Page 49 - DPOL202_COMPARATIVE_POLITICS_AND_GOVERNMENT_ENGLISH

Comparative Politics and Government

Notes instance, the provision that a person cannot have more than two terms for the post of the
President of the American republic came as a result of the 22nd amendment of 1951.
It is also possible that the constitution as a whole may be changed as happened in France when
the constitution of 1946 was replaced by the constitution of 1958. It may be in the form of
partial revision as happened in Switzerland where the constitution of 1848 was replaced by the
constitution of 1874. A new constitution certainly has new provisions, or it may restore some of
the old provisions with necessary alterations. For instance, the new constitution of China
(1982) restores the office of the Chairman (President) of the republic. In Pakistan the Ayub
Constitution of 1962 established presidential form of government, but the Bhutto Constitution
of 1977 restored the parliamentary system. It is also possible that an entirely new system may
be established as the constitution of Sri Lanka (1978) establishes a French-like quasi-presidential
government in place of parliamentary government.
2. Great Statutes: Important legislation is another source of constitutional development. From
time to time the legislature of a state makes laws as per requirements of the time. These laws
effect some important changes. The rules of the constitution are accordingly changed. For
instance, the British Parliament made a law in 1911 that crippled the powers of the House of
Lords and made the House of Commons a really powerful chamber. The American Congress
made a law in 1946 whereby the judges (whose tenure is not specified in the Constitution of
1787 and who, for this reason, enjoy a life term) may seek voluntary retirement after completing
the age of 70 years or a service of 10 years. So in Canada (where Senators were appointed for
life) a law made by the Parliament in 1965 provides for the retirement of the Senators on
completing the age of 75 years. It may be said at this stage that while referring to the laws made
by a legislature in this connection, we should refer only to very important enactments that
effect change in the rules of the basic law of the land.
3. Executive Decrees: The head of the state issues orders, decrees and proclamations from time to
time which make changes in the rules of the constitution. Sometimes, these changes override
the written portions of the constitution. For instance, the American constitution says that all
foreign treaties signed by the President must be approved by the Senate. But the Presidents
have invented a new device of signing some secret treaties and not putting them for the
ratification of the Senate by calling them ‘executive agreements’. While the American constitution
says that the Congress can make a declaration of war and peace, in actual practice we find that
the President makes a declaration to this effect that is subsequently adopted by the Congress.
The British people are proud of the great charters signed by their monarchs (like Magna Carta
of 1215 and Petition of Right of 1628) which embody important principles of their constitutional
law. In other countries the head of the state may promulgate an ordinance that has the force of
law and that may be ratified by the legislature after some time. In China the Standing Committee
of the NPC has the power to issue a command in the form of a ‘decree’ that has the force of law
and that may be approved by the National People’s Congress in its session after some time.
4. Leading Judicial Decisions: The provisions of the constitution are also amended by the decisions
of the courts given in leading cases. For instance, the American Supreme Court in the case of
Marbury v. Madison (1803) ruled that the government had no power to issue an order that was
violative of the Constitution of the United States. With this interpretation it assumed in its
hands the power of ‘judicial review’ that has resulted in the growth of ‘judicial supremacy’
there. The British courts, in many cases, have ruled that the proceedings of the Parliament
cannot be questioned in a legal dispute before them and the Parliament is the master of defining
and protecting the privileges of its members. In India in the Kesavanand Bharati Case (1973) the
Supreme Court has ruled that no amendment may be effected that is violative of the ‘basic
structure of the Constitution’. In 1982 the Canadian Supreme Court has ruled that the central
government has the power to go ahead with the work of constitutional amendment as the
provincial governments have the power to veto a bill of constitutional amendment after it is
passed by the Parliament.’ It all shows that in some very important cases the courts may give
a decision that has an important bearing on the provisions of the constitution.

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