Compare and contrast

QUESTION:
Compare and contrast the main features of the English Constitution, the American Constitution,
and one of the Commonwealth constitutions (Canada, New Zealand, or Australia). Discuss the
similarities/differences in principles such as federalism, the separation of powers, and the
relationship between the executive and the legislature. How does each of the constitutions
incorporate these principles into its structure?

I. INTRODUCTION
The Constitution is the supreme law of the land. The Constitution is an instrument that provides
for the structure of governance, sets out institutions and provides for powers of the government.
The Constitution also sets out the rights of citizens and their limitations as well as the
corresponding duties and responsibilities. Therefore, the Constitution can be defined as an
instrument that sets out rules and principles in a country. It sets out the power relation between
the governed and the government 1 .
This paper seeks to compare the fundamental features of the constitutions of the USA, the U.K.,
and Australia. Secondly, the paper will interrogate the relationship between the executive and

1 Jutta Limbach, ‘The Concept of the Supremacy of the Constitution’ (2001) 64 Modern Law Review 1.

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judiciary in each of the above countries and also discuss the similarities or differences in regards
to the main principles in the Constitution.
II. COMPARING AND CONTRASTING THE CONSTITUTIONS.
1. MAIN FEATURES.
1.1. Individual rights
While the USA has an enforceable bill of rights, Britain does not have one. Instead, citizens in
Britain rely on the European Human Rights Act for the protection of their rights. The United
States has a codified bill of rights that outlines a set of amendments and guaranteed freedoms,
such as freedom of speech. This codification had some people claiming that the greatest strength
of the USA constitution is in their Bill of rights 2 .
Moreover, these rights have existed for almost two centuries, which further manifests the
strength of the Bill of rights in the U.S. Amendments to limit some of the fundamental rights
have not survived the court. Taking the case of Donald Trump, who sought to ban travel from
Muslim countries. The courts could not allow that to happen and quashed it based on
discrimination on the grounds of religion, which violates the first amendment.
On the other end, the U.K. has no codified set of rights, but they rely on the Human Rights Act
of 1998. The U.K. has been seeking to have its set of rights, but some conservatives oppose the
idea on the basis that they will be weaker than the rights protected under the Human Rights Act.
The lack of codification may have adverse implications in the protection of rights. Doing away
with a right in the U.K. is so much easier as it only needs an Act of Parliament passed, unlike in

2 English Bill of Rights – HISTORY'.

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the USA, where there is a need for the constitutional amendment. For instance, the right to be
silent when questioned by the police or in court was eliminated by the 1994 Criminal Justice Act.
Although Australia is considered a liberal democracy, it does not have a bill of rights entrenched
in the Constitution. Neither does it have a National Human Rights Act. Although the
Constitution of Australia does not have a Bill of rights in the Constitution 3 , it contains some
protected rights, including the right to vote provided under section 41 4 , the right to be tried by the
jury in section 80., freedom to one’s religion in section 116, and the right not to be discriminated
based on a person’s state of residency(section117). Other rights in Australia are derived from
common law principles such as the right to a fair trial. Regardless of whether it is a federal law
or state law, it can be challenged in court if it contravenes a right.
1.2. Distribution of power
One of the significant features of the Constitution is the distribution of power among different
institutions and persons. While the U.K. adopted a unitary system, the USA has a federal system
of government. The distribution of power in the USA is horizontal and decentralized. It is
decentralized because the power of the central government is distributed to the states who have
their own legislative, military, and tax-raising power. However, in the U. K's unitary system, all
the power lies in the central government 5 .
Distribution of power in Australia is considered to be a flexible one. The structure of government
in Australia is federalism. Within the federal structure, there are three levels of government,
which are a commonwealth, state, and local. The powers of commonwealth government are
expressly granted under sections 51 and 52 of the Constitution. The state power is provided for
3 ‘Should Australia Have a Bill of Rights? – Go To Court Lawyers’.
4 Australia Constitution.
5 'Separation of Powers | Wex | U.S. Law | LII / Legal Information Institute'.

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in chapter four of the Constitution. Originally, Australia was considered decentralized with most
of the power on states. However, more power seems to be accumulating on the commonwealth
government side 6 .
1.3. Parliamentary Sovereignty
Parliament sovereignty can be construed to provide two meanings. One is the power of
Parliament to make or unmake the law. The second meaning is that the power of Parliament to
make law on any matter is not subject to challenge or review by the judiciary.
Under the political theory, sovereignty is used to describe power and authority. It, therefore,
describes the ultimate authority or the primary decision-maker of a government or state. There
is, however, a distinction between legal and political sovereignty in regards to Parliament. Where
the Parliament passes a politically unpopular law, it does not mean that it does not possess the
legal power to pass the law 7 .
According to Lord Bingham of Cornhill, the doctrine of parliamentary sovereignty is a
recognized principle of constitutional law. The doctrine is premised on the idea that Parliament is
recognized as the supreme lawmaking authority. However, the doctrine of parliamentary
supremacy brings a problem if considered in light of the need to respect the rule of law. This is
because it would be very hard to imagine a constitutional democracy where Parliament is not
bound or constrained by the law 8 .
It is no doubt that in the U.K., legal sovereignty lies in the Parliament. Parliament is the
authority that makes law, declares, and amend the law without seeking authority from others.

6 'Infosheet 20 – The Australian System of Government – Parliament of Australia'.
7 P Aksoy and L DeNardis, Information Technology in Theory (Thomson Course Technology 2007).
8 Lord Bingham, ‘The Rule of Law and the Sovereignty of Parliament?’ (2008) 19 King’s Law Journal 223.

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This is called parliamentary sovereignty and was propagated from the words of Av Dicey, where
he stated that. The principle of Parliamentary sovereignty means neither more nor less than this,
namely that Parliament thus defined has, under the English Constitution, the right to make or
unmake any law whatever: and, further, that the law of England recognizes no person or body as
having a right to override or set aside the legislation of Parliament. A.V. Dicey. The case of R v
Attorney general 9 Lord Birmingham demonstrated the supremacy of Parliament in his statement
that the strength of the U.K. constitution lies in the supremacy of the crown in the Parliament.
In Australia, which has a federal system of government, there is no absolute parliamentary
sovereignty neither among the federal nor the state's Parliament. Each state legislature has an
inherent power that is, however, regulated by or limited to the federal or state Constitution. In
Australia, parliamentary sovereignty is exercised within the limits of the Constitution. For
instance, under section 128 of the federal Constitution 10 , the procedure for altering constitutional
provisions is provided. Further, under section 109, in cases where there is concurrent power in
lawmaking between the states and the commonwealth, then the common wealth-power will
supersede the state lawmaking power. Section 52 and 92 specifies areas of law that the
commonwealth power has exclusive lawmaking power. Section six of the Constitution provides
that unless state law is passed in a manner that conforms to the procedure prescribed by
Parliament, it is invalid 11 .

9 R" v Attorney General for England and Wales [2003] UKPC 22.
10 Australia Constitution.
11 R. Elliot, ‘Rethinking Manner and Form: From Parliamentary Sovereignty to Constitutional Values’ (1991) 29
Osgoode Hall Law Journal 215 <https://digitalcommons.osgoode.yorku.ca/ohlj/vol29/iss2/1/> accessed 11
November 2019.

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In the United States, there is no parliamentary sovereignty. This is because the president has the
power to veto laws made by Parliament. Additionally, the Supreme Court has the power to
review the laws that are passed by Parliament 12 .
2. FEDERALISM
According to Ernest Young, federalism is central to the constitutional design of the United States
of America. He takes the view that federalism was designed to promote the democratic and
accountable exercise of power through several mechanisms. These objectives can be achieved
through fostering diversity and giving powers of self-governance. Another aim of federalism is
to enhance public participation in decision making. Federalism also presents a chance for people
to manage their affairs and advance their development 13 .
2.1. Federalism in United States.
The United States of America is a federal type of government where there is one national
government as well as fifty States. In the United States, there are some powers expressly
reserved for the national government while some reside in the states.
Federalism in the United States had been going through an evolution. The period between 1789
and 1937 was characterized by dual federalism, where there was a clear distinction of federal
powers with the national government reserving the power to regulate commerce. The period after
1937 saw the blurring of the line of power through cooperative federalism. This kind of
federalism 14 Involved partnership between the two levels of government. The national
government gained more power through incentives and grants to the states to implement their
12 Jonathan L Entin, ‘Separation of Powers, the Political Branches, and the Limits of Judicial Review’ [1991] Faculty
Publications 367.
13 Ernest A Young, ‘Federalism as a Constitutional Principle’ [2015] University of Cincinnati Law Review 1057.
14 BR Clark-Tex L Rev. and undefined 2000, ‘Separation of Powers as a Safeguard of Federalism’ HeinOnline.

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policies. In the 1960s, regulated federalism came up where the national government began
attaching strings to grants given to states, consequently expanding national government power.
The current form of federalism in the United States involved a power struggle between the two
levels of government, although they try to cooperate.
The basis of State power is to be found in the tenth amendment. The tenth amendment requires
that any power not reserved for the national government is to be exercised by the state and the
people. Another relationship that is created by federalism is the relationship between different
states. Under the Constitution of the USA, this is covered by the full faith and credit clause that
requires every state to refrain from discriminating members from other states. The clause also
requires that each state honors the public Acts, the decision made by courts in other states, as
well as the law of a state in regards to immunities and privileges.
2.2. Federalism In United Kingdom
The United Kingdom has not adopted federalism; instead, it is a unitary state where all powers
lie on the central government. However, the U.K. is slowly adopting the concept of devolution in
Scotland, Wales, and North Ireland. The possibility of Scotland withdrawing from the U.K. has
led to a debate as to the future of the union and the likelihood of the U.K. adopting a written
constitution and embracing federalism. For the purpose of this discussion, federalism exists
where there is a constitution that is binding and that provides for regional or local representation
where there is a distribution of power between central and regional governments. From the above
description of federalism, it can be seen that the U.K. has not achieved a fully-orbed federation.
The first concern is that the Parliament is still treated as the supreme power in the U.K., which
makes it difficult to understand how a legally binding constitution will come into force. The
second concern is how representation at the local level would work, especially in terms of a

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federal legislature, the United Kingdom parliament, and England's regional legislature alongside
those of Scotland, Wales, and North Ireland. The third concern is how much power would be
devolved at local and regional levels. Federation in the U.K. would be difficult to be established,
considering the U.K. has different experiences in Australia and the United States.
2.3. Federalism In Australia
The Australian model of federalism involves the sharing of power between the commonwealth
government, the state, and the local government. Section 51 and 52 of the Constitution provides
for powers of commonwealth while the state power is provided for in chapter four of the
Constitution. Originally Australia was considered decentralized with most of the power on states.
However, more power seems to be accumulating on the commonwealth government side .
Australia is also characterized by bicameralism, which supports an equal representation of all
states in the Senate provided for under section 7 of the Constitution.
3. SEPARATION.
3.1. Separation of powers in the United States.
According to Steven G. Calabresi, Mark E. Berghausen & Skylar Albertson, the origins of the
USA separation of powers can be traced back to the United Kingdom concept of the Mixed
Regime. In that concept, the King, the Lords, and the Commons exercised checks and balances
over each other. However, each of the arms exercised distinct and separate functions that were
assigned to them.
Therefore, the American model of separation of powers is similar to the English model of
separation of powers. This is model has been hailed by Aristotle, Polybius, Cicero, St. Thomas
Aquinas, and Machiavelli as one of the best forms of separation of powers as one where each of

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the arms oversight each other. The result of the Mixed Regime was the conception of the
functional separation of powers and checks and balances between legislative, executive, and
judicial power. The model of separation of powers where each arm has their distinct functions is
hinged on the vesting clauses of articles I, II, and III, where the Congress, the President, and the
courts have only the legislative, executive, and judicial power 15 .
Separation of powers in the United States involves separation of powers of the judiciary,
Congress, and executive. Article 1, 2, and 3 vest power to the Congress, executive, and the
judiciary respectively 16 . However, the United States is yet to realize the separation of functions
and persons fully. In the United States, no member of the executive or the president himself is
members of Congress, which is a clear separation of powers between the legislature and the
executive 17 .
The Constitution of the United States has some limitations on the separation of powers to allow a
system of checks and balances. For instance, the president has the power to veto a bill that is
passed by Congress. The Senate also approves the appointment of government officials holding
high positions as well as the treaties entered into by the president. Congress also has the power to
question the executive through its committees. The supreme court, on the other hand, is
constitutionally empowered to declare laws passed by Congress unconstitutional.
This principle enables the three arms to influence the decisions touching on the nation. It also
provides for a system of checks and balances that ensures no arm exceeds its constitutional
power. Under article 1 of the Constitution, the law provides for legislative supremacy. More

15 Steven G Calabresi, Mark E Berghausen and Skylar Albertson, ‘The Rise and Fall of the Separation of Powers’
(2015) 106 Northwestern University Law Review, p. 527.
16 United States Constitution, Article 1.
17 United States Constitution, Tenth Amendment.

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often, the president who is a member of the executive competes for power and control of the
government. The tussle is propagated by the ambitions of politicians acting within the
government's institutions. Therefore, the concept of separation of powers seeks to regulate the
power of each person acting under the government's institution. The judiciary in cases of such
disputes acts as the mediator and resolves the power disputes through the doctrine of judicial
review 18 .
3.2. Separation of power in United Kingdom.
The U.K. has a unitary system of government. Therefore, this discussion will be limited to the
doctor of separation of power and its incorporation into the U.K. The U.K. has its power
distributed among the three arms of government; the legislature, executive, and judiciary. Since
the U.K. has no codified Constitution, it has faced a lot of criticism in regards to the separation
of power. This is because the lack of codification makes duties unclear and challenging to
preserve the independence of each arm.
According to Montesquieu, separation of power has four main aspects. First is the separation of
institutions. Second is the separation of duties so that no arm performs the constitutional duty of
another. The third is the separation of persons so that no person belongs to more than one
institution 19 . Lastly, it is that separation of power must provide for a system of checks and
balances to allow each arm to check on the excesses of another. In the U.K., members that make
up the prime minister's cabinet are also members of Parliament. This means that those members
can exercise executive powers while at the same time, vote, or make laws in Parliament. This
creates overlaps of duties and persons between the executive and the legislature.
18 ibid, Art. 1.
19 Robert Shackleton, ‘Montesquieu, Bolingbroke, and the Separation of Powers’, Charles-Louis de Secondat, Baron
de Montesquieu (Routledge 2017).

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The courts are not left behind as they seem to have some overlap with the legislature in so far as
lawmaking is concerned. Using the principle of common law, judges in the U.K. have been able
to change the law where they deem fit through the making of binding precedents. Additionally,
the lord chancellor was part of the three arms
It can, therefore, be said that the separation of powers in the U.K. is a fallacy. However, in 2004,
there was a constitutional reform that led to the Constitutional Reform Act of 2005 20 . The Act
intended to deal with the two main criticisms. First, there was the creation of the supreme court
under section 23, which sought to assume the role of the house of lords appellate committee,
which also consisted of members of the legislature. The implications of creating a new chamber
were that members of the legislature would no longer sit as members of the judiciary. However,
no much difference regarding the separation of powers has been felt. The reason is due to the
lack of a documented constitution. The Act also sought to restrain the powers of the lord
chancellor.
Although the two changes were positive steps towards separation of powers, they have been
criticized for neither being necessary nor sufficient. The fact that members of the executive are
members of Parliament is still a major setback, and therefore this area needs to be reformed,
The U.K., thus, has not wholly incorporated the doctrine of separation of powers, but there are
signs of changes.
3.3. Separation of power in Australia.
At the state level, the constitutional separation of powers has been lacking. Queensland had
become the dominant power and the main controller of Parliament, making it difficult or
20 Zain Jadewin Sujee, 'Anti-Money Laundering Framework in South Africa, the United States and the United
Kingdom.'

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impossible to be held accountable. Queensland took up unicameral rather than a bicameral
system. In the unicameral system, the executive controls the legislature. This is comparable to
the Westminster system, which has no completely separate Powers of the executive and the
legislature 21 .
4. INFRINGEMENT OF THE JUDICIARY BY THE EXECUTIVE.
Even though the Australian judges have the security of tenure (they retire at the age of 70), upon
their retirement, it is the prerogative of the executive to appoint new judges. The executive also
plays a role in the removal of judges from office on the grounds of incapacity or proved
misbehavior. This is done by the governor-general in council upon an address of the Parliament.
The practical example of this interference was manifested in the case of justice Murphy Lionel
who was a high court judge. The precedent for the removal of the judge has not been set from
Murphy’s case; there was a parliamentary commission of inquiry and two senate committees.
Secondly, the justices get selected by the cabinet, although the formal appointment is by the
governor-general. The attorney general does the background check of the justices by consulting
the cabinet, state attorneys, and state bar associations 22 .
Implications of the separation of powers
In Australia, despite the lack of formal separation of powers, there is an implied separation. This
is due to the lack of constitutional entrenchment of the doctrine.
There have been calls for reforms regarding the separation of powers in Australia. The following
reforms are meant to contribute to the doctrine of separation of powers in Australia. First, at the

21 Peter C (Peter Crawford) Oliver, The Constitution of Independence : The Development of Constitutional Theory in
Australia, Canada, and New Zealand (Oxford University Press 2005).
22 Haig Patapan, ‘Separation of Powers in Australia’ (1999) 34 Australian Journal of Political Science 391.

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state level, there is a need to incorporate separation of powers within the state Constitution.
Secondly, there is a need to ensure that the Constitution provides for the independence of the
Supreme Court and the power to review decisions made by executives and laws passed by
Parliament. The Parliament should also be accorded the power to question executive decisions
as well as reviewing and approving appointments on the senior officials of the judiciary.
It can, therefore, be concluded that the Australian Westminster system of government is
characterized by dependency and lack of separation of powers between the executive and the
legislature. Therefore, there is a need for the provision of a system of checks and balances and
separation of powers in the Australian Constitution.
III. CONCLUSION
From the above analysis, it can be concluded that there are significant differences between the
three countries. While America has a codified constitution that entrenches the Bill of Rights,
Australia, and the United Kingdom have not incorporated the Bill of rights in their constitutions.
Additionally, the United States and Australia have a federal system of government where power
is distributed between the central government and regional states while the United Kingdom has
a unitary system where all the power is concentrated on the central government. In regards to the
separation of powers, the United States has a more advanced status of separation of powers than
the other two countries. This can be attributed to the codification of the Constitution and the
entrenchment of the doctrine within the Constitution. The U.K. still faces challenges, although
the current reforms are moving towards making positive change. In the same case, Australia
needs to incorporate the doctrine within the state constitution to make it possible to realize the
separation of powers. In regards to the relationship between the executive and legislature, the
United States is more advanced. In the united states, the relationship between the two arms

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enables a system of checks and balances, unlike in Australia and the United Kingdom, where the
executive largely controls the legislature. 23

23 ibid.

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BIBLIOGRAPHY
Aksoy P and DeNardis L, Information Technology in Theory (Thomson Course Technology
2007)
Bingham, Lord, ‘The Rule of Law and the Sovereignty of Parliament?’ (2008) 19 King’s Law
Journal 223
Calabresi SG, Berghausen ME and Albertson S, ‘The Rise and Fall of the Separation of Powers’
(2015) 106 Northwestern University Law Review
‘English Bill of Rights – HISTORY’
Entin JL, ‘Separation of Powers, the Political Branches, and the Limits of Judicial Review’
[1991] Faculty Publications 367
‘Infosheet 20 – The Australian System of Government – Parliament of Australia’
Limbach J, ‘The Concept of the Supremacy of the Constitution’ (2001) 64 Modern Law Review
1
Oliver PC (Peter C, The Constitution of Independence : The Development of Constitutional
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Patapan H, ‘Separation of Powers in Australia’ (1999) 34 Australian Journal of Political Science
391
R. Elliot, ‘Rethinking Manner and Form: From Parliamentary Sovereignty to Constitutional
Values’ (1991) 29 Osgoode Hall Law Journal 215
<https://digitalcommons.osgoode.yorku.ca/ohlj/vol29/iss2/1/> accessed 11 November 2019

16
Rev. BC-TL and 2000 undefined, ‘Separation of Powers as a Safeguard of Federalism’
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Sujee Z.J., 'Anti-Money Laundering Framework in South Africa the United States and the
United Kingdom'
Young EA, ‘Federalism as a Constitutional Principle’ [2015] University of Cincinnati Law
Review 1057
R" v Attorney General for England and Wales [2003] UKPC 22
Australia Constitution
United States Constitution