Constitutional and Administrative Law - Essay Example

The absence of a written constitution, which aims to secure the safety of democratic structure or serve as the foundation of the legal system in the United Kingdom, presents both benefits and detriments. Although it is a democratic country, as the entire citizenry, separately and through indirect involvement in the decisions of the government, can participate and endeavor to influence political life, the United Kingdom is one of the few nations which does not have a 'single' formally written or codified document considered as a 'constitution' to establish freedom and boundaries in the political system, rights of the states and responsibilities of the citizens (Kurian 1998). The systems utilized by the British government have always been founded on political behavior and political practices developed over its long and dramatic history. These behaviors and practices are sometimes codified, though not in a single unit, and established by common laws, which comprise the decisions of the courts and the judges, and by conventions - customs, political culture and practices. A majority of nations have gone through an occurrence which caused them to depart with history affording them the prospect of codifying their constitutional system. However, Britain is unique in this aspect as the British constitution is a consequence of steady progression and transformation rather than a conscious attempt to devise an absolute arrangement of constitution and government (Raphael, 2004). Nonetheless, it is apparent that Britain possesses a constitution which categorizes statutes and systems involving the primary institutions of the state. However, many scholars contend that the absence of a codified constitution results to a power 'vacuum,' a vacuity seized by the legislative supremacy of the Parliament. Although the branches of the British government comprise of the legislature, the executive, and the judiciary, there is an overlap in power and functions between the branches, as a formal division of powers or system of checks and balances, is absent (Burnett, 2002). The Lord Chancellor, for instance, is a constituent of all the three branches concurrently serving as a member of the cabinet, the legislative and the judiciary. The British Parliament, composed of the monarch, the House of Lords, comprised largely of appointed members, and the House of Common whose members are elected, is the most sovereign This sovereignty of the Parliament is evident in its 'legislative enactments', binding on each and every one, although the British citizens could dispute the legality of a particular act under a specific decree in the courts (Burnett, 2002). A. V. Dicey made this clear when he stated that, 1The principle of Parliamentary sovereignty means neither more nor less than this, namely, that Parliament thus defined has, under the English constitution, the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament. The entire political authority resides on the prime minister and the cabinet, and the monarch must operate on their counsel. The prime minister selects the cabinet from MPs, coming from his political party and a great number of cabinet ministers head the departments of the government. The prime minister's power was augmented in the 20th century as sometimes, acting alone or with another colleague in the parliament, the prime minister has made and created decisions and pronouncements formerly made by the cabinet all together. This does not mean though, that Prime ministers have not been overruled by the cabinet on various instances. In fact, Prime Ministers must generate the support of the cabinet to exercise their authority more effectively (Maitland, 1908). This idea of the parliament was referred to as the 2 "twin pillars" of the constitution by A.V. Dicey, in his treatise An Introduction to the Study of the Law of the Constitution (1885). Dicey asserts that the constitution is founded on the two equal principles: Parliamentary sovereignty and Rule of law. Parliamentary sovereignty states that the Parliament is the absolute legislative or law-making entity which can create laws on the national scale. This principle is believed to be an ancient one which can be attributed to the age of the Restoration. The rule of law on the other hand is the theory of equal appliance of the law which contends that 3'everyone is equal before the law'. Even though this principle is clearly archaic, as it is taken from the Magna Carta of 1215, the application of the law of equality to every individual in the state only critically spawned in the nineteenth century. Dicey's "twin pillars" contention is considered a legalistic analysis, which has been disparaged by scholars who wrote about the shrinkage of the Parliament's autonomy and the supremacy of the executive in policy development. While political elucidations of the constitution have spawned considerably since the time of Dicey's, a consensus is yet to be formulated on an alternative legal understanding of these principles. An additional significant principle, which marks the distinction of the British government from other forms of government, is the theory of a 'unitary state', a consequence of Parliamentary sovereignty which denotes that, in contrast to the federal or confederal systems of government, sovereignty is '4inherent only at the centre of the state.' The authority of 'local and devolved' entities or structures is entirely reliant on Acts of Parliament as they could be eliminated absolutely by Parliament if it desired so. Furthermore, the monarch, in principle, does not rule but takes a ceremonial duty. This principle can be traced to the Restoration and the period of Walter Bagehot who asserted that the monarchy was the 5'dignified parts' of the constitution. Nevertheless, the parliament in theory obtains its power from the Crown by the tacit sanction of the monarch. This only implies that the monarch is often referred to as the 6"supreme guardian of the constitution" in that the monarch could 7'veto an unconstitutional act of parliament by decree.' Nevertheless, many assert that one result is that "formal restraints" - meaning a codified, formal constitution that regulates the actions of each branch of the British government - "upon the exercise of power which exist elsewhere, do not exist in the United Kingdom." Because it can be changed by a simple decree of Parliament, the British constitution is often referred to as flexible which allows the British government to respond immediately to imminent constitutional crisis, but it does not bestow basic safeguards for civil liberties, or any areas in which parliamentary legislation is expressly forbidden. If we examine the outcome of this "vacuum at the foundation", both in the terms of the importance of the doctrines identified, and in the terms of the lack of "formal restraints upon exercise or power" in the UK, we will see that the consequences are both advantageous and in some ways detrimental. First, the UK uncodified constitution resulted to the stability of democratic processes in the nation as a whole. As we look back at the long history of Britain, we will realize that democracy was ingrained in the culture of the public. There is no greater law other than culture. As it is a way of life, democracy not only became an ideal philosophy but also the foundation of the very existence of the British individual. Ruth Benedict, one of the greatest cultural anthropologists who ever existed in our history asserted this when she stated that 8'we are all plastic to the molding force of our culture' as for her it is the most powerful consciousness that govern our actions. Thus, if democracy is an exercise of culture, the vacuity of these formal restraints, rests on the cultural norms and the cultural ideal of every individual. It is therefore safe to assume that what the UK law lacks in literate form exists in the very soul and ingrained in the ideal of every British citizen. The existence of this culture of formal restraints (my personally concocted terminology) does not exist anywhere else other than in Great Britain and that is why when we observe emerging democracies and new democratized countries, laws in formal and written forms are usually broken as the country's ideals did not evolve historically. Many countries that emerged as democratic institutions were forced to accept the ideology as they were compelled by capitalistic economies to adapt to the 'current trend' and existing institutions utilized by the formidable governments. This is not to say that democracy is not an ideal system but this is to remind ourselves that all institutions must evolve and progress towards achievement and the maximization of freedom as long as equality in the opportunity to achieve these freedoms is bestowed to all. The emergence of the culture of democracy, justice and liberty must be, to an extent, experience by every state so as to stabilize its democratic fundamentals. Imperialists and colonizers in the past have forced countries to employ a democratic system patterned on the American federal democratic system or the British Westminster type of government. What ensues as consequences are usually chaos, confusion and inadaptability of these individuals in the colonized states to capture the essence of democratic ideals that arose in the histories of both the United States and the United Kingdom. These emerging democratic countries therefore must be allowed to grow, experiment and learn from its past mistakes in order to achieve robust democratic systems. This process of growth towards maximization of freedom is gradual and sometimes slow but this growth towards the achievement of liberty is what every species hope to achieve as this is evident in the very nature of living organisms. Even the human genome (genes) cannot express itself fully well under the existence of constraints and limitations. Indeed, not only is freedom imbedded in our genes, it also exhibited in our ideals and institutions. As we directly experienced and veered our own political structure toward democracy, as evident in our history, the United Kingdom's unwritten constitution enjoy flexibility and pragmatism not seen in other government structure in other nations. The British culture again is responsible for this reality as most Britons have proclivities toward rapid change. However, a growing number of discontentment heighthens as many observe the flaws in the present system as even in the 21st century, no checks on the power of Parliament exists except for the right of the monarch to repudiate the royal consent to any Act implemented and passed by the two Houses of Parliament. This is referred to as the Royal Veto which has not been utilized in 300 years. Many 'contend' that such exercise of power by the monarch is no longer in existence. The Royal Veto remains as the only check the monarchy has over the parliament in order to create balance of power in the government. The absence of the check of the Royal Veto, the Parliament - and not the citizens become sovereign and this might lead to the abuse of powers by Parliament as it can modify any element of the constitution whenever it desires. This is a cause of fears to many as they feel that none of their freedoms are inviolable in the current system. A great many individuals also fear that, by abusing its powers, the parliament would abolish elections and could set up a dictatorial government. Under the British constitutional law, the government has the power to eradicate elections if it also desires so. The people as a result, will have no legal right to dispute the removal of this power. The question therefore we need to ask is this: Are these contentions based on the realities of our existing, laws, statutes and conventions A. V. Dicey made this issue very clear by stating that, 9The fact that the most arbitrary powers of the English executive must always be exercised under Act of Parliament places the government, even when armed with the widest authority, under the supervision, so to speak, of the Courts. Powers, however extraordinary, which are conferred or sanctioned by statute, are never really unlimited, for they are confined by the words of the Act itself, and, what is more, by the interpretation put upon the statute by the judges. Parliament is supreme legislator, but from the moment Parliament has uttered its will as lawgiver, that will becomes subject to the interpretation put upon it by the judges of the land. With that clearly stated, 'interpretations' are still vital if the new law passed by the Parliament is legal or constitutional. This interpretation of the functions of the judiciary and the parliament are still subject to a more extensive analysis which this paper could not address. Dicey, furthermore, made this apparent when he discussed the priciples of the Rule of Law asserting the neutrality of the courts and the Rule of Law. He contended that the law is there for 'all to obey' and not one individual not even those that occupy the 'highest reaches' of government, not even the Prime Minister is excused from conforming to and obeying the law. WORKS CITED Benedict, Ruth. (1934) Patterns of Culture. Newy York. Houghton Mifflin. p.5 Bradley AW and Ewing KD.(2003). Constitutional and Administrative Law, 13th Ed. p238-244 Carmichael, Paul, Brice Dickson, and Guy Peters. (1999). The House of Lords: Its Parliamentary and Judicial Role. Oxford: Hart Publishing. Cosgrove, Richard A. (1980). The Rule of Law: Albert Venn Dicey, Victorian jurist. London: Macmillan, xv, 319p Dicey, A.V. (1915). Introduction to the Study of the Law of the Constitution [Eighth Edition. (LibertyClassics, pp. 3-4. Farnborough, T. E. May, 1st Baron. (1896). Constitutional History of England since the Accession of George the Third, 11th ed. London: Longmans, Green and Co. Ford, Trowbridge H. (1985). Albert Venn Dicey: The Man and His Times. Chichester: Rose, 354p. Horowitz, Donald. (1993). "Democracy in Divided Societies", Journal of democracy, vol. 4, n. Kurian, George Thomas (1998.). World Encyclopedia of Parliaments and Legislatures. New York: MacMillan. Longford, Frank Pakenham, 7th Earl of. (1999). A History of the House of Lords. New edition. Gloucestershire: Sutton Publishing "Parliament" (1911). Encyclopdia Britannica, 11th ed. London: Cambridge University Press Raphael, D. D., Donald Limon, and W. R. McKay. (2004). Erskine May: Parliamentary Practice, 23rd ed. London: Butterworths Tolley Read More