Updated: Thursday January 14, 2010/AlKhamis Muharram 29, 1431/Bruhaspathivara Pausa 24, 1931, at

07:00:41 PM

Course Contents:

Constitutional law

Law is rules and regulations made by legislature to do something.

What is constitution: Those principles that form or set the political set up that is called constitution. It deals
with structure of government, its selection, and right of the people, settlement of disputes.

Some kinds of laws: Specific, local, public, private, personal, labour, and civil laws.

Constitution of USA is learned to understand the needs and requirements of presidential system of
government while the constitution of UK is learned to understand the needs and requirements of parliament
system.

Law forms constitution and constitution forms law. Supreme power is lawgiving authority. Every order is law
given by the supreme authority. Order of the sovereign with sanctions is law. Law is a command or order of
sovereign with sanctions. Punishment is given upon disobedience. Basic purpose of the law is to organize the
society and to maintain the order in the society.

Law has two types, i.e., Constitutional law and ordinary or statutory law.

Constitutional law is that which deals with legislature, executive, judiciary, federation, and fundamental rights
(in nutshell deals with government structure), passed by two third 2/3 majority, and complied in a book, and
also called supreme law.

All other laws are passed with simple majority. If eighty members out of 100 members parliament are present
and quorum is achieved, even then 2/3 majority is required to pass or amend the constitution, i.e., 66 members,
but simple majority is required if an ordinary law is to be made, i.e., 41 members majority.

Silence of the people is also the acceptability of the government. How the institutions are formed. They are
formed under the law, which state the rules and regulations of the institutions. Only executives are
government. Law, which is not acceptable by the legislature, is not law. Provinces are completely independent
in the confederation system of state.

Division of power is found in Centre or Unitary, while separation is power found in Institutions. Litigation is
proceeded in civil cases while trials are proceeded in criminal cases. The three organs of the government run
entire functions of the State. Dark ages are between sixth to fifteenth century. Declaration of Independence was
announced in 1776. Thirteen States had ratified it.

Salient Features of American Constitution:

1.Single Document. Not scattered.

2.Brief. 7 Articles, 10 or 12 pages, 4,000 words, hours to read.
3.Written Constitution.
4. Limited Government. Concept of division of power to each of organ of government. All organs check to
each other.
5.Popular Sovereignty: President, members of House of Representatives and Senate, Judges of Lower Courts,
Attorney General, Public Prosecutor, Chief of Police etc. are elected. No collective responsibility of the
members of executives.
Adversarial Form of Judiciary: In this form of judiciary degree for judge is not required and people elect them.
Personal knowledge of judge has nothing value. Absolute justice is not necessary.

Inquisitorial Form of Judiciary: In this system law degree for judges is necessary. Suo Moto.

Separation of Power: Theory that every state has three government functions, i.e., to make law, to enforce law,
and to explain law. This theory was presented by Montesque of France in United Kingdom, and adopted in
USA. Every modern government has three organs, i.e., legislature, which is responsible to make laws,
executive, responsible for the enforcement of law, and judiciary with the responsibility of explanation or
interpretation of law. These all organs of the government should not be gathered in a single hand. Only one
should not exercise all the authorities. All organs should be separated and not concentrated in one. American
had an experience of tyranny and knows that power makes corrupt and absolute power makes corrupt
absolutely. This theory is adopted and incorporated in USA constitution. System of USA is being run
successfully. Responsibility of law making gone to congress while president being the executive and not
cabinet exercises the implementation of law authority, and Supreme Court or any other Court constituted by
congress explains the laws. In USA constitution, authority is not delegated to single organ so there is no
interference in one another. All the organs have their own duties and they do not go toward opposite
directions. All others control all organs. Objective of all organs is to achieve peace. There are two system of
check and balance, i.e., Institutional Method and Public Sovereignty.

If one organ exceeds from his authority, public will decide at the time of election so that separation of power
may establish. President is elected directly by people. He is not answerable to congress. He cannot act if
congress do not allow him by law. Every act done by public authority must have authorization by law. People
are allowed to do everything except which is prohibited while government can do only which is allowed by
law. Executive performs execution of law. President cannot do anything until congress allows him. He has
power of veto to affect congress but congress has power to redecide regarding the law, which has been veto by
president. President cannot veto if two third majority passes the law second time. Parliament cannot make law,
which is against constitution, if so, Supreme Court can repeal them by judicial review. If judge commits
corruption, senate may trial him. If Court explains the law differently, congress can make another law with
new explanation. If a organs is corrupt, they have to go to public after each two years, so there is powerful
president, powerful congress, and powerful judiciary. Everyone and everything is within control and checked
by others. Everyone can be impeached. One man cannot hold two positions at a time.

USA constitution is rigid and inflexible. It is changeable but this task is not so easy as in UK. There are two
types of laws. Laws, which are passed by 2/3rd majority, are supreme laws and passed by simple majority, are
ordinary laws. Bill that is passed once in congress is sent to president for verification. He may veto if it is
ordinary law and not executable in his opinion. Bill is returned back to congress and if passed again by 2/3rd
majority, then president has no choice to refuse to sign it. But it will remain ordinary law despite it is passed by
2/3rd majority. Constitutional amendments are not liable to veto by president. He must sign them. Almost 30
amendments have taken place since 1789, i.e., 210 years.

To make amendment in constitutional law, also requires ratification from majority of states. States assembly is
liable to ratify the bill/amendment rather than governor.

If a state is to be parted or the change of name is required, then 2/3rd majority of the concerned is required.
There is strong provincial autonomy in USA. Only heavy mandate may repeal/change to heavy mandate.

The Supreme Court (but not the constitutional amendments/laws) can review all the ordinary laws. Supreme
Court interprets the constitutional law. Any law contrary to constitution may be void. Law is not that law that
is published or printed in paper, but which is recognized by the courts.

Federation is responsible to regulate commerce, but it has been interpreted differently in different time. Law is
remain unchanged while its application has being changed.
Judicial Review: When the US Constitution was made, two laws were recognized, i.e., Federal Law and State
Law. 2/3rd majority made as Supreme Law of the State Constitution. There are two kinds of amendments, i.e.,
ordinary and constitutional amendments. While third amendment it is recognized in state law.

In 1789 a law was passed under the name of the Judiciary Act, 1789. It was said in US Constitution that all the
judiciary powers are vested to Supreme Court or the other courts that will be made. There are three levels of
Court, e.g., District Courts, Circuit Courts, and Supreme Court.

Judicial Review is really a product of the reasoning of the Chief Justice John Marshall. He first announced it in
clear terms in the celebrated case.[1] President Adams appointed Marbury as a justice of peace in the District of
Columbia on the last day of his office, but the commission could not be delivered to him. The next President
Jefferson and his Secretary of State, Madison, refused to deliver the commission to Marbury. He consequently,
petitioned to the Supreme Court for a writ of mandamus, under the Judiciary Act, 1789. The Court presided by
John Marshall, held the Marbury was entitled to commission. But it has no authority to grant a writ of
mandamus, compelling delivery, because the provision of the Judiciary Act, 1789, which empowered the
Supreme Court to issue writ of mandamus, was in violation of the constitution provisions of Article III. So the
Act of Congress held violation of constitution. All the laws contrary to constitution will be abrogated. In USA,
through the week proceedings are held, and on Monday decisions are made. Constitution has dominating role.
State law will be repealed if it is contrary to federal law. Judiciary is supreme over the both organs. When
Supreme Court legislates the laws or amends the law then it is called judicial review.

In USA public is liberated while government is limitized. US Supreme Court can review of laws and Acts in the
light of constitution. US constitution in its Article II says that all the legislature powers are vested to congress,
executive to president, and judiciary to Supreme Court.

Founding fathers made the constitution and divided the powers. No one can be arbitrary among the organs of
government. US constitution is based on distrust. US president is most powerful of the world and sometime he
is helpless before congress.

Qualifications of the President:

1.He must be born in USA.

2.14 years resident of USA.
3.35 years of age.

Conventions:

1.All president were Catholic.

2.No woman has been president.
3.No black or Negro has been president.
4.Only two elections. Now it is law.

No membership of congress is necessary to become president of USA. Elections are held for four years only. No
election is held upon death of president. Nominations are made in August, elections are held to select the
representatives in November, elections for President are held in December, while oath is taken on January 20.

Elections of the US President: Elections of the US President is the most expensive thing. Almost 10 billion
expenses are spent on election. While the every leap year, in July and August, parties hold their conventions
and elect their party members. In November, representatives are elected who cast their votes for the election of
US President. In December votes are casted to elect President. US President takes oath on 20th of the next
month, i.e., January 20 of the next year. This practice is repeated after every four years. Members of Parliament,
e.g., members of lower house, house of representative, and member of upper house, senators, are not eligible to
take part in election as president and vice president. Members of Electoral College are dissolved after they cast
their vote. How many representatives are elected for Electoral College? Numbers of members of house of
representative plus senators from that particular state are elected from each state. Suppose, State of Virginia
has its 30 members in house of representative, and two as senator in senate, it means, representative from
Virginia will be 32. Parties on their tickets nominate candidates for president. System of Electoral College was
adopted due to corruption factor in older practices where members were free for floor crossing, so that direct
election system was evolved and adopted without making an amendment in the US constitution, which is very
difficult. Also Americans do not want to make any change in constitution to continue the method of Founder
Fathers. System of Electoral College is convention and not law. Death of president does not affect the whole
system and vice president fills in space.

Powers and Functions of the US President: He has to perform six (6) functions as follows as per constitution:

1.Executive powers.
2.Legislature powers.
3.Judicial powers.
4.As head of US Forces.
5.Foreign affairs powers.
6.Appointment powers.

First of all we will discuss his executive powers.

1. Executive Powers: Political system of US is based on the theory of separation of power in all the three
organs of the government, i.e., law making is vested to congress, while interpretation goes to judiciary, and
enforcement of the law is the duty of executive. There are three aspects of the US executives, e.g., President
and Vice President, Cabinet, and bureaucracy. President performs the functions of law enforcement and not
the law making, responsible for the institute of bureaucracy, and head of the state. These are his dominant
and decisive powers.

He is responsible to run all the governmental matters, which belong to federal government. These powers
are called administrative powers. He is also responsible to enforce laws made by legislature. President is
not a single man, his all cabinet and office of president form an institution, which is named president. He
sends advises to congress and affects it. Judiciary also seeks toward president for judicial matters. Congress
cannot make all laws, some of her powers are delegated to president, that are called delegated legislation.
President enforces all laws made by congress and judicial decisions as well. Executive functions are of two
types, i.e., professional and political. Both are dependent on president. Person who is called minister in
parliamentary system is named as secretary in USA. They are nonmembers of congress. Also they have no
qualification. This is common saying that ordinary man in street can be designated as secretary. He works
upto the pleasure of president. He can be removed at any time. Chief of law ministry is named attorney
general. President is head of all secretaries. Appointments made by president needs advice of senators,
being senatorial curtsey. Senate does not disapprove advises of president generally, but can reject. If
president do not regard the advice of senators, they get together and create problems. All the powers,
which are given to federal government, are the powers of the president. President makes all types of
appointments and nominations, ratified by congress.

2. Legislative powers: President affects the process of law making by sending advises to congress. At the
beginning of every year, he delivers the union of state address to senate, but 90% citizens listen the address.
This address includes the principles and priorities to adopt in sessions of congress for law making.

He may initiate the law making process through the members of congress from his party. This is highly
influencing method. He also can veto laws for reconsideration. But congress again processes the law and
passes it with 2/3rd majority and this needs no assents of president. He can suspend the enforcement of law
due to nonavailability of funds. Maximum party members in senate that satisfy him in his working
smoothly being no opposition is faced.

3. Judicial powers: He nominates the judges of superior courts. Age of retirement is not fixed. They can be
voluntarily retired with the pension benefit. Senate ratifies the appointments. Normally all appointment are
ratified if are made with the advice of concerned senators. Executives enforce decisions of judiciary.
 Judiciary supports to executive. There are 98 district courts, while 36 circuit or courts of appeal, and one
Supreme Court in USA. Promotion of judges is the power of president.

4.Foreign policy: President can make treaties outside the country, but they require ratification of senate. USA
could not get membership of League of Nations.

5. Appointments of ambassadors are made by president but require also ratification of senate. If president
sends any special mission, does not required ratification of senate.

6. Declaration of war is subject to ratification of senate. There are no emergency powers in USA. Only
discretionary powers of president are revoked.

USA Cabinet: It seems in USA being one of the organs of the state besides its actual status. Its nature,
responsibility, terms, and composition is entirely different than of UK Cabinet. There is no word used of
cabinet in USA Constitution. It does not exist in USA. Only president is totally responsible to run the matters of
government. No one is responsible other than president.

There are some differences in USA and UK Cabinet as follows: Both are the integral part of their political
system.

United States of America Cabinet United Kingdom Cabinet

1.Membership of parliament or congress is 1. Membership of parliament is most

no necessary even prohibited. important even compulsory.

2. Senate ratifies nominations of ministers 2. Ministers are selected and not elected by
or secretaries made by president by 2/3rd Prime Minister.
majority of the present members.

3. No Nominations without advice and 3.Parliamentary approval is not required.

consent of senate.

4.American president is talent hunting and 4.Talent is not important. Anybody cannot
can take anybody in cabinet any ordinary be taken into cabinet.
person from street.

5.Cabinet is not answerable to congress. 5.Cabinet is responsible to answer each and

every question to parliament.

6.Not answerable to people. 6. Answerable to people also at the time of

next election.

7.No collective responsibility. 7.Strict collective responsibility. Mistake of

one ministers is mistake of all ministers.

8.May differ from the opinion of president. 8.There cannot be dissenting opinion of the
ministers.

9.Cabinet meetings are not necessary. 9.Cabinet meetings are so necessary.

10. No advises and no consultation with 10.Consultation is very important.

ministers.

Vice President has no role in the US government. He is just showpiece. Neither he has office, nor he performs
any responsibilities. He has only one function that function is no function. There is lack of function. He waits
for the death or resignation or impeachment of the president so that he may be offered the office of the
president. There is no concept of interim election for president if he dies, impeaches, or resigns.

He has two minor responsibilities, i.e., to preside the senate meetings and to complete the term. He cannot take
part in the discussion of senate. Neither he has right of vote in election in senate, nor members of the senate like
him. Senate is selfgoverned institution. If senate needs, may elect one of them as chairman of senate. If
president offers then he may come in meetings. He is not provided residence. He only draws salary. He is just
ceremonial head as the King or Queen in British political system is. He is elected for four years. He should be
natural born of USA, must have 35 years of age. He must be thirteen years resident of the USA. He can be
removed with impeachment.

Legislature or Congress: USA congress has two houses as others. Lower House is composed of public
representatives and called House of Representatives. Members of Lower House are elected on the base of
population. Population of 30,000 elects one member. Election of Lower House is held after each two years.
Members of Lower House come together and go together.

Upper House is called senate. Its members are elected on the base of equality. Every state either small or large
sends two members in senate, being equal share. Term of senate is six years. 1/3rd. Members get retirement
after two years. Only members of first senate did not complete the six years full term. 2/3rd. Completed only
two years and four years term. Since then all members complete six years term.

Powers of Lower House: House of Representative makes laws, constitution, and elects speaker and deputy
speaker. US speaker is different than of British speaker. Majority party elects US speaker. He performs three
functions, i.e., political, parliamentary, and judicial. He is the head of party and favors his party fully. This is
his political function. His parliamentary function is to allocate time for debates to the members of house. His
judicial function is to maintain discipline, interpretations of laws, how the house to run, business of the house
etc. He protects the party in debates and ruling. He acts as party agent and represents as head. He has not
independence as head. He determines time distributions among the members, law, bills, references,
commissions, committees, appointments, and committees chairmen. He maintains order and decorum of the
house with the help of Sargent of arm.

Comparison of Speaker of House of Representatives of USA with Speaker of House of Commons of United
Kingdom:

United States of America Speaker United Kingdom Speaker

1.There is competition and majority partys 1.Both parties choose him.

head is chosen.

2. Party representation and protection of 2.No party representation. Equal protection

party. of all members.

3.Remains party member. 3.No remains member of party.

4.Faces competition on second election. 4.Faces no competition on second election.

5.Discussion with consents. 5.Discussion of member without consents.

6.Remains partial. 6.Remains impartial.

7.No more respect as UK speaker. 7. More respect and powers he enjoys in

contrast of USA speaker.
Senate: Membership of senate is independent of population. It is based on equal share of representation. This is
representation of states and not of the people. Each state sends two of its members irrespective of its size and
population. Total numbers of senators are hundred from fifty states. Duty of senators is to protect the interests
of the concerned states. Term of senate is six years. 1/3rd. Members get retirement after two years. Only
members of first senate did not complete the six years full term. 2/3rd. Completed only two years and four
years term. Since then all members complete six years term. Senator is elected for six years. He should be
natural born of USA, must have 35 years of age. He must be thirteen years resident of the USA. He can be
removed with impeachment.

In earlier time election of senate was conducted indirectly as United Kingdom and Pakistan. States assemblies
were Electoral College for the election of senator. Later in 1913, direct election method was adopted.

Senate shares six big powers of the president as follows:

1.Ratification of treaties made by the president.

2.Ratification of the cabinet selected by the president.
3.Ratification of the ambassadors, councilors, attachs, etc. appointed by the president.
4.Ratification of the ministers and judges of the High Court.
5.Ratification of the bureaucrats.
6.Ratification of the declaration of war.

Judiciary in USA: There are three types of courts in USA, i.e., district courts which are 298 in numbers, appeal
or circuit courts are 36, and one is supreme Court including nine judges. President nominates all the judges of
Supreme Court and senate ratifies them. Supreme Court has three functions to perform i.e., judicial review,
appeals, and advisory. Judges are appointed directly. There is no age limit of the judges of Supreme Court but
they can voluntarily retire with the benefit of pension. Senate has the right to impeach judges, but judges
cannot impeach to anybody. The senate impeaches president only. Interpretation of Supreme Court can be
changed by congress by making another law. Supreme Court makes laws, in contrast to constitution,
ineffective.

Judicial review has also two kinds, judicial review of ordinary law and actions of the government whether they
are legal or otherwise.

Judicial review of law has also two kinds as follows:

1.Judicial review of state ordinary law whether in accordance with constitution.

2.Congress law reviews whether in accordance with constitution as constitution is superior.

State courts are of four types: County courts, High Court, Supreme Court, and crown courts.

Separation of power: Judiciary, legislature, and executive are separate organs of the government. There are
three organs having three functions and work independently. Montesque in France presented this theory first,
but it was adopted first in USA. Constitution is creator or source of institutions. They all facilitate each other
rather than creation of hurdles. Constitution limits their powers so that they may work in their own sphere. If
one institution is allowed to cross its limits then arbitrary powers will be lost and dictatorship will arise. So in
order to prevent dictatorship they coordinate with each other. If one institute violates, other one comes into
operation to impeach it.

System of check and balances:

Check and balance Executive v Senate:

1. President may sign foreign treaties but these treaties remain inactive until they achieve ratification of
senate.
2. Appointment of cabinet is responsibility of president but senate ratifies it. USA could not attain
membership of League of Nations due to refusal of senate.

3.President with the ratification of senate nominates ambassadors.

4.Appointment of judges also requires ratification of senate.

5.Bureaucracy appointed by president needs to be ratified by senate.

6.President may declare war but it requires approval of senate in term of ratification.

Check and balance President v Senate:

1. Senate is lawmaking house and president may veto the laws made by senate. However if both houses
again pass this law with 2/3rd majority then presidents right of veto is diminished.

2.Once a year, president delivers the States of Union address, which is heard by 90% of USA population. He
also conducts weekly press conferences and address, in which he conveys his policies and preference. This
is an important check over senate.

3.President can issue ordinances if senate compels him, for three months.

4.This is the function of president as to when meeting of senate is to be called, on what day, time meeting will
be held.

Check and balance Supreme Court v Senate:

1.Nomination of judges is duty of president, but senate ratifies it.

2.There is no age of retirement. They can voluntarily retire or senate can impeach them.

3.Senate ratifies nominations but senate cannot remove any judge except by impeachment.

4. Supreme Court controls both president and legislature. Supreme Court may declare any law contrary to
constitution null & void.

5.If state law is in contrast to federal constitution may be repealed.

6.Judicial review is exclusively right of Supreme Court. Interpretation can affect president or senates law.

7.President can fix the number of judges. Once a time it was threaten by president to increase the numbers of
judges from 9 to 15, but it was not happened.

Division of power between Centre and states is made by list of powers. There is only one list made in USA and
all the residuary powers go to states. Federal list is called express powers and the rest of all is called residuary
powers.

In India there are three lists. One for Centre, one for provinces, and one is concurrent. Residuary powers go to
Centre, which make it powerful. In Pakistan there are two lists, i.e., federal and provincial, and residuary
powers go to provinces. Executive powers are laid down in constitution and list is not maintained. Any law,
which is made by Centre, its executive powers go to Centre and any law, which is made by states, its executive
powers go to states. Federal disputes are settled in federal Supreme Court and states affairs are dealt with
Supreme Court of states. There is double system in USA. Citizens have to follow both governments. States
assemblies are bicameral whereas provincial assemblies in Pakistan are unilateral. In USA both governments
collect their revenues. Both enforce their own laws. One officer performs only one duty and there is no concept
of dual duties. Supremacy of constitution was derived from the case of Marbury v Madison case, presided
by Chief Justice Marshall.

Due process of law means that every law will be made properly, containing no discrimination, no biasness, no
injustice etc. Many laws were got repealed after passing 14th amendment in which words of due process of law
were used. It also means everything must be done with due process of law. It should also be according to
constitution, fair, and reasonable.

Process of impeachment:

Allegations are imposed in House of Representatives.

Committee considers the allegations.

Discussion takes place.

Voting in House of Representatives by 2/3rd majority passed.

Discussion in voting in senate by 2/3rd majority.

Removal of President and taking over by Vice President.

Kinds of fundamental rights in USA Constitution: In ten amendments following rights are guaranteed.

1.Political Rights.

(a)Freedom of speech.

(b)Freedom of movement.

(c)Freedom of assembly.

2.Religious Rights.

(a)Profess of religion.

(b)Change of religion.

(c)Religious education.

(d)Propagation of the religion.

(e)Establishment of religious institutions.

(f)Collection of educational funds.

(g)Construction of religious places.

(h)Use of religious languages.

3.Economic Rights.

(a)Right to own property.

(b)Right to dispose of property.

 (c)Property cannot be taken without adequate remedy.

4.Personal Rights.

(a)Equal protection of law.

(b)No double jeopardy.

(c)Protection against arrest without lawful authority.

(d)No torture for confession.

(e)To get education in all public institutions.

(f)Right against slavery.

(g)No child labour.

(h)No illegal detention.

(i)Life and dignity.

(j)Marriages at own wishes.

[1]
Marbury vs. Madison in 1803

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