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Q.No.1.DEFINE SCOPE AND FEATURES OF CONSTITUTIONAL LAW.

INTRODUCTION The Constitutional law deals, in general with the distribution and exercise of functions of Government, and the relations of Government Authorities to each other and with the citizens. It includes the rules which identify the law making authorities themselves, e.g the legislature and the courts. DEFINITION
law.yourdictionary.com:- The body or branch of law concerned with the study, interpretation, and application of a country or states constitution, including the issues of governance, the powers of the branches and levels of government, civil liberties, and civil rights.

G.B.Adams:-

constitution

means

certain

principles

on

which

the

Government of the State is organized and determines the relations between the people and Government. MEANING The word Constitution has been given two meaning:1. NARROWER MEANING. A constitution is normally meant a document

having a special legal sanctity which sets out the framework and the principles to operate the functions of the organs of government of a State. The constitution is the Supreme law of the land. In Pakistan, India, United States Canada and in other state of Western Europe having written constitutions. 2. WIDER MEANING. A constitution consists of those fundamental rules

which 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 unwritten constitution of the United Kingdom, New Zealand and Israel are not covered by the narrower definition because their constitutions cannot be derived from a single document. WRITTEN CONSTITUTION.

Where the constitution is written, it is fairly easy to distinguish the constitutional law of a state from the rest of its legal system. American constitution is in written form. It is very brief constitution, originally

consisted of preamble and seven Articles but now 26 amendments have been made in it. UNWRITTEN CONSTITUTION. Where the constitution is unwritten, it is largely a matter of convenience that what topic includes in the constitutional law, and there is no strict scientific distinction between that and rest of the law. The British constitution is unwritten in nature but it does not mean that all of its parts are unwritten. In these constitutions some of the components are found in written form, such like as under:1. 2. 3. 4. 5. 6. Mangna Carta 1215. Petition of Rights 1628. Act of Settlement 1701 Bill of Right 1789 Reforms Act 1832. Parliament Act 1911.

PURPOSE OF ENACTING A WRITTEN CONSTITUTION. As a result of the American and French Revolutions, the political significance of the new concept of constitutions was stressed and the written constitutions came to be identified with a single document. The

principal purposes of enactment of a constitution was controlling the three organs of the state and granting of basic human rights to the citizens. SCOPE OF CONSTITUTIONAL LAW IN U.S.A. For the scope of constitutional law, we will be discussing constitutional law of the United States. The United States constitutional law is the body that governs the implementation and interpretation of the US Constitution. It covers areas of law like relationships between states and the federal governments, the rights of individuals and citizens of the U.S.A. SCOPE OF CONSTITUTIONAL LAW IN PAKISTAN. The scope of the constitutional law in Pakistan can only be determined with reference to the objectives Resolution of 1949. The Objectives

Resolution appeared as a preamble in all the constitutions of Pakistan,

namely, the constitution of 1956, the Constitution, of 1962, the interim Constitution of 1972 and the present Constitution of 1973. The preambles of these four Constitutions are in fact exactly reproduction of the objectives Resolution with minor alterations. OBJECTIVE RESULATION. The objectives Resolution was made a substantive part of the constitution with effect from 2 March 1985 by adding Article 2-A in the Constitution. As a result of this, a serious controversy arose as to the true import and status of the Resolution which was ultimately resolved in a case HAKAM KHAN VS. GOVERNMENT OF PAKISTAN, P.L.J 1992 S.C 591. Dr. Nasim Hassan Shah, later Chief Justice of Pakistan, held that Article 2-A of the Constitution of Pakistan was not a Supra-Constitutional provision. The Objectives Resolution having been made a substantive part of the Constitution by virtue of Article 2A. The Article 2A became an essential or integral part of the constitution possessing the same weight and status as other articles, which were already a substantive part of the constitution. FEATURES OF THE WRITTEN CONSTITUTION. 1. Fundamental Rights. In the written Constitution certain fundamental rights of the citizen are described and placed beyond the reach of the three organs of the government created by the constitution. 2. Separation of Powers. Many written constitutions are based on the doctrine of separation of powers. All the three branches of the Government viz legislative, executive and judiciary have been kept separate from each other. The legislative power exclusively in the legislature, executive power in the executive and judicial power in the Courts and there is no interference in each department. The unwritten Constitution cannot secure these objects. 3. Inflexibility. A flexible constitution is under which every law of every description can legally be changed. A rigid constitution is under which certain laws

generally known as constitutional or fundamental laws, which cannot be changed. For example, amendment of the United States Constitution requires either initiation by two thirds majority of both Houses of Congress and three fourths majority of the legislatures. In Pakistan Constitution (Article 239) a bill to amend the constitution may originate in either house and when passed by the votes of not less than two-thirds majority of the total membership of the house, is transmitted to the other house where it is passed with or without amendment by the same majority. RIGIDITY OF FEDERAL AND STATE CONSTITUTIONS OF UNITED STATES. The United States is the classic example of federation in which each state as well as the federation has a completely rigid constitution. Here the state courts have jurisdiction to declare state legislation repugnant to the state constitution, and the federal courts have jurisdiction to declare provisions of state constitutions, state legislation and federal legislation repugnant to the Federal Constitution. Under the influence of Chief Justice Marshall the American Supreme Court first assumed the power of declaring Federal legislation

unconstitutional in Marbury Vs. Madison (1803) and power of declaring state legislation repugnant to the Federal Constitution in Fletcher vs. Peck (1810). CONCLUSION. To conclude, I can say that the scope of the constitutional law is absolutely huge all over the world. Constitutional law essentially covers all the foundational laws that our country is based upon. The creation and execution of laws in the government is regulated by constitutional law.

Q #2. SEPARATION OF POWERS BY MONTESQUIEU? Montesquieu was a French social commentator and political thinker. He is famous for his theory separation of powers, in modern discussions of government and implemented in many constitutions throughout the world. Montesquieu described division of political power among an executive, a legislature, and a judiciary. He based this model on the British constitutional system, in which he perceived a separation of powers among the monarch, Parliament, and the courts of law. Subsequently writers have noted that this was misleading because the United Kingdom had a very closely connected legislature and executive, with further links to the judiciary. Montesquieu did not specify about the independence of the judiciary. DEFINITION OF THE SEPARATION OF POWERS IN A LEGAL DICTIONARY 1 The constitutional allocation of the legislative, executive, and judicial

powers among the three branches of government. 2 The doctrine under which the legislative, executive, and judicial branches

of government are not to infringe upon each others. THREE ORIGINS OF THE STATE. Since the ancient days of the Aristotle, political writers have recognized the three fold distribution of government functions:1.Executive. 2 Legislature. 3 Judiciary

Each power is exercised by its own department or organ of Government. Montesquieu was the French thinker and writer of 18th Century, who expounded theory of separation of powers in order to safeguard the liberty of the individual. MONTESQUIEU EXPOSITION OF HIS THEORY. Montesquieu explained his theory in these words: In every government there are three sorts of powers Executive, Legislative and Judicial. The liberty of individual requires that neither all

these powers nor any two of them should be placed in the hands of one man or one body of men.

JAMES MADISON VIEW ON THE MONTESQUIEU THEORY. James Madison demonstrated the theory of Montesquieu. Montesquieu meant only that there could be no liberty if the whole power of one department is exercised of another department. THEORY OF SEPARATION OF POWERS IN AMERICA. The U.S Constitution does not clearly proclaim the principle of Separation of powers, it is made impliedly in the constitution and drafted as under:a) Section I, Art.I All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a senate and a House of Representative. b) Section I, Art.II The executive power shall be vested in the President of the United States of America and c) Section I, Art. III. The judicial Power of the United States shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain or establish DOCTRINE OF SEPARATION OF POWERS IN PRACTICE. In U.S.A a serious and deliberate attempt was made to apply the theory in practice. The American Chief Executive or the president is elected by people for a period of four years. He cannot initiate legislation but he is

independent of legislation as it is independent of him. independent of the executive and the legislature.

The judges are

SEPARATION IN POWERS AND CHECKS AND BALANCES SYSTEM. The framers of the constitution believed that to grant unchecked power to any person is sure to invite oppression and cruelty. Hence they devised a system of check and balances. The separation of powers will not be enough remedy against abuse of power; power must be checked by power. CASE LAW ON SEPARATION OF POWERS. In Indira Nehru Gandhi V Raj Narain, Chanderchud J, was observed that the political usefulness of the doctrine separation of powers is now widely recognized No constitution can survive without conscious adherence to its final checks and balances. SEPARATION OF POWERS APPLIED IN MODIFIED FORM. The complete separation of all three departments of Government would produce a deadlock and bring Government activities to a standstill. Even in America, the principle of separation of powers is adopted in a modified form, in which there is no absolute or complete separation powers, because the president can influence on the legislation by veto, the Congress can influence on the executive by asking the officers to appear before its committee, the judges can declare the laws unconstitutional passed by the congress and senate has a power to reject the appointments and impeachment of the president. PRACTICAL EFFECTS OF THE SEPARATION OF POWERS. The practical effect of separation of powers is that the legislature cannot exercise powers on executive or judiciary, the executive cannot exercise legislative or judicial power and judiciary cannot exercise legislative or executive power. The Separation of powers has created a new system of government, called the Presidential System which is quite different from the parliamentary system. It also introduces the doctrine of judicial review. ALTERNATION IN DOCTRINE OF SEPARATION OF POWERS.

The constitutional doctrine the separation of powers has been altered by the political parties, the presidential leadership in legislative proposals and the growth of delegated legislation. BASIC PRINCIPLE OF PAKISTAN CONSTITUTION. The concept of separation of powers is not expressly enunciated in the Pakistan constitution. The Pakistani constitution deals, in separate parts, with the Legislature, the Executive, and the Judicature, therefore the separation of powers is implicit in three separate organs. Separation of powers is an accepted feature of our constitution. CRITICISM ON DOCTRINE OF SEPARATION OF POWERS. The doctrine of separation of powers has been criticized on the following grounds. a) b) Separation of power has made the structure more complicated. The doctrine of separation of power has created frustration among the three organs of the Government. c) d) It makes the Government institutions to be loosely coordinated. It has created mutual rivalries among the all three branches of Government. CONCLUSION. To conclude, I can say that the theory of separation of powers makes the governmental organs to work independently of the others, but the framers of the constitution knew that an absolute separation would make Government impracticable. So they also devised the system of

checks and balances which compel them to work inter-dependently.

No.

3.

DEFINE

FEDERALISM

AND

CHARACTERISTICS

OF

THE

FEDERALISM?

INTRODUCTION A principle of government that defines the relationship between the central government and its constituent units. Under this principle of government, power and authority is allocated between the national and local government. U.S.A was the first modern democratic state which opted for a federal form of Government. The fathers of the U.S Constitution were aiming at

unions of regional autonomy and the national unity. It could be possible only this form of Government. DEFINITION The term "federalism" is used to describe a system of the government in which sovereignty is constitutionally divided between a central governing authority and constituent political units. Federalism is a system in which the power to govern is shared between national and provincial governments. MEANING OF FEDERALISM. A federal form of Government provides for a Union of States in which authority is divided between the centre and the States. Both the centre and the states work autonomously within their domains. BOTH GOVERNMENTS ARE COORDINATE AND INDEPENDENT.

In federalism both the governments work independently and in coordination with each other but discharge their functions within the spheres allotted to them under the constitutional law. DOUBLE GOVERNMENT SYSTEM. Federalism may be described as a device by which a system of double government is made to operate in the same State. It envisage a scheme of securing division of power between the National Government and Regional Governments, in this way both of them discharge their law-making and executive functions strictly within the sphere of their allotted jurisdiction. DIFFERENCE BETWEEN CONFEDERATION AND FEDERATION. A Federal Government differs from a Confederal Government in one essential point that the authority of the Confederation does not directly reach over to and operate upon the people. It operates through the

intermediary Governments which stand, midway between the people and itself. RESIDUARY POWERS. Some insist that a Government is not federal if the powers of the provincial governments are specified and the residue is left to the Federal Government. According to them, the residuary powers must lie with the It is true that the leading example of the

provincial Governments.

federalism, namely, the constitution of the United States of America of 1789, confirms to this test, in that, it merely enumerates the powers which shall be exercisable by the Federal Government and leaves the remaining powers to the States. RELATIONSHIP OF FEDERAL WITH THE STATE. The relationship of the Federal to the State Governments within the framework of U.S. Constitution has been summed up in United state. V. James Gordon Bennet. The controversy in this case was with regard to the taxing power of the United States. It was observed that one State could not tax property in another without violating the Constitution. CONFLICT BETWEEN FEDERAL AND PROVINCIAL LEGISLATURE.

Parliament, that is the Federal Legislature, has exclusive power to make laws with respect to any of the matters enumerated in the Federal List. A provincial Legislature has in the power to make law within its jurisdiction with respect to any of the matters enumerated in the concurrent list. RESOLUTION OF CONFLICT. The conflict between the Federal and provincial legislatures regarding their competence as to the subject matter of legislation is resolved by applying the following five doctrines:1 2 3 4 5 The doctrine of pith and substance. The doctrine of incidental trespass. The doctrine of occupied field. The doctrine of implied powers. The doctrine of the original package.

POWERS OF THE COURTS IN FEDERALISM. The framers of the Constitution sought out balance in the rights of the several states and the powers of the new federal government. Their solution was a federal system, which divides powers between the two levels of government. Although the Constitution is the "supreme law of the land". The following decisions made by the courts as under:1791 The 10th Amendment declares that the states are governments of reserved powers. 1810 In Fletcher v. Peck the Supreme Court first holds a state law unconstitutional. 1819 The Supreme Court holds that a state cannot tax the federal government in McCulloch v. Maryland. 1976 Death penalty statutes are upheld generally by the Court's decision in Gregg v. Georgia. FEDERALISM IN THE CONSTITUTION OF PAKISTAN 1973.

The preamble of this constitution lays down that the territories of Pakistan shall form a Federation, wherein the units will be autonomous with such boundaries and limitation on their powers and authority as may be prescribed. Article 1 of the Pakistan Constitution lays down that Pakistan shall be a Federal Republic. A Republic is a State with a form of government without a monarchy, in which the Supreme power is vested in the people and is exercised through their elected representatives. CONCLUSION To conclude, I can say that a federal form of Government provides us for a Union of States in which authority is divided between the centre and the States. Both the centre and the states work autonomously within their domains.

No.

4.

DEFINE

PARLIAMENTARY

AND

PRESIDENTAL

FORM

OF

GOVERNMENT?

History of Parliamentary Democracy. The Parliamentary system of Government has been adopted by a number of countries prominent among them are Germany, Italy, Japan, Canada, Australia, Pakistan and India. Definition. A form of Government in which the executive is responsible to the parliament. The cabinet, alongwith the ministers of the state, is collectively responsible to the National Assembly. Source of Parliamentary Democracy. The Parliamentary Democracy is based on supremacy of parliament i.e of the legislature. Source of the United Kingdom Parliaments legislative

authority are the un-codified rule of law formulated by judges when they decide particular cases.

Supremacy of Parliamentary. Dicey defines the supremacy or sovereignty of the parliament in the terms of two criteria, one positive and the other negative. The positive

criteria is that parliament has right to make and unmake any law whatever; the negative criteria is that no person or body is recognized by the law of England has having the right to override or set aside the legislation of the parliament. Legislative Powers of Parliament. Legislative powers of the parliament are codified in the constitutions of the different countries. Article 1 Section 1 of the U.S Constitution defined the legislative powers of the congress which consists of a senate and a house of Representative. Article 34 of French Republic constitution also spells out the legislative powers of the parliament. Cabinet. A cabinet is a combining committee. The cabinet is in fact a board of control chosen by the legislature out of those persons to whom it trusts and knows to rule the nation. The Government is really by the parliament, and the cabinet being merely the executive committee of the parliament. The Prime Minister who is the Head of the Cabinet and command the confidence of the majority of the members of the National Assembly before he can be appointed, loses that confidence, he is liable to dismissal. Relationship of the Cabinet with Parliament. The relationship of the cabinet with parliament has been recognized by the Supreme Court of India as a part of the basic structure of the constitution in a case Kesavanada Bharati Vs. State of Kerela. The Supreme Court of

India held the principles on which the basic structure of the Indian Constitution depends as under:i) ii) iii) Supremacy of the Constitution. The Republican and democratic form of Government. The secular character of the constitution. iv) v) The Separation of powers between the legislature, Executive and Federal Character of the constitution. Judiciary.

Presidential Democracy. Parliamentary democracy should be distinguished from the Presidential democracy. In Presidential democracy there is an irremovable and an

irresponsible executive. The president in the American Constitution has the executive power of the union vested in him. Cabinet Members are not Members of Legislature. The President of U.S.A has a cabinet which he appoints upon his entering in the office of the President but these persons are not members of the legislature. The Executive is completely independent of the Legislature. However, if the President acts unconstitutionally he can be impeached by the Congress. Presidential System is Based on Separation of Powers. The Presidential form of Government is based on the theory of separation of powers. It is true that the text of the American Constitution show that the Legislative, Executive and Judicial Departments stand on completely independent and separate from each others. Following provisions of the U.S Constitution is as under:d) Section I, Art.I All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a senate and a House of Representative. e) f) Section I, Art.II The executive power shall be vested in the President of the United States of America and Section I, Art. III. The judicial Power of the United States shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain or establish But in spite of above said articles, there is no absolute or complete separation powers, because the president can influence on the legislation by veto, the Congress can influence on the executive by asking the officers to appear before its committee, the judges can declare the laws

unconstitutional passed by the congress and senate has a power to reject the appointments and impeachment of the president. Cabinet is an Advisory Body.

The cabinet is an advisory body responsible to the President and it is not in any manner constitutionally responsible either to the legislature or to any one else. President. Powers of the President. Veto Power. The President has the veto power to overrule, legislation passed by the Congress. Veto power means is that no bill passed by the two Houses, can become law until the President signs. President may Return the Bill. The President may, instead of approving the proposed legislation return it with a statement of his objections to the House. If bill being reexamined and reconsidered with a two-thirds majority in both the houses, it shall become law. The President must send back the bill within ten days The heads of the department are only responsible to the

otherwise it will become a law. Other Powers of President. 1. In case of emergency he can convene both or either of the Houses of the Congress. 2. The American President has power to make appointments to high officers within the State. 3. American President is the Chief Executive and Commander in-Chief of Armed Forces. 4. He enforces rights and obligations arising out of international relations. 5. War can only be declared ab initio by congress but in case of external aggression, President has power to fight war. Comparison Between the Presidential and Parliamentary. Under the Presidential system the effective head of the national administration is elected for a fixed term. He is practically irremovable. Even if he is proved to be inefficient, even if he becomes unpopular, even if his policy is unacceptable to the majority of his countrymen, he and his methods must be endured till the moment comes for a new election.

Under the Cabinet system everything is different.

The head of the

administration, commonly called the Prime Minister is selected on the ground that he is statesman best qualified and have majority in the House of Common. He is the head of his party. He must be a member of one or other of the two Houses of Parliament; and he must be competent to lead the House. Conclusion. To conclude, I can say, that in Presidential Form of Government, the President of America, is one of the most powerful personalities in the world. But in Parliament form of Government the Parliament has highest authority to amend, alter or repeal any law at any time. The sovereignty of Parliament is theoretically unlimited.