Constitutional Systems Of The World

[Rachelle Kun]

Thisbook contains a comparative constitutional analysis of the constitutional/judicial review systems in 208 countries. Itgives a broader overview and deeper knowledge of such systems around the world. The study was created by the students research group of the European Law School to the New University in Slovenia, conducted by professor Arne Marjan Mavčič.

The institutional and functional comparative method is making readers familiar with constitutional systems of different countries, drawing on features for individual world regions and considering specific types of constitutional and judicial review. Using a special systemic presentation model, the researchers treat different systems and institutions that hold their exclusive decision-making power on constitutional matters. Their review quite often covers legislative acts that are the highest legal instruments of a specific legal and political system. This gives each constitutional/judicial review institution a special status with power to provide constitutional and/or review under the system of the separation of powers, especially in relation to the legislative power in that it may even annul statutes adopted by the legislative body.

Arne Mavčič, Professor Emeritus, completed his graduated and post-graduated law studies at the University of Ljubljana (Slovenia) and Zagreb (Croatia). He was head of the Information and International Department of the Slovenian Constitutional Court and the liaison officer for Slovenia to the Venice Commission under the Council of Europe, the national correspondent for Slovenia to ACCPUF Paris, a member for Slovenia in different international research groups and a Fulbright Scholar. As Senior Expert Counsellor to the University of Ljubljana Law School, Professor of Human Rights Law, Constitutional Law and Comparative Constitutional Law at the School of Government and European Studies and at the European Law School to the New University of Ljubljana, he specialises in legal information systems, (comparative) constitutional law and human rights law. As the author and editor of several publications in the field of constitutional law as well as the author of over 300 papers and reports of a national and international character, Dr Mavčič has largely been engaged in practical and promotional activities in the fields of comparative constitutional review and human rights law.

A parliamentary system, or parliamentary democracy, is a system of democratic government where the head of government (who may also be the head of state) derives their democratic legitimacy from their ability to command the support ("confidence") of the legislature, typically a parliament, to which they are accountable.

In a parliamentary system, the head of state and head of government are usually two separate positions, with the head of state serving as a ceremonial figurehead with little if any power, while all of the real political power is vested in the head of government. This is in contrast to a presidential system, which features a president who is usually both the head of state and the head of government and, most importantly, does not derive their legitimacy from the legislature.

Countries with parliamentary systems may be constitutional monarchies, where a monarch is the head of state while the head of government is almost always a member of parliament, or parliamentary republics, where a mostly ceremonial president is the head of state while the head of government is regularly from the legislature. In a few parliamentary republics, among some others, the head of government is also head of state, but is elected by and is answerable to parliament. In bicameral parliaments, the head of government is generally, though not always, a member of the lower house.

Parliamentarianism is the dominant form of government in Europe, with 32 of its 50 sovereign states being parliamentarian. It is also common across the Caribbean, being the form of government of 10 of its 13 island states, and in Oceania. Elsewhere in the world, parliamentary governments are less common, but they are distributed throughout all six populated continents, most often in former colonies of the British Empire that subscribe to a particular brand of parliamentarianism known as the Westminster system.

Since ancient times, when societies were tribal, there were councils or a headman whose decisions were assessed by village elders. Eventually, these councils slowly evolved into the modern parliamentary system.

The first parliaments date back to Europe in the Middle Ages: specifically in 1188 Alfonso IX, King of Leon (Spain) convened the three states in the Cortes of Len.[1][2] The Corts of Catalonia were the first parliament of Europe that officially obtained the power to pass legislation, apart from the custom.[3] An early example of parliamentary government developed in today's Netherlands and Belgium during the Dutch revolt (1581), when the sovereign, legislative and executive powers were taken over by the States General of the Netherlands from the monarch, King Philip II of Spain.[citation needed] The modern concept of parliamentary government emerged in the Kingdom of Great Britain between 1707 and 1800 and its contemporary, the Parliamentary System in Sweden between 1721 and 1772.

In England, Simon de Montfort is remembered as one of the fathers of representative government for convening two famous parliaments.[4][5][6] The first, in 1258, stripped the king of unlimited authority and the second, in 1265, included ordinary citizens from the towns.[7] Later, in the 17th century, the Parliament of England pioneered some of the ideas and systems of liberal democracy culminating in the Glorious Revolution and passage of the Bill of Rights 1689.[8][9]

In the Kingdom of Great Britain, the monarch, in theory, chaired the cabinet and chose ministers. In practice, King George I's inability to speak English led to the responsibility for chairing cabinet to go to the leading minister, literally the prime or first minister, Robert Walpole. The gradual democratisation of parliament with the broadening of the voting franchise increased parliament's role in controlling government, and in deciding whom the king could ask to form a government. By the 19th century, the Great Reform Act of 1832 led to parliamentary dominance, with its choice invariably deciding who was prime minister and the complexion of the government.[10][11]

Democracy and parliamentarianism became increasingly prevalent in Europe in the years after World War I, partially imposed by the democratic victors,[how?] the United States, Great Britain and France, on the defeated countries and their successors, notably Germany's Weimar Republic and the First Austrian Republic. Nineteenth-century urbanisation, the Industrial Revolution and modernism had already made the parliamentarist demands of the Radicals and the emerging movement of social democrats increasingly impossible to ignore; these forces came to dominate many states that transitioned to parliamentarism, particularly in the French Third Republic where the Radical Party and its centre-left allies dominated the government for several decades. However, the rise of Fascism in the 1930s put an end to parliamentary democracy in Italy and Germany, among others.

After the Second World War, the defeated fascist Axis powers were occupied by the victorious Allies. In those countries occupied by the Allied democracies (the United States, United Kingdom, and France) parliamentary constitutions were implemented, resulting in the parliamentary constitutions of Italy and West Germany (now all of Germany) and the 1947 Constitution of Japan. The experiences of the war in the occupied nations where the legitimate democratic governments were allowed to return strengthened the public commitment to parliamentary principles; in Denmark, a new constitution was written in 1953, while a long and acrimonious debate in Norway resulted in no changes being made to that country's strongly entrenched democratic constitution.

A parliamentary system may be either bicameral, with two chambers of parliament (or houses) or unicameral, with just one parliamentary chamber. A bicameral parliament usually consists of a directly elected lower house with the power to determine the executive government, and an upper house which may be appointed or elected through a different mechanism from the lower house.

Implementations of the parliamentary system can also differ as to how the prime minister and government are appointed and whether the government needs the explicit approval of the parliament, rather than just the absence of its disapproval. While most parliamentary systems such as India require the prime minister and other ministers to be a member of the legislature, in other countries like Canada and the United Kingdom this only exists as a convention, some other countries including Norway, Sweden and the Benelux countries require a sitting member of the legislature to resign such positions upon being appointed to the executive.

A few parliamentary democratic nations such as India, Pakistan and Bangladesh have enacted laws that prohibit floor crossing or switching parties after the election. Under these laws, elected representatives will lose their seat in the parliament if they go against their party in votes.[26][27][28]

In the UK parliament, a member is free to cross over to a different party. In Canada and Australia, there are no restraints on legislators switching sides.[29] In New Zealand, waka-jumping legislation provides that MPs who switch parties or are expelled from their party may be expelled from Parliament at the request of their former party's leader.

A few parliamentary democracies such as the United Kingdom and New Zealand have weak or non-existent checks on the legislative power of their Parliaments,[30][31] where any newly approved Act shall take precedence over all prior Acts. All laws are equally unentrenched, wherein judicial review may not outright annul nor amend them, as frequently occurs in other parliamentary systems like Germany. Whilst the head of state for both nations (Monarch, and or Governor General) has the de jure power to withhold assent to any bill passed by their Parliament, this check has not been exercised in Britain since the 1708 Scottish Militia Bill.

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