constitutionally stated that Senators are directly selected by the people of the country VI. Freedom of speech The senators have freedom of speech. A senator can speak as long as he wants on the issue under consideration. There is no time limit upon them VII. Absence of parliamentary government There is no Parliament in the U.S system which makes the senate more powerful VIII. Court for impeachment Senate is court of impeachment and in this regard senate has power to impeach president, vice president and other officials of the country IX. Unity A very strong unity between the members of the senate makes them more powerful X. Representatives of the people
- 33. The senate isthe representative of the people in the U.S.A XI. Representatives of the states Each and every senators represents his state in the senate because members of the senate are elected on the basis of entire population of the state XII. Special powers Senate has special powers which makes it more powerful , emergency powers are one of those powers which have been vested in senate XIII. Double role Senate plays double role in U.S.A a lot of matter which are resolved by president and senate XIV. Continuity of membership American senate is permanent organ, its term is 6 years and it never dissolved as a whole XV. Committees of investigation The senate is empowered to appoint committees of investigation in order to control administrative issues of the country 9) Preclude Remarks Today American senate is most powerful legislative authority in the world. The senate has been created for the protection of the interest of the people of U.S.A. Senate is the most powerful chamber of the congress
- 34. Q # 08:Discuss the doctrine of separation of powers under U.S constitution. 1) Preface Fact The separation of powers provides a system of shared power known as Checks and Balances. There are three different branches of the government which has been made by U.S constitution. Each and every branch has power to check the working systems of the other branch and this idea was called separation of powers. According to this theory all branches kept other branches away from unlawful usage of his powers, this is most important feature of the American system. Separation of power is basically divisions of the responsibilities of the government departments so that all department can work independently 2) Origin of theory of separation of the powers Since the ancient days of the Aristotle, political writers have recognized three kind government functions. Following are the details. 1) Executive 2) Legislature 3) Judiciary Each and every department will use his powers by its own. These separation of powers have been made only for the safety of liberty of the individuals I. Montesquieu’s exposition Montesquieu explains this theory and says that, there are three kinds of powers in a government which are executive, legislature and judicial powers. The liberty of the individuals requires that neither all these powers should be given to one person nor one department, so that rights of individual could not be violated 3) Central idea of separation of power Idea behind this theory is that an unlimited power in the hand of one department means that others departments will become powerless. The separation of powers in a democracy is to prevent unlawful use of power and to safeguard freedom for all The system of separation of powers divides the tasks of the state into three branches: legislative, executive and judicial. These tasks are assigned to different institutions in such a way that each of them can check the others. As a result, no one institution can
- 35. become most powerfulin a democracy 4) Theory of separation of power in America I. Implied doctrine The U.S constitution does not clearly declares the principle of separation of power but it has been unclearly mentioned and drafted in the constitution that: I. According to U.S constitution Article 1 Section 1 All legislative powers will be vested in a congress of the United States Article 2 section 1 All executive powers shall be vested in president of the United States of the America Article 3 section 1 All judicial powers shall be vested in Supreme Court and in inferior courts II. Separation of powers in practice In U.S.A a serious attempt was made to apply the theory in practice. The American chief executive, the president is elected by the people for a period of four years. President cannot initiate legislation. He cannot make laws and cannot make judicial decisions Judges cannot take executive decisions and cannot make laws because these powers have not been vested in judges Legislatures cannot take executive decisions and judicial decisions but they can make laws 5) Separation of power and checks and balances US Governments Separation of powers and the system of checks and balances. In theory, the Legislative Branch, the Executive Branch, and the Judicial Brach are designed to keep each other in check, and to keep any branch from becoming too powerful. In reality, the system was designed to keep the president from becoming some kind of dictator I. Separation of power applied in modified form U.S Government. The U.S. Constitution sets up three branches:
- 36. There is nocomplete separation of powers of the three departments after modification of constitution: 1) The president can influence on legislation by sending message to congress and by his suspense veto 2) The congress can influence executive policy by asking the official to appear before its committee 3) The president can appoint judges and grant pardon 4) The judges can declare unconstitutional , laws passed by the congress 5) The senate has the power to approve or reject appointments of important officials, impeach the president, vice president and other officials 6) Effect of separation of power The theory of separation of powers protects the liberty and rights of the individuals As powers are distributed among the government departments, due to limited powers they fully identify their responsibility and they work according to their responsibilities, which makes their work more efficient The separation of powers saves the people from the arbitrary rule of the executive This theory lays down the principle that governments should act according to certain well established rules or law Separation of powers accompanied by check and balance which is an effective check against unlawful use of power 7) Criticism on doctrine of separation of power The theory of separation of powers has been criticized on following grounds 1. Complex system The theory of separation of powers has the made the constitution more complicated 2. Frustration The theory of separation of power has created frustration among the three departments of government. They all totally unable to understand their responsibilities 3. Loose coordination Separation of powers results in administrative complications. It becomes difficult to maintain coordination among the organs of government The smooth working of modern governments demands not so much separation of powers as 'co-ordination' of powers
- 37. 4. Mutual confliction Thistheory of separation of powers has created mutual conflictions among the all three branches of the government 5. Balance disturbed This theory has made the executive very powerful, and disturbed the balance among the three organs of government. Security and welfare of the society demand not so much separation of powers as co-ordination of powers 8) Alteration of doctrine of this theory The basic structure established in 18th century is still exists, The federal system under which power has been distributed among three branches of the government which is called separation of power but currently due to some emergencies constitutional doctrine of separation of power has been altered by the following reason: 1) It has been altered by political parties 2) By president of the United states in legislative proposals 3) And by the growth of legislation itself 9) Preclude Remarks The theory of separation of powers makes the government departments to work independently. But the framers of the constitution knew that complete separation would make government impracticable. Separation of power have a lot of benefits as security of the individual and it saves country from dictatorship as well no department can use unlawful use of his powers
- 38. Q # 09:Discuss the system of check and balances provided in U.S constitution 1) Preface Fact The Constitution divided the Government into three branches: legislative, executive, and judicial. That was an important decision because it gave specific powers to each branch and set up something called checks and balances. The framers of the U.S constitution were trying to establish limited government and strongly struggling to prevent America from dictatorship. The system of checks and balances is used to keep the government from getting too powerful in one branch. So they have provided a system based on theory of separation of power along with internal check and balances 2) Influence of check and balances on U.S constitution The system of check and balances influences on the U.S constitution greatly. But now the American adopted this theory in practice while they did not drafted it in the constitution. The system of Check and balances forbids the constitution to share the powers with one department that’s why constitution gave small powers to each of the department 3) Origin of Check and balances A French writer, along with the theory of separation of power, he has explained the separation of power as a tool for check and balances on other departments. US Governments Separation of powers and the system of checks and balances. In theory, the Legislative Branch, the Executive Branch, and the Judicial Brach are designed to keep each other in check, and to keep any branch from becoming too powerful. In reality, the system was designed to keep the president from becoming some kind of dictator 4) Importance of system After the formation of U.S government, the framers of the Constitution thought it was best if the government was divided into three branches, the legislative, executive, and judicial branches. Each of the sections would also have its own separate powers: the legislative branch creates laws, the executive branch enforces laws, and the judicial branch interprets laws. This was done so that no one branch would become too dominant. The concept of separation of powers is directly related to the system of checks and balances because each branch has its own set of powers
- 39. (balances), and someof the capabilities that each branch has makes sure that another branch doesn't abuse its power (checks) 5) Purpose of check and balances The purpose of system of checks and balances is based on the law following are the purposes of this system 1. Declaration of liberty All people have right to enjoys the free exercise of religion, freedom of speech, the system of check and balance prevents the departments to overrule on the rights of people 2. Fatal omission The purpose of this system of check and balance is to control the departments from using of their powers illegally and stops the departments from fatal omission by which the right of the people may can be affected 3. Checks and balances The Constitution attempted to limit the power of central government through checks and balances. A key principle was separation of powers have been applied on those who make laws, enforce laws, and interpret laws should be independent and capable of limiting each other’s power. 4. Provision of rights The purpose of check and balance is to provide rights to the people And tell them about rights for which they are entitled likewise any department cannot suppress their rights 6) Working check and balances 1. Check on congress The American congress is empowered to make law for the country but any bill passed by the congress cannot become a law until it has received the assent of the president. American president has power to refuse to give his assent and send the bill back to congress. President controls the congress by his veto power 2. Check on president It is said that American president is the most powerful person in the world. The president is the chief executive of the country and is given vast powers. However he cannot exercise his powers unlawfully. The senate and Supreme Court can check him.
- 40. Supreme can declarehis act unconstitional through his power of judicial review. President makes high ranked appointment but all are subject to the approval of the senate. The American congress is empowered to impeach the president. The senate control internal policy and administration of president 3. Check on judiciary The president and the congress have certain checks on judiciary. The U.S president appoints the judges of Supreme Court and congress gives his approval for their appointment. Congress fixes the salaries of the judges. Judiciary is powerful but not free from checks. The congress can impeach the judges and judges can declare unconstitutional, laws passed by the congress. As well as president has power to pardon to criminals 7) Principal of separation of power and check and balance Due to a system of checks and balances, the legislative, executive, and judicial branches' powers overlap, and each branch uses some power over the others. ... The Judicial Branch checks on the presidential acts reviews executive acts and checks on Congress and reviews law, Executive branch checks on judicial branch and courts actions and checks congress and their acts as legislation, congress checks on the judicial acts and presidential acts and can impeach the president and vice president 8) How checks and balance works Not only does each branch of the government have particular powers each branch has certain powers over the other branches. This is done to keep them balanced and to prevent one branch form ever gaining too much power. For example: Congress may pass laws........but the President can veto them. The President can veto laws.......but Congress can override the veto with a 2/3 vote. The President and Congress may agree on a law..........but the Supreme Court can declare a law unconstitutional. The President can appoint Judges and other government officials.......but Senate must approve them. Supreme Court judges have life terms.......but they can be impeached. 9) Preclude Remarks
- 41. The framer ofthe U.S constitution has provided the system of check and balances. All the department of the government have vested in vast powers but none of them can exercise their power unlawfully. Due to check of other two departments upon one department ,this system keep the department not to use his powers unlawfully and stop to becoming more powerful than other
- 42. Q # 10:Discuss the procedure of legislation under U.S constitution. 1) Preface Fact The term “Legislation” is derived from Latin word “Legis” which means “Law” and “latum” which means “to make”. Legislation means making of law. In wider sense, the term legislation includes all methods of law making. The main function of the congress to make laws or to amend or repeal the existing laws of the United States. Procedure of law making has great importance as congress has developed a procedure of law making by inspiring from U.K practices but now a days it has become quite different from the British System 2) Purposes of legislation The rule of law requires that people should be governed by accepted rules, rather than by the arbitrary decisions of rulers. These rules should be general and abstract, known and certain, and apply equally to all individuals. 3) Kinds of Bills Following are the three kinds of the bills 1. Public bills Public bills are those bills which deal with the matters of public interests at large. And it can be initiated in any of the chamber of congress 2. Private Bills Private bills are those bills which deal with private interests of the particular individual, corporation or local unit. And these bills can be initiated in any of the chamber of congress 3. Money bills Money bills are those bills which deal with matter of money and are related to taxes, funds or other expenditure. These bills only initiated by the House of Representatives 4) Process of law making A bill is passed in congress through following procedure I. First reading A bill may be introduced by a representative before the House of Representatives or by
- 43. a senator beforethe Senate Process of Preface Fact The process of instruction is very simple. The member who introduces the bill he presents a copy of bill with his name and drops it in the hopper a box on the clerk’s desk in the house or on the secretary’s desk in the senate. The bill is immediately added up to in the order of presentation and the copies are made which are provided to all members of the house next morning II. The committee stage The presiding officer forwards these bills to the relevant committee for study of these bills 1) In case of private bills, member who introduces the bill, himself writes the name of the committee where he wants to forward the bill 2) In case of Public bills, the subject matter of the bill would indicate in which legislative committee it should be forwarded 3) In case of money bills, bill will go the committee of Banking and currency Executive session of committee After receiving different kind of bills from various sources. These bills meet in the executive committee for their approvals 1) Committee may approve the bill , same as it is 2) Committee may amend the bill and recommended that it would be passed as amended 3) Committee may rewrite the bill completely, keeping only its name and number 4) Committee may reject and bill and recommended that it will not be passed 5) Committee may report the bill so late in the session that there is no chance of its approval by chamber 6) Committee may kill the bill by keeping in their files III. Considering of bills, reported out of committees There are some differences in the procedure of considering the bills, reported out of the committees in the house and the senate A. Procedure in the House When a committee presents a bill along with its report, to the house for their consideration, the clerk of the house mentions it on one of the three calendars
- 44. according to itsnature and remain there till consideration 1. Union Calendar All those bill are mentioned on Union calendar which directly or indirectly are related to money bill 2. House Calendar All those bill are mentioned on House calendar which are public bills and are not related to revenue or public funds 3. Private Calendar All those bill are mentioned on private calendar which are private bills B. Procedure in the senate When a committee presents a bill along with its report, to the senate for their consideration. According to the rules of senate every senator is entitled to take up any bill and if the bill is accepted by the majority of senators then bill will be forwarded to concerned committee IV. Second reading When the bill arises from the standing committee. It is given second reading. Every clause of the bill is discussed and debated upon amendments and finally it is passed by the voting of majority V. Third reading At this stage, only the title of the is read and bill is voted upon as a whole if favorable and is considered passed VI. Procedure in the other house After the passing of a bill from one house, this bill is sent to the other house for approval. Where it follows the same route through committee. This chamber may approve, reject it, ignore it or amend it before passing it VII. Assent of the president When the bill is passed by both houses of the congress. It is forwarded to the president for his approval. If the bill is approved by the president it becomes a law if it is rejected by the president then it is returned to congress. If rejected bill re-passed by the congress by two third majority so in this case the assent of president does not take for the same bill 5) Preclude Remarks
- 45. The main functionof the legislature is to make laws and the legislative procedure in the United States is categorized in some different features. Ordinary bill which are public bills ,may be initiated in either chamber of the congress but money bills only be initiated in the house of representatives
- 46. UK Constitution: Q #01: Explain the salient (Numaya) feature of the British constitution. 1) Preface Fact A constitution means certain principles on which the government of the state organizes and determines the relations between the people and the government The constitutions of U.K is unique in nature and has provided inspiration to other all constitutions of the world The object of the constitutions is to provided justice and to take up against issues related to violation of rights 2) Definition of constitution A constitution is a set of fundamental principles according to which a state is governed 3) Salient features of u.k constitution Following are the salient features of the U.K constitution 1. Unwritten The British constitution is unwritten in nature but it does not mean that all constitution is unwritten. It means that constitution has not been written in a single document. Some of the components are in written form such as Parliament act of 1911 etc. 2. Evolutionary (Gradual) growth The British constitution is a result of an evolutionary growth. Conscious efforts as well as needs to time shaped its unintentional growth. 3. Flexible constitution The British constitution is a flexible constitution and the parliament can amend it by a simple majority by making alterations in the statutory law 4. Unitary (Wahadaniat) Britain has a unitary constitution. All powers of the state are in the hands of single government for the whole country. There are no states in Britain.
- 47. 5. Bicameralism (DOaewaani) The parliament consists of two chambers House of Lords and house of commons. House of commons is a popular chamber whose members directly elected by the people While the house of lords is basically a hereditary chamber and its members are nominated by the Queen 6. Supremacy of the Parliament In U.K Parliament has complete supremacy or sovereignty. Any enacted law by the parliament cannot be challenged in the court that it is against the constitution According to De loeme “British Parliament can do everything except to make a man into a woman” 7. Constitutional monarchy (Badshahi) From the constitutional point of view, the crown is the foundation of the entire government 8. Contrast in theory and practice There is a sharp constrast between theory and practice. Theoretically British government is absolute monarchy but practically the government structure is closer to democratic form 9. Collective responsibility Ministers are collectively responsible for making law and they cannot make their decisions against government policy. Every minister is individually responsible to play his role positively 10. Limited separation of power In Britain, there is limited separation of powers. Cabinet which exercise the executive powers is the committee of the parliament and many acts has been provided in order to secure committee from undue influence from the two branches of the government 11. Independency of judiciary Necessary safeguards have been provided to judicial process from undue interference Judges are being paid high salaries and their jobs are totally secured 12. Rule of law U.K constitution provides rule of law. The Principle of rule of law defines as none of the person is above or below the law. The all persons are equal in the eye of law. If any
- 48. person violates thelaw he should face the trial of the case in government and no person is given imprisonment until his offense in proved in the court 13. Fundamental rights Fundamental rights of the citizens have not been gathered in the form of a list in the English constitution. But fundamental rights have been recognized by the courts with the needs to time 14. Conventions (Majalis) Conventions play a vital role in the Britain political system. A government can be established and removed on the basis of conventions in Britain. 15. Two party system Liberal party has lost its political significance now and now there are only parties Conservative party and second are labour party in Britain 16. Universal adult suffrage In Britain every individual of the age of 18 has the right to vote 17. Mixed constitution One of the best quality of the British constitution is that , the British constitution is a mixture of the monarchial and democratic principles 18. Conservativeness (Qadamat pasandi) 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 shows their conservativeness 19. Establishment of local government institutions The existence of local government institutions are symbols of the civil liberties and freedom the of the people of Britain 20. Unreality Another characteristic of the English constitutions is its unreality. It has been pointed out that noting is in it. This is totally unreal constitution 4) Elements of English constitution Following are the elements of the English constitution 1) Statutes of Parliament 2) The common law 3) Constitutional land mark
- 49. 4) Conventions 5) Judicialdecision 5) Preclude Remarks U.K constitution is neither absolutely unwritten nor absolutely written it is the combination of the both It has varies from other exist laws in the world and is very flexible but strong It has different in nature from other constitutions because theoretically it seems a strong but practically it seems different in nature and very flexible On the other hand it has been globally recognized by all other constitutions
- 50. Q # 02:Describe the sources of British constitution and highlight the legal sources 1) Preface Fact The English constitution is not found in one document It consisted of different elements which are a lots of and this constitution came into existence with the passage of time It only can be understood by the study of traditions, customs and judicial decisions etc. 2) Definition of constitution A constitution is a set of fundamental principles according to which a state is governed 3) Sources of u.k constitution Following are the sources of U.k constitution 1) Statutes 2) Common law 3) Judicial decisions 4) Conventions 5) Opinion of jurists 6) Delegated legislation 7) Royal Prerogatives 8) International treaties and agreement I. Statute law The second source of U.K constitutions is statutes.According to requirement of the people and demand of government of U.K, parliament made law which played a vital role for source of constitution and also developed coordination among the institutions of the government Following are the important statutes which are sources of U.K constitutions 1) The Reforms act 1867 2) The Municipal Corporation act 1716 3) The Ministry of Crown act 1937 4) The Judicator act 1873 II. Common law Common law is also knows as a source of U.K constitution. Common law is a body of
- 51. unwritten laws basedupon customs and traditions recognized by the courts and these are those laws which are production of slow process of historical growth. The courts recognize these principles because these rules have been developed by judges, and similar tribunals etc. III. Judicial decisions Judicial decisions are also the major source of U.K constitutions. Judicial decisions are the judgments and interpretations of courts which define the limitations of the different law, statutes and common law. Following are the judicial decisions in U.K history The case of “wilkas vs Wood” gave the protection and liberty to writer and author The case of “Howell” established the immunity of judges “Bushel’s case” established the independence of Juries IV. Conventions (Majalis) One of most important sources of U.K constitution is conventions. The large portion of U.K constitution is based on convention in which superior persons of legislative body were taken part in order to exercise their discretionary authority They had legislate the different laws from customs and traditions of the time which have not been mentioned in any book of law and court do not enforce conventions but these rules are recognized by the constitution In such kind of conventions , there were made different rules and regulations for betterment government and were made different restrictions on different authoritative persons of the governmetn A. Important conventions Following are some of the most important conventions 1) Prime minister will be from house of Common 2) Parliament must be summoned once in a year 3) The crown has no power to veto a bill passed by the both houses V. Opinions of jurists Opinion of jurists are also an important source of U.K constitution Jurists express their opinions in order to legislations keeping in view customs, traditions, judicial decisions and statutes. Some of the important books of different jurists are as follows:
- 52. 1) Austin’s lawand the customs of the constitution 2) Lord Hals bury’s commentary on the U.K constitution VI. Delegated legislators There are various authorities empowered to legislate under Parliament acts like Universities and municipal bodies have been delegated powers for enactment of laws. The laws and rules are made by these authorities are part of U.K constitution At ancient time, due to shortage of manpower or parliament members , the authority of legislation had been given to superior person of the society by parliament or by the government of the state which enable the local bodies to legislate different laws according to needs of the time VII. Royal Prerogative These refer to discretionary powers of the Crown that are empowered by Government Ministers in the name of the King. The Crown holds a number of powers. These include the power to declare war, to dissolve parliament, to appoint government ministers and judges. Today these powers lie with the Prime Minister and Government Ministers, the Prime Minister will inform the Monarch of their decision but the Monarch has not real power to veto their chosen course. VIII. International treaties and agreements International treaties and agreements have played a vital role in the development of U.K constitution. This development came into existence by the recognition of the rules by the Parliament in the shape of agreement, treaties etc. These treaties and agreements are very important as source of U.K constitution Examples Mangan Carta (1215) Petitions of Rights (1628) Bill of rights (1789) Parliament act of 1911 4) Preclude Remarks English constitutions are growing body of rules. It has been undergoing a slow process consisted on centuries. It is not derived from a single source but several sources and it is still growing constitution. In development of U.K constitutions a lot of sources has taken part ,
- 53. and customs, traditions,judicial decisions, conventions and opinions of jurists have played a vital role in order to establish U.K constitution
- 54. Q # 03:Discuss the supremacy or Sovereignty of Parliament under the British constitution. 1) Preface Fact It is well known that parliament’s basic functions is law making and making changes in existing laws U.K parliament is the oldest institution in the field of legislation and has supremacy and sovereignty in U.K Both houses of the Parliament hold debates in which members discuss government policies One says that , Parliament of U.K can do every things except make man into woman and woman into man 2) Constituent of parliament The U.K parliament is consists of the following institutions 1) House of Common 2) House of Lord 3) The king 3) Meaning of parliamentary sovereignty The sovereignty of Parliament means that parliament is the supreme power of the state in the sense that it can make or unmake any law, and courts will obey its legislations, on one has any power in the state to overrule parliament’s authority 4) Principles of parliamentary sovereignty Parliamentary sovereignty is a principle of the UK constitution. It makes Parliament the supreme legal authority in the UK, which can create or end any law. Generally, the courts cannot overrule its legislation and no Parliament can pass laws that future Parliaments cannot change. 5) Nature of parliamentary sovereignty The nature of parliamentary sovereignty in England is Supreme because it can make or amend any law without any pressure and there is not overrule authority 6) position of parliamentary sovereignty Parliamentary sovereignty has following three meanings
- 55. 1) It washeld that what parliament enacts? Cannot be held unlawful 2) It was held that court cannot interfere with the matters and decisions of the parliament 3) No person in U.K has a right to overrule the legislation of parliament 7) Examples of parliamentary sovereignty The U.K parliament has attained supremacy gradually with the passage of time. It supremacy may be discussed under following heads: 1) Supremacy as regard to Public right 2) Supremacy as regard to Private right 1. Supremacy as regard to public right I. Bill of rights 1689 The provisions of bills illustrate that how the parliament became sovereign of the state Examples of it; 1) The elections of members of Parliament should be free 2) The suspension or provision of powers to the king without the willingness of parliament is illegal II. The act of settlement 1701 This act shows that the occupancy of the king on the throne is not because he was a member of the Royal Family but he is entitled by Parliament. It shows the supremacy of the Parliament regarding Public rights III. The parliament act of 1911 This act snatches the powers of House of Lord. All legislating powers relating to Money bills were taken away from the House of Lords. It shows the supremacy of the Parliament regarding Public rights 2. Supremacy as regard to private rights Parliament also has established its supremacy by interfering with the private rights. Following are the examples of Parliamentary supremacy 1) Parliament can declare a baby, of full age 2) Parliament can declare legal child to illegal child 8) Limitations on the parliamentary sovereignty There are two kinds of limitations on Parliamentary sovereignty 1) Alleged Limitations (Byaan Krda) 2) Actual limitations
- 56. 1. Alleged (Byaankrda) limitations I. Royal prerogative In many fields, the royal prerogative (Ikhtiar) operates, and sovereignty of parliament is excluded Criticism The royal prerogative (Ikhtiar) is completely subordinate to Parliament which can abolish and control them in the manner it likes II. Preceding acts of parliament While law making its appears that they could not be repealed in future Criticism A sovereign power cannot limit its own sovereignty. An act passed by parliament in one session can be repealed in next session 2. Actual limitations Actual limitations has of two kinds I. External limitations Public opinions are external limitations on Parliamentary sovereignty. Parliament may pass any law which backed as long to its elector II. Internal limitations Parliamentarian’s opinions are internal limitations on parliamentary sovereignty. They would not make laws against the wishes of the people 9) Other limitations on parliamentary sovereignty Following are the other limitations on parliamentary sovereignty 1. Rule of law Parliament cannot make a law opposed to the rule of law 2. Statute of west minister 1931 The act West minister 1931, the dominion (Baadshahi) constitution cannot be amended by parliament without willingness of dominions 3. International law The parliament cannot violate the principle of international law 10) Preclude Remarks
- 57. Parliament is thehighest authority in England which is looking into all matters of the state. It can alter, repeal, enact and amend any law in any time. The sovereignty of the parliament is theoretically unlimited as one said that England could never be ruined but by a parliament Parliament has placed itself on a high place by interfering in public and private Matters
- 58. Q # 04:Discuss the nature composition and functions of House of Lords. 1) Preface Fact The House of Lords is the oldest house in the world and it had been in continuous existence from more than a thousand years and it is consisted on mostly hereditary members It is the upper house of the British Parliament it is generally stated that the house of lord is hereditary house House of Lord is the second chamber of the British Parliament and it works with the House of common in order to make law and check and challenge the actions of the government 2) Composition of house of lords The members of the House of Lords have been categorized in seven 1. Hereditary peers (Companion) About nine-tenth of the members are belong to this category. Peerage is being granted by the crown he can create many peers as he like The majority of people become peer because there are a number of routes to becoming the member of House of lord 2. Representative peers of Scotland According to the Treaty of Union 1707 , 16 numbers of representative peers are being elected by the Scottish parliament in order to sit House of Lord Because the Kingdom of Scots and the Kingdom of England were combined under the name of Great Britain ever 3. Representative peers of Ireland When Ireland was combined with England, 128 members of the Irish peers were entitled representative peers, but since 1922 when Ireland declared a free state no new peer have been created 4. Lords of Appeal Lords of Appeals are commonly known as Law lords They are 9 in numbers and were appointed into the House of Lords in United Kingdom,
- 59. under the AppellateJurisdiction Act 1876 in order to exercise their judicial functions 5. Spiritual peers They are 26 in numbers, two are Arch Bishops (Paadri) of York and Canterbury and 24 are senior Bishops of the church of England 6. Princes of the Royal Blood Those male adult members of royal family who have attained maturity and are in specific relationship are being appointed as members of House of Lords 7. Life peers These members have been created under the provision of the Life peerage act 1958. A life Peer cannot pass their title to their children. Although life Peers are appointed by the Queen, it is the Prime Minister who nominates them They are the person who were performing their duties in High offices in the state and has been retired e.g. Minister or speaker etc 3) Number of members The number of members are not fixed . The numbers of members varies from time to time. As well as selection of members is depends upon the will of Queen 4) Nature of House The house of lord is called conservative (Qadamat pasand) chamber. It also was commonly described as the hereditary chamber of the parliament It is partially hereditary and partially democratic in composition Hereditary and life peerage both are being created by the crown on the advice of Prime Minister 5) Disqualification Following person cannot become the members of the House of Lords. Detail is as under: 1) Insane 2) Minor 3) Convict (Criminal) 4) Bankrupt 6) Presiding officer The House of lord is presided by a Lord Chancellor who is member of the cabinet 7) Privileges (Ikhtiar) of the house of lord
- 60. Following mentioned privilegesare available to the House of Lords 1) Freedom of speech The lords of this house can openly express their views upon any issue without any kind of pressure 2) Freedom from arrest No member can be arrested during the parliament session. This one is a protective right which has been granted to members House of Lords 3) Free access to the sovereign Every member of the House of lord has access to sovereign in order to discuss public affair 4) Right to determine its own composition The lords have right to determine its own compositions. They can elect more person as member of House of Lords. There are no restrictions upon them for selection of new members 5) Right to publish opinion The lords can publish their useful opinions in official papers and there is no official restriction upon them in this regard 6) Right to receive writs of summons They have right to receive individual writs of summons to attend parliament 7) Trial of impeachment(Mawakhaza) cases They have the right to trial impeachment cases forwarded by the House of Commons 8) Exemption They enjoy the exemptions from serving as juror (Jury ka Rukan) and they don’t play the role as juror 9) Determinations of Peerage The House of lord has a right of determination the disputed claims of their peerage 8) Powers and functions of house of lords Following are the powers of House of lord 1. Legislative powers After the passing of Parliament act 1911, the legislative powers of the House of Lords can be
- 61. discussed under thefollowing heads: a) As regards money bills As regard money bills the House of Lords is practically ineffective. All the money bills forwarded by House of Common to House of Lords ,cannot be delayed for more than one month otherwise it would be presented to the King and would become the law on receiving the royal assent (Manzoori) and House of lord cannot conflict with it b) As regards non money bills As regard Non-money bills the House of Lords is practically effective Other public bills cannot be delayed by the House of Lords for more than two parliamentary sessions, or one calendar year it would would become the law on receiving the royal assent (manzoori) regardless its having been rejected by the House of Lords The House of Lords has almost lost its significance 2. Executive powers The Lords have the powers to ask questions from the government and have a full right to debate its policies but the house can only cross examine the cabinet ministers 3. Judicial powers The House of Lords had three kinds of judicial powers in this regard 1) It has judicial power to trial peer in case if they are involved in any activities against national interest 2) It also acts as the highest court of appeal in U.K 3) It has judicial power to hear impeachment cases forwarded to the House of Commons 4. Other powers The House of Lords performs other important functions and discusses such social and political questions which are not ready for legislation 9) Preclude Remarks The House of lOrds is an ancient institutions of the world which play pivotal rule in legislation A lot of powers have been snatched for House of lords by passing Parliament act 1911 Keeping all the functions of the House of lords in view it is to be said that House of lords are still superior in nature and have more powers other than house
- 62. Q # 05:House of Common is more powerful than House of Lords? 1) Preface Fact The sovereignty of Parliament lives in the House of common as well as House of common is the center of the English political system. The House of Parliament is lower and the popular chamber of the British parliament it has appreciative legislative assembly in the world and it is elected by the people in general elections. The House of Common is more powerful than House of lord under the Parliament act 1911. Moreover, the Government of the United Kingdom is answerable to the House of Commons; the Prime Minister stays in office only as long he holds the support of the lower house 2) Composition of house of Common 1. Strength The present strength of the House of Common is 650 members and they all are known as Member of Parliament 2. Term of House The members of the House of Common are elected for a term of five years unless the House is dissolved before completing his period by the Queen on the advice of the Prime Minister 3) Qualification and election of House of Commons 1. Qualifications of candidates Election Following are the qualifications for a candidate to contest election for house of Common 1) Must be a British native 2) Must be 21 years of Age 3) And will be disqualified if the person: Holds judicial officer Bankrupts Civil servant Member of the armed forces and the police force Director of the nationalized companies
- 63. Religious person especiallyChristian one 2. Election of candidates Parliamentary elections are of two kinds 1) General elections in which a new house of common is to be elected and these elections must be held within 20 days of the dissolution of a sitting parliament 2) These elections holds when a vacancy occurs in the house after the death or resignation of a sitting member or when a new member is made member of the House of Lords 3. Adult franchise According to the representation of the People Act as amended by the 1969 act, following are the qualifications of a person to cast his vote 1) Must be British native 2) Must be age of 18 years or above 3) Whose name has been registered in the voter’s list 4) Presiding officer The speaker is the presiding officer of the House of commons Speaker is elected by the members of House in their first session 5) Privileges of the house of common Following are the privileges of the House of common 1) Freedom of speech The members of this house can openly express their views upon any issue without any kind of pressure 2) Freedom from arrest Member of the House of Commons cannot be arrested in civil cases for a period of 40 days before and after the session of the Parliament But in criminal case member would be arrested 3) Right to regulate House has the right to control its own constitution and also has the right to exclude the member from parliament 4) Right to prohibit publication The House has right to prohibit publications of its own debates. And no one can publish
- 64. their debate ona certain matter 5) Exemption from jury duty All members of House of commons are exempted from performing duty as a juror 6) Exemption from appearing as witness All members of House of commons are exempted from appearing as witness they cannot appear as witness in any kind of case 7) Exclusion of strangers The House has right to exclude strangers from the House and there is no restriction upon them in this regard 6) Powers and functions of house of common 1. Legislative powers The House of common has vast powers in the field of law making. It can modify existing laws and can make or repeal any law. House of Common defines the national policy and has the right to change the constitution 2. Financial powers The House of common holds in hand a great power over the nation’s money. According to the Act of Parliament 1911, all money bills will be created in the House of Commons and the power of the Lords has been limited in this act 3. Administrative powers The House of common also has the powers of Administration because this House control the administration by way of questioning the cabinet member The house of common has involved itself in government related matters for better governance It is the duty of House of Common to exercise the day to day control over the Ministry 4. Delegated legislation Parliament being a supreme authority can delegate his legislation powers to Government department in order to implement, and apply statutes passed by the parliament. Parliament can retake the delegated legislation powers from departments on any account 7) Preclude Remarks The House of common is the most vital part of the British Parliament since 1911 the
- 65. House had beendelegated a lot of powers which are shared from House of Lords. In reality Parliament means House of Common ,when a minister consults parliament he consults the House of Common. When Queen on the advice of Prime Minister dissolves the parliament ,she dissolves the house of common when a parliament has made a law it means that house of common has legislated upon it
- 66. Q # 06:What is the prerogative (Istehqaaq) of the crown under British constitutional system? 1) Preface Fact The constitutional history of the England begins with an absolute monarchy and the king was absolute sovereign. He was the source of all legal powers but with the passage of time the powers of the king was decreased. Today, there are still many prerogative powers available to ministers and the Monarch. Formally in the United Kingdom, executive power is vested in the Crown, however in modern times the most important prerogative powers are available only to the Prime Minister and other cabinet ministers. However the Monarch still has some personal prerogative powers in his hand, but these are now mostly carried out on the advice of the Prime Minister 2) Difference between king and crown Following are the difference between the king and crown 1) The crown is an institution while the king is an individual who holds the institution 2) King can die but crown cannot die 3) The king is the part of crown but the crown is not part of king 4) The crown is a legal place of the state while the king is only its temporary occupant 3) Definition of crowns prerogative A discretionary power vested in the executive branch of government which are exercised by king himself or his ministers, based on common law rather than statutory law 4) Origin of crowns prerogative In the early days when king rules upon the people, the king used to manage the affairs of the people. This executive power was the first and historical source of the crown’s prerogative. The king had prerogative powers for the purposes of preserving the state from enemies, and preserving people from feudal (Jagirdari) powers. As history quite clearly shows, prerogative powers were traditionally exercised only by the Monarch 5) Prerogatives of the crown The prerogatives of the crown may be classified as under: 1) Personal Prerogatives
- 67. 2) Political prerogatives 1.Personal prerogatives Following are the personal prerogatives of the crown a. King can do no wrong This proverb has two fold meanings 1) Even if the king’s actions are not lawful, there is no remedy for the king’s actions through the courts. 2) The King is literally above the law and has no power or capacity to do wrong b. King never dies The word king is basically an attribute and there is no physical body while after the death of a king it is replaced by the succession and king alive again 2. Political prerogative Political prerogatives may be divided into two following categories A. Domestic Prerogatives Following are the domestic prerogatives I. Administrative prerogatives Following are the administrative prerogatives of the crown 1) The creation of Press 2) The appointment and dismissal of Ministers and other government officials 3) Declaration of war 4) The crown is the chief commander of the Armed forces II. Fountain of Justice The king is the fountain of the justice and generally responsible for the peace in the United Kingdom. All criminal proceedings run in the king’s office III. Power of Pardon The crown has power to pardon all offences of the criminal even before the conviction or even after the convictions and no one can challenge this power IV. Not subject of law It is the king in the parliament who makes all laws he makes law for people not for himself that’s why the king is not bound by the statute V. Appointment of Bishops According to these prerogative powers, the king can appoint high religious officers e.g.
- 68. appointment of ArchBishops VI. Appointment of Peers The crown has one of the best prerogative power of appointment of peers for Parliament VII. Appointment of Judges The crown has prerogative right of appointment of judges of the courts for administration of justice VIII. Head of Church The crown is the head of the church in England IX. Summoning of conventions According to these prerogative powers , a crown can send a legal document which is called summon for church conventions X. Summoning of Parliament The king has power to send summons to parliament XI. Dissolving of Parliament The crown has power to dissolve the parliament on the advice of prime minister XII. Address to Parliament The crown has power to address the parliament in every new session XIII. Power of Legislation The crown has power to make common laws for conquered and abandoned colonies XIV. Assent (Manzrui) of Bills The crown has the prerogative power of giving royal assent to bills passed by the both houses of parliament B. Foreign Prerogatives Following are the prerogatives of the crown in relation to foreign affairs I. Representative of Nation The king is alone representative of the nation in internal dealing and international affairs of the country II. Power to make treaties The crown has power to make treaties with other country like contract or other more III. Declaration of War and Peace
- 69. It is theking who has the power of declaration of war or peace with other countries IV. Power of recognition The king has the power to recognize the status of the foreign country. He can do this by receiving the representative of other states V. Appointment of ambassadors For foreign coordination, the king appoints ambassadors from his own country for performing duties in other country 6) Preclude Remarks The prerogatives of crown approximately have been abolished in this age. At present, the crown prerogative has been restricted as he cannot claim prerogative against parliament or against common laws but he can exercise his personal prerogatives as well. It is the cabinet that exercise the prerogatives powers in the name of the king
- 70. Q # 07:Write a detailed note on Cabinet system in England 1) Preface Fact The cabinet is the real executive of the British systems. It is also called the ministry of the government. The cabinet has been defined as the royal advisers of the state chosen by the Prime Minister in the name of crown. The cabinet must knowledge the supremacy of the Prime Minister and must follows the policies laid down by the Prime Minister. Cabinet is collectively a decision making body of the United kingdom cabinet is consisted of 21 ministers and these are the most senior ministers of the government 2) Meaning of cabinet A group of individuals who are advisers of the Prime Minster 3) Definition of cabinet A cabinet is a body of high-ranking state officials of the two houses of the parliament which is consisted upon peers and chief executives of the United Kingdom. They all are usually called ministers and mutually are responsible and politically depends upon a parliamentary majority for its existence and follows the rules laid down by the Prime Minister 4) Evolution (growth) of cabinet system The modern Cabinet developed long ago with the name of privy council (Private council) in government of Britain it has its roots in the 11th century - The Privy Council was a group of executive members of the church, who gives advices to the king. In the 15th century the Privy Council was consisted upon 40 councilors who were dealing administrative matters. Because of the failure of such a large councils, kings had reduced the circle of advisors. And with the passage of time it become Cabinet from Privy council 5) Nature of British Cabinet Cabinet is a body which is not recognized by the law. Its existence is only customary e.g. based on custom or conventions 6) Composition of British cabinet The Prime minister makes the cabinet on the advice of King. All the members of the cabinet are the members of the parliament. In the institution, there is no legal status of the cabinet
- 71. 7) Features ofthe cabinet system Following are the feature of cabinet system I. Exclusion of the king from cabinet The Queen or King does not attend the cabinet meetings. King or Queen is not legally bound to attend cabinet meetings on regular basis or ever. It is constitutionally recognized that they will not attend the meetings II. Co-operation between Cabinet and Parliament There is a complete co-operation between the cabinet and the Parliament. Both of these departments help each other in official related issues facing by the state as well as they are supporter of each other III. Leadership of the Prime Minister The Prime Minister plays dominant role in Cabinet because cabinet has been formulated by the Prime Minister on the advice of the King. Prime is the keystone of the cabinet and overrule the cabinet IV. Secrecy The meetings of the cabinet are secret and private. Every member of the cabinet makes promise of the secrecy. The discussion is not release in the public V. Ministerial responsibility Individually all the members of the cabinet are responsible persons of the house of commons and they all are liable for their acts VI. Collective responsibility Collectively all the members of the cabinet are responsible. All the members work as a team because cabinet stands or falls together as a unit VII. Political homogeneity Political homogeneity means that all the members of the cabinet have similar views upon their policies because they belong to one political party VIII. Unity of cabinet Unity of the cabinet is the outstanding features of the British cabinet system. The cabinet always acts as unit. It wouldn’t be wrong if they are called “the house with one voice”
- 72. IX. No legalstatus Cabinet is a body which is not recognized by the law. Its existence is only customary laws. It is not mention in written that the cabinet is the part of the constitution. The cabinet is called the child of the conventions 8) Functions of the British cabinet Following are the important functions of the British parliament I. Policy Making The cabinet is the policy making body. The cabinet discusses and decided all kind of national and internal policies. The cabinet decides the measure on account of which administration of the government can be exercised II. Executive functions Following are the executive functions of the cabinet 1) Cabinet makes the general policies of the Government 2) It makes the foreign policies of the Government 3) The Cabinet makes strategies for war and peace 4) Cabinet makes appointments of high rank officials of the state III. Legislative functions The cabinet controls the legislative activities 1) The Cabinet prepares the speech of the king and king says this speech in the parliament 2) The cabinet prepares all the bills which are to be passed by the parliament 3) Cabinet send summons to the parliament on the advice of the king 4) The cabinet guides the leader of the house in the parliament IV. Financial functions The cabinet plays vital role in this regard. Cabinet prepares the budget of the country and is responsible for the whole expenditure. The chancellor of the cabinet is the finance minister of the country and is the member of the cabinet V. Judicial functions Following are the judicial functions of the courts 1) The judges of the important courts are being appointed on the advice of the cabinet by the King 2) The cabinet prepares the rules and regulations for judiciary
- 73. 3) The powerof the pardon is exercised by the king is on the advice of the Cabinet 9) Preclude Remarks The working of the cabinet system in England was very slow but steady. Prime Minister is the head of the cabinet that makes the cabinet on the advice of the king. All members of the cabinet exercise their large powers almost in all affairs of the government. The members of the parliament are consisted upon high ranking officials of the state and all are ministers of different spheres
- 74. Q # 08:Discuss the position of Prime Minister under the British Constitution. 1) Preface Fact The Prime Minister of the United Kingdom is the head of Government of the United Kingdom and chairs Cabinet meetings. In Britain, there is a parliamentary form of Government. The Prime Minister being a head of the state occupies a very important position. He is rightly called the keystone of the cabinet and the state and he is the outstanding personality in England. According to the conventions of the country Prime Minister must belongs to house of the Common 2) Qualifications of Prime Minister Following are the qualification for election of Prime Minister of U.K 1. Citizen ship Candidate must have citizenship whether he born any other country . Because a lot of former prime ministers of U.K who were belong from other country and become PM of U.K 2. Age There is no age restriction to elect as Prime minister of U.K and not written in constitution any mature person can be elected by Queen 3) Position of Prime Minister in Britain Following are the different statements about the position of the prime Minister in the state The prime Minister of England occupies a unique position in the Government Prime Minister is the political Ruler of England The Prime Minister is moon among the stars He is the axis around which the entire government machinery revolves Prime Minister is the captain of the ship of the State 4) Origin of office of Prime Minister The office of Prime Minister is a result of mere accident. Mr Robert Walpole was the first prime Minister of the U.K who preside over the meetings of the cabinet and he was the longest serving Prime Minister of the British.There is no specific date when the office of Prime Minister first appeared, as the role was not created but developed over a
- 75. period of time.The term “Prime Minster” was used in the House of Commons in 1805 and in 1905 the post of Prime Minister has been officially recognized by law. And after the act of 1906 , act of 1917 and act of 1937 recognize the office of Prime Minister 5) Appointment of Prime Minister The King appoints any person as Prime Minister who attains the majority of the house after the general elections of the country. And then Prime Minister makes the cabinet on the advice of king 6) Functions and powers of the Prime Minister Following are the powers and functions of the prime minister I. National leader The Prime Minister is the national leader of the country. He makes all the policies for country and he only is the leader of his people all the high ranked official obeys his orders II. Chief of the Cabinet Prime minister is the cheif of his cabinet because he makes his own cabinet by himself on the advice of king. He is the dominating personality in the cabinet. He appoints all the minister and they all are work under his guidance III. Leader of the House of Common Prime Minister is the leader of House of Common. He represents the House of Common in the Cabinet. He is the chief spokesman of the government and all important announcements in the house are made by him IV. Head of Government Departments The Prime Minister is the head of the Government departments. He is the head of important committees. Because he has superior authority among all other exists in the state or country. His opinions always supersedes on others opinions V. Chief advisor of crown Prime Minister is the chief advisor of the king. He gives important advices to the king because he is selected by the king and king dominates upon Prime Minister VI. Control over foreign affairs Prime Minister controls over foreign affairs of the state. He makes foreign policies and attends all the important conferences held between the countries
- 76. VII. Policy maker PrimeMinister is the policy makes because all important policies of the state relating to all matters are made by Prime Minister and no one can challenge these policies VIII. Power of appointment The king appoints the important appointments on the advice of Prime Minister. Following are the appointments 1) Appointment of Ambassador 2) Appointment of diplomatic representative 3) Appoint of Governor-General 4) Appoint of Governor of Colonies 5) Appoint of Finance Minister 6) Appointment of Member of Cabinet 7) Appointment of Civil and Military officers IX. Power of dissolution The Prime Minister is the only person who can dissolve the house of common on the advice of king. Prime Minister always consults with the cabinet for dissolution of the house X. Settlements of disputes The Prime Minister settle the disputes between the different departments of the government and between the members of cabinet or other and Prime Minister plays his significant role in this regard in order to abolish the disputes XI. Acknowledged leader of his party The Prime Minister is the acknowledged leader of his party because his selection is based upon the majority of parliament XII. Source of communication between king and cabinet The Prime Minister is a source of communication between the king and cabinet. He play a vital role between king and cabinet. He delivers ideas from a place to another 7) Preclude Remarks The prime Minister of the British has great powers in his hand. He can change the laws, repeal the laws and modify them with the need of time. He dominates on all department of the United Kingdom no one challenge his authority. He is superior to all officials existing in the state. He can dissolve the house and can appoint any kind of official on the advice of king and all other official policies are being made by him
- 77. Q # 09:Discuss the doctrine of the Ministerial responsibility under the British Constitution. 1) Preface Fact One of the salient features of the British cabinet is Ministerial responsibility. The cabinet members are responsible to house of common individual as well as collectively for their every act of commission or omission with in their cabinet. Every member is or every minister being a head of his department is answerable to the public as well as to house of common and king. It comes also in the ministerial responsibility that every member of the cabinet must approve publicly of its collective decisions or resign. As well as Ministers are individually responsible for the work of their departments and are answerable to Parliament for all their department activities. 2) Meaning of Ministerial responsibility Following are the two ministerial responsibilities I. Parliamentary responsibility This is responsibility of the ministers to acquire the confidence of the house of common. If they fail to acquire the confidence of the house of common and minister does not sign the resign from his office to leave his post, there is no provision in law to compel him for signing the resignation because it is the matter of convention and not of law. It is called parliamentary responsibility II. Legal responsibility If a minister losses the confidence of house of common, a legal responsibility imposes him which means every minister is answerable before the court for his acts on the behalf of king because all act are being endorsed by king. This is a matter of law not merely a matter of conventions 3) Origin of Ministerial responsibility In early age, the British kings were absolute rulers but when parliament becomes the sovereign body, it began to punish the ministers by means of impeachment. Then king began to choose ministers from parliament. It is defined that if a member wins the confidence of house will be elected as minister and if he fails to win the confidence of house he will have to resign. During the 19th century this concept has been fully
- 78. developed 4) Importance ofMinisterial responsibility Ministerial responsibility is an important principle in British cabinet because this principle makes the government answerable for his deeds before the courts as well as public and king too 5) Features of ministerial responsibility Following are of three features of the ministerial responsibility I. Responsibility to the king It is the responsibility of the ministers to keep the king informed about their activities or what they do. This feature shows that all minister are responsible for their acts before the king as well as responsible for their decisions II. Responsibility to one another The cabinet as a whole is answerable for the acts of its member. The minister either agrees with the decision of the cabinet or not agrees but he would also be considered answerable for this decision. And minister will have to follow the policy which has been decided in the joint meeting of the ministers III. Responsibility to the house of common The ministers are also responsible to the House of the commons.The members can also be criticized by the house of common. The cabinet only can remain in the office if they win the confidence of the house of common if they fail to win the confidence of the house , cabinet will be dissolved by the house 6) Types of Ministerial responsibility Following are the types of ministerial responsibility I. Individual ministerial responsibility As every minister is a political head of his department and is a most senior official of the state. It is therefore each and every minister is answerable to the parliament for his work and decisions as well as he personally is responsible for any breach of law and answerable before the court If a minister commits a mistake which harms his department ,in this case he individually responsible and he will have to resign from his post but if the Prime minister or cabinet come to his defence ,it becomes a matter of collective responsibility
- 79. II. Collective ministerialresponsibility In this case all ministers are responsible whether they are included in the cabinet or not. Even they attended the cabinet meeting or not. If the policy comes under an obligation then all ministers were held responsible for this 7) Advantages of the ministerial responsibility This concept gives the three merits to the British system of government I. Answerable to the public Keeping in view this concept, there are all members of the cabinet are responsible for their deeds ,policies ,decisions made, before the public and answerable to people which is best for administration of country affairs II. Unity of cabinet All of the ministers of the cabinet know that their cabinet will remain in office till they are united. Anyone who disagrees with the policy he will have to resign or will be removed from cabinet by the Queen on the advice of Prime Minister III. Efficiency of government In order to enhance their ministerial work. Every minister keeps himself informed that what his colleagues and the cabinet are doing in related to official affairs 8) Preclude Remarks The concept of the ministerial responsibility deeply influenced upon the British government system or cabinet , by this concept the system is developing rapidly and growing positively. And all ministers who are empowered by the parliament , and they are answerable before the parliament for their deeds and policies. This concept is help the British government to improve their mechanism or work and able to set himself on high place in the world
- 80. Q # 10:Explain the Rule of law under British Constitution. 1) Preface Fact The rule of law is result of struggle of British people for recognition of their fundamental rights. In U.K law is supreme and every act of Government must be authorized by law either passed by the Parliament or passed by the common law which has been recognized for hundreds years ago. One of the prime objects of making laws is to maintain law and order in society and develop a peaceful environment for the progress of the people. The concept of Rule of Law plays an important role in this process. 2) Meaning of rule of law The meaning of rule of law is defined as under: Rule of law indicates that none of the person is above or 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 the court. 3) Decay’s Explanation of the rule of law The English jurist decay’s has given a explanation of the concept of the rule of law in his book” Law of the constitution” published in 1885. The gave following meaning to this concept I. No arbitrary (Man Maani) punishments No man is punishable by law until he breaches the law of the state. All of those person who has been accused of an offence should be presented before the court for the trial in legal manner and no one can be deprived of his life ,liberty and property II. Equality before law Secondly, rule of law indicates that in U.K every citizen, rich or poor, high or low is subject to same law and the same courts of law. U.K law does not make any difference between act of government and citizen. If any public officer does any wrong with an individual, legal actions would be taken against him according to the existing law of the state III. Judicial decisions Finally, rule of law means that the general objects of the constitutions are the result of judicial decisions which are determining the rights of private persons in particular case before the courts
- 81. 4) Parliamentary sovereigntyand rule of law Rule of law provides support to Parliamentary sovereignty. Before the Parliamentary sovereignty courts are unable to make their discretions on laws of the state. Parliament can break the rule of law for the provision of justice to the people and court cannot stop the parliament to breaking of rule of law. The act of breaking laws is the supreme exercise of the parliamentary sovereignty for legalize the criminalities 5) Importance of rule of law The government and its officials as well as individuals and private bodies are accountable under the rule of law. Rule of law is the basic principle of the British Constitution. It secures the liberty of the citizens of British. Law is the supreme over all person and all persons needs to follow it for their convenience 6) Instances of rule of law Following are important instances (Namoonay) of the rule of law I. The right of personal freedom According to rule of law. People have personal freedom in England. No one can be arrested without lawful reasons II. The right of freedom of decision According to rule of law. People of England have right to freedom of decision or freedom of speech. Media is independent even everyone can criticize to the government policies III. The right to public meeting Rule of law provides a lot of freedoms, one of them are freedom of meeting. In England people have right of gathering or public meeting or form a political parties IV. Ministerial responsibility Ministerial responsibility is important instance of the theory of rule of law. If one minister do wrong other will be held responsible for his wrong action 7) Exceptions Following are the exceptions to Rule of law I. Crow is not responsible for the wrong of his officers Crown is not responsible for the wrong done by his officers. A government official personally will be responsible for his mistake made in his official capacity
- 82. II. Servants ofcrown are incapable if dismissed If crown dismisses his servants even without a reason, servants are totally incapable to take action against the crown III. Public officers are not responsible for the wrong of their subordinates As crown is not responsible for the wrong done by his officers as the public officers are also not responsible for the wrong done by their subordinates because there are certain privileges have given to public officers IV. Judges of the courts are not responsible The judges of the courts will not be hold responsible for anything done by them in the official course of their business V. Foreign rulers cannot be trialed There is exceptions that rulers cannot be trial by any court in England for any wrong committed by them VI. Diplomatic representatives cannot be trialed Diplomatic representatives cannot be trailed by any court in England for any wrong committed by them 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 of England VIII. Cancellation of citizenship If the citizen of someone is cancelled on legal grounds, it cannot be challenged in any court IX. Power of home minister to naturalize alien The action of the home minister regarding naturalization of aliens cannot be challenged in any court of law X. Time of proceedings against public servant It is necessary that legal action should be taken against any public servant who may exercise his powers illegally and violate the the rule of law. The right of action laps after six months
- 83. XI. Justice ofpeace Justice of peace are not liable for any act if the act is not wrongful XII. Trade unions are not liable Trade unions enjoys of lot of protection in England and are not liable for their actions 8) Effect of rule of law The court interprets legislations keeping in view the theories of rule of law The rule of law gives every citizen a safe place to stand and give protections from official and private individuals. It helps people to feel themselves secure and save 9) Preclude Remarks The rule of law played a pivotal role in the administration of justice but currently it has been quiet modified. There are a several limitations upon rule of law which indicate that the rule of law is not fully followed in England today
- 85. RULE OF LAW 1.Preface Fast One of the basic principles of English Constitution the rule of Law This doctrine is accepted in the ' constitution of U. S. A and also in Pak. Under Article 4 & 25. The term rule of Law 15 used as rule according to Law 5 It denotes that all men are equal and behave equally and It gives supremacy to all Law to man. 2. MEANING OF RULE OF LAW It mean law really rules and justice should preyail: >_ OXFORD DICTIONARY OFLAW: “The supremacy of law”. 3. DEFINITION OF RULE OF LAW: . '.The expression rule of Law eonnotes the undisputed supremacy of Law. '(I) DEFINED BY DICEY AS: Men are ruled by the Law and by the Law alone, a 1 man with 1,15 may be punished for a breach of Law but cannot be punished for nothing else. (II) DEFINE BY BLACK STONE. , That the decisions should be made by the application of known principles or Laws without the intervention of discretion in their application. 4. HISTORICAL PERSPECTIVE: Since the days of Greek philosopher, Law has been considered as. ”the primary means of . subjecting government's power to Control. 1 . .. _ . ‘ (I) ORIGIN QF DOCTRINE: ; The term is of old origin and 13 derived from French phrase. , ' “La prihciple ‘de legalite .
- 86. The principle oflegality , It refers to a goVernment based on principles of Law and no to men. ' ARISTOTLE ARGUEs THAT Govt by Laws was superior to Govt. by men. -, (II) ORIGINATOR OF DOCTRINE1' ' 1. SIR EDWARD COKE: The chief justice in reign ' of James I was the originator of this concept. ' In a battle against the king, he maintained ' successfully that the king should be under God and the Law, and be established supremacy of Law against the . executive. (III) DIFFERENT NAMES OF THE DOCTRINE IN ‘ DIFFERENT ERAS: The rule of Law was widely accepted and 'practicable in the past. But people changed its name. ' according to this own approach. ROMAN's APPROACH . ' Romans called it '. Jus Naturale ' MEDIAEVALISTS APPROACH " ' They called rule of Laws as "Law of God" ' ACCORDING. TO HQEBES, LoCKE & ROUSSUEAL ‘They called rule of Law as “Social Contract" or the ’ "'Natural Law". IN MODERN WORLD: In modern world we called this doctrine as Rule of Law . 5. DIFFERENT ASPECTS OF "RULE 0F LAW The term rule of Law covers different aspects of Law and enables them to be followed properly. Here are the different aspects of rule of Law (i) Individual rights must not be infringed. (ii) Law which rules the land must he supreme ' and not the arbitrary will of the rule. '
- 87. (iii) Offence mustbe punished under the Law. ' (iv) All are subject to Law. (v) Government must under the Law (vi) Reflects supremacy of Parliament. 6. DICEY'S EXPOSITION OF RULE OF LAW The exposition was first published In 1885 in introduction to the "Law of Constitution". Dicey gave three . principles of this doctrine. (i) Absolute supremacy of Law. (ii) 1 Equality before Law. :(iii) ‘ Predominance of Legal spirit._ I. ABSOLUTE SUPREMACY OF LAW (A) ABSENCE OF ARBITRARY POWER: Explaining the first principle Dicey states that rule ' of law means absolute supremacy or predominance of regular Law as opposed to the influence of arbitrary power 01 wide discretionary power B) FORM OF GOVT. The rule of Law requires government should be ' subject to the Law rather than the law subject to govt . (C) PUNISHMENT ACCORDING 0f LAW: Man can he punished, arrested or be Iawfully made , to suffer in body OR goods except by due process of Law (D) PRINCIPLE OF NATURAL JUSTICE: ' "'Audi ‘Alteram ' Patterm" }t is' a basic. Principle of natural justice that no one Should be condemned unheard. . Rule of Law also lays stress that the opportunity of being heard should be given to all. (II) EQUALITY BEFORE LAW.
- 88. Dicey states thatthere must be equality before the law or the equal subjection of all classes to the ordinary " Law of Land (A) ONE LAW FOR ALL: Dickey says that, there should impartiality of Law, and there must be one ' Law for all and treat’ everyone equality. (II) PREDOMINANCE OF LEGAL SPIRIT OR JUDICIAL DECISION: ‘ Dicey states that the general principles of the constitution are ‘the result of judicial decisions of the courts of England. He emphasized the role of the Courts as ‘ guarantors of Liberty and suggested that the right would-be secured more adequately if they were enforceable in the courts of Law than by mere declaration in the documents. 7. CHARACTERISTICS OF THE TERM ' RULE OF LAW: Following are the different characteristics of this term (i). F air and impartial trial of everyone should" ‘ be made. (ii). Procedure adapted by either by court or by ' administrative authorities should be fair. ' (iii) No one can be judge in his own cause. (iv) No one can be condemned unheard 8. CRITICISM ON DICEY‘S EXPQSITION: The doctrine 'of rule of law expounded by dicey was never fully accepted in England even his days. Therefore the criticism was made on dicey's exposition as under ; (1') immunity of King from being sued. (ii) Protection to Govt. officials from being sued. (iii) immunity to foreign rulers and diplomats. (iv) Growth of administrative justice. (v) Crown to terminate any contract of services. (vi) King can do no wrong. 9. RULE OF LAW AND ITS IMPLICATIONS TODAY: The implication of this term has been classified in three broad categories.
- 89. (l) LAW &ORDER BETTER THAN ANARCHY: Rule of law expresses preference for Law & order with in a community rather than anarchy, warfare and constant strife. (II) GOVT. ACCORDING TO LAW. The rule of Law expression a legal doctrine of fundamental importance, namely that govt. must be conducted according to Law, a general principle of Law which is declared and applied by judicial decision. (III) RULE or LAW as BROAD POLITICAL ' DOCTRINE: The rule of law refers to a body of political opinion about what the detailed rules of law should provide in matters both of substance and procedure 10. INTERNATIONAL MOVES TO PROMOTE RULE OF LAW: . (i) European conventions on Human Rights led to recognition of rule of Law as common ' heritage. (ii) Universal Declaration of Human Rights, , ,adopted by the United Nations in 1948, have recognized this principle. (iii)' Golder's case 1975 led to reaffirmation of rule of Law as a dynamic concept. (iv) At New Delhi in 1959,lawyers from 53 ' countries formally declared that the rule of Law is a dynamic concept. 11. ADMINISTRATIVE AUTHORITIES AND RULE OF LAW: The doctrine of rule of Law has been proved to be an effective instrument in controlling the administrative” ' authorities within their limits It served as a King of touchstone to judge and test the administrative action. 12. MODERN CONCEPT OF RULE OF Today Dicey’ s theory of rule of Law cannot be accepted in its totality. Davis gives seven principal meanings of the term
- 90. (i) Law &Order (ii) ' Fixed rules (iii) Elimination of discretion (iv)' Due process of Law. (v) Natural Law and Principles of natural. Justice (Vi) Preference for judges and ordinary courts of Law to executive authorities. and administrative tribunals . (vii) Judicial review on administrative action. 13. RULE OF LAW UNDER PAK CONSTITUTION 1973: Dicey's rule of Law has been adopted and corporate in the constitution of Pakistan (I) IN PREAMBLE: The principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed. (II) RIGHT OF INDIVIDUALS TO BE DEALT WITH IN ACCORDANCE WITH LAW UNDER‘ARTICLE 4 OF PAK. CONST. 1973. Protection by Law is inalienable right of every citizen where he may be and of every other person for the time being within Pakistan. A) No person shall be prevented from doing that which is not prohibited by Law B) No-action detrimental to the life, liberty, body or ' reputation shall be taken except in accordance with law. (III) EQUALITY OF CITIZEN U/ART. 25: Ali citizens are equal before Law and entitled equal protection. 14. Preclude Remarks ‘In order to conclude I must mention that the rule of ' Law expresses a preference for Law and order. within. a ' community rather than‘ anarchy and' warfare. It has very ' functional aspect in the modern world. It also works against the abuse of administrative authorities. In the .field of administrative Law the main object of rule of have is to keep the administrative authorities within their limits, to protects the individuals from their abuses and to enforce the Government of Law rather than men.
- 91. گار طلب وقتہمہ کا دعاؤں کی سب آپ :لیکچرار مــبشراقبال کورٹ ھائی ایڈووکیٹ LL.B, LL.M, MSC, Dipl Communication Skills الھور چیمبر الء اقبال اینڈ فاطمہ :آفس بیسمنٹ ٹاور ھجویری :ایڈریس B - 01 چوک چوبرجی الھور لوئرمال Call No: 0300-0096491