UNIT – X: COMPARATIVE PUBLIC LAW AND SYSTEMS OF GOVERNANCE

1. Comparative Law – Relevance, methodology, problems and concerns in

Comparison
2. Forms of governments – Presidential and parliamentary, unitary and federal
3. Models of federalism – USA, Canada and India
4. Rule of Law – ‘Formal’ and ‘substantive’ versions
5. Separation of powers – India, UK, USA and France
6. Independence of judiciary, judicial activism and accountability – India, UK and
USA
7. Systems of constitutional review – India, USA, Switzerland and France
8. Amendment of the Constitution – India, USA and South Africa
9. Ombudsman –Sweden, UK and India
10. Open Government and Right to Information - USA, UK and India

Comparative Law

 CL is the study of public law in comparative way.

 Study of similarities and differences of legal system
 Developed in 19th Century
 Meeting of 1st International Congress of Comparative Law in Paris in 1900 and came
up with the idea of enacted codified world law.
 After 1945, newly independent states promoted the idea of references to comparative
law rather than to comparative legislation.

Relevance
 Understanding legal setup and functioning in other countries.
 Helps to improve the legal system.
 Helps International Legal Institutions to analyse the legal system of different
countries regarding treaty obligation.
 Enable Statesman, Diplomats and Jurists to understand foreign view point.
 Solved International trade conflicts

Methodology
 Functional Method- This method deals with comparing the functions of the law that
are in place.Understand, compare, focus on similarities, determining the better law.
Procedure may differ but solution may be similar and identical.
 Structural Method- Broader Perspective i.e. Deep Observation. Study structure
hidden with the phenomenon.
 Analytical Method- Ideal type, Analyzed rule of law and other concepts.
 Cultural legal comparison - This method uses the cultural aspect of the nations for
comparison. Every law and the legal system is based on cultural and traditional
aspects especially civil and common law.
 Law in Context- Understanding law as it is (from the view point of foreigner)
 Historical Method- Study historical origin and then understand the law as it
functions today.
 Common Core- Focus on how different legal systems were solving cases rather than
on their legal rules and concepts.

Problems and Concerns in comparison

-Sustainability, equity, regional balance, and social security in the context of

globalization.

Forms of governments

Presidential and parliamentary

Basis Parliamentary Presidential

Executive Dual Single

Executive accountable to Executive not accountable

Accountability
legislature to legislature

People outside the

Ministers Only from among MPs legislature can be
appointed

Dissolution of lower PM can dissolve before

President cannot dissolve
house the expiry of the term

Tenure Not fixed Fixed

 Merits of Presidential System

 Separation of powers
 Expert government
 Stability
 Less influence of the party system

Demerits of Presidential System

 Less responsible executive

 Deadlocks between executive and legislature
 Rigid government
 Spoils system

Merits of Parliamentary System

 Better coordination between the executive and the legislature

 Prevents authoritarianism
 Responsible government
 Representing diverse groups
 Flexibility

Demerits of Parliamentary System

 No separation of powers
 Unqualified legislators
 Instability
 Ministers
 Failure to take a prompt decision
 Party politics
 Control by the bureaucracy

Federal and Unitary

A unitary state is a state governed as a single power in which the central

government is ultimately supreme and any administrative divisions (sub-
national units) exercise only powers that the central government chooses to
delegate. The majority of states in the world have a unitary system of government.
Of the 193 UN member states, 165 of them are governed as unitary states.
Countries like Britain, France, Japan, China, Italy, Belgium, Norway, Sweden, Spain
have unitary government.

A federal government is one in which powers are divided between the national
government and the regional governments by the Constitution and both operate in
their respective jurisdictions independently. US, Switzerland, Australia, Canada,
Russia, Brazil, Argentina and so on have the federal model of government.

Federal Government Unitary Government

1. Dual Government (that is, national 1.Single government, that is, the national
government and regional government) government which may create regional
governments

2. Written Constitution 2. Constitution may be written (France) or

unwritten (Britain)

3. Division of powers between the 3. No division of powers. All powers are

national and regional government vested in the national government

4. Supremacy of the Constitution 4. Constitution may be supreme (Japan) or

may not be supreme (Britain)

5. Rigid Constitution 5. Constitution may be rigid (France) or

flexible (Britain)

6. Independent judiciary 6. Judiciary may be independent or may

not be independent

7. Bicameral legislature 7. Legislature may be bicameral (Britain)

or unicameral (China)

Models of federalism

USA, Canada and India

USA CANADA INDIA

Confederation( units> Federal structure with Flexible federation
union) to federation strong centre
(union= units)
Federal system with each Responsible Government No formal agreement by
state having its own (cabinet is collectively the states to join in
constitution. responsible to the elected federation of states i.e.
house of commons) quasi federal
States have right to move Federal powers lies with Residuary Powers with
away from the union. PM Union (Art 248)
Formed as a result of Parliament can make laws Union of state i.e. strong
agreement between states for the whole country. unitary basis
and union.
No provision to change Bijural Country- Common States have no right to
federal govt into unitary. and civil law move away from Centre
Union has no right to Independent Judiciary Federal to Unitary (Article
reorganize states without 352)
consideration.

Rule of Law

FORMAL and SUBSTATIVE

Principal conceptions of the rule of law: a formalist or “thin” definition, and a

substantive or “thick” definition.

Formalist definitions of the rule of law do not make a judgment about the
“justness” of law itself, but define specific procedural attributes that a legal
framework must have in order to be in compliance with the rule of law. Substantive
conceptions of the rule of law go beyond this and include certain substantive
rights that are said to be based on, or derived from, the rule of law.

Separation of Powers

Many trace the origin of the concept of separation of powers to Aristotle who had
named three elements of governance i.e. procedural, administrative and legal
functions which are often regarded as the origin of the doctrine.

Locke- Discontinuous legislation, continuous executive and federative powers

INDIA

 The Constitution vests the executive power of the Centre and the States in the
President and Governor by means of Article 53(1) and Article 154(1)
respectively. Under Article 50, the State is expected to make efforts to ensure
the independence of the judiciary.
 Articles 122 and 212 provide validity to all kinds of proceedings in the
Parliament and the same cannot be questioned before any Court within India.
 Similarly, judicial conduct of any of the judges of the Court cannot be
discussed in the Parliament and the State Legislature under Article 121 and
211.
 Further, Article 361 provides immunity from civil and criminal liability to the
President and the Governor, the bearers of the country’s executive powers.

Overlapping
-The legislature assumes law-making powers as well as judicial powers in case
of breach of its privileges and impeachment of the President.
- The executive influences the working of the judiciary by exercising the
power to make appointments to the office of the Chief Justice and other
high-level judges.
-Constitutionally, the legislature may disqualify its members, impeach
judges, punish those exceeding their freedom of speech in the Parliament,
etc.
-Ordinance making power

FRANCE
 Even though France is credited with giving origin to the doctrine of
separation of powers, it recognizes the separation of powers in its
Constitution in a flexible manner.
 Article 1 and Article 2 of the document formulate the legislative branch
separate from the executive branch.
 An important feature that ensures separation of powers is its dual court system.
France has one kind of court that deals with all the civil matters and another
kind which deals with administrative matters.
 The French administration also consists of three independent organs viz. the
legislature, the executive and the judiciary.
 However, the executive may also exercise veto to prevent a particular law from
being passed. This is a mechanism to keep a check on the legislature. Further,
the Judiciary too has the power to determine the constitutionality of the laws
passed by the legislature.
 The legislative branch also has the power to remove a president or judge if
they aren’t doing the duties of their job right. The executive branch chooses
the judges and the legislative branch approves the executive branch’s choice.

USA
 Article I- Legislative Power
 Article II- Executive Power
 Article III- Judicial Power
 Exceptions-
 Bill passed by the Congress can be vetoed by President.
 Appointment of certain officials subject to the approval of the Senate.
 Treaties made by President is subject to the approval of Senate.
 SC can declare Act unconstitutional.
 Judges of SC are appointed by President with the consent of Senate.

Panama Refining Company v Ryan, 1935

Cardozo J.- There must be flexibility in SoP

UK
 Maitland traces the doctrine of Separation of Powers in England to the reign of
King Edward I (1239-1307). He observes that all the three elements were
present in the form of Parliament, King’s Council and Courts of Law.
 Although Motesquieu derived the concept of his doctrine of separation of
powers from the British Constitution, as a matter of fact at no point of time
this doctrine was accepted in its strict sense in England.
 On the contrary, in reality, the theory of integration of powers has been
adopted in England. It is true that the three powers are vested in three organs
and each has its own peculiar features, but it cannot be said that there is no
‘sharing out’ of the powers of the government. Thus, the King, though an
executive head is also an integral part of the Legislature. Similarly, all his
Ministers are also members of one or the other Houses of the Parliament.
 The Lord Chancellor is head of judiciary, Chairman of the House of
Commons (Legislature), a member of the executive and often a member of
the cabinet.
 The judiciary is independent but the judges of the superior courts can be
removed on an address from both Houses of Parliament.

Donoughmore Committee- UK no SoP, USA Sop in stricter sense.

INDEPENDENCE OF JUDICIARY, JUDICIAL ACTIVISM AND

ACCOUNTABILITY

UK
Judiciary is independent and separate from the government. This will facilitate
the rule of law. This will ensure that the law is enforced impartially and
uniformly irrespective who is the authority in power. The doctrine of
separation of power is important to look into. It segregates the State into
primarily three branches that is the executive, legislature and judiciary.

This will facilitate checks and balances in the country. Although this doctrine
is not followed in the United Kingdom. Here the executive is drawn from the
members of the parliament. The Lord Chancellor’s office consists of the
three branches fused. The Lord Chancellor who is the member of the
House of Lords acts as the head of the Judiciary.

In 2003 the government abolished the position of Lord Chancellor. This

abolished the establishment of Law Lords presiding in the House of Lords and
it was introduced to the separate Supreme Court and the new judicial
appointments commission.

Judicial Reforms Act, 2005- Section 61(Constitution of judicial

appointment commission of judges)

INDIA
 Article 124(2) the judges are appointed by the President in consultation
with the judicial authority.
 Every judge is guaranteed with the security of tenure.
 The judge of the Supreme Court or High Court will be removed only on
the account of misbehaviour or incapacity.
 Article 124(4) only the President has the authority to remove the judge
in the form of impeachment.
 The administration expenses of the judiciary come from the
consolidated fund of India.
 The judges are not allowed to plead after their tenure is over before any
court.
 The conduct of the judges can be discharged if their duties are discussed
in the legislature.
 The transfer of judges also affects the independence and functioning of
the judiciary. There is no effective mechanism to protect against the
abuse of the power to transfer by the government. Structure of courts in
 India is at three-level that is the district court, the high courts and the
Supreme Court.

The courts in India enjoy virtually absolute and unchecked power unrivalled
by any Court in the world. In these circumstances, it is absolutely vital that
judges of the superior judiciary be accountable for their performance and their
conduct – whether it be for corruption or for disregard of constitutional values
and the rights of citizens.

The Constitution provides that High Court and Supreme Court judges cannot
be removed except by impeachment. That process requires signatures of 100
MPs of the House of People or 50 MPs of the Council of States for its
initiation. If a motion containing charges of serious misconduct with the
requisite signatures is submitted, and admitted by the Speaker of the House of
People or the Chairperson of the Council of States, an Inquiry Committee of 3
judges is constituted to hold a trial of the judge. Only if he is found guilty, the
motion is placed before each House of Parliament where it has to be passed by
a 2/3 majority of each House.

USA
The hierarchy of courts in the USA is mainly divided into 3 parts.

The constitution of the USA is Federal in nature. The Federal courts systems
are classified in main three levels which are depicted below-

 District courts (the trial court)

 Circuit courts which are the first level of appeal (Courts of Appeals)
 The Supreme Court of the United States, the final level of appeal in the
federal system

Amendment of the Constitution- India, US and South Africa

The amendment procedure laid down in the Constitution of India is on

the pattern of the Constitution of South Africa. The constitution of India is
a blend of rigidity and flexibility. Some provisions of the constitution can be
amended by a special majority of the parliament and others by special
majority and ratification by half of the total number of States. some
provisions can also be amended by the simple majority of the Parliament.
 INDIA
There are three ways in which the Constitution can be amended:
1. Amendment by simple majority of the Parliament
2. Amendment by special majority of the Parliament
3. Amendment by special majority of the Parliament and the ratification of at
least half of the state legislatures.

The procedure for the amendment of the Constitution as laid down in Article
368 is as follows:
 An amendment of the Constitution can be initiated only by the introduction of
a bill for the purpose in either House of Parliament and not in the state
legislatures.
 The bill can be introduced either by a minister or by a private member and
does not require prior permission of the president.
 The bill must be passed in each House by a special majority, that is, a
majority (that is, more than 50 per cent) of the total membership of the House
and a majority of two-thirds of the members of the House present and voting.
 Each House must pass the bill separately.
 In case of a disagreement between the two Houses, there is no provision for
holding a joint sitting of the two Houses for the purpose of deliberation and
passage of the bill.
 If the bill seeks to amend the federal provisions of the Constitution, it must
also be ratified by the legislatures of half of the states by a simple majority,
that is, a majority of the members of the House present and voting.
 After duly passed by both the Houses of Parliament and ratified by the state
legislatures, where necessary, the bill is presented to the president for assent.
 The president must give his assent to the bill. He can neither withhold his
assent to the bill nor return the bill for reconsideration of the Parliament
 After the president’s assent, the bill becomes an Act (i.e., a constitutional
amendment act) and the Constitution stands amended in accordance with the
terms of the Act.

USA

Article V of the Constitution prescribes how an amendment can become a

part of the Constitution. While there are two ways, only one has ever been
used. All 27 Amendments have been ratified after two-thirds of the House
and Senate approve of the proposal and send it to the states for a vote.
Then, three-fourths of the states must affirm the proposed Amendment.
The other method of passing an amendment requires a Constitutional
Convention to be called by two-thirds of the legislatures of the States.
That Convention can propose as many amendments as it deems
necessary. Those amendments must be approved by three-fourths of the
states.

SOUTH AFRICA

The procedure for amending the Constitution differs from the procedure to
pass or amend ordinary legislation. It is more difficult to amend the
Constitution than it is to pass or amend ordinary laws. This is because the
Constitution is the supreme law of the Republic.

Section 74(2) of the Constitution allows Parliament to amend any provision in

the Bill of Rights. But this cannot be done by a simple majority vote as would
be the case for ordinary legislation. A Bill amending any provision of the Bill
of Rights must be passed by the National Assembly, with a supporting
vote of at least two thirds of its members, and by the National Council of
Provinces, with a supporting vote of at least six of the nine provincial
delegations.

At least 30 days before such a Bill is introduced in Parliament, the government

is required to publish in the national Government Gazette details about the
proposed amendment for public comment. This would include the text of the
amendment and the motivation for it.

At the same time these details must also be submitted to the provincial
legislatures to get its views. Only after this 30 day period can the Bill be
formally tabled in the National Assembly. When it’s introduced in the
assembly, the government must also submit any written comments from the
public and the provincial legislatures to the Speaker for tabling in the
assembly. These must also be tabled to the chairperson of the National Council
of Provinces.

Public involvement
Sections 59 and 72 also require the National Assembly and National
Council of Provinces to facilitate public involvement in the legislative and
other processes of the National Assembly and its committees.
The Constitutional Court held that this imposed a duty on the assembly and the
National Council of Provinces to act reasonably in ensuring the voices of
ordinary people are heard before passing legislation.

Section 74(7) also says that a Bill amending the Constitution may only be
put to the vote in the National Assembly after at least 30 days have elapsed
since its introduction, if the National Assembly is sitting when the Bill is
introduced; or after at least 30 days after its tabling if the National
Assembly is in recess when the Bill is introduced.

System of constitutional review – India, USA, Switzerland and France

Judicial review is the power of Judiciary to review any act or order of

Legislative and Executive wings and to pronounce upon the constitutional
validity when challenged by the affected person.

INDIA

The power of Judicial Review comes from the Constitution of India itself
(Articles 13, 32, 136, 142 and 147 of the Constitution).

The power of judicial review is evoked to protect and enforce the fundamental
rights guaranteed in Part III of the Constitution.

Article 13 of the Constitution prohibits the Parliament and the state legislatures
from making laws that “may take away or abridge the fundamental rights”
guaranteed to the citizens of the country.

The provisions of Article 13 ensure the protection of the fundamental rights

and consider any law “inconsistent with or in derogation of the
fundamental rights” as void.

USA

The concept of judicial review was developed by Chief Justice Marshall of

the American Supreme Court in the famous Marbury v. Madison case
(1803). In this case Chief Justice Marshall laid down that the judiciary has the
power to examine the laws made by the legislature. It was also declared that if
any such law is found to be in violation of the constitution, then such a law
would be declared by the court as ultra-vires of the constitution.

Judicial review is done by a bench of the Supreme Court and not by a

single judge. The verdict is given by majority. Sometimes it is a majority of
only a single judge.

Due process of law as the basis of judicial review

On the basis of the Fifth Amendment of the Constitution, the scope of judicial
review has become very vast. In one of its clauses, it has been laid down that
“the Government cannot deprive anyone of life, liberty or property without
due process of law.”

The Supreme Court while conducting judicial review, tests

(1) as to whether the law has been made strictly in accordance with the
provisions of the Constitution or not; and

(2) as to whether the law satisfies the ends of justice and meets ‘due process
of law’ i.e. whether it is fair and just or not. The law is declared invalid if it
fails to satisfy either of these two tests.

Limitations on the Supreme Court in respect of Judicial Review

1) The Court does not conduct judicial review over political issues.
2) While declaring a law unconstitutional the Court has to assign reasons and
specify the provisions of the Constitution that it violates.
3) The Supreme Court conducts judicial review only in cases actually
brought before it. It cannot initiate the process of its own.
4) The law declared invalid ceases to operate for the future. The work already
done on its basis continues to be valid.

In USA, if a law is rejected by the Supreme Court then the court will
make a new law in its place. Although law making is not the responsibility
of the judiciary, the judiciary makes laws. Such judge-made laws are very
common in USA.

SWITZERLAND

An exception to the rule by which a constitutional court or a supreme court

decides on the constitutionality of state constitutions would be Switzerland,
Switzerland has exempted specific legislative acts from the judicial review
through the federal constitution or judicial practice, by the court's narrow
interpretations of the constitution.

Such provisions were present in the Constitution of 1874, and they were
reiterated at the 1939 referendum, when a proposed amendment was repealed
that would have otherwise allowed the judicial review of federal laws by the
Federal Court.

The provisions banning the Supreme Federal Court from reviewing the
constitutionality of federal laws were included in the new constitution of the
Swiss Confederation of 1999.

FRANCE

There is only a very limited form of judicial review in France: the ‘Conseil
Constitutionnel’

It can review legislation on constitutional grounds, but only in the period

between passage of a bill and “promulgation” and only on a referral by the
president, the prime minister, the president of the Senate, the president of the
National Assembly, or sixty senators or sixty deputies.

Once promulgated, a law cannot be challenged on constitutional grounds,

only rescinded by legislative action.

The Conseil Constitutionnel has 9 members, just like the U. S. Supreme

Court.