Comparison Constitutional Study
The term Constitution is derived through French from the Latin work constitutio used for regulations and orders. Constitution is a set of fundamental principles or established guidelines through which a country or organization is governed. With the changes in global scenario the comparative study of Constitutions gain importance so as to evolve better governance in a nation. The important features of various Constitutions have been given below.
UK Constitution
United Kingdom consists of four countries namely England, Scotland, Wales and Northern Ireland. The UK form of Government is constitutional monarchy with a parliamentary system. UK Constitution is also called Mother of all Constitutions.
Salient features of UK Constitution:
1. The Unwritten Character: When British Constitution is referred, it is generally considered unwritten. But there are sufficient numbers of Acts, Statutes etc which have been referred as written portion, some important being Magna Carta 1215, Bill of Rights 1689, Parliamentary Acts of 1911 & 1949. In modern sense of usual practice of writing down the Constitution as have been followed in so many counties, is visibly absent in UK. Therefore, a lot of long-drawn precedents also form a bulk of the unwritten Constitution.
1. Difference between theory and practice: In UK all powers is vested in the Crown starting from appointment of day-to-day administration, to declaration of war, to conjuring peace etc even people are considered to be subjects (not citizens), the Government is called Queen/Kings Government even the opposition is called the Loyal opposition etc. But in practice the Crown is only mere figure head. It is the Prime Minister who wields all the powers. It is clear case of Limited Monarchy.
1. Parliamentary Sovereignty: Parliament is the supreme authority. Since there is no written Constitution, Parliaments authority is not defined. Also Parliament being the highest representative body of the people naturally claimed/developed legitimacy for expanding powers.
1. Unitary Constitution: It imagines entire British society as one unit of governance therefore only one level of Government exists. Unlike in federal Constitution the powers are not divided between the Centre and states.
1. Flexible Constitution: In the absence of any written Constitution as single document the British Parliament makes laws in normal process of law making or changing the entire law. Unlike in other Constitutions where the procedure is specifically provided and without which the change cannot happen. In British practice the established procedure of law can change the Constitution.
2. Bicameralism. British Legislative authority, the Parliament is divided as follows:
House of Lords:
It is hereditary chamber and consists of 26 Bishops and Archbishops of Church of England called as Spiritual Peers;. There are 92 Hereditary Peers, 1 Irish Peer, 16 Scottish Peers and several hundred Life Peers. These are nominated by the Crown on the advice of PM. It acts as the highest Court of land.
House of Commons:
It consists of 650 members elected by citizens of Britain. This house is more powerful than the House of Lords. Money bills can only originate from House of Commons. PM is also selected from House of Commons.
1. Judiciary: The role of judiciary as provided in UK is independent and unified.
1. Single Citizenship: The UK Constitution recognizes the entire State as single unit of governance thereby providing only single citizenship to the residents. The same has been followed in India.
USA Constitution :
The United State of America commonly known as United States consists of 50 states, 16 territories and a federal district. The British recognised the independence of US colonies by the Treaty of Versailles in 1783. In Philadelphia convention the American Constitution was worked upon in 1787. Originally 13 states established the Unites States and thereafter rest 37 states joined making it a federation. The Constitution was adopted on September 17, 1787, by theConstitutional Conventionin Philadelphia, Pennsylvania, andratifiedby conventions in elevenStates. It went into effect on March 4, 1789.
Salient features of US Constitution:
1. Written Constitution: It is a written document unlike UK where there is no specific written document. It is brief document consisting of only 7 Articles and 26 amendments.
2. Rigidity in character: US Constitution is the most rigid because the majority that is required to amend it is very difficult to find as per the provisions apart from the majority that is required in the Parliament (Congress), it has to be ratified by not less than 3/4th of the states. Because of which it has been found to be very difficult to make changes in American Constitution. Even at times it has taken almost 70-80 years to complete a particular amendment process.
3. Federal character: The Constitution is clear in terms of how much power the federal government will have. And in fact the federal government is less powerful than state government unlike in India where federal government claims larger jurisdiction of power.
4. Supremacy of Constitution: The Constitution is the supreme law of the land. Other laws which are to be created by authorised agencies have to conform to the supreme law or else they may be declared ultra vires as they may be found to be inconsistent with Constitution either in letter or spirit.
5. Separation of Powers: The basic feature of the constitution of America is the distribution of national powers among three departments i.e. judiciary, legislature and executive, which are given constitutional and political independence from one another. And in order to bring a process of checks and balances it applied this doctrine of separation of powers. This theory led to establish these three organs as having co-equal powers.
6. Fundamental Rights (Bill of Rights): The U.S.A. Constitution guarantees fundamental rights of person, property and liberty. The rights of citizens are enforceable by recourse to judiciary. These rights are absolute and in no way could be modified or suspended except by a Constitutional amendment.
7. Judicial review: It is a process to examine or find out the constitutionality of any law passed by the Legislature, any administrative order issued by the executive or even any amendment that could be bought about into existing provisions of constitution or into any existing statutory law.
8. Dual citizenship: The Constitution provides for dual citizenship to the Americans as the citizen of USA as well as citizen of state to which he/she is domiciled. This is because the pre existing states were having their own citizenship laws before joining in US federation hence they retained it.
9. Presidential form of government: It provides for the President as the head of the State as well as head of government. The President is elected directly by the people and not through their representatives in Congress.
10. Bicameral Legislature: The Parliament (Congress) of US has two houses
11. Senate Upper House of Congress
12. House of Representatives- Lower House of Congress.
Typical layout of US political structure
French Constitution:
The Constitution of France has evolved through a series of phases starting from the French Revolution as stated below:
* 1st Republic (1792-1804): It was first Constitution of France established declaring it as Republic and expresses the idea of radical character.
* 2nd Republic (1848-1852): It replaced the 1st republic under Louis XVIII but lasted only for 3 years.
* 3rd Republic (1870-1940): It was republican government from 1870 to 1940 when it was replaced due to defeat by Nazi Germany.
* 4th Republic (1944-1958) : It was another short lived Constitution and it gave to French Constitution the characters such as sovereignty of people, secularism, democracy etc.
* 5th Republic (1958 -till date): It is also known as Tailor-made-Constitution under the leadership of Charles de Gaulle. The current Constitution was adopted on 4th Oct 1958 and replaced the 4th Republic.
Analysts describe French Constitution as quasi-presidential, quasi-monarchical and a parliamentary empire. The reasons behind this is that the Constitution did incorporated some of the personal demands of Charles de Gaulle which was not necessarily in consonance with pure Constitutional government based on doctrines like separation of powers, checks and balances, legislative accountability etc.
Salient features of French Constitution:
1. Popular Sovereignty: The Preamble recalls the Declaration of Rights of Man and Citizen from 1789 and declares the Constitution as the sovereignty been invested with the people.
2. Rigid Constitution: In order to amend it the Parliament has to pass the bill with 3/4th majority or otherwise after the Parliament passing it with absolute majority and thereafter going for a referendum.
3. Recognition of Political Parties: It is the only Constitution which recognizes the existence of political parties directly.
4. Bicameral legislature: The French Parliament consists of two houses:
5. National Assembly (Lower house or popular Chamber): Members are elected directly from territorial constituency. The members are called Deputies and are elected for 5 years.
6. Senate (Upper House): The members are indirectly elected. The tenure of Senators is of 9 years with every 3rd year one third of them retiring.
7. President as an arbiter: Some of the executive features provided in French Constitution to make President more stronger are:
8. All executive powers are vested with President.
9. President is directly elected by people though universal adult suffrage for 7 years.
10. There is Constitutional Council which is entrusted with election of President. In case there is vacancy in office of President, the president of Senate temporarily takes over.
11. President appoints Prime Minister and council of ministers on his advice.
12. He has authority to declare national emergency.
13. He can be impeached only on the change of high treason.
14. The judges are appointed by council called High Council of Judges headed by the President.
Typical layout of French political structure
Japan Constitution
The main islands which constitute Japan are Honshu, Kyushu, Shikoku, Hokkaido largest of them being Honshu. The bombardment on Hiroshima and Nagasaki led to surrender of Japan and new constitution got enacted on May 1947. Douglas McArthur the supreme commander of allied powers played important role in making of the Constitution. The constitution provides for aparliamentary systemof government and guarantees certain fundamental rights.
Salient features of Japanese Constitution:
1. Written Character: It is a written Constitution.
2. Renunciation of war: It is called Post war Constitution or Peace Constitution as it openly declares that Japan will not enter into any war and will not use any force, or threat of force for settling international disputes under article 9.
3. Rigid Constitution: It is a rigid document and no subsequent amendment has been made since its adoption.
4. Parliamentary Government: It provides for limited monarchy and Parliamentary form of Government.
5. Fundamental Rights: It mentions about fundamental rights in which people have been given their rights which are eternal and inviolative.
6. Judicial Review: Supreme Court of Japan enjoys judicial review.
7. Bicameral legislature: The Japanese Parliament (Diet) has two chambers:
1. House of Councillors (Upper House): The members are elected for 6 years.
2. House of Representatives (Lower House): The members are elected for 4 years.
3. The PM is elected by the Diet. He appoints the cabinet and has all the powers like Prime Minister of India or Vice Chancellor of UK.
8. It indirectly recognizes existence of political parties.
Canada Constitution:
Canada was earlier colony of France and UK starting from 1791 when Canada was divided into Upper and Lower Canada. However the outlining of Canadian Constitution can be traced from the British North America Acts 1867 which was accepted and the Constitution. At present Canada consists of 10 provinces and 3 territories.
Salient features of Canadian Constitution:
1. Constitutional Monarchy: It states that executive Government and authority is vested in the Canadian Monarchy (i.e. Crown of UK).
Crown Governor General Prime Minister Council of Ministers.
1. Rigid cum flexible: The amendment procedure is rigid in only few cases but in other cases most of the occasions require flexible majority.
2. Fundamental Rights: A charter of rights in the form of Bill of Rights in 1960 was adopted into the Constitution of Canada.
3. Supreme Court: It is highest judicial tribunal and it has some review capacity but not as powerful as USA. It has 10 judges including Chief justice.
4. Federalism with unitary bias: The Canadian Constitution can be called as Federal with unitary bias i.e. monarch in spirit and republic in practice.
5. Referendum: The Constitution provides for referendum on matters of vital public importance. It is decided by a Constitutional formula as adopted by the Canadian Parliament.
6. Bicameral Legislature: Canadian parliament consists of two houses
7. Senate (Upper House): It is nominated chamber. Members have membership till they reach age of 75 years. The Chairman of Senate is appointed be Governor General.
8. House of Commons (Lower house): The members are directly elected. The speaker of the House is elected by house itself.
9. The Governor General is appointed for 5 years. He can be removed by Crown in consultation with Cabinet.
10. Money bill can be introduced in any House.
11. Canada is basically a dominion i.e. practically it is Sovereign but technically it is still a dominion of Crown.
Typical layout of Canadian political structure
Germany Constitution
Germany is federal parliamentary republic in Western Europe and consists of 16 states. The Constitution of Germany is called Basic Law. It is a republic and has republican Government. Head of the State is President. Head of the Government is Chancellor. The federal structure of Germany is Federal Govt State Govt Lnder .
Salient features of German Constitution:
1. Constitution prohibits Germany entering into any kind of war and in fact limits the German federal Government authority to keep a huge defence force. The issue of war or any military engagement of Germany forces with any outside State/region is usually very strong emotional issue in German politics because of the hangover of the 2nd World War and role of Germany in it.
2. It has a Supreme Court which has judicial review power and quiet strangely in Germany the judges are elected by the Parliament. The President is titular head.
3. The fundamental rights in German Constitution are having very importance place and directly protected by the Supreme Court. Apart from usual fundamental rights that every Constitution has for its own citizens, German Constitution has unique feature that recognizes the right to get political asylum to non Germans.
4. Bicameral Legislature: The German Parliament (Bundestag) has two houses namely:
5. Bundesrat (Upper House)
6. Bundestag (Lower House)
7. Basic rights are fundamental to Basic law, in contrast to Weimar Constitution, which listed them as merely State Objectives.
Typical layout of German political structure
Australian Constitution:
Australia is officially Commonwealth of Australia is the country comprising of Australian continent, the islands of Tasmania and other small islands. The Constitution was established in 1901 when six British colonies federated together forming the Commonwealth of Australia. The federation now has six states and seven territories.
Salient features of Australian Constitution:
1. It is federal in structure like USA model
2. It provides for Constitutional Monarchy i.e. Head of the State is British Crown represented by the Governor General.
3. There is provision of judicial review
4. Residuary powers lie with the Centre/State.
5. The Governors of the State are directly appointed by the British Crown even without the reference to federal government.
6. It provides for direct election of both houses.
7. Highest court is High Court next court is Supreme Court.
8. Concurrent List.
Typical layout of Australian political structure
Chinese Constitution:
The Cultural Revolution in China established Peoples Republic of China and new Constitution was established in 1954 under the guidance of All China Peoples National Congress and the Constitution was having the objective of establishing a Socialist State. The Constitution openly appreciated pluralistic philosophies which are in consonance with democratic principles. But in reality never such practices took place. After Mao died, a new Constitution in 1975 came to be established which came in operation from 1975-78. In 1978 another leader Huo Kuo Feng became the leader of China and established another Constitution which did not last and in 1982 under new leader Hu Yao Bang a new Constitution was established and Deng Xiaping came out to be supreme leader under whose stewardship the economic reform leading to liberalization of Chinese economy took place.
It has 22 provinces, five autonomous regions, four direct controlled municipalities (Beijing,Tianjin,Shanghai, Chongqing), and two mostly self-governingspecial administrative regions(Hong KongandMacau). The PRC also claimsTaiwan which is controlled by the Republic of China(ROC), a separate political entity as its23rd province, a claim which is controversial due to the complex political status of Taiwan .
Salient features of the Chinese Constitution:
1. It declares china as a Peoples democratic state led by the working class and based on the alliances of workers and peasants
2. The Chinese National Peoples congress came to be established in new form controlling all the authorities. The Congress capsizes democratic centralism as a method of political decision making.
3. Constitution has long list of fundamental rights and duties and both are protected. The duties are also enforceable in nature.
4. Unitary State- unlike the earlier Soviet Constitution which was drawn up by the lines of federalism, Chinese constitution subscribes to an unitary structure of government in which Central Government is having concentration of total powers and taking almost all decisions on behalf of citizens.
5. There is a consulting process recognized by the Constitution to bring about a consensus in Chinese politics with regard to decision making and the organization is called Chinese Peoples Political consultative conference.
Typical Layout of Chinese political structure
Typical drawing showing the political systems in world
Summary of Constitutional features of various countriesTypical borrowed features of Indian Constitution from various sources:
Shovit Chowdhury
References:
1. http://www.google.com
2. http:// en.wikipedia.org/wiki/
3. Indian Polity by M.Laxmikanth
4. Competition Wizard magazine.
