The British constitution has been the source of inspiration for many countries in the world. It had a long and arduous history. The Ranas of Nepal knew about the British constitution and its parliamentary system. At times, the Ranas connived that they too had the desire to introduce a similar system in Nepal. Padma Shamsher, for example, talked about the parliamentary system in 1947 very clearly. The issue here is to what extent his Government of Nepal Act 1948, which he so passionately introduced, as the first Constitution of Nepal, was influenced by British traditions.
The current name of the country, the United Kingdom of Great Britain and Northern Ireland, was officiated in 1927, but the constitutional laws and institutions developed gradually via a long and extended process before this date. The Constitution of the UK, as it developed over time with multifarious efforts, reflecting the relative stability of the British Government, is not contained in a single constitutional document. It is comprised in several resources. Thus, many people misleadingly claim that the UK does not have a constitution.
The British Constitution is based on various parliamentary statutes, judicial precedents, conventions, and other sources, which collectively provide constitutional laws and institutions. They include, but are not limited by, historical statutes such as the Magna Carta of 1215 and the Act of Settlement of 1701, laws and customs of parliament, political conventions, case law, and constitutional matters decided in a court of law. Such instruments came up in the context of different struggles in history.
Constitutional experts, such as Walter Bagehot and A.V Dicey, who have written on the subject, clarify the theoretical advances of these sources. Books by William Gladstone, Benjamin Disraeli and Lord John Russell, parliamentary manuals by Walter Bagehot and Erskine May, popular histories by Henry Hallam and Thomas Macaulay, and scholarship by John Stuart Mill, Henry Brougham and A. V. Dicey all contributed to constitutional thought. Dicey's Law of the Constitution, Bagehot’s The English Constitution, William R. Anson's Law and Custom of the Constitution and May's Parliamentary Practice could be included as major works of authority at the time of Padma Shamsher. These books can be referred to for purposes of ascertaining what the law of the constitution is even now. It thus makes it clear that the British constitution very much remained an ‘uncodified,’ rather than an ‘unwritten,’ constitution. The first striking factor is the evolutionary nature of the British Constitution. There has been a continuous process of inversion, reform and amended distribution of powers.
The most important historical source of constitutional law and principle of the modern UK is the Magna Carta of 1215. Taxes levied by Richard I, and his successor King John, to pay for the wars led to intense discontent in England, to that extent that the aristocracy forced the King to sign the Magna Carta. This was a commitment to hold the ‘common counsel’ before imposing any taxation. The king was required to hold courts at a fixed place and trials according to law or before an accused’s peers. He was required to guarantee free movement of people for trade and to return their common land. These changes were happening in the country for the first time.
King John defied the Magna Carta within just six months. The discontent among the people continued. It became a tool for renegotiation between the ruler and the ruled. In the process, it was reissued in 1216 as well. The commitments on common land were soon recast in the Charter of the Forest 1217, signed at St Paul's by King Henry III. These documents established that the monarch, even with apparent authority from God, was bound by law. The Magna Carta remains ‘the nearest approach to an irrepealably “fundamental statute” that England has ever had. ‘This is the version that is remembered even today. It defined the nature of monarchical rule in England, ensuring in law the principle that a king governs only with the consent of his people. A few of the provisions of the Magna Carta remain on the statue book, but this legislation nonetheless continues to possess considerable symbolic importance. Not just in England, but the ideals it expressed influenced the development of law and liberty throughout the world.
Under King Henry VIII, to seal a divorce from Catherine of Aragon and marry Anne Boleyn (whom he later beheaded for supposed infidelity), the Church of England was declared separate from Rome in the Act of Supremacy 1534, passed by the Parliament of England. The King replaced the pope as the head. The 1558 Act declared Queen Elizabeth and her successors as the Supreme Governor of the Church. Royal Supremacy is specifically used to describe the legal sovereignty of the civil laws over the laws of the Church in England. The 1534 Act marked the beginning of the English Reformation, giving rise to a series of events in 16th century England by which the Church of England broke away from the authority of the Pope and the Roman Catholic Church.
Charles I, another authoritarian ruler, succeeded to the throne in 1625. He resisted parliament and ignored the rights of his subjects, fervently asserting a divine right, including the ability to levy tax without Parliament. Edward Coke, who is considered to be the greatest jurist of the Elizabethan and Jacobean eras, decided to curtail him and argued that Charles’s actions violated the liberties afforded to his subjects by the Magna Carta. He drew up a new document, the Petition of Right, which turned the charter’s core principles into constitutional law. Yet Charles wouldn’t be constrained for long, and civil war ensued.
The Magna Carta’s legacy of holding power accountable reached a difficult crossroad. The people demanded the King to abide by the Magna Carta, levy no tax without Parliament, not arbitrarily commit people to prison, not have martial law in times of peace, and not post soldiers in private homes. All these rights reflected the needs of the contemporary generation. Charles I responded by shutting down or proroguing the Parliament and taxing trade without authority. Yet, he was not strong enough to contain the demands of the people.
The civil war between monarchists and parliamentarians became unavoidable. The civil war in 1642 culminated in the capture and execution of the King outside the banqueting house in Whitehall in 1649. It was done by the New Model Army led by General Oliver Cromwell. The republican government was then established through the Parliament. The experiments in the republican government had its own problems. Cromwell took office as the lord protector in 1653. He happened to be an unsuccessful ruler. After his death, the monarchy was restored with Charles II in 1660. The instability was not over. His successor, James II, again attempted to assert divine right to rule. In 1688, the Parliament 'invited' his replacement with a King and Queen, William and Mary of Orange.
It wasn’t until 1679 that the principles of the Magna Carta that "no free man will be seized or imprisoned ... except by the lawful judgment of his equals" became part of the law. Habeas corpus ensured that the state could not arbitrarily imprison people without the support of the law. If an individual was imprisoned without charge, he or she now had the right to challenge his or her detention before a judge. A landmark in English legal history, these changes proved that the Magna Carta had the power to influence the nation’s law some 300 years later and remained on the statute book.
The Glorious Revolution, which was a great point of departure in the English constitutional history, took place when William of Orange took the English throne from James II in 1688. The event brought a permanent repositioning of power within the English constitution. The Revolution confirmed the Parliament's supremacy over the monarch, represented by John Locke's Second Treatise on Government (1689). The Bill of Rights 1689 recorded its fundamental unit of right in "person" and that the "election of members of Parliament ought to be free." This laid the foundations for a peaceful unification of England and Scotland in the Act of Union 1707. Ireland was added in 1801, but the Republic of Ireland formally separated from the UK between 1916 and 1921.
A series of cases from Sir Edward Coke, the Chief Justice of the Common Pleas and then King's Bench courts at that time, denied that the King could pass judgment in legal proceedings and held that the royal prerogative was subject to the law and could not be expanded. Coke CJ went even further in Dr Bonham's case, holding that even that "the common law will control Acts of Parliament. Though supported by some judges, the idea that common law courts could nullify Acts of Parliament was rejected, and the common law was formally placed under the King's control in the Earl of Oxford’s case. This power transferal established that equity (then administered by the Lord Chancellor in the House of Lords) was above common law. Coke fell from favor and was removed from judicial office.
The Bill of Rights 1689 was proclaimed with a Claim of Right Act 1689 in Scotland. It cemented parliamentary sovereignty. As well as reaffirming the Magna Carta, the Bill of Rights states that the 'pretended power of suspending laws or the execution of laws by regal authority without consent of Parliament is illegal’, that the 'election of members of Parliament ought to be free’, and that the 'Parliament ought to be held frequently.' The Crown could neither raise money nor keep a standing army without Parliament's consent. The Bill of Rights also enacted the principle of the freedom of speech in Parliament and that what is said in Parliament cannot be impeached or questioned in any court or place outside of Parliament. The justification for the government itself, encapsulated by John Locke, one of the most influential of Enlightenment thinkers, in his Second Treatise on Government, was the protection of people's rights: "lives, liberties and estates."
Many of the provisions of the Bill of Rights and the Claim of Rights still shape the law. In 1703, the decision in Ashby v White established that the right to vote was a constitutional right. The concept of parliamentary sovereignty began developing as the cornerstone of the constitution. The Parliament proceeded to set up a system of finance via the Bank of England Act 1694. Similarly, the Act of Settlement 1701 created an independent system of justice. Judges were salaried and could not be removed, except by both Houses of Parliament if they maintained "good behavior." This change reversed the preceding provision that a judge's position was held at the discretion of the monarch. No person who had an office under the monarch, or received a pension from the Crown, was to be a member of Parliament. This provision was inserted to avoid unwelcomed royal influence over the House of Commons, the lower house of the Parliament. The Crown had to be Anglican according to the Act of Settlement. The line of succession to the throne, to preserve the Protestant succession, would pass on to Sophia, James I’s granddaughter and the first cousin to Charles II and James II. Sophia's son, George I, became king in 1714 and his descendants, including George VI, who was the King during the rule of Padma Shamsher, have reigned Britain ever since.
The International Treaty of Union between England and Scotland in 1706/7 was another instrument that contributed to the constitutional development of the country. It was followed by implementing Acts of Parliaments in both countries. This resulted in both countries being amalgamated into a single state in international law. The Act of Union 1707 formally joined the Parliaments of England and Scotland into a new Parliament of Great Britain. Its seat was Westminster. The treaty provisions also enabled Scottish electors' representation in the Union Parliament at Westminster. The Union that was created was also a full economic union. It replaced the Scottish systems of currency, taxation and laws regulating trade.
In the next turn of events, Robert Walpole (August 1676 – March 1745) emerged as a stable political figure in Britain. He held a majority in the House of Commons and ruled the country for 21 years. Walpole chaired cabinet meetings, appointed all other ministers, and developed the doctrine of cabinet solidarity. In view of his role as the leader of the cabinet, he is now generally regarded as having been the first prime minister of Great Britain. Until then, this position had no official recognition in law. Walpole held that power de facto due to the extent of his influence in the cabinet. This supported the future growth of the office of the cabinet.
The Industrial Revolution transformed British society. The democratic system required some change due to industrial revolution. For this reason, the Great Reform Act was enacted as an Act of Parliament of the United Kingdom to introduce wide-ranging changes to the electoral system of England and Wales. According to its preamble, the Act was designed to take effectual measures for correcting diverse abuses that have long prevailed in the Choice of Members to serve in the Commons House of Parliament. It redistributed parliamentary seats to give fairer representation to the population than before. Many people moved from rural communities to some mainly urban ones. The citizens demanded to have a say in how they were governed, a cause taken up immediately by the Magna Carta-inspired Chartist movement. The formal citation of the Act is the "Representation of the People Act 1832."Erskine May notes that the "reformed Parliament was, unquestionably, more liberal and progressive in its policy than the Parliaments of old; more vigorous and active; more susceptible to the influence of public opinion; and more secure in the confidence of the people,” but May admitted that "grave defects still remained to be considered."
The Parliament Act of 1911 was yet another great achievement in asserting the power of the House of Commons on the House of Lords, the upper house of the Parliament. Notably, it removed the right of veto, except on bills to extend the life of Parliament, from the House of Lords. Lords were permitted the power to delay for one month on money bills and two years legislation. The duration of the Parliament was reduced to five years. Amended by the Parliament Act 1949, the Parliament Act 1911 further limited the power of the Lords by reducing the time that they could delay bills, from two years to one. These Acts have been used to pass legislation against the wishes of the House of Lords on several occasions since 1911.
Adult franchise was still a problem in Britain. By the Representation of the People (Equal Franchise) Act 1928, almost every adult man and woman was finally entitled to vote for the Parliament. It gave voting rights to men over 21 years of age with 6 months' residence qualification and to women over 30 years of age meeting occupancy requirement. Additionally, the Parliament (Qualification of Women) Act 1918allowed women to become Members of Parliament.
His Majesty’s Abdication Act enacted in 1936 passed by the Parliament of the United Kingdom provided for the abdication of King Edward VIII, who wanted to marry his lover, Wallis Simpson, despite opposition from the government and the dominions. This was another significant achievement for the Parliament. The Actrecognised and ratified the abdication of King Edward III and passed succession to his brother King George VI. The Act also excluded any possible future descendants of Edward from the line of succession. The British Constitution had no provision until then for a sovereign to abdicate. Parliament had to pass a bill to remove the King from the throne and then receive the royal assent in order to make it a law. The Royal Marriages Act 1772was not to be applied to Edward III. Upon the royal assent being communicated to Parliament on the King's behalf, the Act came into effect and Edward VIII ceased to be king. The throne immediately passed to his brother, who was proclaimed King George VI the next day at St James's Palace, London.
To sum up, the British constitution is a document in evolution. With regards to the great constitutional landmarks, notable documents include the Magna Carta of 1215, the Petition of Right of 1628, the Bill of Rights of 1689, the Act of Settlement of 1701, the Act of Union between England and Scotland of 1707, and the Parliament Act of 1911 among others. All these constitutional landmarks form only the addenda to the constitution. Many of them have not been enacted by Parliament. Yet, these documents govern the relations between the State and its citizenship in addition to limiting the power of the state. The large number of statutes passed from time to time by the British Parliament also form the Constitution.
Reference may be made in this connection to the Reform Acts of 1832, 1867, 1884, 1918, 1928, and 1949. The Representation of the People Act of 1948 abolished the university constituencies. The right of person to vote in a constituency in which he had a "business premises qualifications" but did not reside was taken away. Other acts belonging to the same category include the Abdication Act of 1936, Septennial Act of 1716, the Irish Free State Act of 1922, the Municipal Corporations Act of 1935, the Parliamentary and Municipal Elections Act of 1872, the Judicature Acts of 1873-76, the Local Government Acts of 1888, 1894, 1929, and 1933, the Government of Ireland Act of 1920, the Public Order Act of 1936, the Ministers of the Crown Act of 1937, Indian Independence Act, 1947, and the Statute of Westminster of 1931.
Features of the Constitution
The British constitution provided for constitutional monarchy, a limited monarchy, as a form of government. The powers of the monarch have been removed in the process of its evolution and the same powers are being exercised by the government in the name of the King. The King cannot do anything without the advice and consent of the government.
The formation of the government is based on a parliamentary system, as highlighted above. The government is made by the House of Commons the members of which are elected by the people. Only the party having majority in the Commons forms the government. That party continues in office so long as it continues to enjoy that confidence. If the government is defeated, it must resign. The ministers are responsible to the Parliament for their acts of omission and commission. The administration is operated according to the wishes of the people as expressed through their representatives in Parliament.
The supremacy of the British Parliament is a strong principle of the British Constitution. Its powers are limitless and its jurisdiction absolute and transcendent. The sovereignty of the Parliament is the rule. It cannot bind its successor. It has the power to create any type of law on any issue. The Parliament cannot interrupt or end the process of constitutional change. The Parliament is sovereign, but most of the time, it is activated by the government, which commands majority in the House of Commons, and the real power lies at the hands of the Cabinet.
Until the recent reforms, the upper house of the Parliament, the House of Lords, sat as the Highest Court of Appeal, but only the Law Lords took part in its proceedings when it sat as the Highest Court of Appeal. Judges of the British courts are appointed and cannot be turned out by the executive. They hold office during good behavior. They can criticize and check the arbitrary exercise of power by the executive. With regards to judicial decisions, they are also a part of the Constitution.
The British Constitution is a flexible Constitution. It can be amended in the same way that an ordinary law of the country can. As a matter of fact, there is no separate method of amendment of the Constitution. The British Constitution is also called a unitary Constitution. All powers are concentrated in the central government, and the British Parliament can do whatever it pleases. The questions of ultra vires did not arise.
The British constitution is based on the large number of conventions in the Constitution. These conventions have revolutionized the very nature of the Constitution. The important provision regarding the actual functioning of the government are based on conventions in England. What are named as conventions of the Constitutions by A. V. Dicey are referred to as "the unwritten maxims of the constitution" by J. S. Mill and "the custom of the constitution" by William R. Anson. The conventions consist of understanding, practices and habits that together regulate a large portion of the actual relations and operations of the public authorities. The Constitution works by a body of understanding that no writer can formulate. It is on account of the existence of a large number of conventions that the Constitution is said to be convention-ridden.
Another characteristic of the constitution is the Rule of law. This implies the supremacy of law in the country. No person can be punished until and unless he or she has been proved to be in violation of a law of the country. There can be no arbitrary punishment of any individual. No person is above law. Every person, whatever his or her rank or condition, is subject to the ordinary law of the country. What is law for one is also law for another.
Another characteristic of the British Constitution is that it is essentially a judge-made Constitution. It has rightly been pointed out that most of the rights enjoyed by British citizen’s has-been guaranteed to them by the judicial decisions ruled from time to time by their judges.
The British Constitution is also based on the principle of checks and balances. The two Houses of the British Parliament can pass a law; it can only be enforced after it is signed by the king. Likewise, an order of the king is valid only after it is countersigned by a minister of the country. The prime minister and his government is responsible to the Parliament and the later has the power to remove it by passing a vote of no-confidence. The Parliament may also reject a Bill introduced by the government. Likewise, the prime minister can ask the King to dissolve House of Commons. If the members of the House of Commons can turn out the government, the government can also dismiss the members by dissolving the Commons. The Ministers control the civil servants but also depend on them to enforce their policies.
Another characteristic of the British Constitution is the principle of tolerance. To quote Ivor Jennings, a noted constitutional expert at that time, "it has developed gradually from the struggle of the seventeenth century. It has been carried out in the laws; but it is still more an attitude of mind. It is, however, not tolerance alone that makes democratic government work, that is, the majority is not permanent. It is based upon different views personal and national interests, views which are susceptible of change, and, in a sufficient number of persons, do change from time to time. Not only do opinions fluctuate but they fluctuate sometime violently and the swing of the pendulum is a familiar feature of British politics. Consequently, parties can and do appeal to reason. Majorities are unstable and the Opposition of today is the government of tomorrow. This important fact must not be forgotten for it enables the minority to submit peacefully and even cheerfully to the will of the policy of the majority."
In the British constitutional legal system, the common law of the country, which developed over many centuries as a vast body of legal precept and usage, has important value. It is a body of judge-made rules that have never been ordained by a King or enacted by a Parliament. It has acquired almost immutable and binding character. The common law, like statutory law, is continual in the process of development of judicial decisions. The common law is the basis of the prerogatives of the Crown, the right of trial by jury in criminal cases, the rights of freedom of speech and assembly, and the right to redress grievances against the government officers, among others.
The royal prerogatives are part of the Constitution. The powers to declare war, make treaties, pardon criminals, and dissolve Parliament are exercised through royal prerogatives by issuing Orders in Council, proclamations and writs under the Great Seal. These powers are exercised by the ministers on behalf of the King; thus, the ministers’ authority comes from the Crown and not from Parliament.
These constitutional developments were fascinating for any country aspiring for democracy and the rule of law. It is challenging to analyze Government of Nepal Act1948 at the backdrop of the status of the British constitutional development at 1940s and its influence on Padma Shamsher's reforms. As this research will show, there were important linkages.
[This article is part of the research work the author is conducting on the first Constitution of Nepal, issued in 1948]