DEFINITION
Constitutional law is concerned with the role and powers of
the institutions within the state and with the relationship between the citizen
and the state.
The constitution is a living organism, which at any point in
time will reflect the moral and political values of the people it governs.
HOW TO STUDY
CONSTITUTION OF UK
The study of constitution of United Kingdom (‘UK’)
involves acquiring an understanding of a variety of historical, legal,
philosophical, and political factors which have over the centuries shaped the
organization of the state.
The United Kingdom appears to be almost unique in not having
a constitution, which is conveniently set out in a single written document.
However, Israel and New Zealand shares this constitutional feature.
United kingdom’s constitution in contrast with most other
states, is the product of many centuries of continuous and mostly gradual,
peaceful evolution.
To study UK’s constitution successfully, it is necessary to
gain an insight in to the history, politics, and political philosophy, which
under pins the constitution.
STATE V
INDIVIDUALS
The constitutional law in UK involves far more than a
learning of legal rules. It may be said that the non-legal rules and practices
within the constitution are at least as important – if not more important on
many occasions- as the legal rules. For Example: in analysing and evaluating
the extent to which the individual citizen enjoys constitutional protection of
individual rights, it is necessary to appreciate the timeless and tireless
quest to ensure the legal protection of the rights of individuals.
LIMITATION ON
GOVERNMENT POWERS
This study involves inter alia an appreciation of natural
law and social contract theories, which underpin the constitutional limitations
on government power in order that the rights of individuals are protected
against the power of the state. For Example: the study of the constitutional
relationship between the government and the legislature: the UK Parliament
today encompasses a knowledge of the political backcloth, the rules of
parliamentary practice and the non-legal or conventional rules, which apply in
the given situation.
PARLIAMENTARY
SUPREMACY
Classical Constitutional legal theory: the power of
parliament in the absence of a written constitution is omnipotent or sovereign.
However, it does not mean there are no restraints on what Parliament may do.
The law-making powers of Parliament, while theoretically and legally unlimited
are in fact constrained by the electorate, to which Parliament is
accountable and by economic, moral, and political necessities.
In terms of accountability to electorates and limits,
which it imposes on Parliament’s power, it is necessary to appreciate the
philosophical and historical foundation of the democracy and the idea of
individual rights.
SOVEREIGN POWER
& NON-LEGAL RESTRAINTS
However, the lack of a codified constituent document the
principles on which the government operates today are precisely those which
govern the relationship between the government and the people under a written
constitution. For Example: the idea of Social Contract makes it possible to
understand the complex relationship between sovereign power and the power of
the people to determine who holds that sovereign power and the way it may and
may not be exercised.
Another Examples of non-legal restraints: Political
and Economic.
ABSOLUTE LEGAL
POWER V PRACTICAL POWER
The distinction
between absolute legal power and practical power. In terms of LAW- the
Crown has the right to appoint the Prime Minister of its choice; and the power
to dissolve or prorogue Parliament when it chooses. This legal power is
restrained by non-legal conventional rules which determine the
conditions under which the Crown has a discretion to exercise its powers.
Therefore, it is necessary to understand the conventional rules, which have
developed over time and have taken on binding force.
THE CONCEPT OF
CONSTITUTIONALISM
The doctrine governs the legitimacy of government
action. It implies far more important than the idea of legality, which
requires official conduct to be in accordance with pre-fixed legal rules. A
power may be exercised on legal authority; however, that fact is not
necessarily determinative of whether the action was constitutional. The
doctrine of Constitutionalism suggests following-
a)
The exercise of power is kept within
the legal limits conferred by Parliament. The concept of intra vires- and
that those who exercise power are accountable to law;
b)
That the exercise of power
(irrespective of legal authority), must conform to the notion of respect for
the individual and the individual citizen’s rights;
c)
That the powers conferred on
institutions within a state (whether legislative, executive, or judicial), be
sufficiently dispersed between the various institutions to avoid the abuse
of power; and
d)
That the government in formulating
policy and the legislature in legitimating that policy is accountable to the
electorate on whose trust power is held.
Summary:
Constitutionalism suggests the limitation of
power, the separation of powers, and the doctrine of responsible accountable
government.
CONSTITUTION
A Constitution is a set of rules, which governs an institute
e.g., social club, trade union, or nation state etc. each such institute has
defined objectives and departments which are established to accomplish those
objectives. Therefore, such institution needs a constitution to define the
powers, rights, and duties of the institution’s members. These set of rules in
addition to regulating the internal working of the organisation, will also
provide manners in which such institution relates to outside bodies. Therefore,
a constitution looks at both the internal and external regulations of the institute
related therewith.
The functions of constitution include defining
(powers, duties, relationships); the two purposes are to define, and evaluate.
DEFINING FUNCTION:
Under it the constitution is both descriptive and
prescriptive (or normative). The constitution will both define the way the
rules in fact operate and dictate- what ought to happen in each situation.
RULE OR NORMATIVE STATEMENT:
It sets a standard of conduct or behaviour, which is
regarded as correct and which is expected to be adhered to by those to whom the
rules apply. These constitutional rules (whether written or unwritten)
facilitate the stability and predictability of behaviour. Moreover, such
normative rules provide a standard against which actual conduct can be judged
or evaluated. For example- if the accusation is made that members of an
institute have acted UNCONSTITUTIONALLY, the speaker is claiming that those
accused have acted in a manner which breached the required standards of
behaviour as laid down in the body of generally accepted pre-determined
normative rules. Resultantly, a constitutional rule in addition to being
descriptive, normative, and predictive is evaluative and judgemental.
Further examination of rules of an Institution reveals that
individual rules have differing levels of importance and degrees (i.e.,
specific, or general). The manner wherein the rules are given may also vary
(some may be written down and others may be discerned through observation of
actual conduct), the model is the UK wherein the sources of constitutional law
vary. Where the legal sources are the mixture of statute and judicial precedent
supplemented by the binding, non-legal, conventional rules, and practices.
Moreover, the rule of constitutional law will also reveal
differences in the manner wherein they may be changed to adapt the changing
circumstances. For example- under a written constitution, the constitution
will itself define the procedure for amendment and may provide for varying
degrees of ease or difficulty in amendment in relation to particular rules. The
rules regarded as the most important are characterised by the greatest degree
of difficulty in the process of amendment. For example- in
constitution of UK the way constitutional change is affected will be dependent
upon accepted constitutional practice which have evolved over time rather than
clearly defined written rules.
DEFINITION
CONSTITUTIONS
Professor KC Wheare [1966, p 1] defines the
constitution of a state as:
‘The whole system of government of a country, the collection
of rules which establish and regulate or govern and regulate or govern the
government’
Thomas Paine [1792, Pt II, p 93] reveals that:
‘A constitution is not the act of a government but of a
people constituting a government, and a government without a constitution is
power without right … A constitution is a thing antecedent to a government; and
a government is only the creature of a constitution.’
Paine means that a constitution is an antecedent to
government, giving legitimacy to the government and defining the powers under
which a government may act. As such constitution sets limit both to the powers
(which can be exercised) and to the way they may be exercised. Therefore, the
constitution defines the legality of power.
Comparing Example: the latter phenomenon is opposite
in a country with a written constitution and a Supreme Court which conferred
with the jurisdiction to rule on the legality of government action. However,
under a largely unwritten constitution, the conduct will be adjudged to be unconstitutional
and yet not be unlawful.
Sir Ivor Jennings author of The Law and the
Constitution, offers a balanced evaluation of this apparent paradox:
‘If a constitution means a written document, then obviously
Great Britain has no constitution. In countries where such a document exists,
the word has that meaning. But the document itself merely sets out rules
determining the creation and operation of governmental institutions, and
obviously Great Britain has such institutions and such rules. The phrase British
constitution is used to describe those rules.’
CLASSIFYING
CONSTITUTIONS
KC Wheare (1966, Chapter 1) identifies the following
salient characteristics of the constitution:
a)
Written and unwritten;
b)
Rigid and flexible;
c)
Supreme and subordinate;
d)
Federal and unitary;
e)
Separated powers and fused powers; and
f)
Republican and monarchical.
WRITTEN v
UNWRITTEN CONSTITUTION
Written
A written constitution contains a single document or a
series of documents, with or without amendments, defining the basic rules of
the state. the origins of written constitutions lie in the American War
of Independence (1775-83) and French Revolution (1789). More
recent written constitutions derive from the grant or devolution of legislative
power from previous imperial powers to former colonies and dominions (South
Africa Act 1909, the British North America Act 1867, and Canada Act 1982),
whether secured because of peaceful settlement or violent revolution (Nigeria
Independence Act 1960 and Zimbabwe Act 1979). KC Wheare [1966, p 4) explains:
‘If we investigate the origins of modern constitutions, we
find that practically without exception, they were drawn up and adopted because
people wished to make a fresh start so far as the statement of their system of
government was concerned… The circumstances in which a break with the past and
the need for a fresh start come about vary from country to country but in
almost every case in modern times countries have a constitution for the very
simple and elementary reason that they wanted for some reason to begin again …
This has been the practice certainly since 1787 when the American constitution
was drafted and as the years passed no doubt imitation and the force of example
have led all countries to think it necessary to have a constitution.’
A written constitution will provide the basic rules but for
understanding of the whole constitutional picture, it is also necessary to
examine subsequent interpretations of the constitution contained in case law
and the political practices which reveal the actual operation of the
constitution.
Unwritten
The absence of any such break in continuity in British
history from 1066 to the current time except 17th Century
constitutional upheavals, more than any other factor explains the mainly
unwritten nature of the United Kingdom’s constitution.
Proviso 1:
All Constitutions howsoever defined and categorised are
dynamic organisms, they are dependent for much of their meaning and relevance
on the societal framework which surrounds them.
Proviso 2:
It must be recognised that the actual protection of
individual rights in constitution is explained not solely by reference to
written rules. Regardless of the form in which rights are protected in any
society, it will be the democratic political process, political practice,
and norms of acceptable governmental conduct that while not having the
force of law, provide constitutional standards which determines the respect
accorded to individual rights. These constitutional features also
establish standards against which the probity (the quality of
having strong moral principles; honesty & decency) of official conduct
may be measured.
RIGID V FLEXIBLE
CONSTITUTIONS
The classification rests primarily on the question- whether
constitutions can be amended with ease.
Rigid
The framers of a written constitution will naturally seek to
protect its constitutional provisions from subsequent repeal or amendment.
Eventually, all or many of the rules will be entrenched, which means that the
constitution will stipulate stringent procedures to be followed in any attempt
to amend the provision in question. The entrenchment will take many forms, but
its central characteristic is that it either prevent, or makes difficult,
amendment or repeal.
Example 1-
The Federal Commonwealth of Australia Constitution Act
1900 provides the procedure to be adopted for its own alteration. An
amending Bill must pass through at least one House of Parliament by a specified
majority and the proposed amendment must be endorsed in a referendum which
approves the measure by an overall majority in atleast 4 of the 6 states (S
128 Commonwealth of Australia Constitution Act 1900). Between 1900 &
1990, 42 proposals for constitutional amendment had been put forward. Of
these only 8 were approved by a majority of electors nationally and a
majority of electors in a majority of states.
Example 2-
The United States’ constitution, constitutional
amendments may be proposed either by a 2/3rd majority of
both Houses of Congress, or, following a request by the legislatures of
2/3rd of the states (by the convention summoned by Congress).
To be accepted, the proposed amendments must then be approved by the legislatures
of the ¾ of the of the states or by conventions in ¾ of the
states. Between 1813 & 1913- only 3 amendments
had been accepted; between 1913 & 1933- 6 amendments; and by 1951-
only one further amendment.
Flexibility
The Constitution of UK represent height of flexibility in
comparison to constitutions US and Australia. The prevalent DOCTRINE OF
PARLIMENTARY SOVEREIGNITY provides that Parliament is supreme law-making
body and can pass any law by a simple majority vote in Parliament, on
any subject-matter (whatsoever); no court may hold an Act of Parliament
to be void [Edinburgh and Dalkeith Railway v Wauchope (1842); Sillars v
Smith (1982)].
However, no Parliament may lay down irreversible rules
regulating future legislative procedures which must be followed. The
Constitutional importance of this lies in flexibility.
Albeit the legislative supremacy of Parliament is
constrained by various constitutional devices and acts of constitutional
importance. Nevertheless, the said devices and acts does not influence the
theoretical powers of the Parliament.
Extra-legal or non-legal constraints in practical terms may
be as important as legal controls. For 1st illustration, Sir Ivor
Jennings (1959b. p 170) provides an example of Parliament
passing an Act which bans smoking in the streets of Paris. As he states nothing
in the Constitution prevents Parliament from enacting it and it will be an
offence. The relevant Act will be valid and recognized in the English Courts,
however it would be totally ineffective and ignored by the courts and public in
France.
For 2nd illustration Jennings states, ‘if
Parliament enacted that all men should be women, they would be women so far as
the law is concerned.’
For 3rd illustration Sir Leslie Stephens asks
what restraints Parliament from passing an Act providing that all blue-eyed
babies be put to death? The response is that Parliament could pass such a law
but in political terms, it neither could nor would do so, for ultimately,
Parliament is dependent upon the support of the electorate.
SUPREME AND
SUBORDINATE CONSTITUTIONS
Supreme Constitution: It refers to a state in which
the legislative Powers of the governing body are unlimited. Conversely,
Subordinate Constitution: It refers to one whose
powers are limited by some higher authority.
FEDERAL AND
UNITARY CONSTITUTIONS
Federation
In US, Canada, Australia, and Malaysia
there exists a division of powers between Central government and the individual
states or provinces, which makes up the federation. It will be clearly provided
in the constituent document. Albeit some powers will be reserved exclusively to
the Federal government like defence & state security; some powers
will be allocated exclusively to the regional governments like planning and
the raising of local taxation; others will be held based on partnership,
powers being given to each level of government with overriding power, may
be reserved for central government.
Common features
All Federal states: Share power between centre and region; the
written constitution is sovereign over government & legislature and their
respective powers ae not only defined by the constitution but are also
controlled by the constitution, which will be interpreted and upheld by a
Supreme Court.
Unitary
The Constitution of the UK has different
arrangements. The state is unitary and there is no defining written constitution
controlling the powers of central government or of the United Kingdom
Parliament. Instead, there exists a sovereign legislative body, which
represents the ultimate law-making power in the state.
For Example:
Power is given to the Northern Ireland, Scottish, and Welsh
legislatures; to local government through the Acts of the United Kingdom
Parliament to fulfil defined functions i.e., the provision of services and
raising of local revenue to finance such services. Regional Parliaments
& assemblies and local authorities entirely came in to existence
through Acts of Parliament and any power given subsequently (subject only to
political acceptability to the electorate) be withdrawn. First Example-
the Statutory abolition of the Greater London Council and other Metropolitan
Borough Councils in 1985, under the Local Government Act 1985. Second
Example- the grant of limited legislative authority to the Northern
Ireland Authority under the Government of Ireland Act 1920. The law-making
power given was later revoked by the UK Parliament by the Northern Ireland
Constitution Act 1973. In 1998, however devolution of power was
again on the constitutional agenda. The Northern Ireland Act 1998, Scotland
Act 1998, and Government of Wales Act 1998 each involve a decentralisation
of power although ultimate sovereign power remains with the Westminster
Parliament.
SEPERATED POWERS
AND FUSED POWERS
The essence of doctrine is that the power vested in the principal
institutions of the state- legislature, executive, and judiciary and
should not be concentrated in the hands of any one institute. The object is
to provide checks on the exercise of power by each institute and to prevent the
potential for tyranny, which might otherwise exist. A Constitution with clearly
defined boundaries to power, and provisions restraining on institute
from exercising the power of another, is one in conformity with the doctrine
of separation of powers. The nearly pure separation of powers
is a totalitarian state or a purely monarchical state.
For Example- UK
Under the largely unwritten constitution of the UK, the
separation of powers is difficult to ascertain and evaluate. It has a distinct
legislative body, executive, and judiciary each exercising different powers.
In practice there are so many exceptions to the pure
doctrine that the significance of separation of powers is called in to
question. However, it is a doctrine which is respected under the constitution
despite many anomalies.
REPUBLICAN AND
MONARCHICAL CONSTITUTIONS
A republican
is a state as its figurehead a (usually) democratically elected President,
answerable to the electorate and to the Constitution.
Example:
Presidential office is both a symbol of statehood and
the repository of many powers, in the name of the state, the President will
enter in to treaties, make declaration of war and represent the state on
formal international and domestic occasions. Like President of the U.S. has
responsibility for proposing legislation to give effect to the political
programme which gave him the mandate of the people. However, he does not
have formal power to initiate legislation and it is the Congress of the U.S.
which will determine the acceptability of legislative proposals but President
have veto power over the legislation albeit 2/3rd of the Congress
can vote to override the veto.
In contrast the UK has constitutional monarchy. The
King Charles is the head of state and all acts of government are undertaken in
the name of the Crown. The great power lies with the King. However, with
exception of important residual powers this is not the case. For example- Prime
Minister will be exercising all powers in King’s name.
The King is unelected and unaccountable to electorate the in
any democratic sense. The Crown enjoys enormous legal-theoretical power but
little practical power, save in exceptional circumstances. The rules which
restrict the monarch’s powers are mostly non-legal. It comprises of all
important conventional rules of the constitutional practice which
regulates so much of the UK’s constitution. For example- the Crown has
the legal power to withhold royal assent from Bills passed by Parliament but by
convention this assent will never be withheld (and has not been withheld
since 1708) unless so advised by the government.
The role of the Crown may be said to be protective and has
power to warn and advise the Prime Minister of the day. The continuity
of and longevity of monarchy remains a distinguishing feature of the UK’s
constitution.
The characteristics of the UK’s constitution can be namely-
1.
Is largely unwritten in character;
2.
Is flexible in nature;
3.
Is Supreme;
4.
Is formally unitary in structure but with
powers devolved to Northern Ireland, Scotland, and Wales and to Local
government;
5.
Exhibits mainly but not completely separate
powers; and
6.
is monarchical.
THE CONSTITUTIONAL
INFLUX
The absence of a written constitution, allied to the doctrine
of Parliamentary Sovereignty enables constitutional change to be brought
about within the UK with the minimum Constitutional formality. The Constitution
has gradually evolved in pragmatic manner. For example- the last and
greatest constitutional change occurred in 1973, when the UK joined the EU.
The generation election of 1997 which presaged
(a sign of an imminent event) further constitutional change. The incoming
Labour government had committed itself to several constitutional reforms. Like
devolution of law-making powers to Scotland and Wales was the first issue to be
addressed by the government.
Reform of the membership of the House of Lords, the upper
House of the UK’s bicameral (made of two houses) Parliament has already
been affected although the ultimate role and powers of the Lords remains to be
determined.
The Human Rights Act 1998 incorporated rights
protected under the European convention on Human Rights in to domestic law,
thereby for the first time providing a code of human rights which is
enforceable in the domestic courts.
Further reforms were affected by the Constitutional
Reforms Act 2005 which reformed the office of Lord Chancellor, established
a new Supreme Court physically separated from Parliament and provided for the
House of Lords to elect its own speaker, an office formerly held by the Lord
Chancellor.
The government’s Constitutional
Reform Act 2005, it covers several different areas, many of which were
considered in the Green-paper. The Governance of Britain 2007, in
summary the major aspects of the Act are:
1.
to establish a statutory basis for the
management of the civil service, which is currently regulated under the Royal
Prerogative;
2.
to introduce a new procedure for the approval (ratification)
of treaties;
3.
to provide for the gradual elimination of
hereditary peers by ending the system of elections in the House;
4.
to make provisions to allow for suspension,
resignation, and expulsion of members of the Lords.
THE STRUCTURE OF
THE UNITED KINGDOM
The UK comprises of four nations of England, Northern
Ireland, Scotland, and Wales. It has population of over 60 million (84%
England, 8% Scotland, and 5% Wales).
The United Kingdom formally the United Kingdom of Great
Britain and Northern Ireland. The Channel Islands and Isle of Man, while
not forming part of the UK other than for the purpose of nationality law, are
represented by the United Kingdom government in international affairs.
The English Legal System extends to England and
Wales. Scotland has its own system of private law which is distinct from
English law. Equally, in Northern Ireland there exists a quite distinct legal
system. Nevertheless, the Westminster Parliament which has hitherto
legislated for each jurisdiction and been Supreme or Sovereign. Change
came in 1998 with devolution of law-making powers to Scotland Parliament, a
Northern Ireland Assembly, and administrative powers to a Welsh Assembly. Each
enjoys limited legislative powers and must be juxta positioned against the
residual legislative powers of Westminster. The objective of the devolution is
to provide more representative and accountable regional government, and to
strengthen rather than undermine the union with England.
England alone remains without its own Central Legislative
Body; however, London now has its own form of devolved government and there are
regional government offices across England.
The UK also has a system of Local Government which is made
up of democratically elected local authorities with wide ranging powers and
responsibilities, and represents the most localised form of democratic
governance. Local government antecedes (precedes) central government by
many centuries. Local authorities are entirely creature of statute: the powers
they have were conferred by the Sovereign Westminster Parliament.
THE BRITISH
ISLANDS
The British Islands comprise of the UK, the Channel Islands,
and the Isle of Man. Islands are part of His Majesty’s dominion. Citizens of
the Islands are treated as citizens of the UK for the purposes of the British
Nationality Act 1991.
THE CHANNEL
ISLANDS
The Channel Island comprises of the islands of jersey,
Guernsey, Alderney, and Sark. The Islands are organised under two separate
Bailiwicks (the district or jurisdiction of a bailic or bailiff): the Bailiwick
of Jersey and the Bailiwick of Guernsey which includes Alderney
and Sark. Each Bailiwick enjoys its own legislature, court
structure, and system of law. Alderney and Sark, whilst part of the
Guernsey Bailiwick enjoy a large measure of independence, having their own
legislative assemblies.
The state of Jersey comprises of 52 elected
members and five non-elected members. The states of Guernsey
comprise of 61 members. Official links between the Crown and the UK
government are through the Lieutenant Governor of the Bailiwick. The
legislation, the states, are headed by the Bailiff and the Deputy Bailiff.
THE ISLE OF MAN
Under the Acts of Parliament of 1765 and 1825[1],
the Westminster Parliament assumed, in the name of the Crown, the rights of
the Lords. In 1958 under the Isle of Man Act of that year, much
control over the Isle was relinquished by Westminster.
The Isle enjoys full powers of self-government and has
its own system of courts and law. The Lieutenant Governor (head of
the Executive) is the formal link between the local administration and the
Crown and UK government.
The Parliament (the court of Tynwald) has executive
and legislative functions. It comprises of Lieutenant Governor, the
Legislative Council, and the House of Keys. The lower House (the
house of keys) has 24 Members elected on a constituency basis for a 5-year
term of office. The legislative Council comprises of the Senior
Bishop, the Attorney General, and Seven members elected by the House of keys.
THE CONSTITUTIONAL
RELATIONSHIP BETWEEN THE ISLANDS AND THE UNITED KINGDOM
Duke of Atholl’s Rights, Isle of Man, Act 1825, ‘The
constitutional position of the islands is thus unique. In some respects, they
are miniature States with wide powers of Self-government.’
The UK government is responsible for Island’s international
relations and their defence. If the legislative measures are to extend to the
islands, it is affected through the Privy Council. Act of Parliament extend
to the islands only if the statute expressly provides or where the Act applies
to all His Majesty’s dominion by necessary implication (reliance placed on Sodor
and Man (Bishop) v Derby (Earl) (1751)).
The Bailiwicks of Jersey and Guernsey do not accept
that either the UK Parliament or the Queen in Council have the power to
legislate for them without consent of the Local legislatures and registration
in the Royal Court.
In contrast to the Doctrine of Parliamentary
Supremacy, the Channel Islands deny that Acts of Parliament or
Prerogative acts under Orders in Council can take effect without local
registration.
THE UNITED KINGDOM
AND THE COMMONWEALTH
The legal authority over such territories vested in the
Crown and Political Control lay with the Privy Council. In 1865, the Colonial
Law validity Act was passed by the British Parliament to clarify the
relationship between British Law, Colonial Law, and the capacity of Colonial
Legislatures for self-regulation. The Act affirmed the principle that such
devolved powers were subject to the overriding sovereignty of the imperial
Parliament.
In 1867, Canada became the first self-governing
Dominion (a status implying equality with Britain rather than subordinate),
followed by Australia in 1900, New Zealand in 1907, South
Africa in 1910 and the Irish Free State in 1921. The
recognition that Empire was being transformed in to a Commonwealth of
Nations came in 1884.
The desire for formal recognition and explication (process
of analysing & developing an idea) of the constitutional relationship
between Britain and the Dominions led to four-yearly Prime Ministerial
Conferences, which commenced in 1887.
The Imperial
Conference of 1926 adopted the Balfour Report which defined
the Dominion as:
‘Autonomous
communities within the British Empire equal in status in no way subordinate one
to another in any aspect of their domestic or external affairs though united by
common allegiance to the Crown, and freely associated as members of the British
Commonwealth of Nations.’
The Statute of Westminster 1931 gave formal recognition to
this definition. India had remained a Dominion under the India Act of 1935 until
independence in 1947.
The Commonwealth today
The Commonwealth is made up of 54 Countries. Nowadays, 32
members are republics and five have national monarchies of
their own, while 16 are constitutional monarchies which recognise
King Charles as Head of State.
The Commonwealth was defined in 1971 at the Commonwealth
Heads of Government Meeting (CHOGM) as:
‘A voluntary
association of independent sovereign states each responsible for its own
policies, consulting, and cooperating in the common interests of their peoples
and in the promotion of international understanding and world peace.’
At 1971 CHOGM held in Singapore, Heads of Government
issued the Declaration of Commonwealth Principles. The principles
include:
1.
the commitment to international peace to ensure
the security and prosperity of mankind;
2.
commitments to the liberty of the individual,
irrespective of race, colour, creed, or political belief, and the individual’s
democratic right to participate in democratic political processes;
3.
a commitment to combating racial discrimination;
4.
an opposition to all forms of colonial
domination;
5.
a commitment to removal of disparities in wealth
between nations and to raising standards of living; and
6.
a commitment to international cooperation.
The principals were affirmed and extended at Harare CHOGM
in 1991, which was declared the Commonwealth’s commitment to
promoting democracy, good government, human rights, the rules of law, and
gender equality within the context of sustainable economic and social
development.
The Judicial Committee of the Privy Council has jurisdiction
to hear appeals from dependencies of the Crown. The jurisdiction was
given statutory force from royal prerogative under the Judicial Committee
Acts 1833 and 1844. Appeals may be with special leave of the Privy
Council or without. Appeal with Special Leave are predominantly criminal
cases. Appeals against the death penalty represent most appeals (Pratt v
Attorney General of Jamaica (1994)).
While before independence colonies had no power to abolish appeals to the Privy Council, on independence, this power rose. As a result, most Commonwealth countries have abolished the right of appeal. The jurisdiction if the Judicial Committee of the Privy Council is now exercised by the Supreme Court.
Bibliography:
[1] Isle
of Man Purchase Act 1765.
