Normal 0 false false false MicrosoftInternetExplorer4
1. Introduction
§ It was in the late 18th century that the word constitution first came to be identified with a single document, mainly as a result of the American and French Revolutions.
§ The British constitution is an unwritten constitution. It is not available on a single document or a book.
§ It has evolved gradually itself through different charters, statutes, precedents, usages and traditions.
§ It has grown like an individual from age to age.
§ It is distinctive from other constitutions of the world by its salient features.
2. Definition of British Constitution
§ The British Constitution is a complex amalgam of institutions, principles and practices. It is composite of charters and statutes of judicial Decisions of common law, of procedure, usages and traditions. It is not available on one document but hundreds of them. It is not derived from one source but from several…it is child of wisdom and chance.
Munro
- Rules which are true laws, because they are enforced by the courts
Wade & Phillips
- The English Constitution has made a great circuit of the globe and has become a common possession of civilized man.
G.B.Adams
- British Constitution is the mixture of history & Custom.
Prof. Dicey
3. Types of Constitution
AS TO NATURE
Ø Rigid Constitution
Rigid Constitution is difficult to amend or modify by the legislative body.
Ø Flexible Constitution
Flexible Constitution is easy to amend or modify by the legislative body.
AS TO FORM
Ø Written Constitution
Written constitution is that constitution which is codified and all its rules & Principles are available on documents
Ø Unwritten Constitution
Unwritten constitution is that constitution which is not in a codified form.
4. Is British Constitution a True Constitution?
- Where a constitution cannot be produced in a visible form, there is none.
Thomas Paine
- England the constitution may go on changing continually or rather it does not exist.
Alex De Tecqueville
5. Division of British Constitution
According to Prof. dicey, the British Constitution consists of two set of different Rules & Principles;
- Law of Constitution
The one set of Rules is strictly law. It is available either in shape of statute , custom, charter or judge made maxims.
- The Conventions of Constitution
The second set of Rules consists of the Conventions, Understanding or habits. They are not strictly speaking laws because they all cannot be enforced by the Courts. But these rules and principles are followed by the society as custom or traditions.
DIVISION OF CONVENTIONS
Prof. Dicey divided the conventions into two kinds which are as follow,
- Conventions Enforceable by Courts
The one set of conventions is strictly followed and never violated. In this case, breach of convention leads to the breach of law.
- Conventions Unenforceable by Courts
The second set of conventions is that which can be violated and it does not amount to be a big crime/offence or unethical act. E.g., if a member of house of lord sits in the house of lord when it holds the meeting as court of appeal. It amounts to be a violation of convention but may be redressed.
6. Operation of British Constitution
The British Constitution is operative through following processes/ways,
Legal (enforceable through Courts of Law)
Ø STATUTORY LAW
Ø COMMON LAW (JUDICIAL DECISIONS)
Ø ROYAL PREROGATIVE
Non-legal(Not enforceable through Courts of Law)
Ø CONVENTIONS
Ø WRITINGS OF EMINENT JURISTS
7. Legal Consequences of Unwritten Constitution
MERITS OF WRITTEN CONSTITUTION
Ø Separation of powers
Ø Division of Tasks between different organs of Government
Ø Protection of fundamental rights
Ø Jurisdiction of judiciary is certain
Ø Avoid arbitrariness of Constitution
Ø Maintain a level in between Rule of Law and other Constitutional Rules
Ø Check on the powers of major organs
MERITS OF UNWRITTEN CONSTITUTION
Ø Written character is not required for the obedience of Rules of Constitution.
Ø Flexibility
Ø Keep changing as required
Ø Glimpse of Democracy
Ø Effective Government
8. Salient Features of British Constitution
1) Partly Written And Partly Unwritten
British constitution is an unwritten constitution, as most of the rules and principles controlling the distribution and regulating the exercise of governmental power have never been reduced to writing in a single document.
2) Custom based rules
Most of the constitutional principles and rules in England have grown by experience.
The English Constitution is a product of many centuries of political growth.
3) Flexible in Nature
British Constitution can be amended at any time to any extent by a simple action of Parliament.
4) Evolved not Enacted Constitution
If Constitution means institution and not the paper, which describes them, then British Constitution has not been enacted but has evolved. Looking to all this it may be said that England has a Constitution but of an unwritten type.
5) Difference of theory and Practice
There is gap between theory and practice under British constitution.
No Law is effective without the consent of Crown. The King is the Commander-in-Chief of all British Forces. The King alone can declare the War and conclude peace Treaties. But it is just the theory.
In fact, in practice, King/Queen has become only a rubber stamp. Through gradual stages all political powers have shifted from the King to the representatives of people i.e., Parliament.
6) Unitary Constitution
Under British Constitution, Great Britain ruled through unitary form not federal. All powers of the Government are vested in the British Parliament, which is Sovereign Body. Executive are answerable to the Parliament.
7) Parliamentary Form of Government
Although King is the sovereign but he deprived of all his powers and ministers who are elected representatives of general public exercise these powers.
8) Supremacy of Parliament
Parliament is the Supreme Law making body
It has authority to make or amend any law of Great Britain.
9) Rule of Law
Another exclusive feature of British constitution is Rule of Law
It stresses equality of everybody before law. Govt is also subject of Law.
10) Role of Conventions
Conventions played vital role to manage the powers of Government organs. They respected by the public as law. These are the rules constitutional morality.
11) Independence of judiciary.
Even without strict separation of powers between organs of the Government, the judiciary managed to maintain the discipline among the organs of state.
12) A Bicameral Legislature
It provides two chambers. One is House of Commons and other is House of Lords.
13) Pleasant amalgamation of kingship with democracy
Mixture of kingdom, peers of the realm and democracy
14) Ministerial Responsibility
Ministers are responsible to the parliament for their own acts and the actions of their departments.
15) Political Parties
9. Conclusion
British Constitution is the oldest among existing constitution. Its general framework has undergone no revolutionary overhauling for at least the past three centuries with the exception of six years in which Oliver Cromwell served as `The Protector of Common Wealth`.
No comments:
Post a Comment