Australia Constitution vs the UK Constitution - Essay Example

AUSTRALIA CONSTITUTION VS. UK CONSTITUTION Constitution serves as the most sublime and supreme document of a which determines and explains the rights and obligations of the state and individuals towards each other. Hence, it is the preliminary document that not only introduces the nature, scope and range of political set up of a country, but also helps in maintaining the exact use of power as well as protects the misuse of the same. Generally it is the constitution that describes in detail the extent of almost all the legal liabilities, formalities, and responsibilities related to legislative, political, executive and judicial institutions, yet there are few legislative activities and obligations, which are not manifestly defined or codified in the constitution, yet these uncodified terms are considered as understood ones because of the tradition of observing of such acts, activities, liabilities and collective behaviour at legislative, judicial and executive levels. In other words, constitutional conventions play imperative role in political development and growth of institutions within a state or country. Before embarking upon the topic under study, it would be advisable to define convention and its difference from understandings, habits, practices and laws. Conventions: Conventions refer to the uncodified traditional activities being observed by a large number of a community, an institution, a region or a social set up for a long period of time, and which have become as precedent to imitate for the successor generations. Though conventions are not observed by the individuals as law, nor the individuals are vehemently forced to imitate conventions in their everyday life, even then social norms and cultural values do not allow the complete violation of the prevailing conventions. “A convention is a rule, method, or practice established by usage; as it is the convention to showing north at the top of a map or globe.” (Retrieved from dictionary.reference.com) Difference between Convention and Understandings: An understanding simply means mutual unwritten agreement between two or more individuals regarding performing of or abstaining from one or more acts or performances, which is not necessarily regulated by some previous rule or tradition. For example, the individuals may have an understanding to help each other at the hour of need. On the contrary, conventions contain traditional observance while conducting an act or behaviour. Difference between Convention and Habits: Habits are people’s routine activities, which gradually become part of one’s nature and schedule. A habit can either be good or bad, and can be applied differently at different occasions. For instance, telling lies and speaking truth are two different habits practiced by the individuals at different instances. On the other hand, conventions are somewhat persistent activities non-observance of which may cause public displeasure and disapproval consequently. Difference between Convention and Practices: Practices are the social norms and values which are usually followed by some specific religious, regional, racial, ethnic or gender-based group or community, nature of which could be cultural, social or religious one. For example, worshipping One God is the religious practice observed by followers of all the three Abrahamic religions i.e. Judaism, Christianity and Islam. On the other hand, conventions are predominantly the political or cultural practices which have been in vogue among overwhelming majority of the people of a social establishment. Difference between Convention and Laws: Laws are the ascribed rules and regulations endorsed, articulated and devised by the political authorities in a society, breaking of which is liable to be tried at the court of law and justice; and the court may announce sentence on the basis of sufficient evidence against the law-breaker. Hence, abiding by the statutes of prevailing law is strictly implemented by the law enforcing agencies appointed by the political authorities for the maintenance of peace and order in society. But violation of conventions is though condemned and censured by society or relevant community and group; deviating from observing of conventions does not provoke any punishment subsequently. Constitutional Conventions: Definitions, Scope and Significance: Constitution is the complex whole of conducts, collective behaviour, intelligence, rules and regulations, which is dependent of prevailing norms, values, precedents, documents, traditions and conventions for its continuous escalation and development. Among all these things, conventions are considered to be the most significant one, which keep the social and political set up united with the bonds of traditions and customs. “Constitutional conventions” Wikipedia.org submits, “is an informal and uncodified procedural agreement that is followed by the institutions of state.” Constitutional conventions are vital in the working of a constitution as well as for the implementation of laws in the country. Though not existing in written and codified form, the conventions are thought to be more important even than the written words and statutes of law. This is particularly the case with the UK and other commonwealth countries. “Conventions of the Constitution”, Sarwar views, “are the most important source of the English Constitution and most of the political values and practices are rooted in these political usages. (2003: 5) The present paper aims to make a comparative analysis of the constitutional conventions existing in Australia and the UK, which are as under: Australian Constitutional Conventions: The most dominant constitutional conventions prevailing in the Australian constitution include: 1. Constitutional Monarchy: By analysing the Australian political establishment, it looks crystal clear that the country observes parliamentary state of government, where the Queen of England serves a sovereign head of state. All important decisions are issued in the name of crown, yet the Queen does not make any interference in the political, legislative, executive and judicial affairs of Australia; nor does she implement the policies of her own choice in the country. Nevertheless conventionally, she is the head of the Australian Commonwealth and decrees are issued in her name and by her signatures or the signature of her nominee for Australia (i.e. Governor General). The same is the case with the British political set up, where crown is nominal head as all decisions and activities are made by the parliament. 2. Appointment of Governor General: According to the constitution of Australia, the Queen has the right to appoint Governor General in Australia. Section 2 of the Constitution states: “A Governor-General appointed by the Queen shall be Her Majesty’s representative in the Commonwealth, and shall have and may exercise in the Commonwealth during the Queen’s pleasure, but subject to this Constitution, such powers and functions of the Queen as Her Majesty may be pleased to assign to him.” (Mahajan, 2002: 681) Though, constitution bestows the right upon the Queen to appoint Governor General in Australia, yet conventionally the Australian prime minister, in consultation with his cabinet, nominates the Governor General in Australia. The tradition has been in vogue for nearly last eight decades, when the then Australian Prime Minister James Scullin requested the crown to appoint Sir Isaac Isaacs at the position of Australian Governor General. 3. Parliamentary Sessions: According to the Australian constitution, calling and holding of the session is dependent of the Governor General’s discretion. According to Section 5: “The Governor-General may appoint such times for holding the sessions of the Parliament as he thinks fit, and may also from time to time, by Proclamation or otherwise, prorogue the Parliament, and may in like manner dissolve the House of Representatives.” Consequently, Governor General is the sole authority to call for the parliamentary session whenever he thinks it an appropriate time. In addition, he can also call the session for discussing any serious matter of national, international or regional level. But it has become convention that the majority party of the government or takes decision regarding the session and meeting of the parliament. The same can be observed in the British constitution, where prime minister is appointed by the crown, though it is convention that the queen nominates the leader of majority parliamentary party as prime minister. In addition, Section 6 of the constitution recommends for holding of at least one session of the parliament in a year, though traditionally there take place two to three parliamentary session in a year. 4. Duration of the Parliament: Similarly, the constitution clearly defines the duration of the parliament, subsequent to the fresh general elections to be held. According to Section 28 of the Australian Constitution: “Every House of Representatives shall continue for three years from the first meeting of the House, and no longer, but may be soon dissolved by the Governor-General.” Conventionally the prime minister decides the fate of the parliament and can dissolve it by consulting the Governor General. 5. Selection of Leader of the House: “Under the section 64, Governor-General appoints the Prime Minister of the country. Prime Minister is the leader of the Cabinet and conventionally he or she is always a member of the House of Representatives.” (Quoted in mapsofworld.com) But like the British government establishment and political set up, in Australia too leader of the house is appointed by Governor General, who is the leader of majority party from the lower house, which has been a tradition in vogue for the last many decades. The Australian constitutional conventions have further many commonalities with those of British conventions and thus can be compared with British conventions, which are as under: British Constitutional Conventions: “As regards the value of conventions; it would be enough to say that these have made the English political system capable of adjustment with the requirements of a democratic age, and thereby brought constitutional theory in line with political reality without resorting to a total revision of the Constitution.” (Sarwar, 2003: 6-7) The most dominant constitutional conventions prevailing in the UK constitution include: 1. Crown’s approving the bill passed from the Parliament: British constitution is unwritten, yet it strictly acts upon the rule of law and does not deviate from the word of law. It not only strictly observes the statutes of law, but also firmly adheres to the constitutional conventions. According to the British constitution, it is the discretion of the crown to approve or disapprove the bill presented before it after the approval of both the houses i.e. House of Lords and House of Commons. But according to the constitutional convention of last many centuries, the crown does not disapprove any bill. On the contrary, the crown always gives its assent to the bill by endorsing the signature upon it. The same can be witnessed in Australian constitution, where Queen or her representative (i.e. Governor General) approves the bill without any hold-up or hesitation. 2. Speaker’s Neutrality: The speaker of the House of Commons is elected on party-basis, usually from the majority party. But according to the constitutional convention, he separates himself from the party affiliations, and pretends to be completely impartial and neutral parliamentarian while rendering his services of running the affairs of the house. He imitates the age-old prevailing constitutional convention and pays equal attention to the members of all parties without displaying any type of partiality or discrimination towards any member of parliament. The same is in Australian Lower House, where speaker is always neutral and impartial from any prejudice and biasness. 3. Nomination of the Leader of the House: Nomination of Leader of Lower House as well as of House of Commons is also common in Australian and British constitutions respectively. The British constitution has delegated to the king the power of nominating the leader of the house in the parliament. Thus, it is on the discretion of the crown to appoint anyone as leader of the house. But according to the convention, the king always nominates the leader of the majority party in the House of Commons as the prime minister. “In the 19th century”, Haq (2005: 24) cites, “the prime minister could be the member of House of Lords, but now he is always elected from the House of Commons.” Similarly, the king has authority to propose the names of the cabinet, but he also leaves it up to the prime minister, which has been a convention in the British political system. In addition, the prime minister is always elected from the House of Commons that is just a convention only, not the rule or word of law. 4. Appointment of the Members of Court of Appeal: According to the British constitution, House of Lords is the highest Court of Appeal, which hears the cases brought to it for judgement. The constitution delegates powers to all the members of the House of Lords to hear the appeal. But conventionally, only those parliamentarians participate in the hearing, which have obtained formal education of law and thus have command over the provisions and statutes of relevant law. 5. Consultation with the Opposition: The crown has discretionary powers of dissolving the parliament and conducting fresh elections provided the prime minister resigns from his position. But it is one of the most imperative British conventions that the king consults the opposition leader in the wake of the resignation of the leader of the house before making any decision regarding the fate of the parliament. Though, the statutes of constitutional law do not bind him to do so, but the constitutional conventions surely bind the king to consult the leader of the opposition at this eve. In Australian Constitution too, the Governor General consults the opposition in almost same manner. 6. Three Readings of the Provisions of Bill: It is also a constitutional convention that whenever a bill is presented in either or both of the houses of the parliament for discussion and debate, three readings of its provisions are made before its acceptance or rejection. Though three times reading does not create any legal right of the parliamentarians, yet it has become part of the political conventions, which is imitated by the parliament. By looking into the constitutions of both the countries i.e. Britain and Australia, it becomes evident that both these countries lay stress upon constitutional conventions while forming the government and running their parliamentary affairs. Being traditional and conventional societies, both these countries feel proud to transfer the political inheritance through parliamentary conventions to the next generations. It also proves the very reality that existence of such powerful parliamentary conventions do not let the political forces go astray or deviate from the traditions, which are the outcome of long and persistent struggle made by their forefathers and political predecessors during the last many centuries. LIST OF REFERENCES: Haq, Mazharul, 2005 Modern Constitutions Bookland Publishers Urdu Bazaar Lahore Mahajan, V. D. 2002 Select Modern Governments Chand Publishers New Delhi Sarwar, Dr. Muhammad 2003 Constitutions of the World New Book Palace Urdu Bazaar Lahore Pakistan Australian Constitution: Full Text in One Page. (Retrieved from http://www.parliament.go.th/parcy/sapa_db/cons_doc/constitutions/data/Australia/Australia.htm#ch1) Convention Definition: (Quoted in http://dictionary.reference.com/browse/convention) Australian Constitutional Conventions (Quoted in http://www.australianpolitics.com/constitution/conventions/) Constitutional Conventions (Wikipedia Encyclopedia.org) Prime Minister of Australia (Quoted in http://www.mapsofworld.com/australia/australia-country-and-capital/australia-government/prime-minister-of-australia.html) Read More