Political

sciences
paper 02
(PMS)
Prepared by: Azeem Saroya
Contact: 03431614996
 Part A: political system

Concept of political system:

1. USA constitution
Features of U.S. Constitution

Introduction and Evolution

The present Federal government of U.S.A came into being in the year of [Link] United States
comprised of thirteen colonies of Great Britain. In the year 1776, these colonies at the Atlantic
Coast rebelled against the mother country and became independent in [Link] this period
the revolted colonies established the “Articles of Confederation” as the first constitution in 1777.

However, this system could not last very long. There was no separate common executive nor was
there any independent judiciary. An effective central government was the fundamental need of
the hour. A convention for the purpose of framing the constitution was convened at Philadelphia
in [Link] the constitution was framed on the basis of this convention and was signed by the
delegates on September 17,[Link] constitution came into force in [Link] then it has
undergone many changes, one of them being the increase in the number of states from 13 in 1787
to 50 at present.

Sources

Following are the important sources of the American constitution.

• Written Constitution of 1787: This original constitution was drafted by a convention

held at Philadelphia. It came into force in 1789.
• Judicial Decisions: The occasional interpretations of the constitution by the Supreme
Court have introduced many important modifications in the constitutions.
• Laws of Congress: The framers of the constitutions laid down only the general outlines
of the governmental structure. The details have been filled in by the laws passed by the
congress.
• Convention: A convention is a custom which by long usage has acquired the force or
sanctity of the constitution. These are also an important source of the American
Constitution.
• Formal Amendments: During the period of over 170 years, the American constitution
has undergone a number of amendments in the original document.

Features

Following are the salient features of the American constitution:

A)Written Constitution

First prominent feature of the American constitution is that unlike the British Constitution, it is a
written or documentary .It is very brief document and contains about 4000 words and at least
10—12 pages. It consists of preamble and seven articles only. The framers laid down only the
fundamental principles and did not bother about the details. However, this does not mean that all
the rules of the American constitution are to be found only in one document. It proclaims itself to
be the “supreme law of the Land”.

b)Rigid
Another feature of the American constitution is that it is rigid, which means that it cannot be
amended by the congress by the ordinary procedure. The procedure is very intricate and difficult.
It is, therefore, rightly remarked that “it the founding fathers were to return to life today, they
would not find it difficult to recognize handiwork.

c) federal:

Another important feature of the American constitution is that it is federal in structure.

Federalism is a device by which independent states form a union without losing their identity.
The American states are units having autonomous powers; the centre cannot meddle in their
affairs.

d) Separation of powers:

American constitution is based on the principle of “separation of powers”. The framers of the
constitution believed that the separation of various organs of the government was necessary to
ensure individual liberty and to check despotism. They, therefore, gave the presidential system to
their people. In U.S all the legislative power is enjoyed by the president; he is not responsible to
the legislative. The legislative powers have been vested in the Congress. The judicial powers are
vested in the Supreme Court.

e) Checks and balances

The framers of the U.S constitution were aware that a department, if left unchecked, would
become oppressive. They, therefore, introduced checks and balances n the constitution. Thus,
Congress has been given a share in the executive powers. It can check the president’s powers of
making treaties and appointments. Similarly, the President enjoys the powers of suspense veto.
By using this power he can influence legislation. He also enjoys judicial powers of giving pardon
and reprieve.

f) judicial independence:

The direct consequence of separation of powers is the doctrine of judicial independence. In

United States all the judicial powers are enjoyed by the Supreme Court and other federal courts,
no other office can influence its independence.
g)Judicial Review:

An important feature of the American constitution is the power of judicial Review. The Supreme
court in U.S is supreme not only in theory but also in practice. In U.K no court can challenge the
power of Parliament; however in United States all the laws passed by the congress and state
legislatures are subject to judicial review.

h) Fundamental rights and Liberty:

Another important feature of the American constitution is that it ensures certain fundamental
rights for every America citizen, of which he cannot be deprived by any lawful authority.
Freedom f religious worship, freedom of speech and press, right to assemble peacefully and
property rights etc. are some of the fundamental rights enjoyed by the U.S citizens.

I) Popular Sovereignty:

The US constitution establishes the popular sovereignty of the people. The preamble of the
constitution runs thus:

“We, the people of United States, in order to form a perfect union, establish justice, ensure
domestic tranquility, promote general welfare and secure the blessings of liberty ourselves, do
ordain and establish this constitution for the United States of America”

First words---------we, the people of United States..This means that the ultimate seat of authority
in United States is the American people.

j) Limited Government:

Another important feature is the doctrine of limited government. Unlimited powers of the
government would make them despotic which would lead to tyranny and violence. In U.K the
Parliament is supreme whereas in United States the constitution is supreme and the powers of the
government organs are limited.
K) Bicameral Legislature:
In United States, congress is the parliament, which consists of two houses. The Senate and the
House of Representatives. This means that the type of legislation in U.S is bi-cameral.

l) Dual citizenship:

Every American citizen is entitled to the right of dual citizenship. First of all, he is the citizen of
America and secondly he is the citizen of that state in which he lives. The feature of dual
citizenship was introduced in the American constitution by the 4th amendment.

Federal System of U.S.A

“Federalism”, says Dicey “is a political contrivance intended to reconcile national unity with the
maintenance of state rights”.
He reconciles central control with the maintenance of regional autonomy .

In a federation the states enjoy a considerable measure of autonomy. The form of government in
which there is no regional autonomy is called a unitary state.

True federation posses the following features:

A. There is a constitution, which must necessarily be written and rigid. It must be written
and rigid. It must be written so that it is not open to any misconstruction. It should be
rigid so that the central government cannot change the powers guaranteed to the states
easily.
B. There is a division of powers between the centre and the units.
C. There is a supreme court which acts as the guardian of the constitution. It settles the
constitutional disputes, if any, between the centre and states.

The American constitution satisfies all the conditioned mentioned above.

American Scheme of Distribution of Powers:

A) The powers of the national government are listed in the article 1 section 8 of the constitution.
Some of these powers are:

1. Taxation for federal purpose.

2. Borrowing on the nation’s credit.

3. Regulation of foreign and inter-state commerce.

4. Army and navy

5. Foreign affairs and international treaties.

6. Copy rights

7. Postal service
8. Admission of new states.
9. Currency and Coinage

B) A list of powers prohibited to the national government and a list of powers prohibited to the
states have also been given. The national government, for example, has been prohibited from
meddling with the free exercise f any religion. The states have been prohibited from entering into
an alliance or treaty with any foreign power.

C) All the residuary powers are vested in the states. The 10th amendment expressly declares,
“Whatever is not given to the U.S by the constitution, nor prohibited by it to the states, is
reserved to the states respectively or to the people.”
The powers of the states have not been enumerated in the constitution whatever is not given to
the centre belongs to the states. The states in the U.S , therefore , have unremunerated but not
unlimited powers.

Features of US federalism:

1. The division of powers is made by the constitution which is both written and rigid.
2. The constitution has provided for a supreme court which acts as the guardian of the
constitution. It is competent enough to settle the constitutional disputes which may arise
between the national government and the states.
3. This type of dual system of powers which we have seen above, is the only one which
could have been possible at the time of framing the constitution. It provides for power for
both the centre and state government .No government in United States has unlimited
powers.
4. The type of federalism which the Americans have today is very much different from the
one which they have started over 200 years ago. As the Americans moved from milepost
to milepost, various American institutions cut new channels and developed new patterns.
One subject which was greatly affected at each stage was the centre-state relationship.
5. Hamilton had predicted it in 1788 that “it would always be for easier for the state
government to encroach upon the national authorities than for the national government to
encroach upon the state authorities.“ . What has actually happened is just the reverse with
the constant increase in the national economy. One significant feature is the rise of the
national government to its present predominant position.

Reasons for the increase in national powers:

i. After the civil war more and more problems requiring the attention of the
national government become apparent.
ii. The question of implied powers is another factor responsible for the growth of
national powers. It has been fully supported by the Supreme Court. “Whatever
is not prohibited is constitutional”.
iii. The predisposition of Supreme Court in favor of central government.

iv. Labor troubles, floods and epidemics

iv. The federal government uses state officials as its gents.

v. The growth of national press.
vi. The growth of political parties on national lines.
vii. The rise of the country to its present international stature

ix. The growing public demand for state services.

x. Foreign affairs
But all this does not mean that there is not a true federalism in United States. Although the centre
has assumed a predominant position but the original balance of powers has not been radically
altered.

In the words of professor Munroe:

“The states are still the pivots around which the whole U.S political system revolves.”

__________________

Separation of powers in USA:

Separation of powers is an outstanding tradition of the U.S constitution. It means that all the
powers should not be concentrated in the same man or in the same body of men.
“As the accumulation of all powers”, says Madison, “legislature, executive and judiciary in the
same hands may justly be pronounced as the very definition of tyranny.”

The Idea that the government divides into three different functions handled by different branches
is old as Aristotle. It was later convincingly propounded by Locke, Blackstone and others. The
first systematic exponent of the idea was a French writer Montesquieu.

In Montesquieu own words

“Political liberty is to be found in moderate governments……constant experience shows that

every man invested with power is apt to abuse it….To prevent this abuse it is necessary from the
very nature of things that power should be a check to power”.

“In every government there are three sorts of powers. The legislative, executive and judicial
powers. When the legislative and executive powers are united in the same person or in the same
body of magistrates, there can be no liberty. Again there is no liberty if judicial power be not
separated from the legislative and executive”.
Thus in Montesquieu’s analysis the separation of powers is necessary to ensure individual liberty.
The desirability of separation of powers was also emphasized by the great English jurist,
Blackstone, who wrote:

“In all tyrannical governments, the right of making and enforcing laws is vested in one and the
same men or in the same body of men, and wherever these two powers are united together, there
can be no public liberty.”

The founding fathers of the U.S constitution were greatly impressed by the separation of powers.
Therefore, they made every effort to divide the power between the three branches of government
fairly evenly. This has been followed also by the American States.
The framers of the U.S constitution believed that the separation of powers was necessary to
prevent absolutism, despotism and other unwanted characteristics. According to the theory of
separation of powers, the executive should never legislate and the legislature should never try to
enforce its own laws. The centre should interpret the laws but it should have no say in making
them.

In United States all the three functions of the government, making of laws, administration of
laws and interpretation of laws have been assigned to three different branches. According to
Article 1 of the U.S constitution, all the legislative powers have been assigned to the Congress,
Article 2 of the U.S constitution states that all the executive power should be vested in the
President. According to Article 3 the judicial power should be vested in the Supreme Court and
other lower courts as the congress may from time to time ordain and establish.

It is correct that the term separation of powers is not used anywhere in the constitution, however
, all the exclusive language and the fact that the powers are given in three different articles shows
that the powers are separated.

Separate Identity and Independence:

In U.S constitution all the three powers have been given separate identity.

1. The president is elected by the people and the Congress has no say in his election. The
Congress can remove him only through impeachment.
2. The cabinet ministers are neither the members nor they attend the congress sessions.
3. The Congress has full control over the federal legislation. All the bills are moved by the
members in their individual capacity. The president may give his assent or veto a bill.
4. The Supreme Court enjoys all the judicial powers and its independent from undue
interference by other branches of the government has been ensured by the constitution.
The president appoints the federal judges but he cannot remove them.

CHECKS AND BALANCES.

Smooth functioning of a government is dependent upon a closer collaboration between all of its
branches. Montesquieu himself had full perception of this requisite. While demarcating the
spheres of these branches, he never contemplated a watertight compartmentalization.

The framers of the constitution while separating the functions of three branches of the govt, had
realized that complete separation was not feasible in practice and they being men of experience
in public affairs, altered their arrangements by adding checks and balances. If the principle of
separation of powers was carried too far, it would have meant deadlocks and breakdowns,

As Munro says:
“The absolute independence of the three great departments of government would inevitably
produce a deadlock and bring governmental activities to a standstill.”

The government is a unit and it cannot simply work if different constitutions of the units are so
independent of each other. All the three branches of the government have their separate spheres
of activity. All the powers are not vested in one branch and since all branches are independent of
each other, it is necessary that each branch remains within its limits and it any branch tries to
cross its limits it must be stopped to ensure the independence and equality of the other two
branches.
Advantages of Checks and Balances:

The principle of checks and balances helps to ensure that no branch of govt. Acts autocratically.
All the branches of govt. May be checked by one another. No branch can become despotic and
does not interfere in the jurisdiction of the other branches and since all check each other
ultimately balance is maintained and none can assume supreme powers. Separation of powers
secures the independence and equality of all the three branches rather than curtail their powers.

As Madison observed:

“Separation of powers does not mean that the three branches of the government should be wholly
unconnected with each other.”

Features of Checks and Balances in U.S Constitution:

1) The president is the chief executive but he can make no appointments without the
approval of the Senate. Thus, Senate can check the president if any of the proposed
appointment is not found proper and therefore has a share in the executive powers.
2) The president can negotiate and conclude treaties with the foreign countries but they do
not become effective unless ratified by the Senate by 2/3rd majority.
3) The Congress is the sole legislative power. All the bills passed by the congress have to be
submitted to the president who may give his assent to a bill or veto it. Thus, he has a
check on the legislative powers of the congress.
4) The congress, on the other hand, can also check the president. The president can be
impeached and removed by the congress.
5) The legislative powers of the congress are checked not only by the president but also by
the Supreme Court. All the laws passed by the congress and assented by the president
may be found against the provisions of the constitution and thus declared ultra vires by
the Supreme Court through its power of judicial review.
6) The Supreme Court itself is checked by the congress, as the congress fixes the numbers
of judges and their pay.
 7) Judges are appointed by the president and approved by the senate. “A president limited
by the will of congress” , says Laski, “ is always like the sailor on an unwanted sea .”
8) Judges are ensured life tenure but even they can be impeached and removed from office.

Thus the powers are separated but lines of connection have also been provided. The separation of
powers with precautionary checks and balances is the most characteristics feature of the U.S
constitution. In the times of emergency the lines of connection have provided unity under a
single leadership. During the U.S participation in world wars, the American president assumed
all legislative powers during the emergency.
Criticism:

The principle of checks and balances has been criticized by many students of the U.S
constitution.

• Zink say:

“This provision may prevent tyranny but it also leads to conflict and indecision----one branch of
govt. May be operating on one policy while the other two may be following quite a different
course.”

• “It prevents unity , frustrates leadership, divides responsibility and slows down action.” Say
Ogg and Ray

• It is argued that the principle of checks and balances tends to concentrate powers in the hands
of judiciary, which can declare any of the laws passed by the congress as void.

• Treaty of Versailles was not ratified by the senate in 1920, which was concluded by Wilson
with several of the world leaders. This was too much a check.

It would not be an aggression to say that the U.S constitution is based on the principle of checks
and balances.
U.S President.( His Powers and Position)
The government of the United States is of the republican type. This implies that the head of the
state is president. He is not only the head of state but also the chief executive powers shall be
vested in the president of the United States. He should hold his office during a term of four years.
“He is the head of state but also the chief executive.

The constitution declares in Art.2, “The executive powers shall be vested in the president of the
United States. He should hold his office during a term of four years. “He is the head of executive
in name as well as in fact.

Powers and functions:

The U.S president is the most powerful executive of the world. He exercises the greatest amount
of power ever wielded by a man in a democracy.

Prof. Laski correctly summarizes his position, when he says:

“The U.S president is both more and less than a king; he is also both more and less than a Prime
Minister.”

Dictators and absolute monarchs apart, he is the most powerful single executive in the world. He
is at once the chief formulator of the public policy, the leader of a major political party, Chief
architect of the U.S foreign policy and the chief spokesman of United States in foreign relations.
It is difficult to believe that the modern presidency was created in this form by the founding
fathers.

They never intended to do anything that would lead directly or indirectly to the accumulation of
powers. What they desired to have a single executive head, a post of honor and leadership, rather
than that of commending authority. The modern presidency is the result of practical experience.

A. Executive Powers:
1. Chief Administrator: The president is the chief executive. The constitution has
entrusted upon him the responsibility “to take care that the laws be faithfully
enacted “. He is assisted by different government officials in this task.
2. Powers of appointment: The president appoints all the federal officials with the
approval of senate. Normally the senate does not interfere in the appointment of
ministers, ambassadors and other diplomats. The appointment of the judges of the
supreme court in scrutinized thoroughly.
3. Powers of Removal: The president can remove federal officials in his discretion
except the judges of the Supreme Court who can be removed only through
impeachment.
4. Diplomatic Powers: The foreign relations of united states are almost completely
under the general directions of the president, with one very important restrictions
that no treaty concluded by him with a foreign power becomes effective unless
passed by the senate by 2/3 rd majority. He is the chief spokesman for United
States in foreign relations. He appointment different ambassadors and diplomats
from abroad. He has the sole power to recognize or reject new states. But all these
functions are not performed by him personally. Most of these tasks are performed
by the secretary of state.
5. Role in Defense: The president is responsible for the defense of the country. He is
the chief executive and supreme commander of the military and as such appoints
a large number of high military officials in his own discretion. Although
declaration of war is a matter that falls in the domain of congress but the president
 may create such a situation that the declaration of war becomes inevitable. After
the declaration of war he can resort to emergency powers
6. Supervision of administrative powers: Over the past 200 years the United
States has moved from a system of administration based on a handful of
departments to a system manned by almost 3 million people. The largest
expansion has occurred in the field of administrative agencies.
B. Legislative Powers:

The U.S government is based on the principle of separation of powers. This means that there is
no direct relationship between the executive and legislature. Neither the executive is drawn from
the legislature, nor is its term dependent upon the legislature. But absolute independence would
have produced deadlocks.

As Madison observed:

“Separation of powers was not to mean that the three branches of the government should be
wholly unconnected with each other.”

Thus, by means of checks and balances, a share has been provided in each other’s powers. The
president can influence the legislation in the following ways:

1. Messages: The Constitution in Art 2 Sec 3 declares that “he shall from time to time give
information of the state of the union to the congress “. The time, place and manner of
sending these messages to the congress depend upon the discretion of the president. As a
matter of usage, a custom has developed that the president sends a comprehensive
message known as the “State of the union message” at the time of beginning of every
session in January of each year. This message includes all the proposals items which in
the opinion of the president require the consideration of the congress. Apart from these
annual messages, he may send special messages from time to time. All these proposals by
the president are given consideration by the congress during legislation.
2. Extra ordinary session: The president has the power to summon both houses of the
congress or any one of them on extra ordinary occasions. The agenda of such sessions is
also fixed by the president.
3. Presidential veto: Art 1 sec 7 of the constitution gives the power to the president. All the
bills passed by the congress have to be submitted to the president, who may give his
assent or veto a bill. The bill to which the president withholds his assent is sent back to
the house of its origin along with his objections. If the congress again passes that bill with
a 2/3 rd majority, it becomes a law without the consent of the president.
4. Executive Decrees: The president has been authorized to issue executive decrees and
orders which are valid as laws.
C. Financial Powers :
The federal budget is proposed by the bureau of budget under the direction of the president. The
director of the bureau remains in contact with the president. The bill is presented in the congress
on the behalf of the president. Generally, the estimates proposed by the president are approved
by the congress. During an emergency the president may spend as much money as he wants in
his own discretion.

D. Judicial Powers:

The president appoints the federal judges with the approval of the senate . The president grants
pardons and general amnesty. Constitution declares in Art 3 Sec 2 that
“The president shall have powers to grant reprieves and pardon for the offences against the
United States, except in the cases of impeachment.”

E. Miscellaneous Powers:

The president, as head of state, receives foreign heads of the state in his country. As a leader of
his party, he plays an important role in selection of various officials for different elected bodies.
He is an ex-officio member of various bodies.

Conclusion:

Lord Bryce in “American commonwealth” comments:

“The president is the nearest and the dearest substitute for a royal ideal, which the American
possess”

U.S Senate
Introduction:

According to W.P Nelson:

“The modern senate is , increasingly , a greater forum, an echo-chamber , a theatre where dreams
---------comedies and tragedies are staged to enhance the careers of its members and to influence
the public policy by means of debate and public investigations. “

Responsibility for giving expression to the will of the people of the Unites States has been
entrusted to a bi-cameral legislature called the congress. The senate is the upper house of the
congress. It is more powerful than the House of Representatives. In most other countries like
India, Britain and France the lower house enjoys more powers than the upper house. In some
countries like Switzerland and U.S.S.R (former) the two houses enjoy equal powers. The U.S
senate is the most powerful second chamber in the world.

Composition:
The US senate represents the states of the union on the basics of equality. It is organized not on
the basis of representation of the people according to a mathematical formula but on the basis of
equality of each state as an individual political unit. Each state, irrespective of its size and
population, sends two members to the senate. This equality cannot be denied to any state. Even a
constitutional amendment cannot alter this equality of states. The total strength of the senate is
100. There are 50 states and each state is represented by two members in the senate. This
principle is also found in Switzerland where each Canton sends two members to the council of
states. The US capital Washington D.C does not have any seat in the senate.
Election:

The constitution had originally provided for a direct election of the [Link] were
elected by the respective state legislatures. But the method has now been changed to a direct
election under the 17th amendment in 1913.

Tenure:

The senators are elected for a term of 6 years, but one third of them retire after every two years.

Qualification:

The candidate for the senate must be of

Minimum 30 years of age.

US citizen of at least of 9 years standing

Resident of that particular state.

Presiding Officer:

The vice president of U.S.A is the presiding officer of the senate. He is not a member of the
senate. The senate also elects from among its own members a president pro-tempore, who
presides in the absence of vice- president.
Powers and Functions:

1. Legislative Powers: The US senate enjoys equal legislature powers with the House of
Representatives. It does not merely revise the bills; rather most of bills are originated in
the senate. The bills usually passed by the senate are generally passed by the popular
chamber as well. This is because the members of the lower house pay full respect to the
verdict of their party leaders in the upper house. As regards the money bills, they are
originated in the House of Representatives but the senate has the power to amend the
money bills. The amendments to a money bill may be so many that whole of the money
bill may be changed completely. As a result, the senate has originated many money bills
in fact if not in form.
 2. Executive powers: The government of US is based on the theory of separation of powers.
But absolute independence would have meant deadlocks and breakdowns . As

Madison observed:

“Separation of powers was not to mean that the three branches of the government should be
wholly unconnected with each other.”

To check the tendencies of despotism, a share in each other’s powers has been given by a system
of checks and balances.

The US senate enjoys considerable measure of executive power as:

The president is the chief executive but he can make no appointments unless approved by the
senate. Thus the senate can check the executive if a proposed appointment is not found proper.
The senate rejected the appointment of Chairman NSC by the president Truman and that of the
secretary of commerce by president Eisenhower

The president can negotiate and conclude treaties with the foreign countries but do not become
effective unless approved by the senate by 2/3rd majority.

3. Judicial powers: The US does not enjoy the status of a court unlike the British House of
Lords. It has the sole power of impeachment. It can impeach the president, vice-president
Judges and other federal officials.

[Link] Powers:

• The senate enjoy along with the H.O.R, the power of propose amendments in the constitution.

• During the election of Vice-president, if no candidate gets an absolute majority, the senators
vote for the first two candidates and elect one as the vice-president of the United States.

• The senate can demand information about any administrative measure. This exposes the
weakness of the administration.
US Senate : The most powerful second chamber:

The US senate is decidedly one of the most important institutions in the whole federal system of
the USA. It stands apart to its counterparts in other countries of the world and is also more
powerful than the lower house of the congress. The following factors contribute to the power of
US senate.

Size and Tenure: The senate has 100 members with 6 years tenure while H.O.R has 435
members with 2 years tenure.

Permanent nature: The senate is a permanent body. It never dissolves. The senators are elected
for a term of 6 years but 1/3rd of them retire after every two years.
 Special functions: The senate has special privileges such as its power to ratify treaties and its
power of Impeachment.

Equal Legislative powers: The senate enjoys equal legislative powers with the H.O.R

Right of debate: The rules of debate are much liberal in the senate. The senators can go on
speaking to any length.

Investigative powers: The investigative committee of the senate can demand the information ,
opinion and seek advice for the purpose of legislation.

Greater influence: The senators are seasoned politicians and have greater skills than their
friends in the lower house. As a result of this they enjoy greater influence among the public.
F.J Haskins says:

“There are things which the president and the senate may do without the assent of the H.O.R and
things which the senate and the H.O.R may do without the assent of the president ,yet the
president and the H.O.R can comparatively do a little without the assent of the senate.”

Comparison with other chambers:

1. British H.O.L : it was once a very powerful chamber but now it has become so weak as
compared to the H.O.C that it is described not only as second but a secondary chamber.

• H.O. L is a hereditary chamber with more than 100 members .The US senate is a smaller body,
more active and directly elected.

• H.O.L has no share in financial legislation. It can merely delay a money bill by one month.
Even an ordinary bill can be simply delayed by one year. The US senate on the other hand enjoys
equal legislative powers with the H.O.R.

• H.O.L has absolutely no control over the executive. It has no share in appointments, in treaty
making and in impeachment. Although it is the highest judicial body in the country but it is not
in its capacity as a legislative body.

The US senate enjoys considerable share in the executive powers. It can be said that if US senate
is the most powerful chamber of the world and the British H.O.L is the weakest chamber of the
world.

2. Swiss council of States:

It is organized on the same basis of equality of cantons on which the US senate is constituted.
The two houses of the Swiss federal assembly enjoy equal legislative powers. No bill becomes a
law unless passed by both the houses.

3. Indian Rajiya Sabha:

• It is weaker than Lok Sabha, the lower house.

• It is indirectly elected; the US senate is directly elected.

• The two houses of Indian Parliament enjoy equal powers in the case of impeachment. The US
senate has the sole power of Impeachment.
• In case of an ordinary bill, both houses enjoy equal powers. In case of a disputed bill, a joint
session of both houses is held in which the Lok Sabha can get the bill approved due to its
numerical superiority.

• The money bills are introduced only in the Lok Sabha. After they get approved , they are passed
to Rajiya Sabha , which may give its own opinion in not more than 14 days , after which the bill
is deemed to have been passed as desired by the Lok Sabha. The US senate enjoys equal
legislative powers with the H.O.R.

• Rajiya Sabha has absolutely no control over the ministers who are responsible only to Lok
Sabha. The senate enjoys considerable share in the executive powers.

Conclusion:

It is evident from the above discussion that no other chamber is more powerful than the US
senate. This is exclusive privilege of the American senate. It was looked upon by the framers as
the back bone f the whole federal structure of USA. They wanted to give it a dominating share.
They mentioned it even before the H.O.R in Article 1 of the constitution.

Prof. Lindsay Rogers says:

“The American senate has become the most remarkable invention of the US senate with other
2nd chamber of the world shows that it is like a moon among them all.

US Superme Court:
Introduction:

“No feature of the US constitution has awakened so much curiosity in the European mind,
caused so much discussion, received so much admiration and been more frequently
misunderstood than the duties assigned to the Supreme Court and the functions which it
discharges in guarding the constitution”.
Lord Bryce (American commonwealth)
In a federation the existence of a powerful and independent tribunal is necessary. The
constitution of centre and the federating units. The existence of an independent tribunal is
necessary to settle the constitutional disputes which may arise between the centre and the units
and between the units themselves. In Unites States this task is performed by the Supreme Court
which is highest judicial body in the country.

Composition:

The Supreme Court consists of a chief Justice and eight associate judges (1+8). Their number is
not fixed in the constitution. It may vary from time to time.
Appointments:

The judges are appointed by the president with the approval of the senate. The judges cannot be
removed by the president.

Tenure:

The judges hold office for life. Retiring age is 70. If a judge commits a serious crime while in
office, he may be impeached and removed from office like the president. Impeachment is
initiated in the senate.

Congress fixes the number of judges and decides how much salary they would get. The court can
give its decision if majority of the judges (5) agree on it. At least 6 judges should be there to hear
the case.

Jurisdiction:

The Supreme Court has both original and appellate jurisdiction.

a) The cases decided under the original jurisdiction include the following: (1) all the
cases including the federal minister’s ambassadors and counsels may be taken
directly to the Supreme Court.
(2) All the cases in which the states are parties i.e State VS. Federation or State vs. State.

b) The cases decided under the appellate jurisdiction are selective. It hears appeals
against the decisions of inferior federal courts and the highest state courts.
c) The Supreme Court can declare any of the federal laws and executive decrees as
unconstitutional if found against the provisions of the constitution. The Supreme
court exercises this authority only when the matter is brought to its notice in the
form of litigation.
d) The Supreme court does not give any advisory opinion on any matter of public
importance or any question f law. It explains and interprets law during the regular
sessions only.
The Power of Judicial Review:

According to [Link]:

“It is emphatically the province and duty of the judiciary to say what the law is.”

The most striking feature of the US Supreme court is its power of judicial review .As the
guardian of the constitution, the Supreme Court has the review of the laws of the congress and
other executive decrees so that they do not violate the constitution and other valid laws passed by
the congress. The power of the judiciary to determine the validity of the laws on executive orders
may be termed as the power of judicial review.
It refers to inquire whether a law, executive decree or other official action is agianst the
constitution and if it decides that they do violate the constitution it declare them ultra vires or
null and void.

The supereme court does not pronounce upon the constitutionality or otherwise of the legislature
measures on its own intiative. It exercises thus power only when the matter is referred to it by an
aggrieved party.

Basis of the judicial review:

The US constitution makes no specific mention of the power of judicial review. It was acquired
by the court early in the 19th century.

According to C.J Hughes:

“The constitution is what the judges say it is.”

The constitutional basis of the judicial review may be found in Article 6 which reads in part:

“This constitution and the laws of the United States which shall be made in Pursuance thereof,
and all the treaties made or which shall be made under the authority of the United States, shall be
the supreme law of the land the judges in every state shall be bound thereby, anything in the
constitution or the laws of any state to the contrary notwithstanding.”

It was first acquired by C.J John Marshall in the celebrated Marbuary vs. Edison case in
[Link] was appointed as the justice of peace by president Adams in the district of
Columbia on the last day of his office, but commission could not be delivered to him. The next
president Jefferson and his secretary of state Madison refused to deliver the commission to
Marbuary . He, consequently, petitioned to the Supreme Court to issue him the writ of
Mandamus, under the Judiciary Act of 1789. The court presided by john Marshall held that
Marbuary was entitled to commission. But it had no authority to issue the writ of
Mandemms,compelling delivery ,because the provisions of the judiciary Act violated the
constitutional provisions of the Article 3 as such that it enhanced the original jurisdiction of the
supreme court. To this extent, this act of congress ws unconstitutional and therefore null and
void.

C.J Marshall while announcing the decision in the Merbury Vs. Medison case held that the
power of judicial review was inherent in the duties of the judges to defend the constitution

Evaluation of Judicial Review:

From the days of C.J Marshall down to present to question whether the framers wanted the court
to have powers to decide on the constitutionality of the legislative measures has been warmly
denoted.
Prof. Carwin and prof. Beard opine that the judicial review we correct and justified. Prof Beard
went through the records of Philadelphia convention and come to the conclusion that 25 out of
55 men of convention were in favor of , or accepted some form of judicial control .

Prof. Carwin held that the judicial review developed out of the strong popular desire to check the
abuses of legislative powers.

C.J Marshall held that the judges, under the constitution, could declare any of the federal laws as
void if found against the constitution.

The Supreme Court has been criticized to have seized or usurped the power. Abraham Lincoln
campaigned for the senator and later as the president on this contention that the supreme court‘s
actions were unwise and politically motivated. There have been suggestions that the powers of
the Supreme Court be curtained, by amending the constitution.

President Theodore Roosevelt for instance held out that the constitution ought to be amended tp
enable the congress to re-enact by 2/3rd majority any law that may have been declared as
unconstitutional by the Supreme Court.

It is argued that the power of judicial review is against the democratic norms. The proposition
that nine men who were never elected to this office and who hold their office and who hold their
office till they die or retire and who can be removed only through impeachment can declare those
laws as void which have been enacted by the two chambers of the congress, directly elected by
the people is surely against the democratic norms.

It is argued that the judges deliberately frustrate the popular will on the basis of their personal
and partisan views. The court is criticized of being conservative.5 out of 9 men could play havoc.
Whatever is constitutional according to their wisdom would have to be struck down. But despite
these entire and many more attacks, the Supreme Court has continued to perform its duties as the
guardian of the constitution. The people still feel that the powers of the court should not be
curtained because it is the highest guarantee of the fundamental rights. The Supreme Court is
described as the third chamber because it can frustrate the decisions of the two chambers of the
congress. Whatever it is said judicial supremacy is now a fact, whether one likes it or not. The
absence of judicial review would be a complete negation of the principle of checks and balances.

Importance of the supereme court:

• Guardian of the constitution: In a federation the existence of an independent tribunal is

necessary to decide the constitutional disputes which may arise between the centre and the units
or between the units themselves. In United States the Supreme Court performs this duty and acts
as the guardian of the constitution. The Supreme Court is referred to as the third chamber of the
congress, because it can upset the decisions of the other two chambers
• Growth of the constitution: It is also the interpreter of the growth of the fundamental law. It
has read new things which were not clear to the naked eye. Munro has also said:”The Supreme
Court has guided the American constitutional progress.”

• Supreme Court as policy maker: The Supreme Court has made decisions regarding every
aspect of the life of citizens. It has penetrated deep into the economic affairs of the nation and
has regulated the social relationships between the individual citizens.

• Accommodation and Adjustment: The rigidity of the US constitution has made amendment
in it a very difficult process. As a result only 27 amendments have been made so far. There is a
tremendous variation in the socio-economic and political conditions of the modern scientific age
than the one which existed at the time of framing the constitution. The credit goes to the
Supreme Court for liberal interpretation of the constitution according to the changed
circumstances.

• Civil Liberties: America today is a highly industrialized country. The life of the people is very
complex. The Supreme Court has provided flexibilities to the constitution. The role of the
Supreme Court has changed with the time. Before 1937 it emphasized upon the protection of
property rights. But recently the emphasis has been upon the personal rights. The Supreme Court
has played a significant role in the protection of the fundamental rights of the people. It has made
several decisions which have improved the plight of the Negroes in the country.
Conclusion:

It can be concluded from above discussion that Supreme Court occupies a very important place
in the federal structure of USA.

According to F.J Haskin:

“This great tribunal is a balanced wheel in the governmental machine.”

According to Finer”

“Supreme Court is cement which has fixed from the whole federal structure.”
Election Process of the US president.
Introduction:

Experiences from the past.

(Colonial and co federal period)

a) Some states had the experience of executive councils made up of several members , a
system which had been followed with considerable success by the Swiss for some years
and Benjamin Franklin argued that a similar system be adopted by the United States.
b) Most of the members of the constitutional convention still remembered that excess of
executive power wielded by the British Monarch.

Options Available at that time:

a) Hereditary Monarchical System: One option was to adopt the hereditary system for the
election of the chief executive of the United States on the same lines as was present in
Britain at that time.

Reasons against the first option:

1) The Americans are liberal by nature. They resented the monarchical system. They
wanted a progressive executive.
2) The theory of separation of powers and system of checks and balances was a part
of the US constitution. The monarchical system was against the basic spirit of the
US constitution.
3) At the time when the Americans were to decide through convention, the nature of
their executive , the British Monarchy was losing its powers and functions and
giving way to democratic institutions.

According to Wills G. Swartz:

“Our republican form of government with its elective presidency was born in the declining
period of divine right absolutism.”

b) Parliamentary Representative system: Second option was to adopt the parliamentary

representative system in which Prime Minister is the chief executive.

Reasons against the 2nd Option:

1) Theory of checks and balances is a part of the US constitution but the

parliamentary system is against the basic spirit of the US constitution.
2) Theory of separation of powers is a part of the US constitution but in the
parliamentary system, the chief executive (P.M) is under the influence of the
legislature.
Deliberations of the constitutional convention about the system of election:

I. Legislature election: The framers of the constitution discarded the

legislature election because in this method the president would be
subservient to the legislature.
II. Popular Election: The framers also rejected the popular elections
because this would give advantage to the larger states.

Final decision about the method of election:

• In theory: In theory the US constitution provides for an indirect election by an electoral

college constituted for the election of the president
• In practice: with the growth of the political parties in America, the system today has
become direct.

Qualification of presidential candidate:

A US presidential candidate must full fill the following conditions:

i. Must be a natural born US citizen .

ii. Must be at least 35 years of age.
iii. Must have lived in the country for at least 14 years.
iv.

Tenure:

According to the constitution the president should office for a term of 4 years and under the 22nd
amendment, a president can stand for reelection only once

Impeachment:

If the president commits a serious crime or an act of grass misconduct, he can be removed from
office by a process of impeachment initiated in the congress.
Actual Election Process:

The election is held after every four years in a leap year

On the first Tuesday

After the first Monday

In the month of November

Nomination of candidates:

The process of nominating candidates by the two major parties begins many months earlier. The
first consideration before them is to select a candidate who would win votes. The voting behavior
of the American people is determined by various factors which change from time to time.
Election Campaign:

After this the election campaign begins which is a process of greatest magnitude both in terms of
number of people involved and the amount of money spent. This process, at present, costs the
country more than 1 billion dollars.

Voting Stage:

Actually the people of each state don’t vote directly for the president and the vice-president.
They select presidential electors equal to the number of senators and republicans each state has
in the congress. The candidate with the highest number of electoral votes in any state wins all the
votes of that state. The presidential electors of all the 50 states and the district of Columbia
(federal area) a total of 538 comprises what is known as the electoral college. Here it must be
noted that 535 electors are from all the 50 states and 3 from the district of Columbia.

Constitutional Requirement of Electoral College:

It never meets as a body.

The electors meet at their respective state capitals and cast their votes shortly before the
election. To win a candidate needs 270 votes.

The constitution further provides that if no candidate wins the majority, the members of the
House Of Representatives would make the decision.

Process in the HOR:

All the members of the states would vote as a unit.

All the 50 states and the District of Columbia would be allowed one vote each (50+1).

To win a candidate needs at least 26 votes.

Conclusion / Assessment of the election process:

1) The Americans had experienced in the past a strong colonial executive and a weak local
legislature. They wanted to strike a balance between the two. Therefore they chose an
executive known as president. The unique feature of this executive authority is that the
congress does not have any power in his election as separate Electoral College is
constituted for this purpose and get dissolved after the election.
2) With the growth of political parties in America, party influences are immense during the
election campaign from nominating candidates, to selection of the electors and to the
stage when actual voting takes place.

According to Lord Bryce:

“The president is the nearest and the dearest substitute of a royal ideal which the Americans
possess.”
 3) It is believed that due to the party influences the president does not play a natural role but
tries to strengthen the position of his party through favorable governmental politics.

----------------------------------------------------

Amendment process of US constitution.

Introduction:

The process of overhauling and modernizing the constitution has been going on from the
beginning till today.

“One might say, “writes Munro, “ that it is amended every Monday morning when the supreme
court hands down its decisions.”

The amendment process of the American constitution is very difficult and so far only 27
amendments have been made in the constitution.

Amending Process:

Article 5 of the constitution prescribes the amending process thus:

“ The congress, whenever the 2/3rd of both the houses shall deem it necessary, shall propose
amendments to this constitution or one the application of the legislatures of the two- thirds of
several states shall call a convention for proposing amendments, which is either case shall be
valid, to all intents and purposes, as part of this constitution, when ratified by three-fourth
legislatures of the several states or by convention in three-fourth thereof, as the one or the others
made of ratification may be proposed by the congress.”

Analysis of the Amending Process:

“The American constitution “ , writes Lord Bryce , “has been worn away in one part, enlarged in
another ,modified in a third way by the ceaseless influences playing upon the people. It has
necessarily changed as the nation has changed. It has changed in the spirit with which men
regard it and , therefore in its own spirit.”

The Amending process consists of two stages on of the proposal and the second of ratification.
But according to the constitution these two stages can be conducted in four different ways:

• Proposal for Amendment by 2/3rd of the members of congress present and ratification by
legislatures of ¾ the of the 50 states.

• Proposal for Amendment by 2/3rd of the members of congress present and ratification by ¾ th
of states convention.
• Proposal for amendment by a national convention called by congress on request of 2/3rd of
legislatures of several states and ratification by ¾ the state legislatures.

• Proposal for amendment by a national convention called by congress on request of 2/3 rd of

legislatures of several states and ratification by 3/4th of states convention.

Time Limit for Ratification:

The constitution is silent over this question. The congress, may fix a time limit for such
ratification, as it fixed 7 years as the maximum time for the ratification of 18th ,20th ,21st
amendment.
The supreme court has held that amendment is a totally legislative measure and the assent of
president is not required to a proposed amendment before being sent to the states. Similarly
governor’s assent is not required to the amendments ratified by the state legislature.

Restrictions to the Amendment:

The constitution has itself laid down certain restrictions on its amendment .The artilcle 5 states
that:

“No amendment which may be made prior to the year 1808, shall in any manner affect the first
and the fourth clauses of the 9th section of the first article.” These clauses are related to the
importation or migration of Negro slaves and related to capitation and direct tax respectively.

Similarly the article 5 states that “No state, without its approval, shall be deprived of the equal
suffrage in the senate.” Thus, each of the 50 states enjoys equal suffrage in the senate. Similarly
no state can be divided nor two states be combined together to form a single state without the
assent of the legislature concerned. These restrictions are imposed to pressure the stability of the
federal structure of the American union.

A survey of the 27 amendment shows that they have changed the original constitution but not
fundamentally. The changes have been numerous but they were not related to the power or
structure of the federal government.

Conclusion/Criticism of amending process:

It is difficult circuitous and complicated .The two-thirds majority vote is too great to be easily
secured. As a result out of about 4000 proposals for amendment which have been made since
1787 only 27 have secured the required majority vote.

It is a very slow process. It involves two stages of proposal and ratification which makes it a
sluggish process. As a result only 27 amendments have been made in a period of more than 200
years.
 2. UK constitution:
Introduction:

There can be no state without a constitution. The constitution consists of those fundamental rules
which determine and distribute functions and powers among the various organs of the
government and determine the relations of the governing authority with the people. The
constitutions are mostly written, the British constitution being the only exception which is
unwritten .

The French writer De Tocqueville once remarked that:

“England has no constitution.”

Because he did not find it in a written form. But despite all this, the British constitution is a chief
model for all the countries.

Factors which led to the growth of parliamentary democracy in Britain:

A: In England troubles of the kings led to the strengthening of parliamentary democracy.

Example(1): John, a weak king , was compelled to agree to Magna Karta (1215) a charter of
feudal liberties and which also provided for immunity from arbitrary acts of the kings.

Example (2): During the 17th century, the growing commercial community opposed the Royal
Taxes and claimed provisions rights for the parliament.

B: Absence of pressure from strong rulers led to the development of political institutions steadily.
Example: William Embay who was brought from Holland to assume throne in Britain
acknowledged the authority of parliament in the bill of rights (1689).

C: Personal weaknesses of the successors of William Embay allowed the parliament to become
established as the chief governing power.
Example (1): Queen Ann was not ambitious.

Example (2): Hanoverians, who were brought from Germany to rule over Britain in 1714, were
at first ignorant of the English language and then they were uninterested in the British affairs.

Example (3): George 1st seldom attended the cabinet meetings and shied away from public
business.

D: The glorious revolution of 1688 also played a very important role in the transition from
absolute monarchy to democratic government.

E: The industrial revolution of the 1760’s also contributed to the transition from monarchy to
parliamentary democracy in England because after this there was a growing population with
increasing number of mouths to feed. To full fill the needs industrial revolution was initiated. As
a consequence technical know-how was needed in the process of production. This, in turn,
needed education. Education brought political awareness in the masses and they began to
question the absolute authority of the kings.

F: The French revolution of 1789 with its slogan of “Liberty, equality and fraternity” also played
a role in this respect.

G: The transition from absolute monarchy to parliamentary government was further speeded up
by the theory of popular rights.

H: colonialism and imperialism also contributed in the process of transition.

I: After the Industrial revolution a new class of people emerged, which were the industrial labor.
At that time these were not satisfied with the conditions under which they had to work. They
used to strike and walk out regularly. This further strengthened the desire for popular
government.

Conclusion:

We study the British system of government because it is the pioneer of parliamentary democracy
in the world. The transition from absolute monarchy to parliamentary democracy was allowed by
the kings. In fact, it was the result of the efforts of British people.

During the whole process of transition three elements were involved i.e. the king, the parliament
and the masse, and all three played a very positive role.

Another important thing about this process of transition was that it was very peaceful. The
British system exhibited a strong ability to adopt itself to the changing needs of the time. This
has enabled the British system to survive through the changing times.

Features of the British constitution.

Introduction.

There can be no state without a constitution. A constitution consists of those fundamental rules
which determine and distribute functions and powers among the various organs of the
government as well as determine the relations of the governing authorities with the people.

The Britain has led the modern world in the development of civil rights and modern
constitutions. Since the 17th century, British have been the chief model of representative
government. The British government was a model for people everywhere seeking political
modernization. It has unique ability to adopt without violence. In the modern times, the British
have been extraordinary able to adopt their political institutions to new needs and new ideas
within a framework of legality.
Salient Features of the British constitution:

Following are the salient features of the British constitution:

[Link] constitution: (partly written as well): The British constitution is unwritten because
it is not derived from a single source. The French writer De Tocqueville once remarked that:
“England has no constitution.”

British constitution is a mixture of charters, statutes, judicial decisions, common law, usages or
traditions, customs, conventions, precedents etc. The first constitutional document was the
Magna Karta of 1215, then the bill of rights 1689, then the parliament Acts of 1911, 1949 etc.
The British constitution was not framed at a single time. It is still in the process of growth.

[Link] constitution: The British constitution has developed through a process of

gradual evolution. It is still going through the process of growth. It was not framed by a person
or a king for his own advantage. The British people have developed their constitution from
precedent to precedent and from past experience of law and practice.

[Link] of the constitution: One of the most important features of the British constitution
is its flexibility. This means that it can be amended by the parliament. In England there is no
difference between the ordinary law and the constitutional law. The British constitution is
different from that of America’s or Pakistan’s. In America or Pakistan his constitution is
considered to be a supreme document in which amendment is very rare. The England’s
constitution is always under the process of growth.

[Link] constitution: The England’s constitution is a unitary constitution. All the powers of
the state are concentrated in the hands of a single government for the whole country. All the local
governments are the servants of the central authority which has created them and can dissolve
them also.
[Link] unreality: One of the unique features of the British constitution is what is called its
unreality. There is a great difference in its appearance and its reality. In other words there is a
great divergence in its theory. It is an absolute monarchy while in reality it is a democratic state
ruled by a parliament elected by the people.

[Link] organic nature: The nature of the British constitution is organic. It is constantly growing.
There is much in it which remains the same and there is much also which changes according to
the needs of the time. It is continually developing. Thus, an improvement will always occur in
the British constitution after some time and a new constitutional document will be added
afterwards. The change from monarchical system to parliamentary democracy is an example of
its organic nature.

[Link]’s sovereignty: Parliament is sovereign. The British parliament can do everything

except making man a woman and vice-versa. The sovereignty of the parliament is a source of
flexibility of the constitution. Bagehot remarked that the English parliament can abolish
monarchy and establish republic in the country.

[Link] System: The British political system has been working successfully due to the existence
of two major parties. In England the existence of two major parties has contributed to the
strengthening of political traditions. When one party forms the government the other sits in
opposition. The party in power always looks after the interest of the opposition party because
they know that if today they are in opposition, tomorrow they can be in power.

[Link] of conventions: Another very important feature of the British constitution is the
existence of a large number of conventions in it. No one can understand this constitution
properly without studying these conventions carefully. These are a part of the constitution but
they are not laws, because as such these conventions cannot be enforced by the courts. They are
well known to all those who run the government.

Examples of the conventions:

The Prime Minister must sit in the House of Commons

Parliament must meet at least once in a year

[Link] of law: One of the parliament feature of the British constitution is the Rule of law. It has
two basic meanings:

“In England no man can be made to suffer punishment or to pay damages for a conduct not
definitely forbidden by law”

In England no person is above the law. No one can break the law with impunity.

[Link] of Judiciary:The British constitution I based on the principle of independence

of judiciary. Since the year 1700 this principle has been a fundamental principle of the English
constitution. Although the judiciary is no doubt independent in Britain but the right of judicial
review is not granted.
[Link] legislature: According to the constitution the British parliament consists of two
houses ----The House of Commons (lower house) and the House of Lords (upper house). Thus,
the kind of legislation in Britain is Bi-cameral.

13.A blend of Monarchy Aristocracy and Democracy: The British constitution is a unique
blend of monarchy, aristocracy and democracy.

Monarchy---- due to the existence of queen and king

Aristocracy---- House of Lords

Democracy--- Britain is now a democratic state run by a parliament elected by the people.
Conclusion:
The above study brings forth a unique feature of the British constitution that not only the
constitution is revolutionary but the evolution is still continuing. There are a large number of
conventions in the British constitution which are respected like laws. Thus, on the whole the
British Government has shown a unique ability to adopt itself to the changing circumstances.

Sources of the British constitution.

Introduction.

“The British constitution is the child of wisdom and chance.”

There can be no state without a constitution. The constitution consists of fundamental rules
which determine and distribute functions and powers among the various organs of the
government as well as determine the relations of governing authorities with the people. Most of
the modern constitutions are written, the British constitution is the only constitution which is
unwritten.

Lord Bryce wrote:

“British constitution works by understanding which no writer can formulate. “

French writer De Tocqueville once remarked:

“England has no constitution,” Because he did not found it in a written form. But the British
constitution is the chief model for all the countries. It has shown a unique ability to adopt without
violence.
Sources:

The sources of the British constitution can be divided into two parts:

The laws of the constitution

The conventions of the constitution

A) The laws of the constitution:

The laws of the constitution are based on the written documents. These include Historic
documents, acts of the parliament, judicial decisions and common laws.

1. The Historic constitutional documents

The historic constitutional documents form a very important source of the British constitution.
The importance of these documents can be judged from the fact that the transition process from
absolute monarchy to constitutional government in Britain was triggered by these elements e.g.:

Magna carta (1215)

 The petition of rights (1628)

The bill of rights (1689) etc.

2. The acts of the parliament:

The laws made by the parliament from time to time have also contributed and furthered the
transition to constitutional government in Britain e.g.

The act of Habeas corpus (1679)

The act of settlement ( 1701)

Reform acts of ( 1832,1867,1884,1918,1928)

Acts of parliament ( 1911, 1949)

Indian independence act of 1947 etc.

3. Judicial decisions:

These are also important sources of the British constitution. Judicial decisions explain and
interpret the rules and statutes passed by the parliament. Here it is to be noted that these rules
cannot be challenged by any court in Britain.

4. Common law:

Common laws are also a very important source of British constitution. Especially these relating
to the liberty of the subjects i.e. many basic rights of the people e.g. jury trial, freedom of speech
and assembly are based on common law as practiced by various courts in the country

B) The conventions of the constitution:

The conventions are not recognized or enforced by any court. These are highly respected by the
British electorate and leadership. The conventions of the British constitution are actually of
unwritten character. They form an important part of the constitution. They are important because
they have enabled the British political system to adopt itself to the changing needs of the time.
Some of these conventions are:

1. The British monarch cannot veto the bills passed by the

parliament.
2. The sovereign invites the leader of the majority party in the
House of

Commons to form the cabinet.

 3. The Prime Minister and Finance Minister both are taken
from the House of commons
4. The money bills originate in the House of Commons.
5. The cabinet remains in power as long as it enjoys the
confidence of the majority party in the House of Commons,
otherwise it has to resign.
6. All the civil servants are tried in the same court like any
other citizen ( Rule of Law)
Conclusion:

Professor Munro writes:

“The British constitution is not to be found in a definite and precise document. It is a complex
amalgam of institutions. It is a complex compendium of charters, statutes, decisions, precedents,
usages and traditions. Some of them are living only in the understanding of the people.”

Thus the study of the sources of the British constitution reveals the fact that if on one hand it
consists of laws which are written, it also has an unwritten part in the shape of conventions. Two
factors that have definitely contributed to the ability of the British constitution to adopt itself to
the changing needs of the time are

Its evolutionary nature

The conventions of the constitution

Conventions of the British constitution.

Introduction.

“The British constitution is the child of wisdom and chance.” There exist a large number of
conventions or usages and customs in the British constitution. These conventions are not
recognized or enforced by the courts. These conventions are actually the unwritten part of the
British constitution. They form a very important part of the constitution. Most of the work of the
British government system depends upon the conventions rather than laws, statutes and judicial
decisions.

Lord Bryce says:

“British constitution works by understanding which no writer can formulate. “

Definition

Conventions are:

“Those customs and understandings by which the rulers or the members of the British
government exercise the discretionary powers of the executive.”
Ogg defines them as:

“ They are the customs, habits , usages or practices by their sole authority regulate a large portion
of the actual day-to-day relations and activities of the most important of the public authorities.”

Features of the conventions:

a. They are unwritten

b. They are not a part of the British legal system
c. They are the political traditions which to some extent determine the working of the
British political system.
d. They are not laws but are respected as if they are laws.
e. They are not recognized by the courts in Britain.

Sanctions behind the conventions.

Therefore, the conventions are not enforced by the courts, then the questions arises why do the
people obey them? These are the sanctions behind the conventions:

• Force of law

• Respect for conventions

• Public opinion

A. Force of law

According to Dicey, the conventions are observed because they are based on and sanctioned by
law. The power behind them is the power of law. If , says Dicey, the conventions are not
observed, it will almost immediately bring the offenders into conflict with the courts and the law
of land. Dicey gives the following example:

As the parliament has to meet at least in a year, suppose if the Prime Minister does not summon
the parliament for two years, then no budget will be passed and no taxes will be collected.
Therefore, although it is a convention but now it has the force of law behind it. Hence
disregarding it will force the public official to commit illegal acts.

B. Respect for conventions:

Lowell says that conventions are observed because they are a “ code of Honor” .They are the
rules of game and the single class which has hitherto had the conduct of the English Public life
almost entirely in its own hands, is the one which is peculiarly sensitive t such conventions.
Thus, the respect for the conventions by the ruling class of Britain is the force behind them.

C. Public opinion:

Ogg says that the force behind the conventions is the force of the public opinion. The public
wants their observance and it will not tolerate their violation e.g. public expects a cabinet
defeated in the parliament to leave office when it has lost the confidence in the parliament. Dr.
Jennings says that the force behind the conventions is the same as behind the law.

Important conventions:

The some of the important conventions in the British constitution are as follows:

1. Regarding the Queen:

• The queen invites the leader of the majority party in the House of Commons to form the
cabinet.

• All the bills passed by the parliament are sent to the Queen for Royal assent.
• The Queen dissolves the House of Commons on the advice of the Prime Minister.

• The Queen conducts all the political affairs normally on the advice of her Ministers

2. Regarding the cabinet:

• When the Prime Minister and his cabinet have lost the confidence of the parliament, they are
left with only two options:

The Prime Minister and his cabinet resign.

The Prime Minister seeks the dissolution of the House of Commons through the Queen.

• The Prime Minister is always from the House of Commons.

• When the parliament shows its lack of confidence in any minister, the whole cabinet resigns.
The cabinet is collectively responsible to the parliament.

3. Regarding the Parliament:

• The British parliament meets at least once in a year.

• All the money bills originate in the House of Commons.

• A speech from the Govt. Benches is followed by a speech from opposition benches.

• Only the law lords take part in the judicial proceedings of the House of Lords.
• The speaker of the House of Commons is above party politics.

Conclusion:

The conventions help the constitution to work smoothly. These enable the ministers to exercise
the powers of the sovereign.

As dicey says:
“They are the rules for determining the mode in which the discretionary powers of the crown
must be exercised.”

These give the constitution the quality of flexibility for adopting itself to new needs and new
ideas. G

Dr. Jennings puts it as:

“The conventions provide the flesh which clothes the dry bones of law.”

British House of Commons.

Introduction:
The house of commons is the lower chamber of the British parliament and is more powerful than
the House of Lords.

“When a minister consults parliament, he in fact consults the House of Commons; when the
Queen dissolves parliament, she dissolves the House of Commons. A new parliament is simply a
new House of Commons.” Says Walpole.

In power, prestige and authority the House of Commons has indeed become the first chamber of
the British parliament. The House of Commons is the most remarkable legislative assembly of
the world.

“It is “, as Gladstone said, “The center of the English political system; the sun around which all
other bodies revolve.”
Composition:

For electoral purposes the United Kingdom is divided into as many constituencies as there are
members of the House of Commons. Its membership has varied from time to time; at present it is
646 members (529 from England, 59 from Northern Ireland). One member is returned to the
House from each constituency .The members of the House of Commons are presided over by Mr.
Speaker.

Tenure:

Tenure of the House of Commons is five years and Quorum is 40 members.

Qualification:

Anyone, male and female, who is a British subject aged 21 or over and is not otherwise
disqualified can strand as a candidate in any constituency at an election of the House of
Commons.

Disqualification:
Those who are disqualified include the clergy; UN discharged bankrupts, holders of judicial
office, civil servants, members of the armed forces and the police force and directors of the
nationalized commercial companies.

Franchise:

According to the representation of people Act of 1969, all the British subjects who are 18 years
of age on above have the right to vote at an election of the House of Commons.

Powers and Functions:

a) Legislative Powers:
For all intents and purposes, the parliament means the House of Commons because the House of
Lords is merely a feeble delayer. The House of Commons has the power to make or repeal laws
and amendments. An ordinary bill passed by the House of Commons can be delayed by the
House of Lords for one year maximum. After this it is sent to the Queen for Royal Assent. A
money bill can be simply delayed by the House of Lords for one month only. Thus, the House of
Commons has a monopoly over the legislative functions and the House of Lords has virtually no
legislative powers.

b) Financial control:

The House of Commons has exercised full control over the financial resources for more than 250
years. In exercising its financial powers the House of Commons performs the following
functions:

Approving finance bills

Voting supplies and estimates of proposed expenditure of the government departments.

Authorizing the expenditure

Granting money and appropriations under the appropriation bills.

The yearly “circle of control” begins with the introduction of annual budget in the early days of
April, the beginning month of the financial year in Britain.

c) Control over the executive:

The third great function of the House of Commons is its control over the executive. This is of the
essence of the mechanism of the British cabinet system. This makes the cabinet responsible to
the parliament and more responsive to the will of the nation. Firstly, the Houses constantly
demands information about the various actions of the government and secondly it constantly
criticizes the actions and policy of the government.

Dr. Finer says:

“The commons, spearheaded by the opposition possesses substantial opportunities for control of
the government.”

Question time:

Every day the House of Commons begin its session (for four days a week) with a question time
of about an hour. During this time any member can ask any question to a minister regarding any
matter, provided they are supplied 24 hours in advance.

d) Lack of confidence:

The house can indicate its lack of confidence in the cabinet by:
Rejecting a govt. Bill

Rejecting the budget

Approving a private member’s bill opposed by the cabinet.

e) Rigidity of party discipline:

With the extension of suffrage the numbers if voters has increased. They can be organized only
by a party which seeks to know their opinion to win the elections. The party also imposes a strict
discipline on its members so that they do not vote against the government policy once elected in
the parliament. This makes the government worse.

“If a government knows that Sane or Silly, right or wrong, drunk or sober, it can force its
proposal through the House by virtue of this disciplinary set up, it is under a lessened necessity
to exercise its powers with the maximum of care and responsibility.”

f) Redress of Public Grievances:

The House of Commons ventilates the public grievances but the party control and discipline is so
strict and the pressure of the government business is so great that no criticism or redress of
grievances can take place of these three functions:
Law making to regulate the life of people

Granting money to the government

To put the issues or matters before the electorate, the people

Speaker of the House of Commons:

Office of the speaker is one of great dignity, honor and power. The speaker is elected on the party
basis i.e. a member of the majority party in the House is elected to this office. But once elected
the speaker becomes absolutely neutral in party politics. There is a convention of the English
constitution that a former speaker would be elected again and again so long as he is willing to
hold this office.
The speaker performs a number of important duties and functions.

1. The speaker presides over the meetings of the House of Commons. He decides who
should address the House. A member who wants to speak must get the permission from
speaker.
2. The speaker interprets and applies the rules. His decision is final. When a member raises
a point of order, the speaker has to give his own ruling according to the precedents
already set by the House. Once he has given his decision, it is considered to be final.
3. The speaker places the questions or motions before the house and announces its decision.
He decides the admissibility of the questions put to a minister.
4. The speaker of the House of Commons can cast his vote in case of a tie. He so gives his
casting vote so to maintain the status quo. The speaker does not take part in the debates.
5. Under the parliament Act of 1911, the speaker has been given the right to certify the
money bills.

Conclusion:

According to R.G Neumann:

“The sovereignty of parliament resides in the House of Commons.”

Bagehot remarks:

“In theory it enjoys vast powers. But in practice, it has become subservient to the cabinet. The
main reason for this is the rigidity of the party discipline.”

3. French constitution
Salient features of french constitution
, France witnessed a grave and very critical situation. On June 1st 1958, the Fourth Republic
came to an end. The National Assembly handed over its law-making power to Gen. De Gaulle
and adjourned. Constitution making was one of the functions that had been assigned to De
Gaulle’s Government by the French Parliament. A small cabinet committee was formed to draft a
constitution, which it prepared within two months. The draft was considered by a Consultative
Committee consisting of 39 members. The committee approved the text of the new constitution.
It was submitted to the people for their approval at a referendum held on September 29th 1958,
which was ratified by an overwhelming majority and became operative with effect from October
4th, 1958 and that was the end of 4th Republic and beginning of, 5th Republic. Following are
the main features of French constitution of 1958

A Written Constitution
The Constitution of the Fifth Republic is a written document, consisting of 92 Article’s divided
into 15 titles and extended to some 15 printed pages. As a document, it is not a well written. It is
as one French writer Rene Capital says, “The worst drafted text in our constitutional history”. It
is so partly because it was drafted in a hurry under conditions of national emergency and also
because it was drafted under Gen. De Gaulle’s inspiration, who had no clear notion of good
government except that it must be strong and authoritarian.

A Rigid Document

The French Constitution is rigid in nature as it follows extraordinary methods for amendment.
Under Article-89 two methods are adopted. One, the President can put the amendment proposal
to both the Houses of the Parliament. If the ‘Parliament passes it by 2/5th or 315th majority it
becomes law. Second, the President of the Republic on the proposal of Prime Minister can put
amendment before the Parliament or deputies themselves can introduce any bill of amendment. It
the proposed amendment is approved by simple majority, the President- can put it before people
at referendum, if the people by majority approve the amendment, it becomes the part of the
constitution.

Mixture of Parliamentary and Presidential System

The French constitution combines the elements of both the Parliamentary and Presidential
systems. The Council of Ministers is responsible to the National Assembly. The Assembly may
question the responsibility of government by a motion of censure. When the National Assembly
adopts a motion of censure or when it disapproves the programme or a declaration of general
policy of the government, the premier must submit the resignation of the government to the
President. On the other hand, it is the President who is both the head of State and head of
Government. He possesses important legislative financial and judicial powers. He presides over
the meetings of the Council of Ministers and meetings of Defence Committee. He is the
commander of the armed forces. He can dissolve the National Assembly. Under Article-16 he has
been given emergency powers that make him a virtual dictator.
Basic Democratic Principles

The basic democratic principles have been incorporated in the constitution. Article-2 states that
France is a Republic, Indivisible, secular, democratic and social. It shall secure the equality of all
citizens before law without any distinction of origin, race and religion. It shall respect all beliefs.
The motto of the Republic is “Liberty, Equality and Fraternity”. National Sovereignty belongs to
the people. Sufferage is universal, equal and secret. Political Parties and groups are guaranteed
freedom to carry on their activities.

Strong Presidency

The constitution provides for a strong President. The position of the President under the previous
Republics was weak. He neither reigned nor ruled. But the present position of the President is
quite strong. He presides over the meetings of the Council of Ministers and signs decrees and
ordinances decided upon by the council. He is the Supreme Commander of the armed forces and
presides over the higher councils and committees of national defence. He can dissolve the
National Assembly. He can assume special powers in an emergency.

Limited Powers of Parliament

New constitution provides for a Parliament with a limited powers. Parliament can legislate on
matters enumerated in the constitution. The government can make laws on all: other matters by
simple decree. Article-37 states, “Matters, other than those that fall within the domain of law
shall be of regulating character”. It means that Parliament is not a supreme law-making authority.
Its legislative competence is restricted. The constitution itself has endowed the executive with
legislative powers.

Bicameral Legislature

The constitution has established a. Bicameral legislature. There are two chambers of Parliament,
the National Assembly which is the lower House consisting of 577 deputies who are directly
elected for 5 years term and the Senate which is the upper House, the total strength of which is
283 elected indirectly by “grand electors” for a period of 9 years retiring 1/3rd every after. 3
years. The Parliament is no longer a supreme body and is placed under superior authority of
President of the Republic by depriving of many of its powers. However, the Parliament has
regained much of its powers, after the departure of Gen. De Gaulle, the father of the constitution
from the political scene.

Constitutional Council

The constitution provides for: Constitutional Council. It consists of 9 members, who are
appointed for the non-renewable term of 9 Nears. Three of them are appointed by President of
the Republic, 3 by the President of the National Assembly and 3 by the President of the Senate.
Its main functions are to ensure the regularity of election of

President of the Republic and to examine the validity of organic laws before their promulgation.
It also settles the disputes between the legislature and the executive.

The High Court of Justice

Article-67 of the- constitution provides for a High Court of Justice. It is composed of members
of Parliament elected in equal number by the National Assembly and the Senate after each
general or partial election to those bodies. It elects its chairman from among its members. Its
main function is to try the President of the Republic for high treason and the members of the
government for their crimes and misdemeanors committed in the discharge of their duties.
The High Council of the Judiciary
The constitution lays down that the President of the Republic shall be the guarantor of the
independence of Judiciary. It provides for High Council of Judiciary to assist It consists of 9
members appointed by the President of the Republic who himself is its President. The Minister
of Justice is its Vice-President. The function of the Council is to present nomination for judges of
the Supreme Court of Appeal and to give its opinion on proposals of the Ministers of Justice in
respect of the nomination of other judges. It is also consulted on questions of pardon.

The Economic and Social Council

The constitution provides for the establishment of an economic and social council whose
function is to give its opinion on the government bills, ordinances and decrees as well as on
Parliamentary bills submitted to it.
Referendum

Another important feature is that the President of the Republic can submit certain issues to the
people at a referendum. Article-II of the constitution provides that the President of the Republic
on the proposals of the government or on joint motion of the assemblies may submit any bill
dealing with the organization of the governmental authorities, entailing approval of the
community agreement or providing for authorization to ratify a treaty that without being contrary
to the Constitution might affect the functioning of existing institution.

Multi-Party System

In France, there is multi-party system. People have been give the constitutional right to form
political association or to join any such association of his own choice. Article-4 of the
constitution declares, “Parties and political groups play a part in exercising the rights- to vote”.
The right to form parties and their freedom of action are unrestricted. They must respect the
principles of national sovereignty and of democracy.
Conclusion:

From the study of these features of French Constitution, we can say that a bold and constructive
attempt have been taken by the Founding Fathers of the Constitution to wipe out the evil of
political instability that had previously plagued the- French political life. The present decidedly
constitutes an improvement over all the previous ones. In this constitution the framers have tried
to put together the experiences of the Past, although it has been labeled by some of the French
writers as, “Tailor made for General de Gaulle”, “Quasi-Monarchical”, “Quasi-Presidential”, “a
Parliamentary Empire”, “Unworkable”, “the worst drafted text in French constitutional history”.
Yet it must be stated on the bases of its working that it has succeeded in giving French a stable
Republican government.

4. Turkish Constitution
DEVELOPMENT OF CONSTITUTIONAL MOVEMENTS IN TURKEY

The Ottoman Empire was among the first nonWestern nations to establish a constitutional
government. Constitutional movements in the Ottoman Empire, which began during the second
half of the 19th century, can be characterized as the product of the following developments: the
decline of the Ottoman societal system, influence of the Western European socioeconomic and
political developments and emergence of an enlightenment age in the Ottoman Empire. They
were topdown constitutional movements in contrast with those of the Western countries.

Two major steps toward a constitutional government were the Rescript of Tanzimat of 1839 and
that of Islahat of 1856. The rescripts were unilateral declarations and recognition by the Sultan of
certain basic human rights. These rescripts also paved the way for the promulgation of the first
Ottoman Constitution in 1876. The 1876 Constitution provided certain mechanisms checking the
absolute power of the Sultan by creating a legislative assembly partially elected by the people. In
1909, the 1876 Constitution was substantially amended to increase the powers of the legislature
and to restrict those of the Sultan for developing a democratic monarchical political system
similar to that of the Western European societies.

The 1921 Constitution established during the War of Independence included rules necessitated
by the conditions and requirements of war. It proclaimed the principle of “national sovereignty”
as an expression of the radical revolutionary transformation in the Turkish society by
establishing the constitutional principle that the Grand National Assembly is the sole and true
representative of the nation. For realizing this purpose, it established an assembly government
system in which all the powers of sovereignty were embodied in the parliament.

1924 Constitution

The Republic of Turkey adopted its first constitution in 1924. It retained the basic principles of
the 1921 Constitution, notably the principle of national sovereignty. As in the 1921 Constitution,
the Turkish Grand National Assembly (TGNA) was considered to be the “sole representative of
the nation.” The 1924 Constitution provided for a continuation of the parliamentary system. Both
the legislative and executive powers were embodied in the Assembly. Although the Assembly
had the power to supervise and dismiss the Government, neither the Government nor the
President had the authority to dissolve the parliament. The 1924 Constitution can be
characterized as a step toward a parliamentary system. The Assembly was able to exercise
executive power through the President and the Council of Ministers. In other words, there was a
clear separation of powers. Meanwhile, the collective responsibility of the ministers before the
Assembly was also adopted. The principle that the President must not bear any political
responsibility was another feature of the 1924 Constitution. The judiciary was totally separated
from the legislative and executive bodies. Judicial power was to be exercised by independent
courts on behalf of the nation.

1961 Constitution
The second constitution of the Republic of Turkey was adopted in 1961. In its macrosocietal
dynamics, the 1961 Constitution represents a positive response to the influence of the rising tide
of the left and social state in the world and the semiindustrialized status of economy in Turkey.
Consequently, it established a constitutional system within the framework of social state, rule of
law and a parliamentarian democratic governmental system.

The 1961 Constitution introduced a bicameral parliament. The National Assembly, one of the
parliamentary chambers, consisted of 450 deputies elected by universal suffrage. The other
chamber known as the Senate of the Republic, included 150 members elected by universal
suffrage. Additionally it would include 15 members appointed by the President, members of the
Committee of National Unity that seized power on May 27, 1960, and former presidents. The
National Assembly had the final say in the lawmaking process.

In the exercise of executive power the President symbolically represented the unity and integrity
of the State. The Prime Minister and the Ministers made up the Council of Ministers, who bore
political responsibility for the use of this power.

The 1961 Constitution fully separated the judiciary, the executive and the legislative branches
under the principle of the separation of powers. In this system, details regarding the security of
judges, as well as matters related to the full freedom and independence of the courts, and the
positions of the judges and public prosecutors were turned over to the “High Council for Judges
and Public Prosecutors.” Furthermore, the concept of the “Constitutional Court” was first
introduced with the 1961 Constitution in accordance with its aim of establishing a fully
developed concept of the rule of law.

1982 Constitution

The third constitution of the Republic of Turkey, in effect today, was adopted in 1982. According
to the 1982 Constitution, unconditional and unrestricted sovereignty is vested in the nation. It has
been stipulated that the TGNA can convene with onethird of the total number of members to
prevent parliamentary deadlocks. The TGNA can make decisions with an absolute majority of
those present; however, the quorum for decisions can, under no circumstances, be less than a
quarter plus one of the total number of members. The fundamental change in the legislature by
the 1982 Constitution was the abolition of the Senate of the Republic. While executive functions
are carried out by the President of the Republic and the Council of Ministers, judicial power is
exercised by independent courts. Article 2 of the Constitution describes the Republic as a
democratic, secular and social state governed by the rule of law.

The Constitution states that all Turkish citizens are united in national honor and pride, national
joy and grief, their rights and duties towards the national entity, blessings and burdens, and in
every manifestation of national life. The Constitution stipulates that the Republic of Turkey is
committed to the nationalism of Atatürk. It also states that the Turkish State is an indivisible
whole with its territory and nation. Democracy is obtained and preserved through state
administration’s adherence to law which limits the legislative and executive powers and provides
a balance between the three powers.

Judicial review of administrative acts and the constitutionality of the laws are considered sine
qua non for the rule of law. Further safeguards for the rule of law in the 1982 Constitution are the
nonretroactivity of criminal laws, the legal judicial process and the prohibition of the denial of
justice. Furthermore, the hierarchy of norms was adopted, preventing the lowernorms from being
violated by the uppernorms. Constitutional Court decisions are binding for the legislative,
executive and judicial branches, the government, all real persons and corporate bodies.
In addition, the 1982 Constitution recognizes all basic human rights such as freedom of speech,
press, communications, travel, right to privacy, right to property. The fundamental social rights
recognized by the Constitution are the right to organize unions, the right to strike and to
collective bargaining, the right to social security, the right to education and the right to medical
care.

The Turkish Grand National Assembly (TGNA) enacted the most comprehensive amendments to
the Constitution on October 3 since it was drafted on November 7, 1982. With this amendment
package, covering 34 articles, the Constitution was revised extensively in an effort to extend
basic rights and freedoms, re-regulate social and economic life. The amendments went into effect
after they were published in the Official Gazette on October 17.

BASIC ORGANS OF THE STATE

LEGISLATURE:

Legislative authority is vested in the Turkish Grand National Assembly (TGNA). The TGNA is
composed of 550 deputies. Parliamentary elections are held every five years. Deputies represent
the entire nation and before assuming office, take an oath, the text of which is included in the
Constitution.

The duties and authority of the TGNA are outlined as follows: to adopt, amend and abrogate
laws, to supervise the Council of Ministers and ministers, to give authority to the Council of
Ministers to pass decrees with the power of law, to adopt the budget and final account draft laws,
to ratify the printing or minting of currency, to make decisions for declaring war, martial law or
emergency rule, to approve the signing of international agreements and to make decisions for
declaring general or special amnesties.

EXECUTIVE:

The executive branch in Turkey has a dual structure. It is composed of the President of the
Republic and the Council of Ministers.

The President
The President of the Republic is the Head of the State. He/she represents the Republic of Turkey
and the unity of the Turkish nation. The President is elected for a sevenyear term by a twothirds
majority of the full membership of the TGNA. Turkish citizens of at least forty years in age can
be elected President by the TGNA’s secret ballot process. They can be either deputies who have
received a higher education or those who are qualified to be elected as a deputy. A President
cannot be elected for a second term in office.

The President of the Republic has functions and authority related to the legislative, executive and
judicial fields. His/her functions in the legislative fields are to convene the TGNA when
necessary, to publish laws and when deemed necessary, to send them back to the Parliament for
discussion, to hold a referendum in Constitutional amendments when he/she considers it
necessary, to file suit with the Constitutional Court claiming a violation of Constitutional law, to
issue decrees with the power of law and regulate the internal workings of the Parliament and to
decide when new TGNA elections are necessary. The executive duties of the President are: to
appoint or accept the resignation of the Prime Minister, to appoint or dismiss Ministers in the
event that he deems it necessary, to chair meetings of the Council of Ministers or summon the
Council to meet under his chairmanship, to appoint accredited envoys to represent the Turkish
State abroad and receive representatives of foreign states, to ratify and publish international
agreements, to act as the CommanderinChief of the Turkish Armed Forces, to appoint the Chief
of General Staff, to convene the National Security Council and to chair meetings of the Council,
to proclaim martial law or impose a state of emergency by a decree to be decided by the Council
of Ministers meeting under his chairmanship, and to issue decrees with the power of law, to
approve decrees as signatory, to commute or pardon the sentences of certain convicts on the
grounds of old age, chronic illness or infirmity, to appoint the members and President of the State
Auditory Council, to conduct investigations, enquires and research through the State Auditory
Council, to select the members of the Higher Education Council, and to appoint University
Chancellors. Duties and authority of the President related to the judiciary are to appoint:
members of the Constitutional Court, one fourth of the members of the Supreme Court of
Appeals, members of the Supreme Military Appeals Tribunal, members of the Supreme Council
of Judges and Public Prosecutors.

No appeal may be made to any legal body, including the Constitutional Court, against decrees
and presidential orders signed directly by the President of the Republic.

The President of the Republic may be impeached for high treason.

The Presidents of the Republic of Turkey:

· Mustafa Kemal Atatürk

(October 29, 1923 November 10, 1938)

· İsmet İnönü
(November 11, 1938 May 22, 1950)

· Celal Bayar

(May 22, 1950 May 27, 1960)

· Cemal Gürsel

(May 27, 1960 March 28, 1966)

· Cevdet Sunay

(March 29, 1966 March 28, 1973)

· Fahri Korutürk
(April 06, 1973 April 06, 1980)

· Kenan Evren

(September 18, 1980 November 08, 1989)

· Turgut Özal

(November 09, 1989 April 17, 1993)

· Süleyman Demirel

(May 16, 1993 May 16, 2000)

· Ahmet Necdet Sezer

May 16, 2000

Prime Minister and the Council of Ministers

The Council of Ministers consists of the Prime Minister, designated by the President of the
Republic from members of the TGNA, and various ministers nominated by the Prime Minister
and appointed by the President of the Republic. Ministers can be dismissed from their duties by
the President or upon the proposal of the Prime Minister when deemed necessary.

When the Council of Ministers is formed, the government’s program is read at the TGNA and a
vote of confidence is taken. Members of the Council of Ministers are responsible for the
execution of general policies. The Ministers assume two kinds of political responsi*bilities. First
is responsibility for the general policy of the government, shared equally by all ministers.
Second, each minister is individually responsible for matters within the jurisdiction of his/her
own ministry and for the acts of his/her subordinates.
The fundamental duty of the Council of Ministers is to formulate and to implement the internal
and foreign policies of the state. The Council is accountable to the Parliament in execution of this
duty.

The Constitution also includes national defense in the section related to the Council of Ministers.
The Office of the CommanderinChief, the Office of the Chief of the General Staff and the
National Security Council form the authorative organizations for national defense.

The National Security Council consists of the Prime Minister, the Chief of the General Staff, the
Minister of National Defense, the Minister of Interior, the Minister of Foreign Affairs, the
Commanders of the Army, Navy and the Air Force and the General Commander of the
Gendarmerie. The NSC makes decisions related to the determination, establishment and
application of national security policy. The Council of Ministers gives priority to National
Security Council decisions where measures deemed necessary for the preservation of the
existence and independence of the state, the integrity and indivisibility of the country and the
peace and security of the society are concerned.

THE COUNCIL OF MINISTERS

Prime Minister Recep Tayyip ERDOĞAN

Minister of Foregin Affairs

And Deputy Prime Minister Abdullah GÜL

Minister of State and

Deputy Prime Minister Abdullatif ŞENER

Minister of State and

Deputy Prime Minister Mehmet Ali ŞAHİN

Minister of State Ali BABACAN

Minister of State Mehmet AYDIN

Minister of State Beşir ATALAY

Minister of State Nimet ÇUBUKÇU

Minister of State Kürşat TÜZMEN

Ministers:

Agriculture and Rural Affairs Mehmet Mehdi EKER

Culture and Tourism Atilla KOÇ

National Defense Vecdi GÖNÜL
National Education Hüseyin ÇELİK

Energy and Natural Resources Hilmi GÜLER

Finance Kemal UNAKITAN

Forestry and the Environment Osman PEPE

Health Recep AKDAĞ

Public Works and Housing Faruk ÖZAK

Industry and Trade Ali COŞKUN

Interior Abdülkadir AKSU

Justice Cemil ÇİÇEK

Labour and Social Security Murat BAŞESGİOĞLU

Transportation Binali YILDIRIM

Duties and Responsibilities of the Prime Minister

The Prime Minister is responsible for ensuring the Council of Ministers functions in a
harmonious manner. He/she supervises implementation of government policy. The Prime
Minister is the de facto head of the executive branch. Each Minister is accountable to the Prime
Minister who in turn ensures that Ministers fulfill their functions in accordance with the
Constitution and its laws.

The Administration

The administration entity, its structure and functions, is regulated by law. The organization and
functions of the administration are based on the principle of centralization and local
administration.
Central Administration

Turkey is divided into provinces based on geography, economic conditions and public service
requirements. Provinces are further divided into administrative districts.

Local Administrations

Local administrative bodies are public entities established to meet the common needs of the local
inhabitants of provinces, municipalities, districts and villages. The decisionmaking organs are
chosen by the electorate prescribed in the law. The structure of the local administrations is
defined by law.
JUDICIARY:

Judicial power in Turkey is exercised by independent courts and supreme judiciary organs. The
judicial section of the Constitution, with the principle of a legal state as its basis, is founded on
the independence of the courts and the judges, and the guarantee of judges’ rights. Judges rule on
the basis of Constitutional provisions, law and jurisprudence.

The legislative and executive organs must comply with the rulings of the courts and may not
change or delay the application of these rulings. Judges also assume the duties of monitoring
elections.

Functionally, a tripartite judicial system has been adopted by the Constitution and accordingly, it
has been divided into an administrative judiciary, a legal judiciary and a special judiciary.

The Constitutional Court, the Supreme Court of Appeals, the Council of State, the Supreme
Military Court of Appeals, the Supreme Military Administrative Court and the Court of
Jurisdictional Conflicts are the supreme courts mentioned in the judicial section of the
Constitution. The Supreme Council of Judges and Public Prosecutors and the Supreme Council
of Public Accounts are also two organizations having special functions in the judicial section of
the Constitution.

HIGHER COURTS:

Constitutional Court

The basic function of the Constitutional Court, established in the 1961 Constitution, is to
examine the constitutionality, in both form and substance, of laws, and decrees with the power of
law and the Rules of Procedure of the Turkish Grand National Assembly. Other functions of the
Court are as follows:

• With the capacity of the High Tribunal, the Constitutional Court judges the following: the
President, members of the Council of Ministers, members of supreme courts, the
chairman and members of the Supreme Council of Judges and Public Prosecutors and of
the Supreme Council of Public Accounts, the Chief Republic Prosecutors and the Deputy
Republic Chief Prosecutors for crimes related to their offices.
• It audits the finances of political parties.
• It examines TGNA decisions to revoke the immunities of deputies, or to dismiss members
of parliament.
• It chooses the Chairman and Deputy Chairman of the Court of Jurisdictional Conflicts.

The Constitutional Court is composed of 11 regular and four substitute members. Decisions are
made when the eleven members convene. The decisions of the Constitutional Court are final.
These decisions cannot be amended in any manner and their application cannot be delayed.
The Court of Appeals

The Court of Appeals is the last instance for reviewing rulings and judgments rendered by
Judicial Courts, provided that they are not referred by laws to another place of jurisdiction.

It is also the first and final authority for specific cases that are defined in the law. The Court of
Appeals reviews the rulings rendered by the Justice Courts, the Criminal Courts, the
Examination Courts and renders verdicts upon appeal. The opinions rendered by the Court of
Appeals are taken as precedents for legal rulings in the lower courts throughout the country, so
that uniform application may be achieved. It is also able to modify its own ruling upon request.
The Council of State

The Council of State is the Superior Court for administrative justice and, as such, is the Court of
last instance. It reviews all rulings rendered by Administrative Courts, unless the laws
specifically refer them to other judicial authorities. Similar to the Court of Appeals, the Council
of State is also the court of first and final instance for specific cases as defined by law. It ensures
the consistency of rulings among the administrative courts.

The Council of State is the highest consultative body of the state, and in this capacity, expresses
its opinions on draft legislation upon the request of the Prime Minister or the Council of
Ministers. It also examines draft regulations and concession contracts. It is responsible for
resolving administrative disputes.

Supreme Council of Public Accounts

The Supreme Council of Public Accounts shall be charged with auditing, on behalf of the
Turkish Grand National Assembly, all accounts related to the revenues, expenditures and
property of government departments financed by general and subsidiary budgets. No applications
for judicial review of its decisions shall be filed in administrative courts.
Supreme Military Court of Appeals
The Supreme Military Court of Appeals is the court of final instance for all rulings and verdicts
rendered by military courts. It is also a court of first and final instance with jurisdiction over
certain military personnel, stipulated by law, with responsibility for any specific trials of these
persons.

Supreme Military Administrative Court

The Supreme Military Administrative Court has jurisdiction over military personnel in
administrative or active military service.

Court of Jurisdictional Conflicts

The Court of Jurisdictional Conflicts is the final authority to settle disputes concerning the
verdicts of the Justice, Administrative or Military Courts. This court is made up of members of
the Court of Appeals, the Council of State, the Supreme Military Court of Appeals, and the
Military Administrative Court of Appeals.

Military Courts

Military Courts have jurisdiction to try military personnel for military offenses, for offenses
committed by them against other military personnel or crimes committed in military places, or
for offenses connected with military service and duties.

State Security Courts

State Security Courts were established to deal with offenses against the indivisible integrity of
the State, against the free democratic order, or against the Republic whose characteristics are
defined in the Constitution, and with offenses directly involving the internal and external security
of the state. The courts consist of a president, two regular members and one substitute, one chief
public prosecutor and a sufficient number of public prosecutors.

The Supreme Court of Appeals is the competent authority to examine appeals against the
judgments of the State Security Court.

Supreme Council of Judges and Public Prosecutors

The Supreme Council of Judges and Public Prosecutors, an independent institution, has the dual
function of acting as the Supreme Council of Judges and as a reviewing body for objections. It
elects the members of the Supreme Court of Appeals, the Council of State and the Court of
Jurisdictional Disputes; decides whether any proposal to abolish a Court or judicial post or
change the jurisdictional direction of any court is appropriate; deals with administrative matters
concerning judges of the Administrative and Judicial Courts and Public Prosecutors who are not
members of the Supreme Court of Appeals or the Council of State.

POLITICAL PARTIES AND ELECTION SYSTEM

In conformity with conditions set forth in the law, every Turkish citizen upon the age of 18 has
the right to vote, to be elected, and to engage in political activities independently or in a political
party, and to take part in referendums.

Privates and corporals serving in the armed services, students in military schools, and convicts in
penal institutions cannot vote.

Elections in Turkey are single stage. According to a proportional representation system, general,
equal and secret ballot elections are held throughout the country on the same day under judicial
administration and supervision. The related law outlines the requirements for Turkish citizens
living abroad to vote. The voter casts his vote in full freedom. The counting, recording and
detailed presentation of votes are done publicly. Every province is an election area and every
alderman’s office is an election precinct.
According to the election law in Turkey, parties obtaining 10 percent of the votes throughout the
country in general elections enter parliament.

Citizens over 18 years of age have the right to form political parties, and to join and withdraw
from them in accordance with established procedure.

Judges and prosecutors, members of higher judicial organs, teaching staff at institutions of higher
education, members of the Higher Education Council, civil servants in public organizations and
corporations, and other public employees not regarded as workers on account of the duties they
perform, students, and members of the Armed Forces, shall not become members of political
parties.

Prior permission to form a political party is not required. Parties are allowed to function freely in
accordance with the provisions of the Constitution and related laws which state that the internal
workings and decisions of political parties must conform to democratic precepts.

A political party consists of its central organs, provincial and country organizations and the party
group in Parliament. All political parties must establish headquarters in Ankara. In order to
establish a political party, the signatures of at least 30 Turkish citizens, eligible for election to
Parliament, are required. The highest authority within the political party is its general council.
The central organization consists of the general council, the leader of the party, the central
decisionmaking and executive boards, the disciplinary board and its caucus.

The Results of the General Elections (Nov. 3, 2002)

Following the November 3 elections, the Justice and Development Party (AKP) received 363
seats in the 550-seat assembly. Only one other party, the Republican People’s Party (CHP),
exceeded the 10 % vote threshold to enter parliament.
The Justice and Development Party (AKP) won an overwhelming victory and thus a majority in
parliament in the general elections held on November 3. At a huge celebration at party
headquarters, AKP Leader Recep Tayyip Erdoğan said: “We will not waste our time showing off
our victory. We will build a Turkey where common sense prevails.”

While, the Justice and Development Party (AKP) has 14 female deputies, the Republican
People’s Party (CHP) has 12.

The Justice and Development Party (AKP) claimed victory in the November 3 elections, paving
the way for Turkey’s first single-party government to assume power in over a decade. According
to the official results, the AKP and the Republican People’s Party (CHP) were the only two
parties out of 18 to attain the 10 % threshold required to enter parliament. In addition, nine
independent candidates won seats in parliament. Some 10 million of Turkey’s total 41.5 million
voters did not cast their ballots in the elections. The AKP won 34.29 % of the votes, which
amounts to 363 seats in parliament, while the CHP won 19.38 % of the votes, winning 178 seats.
Meanwhile, the three coalition parties of the current government were all defeated, with the
senior Democratic Left Party (DSP) getting 1.22 %, the Motherland Party (ANAP) 5.13 %, and
the Nationalist Action Party (MHP) receiving 8.36 % of the votes. Tansu Çiller’s center-right
True Path Party (DYP) hovered just below the 10 % threshold with 9.54 % of the votes.

On November 10, the Supreme Election Board (YSK) announced the official results of the
November 3 general elections. According to the official results, 32,768,161 out of 41,231,967
voters cast their ballots in the elections. A total of 31,528,783 votes were considered valid. The
YSK announced that the Justice and Development Party (AKP), which received 10 million 808
thousand 229 votes, and the Republican People’s Party (CHP), which won 6 million 113
thousand 352 votes, were the winners in the elections.

On November 21, independent Elazığ Deputy Mehmet Ağar joined the True Path Party (DYP).
With this action, the DYP has become the third party represented in parliament, along with the
ruling Justice and Development Party (AKP) and the opposition Republican People’s Party
(CHP).

Vote of confidence:

On November 16, President Ahmet Necdet Sezer gave the mandate to Abdullah Gül, Deputy
Chairman of the AKP, in order to set up the new government. Abdullah Gül announced his
cabinet on November 18. President Ahmet Necdet Sezer approved the list of ministers for the
58th Cabinet headed by Prime Minister Abdullah Gül. The list consists of 25 ministers, all of
them deputies from the ruling Justice and Development Party (AKP).

Founded only one year ago, the AKP faces a court case, which could outlaw it. In addition, its
leader has been banned from assuming a government post by the courts. AKP Leader Recep
Tayyip Erdoğan is banned from becoming a parliamentarian and prime minister due to his still
continuing five-year ban from politics after being convicted of inciting hatred among religious
groups.

Members of the AKP government took office on November 19 after hand-over ceremonies in
ministries. The program of the government was read out in the session of Parliament on
November 23, debates on the program were held on November 26 and the new government
received a vote of confidence from Parliament on November 28, two days after the completion of
debates on the program.

Local Elections
Elections for local administrations are held every five years. Byelections are held in the
following cases: if elections in an electoral region are cancelled due to procedural irregularity; if
a provincial assembly or a city council is dissolved by the competent authority; if the majority of
seats in a provincial assembly or a city council is vacated for any reason; and if, for whatever
reason, the mayoralties are vacated. All Turkish citizens 25 and older can be elected mayor or
become a member of provincial assemblies and city councils providing the following conditions
are fulfilled: all candidates must have completed primary school education, have full legal rights,
have completed military service, have no prison record of one year or more, must not have been
convicted of embezzlement, corruption, bribery, theft, fraud, forgery, breach of trust or
fraudulent bankruptcy, or of smuggling, conspiracy in official biddings or purchases, offenses
related to the disclosure of state secrets, involvement in ideological and anarchistic activities, or
incitement and encouragement of such activities. Furthermore, a candidate must have resided in
the electoral area for at least six months.

In local elections, a proportional representation system, based on a ten percent barrier, is

implemented for membership to provincial assemblies and town councils. For mayoral posts the
simple majority system is used. In electing members of the provincial assemblies, each
administrative district is an electoral region. In elections for mayoral posts and city council
members, each city is an electoral region. Voters elect a metropolitan mayor in cities comprising
an electoral region of more than one administrative district. Votes are cast in metropolitan areas
also for mayoral and city council posts in each administrative district.

5. Indian constitution:
The constitution of India is remarkable for certain unique features of its own. According to Sir B.
L. Mitter, “Some of the distinctive features of the Constitution of India are: the disappearance of
the princely order, sovereignty of the people, adult suffrage, joint electorate, the abolition of
Privy Council’s jurisdiction and substitution of the Supreme Court in its place, the abolition of
titles and un-touchability, civil equality irrespective of religion, enumeration of fundamental
rights, directive principles of the State policy, the creation of the President and Cabinet System
of Government and the establishment of a Secular State.”

Salient Features

1. Written, Lengthy and Detailed:

The Constitution of India is very elaborately written which makes it the most voluminous
constitution in the world. It has been the endeavor of the framers of the constitution to provide
for the solution of all problems of administration and governance of the country. Even those
matters which are subject of conventions in other countries have been put down in black and
white.
 2. Rigid and Flexible:

The Indian constitution is partly rigid and partly flexible. The procedure laid down by the
constitution for its amendment is neither very easy, as in England nor very difficult as in United
States. A constitutional amendment can be initiated in either House of the Parliament. It can be
passed by an absolute majority of the total membership of each House voting separately and two-
third majority of the members present and voting. But certain parts of the constitution can only
be amended with subsequent ratification by legislation of at least half of the States.

3. Sovereign Democratic Republic:

The Preamble to the constitution declares India to be a Sovereign Socialist Secualr Democratic
Republic.

4. Partly Federal and Partly Unitary:

The constitution declares that India shall be a Union of States. It possesses double set of
Governments. All the subjects of administration have been divided between the Union of
Government and the State Governments. There are three lists:

a) Union List which contains items of exclusive jurisdiction of Indian Parliament.

b) State List which contains items of jurisdiction of State legislature.
c) Concurrent List which contains such items upon which both the Parliament and
State legislatures can make laws concurrently

Although the Indian state is federal in form yet it has so strong a Centre that some critics have
called it Federal in form but unitary in spirit. The Powers of the Indian Parliament mentioned in
the Union List are very wide. It can legislate even on the State List under certain circumstances.

5. Parliamentary System of Government:

The Constitution establishes Parliamentary type of Government both at the Center and the Units.
Though the President is elected indirectly and is the Head of the Executive of the Union, the real
powers are vested in the Cabinet which is collectively responsible to the Lok Sabhha. Similarly
in the State, Governor is the head of the executive but real powers are exercised by the Council
of Ministers which is responsible to the Legislative Assembly.

6. Single citizenship:

Although India has a Federal government yet double citizenship has not been provided. All the
Indians irrespective of their domicile enjoy a single citizenship of India whereas in United States
all the citizens enjoy the right of double citizenship.

7. Establishment of a Welfare State:

Though the constitution of India does not clearly commit itself to any specific economic theory,
yet the Preamble of the constitution together with the Directive Principles of State Policy hint at
the establishment of a socialist state in India.

8. Fundamental Rights:

The constitution of India also includes a separate chapter guaranteeing Fundamental Rights to all
the citizens. These rights are justifiable and inviolable. They are binding on the legislature as
well as on the executive. If any of the rights is violated, a citizen has the right to seek the
protection of the judiciary.
9. Official Language:

In a country with diverse cultural traditions and languages, it is essential to declare some
common language as the national language, symbolic of the unity of the different States in the
country. The constitution declares Hindi in Devanagri script as the official language of the
country.

10. Compromise between Judicial Supremacy and Parliamentary Sovereignty:

The constitution of India is a refined blending of Judicial Supremacy and Parliamentary

Sovereignty. The Indian constitution strikes a golden mean by avoiding Judicial Supremacy of
the American type and Parliamentary Sovereignty of the British type. The constitution provides
that the Supreme Court of India can declare an Act of Parliament or State Legislature null and
void only if it contravenes a specific provision of the constitution or Fundamental Rights of the
people etc. the Supreme Court does not have any power of Judicial review and cannot stand in
judgment over the Sovereignty will of the Parliament representing the will of the entire
community.

11. Accumulation of borrowed Wisdom of the World:

The constitution makers borrowed suitable and tried Principles of other constitutions of the
World. They did not want to produce as original or unique Constitution, what they wanted was a
good and workable constitution. Thus Parliamentary type of government has been adopted from
England. The Supreme Court and chapter on Fundamental Rights show the clear influence of
constitution of United States of America. From Irish State, came the inspiration of the Directive
Principles of State Policy. The Federation of India is set on the pattern of Canada where
residuary powers are bestowed on the center.

Indian President

“Indian President enjoys no powers but he can exercise a lot of influence” (Jawahar Lal Nehru)
The Indian President is the head of State. He is the chief executive head of the Union
Government. The constitution confers extensive powers on the President of the Indian Republic.

1. Executive Powers:

President is head of Indian Union. All executive action is taken in his name. He is the supreme
commander of the Defence Forces of the Union. He has the power to take any military action in
case of danger in anticipation of its subsequent approval by Parliament. He makes all important
appointments such as Governors of the States, ambassadors and other diplomatic representatives,
Chief Justice and Judges of the Supreme Court and of the High Courts etc. He also makes
appointment of the Prime Minister and on his advice, of other Ministers of the Union
Government.
2. Legislative Powers:

The President enjoys extensive powers in the legislative field. The Union legislature consists of
President and the two Houses of Parliament. The President is thus an integral part of Parliament.
He summons, adjourns and prorogues both the Houses of Parliament and dissolves the Lok
Sabha on the advice of the Prime Minister. All Bills passed by Parliament receive his assent
before becoming laws. He may withhold his assent from all Bills other than money Bills. The
President may issue ordinances at any time, when Parliament is not in session. Such ordinances
have the same force as an Act of Parliament. An ordinance issued by the President must be
placed before parliament as soon as it meets. It ceases to operate six weeks after the re-assembly
of Parliament unless it is approved by the House in the meantime.

3. Financial Powers:

The President enjoys several financial powers. Before the beginning of financial year, he causes
to be laid before Parliament the annual budget and the supplementary budget, if any. No Money
Bill can be introduced in Parliament without his prior recommendation.

4. Judicial Powers:

The President enjoys the power to grant pardon, reprieve or remission of punishment to any
convict, particularly in all cases involving punishment with death. He appoints judges of the
High Courts and Supreme Court and thus enjoys a great judicial patronage. He makes their
appointments with the consultation of such judges of Supreme and High Courts as he may deem
fit to consult.

5. Legal Immunities:

The President enjoys certain legal immunities. He is not answerable to any court of law for the
exercise and performance of the powers and duties of his office. No criminal action can be taken
against him in any court in India during the term of his office.
 6. Emergency Powers:

The President has been given wide powers to meet emergencies. The Constitution envisages
three kinds of emergencies:

a) Emergency arising out of war, external aggression or armed rebellion.

b) Emergency arising out of the failure of the constitutional machinery in the States.
c) Emergency arising out of the threat to financial stability or credit of India.
7. President and the Cabinet:

The Constitution provides that “there shall be a Council of Ministers with the Prime Minister at
the head to aid and advice the President in the exercise of his functions.” The number of
Ministers has not been fixed by the Constitution as it may change from time to time according to
requirements. The Prime Minister is appointed by the President and other Ministers are
appointed by the latter on the advice of the former. The Ministers hold office during the pleasure
of the President. The constitution does not bind the President to follow the advice tendered by
the Council of Ministers.

In the opinion of Dr. K. V. Rao, “the survey of the powers of the President clearly shows that our
constitution creates a very powerful executive, perhaps the most powerful in the world. With his
powers regarding issuing of ordinances, declaration of emergency, suspension of autonomy of
the States, suspension of fundamental rights, this statement is more than justified.”

Indian Federation

India has a vast territory with a great diversity of race, religion and language. Such a big country
cannot do without a federal form of government. The Framers of the Indian Constitution were
convinced of the importance and necessity of a federal polity for India. The inclusion of the
former princely states in the new set-up made it all the more imperative to frame the constitution
of India on federal lines since the princely states would not have agreed to join the rest of India if
it were a unitary State. All these factors contributed to the ideal of having a federation for India
since a federation provides unity at the center and allows autonomy in local and cultural matters.

Some features of Indian Federation are:

1. Division of Powers:

The Constitution of India declares India to be a Union of States. The Constitution draws up three
lists of subjects i-e the Union List, State List and Concurrent List. The center is competent to
administer all the subjects contained in the Union List. The States are authorized to deal with the
subjects placed in the State List. The concurrent subjects are under the joint jurisdiction of both
the center and states.

2. Supremacy of the Constitution:

The constitution is the supreme law of the land. Both the Union government and the State
governments drive their authority directly from the constitution and no authority in India can go
against the constitution. The Judiciary in India has the authority to declare null and void any law
or executive order that might go against any provision of the constitution.

3. Written constitution:

The constitution in a federation is considered to be a sacred agreement on the basis of which

states agree to form a Union. It is essential that the constitution of a federation must be a written
document containing all the provisions governing the relations between the federal center and the
federating states.

4. Special Judiciary:

India possesses a Supreme Court which acts as a guardian and interpreter of the Constitution.
The existence of a Supreme Court with special powers is always essential for a federation.

5. Dual Polity:

The Indian constitution establishes a dual polity with a double set of governments i-e Central
government and State governments. The sphere of authority of each part is clearly defined in the
constitution.

Unitary Biasness:

The foregoing account of the federal aspect of Indian constitution proves beyond doubt that India
has got a federal form of government. But the Indian federation is a class by itself. It has certain
special features which make the centre strong against the federating units.

a) Single Citizenship:

In a federation like that of America, each citizen enjoys double citizenship, citizenship of the
state where in one is domiciled and citizenship of the federation as a whole. But the Republican
Constitution of India establishes a dual polity with a single citizenship. This means that
constitutionally all Indians are labeled as Indian alone, not as Punjabis, Bengalis, Beharis etc.

b) Excessive authority of the Center:

A weak Central Government is the essence of federalism. But out constitution has created a very
strong constitution. The powers are distributed between the Union and the States in such a way
as to make the Center very powerful.

c) Residuary Powers:

In a federation like that of America, the residuary powers are enjoyed by the states but in the
Indian federation, the residuary powers are vested in Parliament. This tends to increase the
powers of the Center.
 d) Emergency Powers of the Center:

The strength of the center can be immensely increased during the times of war and other national
emergencies. Under such contingencies, the President of the Indian Union can assume
extraordinary powers which may amount to suspension of the autonomy of the States.

e) Flexibility of the Constitution:

The Indian federal system is not so rigid as is the case with most other federations of the world.
The method of amending the Constitution is rather simple. Major part of the constitution can be
amended by the Union Parliament itself without the approval of the State Legislatures. This fact
also emphasizes the strength of the Center.

f) Inequality of Representation:

In the Swiss and American federations, the upper chamber generally secures an equality of
representation to federating units irrespective of their size and population. The lower chamber is
supposed to represent the national interest and the upper chamber represents the local interests of
the states. In the Indian Union, however, the principle of equality of representation of the units in
the upper chamber has not been followed as the states are represented in the Rajya Sabha on the
basis of their populations. This fact again proves the inherent unitary nature of Indian Polity.

g) Single Judiciary and Uniform System of Civil and Criminal Law:

The Constitution provides for a single integrated judicial system for the whole country. The
Supreme Court and the High Court are links in the same chain. There is also a single Civil and
Criminal Code for the entire country. This fact is clearly indicative of the unitary character of
Constitution.

Conclusion:

All the factors mentioned above show that the Indian Constitution is federal in form but unitary
in spirit. It has made the Union very strong at the expense of the States. Dr. K. P. Mukherjee was
of the view that the “Union of India does not satisfy any one of the conditions enshrined in the
federal principles. On the contrary, Indian constitution in its first four chapters makes it amply
clear that it is a unitary constitution and whatever categorization of the units of the Union and
distribution of power between the Center and States has been done is all for the sake of
administrative convenience and these may be withdrawn at any time.”

__________________

6. Chinese Constitution:

“Mao led one of the greatest political movements of history, an effort to use doctrine and new
organizational forms to reshape, mobilize and modernize the immense Chinese nations. Where
there had been chaos, his movement brought order and unity. It restored the national image,
making China respected militarily and politically. It eliminated much of the dire poverty and
hunger that had beset the old China.” (Robert Wesson)

People’s Republic of China stands distinct amongst those countries, which made tremendous
progress after independence within a short period of time. The Chinese tackled most of their
problems very successfully and emerged as a big power. People’s Republic of China came into
being in 1949, after putting up a long and valiant struggle full of hardships, on the basis of
Socialist Revolution. The country had to pass through a state of civil war for decades together.
The adversaries were the Communists and the Nationalists, whose rivalries added to the miseries
of the society.

In the new polity, the leadership of the Communist Party started working for the establishment of
an ideal Socialist order with full missionary zeal while uprooting the old traditions and remnants
of the socio-political and cultural past. They achieved their target to a considerable extent.

Constitutional History:

The constitution of 1954 of People’s Republic of China was the first constitution of Socialistic
nature. After its implementation many deep changes took place in political, economic and
cultural walks of life apart from varied nature of external environments on the global scene,
thereby ranking certain parts of the constitution as obsolete. Then in 1975 new constitution was
adopted. It was in the nature of an advanced step of the previous constitution and regarded rather
its continuity. Much advancement took place and targets met after the implementation of 1st and
2nd constitutions of People’s Republic of China. So again a new constitution was framed by
National People’s Congress on 5th March 1978.

After the death of Mao Zedong in 1976, Deng Xiao Peng emerged as the supreme leader. He
immediately announced that his priority was to modernize China. To cope up with the new
political developments effectively, a committee was formed in 1982 under Zeng Zon to
undertake the revision of the constitution. Eventually the committee announced that drafting of a
new constitution was indispensable in the face of important changes of historical significance.
The new constitution was approved in December 1982, by 5th National People’s Congress.

Salient Features of Constitution:

1. Preamble:

The new constitution like the previous documents signifies and eulogizes the memorable
sacrifices and unparalleled services rendered by the Communist leadership for the attainment of
independence and bringing Socialist Revolution. The paramount position of Marxism, Leninism
and Mao’s teachings has been acknowledged in relation to ideological goals of the political
system. Traditional principle of Democratic Centralism has also been given due place within the
Constitutional setup. The old definition of China as a “Dictatorship of the Proletariat” has been
replaced with “People’s Democratic Dictatorship.”

The Preamble clearly recognizes Taiwan as the integral part of China and its liberation is
declared as a liability of Chinese People. Five points have been set as the underlying principles
to be observed in the field of foreign relations. These include:

a) Respect and Preservation of the territorial integrity of all nations

b) Avoidance of aggression

c) Non-interference in the internal affairs of other countries

d) Promotion of international cooperation

e) Peaceful coexistence

2. Nature of Constitution:

Constitution of 1982 is a brief document comprising only few chapters. It has closer affinity in
letter and spirit, with the constitution of the former Soviet Union. It is neither too rigid nor too
flexible.

3. Basic Principles:

Under the constitution, People’s Republic of China is a Socialist State established in the name of
People’s Democratic dictatorship, whereas Communist Party performs the leadership role to
guide the people. People are declared as fountain of power and authority and they will exercise it
through National People’s Congress.

4. Economic System:

The constitution signifies two kinds of property, socialist property of the people and the other
form is collective ownership of the workers. The assets created through individual earnings
within the orbit of law, are also declared legal. All socio-cultural activities, according to a
constitutional requirement, are supposed to be subservient to Socialistic values, as interpreted by
the teachings of Marx, Lenin and Mao.

5. Unitary System:

Most of the countries in the contemporary world have federal system, as this system has full
potential to maintain a suitable balance between centralism and regionalism. Former Soviet
Union had the same system but unitary system prevails in People’s Republic of China within the
constitutional framework. A strong central government exists while regional governments, as
distinct entities, have not been created under the constitution. In order to encourage people’s
participation in public policy-making and preserve their interest in public affairs, decentralization
has been introduced in the governmental affairs. The central government has delegated much
authority and powers to the regional and local administrative units.

6. Democratic Centralism:

Like the political system of former Soviet Union, the principle of “Democratic Centralism”
prevails in People’s Republic of China as well. Keeping in view democratic norms, elective
principle has been introduced at all levels not only within the governmental institutions but also
within the Party organization. All the citizens have been secured the right to vote on the basis of
adult suffrage.
7. One Party System:

Communist party enjoys almost dictatorial powers within the constitutional framework and has
been regarded as the sole source of political authority for all practical purposes. Party
organization runs parallel to that of the governmental institutions. Party elite holds all top-notch
positions in the government. In practice, no other political party enjoys real freedom to act.
Certain youth organizations, loyal to the party and working groups affiliated with the Party,
enjoy the right to participate in decision-making.

8. Legislative Branch:

National People’s Congress holds important position as law-making body. Its sphere of activity is
not restricted to the aforesaid fields only; it also elects the members of various government
departments. State Council, which stands as the most superior administrative institution, is
accountable to the Congress. The appointment of the President of the Republic and that of the
Vice President is on the discretion of the Congress.

Congress consists of one chamber and unlike its Western counterpart; it does not enjoy the status
of a powerful law-making body. The real function of the Congress is to transform the aspirations
of the Party leadership into law. Importance of the Congress lies in the fact that most of the
important members of the Chinese Communist Party are also the members of the Congress.
9. Nature of the Executive:

Under the constitution, State Council is the chief executive organ of the government. It is
headed over by the Prime Minister and all its members are elected by the Congress and
accountable to it. Enforcement of law, formation and execution of the administrative policy is
the major function of the council. The members of the State Council introduce the bills on the
floor of the Congress in the form of proposals and later manage to get these translated into
law on parliamentary lines. The Premier performs very important role as head of the
administration and holds pivotal position within the administrative set up.

President of the Republic is regarded as head of the state who is elected by the Congress for a
period of five years. The President enjoys the most prestigious position in the administrative
setup. The respective role to be performed by both the office holders depends on personal caliber
and contemporary political scene. The constitution does not throw much light on this issue.

10. Nature of the Judiciary:

Peculiar type of judicial system operates in China. Chinese law never been codified in a
systematic form. Most of the disputes and controversies are settled in quasi-judicial institutions.
Chinese juridical system has been held together more by the conventions rather than by the laws.

11. Rights and Obligations:

Articles 33 and 56 of the constitution prescribe basic rights and duties of the citizens. All citizens
at least of 18 years of age are secured right to vote and they enjoy also the right to contest the
elections. Right to secrecy of all correspondence, freedom of expression, freedom to join or form
association, and right to hold public meetings even to the extent of staging demonstration or
resort to strike for articulation of demands, have been secured under the constitution. Moreover,
all the citizens have right to religion.

According to the constitution, the government is under obligation to afford full protection to the
preservation of family life in addition to the integrity of a person. All citizens have the right to
personal security against illegal detention. The constitution also recognizes equal right of all
citizens to education and cultural freedom. Equality of men and women has also been recognized
in all areas of life.

Obligations:

Chinese constitution prescribes explicitly certain duties of the citizens along with rights. It is the
first and foremost obligation on the citizens to cooperate with the Socialist leadership in every
respect, abide by the constitution and all other state laws. They are required to protect public
property and extend a helping hand in the maintenance of law and order. To defend the country
against foreign aggression is also another duty of the citizens and for that purpose everyone is
required to join the army or Malatia, as the law demands.
12. Nature of the Elections:

The Communist Party has been given legal recognition as the repository of political leadership in
the political system. In the past only such candidates were considered eligible to contest the
election to various political offices, as had staunch faith in the teachings of Marx in addition to
having been nominated by the Party as well. But after the liberalization policies adopted by Deng
Xiao Peng, certain other parties are also allowed to put their candidates in the contest. Only such
parties and organizations are allowed to nominate their candidate as are recognized by the
Chinese Communist Party. All the citizens at least 18 years of age are enfranchised on the
principle of adult suffrage. The voters are duly bound to cast their votes.
“The nature of our State as a People’s Democratic Dictatorship determines that in China, it is the
people and the people alone who are the masters of the state and society.” (Pengzhen)

National People’s Congress:

National People’s Congress is regarded as the superior most institution and as the repository of
the governmental authority. It has been declared as an organ through which the people exercise
state power. Therefore, the People’s Congress System is China’s fundamental political system.
Congressmen are elected by regional Congresses, by autonomous regions, by Municipalities
working under the central government and by People’s Liberation Army, each according to its
quota. The mode of election is based on secret ballot while the constitution guarantees holding of
free and fair elections.

Duration:

The Congressmen are elected for a period of five years but the Congress can be dissolved before
the expiry of its term and it can be extended as well. The Standing Committee of the Congress is
responsible to make proper arrangements for holding fresh elections prior to the completion of its
term.

Sessions:

Sessions of the Congress is held once a year in Beijing. Standing Committee of the Congress
normally summons its session. In addition to it, the Chairman of the Congress can also summon
the session on the request of one fifths of its members.

Powers:

National People’s Congress is the supreme law-making body, which is fully authorized to enact
laws, alter or repeal the existing ones. It also approves the administrative policy for the state.
Another most important power lies in its choice of government officials.
1. Enactment of Laws:

During its sessions, the Congress enacts new laws and makes necessary alterations in the existing
ones, if circumstances so demand. Constitution can be amended with the support of two-thirds
majority of the members of the Congress whereas ordinary laws are enacted by simple majority.
It is to be noted, that the acts of the Congress cannot be challenged in the Supreme Court

2. Executive Powers:

National People’s Congress is also empowered under the constitution, to supervise the execution
of constitutional laws and the statutes. It can affect and control administrative policies through its
choice regarding the appointment of superior public officials. All the administrative departments
along with their incharge ministers are accountable to the Congress in respect f performing their
official functions. Congress also exercises the power to approve National Economic Policy and
the annual budget. Congress is fully authorized under the constitution to exercise all such powers
as it thinks expedient and necessary within its sphere of action.

3. Elective functions:

Congress holds a pivotal position within governmental structure by virtue of its power to elect
the top-notch occupants of the governmental authority. Under the new constitution, it also elects
the President and Vice President of the Republic and appoints Premier of the State Council on
the recommendation of the President. On the advice of the Prime Minister, it also appoints other
ministers. Congress is also empowered to remove the ministers. It also exercises the power to
appoint or remove the President of the Supreme Court and Chief Procurator of the Supreme
Procurate.

Role Analysis:

Though the People’s Congress is constitutionally fully authorized to exercise all the foregoing
powers, in practice it is not an active body. Rather its position, considering from democratic
view-point, as a free law-making body is merely in theory. Its major reason lies in the fact that
rarely its sessions are held on regular basis. It meets in session once a year, that too continues for
not more than few days. The deputies do not find sufficient time to participate effectively in
deliberations due to excessive load of work. The powers of Congress are virtually exercised by
its Standing Committee during much time of the year.

Standing Committee

The Standing Committee of the Congress is an effective and active body, as it exercises, in
practice, most of the congressional powers. It is outwardly a subordinate body to the Congress,
as a matter of principle. It is accountable to the parent body and is bound to present regularly
reports of its working. All the members of the Committee are elected by the Congress and liable
to be removed on its discretion.
Chairman:

Chairman of the Committee has been regarded as the most powerful person in the political setup.
He presides over the meetings of the Standing Committee. Quite recently he was also endowed
with the power to issue decrees and promulgate ordinances. To receive the diplomatic envoys of
other countries, ratification of the treaties made with other countries and the appointment of the
members of diplomatic corpse assigned to other countries, these all were included in the list of
his duties. He is also regarded as the fountain of honor.

Powers:

1. The Committee summons the sessions of the Congress in addition to the issuance of the
orders to hold its fresh elections.
 2. It performs the function of interpreting the statutes as well as the laws of the constitution.
The performance of this judicial type of function enhances its importance and the scope
of power.
3. To supervise the functioning of State Council, of superior courts and that of Procurator
has been assigned to the Standing Committee by the Constitution.
4. The Committee has the authority to alter or repeal any inappropriate decision of the
official departments, of the autonomous regions, provinces and that of the Municipalities
working under the Central government.
5. Standing Committee of National People’s Congress is actually the repository of real
powers during the interval the Congress is out of session. During this period it wields the
authority to issue orders regarding the appointment of new ministers and removal of the
previous ones, on the advice of the Premier. It can issue orders for the appointment or
removal of the Vice President of the court and that of the Deputy Chief Procurator.

Other Committees:

The People’s Congress forms during its term number of Committees such as National Committee
on fiscal and economic affairs, Committee on education, science, culture and health issues,
Committee on foreign affairs, Committee on matters relating to Chinese settled abroad. All these
committees work under the supervision of the Standing Committee of National People’s
Congress during the period the latter is not in session.

Conclusion:

Keeping in view the aforesaid functions and powers of Standing Committee, it is apparent that it
is a powerful and effective body. As the Congressional annual session lasts to few days only, its
powers are virtually exercised by the Standing Committee for the remaining period the parent
body is not in session. The Committee’s members, being the members of the Chinese Communist
Party, also performs important role in administrative affairs as well.

Communist Party:
Chinese Communist Party came into being in 1921. Lenin sent one representative to China to
assist in organizing the newly established party. Cheng Tu-hisu was appointed as the first
Secretary General of the Chinese Communist Party and within a short period many branches of
the Party were established in the cities and the towns.

Ideological Foundations:

Ideology of Chinese Communist Party had been shaped by the teachings of Marx and Lenin right
from its inception. It developed deep linkage with the global Communist Movement at its early
phase. Mao performed pivotal role in the whole socialist struggle of the Chinese People. As a
result, his precepts and thinking was held in esteem by the Chinese Communists. Certain distinct
and peculiar features of Chinese Communism gradually developed under the impact of Mao’s
approach.

Mao fully devoted himself and adopted certain revolutionary steps to educate the party workers
and thereby put a new zeal, enthusiasm and homogeneity in their lines. In addition, he made all
efforts to eliminate diversities in all nationalities so as to foster national integration. It was
further putting all efforts on these lines that he waged armed struggle.

The Post Revolutionary Phase of Cultural Revolution (1966-76) is known as a period full of
turmoil and turbulence as the country had to undergo through many crisis. Many important office
bearers of the Party were forced to quit the first rank leadership so much that even the top leaders
like Deng Xiao Peng were expelled twice from the government and the Party. Even the expected
successors of Mao were also maltreated. But after the death of Mao, his widow and some of his
old companions became the targets of governmental vengeance. Deep and profound changes
took place in the composition of the party leadership as well as in the party policies.

Party Organization:

Chinese Communist Party has been organized on a wider scale and it lays too much stress on the
maintenance of strict discipline, education and training of the members. The candidate aspiring
for membership has to undergo a long process, full of trials and hardships. His loyalty to the
party and potential is fully tested during the training period. Any Chinese citizen at least 18 years
of age, is qualified to apply for acquiring party membership subject to the condition that he is
willing to abide by the provisions of the Party Constitution, observe disciplinary rules, assist in
the execution of the Party decisions and pay party funds etc.

Democratic Centralism:

Democratic Centralism operates as an important principle within the party organization.

Accordingly all office bearers of the Party are elected. Primary unit of the Party elects District
Congress while District Congress elects the deputies of the Congress of the upper level. Party
members enjoy right to criticize party leadership and many initiate proposals for framing party
policies. On the same pattern, primary party branches may lodge complaints for the
consideration of higher leadership. On the other hand, strict party discipline is maintained and
strong centralism operates in the decision-making process. To abide by the decisions of the
leadership of higher party ranks, is obligatory on the lower party branches and in practice most
of the decisions are thrusted from the higher party leadership within the central leadership,
normally one person enjoys the pre-dominant position.

Politburo:

The Politburo has been regarded as the most powerful body in the decision-making process as it
makes all important decisions; so much that it summons the sessions of the Central Committee. It
also has a standing committee consisting of seven members. Like its counterpart within the
government, the Standing Committee of the Politburo exercises all the powers of Central
Committee during the period the latter is not in session.

National Party Congress:

National Party Congress holds a pivotal position in the policy-making of the Party. Members of
the Congress numbering in thousands with no fixed size are elected by the respective regional
and local party congresses for a period of five years.

Central Committee:

The Congress holds its sessions once a year which extends to few days only. The Central
Executive Committee, comprising limited membership exercises the power of the Congress
during the interval the latter is not in session. The powers of the Central Executive Committee
are also exercised in practice, by its Politburo as the former rarely holds its meetings. The
Central Committee elects the members of its Politburo, as well as its Chairman and Vice
Chairman.

Other Parties and Groups:

Single party system, on the lines of Soviet Union, has not been adopted in People’s Republic of
China, rather such smaller parties, as Kumintang Revolutionary Committee, Democratic League,
National Construction Association and various Youth Organizations are allowed to function.
Hence China is a multi-national and multi-party country. In China, the term democratic parties
refer to the eight other parties apart from the Chinese Communist Party. These have developed
cooperation with Chinese Communist Party on different levels since the inception of the new
order.

Conclusion:

Communist Party enjoys political monopoly in China while other parties have merely dejure
existence. Party Organization runs parallel to that of the government. A person holding important
position as public official is also assigned office within the Party. The Central leadership of the
Party is mainly responsible for chalking out governmental policies. The importance of any
government department can’t be assessed keeping in view merely its legal status rather its role
within the Party meters.

13. The Political System of Pakistan

Pakistan’s political system is a complex interplay between democratic institutions and a history
of military rule. Here’s a breakdown of its key structures:

• Federal Parliamentary Republic:

Pakistan is a federation, dividing power between the federal government and four provinces
(Punjab, Sindh, Khyber Pakhtunkhwa, and Balochistan).

• Islamic Republic:

Islam is the state religion, but the constitution guarantees freedom of religion for minorities.

Federal Government:

a. Executive Branch:
• Led by the Prime Minister, who is the head of government and leads a cabinet of
ministers.
• The Prime Minister is chosen by the National Assembly and holds power as long as they
maintain the assembly’s confidence.

b. Legislative Branch:

Bicameral legislature:

• National Assembly (Lower House): More powerful house with 342 members directly
elected by the people.
• Senate (Upper House): 104 members with representation from each province.
• Parliament is responsible for making laws.

Judiciary Branch:

• Supreme Court is the highest court, followed by High Courts in each province.
• An independent judiciary interprets laws and ensures they comply with the constitution.

Provincial Governments:

• Each province has a Governor, Chief Minister, and Provincial Assembly.

• Provinces have significant autonomy in areas like education, health, and local
government.

Military’s Influence:

• Pakistan has a long history of military involvement in politics.

• While the military doesn’t hold formal political power, it can wield significant influence
behind the scenes.