Where MU's Seven Constitutions Fall

Switzerland on the separated-powers axis. The Federal Assembly elects the Federal Council under article 175 and elects the judges of the Federal Supreme Court under article 168, which looks like fusion. But article 144 forbids a person from belonging to more than one of the three at once, which is a stricter separation of personnel than any Westminster system has, and the Federal Council cannot be removed by a vote of no confidence, which is a stricter separation of tenure than the United States has for its Cabinet. Switzerland is neither fused nor separated; it is a third design, and an answer should say so.

Ireland on the federal axis. MU lists Ireland under federalism in topic 5. Article 15.2.1 vests the sole and exclusive power of making laws for the State in the Oireachtas. Article 28A recognises local government and requires elections at least every five years, which is a constitutional guarantee of local government and not a division of legislative power. Ireland is unitary, and its place on this syllabus is earned by Article 45 and the directive principles.

What the table shows

Three things worth saying in an answer.

The axes do not correlate. India and the United States are both codified, supreme, federal republics, and they differ completely on the executive. Ireland and the United Kingdom are both unitary and fused, and differ completely on codification and supremacy.

Rigidity and change do not correlate. Switzerland is the most rigid on paper and among the most frequently amended; the United States is the most rigid in operation and the least amended; India is only moderately rigid and has been amended more than a hundred times.

Judicial review is not the same as constitutional supremacy. Switzerland has a supreme constitution and no review of federal Acts. The United Kingdom has review of executive action and no supreme constitution. The two ideas come apart, which is the subject of the next chapter.

A worked example

An examiner asks: "Classify the constitutions of India, the United Kingdom and Switzerland, and state which of them best secures constitutionalism."

The first half is the table, three rows of it.

The second half is the argument, and there is no single right answer, only a well-supported one. A good answer says that each secures constitutionalism by a different mechanism: India by an enforceable bill of rights with a guaranteed remedy under article 32 and a judicially created limit on amendment; the United Kingdom by political accountability, the interpretive duty in section 3 of the Human Rights Act 1998 and judicial control of executive action; Switzerland by direct popular control, since fifty thousand voters can demand a referendum on any federal Act under article 141. It then notes that each mechanism has a matching weakness: India's depends on the courts, and Additional District Magistrate, Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207, shows what happens when they yield; the United Kingdom's depends on Parliament, and the exclusion of sections 2, 3 and 6 to 9 of the Human Rights Act by the Safety of Rwanda (Asylum and Immigration) Act 2024 shows how quickly it can be withdrawn; Switzerland's depends on the electorate, and a majority can amend the Constitution against a minority.

The cases

Facts. Jackson v. Attorney General, [2005] UKHL 56, [2006] 1 AC 262, was a challenge to the Hunting Act 2004, passed under the Parliament Act 1949 procedure without the consent of the House of Lords. The claimants said the 1949 Act was itself invalid, because it had been made under the 1911 Act without the Lords' consent, so that the 1911 procedure had been used to enlarge itself.

Held, by a House of nine. The 1949 Act was valid and so was the Hunting Act; on the true construction of the 1911 Act, an Act of that kind could be made by that procedure. Several of their Lordships added, obiter, that parliamentary sovereignty might not be absolute in every conceivable case.

Why it matters here. It is the nearest the United Kingdom comes to a case about its own amending procedure, and it is the evidence for the qualification on the supreme axis.

Facts. S.R. Bommai v. Union of India, (1994) 3 SCC 1, arose out of proclamations under article 356 dissolving State Assemblies.

Held, by nine judges. The proclamation is justiciable, must rest on relevant material, and the Assembly should not be dissolved before both Houses of Parliament approve; federalism is a basic feature of the Constitution.

Why it matters here. It is the authority for placing India on the federal side of the axis while acknowledging the centralising provisions, which is the whole of the Indian argument in one case.

Distinctions

What beginners get wrong

"India is quasi-federal, and that settles it." The phrase is a label attached in 1963 to a system a nine-judge Bench described as federal in 1994. Use both authorities and argue.

"Switzerland has no separation of powers." Article 144 separates the personnel absolutely. What it lacks is a Westminster confidence relationship and an American separately elected executive.

"The United Kingdom's constitution is not supreme, so it has no constitutional law." It has a great deal, and the last twenty years have produced Thoburn, Jackson, Miller No 1 and Miller No 2.

Quick revision

1. Codified: all but the United Kingdom. Canada in several instruments.
2. Supreme: all but the United Kingdom; Switzerland with the article 190 qualification.
3. Federal: the USA, Switzerland, Canada, Germany, India. Unitary: Ireland, the United Kingdom.
4. Executive: separated in the USA; fused in India, the UK, Canada, Ireland and Germany; collegial in Switzerland.
5. Head of State: republics except the United Kingdom and Canada; Switzerland has none.
6. Four arguments to make rather than assert: India on federalism, the United Kingdom on supremacy, Switzerland on separation, Ireland on federalism.
7. Judicial review and constitutional supremacy are different questions.

Test yourself

1. Place all seven systems on the federal and unitary axis, with the provision that decides each. Federal: the United States (Tenth Amendment), Switzerland (article 3), Canada (sections 91 and 92 of the Constitution Act 1867), Germany (articles 30 and 70 of the Basic Law), India (articles 245 and 246 with the Seventh Schedule). Unitary: Ireland (Article 15.2.1), the United Kingdom (no constitutional division; devolution is statutory).

2. "The United Kingdom's constitution is not supreme." Is that still an accurate statement? Substantially yes. British Railways Board v. Pickin remains good law and no court may set an Act aside. But three qualifications matter: constitutional statutes resist implied repeal after Thoburn; sections 3 and 4 of the Human Rights Act give courts a strong interpretive duty and a power to declare incompatibility; and Jackson contains obiter doubts about whether sovereignty is absolute.

3. Why is Switzerland neither a separated nor a fused system? Because it separates the personnel absolutely under article 144, which no Westminster system does, while making the executive elected by and not dismissible by the legislature, which no presidential system does. The Federal Council serves a fixed four-year term whatever the Assembly thinks of it.

4. Which of the seven secures constitutionalism best, and how should the question be answered? By identifying the mechanism each relies on and its matching weakness, not by ranking. India relies on enforceable rights with a guaranteed remedy and a judicial limit on amendment, and depends on the courts. The United Kingdom relies on political accountability and interpretation, and depends on Parliament's restraint. Switzerland relies on direct popular control under article 141, and depends on the electorate. Each has failed in the way its own design makes possible.