Page 69 - DPOL202_COMPARATIVE_POLITICS_AND_GOVERNMENT_ENGLISH

Comparative Politics and Government

Notes • 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 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.
• 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.
• 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.
• 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.
• 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.
• 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.’
• For instance, it is just a matter of English customary law that the Prime Minister must be the
leader of the party commanding absolute majority in the House of Commons and that, he
must tender his resignation if the House expresses its want of confidence in him.
• It is very seldom that the Senators oppose some nomination or some treaty. It is called
‘Senatorial courtesy’.
• Macaulay’s caution has a sense that if a constitution is not changed according to the needs of
the time, it would lead to the outbreak of a serious revolt destroying the constitution itself.
Hence, every constitution must provide some mechanism by which necessary changes maybe
effected.
• The process of amending a constitution may be used as another basis on which they may be
termed rigid and flexible constitutions.
• The constitution of a state may be a deliberate creation on paper formulated by some assembly
or convention at a particular time; or it may be found in the shape of a document that itself
is altered in response to the requirements of time and age; it may also be in the form of a
bundle of separate and scattered laws assuming special sanctity by virtue of being the
fundamental law of the land.
• A look at the constitutions of the world shows that, for most of them, the constitution “is the
selection of the legal rules which govern the government of the country and which have been
embodied in a document.”
• Thus, while the English constitution is the best example of an evolved constitution, all other
constitutions of the world belong to the category of an enacted constitution. The American
constitution is the first great example of such a constitution made by the Philadelphia
Convention in 1787.

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