Republican and Monarchical, Evolved and Enacted
Chapter Eleven
Syllabus topic 1, "Constitutionalism, Classification of Constitutions"
Pages 49 to 53 of 676
In one line
A republic has an elected head of State and a monarchy an hereditary one; an evolved constitution grew over time and an enacted one was made at a moment.
In the wording a student can write in an exam: a constitution is republican where the head of State holds office by election, directly or indirectly, for a term, and monarchical where the office is hereditary and held for life; it is evolved where its rules accumulated through practice, custom and successive statutes without a founding act, and enacted where it was adopted as a whole by a constituent body at a determinate moment.
Why the axes matter
Because students assume they line up, and they do not. A monarchy can be a full democracy with an independent judiciary and effective rights; a republic can be an autocracy. The axes are descriptive, and putting a system on all of them at once is what [Where MU's Seven Constitutions Fall] does.
Republican and monarchical among the seven
Republics. India, the United States, Switzerland, Germany and Ireland.
Monarchies. The United Kingdom and Canada, which share the same monarch.
The interesting question is what turns on it, and the answer is: less than students expect.
In India the President is elected indirectly, under article 54, by an electoral college of the elected members of both Houses of Parliament and of the Legislative Assemblies of the States, with the weighted value provided by article 55. He holds office for five years under article 56, is re-eligible under article 57, and may be removed by impeachment for violation of the Constitution under article 61. And he acts, under article 74(1) as amended in 1976 and 1978, in accordance with the advice of the Council of Ministers, which advice is binding, subject to one power to require reconsideration.
In the United Kingdom the monarch is hereditary and the succession is governed by the Act of Settlement 1700 as amended. The monarch assents to legislation, appoints the Prime Minister and dissolves Parliament, and does all of it on advice.
So the Indian President and the British monarch do the same constitutional work and hold their offices on completely different bases. That is the point of the axis: it tells you how the office is filled, not what the office does.
Ireland is worth a line because it shows a third arrangement. Under Article 12 the President of Ireland is elected directly by the people for seven years, which makes the office more democratically legitimate than either, and Article 13 nevertheless confines it to formal functions with two exceptions of substance: under Article 26 the President may refer a Bill to the Supreme Court to test its constitutionality, and under Article 27 may decline a dissolution to a Taoiseach who has ceased to retain the support of a majority in the Dail.
Republican and Monarchical, Evolved and Enacted
Germany elects its Federal President under article 54 by a Federal Convention consisting of the members of the Bundestag and an equal number of members elected by the Land parliaments, for five years, once renewable.
Switzerland has no head of State in the usual sense. The Federal Council of seven is the collective head of State and of government, and its President, elected annually by the Federal Assembly under article 176, is chairman for the year.
Evolved and enacted
Evolved. The United Kingdom, and only the United Kingdom among MU's seven. There is no founding act. Magna Carta 1215, the Bill of Rights 1689, the Act of Settlement 1700, the Acts of Union, the Parliament Acts and the twentieth-century statutes are a sequence, not a constitution-making moment.
Enacted. India, adopted by the Constituent Assembly on 26 November 1949. The United States, framed at Philadelphia in 1787 and ratified in 1788. Ireland, adopted by the people at a referendum on 1 July 1937. Germany, adopted by the Parliamentary Council on 23 May 1949. Switzerland, adopted by popular vote on 18 April 1999.
Canada is a hybrid, and instructive. The Constitution Act 1867 was an Act of the Parliament of the United Kingdom, so Canada's founding instrument was enacted, but not by Canadians. Patriation in 1982 was the enacting moment for Canada itself, and Reference re Resolution to Amend the Constitution, [1981] 1 SCR 753, is the case in which the Supreme Court of Canada was asked whether it could be done without provincial consent.
A worked example
Suppose the head of State refuses to sign a Bill duly passed by the legislature.
In India article 111 permits the President to withhold assent, or to return a Bill other than a Money Bill for reconsideration; if the Houses pass it again, with or without amendment, he shall not withhold assent. There is no time limit in the article, which is why the corresponding provision for Governors, article 200, has produced the recent litigation described in [The Conventions of the Indian Constitution].
In the United Kingdom the monarch's refusal is unthinkable rather than unlawful. Assent has not been refused since 1708, and the rule against refusing is a convention, not a statute.
In Ireland Article 26 gives the President a lawful alternative: refer the Bill to the Supreme Court, which decides its constitutionality, and if the Court upholds it the President must sign, and the Bill can never afterwards be questioned.
Three heads of State, three legal positions, and the Irish one shows that a formal head of State can be given a real, bounded power without becoming a political actor.
Republican and Monarchical, Evolved and Enacted
The cases
Facts. Rai Sahib Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549, concerned the Punjab government's nationalisation of school textbooks, carried on without any statute, and required the Court to describe the nature of the Indian executive.
Held, by Mukherjea CJ. The President has been made a formal or constitutional head of the executive; the real executive power is vested in the Council of Ministers, which is answerable to the legislature. The Court added that the Constitution does not recognise the separation of powers in absolute rigidity but that one organ may not assume functions essentially belonging to another.
Why it matters here. It states, in the Supreme Court's own words, the point of this chapter: the Indian President's position is that of a constitutional monarch in a republic.
Facts. Reference re Resolution to Amend the Constitution, [1981] 1 SCR 753, decided on 28 September 1981, was a reference on whether the federal government could ask the United Kingdom Parliament to patriate and amend the Canadian constitution without provincial agreement.
Held. By seven to two, the resolution was lawful; by six to three, it was unconstitutional in the conventional sense, a convention requiring "a substantial degree of provincial consent", though the Court declined to devise a formula in the abstract.
Why it matters here. It is the moment an evolved-and-imported constitution became an enacted one, and it shows that the transition was made by political negotiation prompted by a court that would not enforce the rule it had found.
Distinctions
| Republic | Monarchy | |
|---|---|---|
| Head of State | Elected, for a term | Hereditary, for life |
| MU's seven | India, USA, Switzerland, Germany, Ireland | United Kingdom, Canada |
| Powers of the office | Range from formal (India, Germany) to executive (USA) | Formal, exercised on advice |
| Removal | Impeachment, article 61 in India | Abdication or statute |
| Evolved | Enacted | |
|---|---|---|
| Origin | Accumulated over centuries | Adopted at a moment |
| Founding document | None | 1787, 1867, 1937, 1949, 1949, 1982, 1999 |
| MU's seven | United Kingdom | The other six, Canada in two stages |
| Typical form | Uncodified | Codified |
What beginners get wrong
"A monarchy cannot be democratic." The United Kingdom and Canada are on the syllabus as counter-examples, and both have universal suffrage, responsible government and independent courts.
"A republic means an elected executive." It means an elected head of State. India's President is elected and is not the executive in substance; the United States President is elected and is.
"Evolved constitutions are old and enacted ones are modern." The Swiss constitutional tradition runs from 1848 and its current text is from 1999; the American text is from 1787 and is enacted. Age and mode of origin are different questions.
Republican and Monarchical, Evolved and Enacted
Limits and criticism
The republican/monarchical axis has become nearly ornamental. In a constitutional monarchy the office is filled differently and behaves identically, so the axis tells you about history rather than about power.
The evolved/enacted axis conceals continuity. India's Constitution is enacted, and a great deal of it, the parliamentary executive, the office of Governor, the emergency provisions and the legislative lists, came from the Government of India Act 1935.
Neither axis predicts rights protection or the strength of the courts, which is why [Where MU's Seven Constitutions Fall] places the systems on all the axes together.
Quick revision
- Republic: elected head of State. Monarchy: hereditary. Five of MU's seven are republics; the United Kingdom and Canada share a monarch.
- India: article 54 electoral college, article 55 weighting, article 56 five-year term, article 61 impeachment, article 74(1) binding advice.
- Ireland: Article 12 direct election for seven years; Article 26 reference of a Bill; Article 27 refusal of a dissolution.
- Germany: article 54, Federal Convention. Switzerland: no single head of State; article 176 rotating Presidency of the Federal Council.
- Evolved: the United Kingdom alone. Enacted: 1787 USA, 1867 and 1982 Canada, 1937 Ireland, 1949 Germany and India, 1999 Switzerland.
- Rai Sahib Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549: the President is a formal or constitutional head.
- The axes are independent: position on one predicts nothing about the others.
Test yourself
1. India and the United Kingdom have heads of State chosen in completely different ways and doing the same job. Explain. The Indian President is elected under article 54 by an electoral college for a five-year term; the British monarch inherits. Both give assent, appoint the head of government, and act on ministerial advice, which article 74(1) makes binding in India and convention makes binding in the United Kingdom. The mode of appointment differs; the constitutional function does not.
2. What can the President of Ireland do that the President of India cannot? Refer a Bill to the Supreme Court under Article 26 for a decision on its constitutionality, after which the Bill, if upheld, can never afterwards be questioned; and refuse a dissolution under Article 27 to a Taoiseach who has ceased to retain the support of a majority in the Dail. The Indian President may withhold assent or return a Bill under article 111, but must assent if it is passed again.
3. Why is Canada described as both evolved and enacted? Its founding instrument, the Constitution Act 1867, was an Act of the United Kingdom Parliament, so the constitution was enacted but not by Canadians, and it developed thereafter partly by convention. Patriation in 1982 was the moment Canada enacted its own amending procedures and Charter, and Reference re Resolution to Amend the Constitution, [1981] 1 SCR 753, is the decision that shaped how it was done.
Republican and Monarchical, Evolved and Enacted
4. What is the head of State in Switzerland? There is none in the usual sense. The Federal Council of seven, elected by the United Federal Assembly under article 175, is the collective head of State and of government, and one of the seven serves as President for a year under article 176. No individual holds the office of head of State.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.