Difference Between Written and Unwritten Constitution.pptx

Difference between written and unwritten

1. Difference Between Written and Unwritten Constitution

2. Features of the UK Constitution Features of the uk Constitution : While there is no universally accepted definition of a Constitution, a Constitution may be referred to as the body of laws that describes the basic principles of a State, its structure, processes of Government, and fundamental rights of citizens in the state.  Constitution is an aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organization, or another type of entity and commonly determine how that entity is to be governed.

3. There are broadly two types of constitutions namely:  Written and Unwritten Constitution. An unwritten constitution is a Constitution in which the body of laws of a state is not embodied in a single document. The British Constitution falls within the category of an Unwritten Constitution, therefore making it unique and very important for us to examine the British Constitution particularly in the light of its features.

4. Brief History of the British Constitution The British Constitution could be traced through 1215 when  Barons forced King John to accept the Magna Carta charter  of England which limited the power of the king, thereby making the king subject to the laws of the land. From that time thereupon, more legislative enactments and unwritten rules which governed the people came into place. These legislative enactments, unwritten rules, judicial precedents, conventions, and treaties are what we refer to as the British Constitution.

5. Major Features of the uk Constitution It is unwritten:  One major feature of the British Constitution is that it is an unwritten Constitution. It is unwritten in that there is no codified or written constitution in Britain. The Constitution of Britain consists of acts of parliament, Court judgment, Conventions, and treaties.

6.  It is flexible:  The British Constitution is a flexible Constitution as it can be easily amended by the ordinary legislative process. The Constitution can be passed, amended, and repealed by a simple majority of the parliament.

7.   Parliamentary Sovereignty Unlike the United States where the Constitution is supreme, the Parliament in the United Kingdom is supreme. Parliamentary Sovereignty entails the supremacy of the legislative arm of government. It implies that the powers of the legislature or parliament is unlimited by the constitution. Here, the people are the sovereign and final authority but the parliament has unlimited powers to make and repeal any law with respect to any matter in the country. The Parliament can make and unmake as it has unlimited powers to do anything. This unfettered powers of the parliament account for its supremacy in the United Kingdom.

8. The two-House system The business of Parliament takes place in two Houses: the House of Commons and the House of Lords. Their work is similar: making laws (legislation), checking the work of the government (scrutiny), and debating current issues. The House of Commons is also responsible for granting money to the government through approving Bills that raise taxes. Generally, the decisions made in one House have to be approved by the other. In this way the two-chamber system acts as a check and balance for both Houses.

9. Simply put, the parliament in the United Kingdom is the supreme legal authority and not even the courts have the power to overrule any legislation passed by the parliament. Again, parliament cannot pass a law that prohibits future parliaments from changing it, To this, even though the parliament has all what it takes to make any law as it wishes, the laws made by it are not cast in stone that it cannot be amended or changed by another parliament. A law made by it cannot exist in perpetuity neither can it be immutable. Any law so made only subsist as the enacting parliament so desires and can also be changed by it or future parliaments.

10.   Unitary System of Government A Unitary system of government is one in which the powers of government is concentrated at the center with the subdivisions merely existing at the pleasure of the central government. The central government may create or abolish any constituent unit as it deems fit; and may delegate any of its powers to any constituent unit as it also deem fit. A Unitary state has a common military, police, currency, etc and does not share or devolve powers to constituent bodies. In fact, any constituent units created are not equals with the central government and has no real powers to enforce anything within its control.

11. The UK Constitution creates a Unitary system of government in the United Kingdom. In the UK, all powers are concentrated at the centre and the centre only delegates such powers as it deems it necessary to subordinate units. It is only the central government that legislates for the entire country, as no other legislature exists aside it.

12.  The Rule of Law The rule of law is a principle or concept of law which presupposes that everyone is equal before and accountable before the law irrespective of class or status. All institutions of the state are equally accountable to the laws of the state as their actions must be in tandem with the dictates of the law.

13. This is one of the principles deeply entrenched in the Constitution of the United Kingdom. This principle espouses the independence of the judiciary to ensure that the rule of law is upheld. While the parliament is supreme and can make laws, the power granted it to make such laws is curtailed if such laws made contravenes the provisions of the Human Rights Act 1998, Universal Declaration of Human Rights and other International Covenants.

14. The Higher court is empowered to make a review of any such Act of Parliament that is inconsistent with these laws, as the laws have overtime become part of the Constitution. The Parliament acquiesces that the Higher Court can actually inquire into the validity of the laws if they are in contravention of the rights of citizens.

15. The constitution which is systematically and rationally written down and embodied in a single document, bearing a specific date or different dates, is said to be  written constitution . Contrary to this, an  unwritten constitution  does not mean that no provisions or laws of the constitution will be found in written form, but it means that they are not legally incorporated in a single book, however, they are documented.

16. Constitution refers to a system of laws and principles which acts as a base for the governance and control of a nation. It determines the distribution and control of powers, organization and function of the government, primary organs of the state as well as the rights and duties of the citizens. Further, only those powers are used by the government which has been granted by the constitution.

17. A constitution is a live document, in which necessary amendments are made according to time and society. It is classified as per the political system prevalent in the country. One such classification is written and unwritten constitution.

18. Written Vs Unwritten Constitution Basis for Comparison Written Constitution Unwritten Constitution Meaning Written Constitution is the constitution which is codified and compiled in a structured and logical manner. Unwritten Constitution refers to the constitution which is not embodied in a single document. Nature Properly framed and enacted Evolved Type Rigid, flexible or both Flexible Supremacy Constitution is supreme Parliament is supreme Judiciary Enjoys wide powers. Possesses limited powers. Powers Unitary, Federal or Quasi Federal Unitary Prevalent in USA, India, Canada, Sri Lanka, etc. UK, New Zealand, Israel, etc.

19. Definition of Written Constitution Written Constitution, as the term itself clarifies, is that type of constitution wherein there is a legal and formal book or series of documents bound as a book containing the nature of the constitutional arrangement, the laws governing the entire system and the rights and duties of the citizens and the government.

20. It explicitly lays down the primary organs and bodies of the government. Written Constitution is perfectly framed, duly passed and enacted after deep analysis and consideration, concerning the situation and conditions of the country. For the purpose of its enactment, a specialized body is assigned, who formulate and adopt the constitution. The constitution gives a proper design to the government institutions, hierarchies, powers, functions, relationships, supremacy etc. Further, the government is bound to adhere to the provisions of the constitutions and work accordingly.

21. A written constitution is preeminent because it is difficult to amend, as compared to ordinary law, as well as in the event of any dispute between the two rules of the constitution prevails. However, amendments can be made to the written constitution as per the definite procedure stated in the constitution itself. In a written constitution all the laws are present in writing, and so people can refer to it whenever needed. Further, powers, functions, organization of the different bodies are specified, which does not leave a room for confusion and chaos.

22. Definition of Unwritten Constitution Unwritten Constitution refers to a constitution wherein the fundamental laws, legal decisions and rules that govern the nation are not embodied in a single written document systematically. However, they are defined by customs, usage, precedents, formal and legal enactments and instruments such as certificates, bonds, deeds, contracts, acts, writ, process, will, etc. as manifested in statutes and decisions taken by judiciary. The laws evolve through continuous use and practice, which become a part of the constitution.

23. In better words, the unwritten constitution is the constitution which is neither drafted nor enacted with a proper procedure by the constituent assembly. And so, it does not mean nothing is written, rather it means that it is not codified in a single legal document or book. Further, there is no specialized body assigned to enact of the constitution.

24. One can understand the provisions relating to the constitution with the help of reading explanation given by the judiciary, committees or experts. The information about it can be obtained from historical charters, principles, laws etc. The government is systematized and it works as per the well established and predefined rules. Further, all the citizens of the country follow these rules.

25. Key Differences Between Written and Unwritten Constitution Written Constitution refers to the constitution the laws of which are properly enacted and duly framed and stated in a single book. On the contrary, Unwritten constitution is a system which is not incorporated in a series of documents as a book, as well as the laws are not formally enacted on a specific date. A written constitution is enacted on a specific date by a particular body, which is specially designed for its adoption and enactment. On the other hand, the unwritten constitution evolves gradually as well as it is updated with a passage of time. The written constitution can be of three types rigid, flexible or the combination thereof. As against, Unwritten constitution is flexible and so changes can be made easily to it. When it comes to dominance, the constitution is considered as supreme in case of a written constitution. In contrast, in unwritten constitution parliament is considered as supreme. Talking about the powers of the judiciary, in a written constitution the powers of judiciary possess outspread powers, whereas in the case of the unwritten constitution the powers of the judiciary are limited.

26. There are unitary and federal powers in a written constitution. This means that the powers are distributed between central and state government. As opposed, the unwritten constitution the powers are unitary, i.e. they are centralized. The written constitution can be found in countries like India, USA, Japan, Canada, Sri Lanka, Germany, Switzerland, etc. Conversely, United Kingdom, Israel, New Zealand, are the name of the countries, where the unwritten constitution is present.

27. Conclusion One thing is to be noted that in a written constitution a fine line of difference is maintained between constitutional law and ordinary laws, whereas no clear distinction is there in case of an unwritten constitution. In a written constitution, all the provisions are present in writing and are laid down with great consideration and so it cannot be twisted and modified as per the conditions and emotions, which ensures consistency in decisions. Conversely, in an unwritten constitution, it is easy to add a new law or update the existing one.

28. Sources of the UK Constitution Statute law:  this is law made by Parliament, and is one of the most important sources of the UK constitution, as statute law overrides other laws, due to the principle of parliamentary sovereignty. Examples would be the European Community Act of  1972 , ( The most significant change caused by the introduction of this Act was the fact that it made the United Kingdom a member of the European Economic Community which meant that the United Kingdom was now subject to EU laws.) and the Human Rights Act of  1998 Common law:  this is ‘judge-made law’- laws based on precedent and tradition. When deciding on the legality of a case, judges will use previous decisions on similar cases- these are examples of common law. For example- the powers contained in the Royal Prerogative (which are now exercised by the Prime Minister).

29. Conventions:  these are non-legal established rules of conduct and behaviour - what is ‘expected’. For example, the monarch granting Royal Assent (royal approval) to each bill passed by Parliament, the appointment of the Prime Minister (the leader of the Commons’ largest party), and collective responsibility (all government ministers openly support all government policy). Works of authority:  works written by scholars seen as experts in the constitution- they outline what is ‘correct’ for the UK constitution. For example, Bagehot’s  The English Constitution (1867) , Dicey’s   An Introduction to the Study of the Law of the Constitution (1885) .

30. EU laws/treaties:  the UK is subject to European laws and treaties, and will remain so until formally exiting the EU. Sometimes these laws and treaties come into conflict with UK law, so questioning parliamentary sovereignty. Examples include the Treaty of Rome ( 1957 ) and the Treaty of Lisbon ( 2009 ). Order of importance: EU law Statute law Common law Conventions and works of authority

31. Basis for Comparison Common law Statutory law Meaning The law that emerges out of judicial decisions is called common law. Statutory law is the system of principles and rules of law put forth by the statute. Alternately known as Case law Legislation Nature Instructive Prescriptive Based on Recorded judicial precedent. Statutes enforced by legislature. Operational level Procedural Substantive Amendment Amended by statutory law Amended by a separate statute

32. Principles of the UK constitution Parliamentary sovereignty:  the principle that absolute, supreme and unrestricted power lies with Parliament. JS Mill suggested that Parliament: Can do anything it wants, except turn a man into a woman.

33. Rule of law:   the second ‘twin pillar’ of the UK constitution (alongside parliamentary sovereignty). The principle that the law applies to everyone, even those in government. Rule of law indicates that none of the people is above or below the law”. All the persons are equal in the eyes of the law. If any person violates the law. He should face the trial of the case in the court.

34. No arbitrary punishments No man is punishable by law until he breaches the law of the state. All of those people who have been accused of an offense should be presented before the court for the trial in a legal manner and no one can be deprived of his life, liberty, and property. Equality before law Secondly, the rule of law indicates that in the U.K every citizen, rich or poor, high or low is subject to the same law and the same courts of law. U.K law does not make any difference between act of government and citizen. If any public officer does any wrong with an individual, legal actions would be taken against him according to the existing law of the state.

35. Judicial Decisions Finally, rule of law means that the general objects of the constitutions are the result of judicial decisions which are determining the rights of private persons in particular case before the court

36. Instances of rule of law The right of personal freedom According to rule of law. People have personal freedom in England. No one can be arrested without lawful reasons The right of freedom of decision According to rule of law. People of England have the right to freedom of decision or freedom of speech. Media is independent even everyone can criticize the government policies

37. The right to public meeting Rule of law provides a lot of freedoms, one of them are freedom of meeting. In England, people have the right to the gathering or public meeting or form political parties Ministerial responsibility Ministerial responsibility is an important instance of the theory of the rule of law. If one minister do wrong other will be held responsible for his wrong action

38. Some Exceptions Crown is not responsible for the wrong of his officers. Crown is not responsible for the wrong done by his officers. A government official personally will be responsible for his mistake made in his official capacity Servants of crown are incapable if dismissed If crown dismisses his servants even without a reason, servants are totally incapable to take action against the crown

39. Public officers are not responsible for the wrong of their subordinates As the crown is not responsible for the wrong done by his officers as the public officers are also not responsible for the wrong done by their subordinates because there are certain privileges have given to Public officers

40. Judges of the courts are not responsible The judges of the courts will not be hold responsible for anything done by them in the official course of their business Foreign rulers cannot be trialed There is an exception that rulers cannot be trial by any court In England for any wrong committed by them Diplomatic representatives cannot be trialed Diplomatic representatives cannot be trailed by any court in England for any wrong committed by them

41. Crown’s power to refuse or grant passport Crown has power to refuse or grant passport to travel in any country. The order of the crown cannot be challenged in any court of England

42. Parliamentary government T here is a fusion of powers between the executive (the government of the day- Prime Minister, cabinet ministers and so on) and the legislature (Parliament). Parliament provides the government in the members of the government are drawn from Parliament.

43. Constitutional monarchy   T he monarchy in the UK has no real political power, but remains in place- this is due to the fact it is long-established and traditional. The monarch sits ‘above’ the government, but is merely a figurehead (and perhaps a symbol of unity for the country).