Nature and Pattern of Government

-
•Aristotle talks about the possibility of 3 forms of government. They are:
                            1.Monarchy
                            2.Aristocracy
                            3.Democracy
•Montesquieu talks about the following forms of government:
                            1.Republican
                            2.Aristocracy
                            3.Democracy

In modern times, there are mainly four forms of government. They are:
                            •Presidential form of government
                            •Parliamentary form of government
                            •Unitary type of government
                            •Federal type of government

Presidential Form of Government
• In this system, President is the chief executive and s/he is elected for a definite term of office holding wide public mandate.
• S/he is constitutionally independent of the legislative branch for the conduct of his administration and in respect of the duration of his tenure.
• S/he is unaccountable to the legislature for different political policies.
• S/he is the real and chief executive of the state as well as political leader of the government.
• As a real executive, all his/her formal powers are defined in constitution.
• S/he may be removed from his office before his/her tenure only by the process of impeachment for serious crimes which is a difficult process.

• S/he is neither dependent on the legislature nor is responsible to it. 
• In this system, there is complete separation of power between three branches of government.
• The president is free to choose and utilize secretaries of principal department heading the executive branch.
• The functions of the secretaries are administrative, advisory and consultative.
• The president is free to accept or reject their advice and in case of differences his/her judgment   is final.  
• On the whim of the president, legislature cannot be dissolved.
• S/he is authorized to inform legislature time to time about his/her policies.
• S/he may call special session of the legislature.
• All bills and joint resolutions of both houses must be submitted to him for approval.
• S/he shall take an oath to “pressure, protect and defend” the Constitution.
• The presidential form of government is strictly in practice in the USA since 1789.
• In the USA, American President is dictator for 4 years constitutionally.
• Many Latin American states, Philippines and several other African countries which were under French control also have adopted this system of government.
• In this system, due to the president’s fixed term of office, there is stability in executive even without the presence of stable legislative majority.
• There is continuity of executive policy, being the president all powerful.
• There is vigor  in action and promptness in decision, suitable in vast state having diverse interest, culture, etc.
• The legislature is also independent of the executive in its regular works. Thus each has important means of restraining others.
• But Esmin says that the system appears to be autocratic, irresponsible and dangerous due to the Constitutional dictatorship of the elected president.
• Confusion could be made by the government in the vast process of legislature in one hand and lack of initiation of the chief executive in legislature on the other.
Parliamentary System of Government
• The Prime Minister is a leader. S/he is the head of the government.
• As a leader of the majority party, the Prime Minister
            1.Supervises and coordinates the works of the council of ministers
            2.Advises and informs the titular or symbolic head
            3. Presides over the cabinet
            4. Recommends the dissolutions of parliament
•Being a real executive, “The Prime Minister is the central to the ministry’s birth, central to its life and central to its death.”
•England is the mother of the parliamentary system and many other states like Germany, Israel, India, Japan and other non-western and south-east Asian countries have adopted this system.
•In this system, there is harmony between executive and legislature.
•It recognizes the ultimate sovereignty of the people and its components like party system, the frequent election process and propaganda.
• These components make people politically conscious.
• The cabinet represents a considerable accumulation of political experiences.
• Its members spend years of apprenticeship in a parliamentary career.
• Criticism of the Parliamentary System of Government
• The Cabinet system violates the theory of separation of powers.
• The government is unstable from regular opposition of the different parties and the government depending on the mood of the legislature.
• This system lacks promptness and vigor in taking immediate actions in times of emergency.
• There is government by amateurs and inefficient and wealth, etc.
• But the parliamentary system is most effective when supported by positive party discipline, maintained by strong bi-party system, e.g., in the UK and the USA.  
• Even in modern period, many countries have chosen the parliamentary system.
• So it has been the best among others as has been said.
Unitary System of Government
• The unitary system of government is a single integrated system for the exercise of all powers.
• There is only one nation state and one government.
• There is no constitutional divisions or distributions of powers between the central and local authority.
• There is only one constitutional source of power and it confers all the powers of the government in the first instance upon a single control government.
• The central government may exercise all these powers by itself or create political sub-division and delegate to them at its will.
• The central government is competent to change their (political sub-division) boundaries as well as powers at its pleasure by ordinary legislative enactment (law).
• In a unitary state, the local authority are merely the parts of central government created by the latter acts as its agent for the purpose of local administration.
• There is one integrated system of the government and he supreme power belongs to the central government.
• Britain, France, Italy, Belgium, Nepal, Pakistan, Afghanistan, Iran and many other countries have unitary system of government.
• For administrative convenience, theory of the liberal distribution of powers has been adopted gradually by the centre in modern government on the basis of the theory of decentralization of power.
• A unitary state can bring about uniformity of law, policy and administration throughout the country.
• The strength of the unitary state is manifested in the matter of defense and international relations.
• There is no conflict and confusion of authority and responsibility between the center and regions, no overlapping of jurisdiction, no duplication of works, etc.
• This system is simple in structure and less expensive.
• There is absence of strong provincial and regional institutions.
• Delegated authority by the center creates burden on the central government and leads to red-tapism of bureaucratic administration.
• Central authority often lacks the necessary knowledge of local conditions and needs and in consequence, local initiatives and interest could be neglected.
• Though this system is difficult to adopt satisfactorily in the modern state having large territory, huge population, consisting of diverse races, religions and cultures, it is suitable for a small country with a homogenous population which brings unity in the country.
Federal System of Government
• The word Federal is derived from the Latin word Foedus means treaty and agreement.
• Dicey says that “Federation as a political contrivance intended to reconcile national unity with the maintenance of ‘state rights’, the desire for national unity and determination of each individual unit to maintain its identity and independence.”
• There is the existence of one nation state but many state governments. For example; India, USA, etc.
• There is a formal or constitutional division or distribution of governmental powers between the central (union) and state or provincial government.
• This is the gift of the constitution not the grant of union. 
• There is provision of written constitution which is supreme law of land.
• There is ultra vires of any law of the state or central legislature or any act of government which is contrary to the constitution.
• There is setting up of a Supreme Court or Federal Court to decide cases such as a Court often being known as the “guardian of the constitution,” so judiciary is most powerful in this system.
• There is comparative rigidity of the federal constitution in order to prevent hefty and ill-digested legislation.
• The deliberation of state or provincial  authority is not from the central government but directly from the constitution.
• There should be interdependent political relationships and coordination even in the principle of independence and division of power.
• The old and strict barriers between the federal government and the state government have been melted down in modern concept. 
• Complete separation has been replaced by minimum cooperation.
    Merits
• Twin advantages of national unity and local independence.
• Opportunity to unite into powerful state with separate existence.
• Equilibrium between centripetal and centrifugal forces, especially, in the country having its provincialism, casteism and linguism.
• Federation is the best system of government for gaining political, social and economic experiments.
• There is uniformity of policy and administration from diversity. 
• Local interests are stimulated.
• Loads of the central government could be relieved.
• According to Lord Bryce, “there is no danger of a despot usurping rights of people.”
• It discourage red-tapism and bureaucratic administration.
    Demerits
• According to Peacock, “the Federal system has proved itself strong politically but economically it is weak.”
• Diversity of legislative policy and administration could create confusion.
• Duplication of government organization, the civil service and department could create complexities.
• The danger of possible conflict of jurisdiction between the national and state government and between state governments.
• Heavy cost of administration.
• The chance of secession.
• Strict state consciousness of respective state. It could be harmful for national unity.
• But federalism is shifting towards a unified economic and social system.
• It is co-extensive with its territory.
• Inter-state and intra-state relation to make a strong nation state is the end of the federalism in the modern concept.

Popular posts from this blog

JUDICIAL ACTIVISM IN NEPAL

-
General Background • The term "Judicial Activism" came into existence in the twentieth century to describe the act of judicial legislation i.e. judges involve in making positive law . • Judicial activism is the term used for the active role played by the court in a situation where statutory law is silent or even contrary. • In its early stage, judicial activism emerged in a form of judicial review, later on judiciary's active role in social life. Nowadays, public interest litigation (PIL) is an important area of judicial activism. • The present Constitution of Nepal provides fundamental rights provision for the special protection of women, children, aged, disable, marginal masses and disadvantage groups, and socio-economically deprived people . • It establishes an independent of judiciary equipped with the power of judicial review in order to realize social, political and economic justice. It has states that anyone can argue that right of locus standi has ...
Read more

Basic Principles of Law of Evidence in Nepal

-
1. Evidence must be confined to the matters in Issue 2. Best Evidence must be produced 3. Hearsay evidence is no evidence 4. He who asserts must prove 5. Principle of Estoppel Evidence must be confined to the  matters in Issue • Principle cause behind this principle is to save time of the court for not being collected unnecessary evidence and make easy to arrive in decision. • However, the court’s decision should be depended on the evidence to be presented by the disputants. • Basic theme of this principle is that the evidence to be collected either by court or to be presented by disputants should be directly related to the dispute. • Section 3 of the Evidence Act, 2031 and Section 184a of the Court Procedure (Muluki Ain) are directly related to this principle. Section 3 of the Evidence Act States that:  The court may examine evidence on the fact in issue which is to be decided by it and the relevant fact thereof.  Explanation: "Rel...
Read more

Understanding Administrative law in context of Nepal

-
Administrative Law is the law related with the administrative functions of the Administrative Agencies (the Government and its Departments). The Law involves the study of the following broad topics: Check abuse of administrative power Ensuring citizens an impartial determination of their disputes by officials Protect citizens from unauthorized encroachment on their rights and interests Make those who exercise public power be accountable to people Rule of Law is one of the most fundamental aspects of modern legal systems. Simply said, the rule says, 'howsoever high you may be; the Law is above you'. It specifies that the Law is supreme and that no human being is higher than the authority of Law. A V Dicey stated three principles to the term 'Rule of Law'. 1. Supremacy of Law :- Law is the absolute supreme and predominant as opposed to influence of arbitrary power or discretionary power. 2. Equality before Law:- There must be equali...
Read more