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PAPER - V: MODERN GOVERNMENTS(UK, USA, SWITZERLAND, JAPAN & CHINA)

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PAPER-V: MODERN GOVERNMENTS

(UK, USA, SWITZERLAND, JAPAN & CHINA)

UNIT-I: United Kingdom - Salient Features of the Constitution - Conventions - National Executive-Monarchy - Real Executive - Prime Minister – Cabinet – Legislature - House Of Commons -House Of Lords - Composition, Powers And Functions - Judiciary – Party System

UNIT-II: USA - Salient Features of the Constitution - Amendment Procedure - Separation of Powers –Executive – President – Election - Powers and Functions – Congress – Senate - Composition, Tenure – Functions - House of Representatives - Composition, Tenure, Functions – Judiciary - Supreme Court - Party System

UNIT-III: Switzerland - Salient Features of the Constitution - Federal Structure - Methods of Amendments – Executive – Plural – Composition – Functions - Federal Assembly - National Assembly – national Assembly – National Council – Composition, Tenure – Function – Direct Democratic – Devices – Federal Judiciary – Party System

UNIT – IV: Japan - Salient Features of the Constitution – Rights and Duties – Executive – Emperor – Prime Minister – Cabinet – Diet – House of Representatives – House of Councilors – Composition - Election – Function and Judiciary.

UNIT-V: People’s Republic of China - Salient Features of the Constitution - Rights and Duties – Executive President – Election - Tenure – Functions – The Chinese Parliament – National People’s Congress - Composition - Election – Functions – Standing Committee – Judicial System – People’s Procurate – Chinese Communist Party

Books Recommended:

1. A.C.Kapur, Select Constitutions, S.Chand & Co, New Delhi, 1989.2. V.D.Mahajan, Select Modern Governments, S.Chand & Co, New Delhi, 1995.3. N.Jayapalan, Modern Governments, Atlantic Publications & Distributors, 1999.4. S.L.Kaushik, Rama Patnaik, Modern Government and Political Systems, Mittal

Publications, 1995.5. Alan R.Ball., Modern Politics and Government, Palgrave Macmillan, 6th Revised

Edition, 2000.

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CONTENTSUNIT-I Page No.

1.1 The United Kingdom 1

1.2 Salient Features of the Constitution : Conventions 3

1.3 Nominal Executive: Monarchy 5

1.4 Real Executive: Prime Minister 8

1.4.1 Cabinet 10

1.4.2 Legislature 12

1.4.2.1 House of Commons 13

1.4.2.2 House of Lords: Composition, Powers and Functions 14

1.4.2.3 The Speaker of the House of Commons 16

1.5 Judiciary 17

1.6 Party System 19

UNIT-II

2.1 The United States of America: An Overview 22

2.2 Salient Features of the Constitution 23

2.2.1 Federalism in USA 25

2.2.2 Federal Features 26

2.3 Executive: Separation of Powers 27

2.4 The President and the Congress 29

2.4.1 The President: Election 29

2.4.2 Functions and Powers 31

2.5 The Senate: Composition, Tenure, Functions 32

2.6 House of Representatives: Composition, Tenure, Functions 34

2.7 Judiciary: Supreme Court 36

2.8 Party System: President, Election, Powers and Functions 38

UNIT-III

3.1 Switzerland: An overview 41


3.3 Federalism in Switzerland 42

3.4 Federal Council 43

3.5 Federal Assembly- Composition, Functions 46

3.5.1 National Council: Composition, Tenure – Function 46

3.6 Federal Judiciary 49

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3.7 Direct Democracy 50

3.8 Party System in Switzerland 53

UNIT-IV: JAPAN

4.1 Japan: An overview 56


4.3 Rights and Duties of the People 64

4.4 The Emperor of Japan 69

4.4.1 The Executive: Prime Minister 74

4.4.2 The Cabinet 77

4.4.3 Legislature of Japan: Diet 80

4.5 House of Representatives 81

4.6 House of Councilors, Composition 83

4.7 Election of Councilors 85

4.8 Judiciary 88

UNIT-V

5.1 People’s Republic of China 99


5.3 Fundamental Rights of Chinese Citizen 102

5.4 Fundamental Duties of Chinese Citizen 106

5.5 Executive President: Election, Tenure and Functions 107

5.5.1 The state Council 109

5.6 The Chinese Parliament111

5.6.1 National People’s Congress: Composition, Election and Functions

5.7 Standing Committee of The National People’s Congress 114

5.8 Judicial System in China 116

5.9 People’s Procurate 123

5.10 Communist Party of China 125

UNIT - I

1.1. THE UNITED KINGDOM: AN OVERVIEW

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This Unit is devoted to the study of the Constitution of U.K. and its functioning. We

discuss the salient features of the British constitution and the institutions like the Monarchy,

Cabinet and the Prime Minister. It also deals with the Legislature i.e. the Parliament and its

two Houses the House of Lords and the House of Commons. Finally it discusses the

organization and the structure of Judiciary and the party system in Britain.

The British constitution is supposed to be one of the best in the world and Britain one

of the best governed nations. The English people are proud of their constitution. Many

nations of the world have framed their constitutions on the British model. But some thinkers

are of the view that the English constitution does not exist. Because none could have present

the constitution in a written or documentary form. But Munro rejected this by saying that

“British constitution is not one document, but hundreds of them. It is not derived from one

source, but from several. It is not a complete thing, but a process of growth. It is a child of

wisdom and chance, whose course has been sometimes guided by accident and sometimes by

high design.”

Learning Objectives

A constitution is a body of rules and practices which determine the structure and

powers of government: in the United Kingdom such rules and practices are not to be sound in

a single document. They are to be found in a number of sources, written as well as unwritten.

The aim of this unit is to explain the contents and features of the British constitution and the

working of Monarchy, Cabinet and the office of the Prime Minister. It is also to explain the

composition, powers and functions of both the houses and the office of the speaker. As the

constitution of England is unitary, it has only one system of law courts. The aim of this unit is

also to explain the two kinds of courts like civil and criminal and also to describe the party

system in Britain.

After studying this unit, you will be able to:

Trace the sources of the British Constitution and explain the salient features

Describe the working of Monarchy, Cabinet and the office of Prime Minister

Explain the powers and functions of both the Houses

Understand the differences between the two Houses and

Discuss the working of the office of the Speaker

Describe the Judicial System

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Define the party system which is working in Britain

SOURCES OF THE BRITISH CONSTITUTION

The British constitution contains many written elements. The sources of the constitution are

six in number:

Historical Document: Magna Carta or the Great Charter, the Petition of Rights and the Bill

of Rights are three notable historic documents which have constitutional significance. Magna

Carta was accepted by King John at Runny made on January 15, 1215. The constitutional

importance of Magna Carta is that it established the principle that the King can ot override

the law. Charles | was forced by events and by parliament to agree to the Petition of Rights in

1628. It prohibited arbitrary imprisonments and un-parliamentary taxation. It also prohibited

the use of martial law in peace time and lodging of soldiers in non – military buildings.

Immediately after the Bloodless Revolution of 1688, the Parliament wanted to consolidate its

position and the result was the great constitutional document of British history, the Bill of

Rights of 1689. It introduced no new principles of law. It confirmed the existing rights of

Parliament and the subjects.

Statutes: There are a number of statutes which Parliament has passed from time to time.

They deal with such matters as powers of the crown, civil rights, suffrage, local governments,

courts etc.

The Act of Settlement 1701: This Act recognized the right of the parliament to determine

succession to the throne.

The Reform Acts of 1832 and 1885: The Reform Acts enlarged the basis of franchise and

thus made the House of Commons a really popular chamber.

Judicature consolidation Act 1925: This Act guaranteed the independence of Judges.

The Local government Acts of 1888, 1894, 1929 and 1933.

Judicial Decisions: The constitution of Britain has grown by the decisions rendered by the

judges in interpreting the charters, statutes and the common law of the land. Dicey was not

far from the truth when he quoted that the English constitution is a judge made constitution.

Common Law: The common law forms another important source of the constitution

whereby the rights of the people, the privileges of the Parliament and the prerogatives of the

monarch are determined. These principles have emanated from the decisions of the judges

who have, from time to time, recognized the customs of the realm.

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Conventions: Conventions which are unwritten laws form an essential part of the

constitution. They regulate the most fundamental aspects of the governmental system. The

prerogative powers of the crown, rules concerning cabinet system and important practices

observed by both houses of Parliament have all been shaped by conventions.

Commentaries on the Constitution: The last but not the least are the commentaries on the

constitution by eminent jurists like Anson's ‘Law and Custom of the Constitutions,’ May’s

‘Parliamentary Practice’ and Dicey’s ‘Law of the Constitution’.

1.2. SALIENT FEATURES OF THE BRITISH CONSTITUTION

The British constitution is not primarily a document distilling the abundant wisdom of

an oppressed people, the inspired wisdom of revolutionaries and the common sense of

contemporary politicians anxious to limit the sphere of government. The constitution exhibits

astonishing features which are discussed below:

Unwritten, Evolved and Flexible Constitution: The British constitution is unwritten. It was

never drawn up by a constituent assembly or convention in form of document, nor a

constituent assembly or convention in form of document, not was it promulgated by a

monarch or dictator. It is the product of history and result of evolution. It has grown with the

growth of the English nation. Thus the oldest constitution in the world is neither written nor

enacted. As a matter of fact it is still evolving. The British Constitution provides a typical

example of a flexible constitution. The Constitution can be changed according to the needs of

the time in the same way as an ordinary bill is passed.

Unitary System of Government: The British governmental system is unitary because

all power is concentrated in a single government at London. Of course, there are

administrative sub-divisions like counties, boroughs and other local government areas, but

they have been created by the central government which has delegated to them whatever

powers they possess. The Central government could withdraw those powers from them at any

time.

Constitutional Monarchy: Constitutional Monarchy is another feature of the British

constitution. The King is the head of the state and government and all governmental functions

are performed in his name. But his powers are only nominal. In reality all powers belong to

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the Cabinet and Parliament. The King cannot be held responsible for any act done in his

name. The king can do no wrong. Thus England is a constitutional monarchy.

Supremacy of Parliament: Parliamentary supremacy is another feature of the British

constitution. The powers of the British Parliament are absolute. Parliamentary supremacy

implies two principles. First, parliament has unlimited legal power to enact and amend any

statute and to override any decision of - the courts. Secondly, none can question the authority

of the parliament.

Parliamentary Form of Government: The British constitution has established a

parliamentary form of government. In this type of government there are two executives - the

nominal and the real. The nominal executive is the queen and the real executive is the cabinet

under the Prime Minister. The real executive viz. the cabinet is drawn from responsible to

and removable by the legislature.

No Constitutional Guarantee of Rights and Liberties: In England, there is nothing called

constitutional guarantees of rights as in the United States or India. In England, the

constitution is unwritten and Parliament is sovereign. But it does not mean that the

Englishman enjoys no rights and liberties at all. The rights and liberties of the people are

guaranteed by principles of common law.

Independence of the Judiciary: Independence of the Judiciary is one of the most important

features of the constitution of England. In fact the judiciary is the guardian of the liberties of

the people. So far as the judiciary is concerned there is separation of powers in England.

Rule of Law: Rule of law is an important feature of the British constitution. It means that the

law is supreme: no one is above law; law does not discriminate between individuals; all are

equal before law; arbitrary arrests, detention and punishment are illegal. Rule of law

guarantees a number of basic freedoms to the citizens.

Gap between Theory and Practice: In theory the king is all powerful. He appoints the

Prime Minister and other Ministers and administers the country. He is an absolute monarch

and therefore does no wrong. But in practice his powers are zero; he is a mere figurehead.

Hereditary Element: Another notable feature of the British constitution is its hereditary

element. England is a classical example of a perfectly democratic government, yet many of

its political institutions rest on the principle of hereditary. Monarchy is hereditary and the

House of Lords is mostly composed of hereditary peers.

Large Number of Conventions: Another notable feature of the British constitution is that it

has a large number of conventions. As the constitution is unwritten, the conventions play a

dominant role in each and every branch of government.

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Judge - made Constitution: The English constitution is essentially a judge made

constitution. Most of the rights enjoyed by the British citizens have been guaranteed to them

by the decisions given from time to time by the judges of England.

Principles of Checks and Balances: The English constitution is based on the principle of

checks and balances. The British Parliament can pass a law, but it cannot be enforced unless

and until it is assented to by the Queen. Judges are appointed by the executive, but once

appointed they cannot be dismissed by it. They hold office during good behaviour. They can

criticize the arbitrary exercise of power by the executive.

1.3. NOMINAL EXECUTIVE OF BRITAIN: MONARCHY

One of the oldest governmental institutions in the United Kingdom is monarchy. The

monarch may either be a king or queen. There was a time when the king wielded absolute

powers. But the position was changed by the Glorious Revolution of 1688. It set up a limited

monarchy and the kind became the ornamental head of the state.

Crown and King

It is worthwhile to draw a distinction between the King and the Crown. The Crown simply

means King-in-Parliament or Queen-in-Parliament as the case may be. The Queen-in-

Parliament denotes the Queen and the two Houses of Parliament. The Crown is only an

institution and not a living person. The Crown symbolizes the office and the Queen denotes

the individual who occupies that office. A king or queen may die; but Crown will not. This is

reflected in the saying: “The king is dead; long live the king”.

The Position of the Monarch

The king or the queen is the ceremonial head of the state. The British Crown is hereditary

institution which Parliament regulates by rules of succession. The notable condition is that no

Roman Catholic may become the monarch of the United Kingdom and that the monarch

should not marry a Roman Catholic. The title and succession to the throne are determined by

the Act of settlement of 1701. Succession to the throne is vested in the House of Windsor. It

is the rule of primogeniture which governs succession. According to this, the first born will

have the right of succession. In the event of the first issue being a female, the male child will

have precedence over the female and the female in the absence of a male heir.

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In theory the British King is an absolute monarch. He is above law and can do no wrong. He

is head of the state; all executive functions of the state are performed in his name. But this is

the theory of the constitution. In reality the king has no powers. All his powers have been

transferred to the institution known as the Crown. He must, and always does, act on the

advice of his ministers. All his acts are countersigned by a minister who is responsible to the

House of Commons. He only reigns, but does not rule. He can do no wrong, because he does

nothing.

Privileges of the Monarch

The monarch is above law and hence is not answerable to any court of law. He cannot be

arrested and he cannot be judged. It is the sovereign who is thelaw giver and the dispenser of

justice. Formerly, monarchs met all their expenses out of their feudal income. In course of

time when this was found insufficient Parliament sanctioned new taxes to support the king.

Even this became insufficient. The queen and other members of the royal family are paid

through the ‘civil list’. The sums thus paid are charged directly on the Consolidate Fund and

hence are not subject to annual review by Parliament.

Powers of the Monarch

All the governmental powers rest with him. But in reality they are exercised by the Crown

which is an institution. However, the nominal powers of the king are extensive and embrace

all fields and functions of the government. They are as follows:

Executive Powers

The kind is the head of the state. All administrative powers are vested in him. He appoints the

Prime Minister, ministers and all the civil and military officers and they remain in office so

long as it pleases His Majesty. He is the supreme commander of the armed forces. He

declares war, makes peace, concludes treaties with foreign powers, sends and receives

ambassadors and other diplomatic agents.

Legislative Powers

The legislative powers of the king are extensive. He summons, prorogues and dissolves

Parliament. When a new session of Parliament commences he reads to the members of both

the chambers the Speech from the Throne. He assents to bills passed by Parliament. He can

refuse assent to any bill. The king creates the peers.

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Judicial Powers

The King is fountainhead of justice. The judges are appointed by him and all criminal

proceedings are started in the name of the King. He has the power of granting pardon to

criminals or reducing or postponing their sentence. The king is fountainhead of honour. lt

means that all honours, titles etc. flow from the king.

The King as Head of the Church

The King is the head of the established Church of England and in that capacity appoints

archbishops, bishops and other church dignitaries.

Need for Monarchy

Though most of the powers of the sovereign have been transferred to others, the need for a

sovereign is still there. All states require someone at the apex of affairs. As a head of the state

the monarch performs a number of functions similar to the President of the United States and

India. The monarchy being hereditary, provides continuity. Since there are no elections to fill

the throne, political bargaining and wasteful expenditure are avoided. Monarchy is not very

expensive.

As the sovereign is free from political connections, the monarch is impartial. This is the

reason why the Queen is regarded as the symbolic head of State and of the Commonwealth.

Another reason for the retention of monarchy is the conservative temperament of the people.

The English are deep rooted in conservatism; they cannot even think of a constitution without

their beloved sovereign. Finally, since the sovereign can do no wrong and cannot act against

her people, she can very well be retained. Monarchy is a harmless but useful institution in

England,

1.4.REAL EXECUTIVE OF BRITAIN: THE PRIME MINISTER

The Prime Minister is the real head of the government, while the monarch is the titular head

of the state. If the cabinet is the steering wheel, the steersman is the Prime Minister. Lord

Moreley described him as “the Key — stone of the Cabinet arch”. He is the head of the

cabinet or the ministry, the leader of the House of Commons and the channel of

communication between the king and the Cabinet. So, he is undoubtedly the real authority in

Government.

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Development of the Office

The cabinet and Prime Ministership emerged during the 18" century. In 1688, the

advisory body of the King, Privy Council was replaced by a smaller informal body known as

cabinet council. lt was presided over by the King. In 1718, when George | stopped attending

and presiding over meetings of the cabinet, it was presided over by a Chief Minister of the

Cabinet council. The first King’s Chief Minister was Robert Walpole whose designation was

re designated as the Prime Minister. The modern Prime Minister is essentially a product of

the Reform Act of 1832. The first Prime Minister, in the modern sense of the term was Sir

Robert Peel (1834).

Immediately after the general election the sovereign summons the leader of the

majority party in the House of Commons to form government and appoints him as Prime

Minister. A convention was set up in 1923 and it required that the Prime Minister should

belong to the House of Commons. But this convention was broken in 1963 when Queen

Elizabeth II appointed Alec Douglas Home, a member of the House of Lords, as the Prime

Minister.

Powers of the Prime Minister

Patronage: As the Keystone of the Cabinet Arch, the Prime Minister enjoys enormous

powers. In the exercise of his powers, he is more or less a dictator; He uses his discretion in

the selection of his colleagues. It is one of the prerogatives of the highest executive authority

in a state to make high appointments. The patronage exercised by the Prime Minister is wide

indeed. He confers titles of honour, creates peers and appoints bishops, ambassadors, judges,

heads of departments etc.

Policy Makers: As the real executive, he dictates the lines of national policy. As the leader

of the Commons, he keeps his hands on the pulse of the House. He controls the activities of

the members of his party. His party commanding a majority in the House decides the course

of action in the parliament and he controls his party. Parliament is sovereign in Britain. If

parliament can legally do anything and actually do many things, it is for the Prime Minister to

decide what it should do, when it should do and how it should do.

To make and unmake a government: The most important power of the Prime Minister is to

make and unmake a government. All ministers are appointed by the Queen on the advice of

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the Prime Minister. Likewise, they may dismiss on the advice of the Prime Minister. Though

the Queen is vested with the power to summon, prorogue and dissolve the parliament it is the

Prime Minister who decides when parliament should be summoned, prorogued or dissolved.

Guide the Cabinet and advisor to the Crown: The Prime Minister is the guide to the

cabinet as such he chooses other ministers and distributes portfolios among them. He presides

over cabinet meetings. He exercises a general supervision over the activities of other

ministers. He settles disputes between departments and controls cabinet secretariat. The

Prime Minister is the confidential advisor of the Crown and the principal channel of

communication between the Cabinet and the Monarch.

Influence as leader of the nation: The Prime Minister is the principle spokesman of the

nation on international problems. The outside world looks to the Prime Minister for the

authoritative announcements on the nation’s policy on world events. In international

conferences it is he who speaks for the nation.

Importance of the Prime Minister

The Prime Minister is the outstanding figure in the British constitution. His duties and powers

are limited only by his personality and by the support he enjoys from his party. He Is the

choice of the electorate. He can appeal to the electorate at any time for confirmation of his

position. Members of the government are more or less, subservient to him. He has a major

share in determining the policy of the government. His leadership in the House of Commons

and his frequent contacts with the sovereign give him prominence. A critical study of the

office of the Prime Minister shows that he enjoys a lot of power, prestige and is a source of

high patronage.

1.4.1. CABINET

While the King is the ornamental head of the state, the real executive head is the Cabinet

headed by Prime Minister. The Cabinet occupies and plays a vital role in the working of the

government. It is “the steering — wheel of the ship of the state. Before we examine the

Cabinet we should examine the evolution of the present day cabinet.

The Privy Council

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The Cabinet had its beginning in the Privy Council. The medieval Kings periodically

consulted the Great Council, Magnum Council on important matters of state. When the

volume of the functions of state increased, the King found the Great Council an unwieldy

body for consultations. So, he appointed a smaller council consists of leading officials which

was originally known as the Curia Regis and it developed into the Privy Council. The

primary task of the Privy Council was to tender advice to the King when sought for.

Today the Privy Council consists of 300 members. It includes all Cabinet Ministers, past and

present, the Speakers of the House of Commons, the Lord Chief Justice and other prominent

people. The whole Council meets only when the sovereign dies or when he announces his

decision to marry. The normal business of the council is transacted by four to six members

who meet in the Queen’s presence.

Formation of the Cabinet

The monarch invites the leader of the majority party in the House of Commons to form

government and appoint him Prime Minister. It is the duty of the Prime Minister to submit a

list of Ministers to the sovereign for approval. The task of selecting a team of really capable

men including a variety of talented people who are quite willing to work under his leadership.

This indeed a laborious and responsible task. The cabinet consists of about 20 members and it

forms a very small and inner circle of the Privy Council. All members of the Cabinet are

Privy Councilors but not all Privy Councilors are members of the Cabinet. The Ministry

forms the outer — ring of the cabinet. The strength of the cabinet varies from time to time.

All cabinet members are ministers but not all ministers are Cabinet members.

Characteristics of the Cabinet System

Exclusion of the King: The sovereign is excluded from the meetings of the Cabinet. The

absence of the King necessitated a recognized leader to preside over Cabinet meetings and

such a leader became the Prime Minister.

Close correspondence between the Cabinet and the Commons:

The practice of inviting the leader of the majority party in the House of Commons to

form the Cabinet and the rule that every minister must be a member of one or the other House

of Parliament secure the realization of this principle.

Political Homogeneity:

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The principle that members of the cabinet must come from the same party or at least

share the same political views is essential to maintain unity in counsel and action. Even when

members of the Cabinet are drawn from opposing political parties, they should silently agree

to uphold the principle of political homogeneity and collective responsibility.

Collective responsibility to the House of Commons:

The cabinet is collectively responsible to the House of Commons for every policy and

action and it continues in office as long as it commands the confidence of the House. If it

loses the confidence of the House, it can compel the Cabinet to resign. The Cabinet members

stand or fall together. In the last two generations, the Cabinet has grown in power and

prestige. Though parliament is still sovereign, it has yielded to the dictatorship of the cabinet

because of the following reasons.

Ascendancy of the Prime Minister:

In the Cabinet itself the dominant position is held by the Prime Minister. He is the

actual ruler. He is the leader of the legislature as well as the government. Although the

members of the Cabinet stand on an equal footing with the Prime Minister and speak with an

equal voice on the principle of ‘one man one vote’, he is supreme among equals and occupies

a position of exceptional and peculiar authority. If the cabinet is the steering-wheel of the

ship of the State, the steersman is the Prime Minister. He is central to its formation, central to

its life and central to its death.

Functions of the Cabinet

The first and foremost function of the Cabinet is to frame national policy after

discussing various important national and international issues. The Cabinet plays an

important role in legislation. The speech from the Throne and legislative programme are

prepared by the Cabinet. Bills are introduced by the Cabinet. The Cabinet prepares the budget

and controls national finance. The Cabinet co-ordinates framing policies of different

departments.

Dictatorship of the Cabinet

The rigid party discipline has considerably enhanced the power of the cabinet. The

principle of collective responsibility supplies unity and team-spirit. It gives them sufficient

strength to weather many a storm. The practice of delegated legislation has made the Cabinet

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very powerful. The Cabinet possesses the supreme power of dissolving the House of

Commons. It can, at any time, ask for the dissolution of Parliament Since no member of

Parliament wants to lose his seat, members w not force the cabinet to ask for the dissolution.

This has considerably increased the power of the Cabinet.

The British constitution is the oldest constitution in the world. But, it is hard to find it

in a single consolidated document. The fundamental principles of the constitution are rather

found in a mass of customs, conventions, precedents, usages, charters, statues and judicial

decisions. After analyzing this we are able to understand and point out the salient features of

the constitution

The British constitution provides a parliamentary of government. In the parliamentary

form of government, there are two executives — nominal and real. The nominal executive is

the Queen or Monarch. All the executive powers are with the queen. But in practice all these

powers are exercised by the cabinet headed by the Prime Minister. The cabinet is the most

powerful institution in the political system of England. The Prime Minister is the pivot of the

whole system of government and the real executive.

1.4.2. THE LEGISLATURE OF UK

The Legislature in Great Britain is called as Parliament. The British parliament is

considered to be the “Mother of modern parliaments’. It consists of two houses, the Upper

House and the Lower House. The House of Lords is the Upper House and the House of

Commons is the Lower House. The House of Commons is presiding over by the Speaker. In

the beginning the House of Lords enjoyed more powers and prestige than the House of

Commons. But, now the House of Lords has lost much of its powers. Yet, it still remains a

part of the constitution.

1.4.2.1. THE HOUSE OF COMMONS

Parliament in Britain consists of the King, the House of Commons and the House of

Lords. The House of Commons is the Lower House in the British Parliament. It is the most

popular house because it is the principal pillar on which democratic government in England

rests. It is the centre of the British political system.

Composition

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There are 635 members in the House of Commons. They are elected b universal adult

suffrage. There is no distinction on any basis. Only those citizen who are subject to legal

incapacity, such as, insanity or imprisonment, have no right to vote. All British citizens of

either sex, provided they are 21 years age are eligible for election. Members of House of

Lords, clergy of the Church of England, Scotland and Roman Catholic priests, aliens,

bankrupts, person holding certain public officers are not eligible to stand for election to the

House of Commons. The House of Commons is elected for a period of five yea However, it

may be dissolved earlier by the sovereign on the advice of th Prime Minister.

Powers and Functions

The powers and functions of House of Commons are numerous:

To make laws: Its most important function is law making. It is essentially a law making

body, Money bills originate only in the commons. It is true that money bills have to be sent to

the House of Lords but the approval of the later is not necessary. A money bill passed by the

Commons but rejected by the Lords would automatically become law after the lapse of one

month. In regard to ordinary bills, if rejected by the House of Lords, they would become law

after the lapse of one year. The House of Commons is the custodian of the public purse and

as such controls finance.

To control the executive: The House of Commons controls the executive. The Ministry

emerges from the House of Commons. The Prime Minister is a member of the Commons.

The ministry remains in power as long as it enjoys the confidence of the House. It has to sign

if it gets defeated in the House. It means that the Government of the country has to be carried

out according to the wishes of the Commons who are considered to be representatives of the

nation.

To control finance: The House of Commons has financial powers as well. It is said that the

purse of the nation is in the hands of the commons. All money bills and budget must be

passed by the parliament.

To redress grievances: The House is a place where the people look forward for the redress of

grievances. This is done through the practices of asking questions and through general

debates.

Selective functions: The House of Commons is a training ground for politicians. There “they

have the opportunity of showing their mettle and displaying those qualities of the mind and

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character, which distinguish the sheep form the shepherd and the rulers from the ruled”.

Those who demonstrate marked ability in debates generally have a chance of being chosen

for ministerial posts. This gives encouragement to ambitious members to work hard and to

reach the top rundle of political ladder.

1.4.2.2. THE HOUSE OF LORDS

The parliament in U.K. is an ancient political institution. By the middle of the 13"

century, the magnum concilium of the Normans developed into a Parliament. This parliament

represented the three classes of the nation, viz., barons, clergy, and commons. Later this

parliament was divided into two houses in the 14" century. In those days it meant the

meetings of lay and ecclesiastical peers. Towards the close of the 14" century the House of

the Lords began a gradual surrender of its authority to the House of Commons. By 1395 the

House of Commons became the sole originator of taxation. Under the Stuarts the House of

Lords became important. It supported the King in most of the issues. After the execution of

Charles |, the House of Lords was abolished as it was held useless and dangerous. With the

restoration of monarchy in 1660, the House of Lords again appeared on the scene. Thereafter,

both Houses started having an equal part in law making. From the later part of the 17"

century, the House of Commons began to asset its importance. The gulf between the two

Houses widened during the 19" century, By and by the House of Lord came to possess a

subsidiary position in the constitution. Today, this house is far inferior to the House of

Commons.

Composition

The House of Lords which consists of 1100 members composed ma categories. First, there

are hereditary peers and peeresses of England above the age of 21. Second, there are princes

of the Royal blood w usually take no part in its proceedings. Third, there are Scottish peers.

Fourth, there are life peers and peeresses created under the provisions of the Li Peerage Act

of 1958. Fifth there are 26 spiritual peers. Sixth, there are 2 Lords of Appeal including 9 law

Lords. The crown on the recommendation of the Prime Minister, has the prerogative of

making new peers with the objective of honouring men of distinction in literature, science,

arts, politics, defense services, diplomacy etc. The presiding officer of the House of Lord is

the Lord Chancellor and he is an important member of the Cabinet.


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The powers and functions of the House of Lords are limited. It is, therefore, considered to be

the weakest second chamber in the world. Its powers and functions are as follows:

Executive powers: The House of Lords still enjoys a share in executive powers. Some of the

Ministers are members of the House of Lords. The number of cabinet ministers in the Lords

varies. The Lords have the right to ask questions, to seek information from the government

on any aspect of administration and to debate its policies. But the ministers are not

individually or collectively responsible to the House of Lords.

Legislative powers: The House of Lords has a good deal of share in the legislative work of

parliament; the main legislative work of the Lords is in the revision of bills. The object of

revising a bill is to make it more workable. These revisions help to set right many practical

defects found in a bill. According to the Act of 1949, a bill may now become law despite the

disapproval of the Lords if it has been passed by the Common in two successive sessions and

if one year has elapsed.

Financial Powers: All money bills and bills concerning the major policies of the government

originate in the House of Commons. The House of Lords has no powers at all. A bill to be

considered a money bill should be so certified by the speaker of the House of Commons.

According to the Parliament Act of 1911, the House of Lords could withhold its assent to a

money bill only for a period of one month. After the lapse of this period, even without the

approval of the Lords, the bill could become law after having been submitted to the

sovereign.

Judicial Powers: For criminal and civil jurisdiction, the House of Lords is still the supreme

and final court in the United Kingdom. This function is performed not by the whole house,

but by nine Law Lords and by its members who have held high judicial offices. There are 24

such Lords.

The tests of a good second chamber i.e. House of Lords are:

(1) It should be composed in such a way that it should not be a replica of the Lower House.

(2) It should bring to the work of legislation and deliberation men superior to those of the

other chamber.

(3) It should help to revise the bills passed by the other House in an inconsiderate, rash, hasty

and undigested way.

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(4) It should transact business of a non-controversial nature for which the House of Commons

has no time to do.

(5) It should bring into national service as legislators men of ability and experience who are

unable or unwilling to take part in the rough-and-tumble of party politics due to various

reasons. The house of Lords fulfills to a great extent the standards set above for a satisfactory

second chamber.

1.4.2.3. THE SPEAKER OF THE HOUSE OF COMMONS

The Speaker is the presiding officer of the House of Commons. There is a very

healthy convention that “once a speaker always a speaker’. It implies that the speakership is a

very exalted office and its holder may continue to occupy it till he likes. His non-political

character is his best qualification which entitles him to seek re-elections and return

unopposed.

Election of the Speaker

The Speaker of the House of Commons is elected by the House from amongst its own

members at the opening of each parliament. In practice the Prime Minister selects in

consultation with the opposition a person who has not been a conspicuous partisan. The

election of the Speaker is subject is formal approval of the King. The Speaker thus elected,

continues in office for the whole life of Parliament. But once elected, he is invariably re-

elected again and again so long he is willing to serve.

Duties and Functions

The main function of the Speaker is to preside over the sittings of the House, except

when it sits as a committee of the whole. All speeches and remarks are addressed to him and

not to the House. It is the function of the Speaker to see that the proceedings are conducted

with decorum and in an orderly manner. The Speaker enforces and interprets the rules. He

decides points of order. The speaker puts the bills and motions to vote and announces the

result. The Speaker decides whether a bill is a money bill or not. The speaker plays a major

part when the House has to reach a decision. In case of a tie, he has a casting vote. He issues

warrants for the commitment of offenders against its privileges. He selects the Chairman of

Standing Committees and appoints members to conferences and commissions.

Non- partisan position of the Speaker

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The Speaker of the House of Commons enjoys immense power and prestige. It is

mostly due to his non-partisan position. In all his activities he scrupulously refrains from any

display of personal sympathies or partisan leanings. He never takes the floor to engage in

debate. He never votes except to break a tie. Outside the House also the speaker conducts

himself in a perfectly non-partisan spirit. As soon as he is elected, he renounces politics,

cutup all party affiliations and becomes perfectly neutral. He does not discuss or express his

opinion on party matters. He never attends a political club. He enjoys immense prestige and

commands confidence of all political parties.

The Speaker is the most conspicuous figure in the House of Commons. Although he is

called the Speaker, he rarely speaks. He is called the Speaker because he also has the right to

speak on behalf of the House of Commons before the King. Originally the Chief function of

the Speaker was to take the petitions and resolutions of the House to the King.

1.5. THE JUDICIARY IN BRITAIN

An important feature of the British judicial system is the distinction between the civil and

criminal courts applying the laws. These are two separate kinds of courts to hear civil and

criminal cases. A civil case arises out of a dispute between two or more persons or

institutions. A criminal case is one in which a person is alleged to have committed an offence

such as murder or theft. In such cases the proceedings is conducted in the name of the crown,

and if the offence is proved the offender is punished.

Civil Courts

County Courts: The lowest of the civil courts in England and Wales are the county courts.

There are about 500 such courts. They have jurisdiction over all cases in which the amount

does not exceed £ 200. The judges of the county courts are appointed by the Lord Chancellor

from barristers of 7 years standing.

The High Court: Above the country courts there is one Supreme Court of judicature. It has

two sections, the court of Appeal, in which sit the Master of Rolls and eight Lord justices of

Appeal, and the High Court of Justice. The High Court of Justice falls into three divisions. (a)

King’s Bench Division (b) Chancery Division and (c) Probate, Divorce and Admiralty

Division. Appeals from the country courts are heard of the High Court of justice. If the sum

involved in a dispute is large, a case may directly go to the High Court.

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The Court of Appeal: The Court of Appeal is a sort of upper chamber of the High Court of

Justice. It hears appeals from both the county courts and the High Court. It has an original

jurisdiction.

The House of Lords: The House of Lords is the highest court in Britain, both in civil and

criminal cases. When the house hears appeals lay peers do not sit in the House. By

convention, the judicial work is done by the Lord Chancellor. the nine of Appeal in ordinary,

Ex-Lord chancellors and such other peers who have held high judicial office.

Criminal Courts

The Courts of the Justices of the Peace: The lowest criminal court in a country is known as

the court of justice of peace and in a borough the Court of Stipendiary Magistrate. Justices of

peace are appointed by the Lord Chancellor on behalf of the crown and the Stipendiary

Magistrate by the secretary of state for Home Affairs. These courts are entitled to try minor

cases which are punishable by a fine not exceeding twenty shillings or by ~ imprisonment for

not more than two weeks.

Courts of Petty Sessions: Where two or more Justices sits as a court, itis known as petty

sessions. The petty sessional courts have greater power to impose fines or award jail

sentence. But in most cases they cannot award more than 6 months imprisonment.

Court of Quarter Sessions: Higher above the Justices of Peace Courts is the court of

Quarter Sessions. It is so named because the sessions are held four times a year. It consists of

all the Justices of the Peace of that particular county. It hears appeals from the lower courts

and also try cases of a serious nature. But it has no jurisdiction for trying cases which carry

the punishment of death or life imprisonment. These courts usually deal with cases of assault,

stealing and burglary.

Court of Assize: A court of Assizes is a sort of a branch of the High Court of Justice. It is a

circuit court which is held periodically in each county. Each court is presided over by one

judge of the King’s Bench Division of the High Court. These courts hear appeals from the

lower courts and try all cases of serious crimes, e.g. armed robbery, arson, murder, etc.

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Courts of Criminal Appeal: It consists of the Lord Chief Justice and all the judges of the

King’s Bench Division of the High Court. It hears appeals from the Quarter sessions and

Assizes and there is not provision for trial by jury.

House of Lords: The House of Lords is the highest court of appeal in criminal as well as

civil cases. The administration of Justice in England is based on the principle of Rule of Law.

In Britain there is no system of judicial review. Parliament is sovereign. It can make or

amend any law, ordinary of constitutional. But, the courts have no right to declare the laws

passed by the legislative constitutional or unconstitutional. Though the judges are appointed

by the executive, they cannot be removed by them. The judges can be removed only by a

joint address by both houses.

1.6. PARTY SYSTEM IN BRITAIN

The organization and working of political parties is indispensable for running a

modern political system. The political parties alone make the system of representative

government workable. Being a model of representative government Britain can be no

exception.

British party system has an evolved character. A humble beginning was made during

the time of Queen Elizabeth | when the Puritans as a group with definite views on religion

and political matters formed a political party. But clear party- lines were drawn only during

the Stuart period when the conflict between the King and the Parliament became acute. The

supports of the King were called Cavaliers and the supporters of parliamentary government

came to be known as roundheads. These two parties took sides during the civil war. The

modern parties in the strict sense of the term were born during the reign of Charles II. When

the principles of parliamentary — sovereignty had been established after the reign of William

III, the two parties assumed new names, Tory and Whig. After 1851, the Whigs became

liberals, while Tories changed their names as conservatives. A part from those two parties,

the early years of the 20" century saw the emergence of a new party called the Labour Party.

In due course, the Liberal Party declined and its place was taken by the Labour Party, making

Britain once again the example of a bi-party system. The Labour party had the first chance to

be in power in 1922, when Ramsay Donald was appointed as the Prime Minister. In this way,

the British Party System came into being.

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The Conservative Party

The conservative party has never been a body of blind superstitious men. It is a party which

stubbornly values the traditions and precedent and desires change at a very slow pace as far

as possible. Under Disraeli, they were reformists. They championed the Reform Bill of 1867,

which the Liberals were forced to oppose. Though the conservative party has been associated

with the native aristocracy it has support from all classes of society. Its principles are broad

and its tactics are highly pragmatic. The party believes that the nation is sustained by the

existence of different social classes playing their part on the basis of merit. And there can be

no class struggle or class enmity as said by the communists. They still stand for free

enterprise. They think that profit motive and indirect taxation and decentralization conform to

the principle of human freedom. State activity in the economic sphere should be limited.

Detailed physical controls encumber rather than help the economy. Margaret Thatcher was a

conservative Prime Minister a very long period from 1979 to 1990.

The Liberal Party

The liberal party gets support from the middle class. It supports the policy of social

reform and amelioration. It urges economy in national expenditure and abolition of tariffs; it

urges state regulation rather than state ownership or state management. Though it is opposed

to socialism, it advocates reforms in capitalism. The strength of the party has gone down as is

evident from the results of the elections. In 1906, it had 379 members in the House of

Commons; but the figure came down to 6 seats in 1970.

The Labour Party

The Labour Party was founded as a challenge to both the old parties in 1900. It is the

political expression of working class movement. This movement manifested itself in Trade

Unions and in Co-operative Societies and in the great chartist agitation of mid 19" century.

Labour Party is a more socially representative organization. It draws members from all walks

of life. Its members are of many categories - University lecturers, Journalists, shopkeepers,

labourers, clerks etc. are members of this party. Thus, the party is dominated by professionals

and workers.

The labour party stands for Democratic Socialism. It has a socialism of its own based

on the ideal of Fabianism. But the socialism of the Labour Party is basically at variance with

that of Marx. The main aim has become the establishment of a Labour government rather

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than bringing about socialism. It wants to nationalize private firms and economic enterprises.

It stands for the establishment of a welfare state so that private economic activity is placed

under the regulation of social control. It also stands for collective co-operation among the

nations of the world. It firmly believes that the peace in world should be achieved by way of

strengthening the United Nations. The Labour party opposes a large scale expenditure on

nuclear weapons. In short, the Labour party’s aims can be summed under three heads, social

equality, economic security, and industrial democracy.

Model Questions:

1. What is the distinction between the King and the Crown in England?

2. Summarize the powers of the British king.

3. What are the characteristics of cabinet system?

4. Describe the powers of the British Prime Minister.

5. Distinguish between the House of Lords & House of Common.

6. Describe the powers and functions of the House of Lords

7. Discuss the composition and functions of the House of Commons.

8. Describe the powers and functions of the Speaker of the House of Commons.

9. Describe the organization and working of the British judicial system.

10. Party system in Britain — Discuss.

11. Define Labour Party.

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UNIT II

2.1. THE UNITED STATES OF AMERICA: An Overview

The study of the constitution of the U.S.A. is important not because of the size of the

country or due to its position of super power in the world. It’s because of valuable gifts offer

to the people of other nations. It is the country which provides first documentary or written

constitution to the world on the basis of Democracy. It is the Democracy, which provides

liberty and equality to the people working successfully for more than 200 years in the

country. This Block is devoted to the study of American constitution and its working. The

features of the American Constitution, Federalism, Theory and practice of separation of

powers, checks and balances it establishes. The composition and working of the Congress

and is the most powerful second chamber the Senate in the world.

The constitution of the United States of America was moulded by the demands of

time. It was the desire and need for freedom of the thirteen colonies which led to the

evolution of the federation. Those colonies situated at the Atlantic side and majority of the

people are English settlers fought for freedom from the British imperialism and declared

independence on July 4, 1776. A constitution for the independent colonies was drawn up by

55 delegates representing twelve of the thirteen colonies. The constitution created a

confederation. Since this confederation did not serve the purpose for which it was

established, the states wanted to modify it. Consequently in 1787 a constitutional convention

held at Philadelphia drafted a new constitution for the thirteen colonies. After ratification, it

came into force on March 4, 1789.

Learning Objectives

The Constitution of the United States of America is the oldest written constitution in

the world. It is a classical example for federalism. Philadelphia convention of 1787 drafted a

constitution which came into effect in 1789. The aim of the unit is to explain the features of

the Constitution.

After studying this unit you should be able to:

Explain the important features of the constitution define the federal features and,

describe the meaning of separation of powers and checks and balances in U.S.A.

Explain the electoral procedure for the election of American president

Describe and evaluate the powers and functions of the American President

26

Discuss the composition, powers and functions of both the Houses of the Congress.

Explain the Party System in USA

2.2. SALIENT FEATURES OF THE CONSTITUTION

Written Constitution

The constitution of the United States of America is a written one. Originally there

were 13 colonies in America. In 1776 the famous Declaration of independence was issued.

Consequently each colony became a completely sovereign state and formed a Confederation.

This confederation failed to serve the purpose. So, a constitutional convention was held at

Philadelphia in 1787. The convention drafted a new constitution which was approved and

ratified. in 1789 the new government under the new constitution began to function. It is a

very brief constitution. It contains a Preambie and seven Articles and the amendments made

it so far. Though it is brief and short, it has working successfully over a period of 200 years.

Rigid Constitution

The American constitution is rigid. It cannot be amended by the ordinary law making

procedure. The constitution provides for a separate procedure for the amendment of the

constitution.

Supremacy of the Constitution

In America the constitution is supreme. This is unlike England where parliament, not

the constitution, is sovereign.

Federal Constitution

Another feature of the constitution of America is federal in character. Firstly, there are

two sets of government one federal government and 50 state governments. Secondly, the

constitution makes a clear division of powers between the federal and state governments.

There are three kinds of powers in U.S.A. They are Enumerated Powers, Implied Powers and

Concurrent Powers. The residuary powers belong to the States. Thirdly, it has a written and

rigid constitution. Fourthly, the courts in U.S.A act independently.

Republican Constitution

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The American form of government is republican. Unlike England, there is no

hereditary monarch. The Head of the federal government is the elected president and the

states have elected governors. The republican form of government has been guaranteed in the

constitution.

Separation of Powers

The constitution is based on the principles of separation of powers. The three

functions of government, law-making, administration of laws and justice are entrusted to

three distinct branches of government. For example, the President has a fixed team and is not

responsible to the Congress. The legislature is independent of the executive for the Congress

cannot be prorogued or dissolved by the president. The Federal Judiciary is also independent

of the other two branches of the government since no judge of the Supreme Court can be

removed from the office except by a very difficult procedure of impeachment.

Checks and Balances

As pointed out above, the framers of the American constitution were convinced

believers in the doctrine of separation of powers; but they also realized that complete

separation of the three organs of government was neither possible nor desirable. Absolute

independence of the three branches would create deadlocks and bring governmental activities

to a standstill. Therefore the framers of the constitution introduced checks and balances.

Through checks and balances each branch of government be prevented from dominating the

other organs of the government.

Presidential Form of Government

The constitution also provides for a Presidential form of government. The President is

both the head of the state as well as the head of the government. He is elected directly by the

people for a fixed term of four years. He is not responsible to the Congress. The President is

solely responsible for the executive functions of the government. Similarly, Congress is

independent in its own field. The President cannot dissolve any of the Houses of Congress.

Then there is an independent federal judiciary.

Judicial Review

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This is another important feature of the American constitution. In America, the

judicial review power is vested with the Supreme Court. By this power, the court can declare

any law passed by the legislature or the executive is against the constitution then the court

can declare it null and void or unconstitutional.

Bill of Rights

The constitution contains a bill of rights like freedom of speech, press, assembly and

petition, the right to bear arms, indictment by jury etc. It also includes the provision that

“Congress shall make no law respecting an establishment of religion, or prohibiting the free

exercise thereof’.

Absence of National Suffrage

One peculiar feature of the American constitution is that its framers did not lay down

the qualification of voters. It is, therefore, the states that confer the right to vote. However,

the 15" and 19" Amendments forbid the states to deny the right to vote because of race,

colour, and previous conditions of servitudes or sex. Subject to the above conditions each

state is free to determine the qualification of voters.

2.2.1. FEDERALISM IN U.S.A.

The American political system is federal in nature. In the words of Hamilton a

federation is “an association of states that forms a new one. In U.S.A. the federation came

into being with tne merger of 13 states which had already passed through a period of

sovereign statehood. The passionate attachment of these colonies to their individual

independence made them afraid of granting to central authority an executive power that

might deprive them of their rights. It is owning to this fact that the Articles of the

Confederation of 1781, under which the United States was governed till the promulgation of

the new constitution in 1789, established a loose confederation with a very weak central

government. The federal system came into being when the Philadelphia Convention met in

1787 and drew up a constitution. Now, there are fifty states.

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2.2.2. FEDERAL FEATURES

The American federal system meets the requirements of a true federal model.

1. Co-Existence of Two Governments

In U.S.A there are two governments. America is divided into 50 states. So, there is one

Federal government and 80 State governments.

2. Constitutional Division of Powers

The American constitution enumerates the distribution of powers between the federal

government and the governments of the units. The division of powers in a federal system is

made in one of three ways. First, the powers of the federal government are enumerated and

the rest are given to the units. Second, the powers of the units are specified and the rest are

given to the Central government. Third, the powers the centre as well as the units are

enumerated so that these remain, as far as possible, no chance of conflict.

3. A Written and Rigid Constitution

The constitution of U.S.A was drafted by a constitutional convention held at Philadelphia in

1787 and came into force in 1789. It is considered to be the briefest written constitution in the

world. It is a rigid constitution. Because it can not be amended by the ordinary law-making

procedure. It requires a special procedure for making an amendment.

4. Independent Judiciary

The last requirement of a federal system is independent judiciary. It is fulfilled by the federal

judiciary. The Supreme Court is the final interpreter of the constitution. As such, it is this

court which decides any dispute between the centre and the states. Art IIl Sec. 2 of the

constitution provides that “to all controversies to which the United States shall be a party, to

controversies between two or more states, between a state and a citizen of another state,

between citizens of different states, between citizens of the same state claiming lands under

grants of different states, and between a state, or the citizens thereof foreign states, citizens or

subjects, the supreme court has original jurisdiction”.

In addition the federal system of the U.S. highlights some more ideal features as well. First,

there is dual citizenship. All persons born or naturalized in the United States are citizens of

the United States and of the state when they reside. Second, in the American federation all

states are equal in the eyes of law. Each state has the right to send two members to the senate.

Third, the constitution guarantees each state a republican form of government.

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Undoubtedly, the U.S. furnishes a brilliant instance of a federation; but is evaluation in the

present form reveals that much has now changed from what was originally designed. Growth

of centralism is an inevitable feature in all modern federation and America is no exception to

it.

2.3. EXECUTIVE: SEPARATION OF POWERS IN USA

The Founding Fathers of U.S.A. adhered to idea of separation of powers for the

reason that as, Lord Acton says, “power corrupts and absolute power corrupts absolutely”

whether sovereignty rests in an absolute monarch or the people, it is potentially dangerous

and the only possible way out is to realize the political truth that power checks power.

Madison had warned that any concentration and accumulation of powers in the hands of one,

or few, or many, whether hereditary elected, appointed or nominated, amounts justly to the

very name of a tyrannical government. While engaged in the work of making a new

fundamental law of the land, the Founding Fathers were thinking not only of the tyranny of a

monarch but the possible tyranny of the people as well or even of a majority under a system

of majority rule. They, thus, visualized that implementation of the doctrine of separation of

powers coupled with the system of checks and balances would be the best safeguard against

any possible abuse of power by any organ of government.

The constitution of the United States is, therefore, based on the doctrine of separation

of powers. The three functions of government — law making, administration at laws and

justice are entrusted to three different branches of government. Congress makes laws, the

President performs the executive functions, the federal judiciary interprets laws and imparts

justice. The three branches are independent of one another.

The President is the head of the executive. He is elected directly by the people for a

fixed term of four years. He cannot be removed from office by the legislature or any other

body except by impeachment. He is not a member of the legislature and does not take part in

its proceedings. In the executive sphere of government his authority is supreme.

The President has a cabinet to assist and advise him. Its members are appointed and

dismissed by him. They are his secretaries and not his equals. They are also not members of

the legislature, nor do they participate in its proceedings. Neither the President nor the

members of his Cabinet are responsible to the legislature for their actions. Similarly

31

legislative powers are vested in Congress. It is independent in its field. The executive does

not control, lead or guide it. The President has no power to dissolve any of its chambers.

Though the President authorized by the Constitution to recommend legislation and the

Budget and Accounting Act of 1921 gives him power over the preparation of the national

budget, Congress is supreme in the legislative field.

Then there is the federal judiciary which is independent of both the executive and the

legislature. There is judicial review in America and the Supreme Court has the power to

declare null and void the acts of the executive and legislature when deemed in conflict with

the constitution.

Checks and Balances in USA

Although the framers of the American constitution were firm believers in the doctrine

of separation of powers, they also realized that complete separation of the three organs of

government was neither possible nor desirable. Absolute . independence of the three branches

would create deadlocks and bring governmental activities to a standstill. They, therefore,

devised a system of checks and balances. So that, the three organs of government could

exercised some control upon one another. Congress is the law-making body, but the President

can Veto a bill passed by it. However, if Congress again passes the bill by a two-thirds vote

in each of its Houses, the bill becomes law without Presidential assent. The President is

armed with another kind of Veto, known as “Pocket Veto”. If the President does not give his

assent to a bill presented to him within a period of ten days, and in the meantime Congress

adjourns, the bill is automatically killed. Besides, the President is authorized by the

constitution to call special sessions of one or both Houses of Congress, to send or deliver

messages to it on the state of the Union and to recommend legislation and also to adjourn

both Houses if they cannot agree on a date of adjournment. As pointed out above, he also has

the power over the preparation of the national budget.

Similarly, Congress has been given power to check the President. The President can

make no appointments without the approval of the senate. The treaties negotiated and

concluded him with foreign countries do not become effective unless ratified by the Senate.

The President can declare way only on the authority and approval of Congress. Congress can

also impeach and remove the President. The Supreme Court exercises check on both the

President and Congress. It can declare unconstitutional a bill passed by Congress and

assented to by the President. The Court itself is checked by the President and Congress. The

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President appoints the judges and Congress fixes their number and their salaries. Besides,

Congress can also impeach the judges of the Supreme Court and remove them. Thus there is

no complete separation of powers in America. The system of checks and balances prevents

the three branches of government from acting arbitrarily in their respective spheres.

The American constitution is a written and rigid constitution. It is a best example for

Federation because it fulfills all requirement of it. The U.S.A. government is working on the

principles of separation of powers. But, the principle has its own drawbacks. It leads to

unnecessary deadlocks which prevent unity, encourage friction and divided responsibility and

frustrated leadership. So, the Founding Fathers who were aware of these drawbacks adopted

the system of Montesquieu with the addition of arrangement of checks and balances under the

force of circumstances. Lipson holds: History, therefore, joined hands with philosophy in

writing a separation of powers into the federal constitution.

2.4. THE PRESIDENT AND THE CONGRESS

The American government is an outstanding example for Presidential form of

government. It is organized in conformity with the separation of powers and checks and

balances. The framers of the American constitution created three major branches of

government, viz., the legislative, the executive and the judiciary. All these three branches

derive their powers from the constitution and the constitution has guaranteed, as far as

possible, the autonomy of each in the exercise of its powers. Primary legislative power is

vested in a Congress. Executive power is vested in the President. The President is the real

head of the state. The judicial power in America is vested in Supreme Court and it is mostly

independent of the other organs.

2.4.1. THE PRESIDENT: ELECTION

The most powerful office in the American constitutional system is occupied by the

‘Chief Executive’ called the President. The President has become a dynamic and creative

force in the American government. His public pronouncements and acts are watched with

great concern and interest throughout the world. So, it is necessary to study the election,

succession and powers and functions of the American President.

Qualifications:

1. A natural born American citizen,

2. At least attained 35 years of age

3. Fourteen years resident of the United States

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Nomination and Election

The constitution is silent on the method of nomination of the candidates. The frames

of the constitution apparently expected that the Electoral College would perform the tasks of

both nomination and election. But the rise of political parties upset the expectation, and now

the candidates are chosen by national nomination conventions of the political parties. Each

political party holds a national convention for choosing its presidential nominee. Delegates to

the national party conventions are chosen by state party conventions and in some states by

primary elections known as Presidential primaries. The national party conventions are held in

big cities.

The President is elected by an electoral college formed for the purpose. The

constitution says that the numbers of electors chosen in each state shall be equal to the

number of members of the House of Representatives and of the Senate for that state; in other

words, equal to the state’s representation in Congress. At present, there are 538 votes in the

Electoral College (the total of 435 representatives and 100 senators plus 3 electoral votes for

the District of Columbia) of which 270 are necessary for election.

The election for the Electoral College is held on the Tuesday following the first

Monday in November. As soon as the popular vote is counted, not only are the electors

known but also the coming President, because the college itself formed on party lines. The

electors shall meet in their respective states and vote by ballot for President and Vice-

President. The candidate getting an absolute majority is declared as president. If no

candidates get an absolutely majority, the issue goes to the House of Representatives. It will

select one by ballot from among the three candidates who have secured the highest number of

votes.

Term, Succession and Removal

The President is elected for a period of four years. The original constitution was

Salient on the issue of his re-election. George Washington, the first President, sent a two-term

custom and it was followed for a century and a half. This convention was violated in 1940

and in 1944. Consequently, the 22" amendment was passed, according to which no person

can be elected President more than twice.

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If for any reason the office of the President falls vacant, the Vice — President shall

succeed. When Kennedy was assassinated, Lyndon Johnson — the Vice President became the

President. The President can nominate a Vice President with the consent of the Congress if

the Vice — Presidency falls vacant.

The President is irremovable except by an impeachment during his term of office. The House

of representation can impeach the President for high crime, treason and misdemeanors. The

senate presided over by the Chief Justice of the Supreme Court will conduct the trial. Two-

thirds vote of the Senate is required to convict the President. The penalty cannot extend more

than the removal of the President and disqualification.

2.4.2. FUNCTIONS AND POWERS

The President of the United States is the most powerful elected executive in any

democratic country of the world. His functions and powers may be discussed under five

heads.

Executive Powers

Article of the American constitution states that “the Executive power shall be vested

in a President of the United States of America” As head of the national administration he has

to see that all the laws are faithfully executed. The constitution gives him the power to

appoint ministers, ambassadors, federal judges and many other officer with the consent of the

senate. He also has the power to remove a man appointed by him provided he is not a judge

or he belongs to the category of a public servant under civil service rules.

He is the chief foreign policy maker and the accredited official spokesman of the country

international affairs but a treaty made by him requires ratification of two-thirds of the senate.

The President is the commander-in-chief of the Army and Navy. Though the power to declare

war belongs to Congress as a whole, clearly executive action may bring negotiations to such a

passes to make war almost inevitable.

Legislative Powers

The American President is not only the nation’s Chief Executive, he also plays an

important role in law making. He may send messages to the Congress summarizing the

conditions prevalent in the union and suggesting legislative policies to tackle the situation. He

recommends legislative measures to the Congress. He is authorized to summon extraordinary

sessions of one or both houses of Congress. He may refuse his assent to a bill passed by

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Congress. In certain circumstances this limited or suspensive veto may become an absolute

veto. Under the legislative functions of the President may be included the ordinance making

power.

Financial Powers

The financial power of the President covers the area of budget making. The Budget

and Account Act of 1921 had created a department called Bureau of Budget. It is empowered

to supervise the spending activities of the federal government. The Bureau is headed a

Director who is appointed by the President and acts under his direction and control.

Judicial Powers

The constitution empowers the President to appoint judges of the Supreme Court with

the approval of the senate. The President has some exclusive judicial powers, such as

granting pardons, reprieves etc. His authority in this regard does not apply in cases of

violation of the state laws.

Emergency Powers

Lastly, we refer to the powers of the President during wars and national emergencies.

As the chief of armed forces he appoints chief of armed services and can remove them at his

will, particularly during war time. The power to declare war lies with the Congress but he can

make the Congress to adapt his proposals during emergency. When war comes, the powers of

the President increase tremendously. He decides about the mobilization and stationing of the

troops. The President of USA is the most powerful head of a democratic government known

today. The American President really governs, though he does not reign.

2.5. THE SENATE

The constitution of the United States vests all legislative powers in a bicameral

legislature known as the Congress. The upper house is known as Senate andthe lower house

is known as the House of Representatives. The former represents the federation units, i.e. the

states and the latter represents the people. A study of these two bodies of the Congress will

show the Senate is not only more powerful than the lower house but also the most powerful

second chamber in the world.

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Composition

The Senate consists of 100 members, two from each of the 50 states. The Senators are

directly elected by the people on the basis of universal adult suffrage for a period of 6 years,

one — third retiring every two years.

A Senator must be at least 30 years of age. He must have been a citizen of USA for at least 9

years and a resident of the state from which he is elected. He must not be holding any office

of profit under the government of the United States.

The presiding officer of the Senate is the Vice — President of the U.S.A. who is the

ex-officio chairman. The Senate also elects from among its own members a President pro

tempore who presides over its meetings, in the absence of the Vice — President. The Vice

President has a casting vote in case of a tie.


The Senate of the United States enjoys extensive powers in the legislative, executive

and judicial spheres. The very fact that the enormous powers are vested with it has weakened

the other chamber considerably.

Legislative Powers

Both the houses enjoy coequal and co-ordinate powers in the legislative and financial

matters. The ordinary bills can originate in either house of the Congress. But in practice, most

of the government bills originate only in the senate. Money bills can originate only in the

lower house.

But the senate can alter the money bill passed by the House of Representatives and

sometimes it changes the entire bill except its title. A bill becomes a law when passed by both

houses of Congress and assented to by the President. In case there is a disagreement between

the two houses in passing a particular bill, the mater is referred to a conference committee

consisting of 3 to 9 members drawn from both houses.

Executive Powers

The Senate has the Power to ratify all high appointments made by the President and

the treaties concluded by him. Though this sharing of the appointment power with the

President, the senate is in a position to exercise control over the executive which the lower

house does not possess. By its power of ratifying treaties concluded by the President it is

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enabled to influence the formulation of foreign policy and direct its course to a great extent.

Thus, the senate enjoys enormous powers in the executive field.

Judicial Powers

The Senate is the court of impeachment of the President, Vice President and other

high ranking officials of the United States. When the Senate sits as a court of impeachment

its meeting is presided over by the chief Justice of the Supreme Court. Moreover, it may be

noted that the judges of the Supreme Court are appointed by the President only with the

approval of the Senate.

In addition to these powers, the senate has the right to initiate constitutional

amendment and to decide the Vice Presidential election when no one secures the absolute

majority in the Electoral College. It elects the Vice — President from among the two

candidates who have secured the highest votes.

The powers discussed above make the Senate a very powerful legislative body in the whole

world.

2.6. THE HOUSE OF REPRESENTATIVES

The lower chamber of the American Congress is known as House of Representatives.

The organization of the lower house is democratic where units of the American Union have

their representation on the basis of their population as a result of which big states have greater

number of representatives than the smaller ones.

Composition

The members of the House of Representatives are elected every two years on the basis

of population from single member constituencies. The number of representatives for each

state is fixed by the Congress in proportion to its population. Now the membership of the

House is permanently frozen at 435, unless changed by a law of the Congress. The House

cannot be dissolved before its term of 2 years is over.

A representative must have attained the age of 25 years and must have been a citizen

of USA for atleast seven years. He must have been a resident of the state from which he

wants to contest the election and must not be holding any office of profit under the

government of the United States.

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The representatives choose their own speaker at the inauguration of the new house on

party lines. He is nominated by the party that has majority in the House. Unlike the British

speaker, the American speaker is partisan and openly favours the party to which be belongs.

POWERS AND FUNCTIONS

Legislature Powers

The House has equal powers with the Senate in the law — making process. Money bills can

originate only in this house. But they can be accepted, amended or rejected by the Senate.

Financial Powers

Money bills can originate only in this House. With regard to appropriation bill the

constitution is silent. Logically, therefore, it may be inferred that appropriation bills may also

originate in the Senate. But now it is a custom that appropriation bills originate only in the

House of Representatives.

In addition to this, the House shares with the Senate, the power to propose

amendments to the constitution, the power to admit new states to the Union and the power to

declare war. It initiates impeachment proceedings by framing charges against the President

and Vice-President etc. When no candidate gets an absolute majority in a Presidential

election, it will elect one by ballot from among the three candidates who have secured the

highest number of votes. The house is the final judge of the elections, returns and

qualifications of its members.

The above discussion shows that the House of Representatives is the weaker popular

chamber in the world. The constitution of the U.S.A. provides for a Presidential type of

government. The real executive head of the state is the President. He combines “in his hands

many of the powers exercised by both the sovereign and the head of the government in the

British system. It is this combination of the functions of the queen and Prime Minister in his

person that makes the office of the President such a significant and powerful one’.

Parliament in America is known as the Congress. It is a bicameral body consisting of

the House of Representatives and the Senate. The Senate represents the states and the House

represents the nation. The Senate is the most powerful second chamber in the world. The

American legislature is not sovereign like the British legislature.

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2.7. JUDICIARY IN THE UNITED STATES

The study of judiciary in U.S.A is important for two reasons. Firstly, it is one of the

major branches of the government. Secondly, since U.S.A. is a federal state, independence of

judiciary is imperative. By discussing the judicial system in U.S.A. we can understand the

organization of the Supreme Court and how far it works as an independent and impartial

arbiter of disputes that often arise between national and state governments.

Federal judiciary occupies a special position in the American constitutional system.

The constitution has vested the judicial power in the hands of the Supreme Court. In a federal

state, the strong and independent judiciary is absolutely necessary. In the U.S. the Supreme

court occupies an important position in this regard. American federal judiciary has taken

upon itself the role of the guardian of the constitution and has exercised the power of judicial

review.

Structure

The federal judiciary consists of 89 District courts, 11 circuit court of Appeal and the

Supreme Court. District Courts had original jurisdiction in all cases arising under federal

laws. Above the District court the circuit court of appeal stands. They have no original

jurisdiction. They are purely appellate courts and hear appeals against the decision of District

Courts in their respective circuits on question of law. Each circuit court consists of 3 to 9

circuit judges who are appointed by the President with consent of the senate. The judges hold

office during their good behaviour. At the top of the federal judiciary there is the Supreme

Court of the United States.

Supreme Court

At present there are 9 justices in the Supreme Court, including the Chief Justice. The

Justices of the Supreme Court are appointed by the President with the advice and consent of

the Senate. They hold office during good behaviour. The Justices can be removed only by

impeachment. The constitution lays down no qualifications for federal judges whether of age,

citizenship, literacy period of residence in the United States, judicial experience. The

jurisdiction of the Supreme Court is both original and appellate. The jurisdiction of the

federal judiciary as a whole includes all cases in law and equity arising under the national

constitution, the laws of the United States, and treaties made under their authority and all

cases of admiralty and maritime jurisdiction. The second type includes cases affecting

ambassadors and other public ministers and consuls, controversies to which the United States

40

is a party, controversies between two or more states between citizens of different states,

between citizens of the same state claiming lands under grants of different states and between

a state or citizens thereof, and foreign states,citizens, or subjects.

In all cases affecting ambassadors, other public ministers and consuls, and those in

which a state shall be a party, the Supreme Court has original jurisdiction. In all other cases

mentioned above, the Supreme Court has appellate jurisdiction, both as to law and to fact,

with such exceptions and under such regulations as Congress may make. The original

jurisdiction of the court can neither be enlarged nor diminished by Congress. But its appellate

jurisdiction is completely subject to regulation by Congress. The great majority of cases that

come to the Supreme Court are in the nature of appeals against the judgement of the lower

federal courts. But only those appeals come before the Supreme Court in which some

interpretation of the constitution is involved.

Judicial Review

The Supreme Court of the United States possesses a unique power of judicial review.

It is the power of the courts to declare any law null and void, if it violates the provision of the

constitution. In performing this function of the court, “stands as the guardian of the

boundaries which separate the legitimate powers of the three branches of the national

government as a whole from those of the states and of the people”. Thus the case for judicial

review stands on three grounds. The court must apply the law to case that come before it.

Another reason for judicial review is the federal system of government. There is the necessity

to keep both the federal and state governments within their proper constitutional spheres.

Thirdly, judicial review is also necessary to keep the three branches of the national

government, legislative, executive and judicial within their proper constitutional spheres and

thus maintain the separation of governmental powers which is a basic feature of the United

States governmental system.

The Supreme Court has been criticized at various periods by major political parties

and constitutional experts. The criticism is that the judges are conservative, and that the

power of judicial review is undemocratic. But in spite of this criticism it is admitted that the

Supreme Court’s achievements as a guardian of civil rights and liberties have been

commendable.

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The Supreme Court, its judicial review power and the independence of federal

judiciary are the most important features of the American Judicial System. The Supreme

Court is the watch-dog or the safety value of the constitution. It has given sanctuary to civil

liberties, especially in matters of discriminating treatment to the Negro’s. The decision of the

Supreme Court declaring against racial segregation in educational institution is noteworthy in

this connection. In U.S.A. Democracy is working successfully more than 100 years for that

the Democracy is credit should go to the party system.

2.8. PARTY SYSTEM IN U.S.A.

Politics without parties is like the body without the head. The term ‘democracy’ has

come to stay as a rule by political parties. The two are so inextricably intertwined that one

cannot be separated from the other. The close contact between democracy and political

parties comes to the limelight only when the functions performed by the parties are analysed.

In the United States there are two major political parties the Republican party and the

Democratic party. There have been a few minor third parties also. Further there are no sharp

ideological differences between the parties.

Democratic Party

A history of the evolution of the political parties in the United States shows that the

Democratic Party is about a century and a half old and has a longer continuous existence. It

was established under the leadership of Thomas Jefferson during the administration of

President Washington. At first, its name was Anti-Federalists, and then it becomes

Republican, then Democratic Republican, till in 1828 it assumed the name that prevails till

now. In earliest days, it supported the cause of the states against central governments

tendency of usurpation and encroachment and advocated the cause of the farmers and

planters, against those who were engaged in industry and commerce. In 1800, it came into

power when Jefferson became the President and enjoyed a virtual monopoly of authority till

1840 with slight break of four years (1824 — 28). When the issue of the abolition of slavery

increasingly dominated the American politics, the two parties alternated in office till in 1860

President Lincoln pushed the Democrats into the background for their staunch opposition to

the cause of Negro freedom. However, its fortunes, were rehabilitated in 1884 with the

election of President cleave end. This party has enjoyed periods of power under great

Presidents like Woodrow Wilson, Franklin D. Roosewelt, Truman, J.F. Kennedy, Johnson,

Jimmy Carter and Clinton.

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Republican Party

The Republican Party is the successor of the Federalist party of Hamilton. The

Federalists had won the battle against their opponents in making the central government

strong and getting the constitution ratified by the coolies. But in 1812 there was a split. The

section of the dissenters first assumed the name of National Republican and then of the

Whigs. Under the present name it was founded in 1854. Two years after, it nominated John

C. Fermont as the candidate for the Presidency and took a strong stand for the abolition of

slavery. It achieved outstanding success in the election of 1860 when it nominee (Lincoln)

proposed the abolition of slavery and favoured internal improvement including a satisfactory

homestead measure for farmers and liberal wages for working men and machines. From 1860

to 1913, it controlled the executive administration with the single exception of 8 years (1884-

92) under President Cleveland. This party has remained in power during the great

presidencies of Lincoln, Theodore Roosevelt, Eisenhower, Nixon, Reagon, Bush and George

W. Bush.

From this above, it is clear that party system has an extra — constitutional growth in

the United States. The rise and growth of the two parties has led to the stabilization of a bi-

party system there.

Model Questions

1. What are the four important features of federalism?

2. How does the separation of powers work in U.S.A?

3. Write a short note on checks and balances.

4. What do you mean by Electoral College?

5. Write about the two houses of US parliament.

6. Which court exercises the judicial review power?

7. Write an essay on these two:

a. Judicial Review

b. Party system in U.S.A

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UNIT III3.1. SWITZERLAND: An overview

The Swiss confederation consists of 23 sovereign cantons. Three cantons are further

split into half cantons. Each half canton is independent of its own. Thus to be more accurate

the Swiss confederation consists of twenty six cantons, each with its own constitution and

citizenship.

Though Switzerland is a small and land locked country of Europe, her political

institutions occupy a very significant place in the sphere of major constitutional systems of

the world. Indeed, the Swiss systems have successfully integrated a population characterized

by social, linguistic, cultural and religious diversities into a United Nation. Besides,

Switzerland has been a republic throughout the age and they successfully operate even today

direct democracy.

Learning Objectives

In this unit we shall study the features of the Swiss constitution, Swiss federation and

the institutions of direct democracy. After going through this unit you should be able to:

- List out the salient features of the Swiss Constitution

- Identify the features of the Swiss federation

- Analyse the working of direct democracy in Switzerland.

- Explain the composition and working of the Plural Executive

- Describe the organization and powers of the Swiss Federal Assembly

- Describe the Federal Tribunal and its working

- Define the party system and various parties in Switzerland

3.2. SALIENT FEATURES OF THE CONSTITUTION

Modern Switzerland is a product of the civil war which broke out in 1847. The seven

Catholic cantons, in order to protect their religious rights and privileges, organized a separate

league called the Sonder bund. This led to civil war in which the Catholic cantons were

defeated after ten days fighting. The civil war proved to be a blessing in disguises. It led to

the drafting of a new constitution for Switzerland in 1848. This constitution transformed

Switzerland into a federation, through the country is still known as the Swiss Confederation.

It provided for a weak centre and remained in force till 1874. In 1874, the constitution was

completely revised and giving more powers to the central government. The present

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constitution of Switzerland is based on the revised constitution of 1874. The main features

are as follows:

Written and Rigid Constitution

Switzerland has a written constitution. It was originally framed and approved in 1848.

It was subsequently revised in 1874. This revised constitution modified later in some

respects, is the one under which Switzerland is governed today.

The constitution is a rigid one. There are two methods of amendment like referendum and

initiative. So, it provides for a different procedure other than the ordinary law making process

for amending the constitution.

Federal Constitution

The Swiss constitution like that of the U.S.A. is federal in nature. The Swiss federation

consists of 23 cantons. The powers are divided between the central government on the one

hand and the cantons on the other. There is also a federal judiciary.

Republican Constitution

Like the U.S.A., Switzerland is a republic. There is no hereditary element in the Swiss

governmental system. The federal constitution requires that the Cantonal constitutions should

be republican in form.

No Bill of Rights

The Swiss constitution differs from the constitutions of the U.S.A. and India in one

important respect, i.e., it has no bill of rights. But it does not mean that the citizens of

Switzerland enjoy no civil rights. Their rights are clearly defined and laid down in various

articles of the constitution. Equality before law, freedom of speech, religion, association and

freedom of the press are some of the basic rights of the Swiss citizens.

Plural Executives

A distinguishing feature of the Swiss constitution is its plural executive. The Swiss

System is neither parliamentary nor presidential. The supreme executive authority of the

federal government is vested in a Federal Council consisting of seven members elected for

four years by the two houses of the federal legislature in a joint session. The Federal

Assembly annually elects the President and Vice president of the council. The members of

45

the Council do not belong to any one particular political party. They can introduce a bill in

either House of the Assembly, but have no right to vote. The Swiss Federal Council is not a

cabinet. It cannot be removed by the legislature.

Bicameral Legislature

The Swiss Federal Assembly is a bicameral body, composed of the Council of States

and the National Council. The Council of states consists of 46 members. The method of

election and the term of office of the members is decided by the Cantons. The National

Council consists of 196 members, elected for four years by proportional representation. The

two chambers have absolutely equal powers.

No Judicial Review

The constitution provides for the establishment of a Federal Tribunal for the

administration of justice in federal matters. The jurisdiction of the Tribunal covers all suits

between the confederation and the Cantons and between the Cantons themselves. But the

Federal Tribunal has no power to declare federal laws unconstitutional.

Direct Democracy

The outstanding feature of the Swiss Constitution is what is known as the institution

of direct democracy. The instruments of direct democracy are referendum and initiative. The

referendum consists of submission to the people, for approval or rejection of a law passed by

the legislature. The initiative is the right of the people to initiate or propose a piece of

legislation. These institutions of direct democracy function both at the central and in the

Cantons. For constitutional amendments referendum is compulsory.

3.3. Federalism in Switzerland

The Swiss Federal System offers one of the oldest examples, although its designation

as “Confederation” is a misnomer. A confederation is a loose alliance of sovereign states.

Switzerland is by no means a confederation owing to the fact that the union is complete and

secession is not permitted. The Swiss system meets every requirements of federalism.

Two Governments

Switzerland is divided into 23 cantons – 20 full and 6 half cantons. The federal unit in

Switzerland is called as Canton. So, there is one Central government and 26 Cantonal

governments.

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Division of Powers

Secondly, the constitution distributes powers between the Central and Cantoned

government resembles that of the U.S.A. The powers not vested in the Central and not

prohibited to the cantons belong to the cantons. It specializes the powers of the centre which

includes foreign affairs, defence, war and peace, railways, federal roads, bridges, post and

telegraphs, banking, commerce, coinage etc. It also enumerates certain concurrent powers

over which both the centre and the cantons have jurisdiction such as insurance, press,

industry, highways etc. In case of conflict between the Central and the Cantonal law over a

concurrent subject, the former will prevail. All the other residuary powers are given to the

Cantons.

Written and Rigid Constitution

Thirdly, a federal system consists of many government systems. It can function

properly when there is a written and rigid constitution. In the absence of such a constitution

these are bound to be conflicts among various governments. Accordingly Switzerland also

has a written constitution which is rigid. It cannot be amended by the ordinary law making

process. The process of amending constitution is difficult. An amendment can become law

only when it is approved by a majority of the Swiss Voters and by a majority of the Cantons.

Federal Tribunal

Fourthly, there is the Federal Tribunal for the administration of justice in federal

matters. Though a federal judiciary, it has got only limited power of judicial review – it can

review and invalidate Cantonal laws, not federal laws. It decides cases of public law between

one canton and another. It hears appeals over the judgments of the lower courts.

In addition, as in the federal system of U.S.A. the principle of dual citizenship is prevails

there. All the cantons have equal representation in the council of states which is the upper

house of Swiss legislature. Each full canton sends two members and half canton sends one

member. Each canton can have its own constitution.

3.4. FEDERAL COUNCIL

The national executive of Switzerland known as Federal Council (Bundesrat) this is a

plural or collegiate executive. The framers of the Swiss constitution provided for a unique

executive by combining the advantages of both Presidential and Parliamentary types of

47

executive. In no other country the executive power entrusted to a council instead of to one

man.

Composition

The Federal Council consisting of 7 members. They are elected for a period of 47

years by the two houses of the Federal Assembly in a joint session. Any Swiss citizen eligible

to become a member of lower chamber, the National Council, may be elected as a Federal

Councilor, no two members of the Federal Council may be from the same Canton. By

convention, Zurich and Berne, the two biggest cantons are always given a member each, and

the remaining five seats are distributed among the other Cantons. Members of the Federal

Council are usually selected from the two Houses of Federal Assembly. On being elected

Councilors, they resign their membership in the Federal Assembly. The Councilors are

selected from four different parties. They are chosen for their administrative skill, mental

grasp, good sense, tact and temper.

The President of the Council

The chairman of the council elected every year by the Federal Assembly for a period

of one year and is called the President of the confederation. The constitution debars him from

holding office for two consecutive years. However, the same person may be re-elected to the

office after a break of one year. The Council also has a Vice – President. The same rule

applies to the Vice-President. The two offices go by rotation to the other members of the

council according to seniority.

The Swiss President is merely the Chairman of the Federal Council exercising a

casting vote in case of a tie. He neither reigns nor governs. He appoints ambassadors,

receives and sees off foreign guests, represents the confederation on ceremonial occasions at

home and abroad. In short, he is not the chief executive head of the nation, but only the

ornamental head of the state.


The powers of the federal council may be described under three heads: executive, legislative

and judicial.

Executive Powers

The federal council enforces laws and ordinances passed by the federal legislature. It

looks after the internal security of the confederation and maintains peace and order in the

48

country. All federal appointments, except those made by the Federal Assembly, the Federal

Tribunal and other authorities, are made by the Federal Council. The Council administrators

and the finances of the federation prepare the budget and submit accounts of receipts and

expenditure. It guarantees the constitutions of the Cantons. It supervises the work and

conduct of the federal employees. The Federal Council manages the foreign affairs of the

country.

Legislative Powers

The members of the Federal Council attend both houses of the Federal Assembly and

answer questions, but do not vote. Most of the bills, including budget are introduced by the

Federal Councillors. They are introduced either on their own initiative or as per specified

requests made by the members of the Federal Assembly. Bills introduced by the members of

the Federal Assembly are just referred to a member of the Federal Council. The Federal

Council examines the laws and ordinances of the cantons that are required to be submitted for

its approval.

Judicial Powers

Cases concerning the behaviour of federal officials are tried by the Federal Council. It sees to

the execution of the verdicts of the Federal Tribunal.

It hears appeals of private citizens against the decisions of various administrative

departments. It has appellate jurisdiction against the decisions of the Canton government in

certain matters.

Important Features of the Federal Executive

The Swiss executive has three remarkable features. First, it is a collegiate or plural executive.

There is no head of the executive. The President is neither like the British Prime Minister nor

like the American President. He does not choose his colleagues, nor can he dismiss them. He

does not enjoy more power than any other member of the council. All the members of the

Council posses equal powers. Secondly, it possesses some features of Parliamentary system,

but it is not parliamentary.

Its parliamentary features are: 1) its members are chosen by the legislature 2) they have a

right to be present in the legislature, take part in its proceedings and initiate legislature

49

measures 3) they are subject to interpellation in either house; and 4) they carry out the wishes

of the legislature.

Thirdly, it also possesses some non parliamentary features: 1) its members are not

members of the legislature; 2) their term of office is fixed, they cannot be removed by the

legislature; 3) it has no Prime Minister; and 4) it does not function according to the principle

of joint responsibility. Fourthly, the Swiss executive is non-partisan in character. The

members are elected from different political parties and groups.

On the whole, the Swiss executive is neither parliamentary nor presidential; it is unique by

itself. It combined the advantages of both the system.

3.5. FEDERAL ASSEMBLY

The national legislature of Switzerland is known as the Federal Assembly. It consists of two

Houses. The upper House is known as the Council of States (Standerat) and the Lower House

is known as National Council (Nationalrat). These two houses posses equal power. So, like

the Federal Executive, the Federal Assembly is also unique feature of the Swiss constitution.

The Council of States

The Council of States corresponds to the American pattern in respect of its

composition. Every full Canton has two seats in this house, while very half Canton has one

regardless of its size or population. As a result, its total strength is 46. Even canton has its

own method of election and qualifications of the members of the Council of states. There is

no uniformity in regard to their terms of office; in some Cantons it is four years, in others it is

three years and in some others it is for a single year only. A member of the Council of States

cannot serve as the member of National Council, Federal Tribunal or Federal Council at the

same time. The Council elects its chairman and vice chairman from amongst its own

members from every ordinary and extraordinary session. The chairman casts his vote in case

of a tie.

The Council of States meets at least once a year in ordinary session. Extraordinary

sessions may be summoned by the Federal Council or on a request by one – fourth of its

members on request made by five cantons.

3.5.1. The National Council

The National Council consists of 200 members. Its composition and organization are

regulated by the constitution of the Confederation. Its members are elected directly by

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proportional representation. Every Swiss citizen who has completed twenty years of age is

entitled to vote and is qualified to be a member of the national council. No one can be a

member of both Houses at the same time. The National Council is elected for a period of four

years. It cannot be dissolved earlier than three years. It may be dissolved along with the other

House, if the two houses differ on the issue of total revision of the constitution.

The National Council elects its Chairman and Vice-Chairman from among its

members for every ordinary and extraordinary session. It meets four times a year in March,

June, September and December. All sessions held in one year are treated as one session.

The sessions of both the houses are held concurrently but in Separate houses. However, joint

sessions take place for definite purposes:

1. To elect members of the Federal Council, Federal Tribunal, President and Vice-

President of the confederation and the Commander -in-chief of the army.

2. To exercise the federal power of pardon

3. To resolve conflicts of jurisdiction between various federal authorities.

When the two Houses meet together the Chairman of the National Council presides

and decisions are made by a majority of all the members present.

Functions and Powers

The Federal Assembly composed of the National Council and the Council of states, possess

legislative, executive and judicial powers. A constitutional limitation imposed on the Federal

Assembly is that people could over rule its decisions at a referendum. Both houses are co-

ordinate in respect of their powers and functions.

Legislative Powers

As regards legislative powers, it is competent to enact all laws and decrees dealing with

matters falling under the jurisdiction of federal authorities. It determines and enacts necessary

measures to ensure due observance of national constitution. It also votes on treaties and

constitutional amendments. It passes all federal laws and legislative ordinances, considers

and passes the annual budget, approves state accounts and authorizes public loans floated by

the Federal government. It can demand all kinds of information on the administration of the

confederation and direct questions to the national executive.

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Executive Powers

The Federal Assembly elects the members of the Federal Council and Designates one

of them as its President and another one as its Vice-President. The judges of Federal

Tribunal, the members of the Federal Insurance Tribunal and the Commander-in-Chief of the

army are appointed by the Federal Assembly. The Assembly may be empowered to elect or

confirm other officials. It supervises and conflicts of jurisdiction between federal officials are

decided by the Federal Assembly. It controls the federal army, declares war, concludes peace

and ratifies alliances and treaties. On appeal from the Federal Council, the treaties concluded

by the Cantons among themselves and with foreign countries must be confirmed by the

Federal Assembly.

Judicial Powers

The Federal Assembly having the powers of granting amnesty and pardon. It acts as a court

of last resort for administrative cases and conflicts of jurisdiction between federal authorities.

Relation between the two Houses

The unique feature about the Swiss Federal Assembly is that the two Houses enjoy

co-equal powers. Bills including money bills can be introduced in both houses. All bills must

be passed by both houses. Annual business like the budget is taken up for consideration by

either house by rotation. The members of the Federal Council are responsible to both houses.

Deadlocks between the two houses are usually resolved by convening a joint conference

committee, composed of the representatives of both houses. If the dead lock cannot be

resolved the matter under dispute is dropped. The Federal Assembly of Switzerland has been

the most business like legislative body in the world. It does its work quietly.

The Federal Council in Switzerland is peculiar institution, because the executive

powers of the nation is exercised by seven federal councilors. It combines the merits of both

the presidential and the parliamentary form of government. In no other republic the executive

power entrusted to a council instead of to one man like a prime minister or a President. Like

the Federal Council, the Federal Assembly in Switzerland is also a unique one. It is the only

legislature in the world the two houses enjoy equal powers.

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3.6. The Federal Judiciary

The Federal judiciary in Switzerland is known as the Federal Tribunal. This was created by

the constitution of 1874. It was established in 1875 having its seat in Laussanne.

Organisation

The Federal Tribunal consists of 28 judges and 12 supplementary judges. They are elected by

the Federal Assembly in its joint session for six years. One of the judges is elected by its

President and the other as its Vice-President for a term of two years. Any Swiss citizen

eligible for election to the National Council may be appointed to the Federal Tribunal. The

Federal Assembly while appointing the members of the Tribunal ensures that all linguistic

groups of the confederation are represented in the Tribunal. The Federal judges may be and

often are re-elected.

Jurisdiction

The jurisdiction of the Federal Tribunal extends over civil and criminal cases and other issued

of public law. Its civil jurisdiction covers the following:

All civil suits between the Confederation and the Cantons or between the Cantons themselves.

All suits between the confederation and Corporation or private individuals. All disputes between a Canton and Corporation or an individual. Disputes concerning loss of nationality and the question of citizenship. The Tribunal has criminal jurisdiction in the following: Cases of high treason against the confederation, revolt and violence against

federal authorities. Crimes and offences against international law. Political crimes and offences which are the cause or consequence of disturbances

leading to armed federal intervention. Crimes committed by officials appointed by a federal authority when brought

before the tribunal by that authority. The Tribunal has a restricted constitutional jurisdiction in the following matters: Conflicts of competence between the federal authority on the one hand and

authorities of the Cantons on the other. Disputes between Cantons involving public law. Disputes concerning violation of the rights of the citizens under federal or

cantonal constitutions by cantonal statutes.

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Judicial Review

The Swiss Federal Tribunal possesses a very limited power of judicial review. It

cannot declare federal laws unconstitutional. Laws passed by the cantonal legislatures alone

may be declared as unconstitutional by the Federal tribunal. The question of judicial review

has not been given much prominence in Switzerland due to the presence of referendum and

initiative.

The Swiss judicial system is quite different from other federal states. The constitution

vests with the Federal Assembly the exclusive right of interpreting the constitution. The

Federal Tribunal, now, serves as an administrative court. It is empowered to settle disputes

concerning the legal competence of public officials.

3.7. DIRECT DEMOCRACY

A noteworthy feature of Swiss constitution is Direct Democracy and its institutions –

Referendum and initiative. The referendum consists of submission to the people, for approval

or rejection, of a law passed by the legislature. The initiative is the right of the people to

initiate or propose a piece of legislation. These instruments of direct democracy have been

introduced in varying degrees in other countries also. But nowhere have they been used so

widely and as successfully as in Switzerland.

Referendum

The term referendum means reference to the people for final approval. It is a device

through which the people are consulted before constitutional or legislative measures is finally

adopted. The referendum is of two kinds compulsory and optional. All constitutional

amendments, partial or full revision, whether of the national or of cantonal constitutions, are

subject to referendum and, as such, no constitutional amendment can be finally effective until

the resolution is ratified by a majority of the voters and of the cantons in the case of federal

constitution. But the application of optional referendum is limited to the cases of ordinary

legislation. The device of referendum was introduced in Switzerland in 1778.

Initiative

Initiative is of two kinds: Constitutional and legislative. If the initiative is taken by the

people instead of the legislature to amend or revise the constitution, it is called constitutional

initiative. The right of constitutional initiative covers total or partial revision. If 1,00,000

voters desire a total revision or partial revision of the constitution the question whether such

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a revision should be made or not is submitted to the citizens. If a majority of voters favour the

revision, both houses of the Federal Assembly are dissolved and fresh elections are held. The

newly elected Assembly proceeds to consider the proposed revision, when approved by both

Houses it is submitted to the citizens for their approval and becomes law if approved by a

majority of voters and by a majority of the Cantons. However, in the Cantons there is

legislative initiative as well.

The constitutional initiative is of two types – formulated and unformulated. If the

demand is submitted in the form of a duly drafted bill complete in all respects, it is called

formulated initiative. If the demand is couched in general terms, it is called unformulated

initiative. If the legislature approves an Unformulated Constitutional Initiative, it will draft an

amendment incorporating the desire of the citizens and submit it at a referendum. If the stated

majorities are obtained, the amendment shall be deemed as passed. Even if the Federal

Assembly is not favourably disposed to the amendment, the proposed amendment has to be

referred to the people at a referendum. If the people are in favour of the measure, the

legislature has no other alternative but to undertake he amendment and submit it to popular

vote. If 1, 00,000 Swiss citizens submit a definitely worded amendment and if it is approved

by one of the Houses, then it will be referred to the people at a referendum. If the two Houses

oppose the measure, they may either appeal to the people to vote against the amendment or

submit a counter proposal along with the original. This issue will be finally decided by the

people at a referendum.

Referendum and Initiative in the Cantons

As in the case of the confederation, provision is made in the Cantonal Constitutions

for Constitutional Referendum and Constitutional Initiative. While the Legislative

Referendum is optional in the Confederation, it is compulsory in all the Cantons except those

retaining the Lands. Popular Legislative Initiative – a thing unknown to the confederation –

exists in the majority of the Cantons.

Merits of Direct Democracy

The working of direct democracy has its own merits and demerits.

1. Democracy is based on the principles of popular sovereignty. Direct democracy as

embodied in the institutions of the referendum and the initiative upholds the

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principle of popular sovereignty more effectively than the institutions of

representative democracy.

2. The referendum and the initiative minimize the evils of the party system. In many

countries party system has been responsible for the failure of democracy.

3. Direct democracy safeguards the interests of the people against highhandedness,

arrogance and incompetence of the legislature.

4. Direct democracy inculcates in the people a sense of responsibility and strengthens

their sentiment of patriotism.

5. Direct democracy acts as a damper to radical politics, minimizes the possibility of

political upheavals and discourages unbridled demagogy.

Demerits of Direct Democracy

1. It adversely affects the prestige and responsibility of the legislature.

2. In the modern society legislation requires expert and technical knowledge which the

common people do not normally posses.

3. Since, the Swiss people are conservative in nature, Laws aimed at eradicating deep

routed social evils have no chance of being enacted.

4. Referendum involves unnecessarily delay, often measures of urgent importance or

delayed which often leads to harmful consequences.

5. Lastly, direct democracy involves a great deal of expenses.

However, the demerits of direct democracy have been outweighed by the special

qualities of the Swiss people. The judgement and cool headedness, the absence of passion and

the presence of intelligence and the good sense of patriotism have all combined together to

keep the institutions of direct democracy in successful operation.

We have so far learnt in this unit the salient features of the Swiss constitution and

identified some of the instruments of direct democracy like referendum and initiative. These

are the shield and sword of democracy extensively used in Switzerland. Between 1874 and

1938, the Swiss people were called to the polls 119 times to express their wishes on some

piece of constitutional or ordinary legislation. The following table illustrates the number of

acceptance and rejections.

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Nature of the Referendum Total Accepted Rejected

1. Compulsory Constitutional Referendum 38 31 07

2. Optional Legislative Referendum 45 16 29

3. Constitutional Initiative 31 07 24

4. Counter – proposals submitted by the

Federal Assembly for Constitutional Initiative 05 04 01

These figures show that in the case of compulsory constitutional referendum, the

rejections are lesser, in the case of optional legislative referendum. The rejections are greater

and in the last two cases the rejections are still greater. This clearly elucidates the fact that the

Swiss people wish more to check than to guide their representatives.

We have also examined how the Swiss constitution is Federal in nature. In fact the

Swiss constitution meets every requirements of federalism like two governments, divisions,

powers, written and rigid constitution and independent judiciary. There is a Federal Tribunal

like the Supreme Court in U.S.A. But it has no power of judicial review. It cannot declare

federal laws unconstitutional.

3.8. PARTY SYSTEM IN SWITZERLAND

Political parties are indispensable for a democratic government. Switzerland is no

exception to this general rule. In spite of the dominant fact of direct democracy in

Switzerland, political parties have grown up as a natural concomitant of the present day needs

of the representative government. It has a multi-party system, different from the bi-party

system of Britain and the United States. There are about half a dozen political parties

dominating the federal political system of Swiss. They are:

Liberal Party

It is one of the oldest parties of Switzerland. It played a very important role in shaping the

political fate of the nation. Much of the credit goes to this party for the creation of modern

Switzerland and for the constitution of 1848. Today the party “is a federalistic, i.e., states

rights party, opposed to the increase of governmental power and composed primarily of

French – speaking Protestants, aristocrats and upper bourgeoisie”. It has suffered a decline

and now it is little more than a “minor political group”.

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Radical Democratic Party

Today the Radical Democratic Party is one of the strongest political parties of the

Swiss political system. It has played a very important role in establishing secular, liberalistic,

centralistic and democratic government in Switzerland. It has stood for the extension of

political democracy through the institutions of initiative and referendum. Basically, the

Radicals favour government’s non-intervention but in recruit years they understand the need

of state intervention for the protection of the society against the evils and of all economic

activities. For over seventy years, the Radicals have loomed large on the Swiss political

scene. In 1975, two f its members had occupied the seven member Federal council. If the

liberal party deserves the major credit for laying foundations of modern Switzerland, the

Radicals claim the major credit for having made the country what it is today.

Catholic conservative Party

The Catholic Conservative Party, also known as Christian Socialistic party, it occupies a very

important place. Its primary purpose has been to protect and preserve the doctrines and

institutions of the Catholic Church. Basically, this party was bitterly opposed to federalism.

But, after its long collaboration with other parties, it has considerably changed this antipathy.

Nevertheless, even today, this party is Swiss’s real states rights party. Its principle is “neither

individualistic nor liberal” but frankly theocratic.

Social Democratic Party

In recently years, this party has come to occupy an important place in the Swiss political life

and its influence is steadily increasing. It won the second largest number of seats in the

national council. It has two representatives on the Federal Council. It is supported mainly by

the industrial workers, civil servants and professional classes. It stands for the principle of

mixed economy. Its purpose is not to destroy capitalism, but to eliminate its major abuses.

Communist (Labour) Party

In a strict sense, it is the only party of the left wing and its strength is very small confined to a

very small section of workers engaged in the industry or intellectuals. This party could never

gains remarkable success owing to the strict control of the federal and cantoned governments

and the prosperous life of the community.

In addition to those parties, there are some minor parties in Switzerland. In

Switzerland, there are no nation-wide elections like that of the American President. So, the

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political parties are not well organized. The last word in the law-making system rests with the

people. It has virtually pushed the function of the parties into backwaters. All these have

made the political parties in Swiss a ‘Golden Zero’.

Model Questions:

1. Switzerland, is it a Federation or Confederation?

2. What are the instruments of direct democracy working in Switzerland?

3. Write short notes on Referendum.

4. Explain the Merits and Demerits of Direct Democracy.

5. List out the important features of the Federal Executive.

6. Explain Function and Powers of the Federal Assembly.

7. Communist Party - Explain the concept and basic features.

8. Differentiate between communist party and Social Democratic party.

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UNIT IV

4.1. JAPAN: An Overview

Japan boasts the second largest economy in the world and almost two thousand years

of history. Yet, its first modern constitution, the Meiji Constitution, was not enacted until

comparatively recently (1889). Since then, following World War II, Japan adopted its current

Constitution, the Japanese Constitution of 1946. This unit is designed to explain the outline of

Japan's Constitution, together with a number of its unique characteristics and to offer an

historical background and context which help explain its significance. Major topics covered

include the constitutional history of Japan, individual rights and duties of the people, the

Emperor, Prime Minister, Cabinet and executive power, the Diet and legislative power, and

the Judiciary and party system. Also discussed is the protection of fundamental human rights,

individual rights - including freedom of expression, economic freedoms, and social rights -

pacifism and national defence, and the constitutional amendment and reform. Although the

Japanese Constitution was enacted under the strong influence of the United States

Constitution, many of its features are very different. For instance the existence of an

Emperor, the long dominance of a conservative party over the Government, the relatively

strong power of government bureaucrats, the absence of a leadership role in the Prime

Minister, the small role the judiciary play in solving constitutional disputes and the struggle

over national defence.

The American Occupation of Japan was premised on the notion that the thorough

demilitarization and democratization of the defeated nation would make the world forever

safe from the renewed threat of Japanese aggression. The drafting of a new, democratic

constitution was considered essential to Japan’s recasting as a peaceful member of the

community of nations. After a Japanese commission failed to produce a new national

constitution sufficiently progressive for the Occupation’s liking, a document was drafted

(over the span of only a week’s time) in-house by American staff and presented to the

Japanese government for translation and enactment. The Japanese had no choice but to follow

orders and the new constitution, somewhat awkwardly worded as the result of its English-

language origins, was promulgated in November 1946 and came into effect on May 3, 1947.

Many scholars have noted the irony of the Occupation installing democratic political

institutions in Japan through transparently authoritarian means: the Japanese, it has been said,

were “forced to be free” by their American occupiers. Nonetheless, the 1947 Constitution

was readily embraced by the Japanese people and has endured (with not a single amendment

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over the past six decades) as a sound basis for Japan’s post war democracy. The most

celebrated section of the 1947 Constitution is Article 9, often called the “no war” clause.

Debate swirled immediately around Article 9, which was very popular among the Japanese

people but which proved troubling to the United States. Although American Occupation

officials drafted the “no war” clause, American military planners soon sought a remilitarized

Japan as an ally in the Cold War and found Article 9 a serious impediment.

Learning Objectives:

In this unit we shall study the features of the Japanese constitution, the Japanese Emperor and

the institutions of Japanese democracy. After going through this unit you should be able to:

List out the salient features of the Japanese Constitution

Identify the features of the Japanese Emperor

Explain the election and powers of the Prime Minister

Analyse the composition, functions and working of Diet in Japan

Describe the organization and powers of the Judiciary

Describe the efforts undertaken to amend the constitution

Define the party system and various parties in Japan

The Constitution of Japan is the fundamental law of Japan. It was enacted on 3 May

1947, as a new constitution for a post-war Japan. The constitution provides for a

parliamentary system of government and guarantees certain fundamental rights. Under its

terms, the Emperor of Japan is "the symbol of the State and of the unity of the people" and

exercises a purely ceremonial role without the possession of sovereignty. The constitution,

also known as the "Post-war Constitution" or the "Peace Constitution", is best known for its

Article 9, by which Japan renounces its right to wage war; and to a lesser extent, the

provision for de jure popular sovereignty in conjunction with the monarchy. The constitution

was drawn up during the Allied occupation that followed World War II and was intended to

replace Japan's previous militaristic system of quasi-absolute monarchy with a form of liberal

democracy. No amendment has been made to it since its adoption.

HISTORICAL ORIGINS

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Meiji Constitution

The Meiji Constitution was the fundamental law of the Empire of Japan, propagated

during the reign of Emperor Meiji (r. 1867–1912). It provided for a form of mixed

constitutional and absolute monarchy, based on the Prussian and British models. In theory,

the Emperor of Japan was the supreme leader, and the cabinet, whose prime minister was

elected by a privy council, were his followers; in practice, the Emperor was head of state but

the Prime Minister was the actual head of government. Under the Meiji Constitution, the

prime minister and his cabinet were not necessarily chosen from the elected members of the

Diet. Pursuing the regular amending procedure of the "Meiji Constitution", it was entirely

revised to become the "Post-war Constitution" on 3 November 1946. The Post-war

Constitution has been in force since 3 May 1947.

The Potsdam Declaration

On 26 July 1945, Allied leaders Winston Churchill, Harry S. Truman, and Chiang

Kai-shek issued the Potsdam Declaration, which demanded Japan's unconditional surrender.

This declaration also defined the major goals of the post-surrender Allied occupation: "The

Japanese government shall remove all obstacles to the revival and strengthening of

democratic tendencies among the Japanese people. Freedom of speech, of religion, and of

thought, as well as respect for the fundamental human rights shall be established".

In addition, the document stated: "The occupying forces of the Allies shall be

withdrawn from Japan as soon as these objectives have been accomplished and there has been

established in accordance with the freely expressed will of the Japanese people a peacefully

inclined and responsible government". The Allies sought not merely punishment or

reparations from a militaristic foe, but fundamental changes in the nature of its political

system. In the words of political scientist Robert E. Ward: "The occupation was perhaps the

single most exhaustively planned operation of massive and externally directed political

change in world history."

Drafting process

The wording of the Potsdam Declaration "The Japanese Government shall remove all

obstacles ..." and the initial post-surrender measures taken by Douglas MacArthur, the

Supreme Commander for the Allied Powers (SCAP), suggest that neither he nor his superiors

in Washington intended to impose a new political system on Japan unilaterally. Instead, they

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wished to encourage Japan's new leaders to initiate democratic reforms on their own. But by

early 1946, MacArthur's staff and Japanese officials were at odds over the most fundamental

issue, the writing of a new Constitution. Emperor Hirohito, Prime Minister Kijūrō Shidehara

and most of the cabinet members were extremely reluctant to take the drastic step of

replacing the 1889 Meiji Constitution with a more liberal document.

In late 1945, Shidehara appointed Jōji Matsumoto, state minister without portfolio,

head of a blue-ribbon committee of Constitutional scholars to suggest revisions. The

Matsumoto Commission's recommendations, made public in February 1946, were quite

conservative as "no more than a touching-up of the Meiji Constitution"). MacArthur rejected

them outright and ordered his staff to draft a completely new document. An additional reason

for this was that on 24 January 1946, Prime Minister Shidehara had suggested to MacArthur

that the new Constitution should contain an article renouncing war.

Much of the drafting was done by two senior army officers with law degrees.

Although the document's authors were non-Japanese, they took into account the Meiji

Constitution, the demands of Japanese lawyers, the opinions of pacifist political leaders such

as Shidehara and Shigeru Yoshida, and especially the draft presented by the Constitution

Research Association under the chairmanship of Suzuki Yasuzō (1904–1983), which had

been translated into English in its entirety already by the end of December 1945. MacArthur

gave the authors less than a week to complete the draft, which was presented to surprised

Japanese officials on 13 February 1946. On 6 March 1946, the government publicly disclosed

an outline of the pending Constitution. On 10 April, elections were held for the House of

Representatives of the Ninetieth Imperial Diet, which would consider the proposed

Constitution. The election law having been changed, this was the first general election in

Japan in which women were permitted to vote.

The MacArthur draft, which proposed a unicameral legislature, was changed at the

insistence of the Japanese to allow a bicameral one, with both houses being elected. In most

other important respects, the government adopted the ideas embodied in the 13 February

document in its own draft proposal of 6 March. These included the constitution's most

distinctive features: the symbolic role of the Emperor, the prominence of guarantees of civil

and human rights, and the renunciation of war.

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In 1946, criticism of or reference to SCAP's role in drafting the constitution could be

made subject to Civil Censorship Detachment (CCD) censorship (as was any reference to

censorship itself). Until late 1947, CCD exerted pre-publication censorship over about 70

daily newspapers, all books and magazines and many other publications

Adoption

It was decided that in adopting the new document the Meiji Constitution would not be

violated, but rather legal continuity would be maintained. Thus the 1946 Constitution was

adopted as an amendment to the Meiji Constitution in accordance with the provisions of

Article 73 of that document. Under Article 73 the new constitution was formally submitted to

the Imperial Diet by the Emperor, through an imperial re-script issued on 20 June. The draft

constitution was submitted and deliberated upon as the Bill for Revision of the Imperial

Constitution.

The old constitution required that the bill receive the support of a two-thirds majority

in both houses of the Diet to become law. After both chambers had made amendments the

House of Peers approved the document on 6 October; the House of Representatives adopted it

in the same form the following day, with only five members voting against, and became law

when it received the Emperor's assent on 3 November 1946. Under its own terms the

constitution came into effect on 3 May 1947. A government organisation, the "Constitution

Popularisation Society", was established to promote the acceptance of the new constitution

among the populace.

Early proposals for amendment

The new constitution would not have been written the way it was had MacArthur and his staff

allowed Japanese politicians and constitutional experts to resolve the issue as they wished.

[ The document's foreign origins have, understandably, been a focus of controversy since

Japan recovered its sovereignty in 1952. Yet in late 1945 and 1946, there was much public

discussion on constitutional reform, and the MacArthur draft was apparently greatly

influenced by the ideas of certain Japanese liberals. The MacArthur draft did not attempt to

impose a United States-style presidential or federal system. Instead, the proposed constitution

conformed to the British model of parliamentary government, which was seen by the liberals

as the most viable alternative to the European absolutism of the Meiji Constitution.

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The Preamble

The constitution contains a firm declaration of the principle of popular sovereignty in

the preamble. This is proclaimed in the name of the "Japanese people" and declares that

"sovereign power resides with the people" and that:

Government is a sacred trust of the people, the authority for which is derived from the

people, the powers of which are exercised by the representatives of the people, and the

benefits of which are enjoyed by the people.

Part of the purpose of this language is to refute the previous constitutional theory that

sovereignty resided in the Emperor. The constitution asserts that the Emperor is merely a

symbol of the state, and that he derives "his position from the will of the people with whom

resides sovereign power" (Article 1). The text of the constitution also asserts the liberal

doctrine of fundamental human rights. In particular Article 97 states that: the fundamental

human rights by this constitution guaranteed to the people of Japan are fruits of the age-old

struggle of man to be free; they have survived the many exacting tests for durability and are

conferred upon this and future generations in trust, to be held for all time inviolate.

Organs of Government (Articles 41–95)

The constitution establishes a parliamentary system of government in which

legislative authority is vested in a bicameral National Diet. Although a bicameral Diet existed

under the existing constitution, the new constitution abolished the upper House of Peers,

which consisted of members of the nobility (similar to the British House of Lords). The new

constitution provides that both chambers be directly elected, with a lower House of

Representatives and an upper House of Councillors. The House of Representatives has the

sole ability to pass a vote of no confidence in the Cabinet, can override the House of

Councillors' veto on any bill, and has priority in determining the national budget, approving

treaties and nominating the prime minister when the two houses disagree.

Executive authority is vested in a cabinet headed by the Prime Minister. The prime

minister and a majority of the cabinet members must be members of the Diet, and have the

right and obligation to attend sessions of the Diet. The Cabinet may also advise the Emperor

to dissolve the House of Representatives and call for a general election to be held.

The judiciary consists of several lower courts headed by a Supreme Court. The Chief

Justice of the Supreme Court is nominated by the Cabinet and appointed by the Emperor,

while other justices are nominated and appointed by the Cabinet and attested by the Emperor.

Lower court judges are nominated by the Supreme Court, appointed by the Cabinet and

65

attested by the Emperor. All courts have the power of judicial review and may interpret the

constitution to overrule statutes and other government acts, but only in the event that such

interpretation is relevant to an actual dispute.

The constitution also provides a framework for local government, requiring that local

entities have elected heads and assemblies, and providing that government acts applicable to

particular local areas must be approved by the residents of those areas. These provisions

formed the framework of the Local Autonomy Law of 1947, which established the modern

system of prefectures, municipalities and other local government entities.

Amendments (Article 96)

Under Article 96, amendments to the constitution "shall be initiated by the Diet,

through a concurring vote of two-thirds or more of all the members of each House and shall

thereupon be submitted to the people for ratification, which shall require the affirmative vote

of a majority of all votes cast thereon, at a special referendum or at such election as the Diet

shall specify". The constitution has not been amended since its implementation in 1947,

although there have been movements led by the Liberal Democratic Party to make various

amendments to it.

Other provisions (Articles 97–103)

Article 97 provides for the inviolability of fundamental human rights. Article 98

provides that the constitution takes precedence over any "law, ordinance, imperial re-script or

other act of government" that offends against its provisions, and that "the treaties concluded

by Japan and established laws of nations shall be faithfully observed". In most nations it is for

the legislature to determine to what extent, if at all, treaties concluded by the state will be

reflected in its domestic law; under Article 98, however, international law and the treaties

Japan has ratified automatically form a part of domestic law. Article 99 binds the Emperor

and public officials to observe the constitution.

The final four articles set forth a six-month transitional period between adoption and

implementation of the Constitution. This transitional period took place from 3 November

1946, to 3 May 1947. Pursuant to Article 100, the first House of Councillors election was

held during this period in April 1947, and pursuant to Article 102, half of the elected

Councillors were given three-year terms. A general election was also held during this period,

as a result of which several former House of Peers members moved to the House of

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Representatives. Article 103 provided that public officials currently in office would not be

removed as a direct result of the adoption or implementation of the new Constitution.

4.2. SALIENT FEATURES OF JAPANESE CONSTITUTION

The Japanese constitution, like most of the other constitution has some salient features as

follows;

Written Constitution

Sovereignty of the People

Renunciation of War

Limited Monarchy

Parliamentary Government

Unitary Government

Bicameral System

End of Dualism (A system where the Emperor and the Diet had powers on legislation)

Independence of Judiciary

Adult Suffrage

Constitution as the Supreme Law

Some of the other significant features are;

Election of the PM

PM is elected by both the Houses of Japanese Parliament (called Diet). The two houses of

the Diet are the House of Representatives and the House of Councillors. It is not enough for a

person to be a leader of the majority party. He has to be elected by both the houses of the

Parliament. If no agreement is reached upon between the two houses on a candidate, then the

matter is taken care of by a Joint Committee of both the houses. The Committee gets 10 days

to arrive at a decision. After 10 days, if an agreement cannot be reached, then the will of the

lower house prevails.

Renunciation of War (Article 9)

Herein, Japan formally renounces the policy of war for the settlement of international

disputes. However, it can keep forces for self-defence. Under Article 9, the "Japanese people

forever renounce war as a sovereign right of the nation and the threat or use of force as means

of settling international disputes". To this end the article provides that "land, sea, and air

forces, as well as other war potential, will never be maintained". The necessity and practical

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extent of Article 9 has been debated in Japan since its enactment, particularly following the

establishment of the Japan Self-Defence Forces (JSDF), a de facto post-war Japanese military

force that substitutes for the pre-war Armed Forces, since 1 July 1954. Various political

groups have called for either revising or abolishing the restrictions of Article 9 to permit

collective defence efforts and strengthen Japan's military capabilities.

4.3. RIGHTS AND DUTIES OF THE PEOPLE

"The rights and duties of the people" are prominently featured in the post war

constitution. Altogether, thirty-one of its 103 articles are devoted to describing them in

considerable detail, reflecting the commitment to "respect for the fundamental human rights"

of the Potsdam Declaration. Although the Meiji Constitution had a section devoted to the

"rights and duties of subjects," which guaranteed "liberty of speech, writing, publication,

public meetings, and associations," these rights were granted "within the limits of law."

Freedom of religious belief was allowed "insofar as it does not interfere with the duties of

subjects".

Such freedoms are delineated in the post war constitution without qualification. In

addition, the later constitution guarantees freedom of thought and conscience; academic

freedom; the prohibition of discrimination based on race, creed, social status, or family

origin; and a number of what could be called welfare rights: the right to "minimum standards

of wholesome and cultured living"; the right to "equal education"; the "right and obligation to

work" according to fixed standards of labour and wages; and the right of workers to organize.

Equality of the sexes and the right of marriage based on mutual consent (in contrast to

arranged marriage in the most traditional sense, in which families decide on the match) are

also recognized. Limitations are placed on personal freedoms only insofar as they are not

abused (Article 12) or interfere with public welfare (Article 13). The bestowal of the power

of judicial review on the Supreme Court (Article 81) is in part meant to serve as a means of

defending individual rights from infringement by public authorities.

Some United States origins of the constitution are revealed in the phraseology of

Article 13, which states that the right of the people to "life, liberty, and the pursuit of

happiness" shall be the "supreme consideration in legislation and other governmental affairs."

It was with some awkwardness that such concepts were translated into Japanese. Yet the

document goes further in enumerating rights than do the United States and many other

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Western constitutions. For example, the article pertaining to equality of the sexes (Article 14)

bans sexual (as well as racial, religious, and social) discrimination "in political, economic, or

social relations" as clearly as the proposed United States equal rights amendment, which

failed to be ratified during the 1970s and 1980s. Unlike their Japanese counterparts, United

States schoolteachers and university professors are not protected by a special provision on

academic freedom (Article 23). Instead, American teaching and research activities are

subsumed under the more general guarantee of freedom of speech in the First Amendment.

Individual Rights (Articles 10–40)

Individual rights under the Japanese constitution are rooted in Article 13 where the

constitution asserts the right of the people "to be respected as individuals" and, subject to "the

public welfare", to "life, liberty, and the pursuit of happiness". This article's core notion is

jinkaku, which represents "the elements of character and personality that come together to

define each person as an individual", and which represents the aspects of each individual's

life that the government is obligated to respect in the exercise of its power. Article 13 has

been used as the basis to establish constitutional rights to privacy, self-determination and the

control of an individual's own image, rights which are not explicitly stated in the constitution.

Subsequent provisions provide for:

Equality before the law: The constitution guarantees equality before the law and outlaws

discrimination against Japanese citizens based on "political, economic or social relations" or

"race, creed, sex, social status or family origin" (Article 14). The right to vote cannot be

denied on the grounds of "race, creed, sex, social status, family origin, education, property or

income" (Article 44). Equality between the sexes is explicitly guaranteed in relation to

marriage (Article 24) and childhood education (Article 26).

Prohibition of peerage: Article 14 forbids the state from recognising peerage. Honours may

be conferred but they must not be hereditary or grant special privileges.

Democratic elections: Article 15 provides that "the people have the inalienable right to

choose their public officials and to dismiss them". It guarantees universal adult (in Japan,

persons age 20 and older) suffrage and the secret ballot.

Prohibition of slavery: Guaranteed by Article 18, involuntary servitude is permitted only as

Punishment.

Separation of Religion and State: The state is prohibited from granting privileges or

political authority to a religion, or conducting religious education (Article 20).

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Freedom of assembly, association, speech, and secrecy of communications: All guaranteed

without qualification by Article 21, which forbids censorship.

Workers' rights: Work is declared both a right and obligation by Article 27 which also

states that "standards for wages, hours, rest and other working conditions shall be fixed by

law" and that the children shall not be exploited. Workers have the right to participate in a

trade union (Article 28).

Right to property: Guaranteed subject to the "public welfare". The state may take property

for public use if it pays just compensation (Article 29). The state also has the right to levy

taxes (Article 30).

Right to due process: Article 31 provides that no one may be punished "except according to

procedure established by law". Article 32, which provides that "No person shall be denied the

right of access to the courts", originally drafted to recognize criminal due process rights, is

now understood as source of due process rights for civil and administrative law cases

Protection against unlawful detention: Article 33 provides that no one may be apprehended

without an arrest warrant, save where caught in flagrante delicto. Article 34 guarantees

habeas corpus, right to counsel, and right to be informed of charges. Article 40 enshrines the

right to sue the state for wrongful detention.

Right to a fair trial: Article 37 guarantees the right to a public trial before an impartial

tribunal with counsel for one's defence and compulsory access to witnesses.

Protection against self-incrimination: Article 38 provides that no one may be compelled to

testify against themselves, that confessions obtained under duress are not admissible and that

no one may be convicted solely on the basis of their own confession.

Duty of the Citizens: It requires the citizens the Duty to obey the constitution, Duty to pay

taxes and Duty to work. The Japanese constitution is the first constitution of the world to

explicitly mention about the duties of the citizens and it has inspired other nations to include

these provisions in their respective constitutions. India got its fundamental duties enshrined in

its constitution through an amendment from the Japanese constitution.

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Other guarantees given in the Constitution:

Right to petition government (Article 16)

Right to sue the state (Article 17)

Freedom of thought and conscience (Article 19)

Freedom of expression (Article 19)

Freedom of religion (Article 20)

Rights to change residence, choose employment, move abroad and relinquish

nationality (Article 22)

Academic freedom (Article 23)

Prohibition of forced marriage (Article 24)

Compulsory education (Article 26)

Protection against entries, search and seizures (Article 35)

Prohibition of torture and cruel punishments (Article 36)

Prohibition of ex post facto laws (Article 39)

Prohibition of double jeopardy (Article 39)

Under Japanese case law, constitutional human rights apply to corporations to the

extent possible given their corporate nature. Constitutional human rights also apply to foreign

nationals to the extent that such rights are not by their nature only applicable to citizens (for

example, foreigners have no right to enter Japan under Article 22 and no right to vote under

Article 15, and their other political rights may be restricted to the extent that they interfere

with the state's decision making).

Form of Government

The Constitution of Japan defines the Emperor to be "the symbol of the State and of

the unity of the people". He performs ceremonial duties and holds no real power. Political

power is held mainly by the Prime Minister and other elected members of the Diet. The

Imperial Throne is succeeded by a member of the Imperial House as designated by the

Imperial Household Law. The chief of the executive branch, the Prime Minister, is appointed

by the Emperor as directed by the Diet. He is a member of either house of the Diet and must

be a civilian. The Cabinet members are nominated by the Prime Minister, and are also

required to be civilian. With the Liberal Democratic Party (LDP) in power, it has been

convention that the President of the party serves as the Prime Minister.

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The government of Japan is a constitutional monarchy in which the power of the

emperor is limited and is relegated primarily to ceremonial duties. As in many other states,

the government is divided into three branches: the legislative branch, the executive branch,

and the judicial branch.

The government runs under the framework established by the Constitution of Japan,

adopted in [1947]. It is a unitary state, containing forty-seven administrative divisions, with

the emperor as its head of state. His role is ceremonial and he has no powers related to

government. Instead, it is the cabinet, comprising the ministers of state and the prime minister

that directs and controls the government. The cabinet is the source of power of the executive

branch, and is formed by the prime minister, who is the head of government. He or she is

designated by the National Diet and appointed to office by the emperor.

The National Diet is the legislature, the organ of the legislative branch. It is

bicameral, consisting of two houses with the House of Councillors being the upper house, and

the House of Representatives being the lower house. Its members are directly elected from

the people, who are the source of sovereignty. The Supreme Court and other inferior courts

make up the Judicial branch, and they are independent from the executive and the legislative

branches.

History of the Emperor

Prior to the Meiji Restoration, Japan was ruled by successive military shōguns.

During this period, effective power of the government resided in the Shogun, who officially

ruled the country in the name of the emperor. The Shōguns were the hereditary military

governors, with their modern rank equivalent to a generalissimo. Although the emperor was

the sovereign who appointed the Shōgun, his roles were ceremonial and he took no part in

governing the country. This is often compared to the present role of the emperor, whose

official role is to appoint the prime minister.

The Meiji Restoration in 1868 led to the resignation of Shōgun Tokugawa Yoshinobu,

agreeing to "be the instrument for carrying out" the emperor's orders. This event restored the

country to Imperial rule and the proclamation of the Empire of Japan. In 1889, the Meiji

Constitution was adopted in a move to strengthen Japan to the level of western nations,

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resulting in the first parliamentary system in Asia. It provided a form of mixed constitutional-

absolute monarchy, with an independent judiciary, based on the Prussian model of the time.

A new aristocracy known as the kazoku was established. It merged the ancient court

nobility of the Heian period, the kuge, and the former daimyōs, feudal lords subordinate to

the shōgun. It also established the Imperial Diet, consisting of the House of Representatives

and the House of Peers. Members of the House of Peers were made up of the Imperial

Family, the Kazoku, and those nominated by the emperor, while members of the House of

Representatives were elected by direct male suffrage. Despite clear distinctions between

powers of the executive branch and the emperor in the Meiji Constitution, ambiguity and

contradictions in the Constitution eventually led to a political crisis. It also devalued the

notion of civilian control over the military, which meant that the military could develop and

exercise a great influence on politics. Following the end of World War-II, the present

Constitution of Japan was adopted. It replaced the previous Imperial rule with a form of

Western-style liberal democracy

4.4. THE EMPEROR OF JAPAN

The Emperor of Japan is the head of the Imperial Family and the head of state of

Japan. Under the 1947 constitution, he is defined as "the symbol of the State and of the unity

of the people". However, he is not the nominal Chief Executive and he possesses only

certain ceremonially important powers without the possession of sovereignty. He has no real

powers related to the government, as is stated clearly in article 4 of the Constitution. The

Emperor carries out most functions of a head of state, formally appointing the Prime Minister

and Chief Justice of the Supreme Court, convoking the National Diet and dissolving the

House of Representatives, under the advice of the Cabinet, and also promulgating statutes

and treaties and exercising other enumerated functions.

The emperor is known to hold the nominal ceremonial authority. For example, the

emperor is the only person that has the authority to appoint the Prime Minister, even though

the Diet has the power to designate the person fitted for the position. One such example can

be prominently seen in the 2009 Dissolution of the House of Representatives. The House was

expected to be dissolved on the advice of the Prime Minister, but was temporarily unable to

do so for the next general election, as both the Emperor and the Empress were visiting

Canada. In this manner, the emperor's modern role is often compared to those of the

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Shogunate period and much of Japan's history, whereby the emperor held great symbolic

authority but had little political power; which was often held by others nominally appointed

by the Emperor himself. Today, a legacy has somewhat continued for a retired Prime

Minister who still wields considerable power, to be called a Shadow Shogun.

In contrast with the Meiji Constitution, the Emperor's role is almost entirely

ceremonial, and he does not have powers related to government. Unlike other constitutional

monarchies, he is not even the nominal commander-in-chief of the Japan Self-Defense Forces

(JSDF). The constitution explicitly limits the Emperor's role to matters of state delineated in

the constitution. The constitution also states that these duties can be delegated by the

Emperor as provided for by law. Unlike his European counterparts, the emperor is not the

source of sovereign power and the government does not act in his name. Instead, the emperor

represents the state and appoints other high officials in the name of the state, in which the

Japanese people hold sovereignty. Article 5 of the Constitution, in accordance with the

Imperial Household Law, allows regency to be established in the emperor's name, should the

emperor be unable to perform his duties.

Historically, he is also the highest authority of the Shinto religion. In Japanese, the

emperor is called Tennō, literally "heavenly sovereign". In English, the use of the term

Mikado for the emperor was once common, but is now considered obsolete. Currently, the

Emperor of Japan is the only head of state in the world with the English title of "emperor".

The Imperial House of Japan is the oldest continuing hereditary monarchical house in the

world.

The historical origins of the emperors lie in the late Kofun period of the 3rd–7th

centuries AD, but according to the traditional account of the Kojiki (finished 712) and Nihon

Shoki (finished 720), Japan was founded by the Imperial House in 660 BC by Emperor

Jimmu. He was the first Emperor of Japan and the ancestor of all of the Emperors that

followed. He is, according to Japanese mythology, the direct descendant of Amaterasu, the

sun goddess of the native Shinto religion, through Ninigi, his great-grandfather. The current

emperor is Naruhito. He acceded to the Chrysanthemum Throne upon the abdication of his

father, the now-Emperor Emeritus Akihito on 1 May 2019. The Emperor is styled as His

Imperial Majesty, and his reign bears the era name of Reiwa. The Emperor's Birthday

(currently 23 February) is a national holiday.

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The role of the Emperor of Japan has historically alternated between a largely

ceremonial symbolic role and that of an actual imperial ruler. Since the establishment of the

first shogunate in 1199, the emperors have rarely taken on a role as supreme battlefield

commander, unlike many Western monarchs. Japanese emperors have nearly always been

controlled by external political forces, to varying degrees. For example, between 1192 and

1867, the shōguns, or their shikken regents in Kamakura (1203–1333), were the de facto

rulers of Japan, although they were nominally appointed by the emperor. After the Meiji

Restoration in 1867, the emperor was the embodiment of all sovereign power in the realm, as

enshrined in the Meiji Constitution of 1889.

World War II & the Emperor

The role of the Emperor as head of the State Shinto religion was exploited during the

World War II, creating an Imperial cult that led to kamikaze bombers and other fanaticism.

This in turn led to the requirement in the Potsdam Declaration for the elimination "for all

time [of] the authority and influence of those who have deceived and misled the people of

Japan into embarking on world conquest". In State Shinto, the Emperor was believed to be an

Arahitogami (a living god). Following Japan's surrender, the Allies issued the Shinto

Directive separating church and state within Japan. Since the enactment of the 1947

Constitution, the role of emperor has been to act as a ceremonial head of state without even

nominal political powers.

Present Role of the Emperor

Unlike most constitutional monarchs, the Emperor is not the nominal chief executive.

Article 65 explicitly vests executive power in the Cabinet, of which the Prime Minister is the

leader. The Emperor is also not the commander-in-chief of the Japan Self-Defense Forces.

The Japan Self-Defense Forces Act of 1954 also explicitly vests this role with the Prime

Minister.

The Emperor's powers are limited only to important ceremonial functions. Article 4 of

the Constitution stipulates that the Emperor "shall perform only such acts in matters of state

as are provided for in the Constitution and he shall not have powers related to government." It

also stipulates that "the advice and approval of the Cabinet shall be required for all acts of the

Emperor in matters of state" (Article 3). Article 4 also states that these duties can be

delegated by the Emperor as provided for by law.

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While the Emperor formally appoints the Prime Minister to office, Article 6 of the

Constitution requires him to appoint the candidate "as designated by the Diet", without giving

the Emperor the right to decline appointment.

Article 6 of the Constitution delegates the Emperor the following ceremonial roles:

Appointment of the Prime Minister as designated by the Diet.

Appointment of the Chief Justice of the Supreme Court as designated by the Cabinet.

The Emperor's other duties are laid down in article 7 of the Constitution, where it is

stated that "the Emperor, with the advice and approval of the Cabinet, shall perform the

following acts in matters of state on behalf of the people." In practice, all of these duties are

exercised only in accordance with the binding instructions of the Cabinet:

Promulgation of amendments of the constitution, laws, cabinet orders, and treaties.

Convocation of the Diet.

Dissolution of the House of Representatives.

Proclamation of general election of members of the Diet.

Attestation of the appointment and dismissal of Ministers of State and other officials as provided for by law, and of full powers and credentials of Ambassadors and Ministers.

Attestation of general and special amnesty, commutation of punishment, reprieve, and restoration of rights.

Awarding of honours.

Attestation of instruments of ratification and other diplomatic documents as provided for by law.

Receiving foreign ambassadors and ministers.

Performance of ceremonial functions.

Regular ceremonies of the Emperor with a constitutional basis are the Imperial

Investitures (Shinninshiki) in the Tokyo Imperial Palace and the Speech from the Throne

ceremony in the House of Councillors in the National Diet Building. The latter ceremony

opens ordinary and extra sessions of the Diet. Ordinary sessions are opened each January and

also after new elections to the House of Representatives. Extra sessions usually convene in

the autumn and are opened then. The budget for the maintenance of the Imperial House is

managed by resolution of the Diet.

Succession to the Imperial Throne

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Article 2 of the Meiji Constitution (the Constitution of the Empire of Japan) stated,

"The Imperial Throne shall be succeeded to by imperial male descendants, according to the

provisions of the Imperial House Law." The 1889 Imperial Household Law fixed the

succession on male descendants of the imperial line, and specifically excluded female

descendants from the succession. In the event of a complete failure of the main line, the

throne would pass to the nearest collateral branch, again in the male line. If the Empress did

not give birth to an heir, the Emperor could take a concubine, and the son he had by that

concubine would be recognized as heir to the throne. This law, which was promulgated on

the same day as the Meiji Constitution, enjoyed co-equal status with that constitution.

Currently, the succession to the Chrysanthemum Throne (imperial throne of the

Emperor of Japan) is regulated by the Imperial Household Law and is managed by a ten-

member body called the Imperial Household Council. Article 2 of the Constitution of Japan,

promulgated in 1947 by influence of the U.S. occupation administration, provides that "The

Imperial Throne shall be dynastic and succeeded to in accordance with the Imperial

Household Law passed by the Diet." The Imperial Household Law of 1947, enacted by the

ninety-second and last session of the Imperial Diet, retained the exclusion on female dynasts

found in the 1889 law. The government of Prime Minister Yoshida Shigeru hastily cobbled

together the legislation to bring the Imperial Household in compliance with the American-

written Constitution of Japan that went into effect in May 1947. In an effort to control the

size of the imperial family, the law stipulates that only legitimate male descendants in the

male line can be dynasts; that imperial princesses lose their status as Imperial Family

members if they marry outside the Imperial Family; and that the Emperor and other members

of the Imperial Family may not adopt children. It also prevented branches, other than the

branch descending from Taishō, from being imperial princes any longer.

Current status on Succession

Succession is now regulated by laws passed by the National Diet. The current law

excludes women from the succession. A change to this law had been considered until

Princess Kiko gave birth to a son. Until the birth of Prince Hisahito, son of Prince Akishino

and Princess Kiko, on September 6, 2006, there was a potential succession problem, since

Prince Akishino was the only male child to be born into the imperial family since 1965.

Following the birth of Princess Aiko, there was public debate about amending the current

Imperial Household Law to allow women to succeed to the throne. In January 2005, Prime

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Minister Junichiro Koizumi appointed a special panel composed of judges, university

professors, and civil servants to study changes to the Imperial Household Law and to make

recommendations to the government.

The panel dealing with the succession issue recommended on October 25, 2005,

amending the law to allow females of the male line of imperial descent to ascend the

Japanese throne. On January 20, 2006, Prime Minister Junichiro Koizumi devoted part of his

annual keynote speech to the controversy, pledging to submit a bill allowing women to

ascend the throne to ensure that the succession continues in the future in a stable manner.

Shortly after the announcement that Princess Kiko was pregnant with her third child,

Koizumi suspended such plans. Her son, Prince Hisahito, is the third in line to the throne

under the current law of succession. On January 3, 2007, Prime Minister Shinzō Abe

announced that he would drop the proposal to alter the Imperial Household Law.

4.4.1. THE EXECUTIVE: THE PRIME MINISTER

The Executive branch of Japan is headed by the Prime Minister. The Prime Minister

is the head of the Cabinet, and is designated by the legislative organ, the National Diet. The

Cabinet consists of the Ministers of State and may be appointed or dismissed by the Prime

Minister at any time. Explicitly defined to be the source of executive power, it is in practice,

however, mainly exercised by the Prime Minister. The practice of its powers is responsible to

the Diet, and as a whole, should the Cabinet lose confidence and support to be in office by the

Diet, the Diet may dismiss the Cabinet en masse with a motion of no confidence.

The Prime Minister of Japan is the head of government of Japan and the commander-

in-chief of the Japan Self-Defense Forces. The Prime Minister is appointed by the Emperor of

Japan after being designated by the National Diet and must enjoy the confidence of the House

of Representatives to remain in office. He serves a term of four years or less; with no limits

imposed on the number of terms the Prime Minister may hold. He is the Chairman of the

Cabinet and other Ministers of State serve at the pleasure of the Prime Minister, and exercises

"control and supervision" of the executive branch. The literal translation of the Japanese

name for the office is Minister for the Comprehensive Administration of (or the Presidency

over) the Cabinet.

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The Prime Minister is vested with the power to present bills to the Diet, to sign laws,

to declare a state of emergency, and may also dissolve the Diet's House of Representatives at

will. He or she presides over the Cabinet and appoints, or dismisses, the other Cabinet

ministers. Both houses of the National Diet designate the Prime Minister with a ballot cast

under the run-off system. Under the Constitution, should both houses not agree on a common

candidate, then a joint committee is allowed to be established to agree on the matter;

specifically within a period of ten days, exclusive of the period of recess. However, if both

houses still do not agree, the decision made by the House of Representatives is deemed to be

that of the National Diet. Upon designation, the Prime Minister is presented with their

commission, and then is formally appointed by the Emperor. As a candidate designated by

the Diet, he or she is required to report to the Diet whenever demanded. The Prime Minister

must also be both a civilian and a member of either house of the Diet.

History of the Office of the Prime Minister

Before the adoption of the Meiji Constitution, Japan had in practice no written

constitution. Originally, a Chinese-inspired legal system known as ritsuryō was enacted in the

late Asuka period and early Nara period. It described a government based on an elaborate and

rational meritocratic bureaucracy, serving, in theory, under the ultimate authority of the

Emperor; although in practice, real power was often held elsewhere, such as in the hands of

the Fujiwara clan, who intermarried with the Imperial Family in the Heian period, or by the

ruling shōgun. Theoretically, the last ritsuryō code, the Yōrō Code enacted in 752, was still in

force at the time of the Meiji Restoration.

Under this system, the Daijō-daijin, the Chancellor of the Realm, was the head of the

Daijō-kan (Department of State), the highest organ of Japan's pre-modern Imperial

government during the Heian period and until briefly under the Meiji Constitution with the

appointment of Sanjō Sanetomi in 1871. The office was replaced in 1885 with the

appointment of Itō Hirobumi to the new position of Prime Minister, four years before the

enactment of the Meiji Constitution, which mentions neither the Cabinet nor the position of

Prime Minister explicitly. It took its current form with the adoption of the Constitution of

Japan in 1947. To date, 62 people have served this position. The current Prime Minister is

Shinzō Abe, who re-took office on December 26, 2012. He is the first former Prime Minister

to return to office since 1948, and the 3rd longest serving Prime Minister to date.

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Appointment of the PM

The Prime Minister is designated by both houses of the Diet, before the conduct of

any other business. For that purpose, each conducts a ballot under the run-off system. If the

two houses choose different individuals, then a joint committee of both houses is appointed to

agree on a common candidate. Ultimately, however, if the two houses do not agree within ten

days, the decision of the House of Representatives is deemed to be that of the Diet.

Therefore, the House of Representatives can theoretically ensure the appointment of any

Prime Minister it wants. The candidate is then presented with his or her commission, and

formally appointed to office by the Emperor. In practice, the Prime Minister is almost always

the leader of the majority party in the House of Representatives, or the leader of the senior

partner in the governing coalition.

Qualifications

Must be a member of either house of the Diet. (This implies a minimum age of 25 and a Japanese nationality requirement.)

Must be a "civilian". This excludes serving members of the Japan Self-Defense Forces. Former military persons may be appointed Prime Minister despite the "civilian" requirement, Yasuhiro Nakasone being one prominent example.

Role of the PM

Constitutional roles

Exercises "control and supervision" over the entire executive branch.

Presents bills to the Diet on behalf of the Cabinet.

Signs laws and Cabinet orders (along with other members of the Cabinet).

Appoints all Cabinet ministers, and can dismiss them at any time.

May permit legal action to be taken against Cabinet ministers.

Must make reports on domestic and foreign relations to the Diet.

Must report to the Diet upon demand to provide answers or explanations.

May advise the Emperor to dissolve the Diet's House of Representatives.

Statutory roles

Presides over meetings of the Cabinet.

Commander-in-chief of the Japan Self-Defense Forces.

May override a court injunction against an administrative act upon showing of cause.

In most other constitutional monarchies, the monarch is nominal chief executive,

while being bound by convention to act on the advice of the cabinet. In contrast, the

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Constitution of Japan explicitly vests executive power in the Cabinet, of which the Prime

Minister is the leader. His signature is required for all laws and Cabinet orders. While most

ministers in parliamentary democracies have some freedom of action within the bounds of

cabinet collective responsibility, the Japanese Cabinet is effectively an extension of the Prime

Minister's authority.

The Cabinet shall resign en masse after a general election of members of the House of

Representatives. Their term of office is four years which can be terminated earlier. No limits

are imposed on the number of terms or tenures the Prime Minister may hold. The Prime

Minister is, by convention, the leader of the victorious party, though some prime ministers

have been elected from junior coalition partners or minority parties.

4.4.2. THE CABINET

The Cabinet of Japan is the executive branch of the government of Japan. It consists

of the Prime Minister and up to nineteen other members, called Ministers of State. Under the

Cabinet Law, the number of members of the Cabinet appointed, excluding the Prime

Minister, must be fourteen or less, but may only be increased to nineteen should a special

need arise. Article 68 of the Constitution states that all members of the Cabinet must be

civilians and the majority of them must be chosen from among the members of either house

of the National Diet. The precise wording leaves an opportunity for the Prime Minister to

appoint some non-elected Diet officials. The Prime Minister is designated by the Diet, and

the remaining ministers are appointed and dismissed by the Prime Minister.

The Cabinet is collectively responsible to the Diet and must resign if a motion of no

confidence is adopted by the Diet. The Cabinet is required to resign en masse while still

continuing its functions, till the appointment of a new Prime Minister, when the following

situation arises: The Diet's House of Representatives passes a non-confidence resolution, or

rejects a confidence resolution, unless the House of Representatives is dissolved within the

next ten (10) days. When there is a vacancy in the post of the Prime Minister, or upon the

first convocation of the Diet after a general election of the members of the House of

Representatives. Conceptually deriving legitimacy from the Diet, whom it is responsible to,

the Cabinet exercises its power in two different ways. In practice, much of its power is

exercised by the Prime Minister, while others are exercised nominally by the Emperor.

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Article 73 of the Constitution of Japan expects the Cabinet to perform the following

functions, in addition to general administration:

Administer the law faithfully; conduct affairs of state.

Manage foreign affairs.

Conclude treaties. However, it shall obtain prior or, depending on circumstances, subsequent approval of the Diet.

Administer the civil service, in accordance with standards established by law.

Prepare the budget, and present it to the Diet.

Enact cabinet orders in order to execute the provisions of this Constitution and of the law. However, it cannot include penal provisions in such cabinet orders unless authorized by such law.

Decide on general amnesty, special amnesty and commutation of punishment, reprieve, and restoration of rights.

Under the Constitution, all laws and cabinet orders must be signed by the competent Minister

and countersigned by the Prime Minister, before being formally promulgated by the Emperor.

Also, all members of the Cabinet cannot be subject to legal action without the consent of the

Prime Minister; however, without impairing the right to take legal action.

Ministers

The Ministries of Japan consist of ministries and the Cabinet Office. Each ministry is

headed by a Minister of State, which are mainly senior legislators, and are appointed from

among the members of the Cabinet by the Prime Minister. The Cabinet Office, formally

headed by the Prime Minister, is an agency that handles the day-to-day affairs of the Cabinet.

The ministries are the most influential part of the daily-exercised executive power, and since

few ministers serve for more than a year or so necessary to grab hold of the organisation,

most of its power lies within the senior bureaucrats.

Appointment

Under the constitution, Cabinet ministers are appointed after the selection of the

Prime Minister. A majority of the Cabinet, including the Prime Minister, must be members of

the Diet, and all members must be civilians. Under the Cabinet Law, the number of Cabinet

Ministers (excluding the Prime Minister) must be fourteen or less, but this may be increased

to nineteen if a special need arises. In the event that the Cabinet collectively resigns it

continues to exercise its functions until the appointment of a new Prime Minister. While they

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are in office, legal action may not be taken against Cabinet ministers without the consent of

the Prime Minister. The Cabinet must resign en masse in the following circumstances:

When a motion of no confidence is adopted, or a vote of confidence defeated, by the House

of Representatives, unless there is dissolution of the house within ten days.

Upon the first convocation of the Diet after a general election to the House of Representatives

(even if the same Prime Minister is to be re-elected and appointed, and every other minister is

to be reappointed). When the position Prime Minister becomes vacant, or the Prime Minister

declares his intention to resign.

Powers

The Cabinet exercises two kinds of power. Some of its powers are nominally

exercised by the Emperor with the binding "advice and approval" of the Cabinet. Other

powers are explicitly vested in the Cabinet. Contrary to the practice in many constitutional

monarchies, the Emperor is not even the nominal Chief Executive. Instead, the Constitution

explicitly vests executive authority in the Cabinet. Hence, nearly all of the day-to-day work

of governing is done by the Cabinet.

In practice, much of the Cabinet's authority is exercised by the Prime Minister. Under

the Constitution, the Prime Minister exercises "control and supervision" over the executive

branch, and no law or Cabinet order can take effect without the Prime Minister's

countersignature (and the Emperor's promulgation). While Cabinet Ministers in most other

parliamentary democracies theoretically have some freedom of action (within the limits of

cabinet collective responsibility), the Japanese Cabinet is effectively an extension of the

Prime Minister's authority.

Powers exercised via the Emperor

Promulgation of amendments to the laws, cabinet orders and treaties.

Convocation of the Diet.

Dissolution of the House of Representatives.

Proclamation of general elections to the Diet.

Receiving of foreign ambassadors and ministers.

Conferring of honours.

Explicit powers

Execution of the law.

Conduct of foreign affairs.

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Conclusion of treaties (with the consent of the Diet).

Administration of the civil service.

Drafting of the budget (which must be adopted by the Diet).

Adoption of cabinet orders.

Granting of general amnesty, special amnesty and commutation of punishment, reprieve, and restoration of rights.

Signing of laws or cabinet orders by the relevant Minister of State and countersigned by the Prime Minister.

Appointment of the associate justices of the Supreme Court of Japan (except for the Chief Justice, who is designated by the Prime Minister and formally appointed by the Emperor).

Appointment of vice-ministers (who are nominated by their respective Minister to whom they will report).

The members of the current cabinet of Japan is headed by the Liberal Democratic Party lawmaker Shinzō Abe as of August 2019.

4.4.3. LEGISTATURE OF JAPAN: DIET

The Legislative branch organ of Japan is the National Diet. It is a bicameral

legislature, composing of a lower house, the House of Representatives, and an upper house,

the House of Councillors. Empowered by the Constitution to be "the highest organ of State

power" and the only "sole law-making organ of the State", its houses are both directly elected

under a parallel voting system and is ensured by the Constitution to have no discrimination

on the qualifications of each members; whether be it based on "race, creed, sex, social status,

family origin, education, property or income". The National Diet, therefore, reflects the

sovereignty of the people; a principle of popular sovereignty whereby the supreme power lies

within, in this case, the Japanese people.

The Diet responsibilities include the making of laws, the approval of the annual

national budget, the approval of the conclusion of treaties and the selection of the Prime

Minister. In addition, it has the power to initiate draft constitutional amendments, which, if

approved, are to be presented to the people for ratification in a referendum before being

promulgated by the Emperor, in the name of the people. The Constitution also enables both

houses to conduct investigations in relation to government, demand the presence and

testimony of witnesses, and the production of records, as well as allowing either house of the

Diet to demand the presence of the Prime Minister or the other Minister of State, in order to

give answers or explanations whenever so required. The Diet is also able to impeach Court

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judges convicted of criminal or irregular conduct. The Constitution, however, does not

specify the voting methods, the number of members of each house, and all other matters

pertaining to the method of election of the each members, and are thus, allowed to be

determined for by law.

Under the provisions of the Constitution and by law, all adults aged over 18 are

eligible to vote, with a secret ballot and a universal suffrage, and those elected have certain

protections from apprehension while the Diet is in session. Speeches, debates, and votes cast

in the Diet also enjoy parliamentary privileges. Each house is responsible for disciplining its

own members, and all deliberations are public unless two-thirds or more of those members

present passes a resolution agreeing it otherwise. The Diet also requires the presence of at

least one-third of the membership of either house in order to constitute a quorum. All

decisions are decided by a majority of those present, unless otherwise stated by the

Constitution, and in the case of a tie, the presiding officer has the right to decide the issue. A

member cannot be expelled, however, unless a majority of two-thirds or more of those

members present passes a resolution thereof.

Under the Constitution, at least one session of the Diet must be convened each year.

The Cabinet can also, at will, convoke extraordinary sessions of the Diet and is required to,

when a quarter or more of the total members of either house demands it. During an election,

only the House of Representatives is dissolved. The House of Councillors is however, not

dissolved but only closed, and may, in times of national emergency, be convoked for an

emergency session. The Emperor both convokes the Diet and dissolves the House of

Representatives, but only does so on the advice of the Cabinet.

For bills to become Law, they are to be first passed by both houses of the National Diet,

signed by the Ministers of State, countersigned by the Prime Minister, and then finally

promulgated by the Emperor; however, without specifically giving the Emperor the power to

oppose legislation.

4.5. HOUSE OF REPRESENTATIVES (LOWER HOUSE)

The House of Representatives of Japan is the Lower house, with the members of the

house being elected once every four years, or when dissolved, for a four-year term. Currently,

it has 465 members. Of these, 176 members are elected from 11 multi-member constituencies

by a party-list system of proportional representation, and 289 are elected from single-member

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constituencies. 233 seats are required for majority. The overall voting system used to elect the

House of Representatives is a parallel system, a form of semi-proportional representation.

Under a parallel system the allocation of list seats does not take into account the outcome in

the single seat constituencies. Therefore, the overall allocation of seats in the House of

Representatives is not proportional, to the advantage of larger parties. In contrast, in bodies

such as the German Bundestag the election of single-seat members and party list members is

linked, so that the overall result respects proportional representation.

The House of Representatives is the more powerful house out of the two, it is able to

override vetoes on bills imposed by the House of Councillors with a two-thirds majority. It

can, however, be dissolved by the Prime Minister at will and the most recent was by Shinzō

Abe as on September 28, 2017. Members of the house must be of Japanese nationality; those

aged 18 years and older may vote, while those aged 25 years and older may run for office in

the lower house.

The legislative power of the House of Representatives is considered to be more

powerful than that of the House of Councillors. While the House of Councillors has the

ability to veto most decisions made by the House of Representatives, some however, can only

be delayed. This includes the legislation of treaties, the budget, and the selection of the Prime

Minister. The Prime Minister, and collectively his Cabinet, can in turn, however, dissolve the

House of Representatives whenever intended. While the House of Representatives is

considered to be officially dissolved upon the preparation of the document, the House is only

formally dissolved by the dissolution ceremony.

The dissolution ceremony of the House is as follows:

The document is rubber stamped by the Emperor, and wrapped in a purple silk cloth;

an indication of a document of state act, done on behalf of the people.

The document is passed on to the Chief Cabinet Secretary at the House of

Representatives President's reception room.

The document is taken to the Chamber for preparation by the General-Secretary.

The General-Secretary prepares the document for reading by the Speaker.

The Speaker of the House of Representatives promptly declares the dissolution of the

House.

The House of Representatives is formally dissolved.

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It is customary that, upon the dissolution of the House, members will shout the Three

Cheers of Banzai.

4.6. HOUSE OF COUNCILLORS (UPPER HOUSE)

The House of Councillors of Japan is the Upper house and it is the successor to the

pre- World War II House of Peers. Half the members (121) of the house of Councillors being

elected once every three years, for a six-year term, two years longer than those of the House

of Representatives. Currently, it has 242 members. Of the 121 members subject to election

each time, 73 are elected from the 47 prefectural districts by single non-transferable vote

(SNTV) and 48 are elected from a nationwide list by proportional representation (PR) with

open lists. The House of Councillors cannot be dissolved by the Prime Minister. Members of

the house must be of Japanese nationality; those aged 18 years and older may vote, while

those aged at least 30 years and older may run for office in the upper house compared with at

least 25 years old in the House of Representatives.

As the House of Councillors can veto a decision made by the House of

Representatives, the House of Councillors can cause the House of Representatives to

reconsider its decision. If the two houses disagree on matters of the budget, treaties, or

designation of the prime minister, the House of Representatives can insist on its decision, by

overwriting the veto by the House of Councillors with a two-thirds majority of its members

present. Each year, and when required, the National Diet is convoked at the House of

Councillors, on the advice of the Cabinet, for an extra or an ordinary session, by the Emperor.

A short speech is, however, usually first made by the Speaker of the House of

Representatives before the Emperor proceeds to convoke the Diet with his Speech from the

throne.

Japan’s House of Councilors is significantly less powerful than the lower house of the

Diet. Laws must be approved by both houses, with bills generally being passed by the House

of Representatives before being sent to the House of Councilors for approval. But the House

of Representatives is the dominant force, and can generally ensure that it gets its own way in

any dispute between the two houses. On matters of serious national importance, such as

passing budgets, agreeing international treaties, or choosing a prime minister, the House of

Representatives can override the House of Councilors with a simple majority vote; on all

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other matters, a two-thirds vote of the House of Representatives overrides the House of

Councilors.

This means that the House of Councilors’ most powerful tool is the ability to delay

legislation by forcing it back to the House of Representatives for a new vote. That can

actually be a more powerful role than it sounds, because procedural rules in Japan’s Diet

mean that if a piece of legislation doesn’t clear through both houses by the end of a Diet

session, it must generally go back to square one; the bill “expires” and the process can’t

simply be resumed in the next session. The House of Councillors, therefore, can potentially

kick a piece of legislation to the curb by simply delaying it for long enough that the session

ends and the bill expires.

In practice, this doesn’t happen very often because the Liberal Democratic Party and

its long-term coalition partner, Komeito, generally control at least half of both houses of the

Diet. But there are sometimes situations where the government controls a majority in the

House of Representatives (which is a requirement to be able to form a government at all),

while the opposition parties have a majority in the House of Councilors. This is called a

“twisted Diet” and it has happened twice in the past two decades. In 2007, the LDP lost a

House of Councilors election to the Democratic Party of Japan (DPJ), which led to the

resignation of Prime Minister Shinzō Abe a couple of months later and made life difficult for

his successors.

The Diet was eventually “untwisted” by the House of Representatives election of

2009, with the DPJ’s victory meaning that both houses of the Diet were again in the same

hands again. But the legislature was promptly “retwisted” by the 2010 House of Councilors

election, when the DPJ-led coalition lost its upper house majority. This was a major blow to

the nascent DPJ government and meant that unless the DPJ administration negotiated for

votes with smaller parties, the LDP could effectively prevent most bills from passing—a

strategy it used ruthlessly to turn the DPJ into a “lame duck” government. The LDP returned

to power in 2012 and has had control of both houses of the Diet since then.

The House of Councilors has one other important role, which relates to changing

Japan’s Constitution. The Constitution has not been amended since it was adopted in 1946,

one reason being the high bar any amendment must pass: a two-thirds majority of both

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houses of the Diet, followed by a simple majority (50 percent + 1) in a national referendum.

This is one kind of legislation where the House of Representatives does not have authority

over the House of Councilors. If two-thirds of the House of Councilors does not vote in favor

of an amendment (or at least, in favor of having a referendum on the amendment), it cannot

proceed to a public vote.

4.7. ELECTION OF COUNCILORS

According to Article 102 of the Japanese Constitution, the House of Councilors is

elected in a “staggered” system - every member in the house serves a six-year term, and half

of the house is up for reelection every three years. The only time that the entire House of

Councilors has been elected at once was in 1947, when the first election was held. Half of the

Councilors elected in 1947 were up for re-election in 1950, while the other half held their

seats until 1953. Therefore, the Councilors up for reelection in 2019 last faced election in

2013; those elected in 2016 will hold their seats until 2022.

The House initially had 250 seats. Two seats were added to the House in 1970 after

the agreement on the repatriation of Okinawa, increasing the House to a total of 252.

Legislation aimed at addressing malapportionment that favoured less-populated prefectures

was introduced in 2000; this resulted in ten seats being removed (five each at the 2001 and

2004 elections), bringing the total number of seats to 242. Further reforms to address

malapportinoment took effect in 2007 and 2016, but did not change the total number of

members in the house. From 1947 to 1983, the House had 100 seats allocated to a national,

of which fifty seats were allocated in each election. It was originally intended to give

nationally prominent figures a route to the House without going through local electioneering

processes. The national block was last seen in the 1980 election and was replaced with a

nationwide proportional representation block in the 1983 election. The national proportional

representation block was reduced to 96 members in the 2000 reforms.

Unlike the House of Representatives, where the prime minister essentially has the

ability to call an election whenever he wishes, the House of Councilors must be elected on

this fixed three-year cycle, and the prime minister has only minimal decision-making power

over the timing (e.g. choosing which specific weekend of a given month on which to hold the

election). This predictable schedule means that there is often speculation that the government

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will hold a House of Representatives election at the same time, but this kind of “double

election” is actually very rare and has only happened twice since 1947 (1980 and 1986).

Unlike the U.S. Senate, however, the House of Councilors is meant to be broadly

representative of Japan’s population. So as urbanization has shifted the balance between

Japan’s prefectures, the allocation of seats in the House has also changed to try and keep

representation more equal. The most populous prefecture, Tokyo, will be represented by 12

councilors as of the 2019 election, while four of the least populous prefectures have recently

been combined into two merged districts (Tokushima-Kōchi and Tottori-Shimane) with two

councilors each. There are 242 councilors in the chamber, but this will rise to 245 at the 2019

election and 248 in 2022, as more councilors are being added to address population

disparities.

As in the House of Representatives, seats in the House of councilors are allocated

according to a mix of local constituencies and national party lists, the latter accounting for

around two-fifths of the seats. Voters fill out two different ballot forms when they go to their

polling stations, one for their local district and another for the national lists—in effect, two

different elections are run in parallel. Currently 146 members are elected in individual

prefectures, using a first-past-the-post (FPTP) system—arguably the simplest kind of

electoral system in existence, with the candidates who receive most votes being the winners.

This number will rise to 147 in 2019 and 148 in 2022, with both of new councilors located in

rapidly-growing Saitama prefecture, next to Tokyo.

The remaining 96 councilors (rising to 98 in 2019, 100 in 2022) are elected from a

nationwide constituency, with votes from all over the country being tallied together. The

electoral system for this nationwide group has changed several times over the years; until

1980 it also used first-past-the-post, but then switched to a proportional representation system

where parties are allocated seats broadly in line with the percentage of votes they receive

overall. Until 1998, this was a “closed list” system, so parties were told how many seats they

got and could decide for themselves which people to nominate as councilors to fill those

seats. After that, it switched to a “most open list,” which didn’t change how many seats

parties got, but allowed voters to vote for an individual candidate, not a party, and forced

parties to allocate seats in the order of which of their candidates got most votes.

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Differences between the Upper and Lower Houses

The House of Representatives has several powers not given to the House of

Councillors. If a bill is passed by the lower house (the House of Representatives) but is voted

down by the upper house (the House of Councillors) the House of Representatives can

override the decision of the House of Councillors by a two-thirds vote in the affirmative.

However, in the case of treaties, the budget, and the selection of the prime minister, the

House of Councillors can only delay passage, but not block the legislation. As a result, the

House of Representatives is considered the more powerful house.

Members of the House of Representatives, who are elected to a maximum of four

years, sit for a shorter term than members of the House of Councillors, who are elected to full

six-year terms. The lower house can also be dissolved by the Prime Minister or the passage of

a nonconfidence motion, while the House of Councillors cannot be dissolved. Thus the House

of Representatives is considered to be more sensitive to public opinion, and is termed the

"lower house".

While the legislative term is nominally 4 years, early elections for the lower house are

very common, and the median lifespan of post war legislatures has in practice been around 3

years.

Policy making in Japan

Despite an increasingly unpredictable domestic and international environment, policy

making conforms to well established postwar patterns. The close collaboration of the ruling

party, the elite bureaucracy and important interest groups often make it difficult to tell who

exactly is responsible for specific policy decisions. After a largely informal process within

elite circles in which ideas were discussed and developed, steps might be taken to institute

more formal policy development. This process often took place in deliberation councils

(shingikai). There were about 200 shingikai, each attached to a ministry; their members were

both officials and prominent private individuals in business, education, and other fields. The

shingikai played a large role in facilitating communication among those who ordinarily might

not meet.

Given the tendency for real negotiations in Japan to be conducted privately (in the

nemawashi, or root binding, process of consensus building), the shingikai often represented a

fairly advanced stage in policy formulation in which relatively minor differences could be

thrashed out and the resulting decisions couched in language acceptable to all. These bodies

were legally established but had no authority to oblige governments to adopt their

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recommendations. The most important deliberation council during the 1980s was the

Provisional Commission for Administrative Reform, established in March 1981 by Prime

Minister Suzuki Zenko. The commission had nine members, assisted in their deliberations by

six advisers, twenty-one "expert members," and around fifty "councillors" representing a

wide range of groups. Its head, Keidanren president Doko Toshio, insisted that government

agree to take its recommendations seriously and commit itself to reforming the administrative

structure and the tax system.

In 1982, the commission had arrived at several recommendations that by the end of

the decade had been actualized. These implementations included tax reform, a policy to limit

government growth, the establishment in 1984 of the Management and Coordination Agency

to replace the Administrative Management Agency in the Office of the Prime Minister, and

privatization of the state-owned railroad and telephone systems. In April 1990, another

deliberation council, the Election Systems Research Council, submitted proposals that

included the establishment of single-seat constituencies in place of the multiple-seat system.

Another significant policy-making institution in the early 1990s were the Liberal Democratic

Party's Policy Research Council. It consisted of a number of committees, composed of LDP

Diet members, with the committees corresponding to the different executive agencies.

Committee members worked closely with their official counterparts, advancing the requests

of their constituents, in one of the most effective means through which interest groups could

state their case to the bureaucracy through the channel of the ruling party. See also: Industrial

policy of Japan; Monetary and fiscal policy of Japan; Mass media and politics in Japan

4.8. JUDICIARY

The Judicial branch of Japan consists of the Supreme Court, and four other lower

courts; the High Courts, District Courts, Family Courts and Summary Courts. Divided into

four basic tiers, the Court's independence from the executive and legislative branches are

guaranteed by the Constitution, and is stated as: "no extraordinary tribunal shall be

established, nor shall any organ or agency of the Executive be given final judicial power"; a

feature known as the Separation of Powers. Article 76 of the Constitution states that all the

Court judges are independent in the exercise of their own conscience and that they are only

bounded by the Constitution and the laws. Court judges are removable only by public

impeachment, and can only be removed, without impeachment, when they are judicially

declared mentally or physically incompetent to perform their duties. The Constitution also

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explicitly denies any power for executive organs or agencies to administer disciplinary

actions against judges. However, a Supreme Court judge may be dismissed by a majority in a

referendum; of which, must occur during the first general election of the National Diet's

House of Representatives following the judge's appointment, and also the first general

election for every ten years lapse thereafter. Trials must be conducted, with judgment

declared, publicly, unless the Court "unanimously determines publicity to be dangerous to

public order or morals"; with the exception for trials of political offenses, offenses involving

the press, and cases wherein the rights of people as guaranteed by the Constitution, which

cannot be deemed and conducted privately. Court judges are appointed by the Cabinet, in

attestation of the Emperor, while the Chief Justice is appointed by the Emperor, after being

nominated by the Cabinet; which in practice, known to be under the recommendation of the

former Chief Justice.

The Legal system in Japan has been historically influenced by Chinese law;

developing independently during the Edo period through texts such as Kujikata

Osadamegaki. It has, however, changed during the Meiji Restoration, and is now largely

based on the European civil law; notably, the civil code based on the German model still

remains in effect. A quasi-jury system has recently came into use, and the legal system also

includes a bill of rights since May 3, 1947. The collection of Six Codes makes up the main

body of the Japanese statutory law. All Statutory Laws in Japan are required to be rubber

stamped by the Emperor with the Privy Seal of Japan, and no Law can take effect without the

Cabinet's signature, the Prime Minister's countersignature and the Emperor's promulgation.

Supreme Court

The Supreme Court of Japan is the court of last resort and has the power of Judicial

review; as defined by the Constitution to be "the court of last resort with power to determine

the constitutionality of any law, order, regulation or official act". The Supreme Court is also

responsible for nominating judges to lower courts and determining judicial procedures. It also

oversees the judicial system, overseeing activities of public prosecutors, and disciplining

judges and other judicial personnel.

High Courts

The High Courts of Japan has the jurisdiction to hear appeals to judgments rendered

by District Courts and Family Courts, excluding cases under the jurisdiction of the Supreme

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Court. Criminal appeals are directly handled by the High Courts, but Civil cases are first

handled by District Courts. There are eight High Courts in Japan: the Tokyo, Osaka, Nagoya,

Hiroshima, Fukuoka, Sendai, Sapporo, and Takamatsu High Courts.

Penal system

The Penal system of Japan is operated by the Ministry of Justice. It is part of the

criminal justice system, and is intended to resocialize, reform, and rehabilitate offenders. The

ministry's Correctional Bureau administers the adult prison system, the juvenile correctional

system, and three of the women's guidance homes, while the Rehabilitation Bureau operates

the probation and the parole systems.

Political Parties and Elections

Several political parties exist in Japan, however, the politics of Japan have primarily

been dominated by the Liberal Democratic Party (LDP) since 1955, with the DPJ playing an

important role as opposition several times. LDP was a ruling party during decades since

1955. Despite the existence of multiple parties, other parties were completely ignored. Most

of the Prime Ministers were elected from inner factions of the LDP.

Earlier, political parties had begun to revive almost immediately after the occupation

began. Left-wing organizations, such as the Japan Socialist Party and the Japanese

Communist Party, quickly re-established themselves, as did various conservative parties. The

old Rikken Seiyūkai and Rikken Minseitō came back as, respectively, the Liberal Party and

the Japan Progressive Party. The first postwar elections were held in 1948 (women were

given the franchise for the first time in 1947), and the Liberal Party's vice president, Yoshida

Shigeru (1878–1967), became prime minister.

For the 1947 elections, anti-Yoshida forces left the Liberal Party and joined forces

with the Progressive Party to establish the new Democratic Party. This divisiveness in

conservative ranks gave a plurality to the Japan Socialist Party, which was allowed to form a

cabinet, which lasted less than a year. Thereafter, the socialist party steadily declined in its

electoral successes. After a short period of Democratic Party administration, Yoshida

returned in late 1948 and continued to serve as prime minister until 1954.

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Even before Japan regained full sovereignty, the government had rehabilitated nearly

80,000 people who had been purged, many of whom returned to their former political and

government positions. A debate over limitations on military spending and the sovereignty of

the Emperor ensued, contributing to the great reduction in the Liberal Party's majority in the

first post-occupation elections (October 1952). After several reorganizations of the armed

forces, in 1954 the Japan Self-Defense Forces were established under a civilian director. Cold

War realities and the hot war in nearby Korea also contributed significantly to the United

States-influenced economic redevelopment, the suppression of communism, and the

discouragement of organized labour in Japan during this period.

Continual fragmentation of parties and a succession of minority governments led

conservative forces to merge the Liberal Party with the Japan Democratic Party, an offshoot

of the earlier Democratic Party, to form the Liberal Democratic Party (LDP) in November

1955, called 1955 System. This party continuously held power from 1955 through 1993,

except for short when it was replaced by a new minority government. LDP leadership was

drawn from the elite who had seen Japan through the defeat and occupation. It attracted

former bureaucrats, local politicians, businessmen, journalists, other professionals, farmers,

and university graduates.

In October 1955, socialist groups reunited under the Japan Socialist Party, which

emerged as the second most powerful political force. It was followed closely in popularity by

the Kōmeitō, founded in 1964 as the political arm of the Value Creation Society, until 1991, a

lay organization affiliated with the Nichiren Shoshu Buddhist sect. The Komeito emphasized

the traditional Japanese beliefs and attracted urban labourers, former rural residents, and

women. Like the Japan Socialist Party, it favoured the gradual modification and dissolution

of the Japan-United States Mutual Security Assistance Pact.

Proposed Amendments and Revisions to the Constitution

The Constitution has not been amended since its enactment in 1947. Article 96

provides that amendments can be made to the Constitution if approved by super majority of

two-thirds of both houses of the Diet, and by simple majority in a referendum. The Emperor

promulgates the successful amendment in the name of the people, and cannot veto it. Some

commentators have suggested that the Constitution's American authors favoured the

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difficulty of the amendment process from a desire that the fundamentals of the regime they

had imposed would be resistant to change.

After 1952 conservatives and nationalists attempted to revise the constitution to make

it more "Japanese", but these attempts were frustrated for a number of reasons. One was the

extreme difficulty of amending it. Amendments require approval by two-thirds of the

members of both houses of the National Diet before they can be presented to the people in a

referendum (Article 96). Also, opposition parties, occupying more than one-third of the Diet

seats, were firm supporters of the constitutional status quo. Even for members of the ruling

Liberal Democratic Party (LDP), the constitution was advantageous. They had been able to

fashion a policy-making process congenial to their interests within its framework. Yasuhiro

Nakasone, a strong advocate of constitutional revision during much of his political career, for

example, downplayed the issue while serving as prime minister between 1982 and 1987.

Among the Japanese themselves, any change to the document and to the post-war

settlement it embodies is highly controversial. From the 1960s to the 1980s, Constitutional

revision was rarely debated. In the 1990s, right-leaning and conservative voices broke some

taboos, for example, when the newspaper Yomiuri Shimbun published a suggestion for

Constitutional revision in 1994. This period saw a number of right-leaning groups pushing

aggressively for Constitutional revision and a significant number of organizations and

individuals speaking out against revision and in support of "the peace Constitution".

The debate has been highly polarised. The most controversial issues are proposed

changes to Article 9—the "peace article"—and provisions relating to the role of the Emperor.

Progressive, left, centre-left and peace movement-related individuals and organizations, as

well as the opposition parties, labor and youth groups advocate keeping or strengthening the

existing Constitution in these areas, while right-leaning, nationalist and conservative groups

and individuals advocate changes to increase the prestige of the Emperor (though not

granting him political powers) and to allow a more aggressive stance of the JSDF by turning

it officially into a military. Other areas of the Constitution and connected laws discussed for

potential revision related to the status of women, the education system and the system of

public corporations (including social welfare, non-profit and religious organizations as well

as foundations), and structural reform of the election process, e.g. to allow for direct election

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of the prime minister. Numerous grassroots groups, associations, NGOs, think tanks,

scholars, and politicians speak out on either side of the issue.

Amendment Drafts by the LDP

The Liberal Democratic Party (LDP), one of the most influential political parties in

Japan that has been in majority in the Diet for the most of the time since its 1955

establishment, has adopted several party platforms each of which lists "revision of the current

constitution" as a political motive. One of the earliest platforms, "The Duties of the Party" in

1955, points out as follows:

Although democracy and liberalism emphasized under the control of the Allied

occupation should be respected and upheld as a new principle for Japan, the initial objective

of the occupying forces of the Allies was mainly to demoralize the State; therefore, many of

the reforms implemented by the forces including those of the constitution, education and

other governmental systems have been unjustly suppressing the notion of the State and

patriotism of the people and excessively disuniting the national sovereignty.

In recent years the LDP has committed itself more to constitutional revision,

following its victory in the September 2005 general election of the representatives. Currently,

the party has released two versions of amendment drafts, one in 2005 and another in 2012.

2005 Draft

In August 2005, the then Japanese Prime Minister, Jun'ichirō Koizumi, proposed an

amendment to the constitution to increase Japan's Defence Forces' roles in international

affairs. A draft of the proposed constitution was released by the LDP on 22 November 2005

as part of the fiftieth anniversary of the party's founding. The proposed changes included:

New wording for the Preamble

First paragraph of Article 9, renouncing war, is retained. The second paragraph,

forbidding the maintenance of "land, sea, and air forces, as well as other war potential" is

replaced by an Article 9-2 which permits a "defence force", under control of the Prime

Minister, to defend the nation and which may participate in international activities. This new

section uses the term “gun”, "army" or "military", which has been avoided in the current

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constitution. It also adds an Article 76 about military courts; members of the JSDF are

currently tried as civilians by civilian courts.

Modified wording in Article 13, regarding respect for individual rights. That are

Changes in Article 20, which gives the state limited permission within "the scope of socially acceptable protocol" for "ethno-cultural practices". Changes Article 89 to permit corresponding state funding of religious institutions.

Changes to Articles 92 and 95, concerning local self-government and relations between local and national governments.

Changes to Article 96, reducing the vote requirement for constitutional amendments in the Diet from two-thirds to a simple majority. A national referendum would still be required.

This draft prompted debate, with strong opposition coming even from non-

governmental organisations of other countries, as well as established and newly formed

grassroots Japanese organisations, such as Save Article 9. Per the current constitution, a

proposal for constitutional changes must be passed by a two-thirds vote in the Diet, then be

put to a national referendum. However, there was in 2005 no legislation in place for such a

referendum.

Koizumi's successor Shinzō Abe vowed to push aggressively for Constitutional

revision. A major step toward this was getting legislation passed to allow for a national

referendum in April 2007. By that time there was little public support for changing the

Constitution, with a survey showing 34.5% of Japanese not wanting any changes, 44.5%

wanting no changes to Article 9, and 54.6% supporting the current interpretation on self-

defense. On the 60th anniversary of the Constitution, on 3 May 2007, thousands took to the

streets in support of Article 9. The Chief Cabinet secretary and other top government officials

interpreted the survey to mean that the public wanted a pacifist Constitution that renounces

war, and may need to be better informed about the details of the revision debate. The

legislation passed by parliament specifies that a referendum on Constitutional reform could

take place at the earliest in 2010, and would need approval from a majority of voters.

2012 Draft

On 27 April 2012, the LDP drafted a new version of amendment with an explanatory

booklet for general readers. The booklet states that the spirit of the amendment is to "make

the Constitution more suitable for Japan" by "drastically revising the translationese wording

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and the provisions based on the theory of natural human rights currently adopted in the

Constitution". The proposed changes include:

Preamble: In the LDP draft, the Preamble declares that Japan is reigned by the Emperor and

adopts the popular sovereignty and trias politica principles. The current Preamble refers to the

government as a trust of the people (implying the "natural rights codified into the constitution

by the social contract" model) and ensures people "the right to live in peace, free from fear

and want", but both mentions are deleted in the LDP draft.

Emperor: Overall, the LDP draft adopts a wording that sounds as though the Emperor has

greater power than under the current Constitution. The draft defines him as "the head of the

State" (Article 1). Compared to the current Constitution, he is exempted from "the obligation

to respect and uphold this Constitution" (Article 102).

Human rights: The LDP draft, as the accompanying booklet states, revises many of the

human right provisions currently adopted in the Constitution. The booklet describes the

reason of these changes as: "Human rights should have ground on the State's history, culture

and tradition" and "Several of the current Constitutional provisions are based on the Western-

European theory of natural human rights; such provisions therefore require to be changed."

The draft lists every instance of the basic rights as something that is entitled by the State – as

opposed to something that human beings inherently possess – as seen in the draft provisions

of "new human rights".

The current Constitution has the phrase "public welfare" in four articles (Articles 12,

13, 22 and 29) and states that any human right is subject to restriction when it "interferes with

the public welfare". The majority of legal professionals argue that the spirit of such restriction

against rights based on "public welfare" is to protect other people's rights from infringement.

In the LDP draft, every instance of the phrase "public welfare" is replaced with a new phrase:

"public interest and public order". The booklet describes the reason for this change as "to

enable the State to restrict human rights for the sake of purposes other than protecting

people's rights from infringement", but it remains unclear under what conditions the State can

restrict human rights. It also explains that what "public order" means is "order of society" and

its intention is not to prohibit the people from making an objection to the government, but it

explains nothing about "public interest".

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Provisions regarding the people's rights modified or added in the LDP draft include:

Individualism: The LDP draft replaces the word "individuals" with "persons" (Article 13).

This change reflects the draft authors' view that "excessive individualism" is an ethically

unacceptable thought.

Human rights and the supremacy of the constitution: The current constitution has

Article 97 at the beginning of the "Supreme Law" chapter, which stipulates that the

constitution guarantees the basic human rights to the people. The current, prevalent

interpretation of Article 97 is that this article describes the essential reason why this

constitution is the supreme law, which is the fact that the constitution's spirit is to guarantee

human rights. In the LDP draft, this article is deleted and the booklet does not explain any

reason for the deletion.

Freedom of assembly, association, speech and all other forms of expression: The LDP

draft adds a new paragraph on Article 21, which enables the State to prohibit the people from

performing expressions "for the purpose of interfering with public interest and public order".

The LDP explain that this change makes it easy for the State to take counter measures against

criminal organizations like Aum Shinrikyo.

Right to property: The LDP draft adds a new paragraph stating that the State shall define

intellectual property rights "for the sake of promotion of the people's intellectual creativity"

(Article 29).

Workers' rights: Workers have the right to participate in a labour union, but currently there

is a dispute on whether public officials should be entitled to this right. The LDP draft adds a

new paragraph to make it clear that public officials shall not enjoy this right or part thereof

(Article 28).

Freedom from torture and cruel punishments: Under the current constitution, torture and

cruel punishments are "absolutely forbidden", but the LDP draft deletes the word "absolutely"

(Article 36). The reason for this change is not presented in the booklet.

"New Human Rights": The LDP draft adds four provisions regarding the concept

collectively called "New Human Rights" that are Protection of privacy (Article 19-2),

accountability of the State (Article 21-2), environmental protection (Article 25-2), and rights

of crime victims (Article 25-4). However, the draft only requires the State to make a good

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faith effort to meet the stated goals and does not entitle the people to these "rights", as the

booklet points out.

Obligations of the people: The LDP draft can be characterized by its obligation clauses

imposed on the people. The current constitution lists three obligations: to work (Article 27),

to pay taxes as provided for by law (Article 30), and to have all boys and girls under their

protection receive ordinary education as provided for by law (Article 26). The LDP draft adds

six more:

The people must respect the national anthem and flag (Article 3).

The people must be conscious of the fact that there are responsibilities and obligations

in compensation for freedom and rights (Article 12).

The people must comply with the public interest and public order (Article 12).

The people must help one another among the members of a household (Article 24).

The people must obey commands from the State or the subordinate offices thereof in a

state of emergency (Article 99).

The people must uphold the constitution (Article 102).

Additionally, although defence of the national territory (Article 9-3) and environmental

protection (Article 25-2) are literally listed under the LDP draft as obligations of the State,

these provisions let the State call for the "cooperation with the people" to meet the goals

provided, effectively functioning as obligation clauses on the people's side.

Equality: The current constitution guarantees equality to citizens, prohibiting any

discrimination based on "race, creed, sex, social status or family origin". The LDP draft adds

"handicaps" (Articles 14 and 44) between "sex" and "social status", improving the equality

under the law. On the other hand, the sentence "No privilege shall accompany any award of

honor, decoration or any distinction" in the current paragraph (2) of Article 14 is deleted in

the LDP draft, which means that the State shall be allowed to grant "privilege" as part of

national awards. The reason for this change is not presented in the booklet.

National security: The LDP draft deletes the current provision declaring that armed forces

and other war potential shall never be maintained, and adds new Articles 9-2 and 9-3 stating

that the "National Defense Force" shall be set up and the Prime Minister shall be its

commander-in-chief. According to the paragraph (3) of the new Article 9-2, the National

Defense Force not only can defend the territory from a foreign attack and can participate in

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international peacekeeping operations, but also can operate to either maintain domestic public

order or to protect individual rights.

State of emergency: The LDP draft grants the Prime Minister the authority to declare a

"state of emergency" in a national emergency including foreign invasions, domestic

rebellions and natural disasters (Article 98). When in a state of emergency, the Cabinet can

enact orders that have the effect of the laws passed by the [National Diet] (Article 99).

Relaxation of separation of religion and the State: The LDP draft deletes the current

clause that prohibits the State from granting "political authority" to a religious organization,

and enables the State to perform religious acts itself within the scope of "social protocol or

ethno-cultural practices" (Article 20).

Political control over the courts: Unlike the current constitution, which guarantees that the

Supreme court judges shall not be dismissed unless the "review" procedure stipulated by the

constitution, the LDP draft enables the Diet to define this review procedure through a Diet-

enacted law, not the constitution (Article 79). The draft also states that salary of a judge – of

both the Supreme Court and inferior courts – could be decreased in the same manner as any

other kinds of public officials (Articles 79 and 80) by the subordinate offices of the State

(namely, the National Personnel Authority).

Further amendments: The LDP draft states that a simple majority in the two Houses shall

be adequate for a motion for constitutional amendment (Article 96). An actual amendment

shall still require a national referendum, but a simple majority in "the number of valid votes

actually cast", as opposed to "the number of a qualified voters" or "the number of votes",

shall enact the amendment (Article 96).

Model Questions

1. Write a note on the genesis of the 1947 Japanese constitution.

2. Discuss the important aspects of Article 9 of the Japanese constitution.

3. Explain the individual rights and duties accorded to the Japanese citizens.

4. Explain the role of the Emperor within the constitution.

5. Write a note on the powers and functions of the Prime Minister

6. Explain the qualification, election and functions of both the houses of the parliament Diet.

7. Discuss the structure, powers and functions of the Judiciary

UNIT V

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5.1. CHINA: An Overview

The Constitution of the People's Republic of China is nominally the supreme law

within the People's Republic of China. The current version was adopted by the 5th National

People's Congress on December 4, 1982, with further revisions in 1988, 1993, 1999, 2004

and 2018. Three previous state constitutions—those of 1954, 1975, and 1978—were

superseded in turn. In addition, changing Constitutional conventions have led to significant

changes in the structure of Chinese government in the absence of changes in the text of the

Constitution.

Learning Objectives

The aim of this unit is to explain the constitutional system in China and its

governance, and the party structure and it supremacy in all walks of life in China.

After studying this unit, you will be able to:

Explain the salient features of Chinese constitution

Elaborate on the rights and duties of the Chinese citizen

Explain the powers and functions of the President

Describe the parliament system, National People’s Council and the Standing

Committee

Describe the Judicial System

Discuss about the structure and stature of the Chinese Communist Party

5.2. SALIENT FEATURES OF CHINESE CONSTITUTION

The draft of 1982 Constitution of China was prepared by the Central Committee of

the Communist Party of China after prolonged nationwide discussions spread over a span of 2

years. It was officially recognized by the National People Congress (NPC), which met in

December 1982. The draft of the Constitution adheres to four cardinal principles namely;

adherence to socialist road, to the people's democratic dictatorship, to, the leadership by the

Communist Party of China and by Marxism, Leninism and Mao Zedong thought. Chapter 1

of the Constitution of the People Republic of China (PRC) deals with general principles. It

has 32 articles in all Following are the main features of the Chinese Constitution. Following

are the salient features of Constitution of China.

A Written Document

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The Constitution of People Republic of China is written in nature. It is a brief

document containing 138 Articles, which comprises of four chapters. Though, it is brief yet it

lays down in sufficient detail. The political, social and economic objectives 'of the regime. It

deals not only with the structure of the state machinery but is also embodies a program for

future (Its preamble states the goals of the Communist regime in accordance with the basic

lines of the Communist Party of China (CPC). According to Article-I of Chinese constitution

People Republic of China (PRC) is a socialist state. The Socialist system is the basic system

of People Republic of China. No individual or organization is allowed to sabotage the

socialist system. This principle is based on the definite ideology of Marxism and Lenin as

interpreted by .Chinese socialist leader Mao.

Flexible Constitution

The China Constitution of 1982 is flexible. Article-64 of the constitution declares,

"Amendments to the constitution are to be propose by the standing committee of National

People Congress (NPC) and by more than I/5th of the deputies to the NPC and adopted the

majority vote of more than 2/3rd of all deputies to the Congress". Statutes and resolutions are

adopted by simple majority of the deputies of National People Congress. In comparison with

other rigid constitutions of the world the procedure of amendment in the Chinese Constitution

is easier. Thus the constitution is not rigid, but a flexible.

Unitary system

The 1982 Constitution like the previous ones (1954.1975.1978) provides for a unitary

system. It provides for the centralization of powers at the Centre. Though there are provinces

autonomous regimes and municipalities, but they are given powers by the Central

Government, which can be taken always whenever it is so desired.

People's Republic

Article-II of the Constitution says that all powers in People Republic of China belong

to the people, which are exercised through National People Congress and Local People's

Congress. The people administer the state affairs and manage their economic, social and

other affairs through various channels in various ways in accordance with law. The People

Republic of China is a state of people's democratic dictatorships led by the working class

based on allowance of workers and peasants and rallying all democratic classes and various

nationalities within the country.

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Democratic Centralism

The Article-III of the constitution lays down that the state organs of People Republic

of China apply the principle of democratic centralism. The National People at different levels

is instituted through democratic election and responsible to the people. All the state organs

are created by the people's congresses. The division of powers and functions between the

Centre and the local state organs is guided by the principle of giving full play to initiative and

enthusiasm of local authorities under the unified leadership of central authorities. The

government of the People Republic of China is a government of the People's Congress on the

principle of democratic centralism.

Communist Party of China (CPC)

Like the Soviet Russia, the political system of China is also characterized by one

party system i.e. the Communist Party of China (CPC) under the leadership of Mao Zedong

and Marxist and Leninist thought is the guiding and controlling force and agency (in China).

Though the Constitution does not emphatically and clearly declares the supreme position of

the Communist Party, yet in practice, the party exercises complete control over the machinery

of the government. The party occupies the position of permanently not only in the legislative

and executive but also to the judicial branch. Thus every organ of .the government is under its

control and nothing can be done either without its consent or against its will.

Unicameral Legislature

The constitution of the People Republic of China declares that there will be a

unicameral legislature to be known as National People's Congress (NPC). It is the highest

organ of the state power and the sole legislative assembly of China. It is repository of all

powers and authority in the country and people exercise their powers through it. Its deputies

are directly elected by the people.

Fundamental Rights and Duties

The Article 33-56 of Chapter II of the constitution give a detail description of the

fundamental rights and duties of the citizens. The individual's rights include right to vote,

freedom of religion, freedom of speech, freedom of press, freedom of assembly, freedom of

association, freedom of procession and of demonstration. The state also protects the right of

citizens and their lawfully earned income saving, house, property and also his right to inherit

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property. The important duties include to safeguard the unity of the country, to abide by the

laws of constitution, to defend the motherland and resist aggression, to perform

Public Interest

The state forbids any person to use his private property to the detriment of the public

interest. Again, it must be noted that in China, it is the government and in ultimate sense, the

Communist Party that wholly determines what that "Public Interest" is.

No Discrimination and Exploitation

The constitution of China declares that all nationalities are equal which a major

characteristic of Chinese constitution is. All types of discrimination or oppression with any

nationality and acts, which undermine the unity of the nationalities are prohibited. It also

disbands the exploitation of man by man or exploitation of men by state.

5.3. Fundamental Rights of Chinese Citizens

1. Right to Equality

Article 33 of the Constitution states that “all persons holding the nationality of the People’s

Republic of China are citizens of the country. They are equal before law and enjoy all

fundamental rights.” All are equally bound by the duties as specified by the Constitution and

law. As such, equality before law and equal entitlement of all to all rights and freedoms is a

salient feature of the Chinese Bill of Rights.

2. No Discrimination

All Chinese citizens are equal before law and there is no discrimination on the basis of

nationality, race, sex, occupation, family background, religious belief, education, property

status or length of residence.

3. Right to Work

Article 42 of 1982 Constitution declares that work is both the right and duty of the citizens.

The state has the responsibility to provide work wall as payment in lieu of work to all

citizens. The state has been called upon to provide employment to the people in accordance

with the principle of overall consideration.

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On the basis of increased production, the state is to gradually increase payment for

labour. “Every citizen is ensured food, clothing, shelter, primary education and decent

burial.”

In order to ensure the enjoyment of the right to work, the state provides necessary

vocational training to the citizens before they are employed. Using various channels, it

creates conditions for employment. No one is allowed to remain without work.

4. Right to Rest

Along with the right to work, the Constitution grants the right to rest. ‘Rest after

work’ is considered essential for socialist labour discipline and the goal of high production.

The state provides facilities for rest and recuperation of the working people and prescribes

working hours and vacations for workers and other staff.

5. Right to Retirement

The state prescribes by law the system of retirement for workers and staff in all

establishments. The livelihood for the retired persons is ensured by the state and society. The

earlier constitutions of China did not provide for retirement and a guaranteed livelihood for

the retired personnel.

6. Right to Material Assistance

Under Article 45 of the Constitution, the citizens have the right to material assistance

from the state and society during old age and when they are sick or suffer a disability. For

this purpose, the state ensures social insurance, social relief and medical and healthcare

services.

This Article also provides that the state and the society should provide help in making

arrangements for the work, livelihood and education of the blind, deaf and all other

handicapped citizens. Disabled soldiers are looked after by the state. Preferential treatment is

given to the families of military personnel, pension is provided to the families of the martyrs.

7. Social, Educational and Cultural Rights of the Chinese

The Constitution of 1982 provides several social, educational and cultural rights to the

citizens for enabling them to become fully qualified and learned citizens. Right to education

and freedom to engage in scientific research are available to all citizens.

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Primary level education is compulsory for all citizens. “No one is denied education

and no one can refuse education.” The state promotes all-round moral, intellectual and

physical development of the children and young people.

Citizens also enjoy the freedom to engage themselves in scientific research, literary

and artistic creation and other cultural pursuits. The state encourages and assists all creative

endeavors provided they are conducive to the interests of the people.

8. Equality between Men and Women

Women enjoy equal rights with men in all spheres of life—political, economic,

cultural and social, including family life. The state protects equality, rights and interests of

women. It applies the principle of equal pay for equal work for men and women alike, and

trains and selects cadres from among them.

9. Protection of Marriage and Family

Right to marriage and family life has been granted to all the citizens. Marriage, the

family and the mother and the children enjoy state protection. Article 49 of the 1982

Constitution prohibits violation of the freedom of marriage and maltreatment of old people,

women and children.

10. Civil Rights and Personal Freedoms of the Chinese Citizens

The 1982 Constitution grants a number of civil rights and personal freedoms to the

citizens. The people of China have the right to freedom of speech, freedom of the press,

freedom of assembly, freedom of association and freedom of procession and demonstration.

The Constitution promises personal freedom to all citizens. Article 37 guarantees “the

freedom of the persons of citizens.” Arbitrary arrests cannot be made. The freedom of person

is inviolable. No one can be arrested except with the approval of a competent authority.

Unlawful detention or deprivation is prohibited. Searches can be carried out only with the

permission of the competent organ or functionary of the state.

Article 38 of the 1982 Constitution declares that the personal dignity of the citizens is

inviolable and prohibits insults, libel, false charging or ‘frame up’s’ directed against citizens

by any means or form. Article 39 guarantees the inviolability of the home of citizens.

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The law protects the freedom and privacy of correspondence of the citizens. No person or

organisation is allowed to violate the privacy of correspondence under any circumstance.

However, in the interest of the security of the state or in cases of investigation into criminal

offences, certain organs of the state such as procurators’ offices are permitted to censor

correspondence according to the procedure prescribed by law.

11. Right to Freedom of Religious Belief

The citizens of the Peoples Republic of China enjoy the Freedom of Religious Belief.

Article 36 declares that no state organ, public organisation or individual may compel citizens

to believe in, or not to believe in any religion. Nor may they discriminate against citizens who

believe in, or do not believe in any religion.

The state protects normal religious activities. But no one is permitted to misuse

religious freedom. No one can use religion for engaging in activities that disrupt public order,

impair the health of the citizens or interfere with the educational system of the state.

Religious bodies and affairs are not subject to any foreign control or domination.

12. Political Rights

All citizens who have attained the age of 18 years or above have the right to vote and

seek election to any office of a state organ. This political right is available to all without any

discrimination on the basis of nationality, race, sex, education, occupation, property, status or

length of residence.

Only persons specifically debarred by law from exercising the political rights

constitute an exception to the above principle. Article 35 does not specify grounds of

ineligibility of a particular category of persons. In practice, it includes those persons who are

opposed to the Marxist-Leninist-Maoist ideas.

Article 41 gives to the citizens the right to criticize and make suggestions to any state

organ or functionary. The citizens can report against any person or organ which violates a law

or is considered guilty of dereliction of duty. The concerned authorities to whom the

complaint is made are required to deal with the complaint in a responsible manner.

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13. Rights of Chinese Nationals

Under its Article 50, the Constitution protects the legitimate rights and interests of the

Chinese nationals living abroad and lawful rights and interests of returned overseas Chinese

as well as of the family members of the Chinese nationals living abroad.

5.4. Fundamental Duties of Chinese Citizens

Along with these Fundamental Rights, the Constitution of 1982 also lists the

fundamental duties of the Chinese citizens. The Constitution subscribes to the view that there

can be no rights without duties. As such, while explaining a particular right of the citizens,

the constitution simultaneously states their duties also. Every citizen enjoys his fundamental

rights and freedoms only when he performs his fundamental duties.

1. Duty to Follow the Constitution

The foremost fundamental duty of a Chinese citizen is to abide by the Constitution

and the law and to respect the rights of his fellow citizens. Article 53 enjoins on all citizens

“to abide by the Constitution and the law, keep state secrets, protect public property and

observe labour discipline and public order and respect social ethics.” No organisation or

individual is above the constitution and the law.

All state organs, the armed forces, all political parties and public organisations and all

enterprises and undertakings must abide by the constitution. The Constitution is the supreme

law of the land and it is the duty of everyone to uphold the dignity of the Constitution and

ensure its implementation.

2. Duty to Safeguard the Unity of the Nation

It is one of the foremost duties of the citizens of China to safeguard the unity of the

country and the unity of all its nationalities. It is the responsibility of all the citizens to help

the state in preserving the unity of all nationalities and in suppressing treasonable and other

counterrevolutionary activities, and activities against public order and security.

3. Duty to Safeguard the Honour of China

To safeguard the security, honour and interests of the motherland is the sacred duty of

all the citizens. They are not to get involved, in acts detrimental to the security, honour and

interests of the motherland. The June 1989 military crack down upon the Chinese students

and their subsequent trials were justified by the state authorities in the name of securing the

unity, integrity, security and interests of the motherland.

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4. Duty to Perform Military Service and Defend the Motherland

It is the duty of every citizen of the People’s Republic of China to defend the

motherland and resist aggression. All citizens have the duty to undergo military training and

join the militia in accordance with the law. In other words, the 1982 Constitution provides for

compulsory military training and service for all able-bodied citizens who are young and

within the age range specified by law.

5. Duty to Pay Taxes

It is a constitutional duty of all citizens to pay all taxes punctually and regularly, and

to enable the government to perform its functions adequately, efficiently and effectively. A

tax is a compulsory contribution of all citizens towards national reconstruction and

development.

6. Other Specific Duties of a Chinese Citizen

Several specific duties of the Chinese citizens have been mentioned in the Articles

which explain their rights. Under Article 42, the Chinese citizens have been assigned the duty

to work. “Work is the glorious duty of every able bodied citizen.”

Article 46 makes it the duty of every citizen to receive education. Married Chinese

couples have been assigned the duty to practice family planning and help the state in

controlling the growth of population. Further, parents have the duty to rear and educate their

minor children.

It is the duty of the adult children to look after and help their parents. Workers have

the duty to do their work efficiently and follow the labour discipline. The 1982 Constitution

of China incorporates a detailed a Bill of Rights and Duties of the citizens. It gives added

importance to the rights and duties.

It gives their description in a total of 24 Articles whereas under the 1978 Constitution

only 16 Articles had been devoted to the fundamental rights. The Bill of Rights enshrined in

the present Constitution includes several new rights and freedoms which were not there in the

Bill of Rights of the 1978 Constitution.

5.5. EXECUTIVE PRESIDENT OF THE CHINESE REPUBLIC

The office of the President is a prestigious one. The President is the Head of the State.

The Constitution of 1982 restores powers and functions of the President of Peoples Republic

of China and recognizes him as the Head of the State. But he is not the real executive like the

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American President but only a ceremonial Head. He can be compared with the Indian

President or King/Queen of England. Under the country's constitution, the presidency is a

largely ceremonial office with limited powers. However, since 1993, as a matter of

convention, the presidency has been held simultaneously by the General Secretary of the

Communist Party of China, the top leader in the one party system. The presidency is

officially regarded as an institution of the state rather than an administrative post;

theoretically, the President serves at the pleasure of the National People's Congress, the

legislature, and is not legally vested to take executive action on its own prerogative

Election and Tenure

He is elected by the National People’s Congress for a term of five years. The Constitution

lays down that no person can serve or remain in power as president for more than two

consecutive terms and this has now been amended. When the office of President falls vacant,

the Vice-President becomes the president. But in case of absence of both the president and

the Vice-President, the Chairman of the Standing Committee becomes the acting-President

until the new President is elected. The President is elected by the National People's Congress,

China's highest state body, which also has the power to remove the President and other state

officers from office. Elections and removals are decided by a simple majority vote.

The Constitution also provides for the office of the Vice-President of the Republic to assist

the President in his function. The Vice-President “may exercise such parts of the functions

and powers of the president as may be deputed by the President.” He is, thus an agent or

deputy of the President with no original powers. He exercises the powers of the president

only when he succeeds to the presidency. When the office of the President falls vacant, the

Vice-President succeeds to the office of the President. In case the office of the Vice-

President falls vacant, the National People’s Congress elects a new Vice- President to fill-up

the vacancy.

Powers and functions of the President

The President performs several ceremonial functions as the head of the state. The President

has the following functions to perform:

1. Appoints or removes the Premier, the Deputy Premier, State Councillors, Ministers

and other members of the Cabinet, high officials of the State, Auditor General and

Secretary General of the State Council. The President can exercise this power on the

advice of the National People’s Congress

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2. Appoints or recalls Chinese ambassadors and other diplomatic agents in foreign

countries. The president receives the ambassadors of foreign countries in China upon

the recommendations of the Standing Committee of the National People’s Congress

3. Confers state medals and titles of honour on the people

4. Proclaims martial law, a state of war and issues mobilization order on the

recommendation of the Standing Committee of the National People’s Congress

5. Proclaims general pardon

6. Rectifies, abrogates treaties concluded between china and foreign countries

7. Represents People’s Republic of China in foreign countries

8. Seek the assistance of the vice-president in discharging his power

9. Recommends the name of the person who is to be appointed as the Premier of the

People’s Republic China

From the above mentioned powers and functions of the President, it is quite clear that

powers assigned to him are nominal in nature. The President acts on decisions already arrived

at by the National People’s Congress or its Standing Committee. So, the president is the

ceremonial head of the state. The present Constitution of 1982 decreases powers of the

President. Now he is not the commander of the armed forces. Similarly he is not the president

of the National Defence Council. Yet office of the president is a prestigious one.

5.5.1. THE STATE COUNCIL

The State Council of China is described as the Central Government of China. It is the centre

for executive decision making. Under the new Constitution, the State Council has replaced

the Government Administration Council which existed before 1954. The State Council is the

biggest organ of state administration.

Composition

It is composed of the Premier, number of Vice- Premiers, the Ministers, heads of

commissions and the Secretary General. The Premier is appointed by the National People’s

Congress upon the recommendation of the central committee of the Communist Party. The

other members of the State Council are appointed by the National People’s Congress upon

the recommendation of the premier.

The State Council is responsible and accountable to the National People’s Congress or

when the National People’s Congress is not in session to its Standing Committee. Under the

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leadership of Premier, the functions of the State Council are managed. The State Council

meets in a monthly plenary session.


As a highest executive body of the People’s Republic of China, the State Council exercises

the following powers:

1. It formulates administrative measures, issues decisions and orders and ensures their

execution in accordance with the constitution, laws and decrees

2. Coordinates work of ministries and commissions

3. Submits report to the National People’s Congress on law or other matters

4. Maintains public order and safeguards the rights of the citizens

5. Revises or annuls inappropriate decisions and orders issued by local administrative

organs of the state

6. Directs the conduct of foreign affairs

7. Guides the building up of the defence forces

8. Appoints or removes the administrative personnel according to the provision of law

9. Puts into effect the national economic plans and the state budget

10. Directs and administers economic affairs and urban and rural development, affairs of

education, science, culture, public health, physical culture and family planning

11. Protects the legitimate rights and interest of Chinese nationals residing abroad and

within the country

12. Approves the geographic division of provinces, autonomous regions and

municipalities directly under the central government, and approves the prefectures,

counties, autonomous counties and cities

13. Examines and decides on the size of administrative organs and, in accordance with the

law, appoints removes and trains administrative officers, appraises their work and

rewards and punishes them

14. Establishes an auditing body to supervise the audit of revenue and expenditure of all

departments under the state council and of the local governments at different levels

and those of state financial and monetary organizations and undertakings

15. Finally, the State Council may exercise such other functions and powers as may be

vested in it by the National People’s Congress or its Standing Committee.

Thus, the State Council is the highest administrative organ of china. Its powers and functions

are most significant. It is responsible to the National People’s Congress or to the Standing

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Committee when National People’s Congress is not in session. It performs important

governmental functions at the top level. So it is the centre of direction for the People’s

Republic of China.

5.6. THE CHINESE PARLIAMENT

Under China's Constitution, the National People's Congress is structured as a

unicameral legislature, with the de jure power to legislate, oversee the operations of the

government, the supreme court, the state committee of Supervisory, the supreme

procuratorate and the central military commission, and elect the major officers of state. The

NPC is the highest organ of state power and the national legislature of the People's Republic

of China. With 2,980 members in 2018, it is the largest parliamentary body in the world.

5.6.1. NATIONAL PEOPLE’S CONGRESS

The structure of government of the People’s Republic of China consists of the

National People’s Congress, the Standing Committee, the President and the Vice-President,

the State Council and the Premier. Since the Chinese Constitution provides a unicameral

legislature, the National People’s Congress is the highest organ of state power (Art.20).

Article 22 of the Constitution describes it as “the only legislative body in the country.” It is

the largest legislative body in the country.” It is the largest legislature in the world.

Composition

The Constitution is silent about the composition of the Congress and the mode of election of

its members who are known as deputies. In March 1998, its membership consisted of 2979

deputies. After the last elections held in March 2008, there are presently 2987 deputies. The

strength and the mode of election is to be prescribed by law.

Tenure

It is elected for a period of five years. Elections are orgainsed and conducted by the Standing

Committee. .Elections to the new National People’s Congress must be completed two months

before the expiry of the tenure of the old National People’s Congress. Under exceptional

circumstances, the Standing Committee by a two-third majority can put off the elections. In

such a case, the old National People’s Congress is to continue. Thus its tenure is extended.

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The new National People’s Congress is to be elected within one year after the end of the

exceptional circumstances.

Sessions

At least one session of the National People’s Congress is to be convened in a year by the

Standing Committee. It may convene more sessions either on its own initiative or on the

proposal of more than one-fifth of the total membership of the National People’s Congress.

Till 1982, the National People’s Congress exercised all powers of the People’s Republic of

China and was the sole legislative body of the country. But, the new constitution of 1982

created a permanent working body within the National People’s Congress named as the

Standing Committee and both the National People’s Congress and the Standing Committee

has been entrusted with the legislative power of the state.

Election

The Chinese Constitution has prescribed the manner of election of the deputies of the

National People’s Congress. The deputies are elected by the provinces, autonomous regions,

municipalities directly under the Central Government and the armed forces of China. All

citizens of China of 18 years of age or above have the right to cast vote and stand for election

regardless of nationality, race, sex, occupation, family background, religious belief, property

status, education, religious belief or length of residence. All the minority nationalities are

entitled to seek representation.

Powers and functions of the National People’s Congress:

1. The National People’s Congress is the sole law-making body of the country. All laws

concerning criminal offences, civil affairs and the State organs are enacted and

amended by the National People’s Congress. The power to legislate on subjects other

than those mentioned above is exercised by the Standing Committee.

2. It supervises the enforcement of the constitution so that every organ of State authority

upholds the dignity of the Constitution.

3. It can amend the Constitution but only by two-third majority votes of all the deputies.

4. It has budgetary power by which it can decide on national economic plans. It

examines and approves the state budget and the financial report.

5. It decides on general amnesties. It deals with questions of war and peace.

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6. The National People’s Congress elects the President, the Vice-President of the

People’s Republic of China, the Premier of China and on the recommendation of the

Premier, other members of the State Council, the members of the State Council, the

members of the Standing Committee, the Auditor General and Secretary General of

the State Council and the Chairman of the Central Military Commission. The National

People’s Congress elects the President of the Supreme People’s Court and the

Procurator General of the Supreme People’s Procuratorate.

7. The Officials of the State President, the Vice-President of the People’s Republic of

China, the Premier of China, the members of the State Council, the members of the

Standing Committee, the Auditor General and Secretary General of the State Council

and the Chairman and members of the Central Military Commission etc., in fact all

officials who are elected/appointed by the National People’s Congress can be

removed by it.

8. The National People’s Congress has some other power also. It can take decision on

controversial matters like war, peace, armed rebellion and in internal disturbances.

But when the congress is not in session then the Standing Committee can exercise

these powers.

9. The National People’s Congress examines and approves the plan for the national and

social development, and the state budget, and the reports on their respective

implementation. It can alter or annul inappropriate decisions of the Standing

Committee.

10. The National People’s Congress approves the establishment of provinces, autonomous

regions and municipalities directly under the central government and decides on the

establishment of special administrative regions and the systems to be instituted there.

11. The Congress establishes special committee which works under the direction of the

Standing Committee when the Congress is not in session. The special committees

examine, discuss and draw up relevant bills and draft resolutions under the direction

of the congress and its Standing Committee. As a highest organ of state power,

congress can exercise enormous power and authority and such power and authority

are not bound by any limitation.

12. Besides the National People’s Congress has administrative power. It is the highest

organ of the state power. The State Council and members of Standing Committee are

responsible to the National People’s Congress. The Standing Committee is

constitutionally bound to submit a report of all its actions and activities to the

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National People’s Congress. These are the powers and functions of the National

People’s Congress.

5.7. STANDING COMMITTEE OF THE NATIONAL PEOPLE’S CONGRESS

One of the distinctive institutions of the Chinese political system is the Standing

Committee which is the permanent working body of the National People’s Congress. It is

responsible for all its acts to the National People’s Congress and reports to it. Since the

National People’s Congress is a numerous body and meets only once in a year for short time

therefore, to carry on its functions, the Constitution has provided for a Standing Committee

with constitutional status.

Composition

It is composed of the Chairman, the Vice-Chairman, the Secretary General and other

members. They are elected by the National People’s Congress at its first session. The

Chairman presides over the meetings of the Standing Committee. It usually meets twice in a

month.

Tenure

The term of office of the Standing Committee is five years, but the National People’s

Congress has the power to recall them from office. The new Constitution of 1982 has limited

the tenure of important state functionaries for two consecutive terms and accordingly the

Chairman and the Vice-Chairman of the Standing Committee cannot serve for more than two

consecutive terms. The Standing Committee exercises its functions and powers until a new

Standing Committee is elected by the succeeding National People’s Congress.

Powers and functions of the Standing Committee:

The Standing Committee has wide and exhaustive powers and functions including legislative,

electoral, executive and judicial functions. Such functions are:

To conduct the election of deputies to the National People’s

To convene the session of the National People’s Congress;

To adopt decrees;

To interpret the laws, Constitution;

To supervise the work of the State Council, the Supreme People’s Court and the

Supreme People’s Procuratorate;

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To annul decisions and orders of the State Council in case they contravene the

Constitution, laws or decrees;

To appoint or remove Vice-President, judges of the Supreme People’s Court;

8. To appoint or remove the Deputy-Chief Procurators etc. ;

To enact or amend on residuary matters which are not mentioned in Art- 62(3) of the

Constitution;

To propose amendments to the Constitution;

To enact partial supplements and amendments to statues enacted by the National

People’s Congress, when the Congress is not in session;

To examine and approve partial adjustments to the plan for national economic and

social development and to the state budget when the congress is not in session;

To annul local regulations or decisions of organs of State power of provinces,

autonomous regions and municipalities if such regulations or decisions contravene the

constitutional statutes or administrative rules and regulations of the State Council;

To institute system of titles and ranks for military and diplomatic personnel

To institute State medals and titles of honour;

To decide the appointment and recall of envoys accredited to foreign state;

To decide on the ratification and abrogation of treaties and important agreements

concluded with foreign states.

To decide on the proclamation of war and peace when National People’s Congress is

not in session;

To decide on granting of pardons;

To supervise the work of the State Council, the Central Military Commission, the

Supreme People’s Court and the Supreme People’s Procuratorate. An analysis of the

powers and functions of the Standing Committee reveals that it is a body performing

wide-ranging functions when the National People’s Congress is not in session. The

Standing Committee occupies a pivotal role in Chinese constitutional system.

The National People’s Congress which is the only chamber of the Chinese unicameral

legislature, exercises sole legislative power and the State Council (executive) is responsible

and accountable to the National People’s Congress or to the Standing Committee, when the

National People’s Congress is not in session. The Standing Committee is the creation of the

National People’s Congress and it is a permanent working body with constitutional status.

Moreover, we shall also read about the executive organs of the Chinese government, namely,

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the President, the State Council, and the Premier. Another important component of the

organisational structure of the Chinese government is the Central Military Commission.

Accordingly, we shall also read about the Central Military Commission which in charge of

the Chinese armed forces.

The State Council of China is described as the Central Government of China. The

Chinese Premier, like the British and Indian Prime Ministers, is the real execute head of the

government. The National People’s Congress and its permanent working body, namely, the

Standing Committee exercises sole legislative power. The State Council is the Central

Government of China. It is responsible and accountable to the National People’s Congress or

when the National People’s Congress is not in session to its Standing Committee. Moreover,

we have also read about the the President and the Premier of the People’s Republic of China

and seen that the President of China is only a ceremonial Head of State while the real

executive head is the Premier who heads the State Council. Finally, we have read about the

Central Military Commission which manages the armed forces and is directly under the

control of the Chinese Communist Party.

5.8. JUDICIAL SYSTEM IN CHINA

The judicial branch, organized under the constitution and law, is one of five organs of

power elected by the People's Congress, in the People's Republic of China. According to

constitution, the court system is to exercise judicial power independently and free of

interference from administrative organs, public organizations, and individuals. Though the

Party's Political and Legal Affairs Commissions set up to coordinate political and legal affairs

have some influence over the court system.

Seven Salient Features of the Chinese Judicial System

1. Judiciary is a Part of the Administration

Like all other socialist systems, Judiciary in China is not an independent institution. It

is a branch of state administration. There is no such thing as separation of the judiciary from

the executive in China.

2. A Committed Judiciary

The Judiciary in China has been assigned a role in the development of the socialist

system. It is machinery for easy and speedy decision of cases, and for educating the citizens

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in the direction of the socialist system. Like all other government departments, the aim of the

Judiciary is to uphold and strengthen the socialist system in a spirit of dedication to the

socialist ideology.

It is the duty of the courts in China to inculcate in the citizens the spirit of devotion to

the cause of socialism, to observe the norms of socialism, to abide by the Constitution and the

Law, to safeguard the unity and integrity of the nation, and to help the state in suppressing

counter revolutionaries, reactionaries and other enemies of the socialist system.

3. System of People’s Justice

The courts in China administer people’s justice i.e. justice in the interest of the socialist

aspirations of the people. This principle is opposed to the principle of individual justice.

Under the latter, the courts protect the rights and personal freedoms of the individual vis-a-vis

the state. However, under the former, the courts protect the collective interests of the people

vis-a-vis the individual interests.

4. System of People’s Assessors

The People’s courts hear the cases. Representatives of the people participate in the

administration of justice. In cases pertaining to counterrevolutionary crimes and also in

criminal cases, the masses are drawn in for discussions and suggestions.

All citizens who have the right to vote and contest elections are eligible to be elected

as people’s assessors. Their tenures and methods of election are decided by the Ministry of

Justice. These assessors enjoy equal rights with the judges of the courts in which they work.

5. Elected Courts

Chinese courts are elected by the congresses i.e. by social assemblies at different levels.

These are responsible before their respective congresses. The judges report to the congress

which elects them. The congress can also remove a judge.

6. Use of Different Languages by Various Nationalities

All the citizens of all nationalities possess the right to use their own spoken and

written languages in court proceedings.

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7. System of Procuratorate

The courts in China function in close cooperation with the people’s procuratorates

which are at work at different levels. The procuratorates work under the Supreme People’s

Procuratorate. These are instruments of state control over all the courts and government

departments.

Thus, the Judiciary in China is neither an independent nor a powerful part of the

constitutional system. It works as a system for eliminating the enemies of socialism. The

judges are committed to the ideology of the Communist Party and their foremost task is to

punish all those who work, directly or indirectly, against the interests and ideology of the

Communist Party of China.

People's Courts

The people's courts are judicial organs exercising judicial power on behalf of the

states. According to the Constitution and the Organic Law of the People's Courts of 1979 as

amended in 1983, China practices a system of courts characterized by " four levels and two

instance of trials". The judicial authority of the PRC is exercised by the following people's

courts: local people's courts at various levels; military courts and other special people's courts

and the Supreme People's Courts. The local people's courts are divided into basic people's

courts, intermediate people's courts and higher people's courts.

In the administration of adjudication, the people's courts adopt the system whereby a

case should be finally decided after two trials. This means, first, a judgment or orders of a

first instance must come from a local people's court, and a part may bring an appeal only

once to the people's court at the next higher level. The people's procuratorate may present a

protest to the people's court at the next higher level. Secondly, judgment or orders of the first

instance of the local people's courts at various levels become legally effective if, within the

prescribed period for appeal, no party makes an appeal. Thirdly, judgments and orders of the

court of the second instance shall be seen as final decisions of the case. However, any

judgments and orders rendered by the Supreme People's Courts as the court of the first

instance shall become immediately legally effective.

In accordance with article of the Organic Law, "People's courts at all levels set up

judicial committees" with the task of summing up judicial experience and discussing

important or difficult cases and other issues relating to judicial work. Members of judicial

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committees of local people's courts at various levels are appointed and removed by the

standing committee of the people's congress at the corresponding levels, upon the

recommendation of the presidents of these courts. The presidents of the people's courts

preside over the meeting of judicial committees at all levels; the chief procurators of the

people's procuratorates at the corresponding levels may attend the meetings without voting

rights.

Within each court, there are usually several divisions, such as civil, economic,

criminal, administrative and enforcement divisions. A court has one president and several

vice-presidents, a division has one chief and several associate chiefs. Each court also has a

judicial committee that is composed of the presidents, division chiefs and experienced judges.

The members of the committee are appointed by the standing committee of the courts at the

corresponding level. The judicial committee is the most authoritative body in a court, which

is responsible for discussing important or difficult cases, making directions concerning other

judicial matters and reviewing and summing up judicial experiences. Its direction shall be

followed by judges and collegial panels. In case of differing opinions, the majority's opinions

shall be adopted.

Collegial panels are the basic units in each court. They are not permanent bodies but

organized to adjudicate individual cases. A collegial panel is composed of three to seven

judges, the number of which must be odd. Simple civil cases, economic cases, minor criminal

cases and cases that are otherwise provided for in law can be tried by a single judge. Cases of

second trial are heard by a collegial panel of three to five judges. The president judge of the

panel is appointed by the president of the court or the division chief. When a president or a

division chief participates in a trial, he/she shall be the presiding judge of the panel.

The standing committee of local people's congresses may select people's assessors and

provide a list of them to the courts at the corresponding level. Courts may select people's

assessors to participate in case of first trial. Collegial panels for the first trial may be

composed of judges and people's assessors or of judges exclusively. The people's assessors

system is different from the jury system in common law jurisdiction, in that the people's

assessors are not selected on the basis of citizenship, they function as judges, and have the

authority to decide both issues of facts and law.

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The trial process is the crucial part of adjudication and is greatly influenced by the

civil law jurisdiction in which the judge is the dominant party in conducting a trial. Recently,

"the reform of adjudication format" has tried to bring an adversarial pattern into the Chinese

adjudication process. The revised Criminal Procedure Law will also further the reform.

According to law, each case shall have at most two trials, which means that litigants to a case

and their legal representatives who challenge the judgments made by a local court in the trial

of first instance have the right to appeal the case to the next higher level court only once.

Once an appeal is filed, the next higher court must try the case again. The judgment of the

second trial shall be final and cannot be appealed. However, the parties to litigation may

challenge the final decision or the effective decision through the trial supervision procedure.

They may appeal to the appellate court or the higher court. After reviewing the complaint, the

president may ask the judicial committee to make a decision to accept or reject the appeal.

Under no circumstances does the re-trial initiated by trial supervision procedure suspend the

enforcement of the effective judgment that is challenged.

The Constitution and the Organic Law of Courts allow the people's courts to exercise

state judicial power independently, free from interference from any organizations or

individuals. The word "court" is of pivotal importance and, according to the authoritative

explanation, means that the individual judges do not have the judicial power but the courts

where the judges perform their duties do. The collegial panels are the trial units not the

individual judges and the judgments by the collegial panels are made in the name of the

courts. Therefore, the independence power of adjudication is vested in courts and not in

judges. Based on this explanation, presidents and division chief may have a legitimate right to

review and suggest changes in draft judgments prepared by collegial panels. This practice

constitutes an internal interference with the independent adjudication of collegial panels and,

strictly speaking, has no direct legal grounds except for the judicial committees. If a case is

considered complicated or important, the final decision may be concluded by the judicial

committee of a court rather than the designated collegial panel. This mechanism is said to be

designated to safeguard the correct and impartial exercise of judicial powers, but in practice it

may also be used as a device by some committee members to interfere improperly with the

collegial panel's function and to provide favors to one side of a litigation.

The Supreme People's Court

The Supreme People's Court is the highest judicial organ of the State. The president of

the Supreme People's Court is elected by the NPC and its standing committee. His term of

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office is five years and he may serve for no more than two consecutive terms. The NPC

standing committee appoints or dismisses vice-presidents, head and associate heads of

divisions, and judges.

The Supreme People's Court has a criminal division, a civil division, and an economic

division. It may have such other divisions, as it deems necessary. Generally, it has

jurisdiction over the following cases:

Cases of first instance assigned by laws and other cases that it considers it should try

itself;

Appealed and protested cases against judgments and other orders of higher people's

courts and special people's courts;

Protested cases filed by the Supreme People's Procuratorate.

The Supreme People's Court supervises the work of the local people's courts at various

levels as well as the special courts. "The Supreme People's court give interpretation on

questions concerning specific application of laws and decrees in judicial proceedings." In

reality, the practice of interpreting laws and decrees by the Supreme People's Court has

developed in recent years to an extent that is called "judicial legislation". This was not

previously defined in the Constitutional Law. However, the legislation does require guidance

in order to fill gaps and to solve conflicts and some vagueness among the laws so that

effective enforcement can be carried out by the judicial branch.

The Higher People's Courts

The Higher People's Courts are courts of provinces, autonomous regions and

municipalities directly under the Central Government. The internal structure is almost the

same as that of the Supreme People's Court according to the definition of the organic Law.

A higher people's court deals with cases of the first instance assigned by laws and decrees,

cases of the first instance transferred from people's courts at the next lower level, cases of

appeals and of protests lodged against judgments and orders of people's courts at the next

lower level, and cases of protests lodged by people's procuratorates.

The Intermediate People's Courts

They are the courts established in capitals or prefectures in the provincial level. The

scope of jurisdiction by an intermediate people's court covers cases of first instance assigned

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by laws and decrees, cases of first instance transferred from the basic people's courts, and

appealed and protested cases from the lower court.

The Basic People's Courts

The basic courts, as the lowest level, are normally located at the county, municipal

districts and autonomous counties. A basic people's court may set up a number of people's

tribunal according to the conditions of the locality, population and cases involved. A people's

tribunal is a component of the basic people's court, and its judgments and orders are

considered as judgments and orders of the basic people's court with the same legal effects. In

practice, a tribunal of this nature is often set up in big town or townships where there is a

concentrated population. As defined in the Organic Law, the basic people's court adjudicates

all criminal and civil cases of the first instance except where the law provides otherwise.

Besides trying cases, a basic people's court is also responsible for settling civil disputes,

handling minor criminal cases that do not require formal handling, and directing the work of

the people's mediation committees.

The Special Courts

The special courts include military courts, railway courts and maritime courts. The

military court that is established within the PLA is in charge of hearing criminal cases

involving servicemen. This is a relatively closed system. The railway and transport court

deals with criminal cases and economic disputes relating to railways and transportation.

Five maritime courts have been established by the Supreme People's Court at the port

cities of Guangzhou, Shanghai, Qingdao, Tianjin and Dalian. These courts have jurisdiction

over maritime cases and maritime trade cases of the first instance, including any other

disputes of this category taking place between Chinese and foreign citizens, organizations,

and enterprises. Nevertheless, they have no jurisdiction over criminal cases and other civil

cases belonging to the ordinary courts. The higher people's court in the locality where a

maritime court is located shall have jurisdiction over appeals against the judgment and orders

of the maritime court.

5.9. PEOPLE'S PROCURATORATES

Under Art.129, China's people's procuratorates are "State organs for legal

supervision". To define the task, functions and organizations of the people's procuratorates,

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the Standing Committee of the sixth NPC adopted at its second session on Sep.2, 1983 the

Organic Law of the People's Procuratorates.

Art.5 of the Organic Law states the functions and powers of the people's procuratorates at all

levels as the following:

To exercise procuratorial authority over cases of treason, cases involving acts to

dismember the state and other major criminal cases severely impeding the unified

enforcement of state policies, laws, decrees and administrative orders

To conduct investigation of criminal cases handled directly by themselves;

To review cases investigated by public security organs and determine whether to

approve arrest, and to prosecute or to exempt from prosecution;

To exercise supervision over the investigative activities of public security organs to

determine whether their activities conform to the law;

To initiate public prosecutions of criminal cases and support such prosecutions;

To exercise supervision over the judicial activities of people's courts to ensure they

conform to the law;

To exercise supervision over the execution of judgments and orders in criminal cases

and over the activities of prisons, detention houses and organs in charge of

transformation through labor to ensure such executions and activities conform to the

law.

According to the constitution, within the judicial branch, the higher level courts

supervise the work of the lower courts and the courts at various levels are responsible

to the respective people's congresses that created them. But within the structure of the

procuratorate, the higher level procuratorates direct the work of those at lower levels.

The procuratorial organs at lower level are responsible to both the corresponding

people's congresses that created them and the people's procuratorates at higher levels.

We will examine the structure of the courts that are the most important in terms of

settling legal disputes.

The Supreme People's Procuratorate is set up at central level. The local people's

procuratorates are divided into three levels and include people's procuratorates of

provinces, autonomous regions and municipalities directly under the Central

Government; branches of the people's procuratorates in prefectures and cities directly

under the provincial governments; and people's procuratorates of counties, cities,

autonomous counties and municipal districts.

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Procuratorial committees are created inside the people's procuratorates at different

level. According to Article 3 of the Organic Law, "[t]he procuratorial committee shall

apply the system of democratic centralism and, under the direction of the chief

procurator, hold discussions and make decisions on important cases and other major

issues."

People's procuratorates at levels shall have a chief procurator, a number of deputy

chief procurators and procurators. The chief procurators exercise unified leadership

over the work of the procuratorates. The term of office of the chief procurators shall

be the same as that of the people's congresses at corresponding levels.

The Supreme People's Procuratorate

The Supreme People's Procuratorate or "Prosecutor General's Office" is the highest

national level agency responsible for both prosecution and investigation in the

People's Republic of China. The constitution defines it as "the highest procuratorial

body". Unlike the Supreme People's Court, it leads people's procuratorates at lower

levels in order to safeguard the independence of the system.

The procurator-general of the Supreme People's Procuratorate shall be elected and

removed by the NPC. The deputy procurator-general, member of the procuratorial

committee and procurators of the Supreme People's Procuratorate shall be appointed

and removed by the Standing Committee of the NPC upon the recommendation of the

procurator-general. The Supreme People's Procuratorate is responsible to the NPC and

its Standing Committee. The Supreme People's Procuratorate may establish a number

of procuratorial departments and other professional departments as needed.

According to the Organic Law, if the Supreme People's Procuratorate discovers some

errors in a legally effective judgment or order of a people's court at any level, it shall

file a protest in accordance with the procedure of judicial supervision.

Today, the judicial interpretations of the Supreme People's Procuratorate, as well as

that of the Supreme People's Court, have, de facto, the legal effect and are binding

upon the judicial activities of people's procuratorates of lower levels throughout China

even though China is not a common law country.

The Local People's Procutatorates

The local people's procuratorates apply the system of dual leadership and the principle

of democratic centralism. The chief procurators of people's procuratorates of provinces,

autonomous regions and municipalities directly under the Central Government and their

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branches shall be elected and removed by correspondent people's congress; the deputy chief

procurators, members of procuratorial committees and procurators shall be appointed and

removed by the standing committees of the people's congresses upon the recommendation of

the chief procurators. Nevertheless, the appointment and removal of the chief procurators of

the local people's procuratorate must be reported to the procurator-general of the people's

procuratorate at the next higher level, who should then submit the matter to the corresponding

standing committee of the people's congress for approval.

The chief procurators, deputy chief procurators, members of procuratorial committees

and procurators of people's procuratorates set up, in industrial and mining areas, agricultural

reclamation areas and forest zones, by people's procuratorates at the provincial or counties

level shall be appointed and removed by the standing committee of the people's congress at

the corresponding level, upon the recommendation of the chief procurators of the dispatching

people's procuratorates.

Public Security Organs

Public security branches lead and direct the people's police, as functional departments

of the people's governments. They are responsible for maintaining social and public order and

State security, and also for conducting investigations, arrest and preliminary hearings in

criminal cases. According to the Constitution, leaders of public security is appointed by the

people's congresses, or by their standing committees when the congresses are not in session,

at the corresponding level.

5.10. COMMUNIST PARTY OF CHINA

The Communist Party of China (CPC), also referred to as the Chinese Communist

Party (CCP), is the founding and ruling political party of the People's Republic of China. The

Communist Party is the sole governing party within mainland China, permitting only eight

other, subordinated parties to co-exist, those making up the United Front. It was founded in

1921, chiefly by Chen Duxiu and Li Dazhao. The party grew quickly, and by 1949 it had

driven the nationalist Kuomintang (KMT) government from mainland China after the

Chinese Civil War, leading to the establishment of the People's Republic of China. It also

controls the world's largest armed forces, the People's Liberation Army.

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The CPC is officially organised on the basis of democratic centralism, a principle

conceived by Russian Marxist theoretician Vladimir Lenin which entails democratic and

open discussion on policy on the condition of unity in upholding the agreed upon policies.

The highest body of the CPC is the National Congress, convened every fifth year. When the

National Congress is not in session, the Central Committee is the highest body, but since the

body meets normally only once a year most duties and responsibilities are vested in the

Politburo and its Standing Committee. The party's leader holds the offices of General

Secretary (responsible for civilian party duties), Chairman of the Central Military

Commission (CMC) (responsible for military affairs) and State President (a largely

ceremonial position). Through these posts, the party leader is the country's paramount leader.

The current paramount leader is Xi Jinping, elected at the 18th National Congress held in

October 2012.

The CPC is committed to communism and continues to participate in the International

Meeting of Communist and Workers' Parties each year. According to the party constitution,

the CPC adheres to Marxism–Leninism, Mao Zedong Thought, socialism with Chinese

characteristics, Deng Xiaoping Theory, the Three Represents, the Scientific Outlook on

Development and Xi Jinping Thought on Socialism with Chinese characteristics for a New

Era. The official explanation for China's economic reforms is that the country is in the

primary stage of socialism, a developmental stage similar to the capitalist mode of

production. The command economy established under Mao Zedong was replaced by the

socialist market economy, the current economic system, on the basis that "Practice is the Sole

Criterion for the Truth".

Since the collapse of Eastern European communist governments in 1989–1990 and

the dissolution of the Soviet Union in 1991, the CPC has emphasised its party-to-party

relations with the ruling parties of the remaining socialist states. While the CPC still

maintains party-to-party relations with non-ruling communist parties around the world, since

the 1980s it has established relations with several non-communist parties, most notably with

ruling parties of one-party states (whatever their ideology), dominant parties in democracies

(whatever their ideology) and social democratic parties.

Single Ruling Party (1949–Present)

On 1 October 1949, Mao Zedong announced the 21 September 1949 establishment of

the PRC before a massive crowd at Beijing Square. By the end of the year, the CPC became

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the major ruling party in China. During the 1960s and 1970s, the CPC experienced a

significant ideological separation from the Communist Party of the Soviet Union. By that

time, Mao had begun saying that the "continued revolution under the dictatorship of the

proletariat" stipulated that class enemies continued to exist even though the socialist

revolution seemed to be complete, leading to the Cultural Revolution in which millions were

persecuted and killed

Collective leadership

Collective leadership, the idea that decisions will be taken through consensus, is the

ideal in the CPC The concept has its origins back to Vladimir Lenin and the Russian

Bolshevik Party. At the level of the central party leadership this means that, for instance, all

members of the Politburo Standing Committee are of equal standing (each member having

only one vote).

Democratic centralism

The CPC's organizational principle is democratic centralism, which is based on two

principles: democracy and centralism. This has been the guiding organizational principle of

the party since the 5th National Congress, held in 1927. In the words of the party constitution,

"The Party is an integral body organized under its program and constitution and on the basis

of democratic centralism". Mao once quipped that democratic centralism was "at once

democratic and centralized, with the two seeming opposites of democracy and centralization

united in a definite form." Mao claimed that the superiority of democratic centralism lay in its

internal contradictions, between democracy and centralism, and freedom and discipline.

Currently, the CPC is claiming that "democracy is the lifeline of the Party, the lifeline of

socialism". But for democracy to be implemented, and functioning properly, there needs to be

centralization. The goal of democratic centralism was not to obliterate capitalism or its

policies but instead it is the movement towards regulating capitalism while involving

socialism and democracy. Democracy in any form, the CPC claims, needs centralism, since

without centralism there will be no order. According to Mao, democratic centralism "is

centralized on the basis of democracy and democratic under centralized guidance. This is the

only system that can give full expression to democracy with full powers vested in the people's

congresses at all levels and, at the same time, guarantee centralized administration with the

governments at each level exercising centralized management of all the affairs entrusted to

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them by the people's congresses at the corresponding level and safeguarding whatever is

essential to the democratic life of the people".

The National Congress

The National Congress is the party's highest body, and, since the 9 th National

Congress in 1969, has been convened every five years (prior to the 9th Congress they were

convened on an irregular basis). According to the party's constitution, a congress may not be

postponed except "under extraordinary circumstances." The party constitution gives the

National Congress six responsibilities:

Electing the Central Committee;

Electing the Central Commission for Discipline Inspection (CCDI);

Examining the report of the outgoing Central Committee;

Examining the report of the outgoing CCDI;

Discussing and enacting party policies; and:

Revising the party's constitution.

In practice, the delegates rarely discuss issues at length at the National Congresses. Most

substantive discussion takes place before the congress, in the preparation period, among a

group of top party leaders. In between National Congresses, the Central Committee is the

highest decision-making institution. The CCDI is responsible for supervising party's internal

anti-corruption and ethics system. In between congresses the CCDI is under the authority of

the Central Committee.

The Central Committee, as the party's highest decision-making institution between

national congresses, elects several bodies to carry out its work. The 1st Plenary Session of a

newly elected central committee elects the General Secretary of the Central Committee, the

party's titular leader, the Central Military Commission (CMC), the Politburo, the Politburo

Standing Committee (PSC), and since 2013, the Central National Security Commission

(CNSC). The first plenum also endorses the composition of the Secretariat and the leadership

of the CCDI. According to the party constitution, the general secretary must be a member of

the Politburo Standing Committee (PSC), and is responsible for convening meetings of the

PSC and the Politburo, while also presiding over the work of the Secretariat. The Politburo

"exercises the functions and powers of the Central Committee when a plenum is not in

session". The PSC is the party's highest decision-making institution when the Politburo, the

Central Committee and the National Congress are not in session. It convenes at least once a

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week. It was established at the 8th National Congress, in 1958, to take over the policy-

making role formerly assumed by the Secretariat. The Secretariat is the top implementation

body of the Central Committee, and can make decisions within the policy framework

established by the Politburo; it is also responsible for supervising the work of organizations

that report directly into the Central Committee, for example departments, commissions,

publications, and so on. The CMC is the highest decision-making institution on military

affairs within the party, and controls the operations of the People's Liberation Army. The

general secretary has, since Jiang Zemin, also served as Chairman of the CMC. Unlike the

collective leadership ideal of other party organs, the CMC chairman acts as commander-in-

chief with full authority to appoint or dismiss top military officers at will. The CNSC "co-

ordinates security strategies across various departments, including intelligence, the military,

foreign affairs and the police in order to cope with growing challenges to stability at home

and abroad." The general secretary serves as the Chairman of the CNSC.

A first plenum of the Central Committee also elects heads of departments, bureaus,

central leading groups and other institutions to pursue its work during a term (a "term" being

the period elapsing between national congresses, usually five years). The General Office is

the party's "nerve centre", in charge of day-to-day administrative work, including

communications, protocol, and setting agendas for meetings. The CPC currently has four

main central departments: the Organization Department, responsible for overseeing

provincial appointments and vetting cadres for future appointments, the Publicity

Department (formerly "Propaganda Department"), which oversees the media and formulates

the party line to the media, the International Department, functioning as the party's "foreign

affairs ministry" with other parties, and the United Front Work Department, which oversees

work with the country's non-communist parties and other mass organizations.

Membership of the Party

To join the party, an applicant must be approved by the communist party. In 2014,

only 2 million applications were accepted out of some 22 million applicants. Admitted

members then spend a year as a probationary member.

In contrast to the past, when emphasis was placed on the applicants' ideological

criteria, the current CPC stresses technical and educational qualifications. To become a

probationary member, the applicant must take an admission oath before the party flag. The

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relevant CPC organization is responsible for observing and educating probationary members.

Probationary members have duties similar to those of full members, with the exception that

they may not vote in party elections nor stand for election. Many join the CPC through the

Communist Youth League.

Ideology

Marxism–Leninism was the first official ideology of the Communist Party of China.

According to the CCP, "Marxism–Leninism reveals the universal laws governing the

development of history of human society." To the CCP, Marxism–Leninism provides a

"vision of the contradictions in capitalist society and of the inevitability of a future socialist

and communist societies". According to the People's Daily, Mao Zedong Thought "is

Marxism–Leninism applied and developed in China".Mao Zedong Thought was conceived

not only by Mao Zedong, but by leading party officials.

While non-Chinese analysts generally agree that the CCP has rejected orthodox

Marxism–Leninism and Mao Zedong Thought (or at least basic thoughts within orthodox

thinking), the CCP itself disagrees. Certain groups argue that Jiang Zemin ended the CCP's

formal commitment to Marxism with the introduction of the ideological theory, the Three

Represents. However, party theorist Leng Rong disagrees, claiming that "President Jiang rid

the Party of the ideological obstacles to different kinds of ownership [...] He did not give up

Marxism or socialism. He strengthened the Party by providing a modern understanding of

Marxism and socialism—which is why we talk about a 'socialist market economy' with

Chinese characteristics." The attainment of true "communism" is still described as the CCP's

and China's "ultimate goal". While the CCP claims that China is in the primary stage of

socialism, party theorists argue that the current development stage "looks a lot like

capitalism". Alternatively, certain party theorists argue that "capitalism is the early or first

stage of communism." Some have dismissed the concept of a primary stage of socialism as

intellectual cynicism. According to Robert Lawrence Kuhn, a China analyst, "When I first

heard this rationale, I thought it more comic than clever—a wry caricature of hack

propagandists leaked by intellectual cynics. But the 100-year horizon comes from serious

political theorists".

Deng Xiaoping Theory was added to the party constitution at the 14th National

Congress. The concepts of "socialism with Chinese characteristics" and "the primary stage of

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socialism" were credited to the theory. Deng Xiaoping Theory can be defined as a belief that

state socialism and state planning is not by definition communist, and that market

mechanisms are class neutral. In addition, the party needs to react to the changing situation

dynamically; to know if a certain policy is obsolete or not, the party had to "seek truth from

facts" and follow the slogan "practice is the sole criterion for the truth". At the 14th National

Congress, Jiang reiterated Deng's mantra that it was unnecessary to ask if something was

socialist or capitalist, since the important factor was whether it worked.

The "Three Represents", literally a Marxism adapted to Chinese conditions, was adopted by

the party at the 16th National Congress. Certain segments within the CCP criticized the Three

Represents as being un-Marxist and a betrayal of basic Marxist values. Supporters viewed it

as a further development of socialism with Chinese characteristics.

Model Questions:

1. “The National People’s Congress is the highest organ of state authority”. Discuss.

2. Write a note on the election procedure of the deputies of the National People’s Congress.

3. Write a note on the powers and functions of the National People’s Congress.

4. What are the qualifications to become a deputy of the National People’s Congress?

5. Discuss the powers and functions of the Standing Committee.

6. Discuss the powers and functions of the President of the Chinese Republic.

7. Explain the composition and powers and functions of the State Council.

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