Legislative Supremacy of Parliament and the Separation of Powers - Essay Example

Legislative Supremacy of Parliament and the Separation of Powers Before giving introduction of parliament, I should have a precise knowledge of constitution i.e. what is constitution A constitution is a written document in codified form used for governance, which throws the light on the rules and principles of a political entity. In other words we can say that it represents the structure of the country (government in action), citizens of the country and their powers, rights, duties, procedures of solving issues. Key features of a constitution [1]:- 1) Codification - It is the fundamental part or basic part of the constitution. Constitution in a codified form is one which is written or contained in a single document and is a single source of law in a state. There are 3 types of constitution:- a) Codified constitution. b) Uncodified constitution. c) Written versus codified constitution. 2) Entrenchment - It is the second fundamental feature of constitution. It tells us whether the constitution is legally protected from modification without a procedure of constitutional amendment or not. The procedure of modifying a constitution is called amending. Amending an entrenched constitution requires wider acceptance. 3) Distribution of sovereignty - Sovereignty means right to have a full control over a governance's area by a group of people or an individual. Sovereignty is an important part of constitution and it is located or seen in a state. There are three types of distribution of sovereignty: a) Federal b) Unitary c) Confederal 4) Separation of powers - Constitution usually explicitly divides power between various branches of government. The standard model, described by Baron de Montesquieu, involves three branches of government: executive, legislative and judicial. Constitutions vary extensively between these branches. 1. http://en.wikipedia.org/wiki/Constitution#Key_features 5) Lines of accountability - This feature of constitution explain that who is accountable to whom. In other words we can say that who has the right or the supreme power to appoint or dismiss the ministers. Features of constitution of UK:- 1. Parliament is bicameral. 2. There are two houses- 1) Upper house known as the 'House of Lords'. 2) Lower house known as the 'House of Commons'. 3. The third component of parliament is 'Queen'. 4. The government of UK is a parliamentary democracy and a constitutional monarchy. 5. UK's constitution is uncodified. 6. UK's constitution is not entrenched i.e. no special procedure is required for modification. 7. UK's constitution is unitary i.e. sovereignty is ultimately contained at the centre. In other words we can say that sovereignty resides only in the centre of the state. 8. UK's constitution throws a light on the concept of separation of powers i.e. it involves three branches of government: executive, legislative and judicial. 9. In UK's constitution the line of accountability derives from the monarch or head of state, a component of Parliament. Definition of Parliamentary supremacy and Separation of powers:- Parliamentary supremacy or legislative supremacy is a well known concept in law that applies to parliamentary democracies. Under this a legislative body has absolute sovereignty i.e. it is supreme to all other government institutions. In other words, it is the supreme power and has all the authority and it may change or repeal any prior legislative acts. Parliamentary supremacy exists in the United Kingdom and New Zealand. The doctrine of parliamentary supremacy may be summarized in three points: Parliament can make law concerning anything. No Parliament can bind its successor (that is, it cannot pass a law that cannot be changed or reversed by a future Parliament). No body except Parliament can change or reverse a law passed by Parliament. Separation of powers is a political doctrine (In Latin known as "doctrina", which means code of beliefs or a body of teachings or instructions.) under which the legislative (a type of representative deliberative assembly with the power to ratify laws), executive (is the branch of government responsible for the day-to-day management of the state) and judicial (is the system of courts which administer justice or a mechanism for the resolution of disputes) branches of government are kept distinct, to prevent abuse of power. It is a term coined by French political Enlightenment thinker 'Baron de Montesquieu'. He was one of the foremost supporters of separating the legislature, the executive and the judiciary. His writings considerably influenced the opinion of separating the power. In other words, it is a model for the governance of democratic states. The model is also known as 'Trias Politica' [2]. Relationship between Legislative supremacy and Separation of powers in UK: - For the purpose of analyzing the way that constitution works, relationship between the legislative supremacy and separation of powers is important. Both are the two sides of coin, which goes with each other. Separation of power is a smaller concept covered in legislative supremacy, which is a broader concept. One follows the other and other is just ahead the one. If an amendment takes place in one, obviously other is affected adversely. The United Kingdom was the first country to have a true constitution with the Magna Carta in 1215. Magna Carta is the most important part of the constitution of U.K. Magna Carta influenced the development of the common law and many constitutional documents, such as the United Kingdom Constitution and Bill of Rights, and is considered one of the most important legal documents in the history of democracy. This constitution was worked then gradually. It is based on three fundamental principles: the rule of law, the supremacy of the Parliament and the separation of powers. "Mother of parliaments", this name was given to UK Parliament a few centuries before because this was the base of the structure of other legislative bodies of many states. In other words we can say that UK Parliament is the world's best example. Single unified judicial system was not practiced in United Kingdom. For e.g. England, Wales, Scotland and Northern Ireland have different systems 2. http://en.wikipedia.org/wiki/Trias_politica When the merger of the Kingdom of Great Britain and the Kingdom of Ireland took place in 1801 under the Act of Union, the resultant states that came into action were the United Kingdom of Great Britain and Ireland. Separation of powers does not exist or even not cleared in parliamentary systems. For example, in the United Kingdom, the legislature's subset is formed by the executive, as does to a lesser extent or not up to much extent to the judiciary. It is very important for the Prime Minister and the chief executive to be a part or the member of the House of Commons by convention and a simple majority vote is enough to remove them from their office, post or authority. In present scenario, the upper house of the legislature i.e. the House of Lords is the place for settling disputes and the Law Lords, acts as the final arbitrator for solving judicial disputes and thus courts of Britain presents or stands like an independent entity in the world. This arrangement will cease or come to an end in 2009 when the Supreme Court of the United Kingdom comes into existence. "Fusion of powers" is the correct term used for the UK constitution because of the existence or presence of Parliamentary sovereignty, while the theory of separation of powers may be studied in Britain. The evolution of the British constitution, is uncodified, is based on this blend that the person of the Monarch, who plays the formal role in the legislature, the executive and the judiciary. In simpler form we can say that the term 'Crown-in-Parliament' is used for the legal and political sovereignty, which is summoned and dissolved by the Queen who must give her Royal Assent to all Bills so that they become Acts and the Queen appoints Government's ministers, who govern in the name of the Crown and lastly the Queen, as the fount of justice, appoints all senior judges and public prosecutions. The British legal system is based on some norms or rules which require: Police or regulators can only investigate the complaints but cannot initiate those complaints under criminal law, by which selective enforcement is prevented, e.g. the 'fishing expedition' which is usually and particularly forbidden. Prosecutors cannot restrain evidence from attorneys for the defendant, to do so results in mistrial or dismissal, accordingly their connection to police is no whip hand. No new evidence can usually be introduced; restricting the power of the court of petition to the process of law applied but defendant's conviction can be appealed. Does it give us a clear and precise conclusion that UK's constitution played a major role in the history of other constitutions and it will still remain the milestone for coming centuries Reference: 1) http://www.123helpme.com/view.aspid=150161 2) http://en.wikipedia.org/wiki/England 3) http://en.wikipedia.org/wiki/Constitution_of_the_United_Kingdom 4) http://www.ippmedia.com/ipp/guardian/2007/04/23/88995.html 5) http://clerkkids.house.gov/glossary/define.htmllword=Law 6) www.revison-notes.co.uk Read More