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Constitutional Law

Parliamentary system of government is chosen and adopted by many countries around the world, amongst them republics and (constitutional) monarchies.
 
Alcona is a constitutional system based on the separation of powers theory with a parliamentary system of government. You work as a law clerk for the Constitutional Court’s Chief Justice Margaret Brenzaida. The Chief Justice is interested in clarifying questions concerning the separation of powers. A new legislative proposal would introduce more power for the Head of Government, Charles Brave. The proposed bill would provide greater independence for the Head of Government, from Parliament. With the new legislation, the Head of Government is admittedly aiming at an eventual amendment of the Alconian Constitution and a shift to presidential system of government, and claims that the latter has many advantages. This bill is reviewed by the Constitutional Court under the judicial review procedure.
 
Thus, the Chief Justice request you to write a legal memo to answer the following questions in a clear, concise, and coherent manner.
 
1. Explain what the understanding of parliamentary system of government is.
 
2. Explain the differences between parliamentary and presidential systems of government in democratic governance.
 
3. Identify and then explain three advantages of parliamentary democracies in comparison with presidential democracies in contemporary governance.
 
4. What is the function of judicial review as it is referred to in the case?
 
5. Mention and explain two methods of constitutional revision and amendments from examples in contemporary constitutions.

Sample Answer

TO: Head of Government

FROM: Margaret Brenzaida

DATE: TBA

Subject: Clarification on Separation of Powers

A Parliamentary System Of Government
A parliamentary system of government is a system which the parliament has the power to make executive laws. Such a system has no distinction in the separation of powers between the legislature and the executive. The head of the state in this system is the president who is different from the head of the government referred to as the prime minister. A parliamentary system of government has a number of characteristics including; there is no separation of powers between the legislature and the executive, there is a distinction between the head of government and the head of state. The monarch or the president heads the state while the prime minister heads the government. In such a system, there are always two parties, the ruling, and the opposition. Another characteristic of a parliamentary system is that the party with the majority of members rules the legislature and the executive. In such a system the parliament can make a vote of no confidence which can force the prime minister and the ministers out of the parliament. In such a system, during the general elections, if neither of the party’s wins, a coalition is inevitable. The most significant advantage of a parliamentary system is that it is efficient.

The distinction between the parliamentary system and the presidential system in a democratic government

The distinction between a parliamentary system and a presidential system is that; in a parliamentary system, the prime minister is the executive while the president is the executive in a presidential system. In a democratic system, the president is always chosen by the people while the prime minister is chosen by the political party winning majority sits. In a presidential system, the three branches of government are independent of each other; the executive, legislature and judiciary and they check and balance each other. On the other hand, in a parliamentary system, the legislature and executive are not distinctly separate, but the judiciary is separate. In the presidential system also, the executive is not accountable to the legislature, unlike the parliamentary system. Additionally, when it comes to the appointment of ministers, in the parliamentary system, ministers can only be appointed form list of members of parliament. In the presidential system, ministers can be appointed from persons who are not members of parliament. In the presidential system, the president does not have the power to dissolve the lower house, while in the parliamentary system, the prime minister has the powers to dissolve the lower house. The tenure of the executive in the parliamentary system is not fixed, while it is fixed in the presidential system.

Advantages of parliamentary democracies over Presidential democracies in contemporary governance

The constitutional theory holds that separation of powers has proven compatible with presidential systems, unlike the parliamentary systems. This conventional debate has spewed debate when it comes to emerging democracies adopting parliamentary systems. However, the parliamentary system has its advantages. Firstly, the parliamentary system does not suffer possible tyranny like the presidential system. The presidential system as seen in many African countries are vulnerable to the creeping takeover by an authoritarian government. Compared to the presidential systems are historically seen to be more stable. The parliamentary system is more efficient because there is collective responsibility from the cabinet, thus enhances accountability from all members, unlike the presidential system. It is easier to enact legislation in the parliamentary system, unlike the presidential system where the president holds different beliefs from the legislative body. The presidential systems are also rigid because they do not have a system to remove a sitting president. The parliamentary system is more flexible because the prime minister can be impeached by a parliamentary vote. Therefore, the parliamentary systems are more stable compared to the presidential systems.

Bibliography
Baaklini, Abdo I., and Helen Desfosses. Designs for Democratic Stability: Studies in Viable Constitutionalism: Studies in Viable Constitutionalism. Routledge, 2016.

Barnard, Chester Irving, Chester I. Barnard, and Kenneth R. Andrews. The functions of the executive. Vol. 11. Harvard university press, 1968.

Beetham, David, ed. Parliament and democracy in the twenty-first century: A guide to good practice. Inter-Parliamentary Union, 2006.

Earle, Chester B., Valerie A. Earle, and John A. Lynch. Reforming government institutions: how can the national political system best be improved?. American Enterprise Institute for Public Policy Research, 1974.

García-Trevijano, Antonio. A pure theory of democracy. Rowman & Littlefield, 2009.

Siaroff, Alan. "Comparative presidencies: The inadequacy of the presidential, semi?presidential and parliamentary distinction." European journal of political research 42, no. 3 (2003): 287-312.

Singh, Naunihal. A System of Governance: Parliamentary Or Presidential. Anmol Publications PVT. LTD., 1998.

Strøm, Kaare. "Delegation and accountability in parliamentary democracies." European journal of political research 37, no. 3 (2000): 261-290.

 

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