The totality of the powers and functions of parliament constitutes its competence. Based on the scope of their competence, parliaments are divided into three groups:
1. Parliaments with absolutely defined competence - characteristic of federal and decentralized unitary states (USA, France, Spain). In such states, central power is limited by the rights of the subjects of the federation or other territorial entities (subjects of jurisdiction).
2. Parliaments with absolutely uncertain competence- i.e. parliaments, which have the right to make laws on any issue and legally have unlimited powers (Great Britain, New Zealand, Japan, Italy and Ireland).
3. Parliaments with relatively defined competence- i.e. the boundaries of competence are relatively fluid; there is no clear criterion for delimiting the powers of parliament and government (Switzerland).
Basic powers of parliaments.
1. Legislative powers(main part of competence):
- the right of legislative initiative (exercised both by members of both chambers and by groups of parliamentarians);
- adoption of laws (either immediately on the project as a whole, or first on articles and chapters, and then on the project as a whole);
- adoption of the budget and other financial powers (tax powers, making decisions on internal and external loans, creating various extra-budgetary funds, etc.).
2. Control over government activities(the object is usually the executive branch, but control can extend to the head of state, the judiciary, the armed forces, etc.). Basic methods:
- raising the question of trust (in countries where the government is responsible to parliament, this is rarely used);
- interpellation (an appeal to the government regarding the motives of its activities, its further actions on issues related to certain aspects of government policy. The government may refuse to answer a question, but with a mandatory reason for the refusal - used widely in Italy, Finland, Japan, Belgium);
- oral and written questions (most often practiced in the UK - ministers' answers to oral questions from deputies are heard every day, except Fridays. Answers to written questions are published in the official reports of parliamentary debates);
- resolution of censure (different from a vote of no confidence in that it is introduced on the proposal of the chamber - France);
- activities of investigative committees and commissions (carried out in cases of special public interest).
3. Powers of ratification and denunciation international treaties (Ratification is the approval by the highest body of the state of an international treaty, after which this treaty acquires legal force, denunciation is the expression of the will of the state to terminate the treaty).
4. Appointment of referendums(this authority is either exclusive or alternative).
5. Formation government agencies and institutions, appointment or election of officials or participation in these procedures.
The forms and methods of this participation include:
- election or appointment at its own discretion (the Czech Parliament elects the President of the Republic at a joint meeting of both chambers);
- election or appointment on the proposal of other bodies or officials (the Slovak National Council elects judges on the proposal of the Government);
- the formation of the entire body without identifying its leaders (the Austrian National Council elects the People's Human Rights Board);
- formation of a body with the election or appointment of its leaders (the Serbian People's Assembly elects and removes the Chairman, Deputy Chairman and Ministers of the Government);
- election or appointment of only the head or also his deputies (North Korean Supreme national assembly elects and recalls the Chairman of the Central Court, and the rest of its composition is elected and recalled by the Permanent Council of the Supreme Court);
- formation of part of the body (in Romania, of the 9 judges of the Constitutional Court - three are appointed by the Chamber of Deputies and three by the Senate);
- participation of the parliament or chamber in the wider panels that form the body (the German Bundestag is part of the Federal Assembly, which elects Federal President);
- the giving by Parliament or the Chamber of preliminary or subsequent consent to the formation of a body or the appointment of officials (the President of the Spanish Government is appointed by the King only if he receives the confidence of an absolute majority of the members of the Congress of Deputies).
6. Defense and security powers(the right to declare war and make peace (state of war, state of defense) - USA, France, Cuba, Italy, Hungary, China).
7. Quasi-judicial powers:
- impeachment (the goal is to remove from office those guilty of committing a crime, the head of state, executive officials, judges);
- the right to bring charges against senior officials before the judiciary;
- amnesty announcement.
23. Deputies are professional parliamentarians who, from the moment they receive their parliamentary mandate, are vested special rights and privileges. In most states, a deputy can be elected (re-elected) more than once, without any restrictions.
The most important privileges include non-responsibility and inviolability (immunity) of deputies. The first means that a parliamentarian is not responsible for actions and statements directly related to his parliamentary activities, both during and after the expiration of his term of office.
Immunity lies in the fact that a deputy, without the consent of parliament or its governing bodies cannot be prosecuted or arrested for an offense unless he is caught in the act of committing a crime. By receiving a “representative mandate” in elections, deputies must express the will of voters, i.e. public interests that ensure the performance of legislative and other functions of parliament. For performing professional parliamentary activities, a parliamentarian receives remuneration (indemnity), as a rule, several times larger than the payment of a qualified specialist.
A general requirement for parliamentarians in presidential and semi-presidential republics is the impossibility of combining a deputy mandate with other positions, both elected and non-elected. On the contrary, in a parliamentary form of government, a deputy can simultaneously be a member of the government. Engagement in entrepreneurial (commercial) activities is prohibited.
The relationship between voters and their elected deputy can be built on the principles of an “imperative mandate” and a “free mandate.” Each of them contains a certain regime of responsibility of the deputy to voters.
The principle of a free mandate means that a parliamentarian is not legally bound by the instructions of voters and acts in parliament in accordance with his ideas about what is proper and his own conscience. On this basis, the right of voters to recall him is denied, as he did not live up to their trust. In accordance with the modern doctrine of constitutional law, a deputy in parliament is, first of all, a full member of the board, possessing powers over the entire state territory and expressing national interests. Thus, the Basic Law of the Federal Republic of Germany (Article 38) states that the deputies of the Bundestag “are representatives of the entire people, are not bound by orders and instructions and are subject only to their conscience.”
In practice, a deputy with a free mandate turns out to be dependent on a political party or electoral association ( social movement), who supported him in the elections. In addition, he is dependent on those organizations and individuals who financed his election campaign or provided him with other support.
The principle of an imperative mandate includes a set of sin elements: mandatory orders from voters for a deputy, mandatory reporting by a deputy; the right to be recalled by voters if he does not fulfill or poorly fulfills orders (instructions).
In this case, the deputy acts as a mandate holder, a representative of the voters of the district in which he was elected. He binds himself with orders and is responsible to voters for failure to fulfill his obligations. The essence of responsibility is expressed in the refusal of voters to support a deputy in the next election or in his recall if the trust placed in him is not justified.
Modern states use a combination of both “free” and “imperative” mandates. As a rule, a free mandate is used at the national level, but at the local community level, where the deputy is more closely connected with voters, it is imperative.
For example, members of the Japanese Diet have a free mandate, but can be expelled from the House at any time by a resolution of a majority of the House members present. Whereas at the local level, deputies can be recalled early at the request of 1/3 of voters by a majority vote.
In a number of foreign countries (Austria, Brazil), along with the deputy, his deputies are elected to assist in the performance of deputy duties. If a deputy resigns, his deputy replaces the mandate and becomes a full-fledged deputy.
In most foreign countries, deputies take an oath at the first meeting of parliament.
24. The process is one of the most stable institutions of constitutional law, little subject to change.
This is a strictly formalized procedure for adopting a law, regulated by legal acts and customs. Failure to comply with legislative procedures implies that the law is declared unconstitutional. In federal states, the national parliament does not have the right to consider and adopt bills that are classified by constitutional norms as the exclusive powers of members (subjects) of the federation. The most important participants in the legislative process are deputies and the national election itself. representative institution- parliament. In Western democracies, the parliamentary legislative process is characterized by transparency, publicity, and the influence of public opinion.
The legislative process consists of a number of stages: the exercise of the right of legislative initiative, discussion of the bill, adoption of the law, approval of it by the second chamber (if one exists), promulgation of the law by the head of state, its publication, entry of the law into legal force.
The official introduction of a bill presupposes its passage in accordance with regulatory legal provisions, which means consistent movement based on established parliamentary procedures.
The adoption of a law depends on the implementation of the right of legislative initiative, which is understood as the power of entities defined in constitutional (legislative) norms (state bodies, deputies, etc.) to introduce bills into the House of Parliament. The legal consequence of the exercise of this right is the obligation of parliament to consider the proposed bills.
Majority Constitution democracies fix the circle of subjects of legislative initiative by accurately listing them, although this list may differ significantly in different countries. As a rule, these include the government and members of parliament; in some countries of Europe, Asia and Latin America - higher (supreme) courts, bodies representing special social interests within the scope of their jurisdiction.
In parliamentary states, the main subject of legislative initiative is the government. In federal states, this right is vested in the legislative legislatures of the constituent entities of the federation. In semi-presidential republics, the right of legislative initiative is widely used by the president.
Most countries follow a complicated procedure for introducing laws related to the financial obligations of the state.
Features of the adoption of financial and budgetary laws: 1)
the right to introduce them is granted to a limited number of subjects - the government or the head of state; 2)
introduced into the lower house of parliament; 3)
an opinion from the government or head of state is required; 4)
there are strictly limited deadlines for their development, presentation and consideration; 5)
the initiative and activity of deputies when considering them in parliament are limited.
The rules of procedure of the chambers of parliament regulate in detail the very procedure for implementing a legislative initiative. Sometimes certain laws are introduced only in the upper house (a number of states in Latin America, Asia, and Africa).
The traditional legislative procedure is preceded by the stage of preparation of the law, which is not considered as part of the legislative process if the latter is interpreted in the narrow sense of the word. In foreign countries, as a rule, this stage is not regulated either in parliamentary regulations or in legislative norms.
However, in a number of countries there are legislative provisions relating to the stage preceding the implementation of a legislative initiative. A draft law can be prepared by citizens and put forward as part of the implementation of the people's law-making initiative. In this case, you need to collect big number signatures of citizens in support of the bill (in Italy - at least 50 thousand, in Spain - 500 thousand). In Austria, at least 100 thousand citizens or one sixth of the citizens of the three states can submit a bill through the Central election commission for discussion in parliament.
Discussion of a bill is the longest stage of the legislative parliamentary procedure. A draft law submitted to the lower or upper house of parliament is first considered in committees (commissions) and then at a plenary session. As a rule, a bill goes through three readings. In the first reading, the question of the advisability of adopting its concept is decided, in the second it is improved and “overgrown” with numerous amendments, and in the third it is adopted as a whole. Quite rarely, a special parliamentary commission is created to prepare a bill. Legislative
approved in the third reading by the chamber in which it was submitted, if necessary, it is sent to the upper chamber. The discussion process in the second chamber of the bicameral parliament goes through the same discussion procedure as in the first chamber. The bicameral structure of parliament requires the approval of a bill by both houses. In case of disagreement between them, various conciliation procedures are applied. If disagreements are overcome and the law is adopted by the chambers of parliament, then it is signed by the head of state and then promulgated - officially published.
The law is considered adopted if the established majority of deputies votes for it.
Constitutional and organic laws are adopted in a more complex manner and over a longer period of time.
During the time specified by the constitution from the date of adoption of the law by parliament, the head of state can exercise the right of veto. There is an absolute (resolution) veto, which is used by the monarch, and a suspensive (suspensive) veto, which the president has. An absolute veto means the impossibility of passing a given law, and it cannot be overcome. A suspensive veto involves the president's objection to a bill. It can be overcome either by voting by a qualified majority of parliament members or by introducing changes to the bill that suit the president (capitulation).
Parliament adopts a variety of laws - constitutional, organic, ordinary, codes. Parliamentary regulations are of a legislative nature - a normative act devoted to the procedure for the activities of a representative (legislative) body of state power. On the basis of regulatory norms, parliament exercises its powers. The publication of regulations is the exclusive prerogative of a representative body, evidence of independence and an important state and political role. Parliament also issues numerous acts with non-normative content: resolutions, resolutions, declarations, statements, addresses, greetings.
25. The government in foreign countries is a collegial executive body. To determine the place of the government in the system of government bodies, it is necessary to analyze its relations with parliament, the head of state, the constitutional oversight body (such a body does not exist in all countries) and political parties.
The government's relationship with parliament depends on the form of government. In presidential republics, the government, headed by the president, is formed extra-parliamentarily and is not responsible to parliament for its activities. Legally, in these countries, the government must only implement laws passed by parliament. Therefore, the government itself, according to the principle of separation of powers applied in presidential republics, is considered as an executive body, deprived of any means of influencing the legislative institution, except for the right of suspensive veto.
The presidential model of government involves the creation of a system in which both “branches of government” - legislative and executive - act independently of each other, but have the ability to balance each other. The “system of checks and balances,” as it is called in the United States, is based on the assumption of an identical legal status of the highest organs of the state. Reality, however, differs from legal provisions.
Although the relative independence of parliament in presidential republics is greater than in parliamentary countries, governments nevertheless occupy central position and play a decisive role in both governance and legislation. In parliamentary countries, governments take an even closer position in relation to parliament. strong positions than in presidential republics. Despite the fact that in these countries the government is politically responsible to parliament, is formed through parliamentary means and is obliged to resign in the event of a vote of no confidence in it, it actually controls and enhances the activities of parliament. We must not forget that the government consists of leaders ruling party, which means that the parliamentary majority is bound by party discipline in its behavior. This pattern finds its fullest expression in those countries where there are one-party governments (currently the Conservative government of Great Britain).
In those countries where coalition governments are in power, parliaments have a greater degree of relative independence in relation to the government. The more complex the parliamentary coalition, the less stable it is, the more dependent it is on the balance of party forces in parliament. However, the general pattern, by virtue of which the government, in all political situations, plays the main role in the practical exercise of state power, operates everywhere. The relationship between the government and the head of state can only be considered in relation to parliamentary countries.
In presidential republics, the president personally heads the government. In parliamentary countries, the head of state can exercise his constitutional competence only through the government or with its sanction. Any actions of the head of state are nothing more than government activities. The most important powers of the head of state, such as the right to dissolve parliament, adjourn the session early, issue decrees, the right of veto, etc., are exercised only on the direct instructions of the government. The institution of countersignature neutralizes any attempt by the head of state to carry out any discretionary actions. The participation of the head of state in the formation of the government is purely nominal. To an even lesser extent, it can influence practical activities. Only when extraordinary circumstances the head of state can influence the formation of the government or its policies. The government's relationship with the supreme body of constitutional oversight depends to a certain extent on the way the latter is formed and on the scope of its powers. The party composition of the constitutional oversight body also plays a certain role.
In those countries where the constitutional oversight body is formed with direct (Japan, USA) or indirect (France, India) participation of the government, the latter, as a rule, has greater opportunities to control this body. But even in those states where the body of constitutional supervision is created without the participation of the government (Germany, Italy), there are sufficient opportunities for the highest executive body of state power to influence it. The scope of competence of the constitutional oversight body and the degree of binding force of its decisions also have a certain impact on its relations with the government. Practice shows that in those countries where constitutional oversight is endowed with broad competence and its decisions are final, clashes between these highest bodies of government are possible in some cases (for example, during the “New Deal” of F.D. Roosevelt).
The government's relationship with political parties depends primarily on the form of government. In parliamentary countries, the government is closely connected with political parties, since it relies on the party majority in parliament, which is the constitutional basis of its existence. In these countries, the government exercises strict control over its faction, all accessible ways maintaining party discipline. The system of parliamentary responsibility creates conditions under which the government is formed only from the leaders of the winning party (in this case we are talking about one-party governments). Thus, the government also represents the leadership of the party. IN British Parliament The party factions of both Labor and Conservatives are disciplined and subordinate to party leaders even when the party is in opposition.
A coalition government does not have the ability to command the parties that make up a parliamentary majority as effectively as single-party governments. The coalition government is forced to maneuver and make compromises. In such a situation, government control over the parties inevitably weakens, but this is by no means liberalism, but a manifestation of the weakness of the government. In presidential republics, the relationship between the government and the parties is of a different nature for the reason that the executive body does not depend on the parliamentary majority. In turn, the parliament in these countries is not subject to the threat of dissolution, which strengthens its position in relation to the government.
The government in presidential republics is less interested in controlling parliamentary factions, but this does not mean that such control is absent. In presidential republics, the regime of bureaucratic command of parties is replaced by more flexible methods - persuasion, personal contacts, patronage, mutual concessions, etc. The government in presidential republics exercises control over parliament not through party factions, but directly, and this control is maintained even when the government and the parliamentary majority belong to different parties. An analysis of the actual position of the government in foreign countries allows us to draw the following conclusions: the government occupies a central place in the system of supreme bodies of state power, although this position is not enshrined in constitutions; the government is the main instrument for implementing both domestic and foreign policy; the government exercises control over the major political parties in any form of government.
In modern foreign countries, depending on the form of government, governments are formed in two main ways, specific features which are determined by the degree of participation of parliaments in this process. The extra-parliamentary method of forming governments is used in presidential republics. The authority to form a government in these countries has its legal source not from parliament, but from the electoral corps, since the government is formed by the president, elected through non-parliamentary elections. The role of parliaments is even legally small. In the United States, the appointment of heads of executive departments is carried out by the president “with the advice and consent” of the Senate, but in fact represents his personal prerogative. The Senate, which according to the Constitution approves the president's appointments to the highest government positions by a majority of 2/3 of the vote, rarely refuses its sanction.
The extra-parliamentary method of forming a government is also used in countries with a mixed form of government, the most typical example of which is the V Republic of France. Although the 1958 Constitution speaks of the government's responsibility to parliament (Article 20), the government is formed extra-parliamentarily and not from members of parliament.
Thus, the procedure for forming a government in the V Republic is, in principle, no different from the similar procedure adopted in presidential republics. The parliamentary method of forming a government, which existed in the Fourth Republic, was completely abolished.
The parliamentary method of forming a government is used in countries with parliamentary forms of government. The authority to form a government in these countries is given to the party or party coalition that wins the elections and receives a majority of seats in parliament (the lower house). In the constitutions of many countries this provision is either absent or stated in an extremely vague form.
In Great Britain, the head of state has the right to appoint the prime minister, but this right is purely nominal and cannot be interpreted as a discretionary power of the crown, the choice of which is always determined by the party composition of the House of Commons. Even within a narrow circle of party leaders, the crown is deprived of the opportunity to choose, since a person undesirable to the party leadership will never be able to form a government. Only a split in the party's leadership could provide the crown with limited choice of prime minister, but such cases are extremely rare.
In Germany, the head of government - the Federal Chancellor - is proposed to the Bundestag by the President, but the latter decides on this issue only after consultation with the leaders of the largest party factions. The role of the president in selecting the prime minister is completely passive. The chancellor proposed by the president is elected without discussion by the Bundestag, after which he is appointed to the position by the president. If, within two rounds, the candidate for Federal Chancellor does not receive an absolute majority of the votes of the members of the Bundestag, then the President may appoint to this position the candidate who received a relative majority, or dissolve Parliament. The procedure for appointing the Prime Minister in India is a republican version English system. According to the constitution (Article 75), the head of government is appointed by the president, but by virtue of the current constitutional agreement, the president can only appoint to this position the leader of the party with the majority of seats in the people's chamber. The internal structure of governments is very diverse, but it can be reduced to two main systems - the Continental and the Anglo-Saxon. The proposed systematization is based on the principle of determining the composition of the government, as well as the method of forming auxiliary institutions that serve it.
The continental system is characterized by the fact that the government includes all heads of central departments with nationwide territorial jurisdiction. Ministers, heads of departments, and secretaries of state, headed by the Prime Minister, form a single collegial body. Under the continental system of government organization, there are no senior officials heading national executive departments outside its framework. Such a procedure for organizing government inevitably leads to an increase in its size, which reduces its efficiency. Therefore, in many countries that have this system, a narrower body is created, consisting of the most prominent government officials heading the most important departments. The most typical example in this regard is the Italian government. In Italy there are no laws limiting the size of the government or defining the nomenclature of ministries.
In Germany, the government in the proper sense of the word is a board consisting of the Federal Chancellor and federal ministers. One of the ministers is appointed by the Federal Chancellor to the position of Vice-Chancellor, who replaces the head of government during illness or temporary absence, although this position itself has no connection with the Bundestag. Several other senior officials usually take part in the work of the federal government - the head of the office of the President of the Republic, the head of the press and information department, and the personal assistant to the chancellor. To discuss and resolve important government issues, the prime ministers of the states are invited to the meetings of the federal government, as provided for by the regulations of the Government of the Federal Republic of Germany, adopted on May 2, 1951.
West German state practice does not know of a special intra-governmental board, which can be explained by two circumstances: 1) the element of collegiality in the work of the federal government is minimal, since all important issues are decided personally by the Chancellor; 2) the size of the government is relatively small (almost equal to the British cabinet). The Constitution of the V French Republic says little about government. The question of its composition has not been settled at all. The French government (both the Council of Ministers and the Council of the Cabinet) includes ministers heading the central executive departments (ministries) and secretaries of state, i.e. heads of departments who are considered "junior ministers".
In modern France, the government in the proper sense of the word (the Council of Ministers) is a board headed by the president. Prime Minister according to Art. 21 of the Constitution can preside over meetings of the Council of Ministers instead of the president only in exceptional cases, on the direct instructions of the president and with a specific agenda. The same board, but headed not by the president, but by the prime minister, represents the Cabinet Council, whose main role is to prepare decisions for the Council of Ministers. The US Cabinet, from the point of view of its internal structure, also belongs to the continental system. The American Constitution says nothing about the cabinet. Nevertheless, by the end of D. Washington's two-term presidency, the cabinet entered into ordinary state life and acquired the features of a government, although it had no legal basis for its existence.
The Anglo-Saxon system owes its origin to the state practice of Great Britain, from where it then spread to other countries (Canada, Australia, India, and 214 others). This system of government structure is distinguished by two significant features. Firstly, the actually existing supreme executive body of state power is not recognized by the constitution and is legally illegal. In all countries that adhere to this system, the cabinet exists on the basis of a constitutional agreement.
In Great Britain, Canada, and Australia, constitutional dogma still puts the privy council at the forefront (in Australia and New Zealand it is called the executive council), the real significance of which in the practical implementation of state management of society is zero. Secondly, the government in the proper sense of the word, that is, the cabinet, does not include all the heads of the central executive departments, but only the most important of them. Ministers in the “rank of cabinet members” occupy a privileged position in relation to those members of the government who are not members of the cabinet. Thus, under the Anglo-Saxon system, the concepts of “government” and “cabinet” do not coincide
The Continental and Anglo-Saxon systems are the most common, but by no means universal, governmental structures. There are a number of varieties of government organization that either combine the features of these systems or have their own specifics. Thus, in New Zealand, the legally highest executive body of state power is the executive council, which is a copy of the British Privy Council. In practice, all powers to govern the country are concentrated in the hands of the cabinet, which exists on the basis of custom. The Executive Council is composed of ministers and is headed by the Governor-General, who is formally considered the head of the executive branch. In reality, the executive council only formalizes the decisions of the cabinet. The Constitution, however, ignores the existence of a sovereign cabinet. A similar system is used in Australia. In the modern era, in many foreign countries there is a tendency to narrow the composition of government.
Determining the actual scope of powers of the government of foreign countries cannot be carried out by analyzing the constitutional texts themselves. To do this, it is necessary to examine the actual activities of the government. All countries are characterized by a striking gap between the legal and actual status of government. As a general rule, in unitary states the substantive competence of the government is not determined, since the legislator proceeds from the assumption that the boundaries between the executive, legislative and judicial powers are completely obvious. Moreover, many foreign constitutions entrust all executive powers to the head of state, although in fact they are always exercised by the government. Some constitutions vest the government with purely advisory functions, constructing it as a kind of advisory body to the head of state. Thus, the Danish Constitution of 1953 establishes: “The King is vested with supreme power in relation to all affairs of the State, subject to the limitations specified in this Constitution; he exercises this power through his ministers.” The Norwegian Constitution also gives executive power to the king (§3), and says very little about the government - the council of state - ultimately reducing its role to giving advice to the sovereign. A number of foreign constitutions briefly define the competence of the government. Yes, Art. Article 20 of the Constitution of the V French Republic states: “The Government determines and implements the policies of the Nation. The administrative bodies and the armed forces are at his disposal.” However, in modern France, almost all real state power is concentrated in the hands of the president. In some countries (for example, Panama), the constitutions contain articles establishing the substantive competence of the government, but the lists they provide are purely formal.
In states with a federal form of government, the powers of the government are also, with rare exceptions (Switzerland), not defined. The constitutions of these countries are limited to the delimitation of competence between the union and the subjects of the federation.
The actual position of the government in foreign countries cannot be absolutely precisely determined, since the boundaries of the exercise of power functions by the body, which is the main instrument for the exercise of power, are very mobile and changeable. In unitary countries, the scope of the government's powers is established in the process of exercising power functions by all supreme bodies of state power. In federal states under a democratic regime, the scope of government powers depends not only on the actual delimitation of the functional and substantive competence of the highest bodies of state power, but also on the distribution of competence between the union and the subjects of the federation. The government of a federal state in the sphere of exercising external functions has the same powers as the government of a unitary state. In the sphere of carrying out internal functions, the scope of powers of the federal government is narrower than that of the unitary government. In the system of supreme authorities of a foreign state, the government is the most active and dynamic element, least subject to legal regulation. It stands above all other supreme bodies of the state. Without being subject to outside control, the government has the opportunity to determine the scope of its powers.
Let's consider the most important functions of the government of foreign countries. Government administration is one of the main functions of government. The government not only plays a decisive role in staffing the entire state apparatus, but also manages its activities. The modern state apparatus, adapted to carry out diverse state functions, is not only large in number, but also very complex in purely organizational terms. The government, which is primarily a political institution, directs and coordinates the activities of the state apparatus through ministries, departments, headquarters and other departments. In relation to the state apparatus, the government acts as a center, which, based on the information it receives, makes decisions carried out by various parts of this apparatus.
Enforcing laws to the letter of constitutions is the most important function of government. Governments in foreign countries are increasingly engaged in rule-making activities and are actively encroaching on the exclusive competence of parliament. Control over the legislative activities of parliament has actually become an independent function of the government. This control is carried out in two main directions. First, the government is the main source of legislative initiative. In presidential republics, this aspect of government activity is more restrained, which is explained by the lack of parliamentary responsibility and the associated non-parliamentary method of forming the government. In parliamentary countries, the government is virtually the only subject of legislative initiative. Secondly, the government has a decisive influence on the legislative process. In presidential republics, the government exercises this control to a lesser extent and in different forms than in parliamentary countries, but it is still quite effective. As a general rule, in presidential republics the government uses the right of veto and direct contacts with parliamentarians for this purpose. The rule-making activities of the government can be divided into three main sectors: 1. The government issues various kinds of regulations on the basis of and in pursuance of parliamentary laws. In this case we are talking about normative acts adopted on issues that are not, as a rule, within the exclusive competence of parliament. Government acts of this group are of a subordinate nature. 2. The government issues regulations under the direct or indirect authority of parliament. Such power to make regulations may be expressly expressed in an Act of Parliament, or it may be implied if the Act is vague.
26. The judiciary is often called the “third power” because in constitutional texts and doctrine, when enumerating the branches of government that make up the system of separation of powers, it usually follows the legislative and executive. However, this in no way detracts from its significance or strictly defined independence in relation to other branches of government. Moreover, depending on the form of government, the interdependence of the legislative and executive powers may be greater (parliamentary form of government) or less (presidential republic). The judicial power under any of the above forms of government is equally delimited from other branches of government, which, of course, does not exclude its relationship with them (which will be discussed below).
Each branch of government has specific forms of activity. Judicial - this form of activity is justice - resolution on the basis of the current law of economic, political and other conflicts and disputes in which citizens, their associations, legal entities, municipal government bodies and even the state itself become participants.
We can schematically identify three main interrelated areas of activity of the judiciary:
protection of rights and legitimate interests citizens;
protection of law and order from criminal and other offenses;
control to ensure that the activities of government bodies do not go beyond the legal framework.
Each branch of government carries out its functions with the help of special bodies unique to it. In the judicial branch, these are the courts that make up the judicial system (which, as we will see later, is often divided into several subsystems). This is a rigidly structured system. Its organizational forms are defined in detail by law and can only be changed by legislation ("The judicial power of the United States is exercised by the Supreme Court and such inferior courts as the Congress may from time to time establish and establish" - US Constitution. Section 1 Art. III) .
The activities of the judicial system take place within the framework of an equally strictly and detailed procedure regulated by law. Its decisions can only be based on law. Her personnel
composition - judges - forms a special professional layer, the so-called judicial corps, which as such, as well as the judges composing it, has a special legal status(“The judicial power is entrusted to the judges.” Basic Law of the Federal Republic of Germany. Art. 92).
No one except the judicial system, represented by the courts that form it, can administer justice on behalf of the state. No one, including the state represented by any of its bodies, has the right to interfere with the activities of the judicial system in the administration of justice. Citizens, their organizations and associations, all state and municipal bodies, the state itself, represented by the highest bodies of power and administration, are obliged to strictly comply with court decisions.
Despite all the relative independence of the judiciary, its activities largely depend on other branches of government, and above all on the legislative branch. After all, it is the latter that determines the competence of individual parts of the judicial system, the status of judges and a number of other issues. The basis of this legislative regulation is the constitution. It is difficult to imagine a modern constitution that would not have a section under one name or another (“On the Judiciary” - the constitutions of France, Spain, Japan; “Justice” - the Basic Law of the Federal Republic of Germany, “Courts” - the Constitution of Portugal, etc. ), where in a condensed form characteristic of constitutions, in one or another combination, what is commonly called the “constitutional foundations of judicial power” is established. This includes:
definition of the judiciary as one of the components of three unified systems of separation of powers;
basic principles of organization and activity of the judicial system;
legal status of judges;
judicial guarantees of the rights and legitimate interests of citizens. Constitutional foundations are developed in detail in the laws on the judicial system (for example, in Germany - the Law on the Judicial System, as amended in 1975; in France - the Code of Judicial System of 1978; in the USA - "Judicial system and legal proceedings", section 28 of the US Code of Laws; in Spain - "Organic Law on the Judicial Power" 1981, etc.), as well as laws on the status of judges (in France - "Organic Law on the Status of Magistracy" 1 9 5 8, in Germany - "Law on Judges" 1961 . and etc.).
The role of the executive branch of government in relation to the judicial system is not so significant in comparison with the legislative one. It comes down mainly to logistical support for the activities of courts. This role is somewhat greater in those countries where the ministries of justice are assigned separate management functions and the management of the prosecutor's office, as is the case, for example, in Germany, where the state ministries of justice (their activities are coordinated by the Federal Ministry of Justice) are entrusted with the appointment of a large part of the judges.
However, in the second half of the 20th century. In many countries, ministries of justice have lost their former leading role in the administration of justice. There has been a clear tendency to transfer relevant functions to special bodies of judicial self-government, which are provided for by many new constitutions, including the constitutions of post-socialist countries, including former republics within the USSR. These bodies go by different names: in France and Italy - the Supreme Council of Magistracy; in Spain - the Supreme Council of the Judiciary; in Bulgaria - the Supreme Judicial Council; in Poland - the All-Polish Judicial Council; in Armenia - Council of Justice, etc.
How significant this body is can be judged by its composition. In Italy, for example (Article 104 of the Constitution), the Supreme Council of Magistracy is chaired by the President of the Republic, the Council ex officio includes the Chairman and the Prosecutor General of the Court of Cassation, the rest of its members are elected for four years: two thirds - by the judiciary from among its members, one a third - by Parliament at a joint meeting of the chambers from among professors of law and lawyers with at least fifteen years of experience.
The composition of the Supreme Council of Magistracy in France is approximately the same: Chairman - the President of the Republic, vice-chairman - the Minister of Justice, six judges, six prosecutors, three lawyers, appointed respectively by the President of the Republic, the Chairman of the National Assembly and the Chairman of the Senate.
It is these bodies of judicial self-government that are entrusted with the formation of the judiciary and the career of judges and prosecutors, their appointment, disciplinary liability, reorganization of individual courts, inspection of courts in necessary cases, etc.
The 1997 Constitution of Poland defined the main purpose of this kind of body as follows: “The All-Polish Judicial Council guards the independence of courts and the independence of judges” (Article 186). Unlike executive authorities - ministries of justice, councils of judges are included in the constitutions among the bodies representing the judicial power, although they do not carry out actual judicial functions (considering cases).
The question of whether the prosecutor's office belongs to the judiciary does not have a clear solution. It all depends on the place occupied by the prosecutor’s office in the system of government bodies. In most states, the prosecutor's office operates under the general leadership of the Minister of Justice and is a more or less centralized system, but in a number of countries this system not only corresponds to the judicial system, but is also organizationally linked to it; Prosecutors are employed and act in courts. Moreover, both judges and prosecutors are equally included in a single professional corps called the magistracy, and are called magistrates.
strata. With such a system, we can say that the prosecutor's office is covered by the concept of judicial power. In those countries (China, Hungary, etc.) where the prosecutor's office is an organizationally separate independent system, it occupies an intermediate position between the judicial and executive branches of government, but is often closer to the latter. In the United States, the Minister of Justice is also the Attorney General (Prosecutor), but in general, due to the peculiarities of the American Federation, the prosecutor's office is largely decentralized.
An example of the first model is France. Here, at the courts of first instance there are so-called republican prosecutors, at each court of the second (appeal) instance there is a Prosecutor General with a group of assistants, the first of whom is called the Advocate General. The Prosecutor General of the Court of Cassation with his staff is attached to the highest authority. Prosecutors represent the state in criminal and civil proceedings and monitor the activities of investigative bodies. The general management of the prosecutor's office is carried out by the Minister of Justice. Since prosecutors have the status of magistrates, they also fall within the competence of the Supreme Council of Magistrates. A similar model exists in Germany, and in Spain the prosecutor's office is not at all connected with the Ministry of Justice, it is headed by the Prosecutor General, appointed by the head of state taking into account the opinion of the Supreme Council of the Judiciary. In the hierarchy of this power, he is considered the second person after the Chairman of the Supreme Court.
It is controversial to attribute to the judicial power the special bodies provided for in a number of constitutions (although they are called “courts”), designed to resolve the issue of responsibility of the head of state, ministers and some other senior officials, such as, for example, the High Chamber of Justice and the Court of the Republic in France (the first resolves the issue of responsibility of the President of the Republic, the second - members of the Government). The fact that their members are elected by the chambers of Parliament from among the deputies speaks against the classification of these bodies as judicial power. Therefore, they can rather be qualified as special parliamentary quasi-judicial bodies1. It is not for nothing that in the text of the French Constitution they are not included in the section “On the Judicial Power”, but are discussed in special sections.
When Charles Montesquieu in the 18th century. developed the idea of separation of powers, something remotely similar to its judicial branch existed only in England due to the historically established value
1 The Court of the Republic, along with twelve parliamentarians, also includes three judges from the Cassdata Court, one of whom presides over the sessions. Neither the Court of the Republic nor the High Chamber of Justice has considered the cases to date.
tralization of the judicial system and the precedent nature of law. Meanwhile, courts existed everywhere. However, the presence of courts does not equate to the presence of judicial power. In order for it to emerge as relatively independent and independent and to receive real organizational outlines, it took a considerable period of development of constitutionalism and the establishment of democratic forms of government and political regime. In the most general terms, we can say that the establishment of an independent judiciary is the result of countries moving along the path of legal statehood. Judicial power, by definition, is compatible with autocracy, totalitarian statehood, and authoritarian-profeudal regimes. By virtue of historical features, the level of legal awareness of society and some other factors, the degree of independence, independence, and authority of the judiciary may be different in those countries that follow the path of legal statehood. Nevertheless, in these countries there is an obvious tendency to increase the role of the judiciary, which was particularly facilitated by the expansion in the second half of this century of judicial control over the constitutionality and legality of normative and other legal acts.
27. Principles of Justice are the main legislative platform for the court’s activities. The principles of justice can be both general in nature and apply to a greater extent only to criminal proceedings, and private in nature, when the protection of individual rights is necessary.
General constitutional principles:
1) only the court has the right to administer justice, no one except the court has the right to assume the functions of justice;
2) independence of judges; they are obliged to obey only the law. No one has the right to tell the court what decision it should make in a particular case;
3) the right of access to court: there are no reasons in the world why a case can be refused, arguing that there is no law or that the case itself is unclear;
4) collective administration of justice;
5) ensuring maintenance trial in a language understood by all parties (in the case of foreign participation, provision of a translator at the expense of the state);
6) publicity of the court implies openness and publicity of the court. The decision to hold closed meetings is made in some cases (for example, when issues of state secrets are considered, as well as intimate, family or similar relations of the parties);
7) the court must provide each party with the opportunity to appeal and review the court decision by appeal, i.e. it is possible to repeat
examination of the case on the merits according to the first instance procedure, as well as through cassation - checking the implementation of the law by the court. An appeal or review of a case can be carried out by conducting an audit, which combines an appeal and cassation;
8) the state is obliged to bear responsibility for the miscarriage of justice and is obliged to compensate in full or to the extent provided by law to the person who suffered damage as a result of an erroneous judicial decision.
The constitution enshrines guarantees of justice. The guarantees of justice include the following:
1) the accused has the right to have the case heard by a jury;
2) the accused has the right to the assistance of a lawyer from the moment of detention or arrest, which he can choose independently or provided by the state;
3) the accused has the right to benefit from free legal assistance, if this does not contradict current legislation;
4) the presumption of innocence applies to all accused until they are found guilty and the verdict comes into force;
5) no person can be convicted twice for the same crime;
6) during the trial, the law prohibits the use of evidence that was obtained in violation of the law;
7) the law establishing or aggravating liability does not have retroactive effect.
Most modern states have parliaments and governments. But what are these structures?
What is parliament?
Under parliament traditionally understood as the highest body of legislative power in those states where the separation of powers into 3 branches is accepted - the legislative branch itself, the representative branch, and the judicial branch. Its main function is the development and publication of regulations that are mandatory for use throughout the country.
Russia also has a parliament - the Federal Assembly. It consists of two chambers - the upper, represented by the Federation Council, and the lower, the State Duma. In many countries of the world, parliament is unicameral.
The highest legislative body of state power is formed, as a rule, with the participation of citizens - through elections. People's representatives are elected to it - deputies from the party or self-nominated people.
Depending on the political tradition adopted in a particular state, parliament can have very broad or, conversely, very limited powers. In the first case, the state can be considered as a parliamentary republic. It is most often headed by the chairman of the government, appointed by deputies of the highest legislative body of power or with their leading role. In the second case - when the powers of parliament are significantly limited - the country will most likely be a presidential republic.
What is government?
Government- This is the highest body, in turn, the executive branch of government. Consists of ministries responsible for development various fields state - economy, society, education, healthcare, culture, national defense.
The government is formed, as a rule, with the direct participation of parliament. Its chairman, as we noted above, can be appointed by deputies of the highest legislative body of power. But in republics where the powers of parliament are limited, he, as well as the heads of ministries, can be nominated, for example, by the president of the country.
At the same time, the chairman of the government, as a rule, is approved by parliamentarians in any case. Sometimes - only representatives of the upper or lower house of the highest legislative body of the state. For example, in Russia, the Chairman of the Government is appointed by the President upon approval of his candidacy by the State Duma. But his deputies, as well as ministers - only by the President at the proposal of the Chairman of the Government.
In some countries, the highest executive body is controlled directly by the head of state. For example, the American Cabinet of the United States is accountable to the President. As such, the Government in the traditional Russian and European sense is not formed in the United States. However, the functions of the US Cabinet roughly correspond to the Government of the Russian Federation. It employs Secretaries, informally called ministers, since their activities generally correspond to those carried out by the heads of ministries in Russia and many other countries where the government is established as the highest executive body.
It is worth noting that the term “government” can be used to refer to all branches of government as a whole - legislative, representative and judicial. For example, if we talk about the USA, the term “Federal Government” is used there, denoting exactly all 3 branches of government enshrined in American Constitution. The US Parliament - Congress - is therefore part of the US Federal Government.
In Russia, of course, it is also common to use the term “government” as meaning all state power as a whole - but unofficially. In the federal legislation of the Russian Federation, this concept is used exclusively as corresponding to the highest body of the executive branch of government.
Comparison
The main difference between parliament and government is that the first body of power belongs to the legislative branch, and the second to the executive branch. Parliament is elected by the people, and the government is appointed. Let us note that the legislative branch of government plays a significant role in this - and therefore citizens, albeit indirectly, also take part in the formation of the highest executive body.
Having determined what the difference is between parliament and government, we will record its main criteria in the table.
All foreign constitutions give parliament legislative powers. Passing laws is the main task of parliament. In theory, only parliament has the sovereign right to make laws.
The legislative activity of parliament has historically undergone very serious changes. In modern states, parliament continues to legislate, but this activity has lost its sovereign character. Although, along with the complication of the functions of the state, the volume of legislative activity of parliament has increased, the government has become the center of rule-making. In foreign literature, they try to explain this phenomenon by the fact that the volume of government work has increased so much, the legislative technique has become so complicated, and the legislation itself has become so specialized that the parliament inevitably had to give up a significant part of its sovereign powers in favor of the government, since it could cope with this task itself could not.
The process of increasing the role of the executive branch of government in legislative activity parliament proceeds along the following main directions.
Firstly, modern foreign parliaments have almost completely lost the right of legislative initiative. The acts it adopts are developed and introduced mainly by the government in the broad sense of the word, i.e. ministries, departments, departments and other central administrative bodies.
The transfer of legislative initiative into the hands of the government has occurred to varying degrees in all foreign countries. In parliamentary countries where the institution of responsible government exists, the latter carries out legislative initiatives either through ministers or through deputies of the ruling party. Bills are drawn up in the administrative apparatus, and parliament receives them in finished form. In presidential republics, which do not know parliamentary responsibility, the government carries out legislative initiatives in a less open form, but no less effectively.
Secondly, the weakening role of parliament in legislative activity is manifested in the continuous growth of the share of delegated legislation and other types of administrative rule-making. To a certain extent, not only the sovereign nature of parliamentary legislation has been lost, but also the legislative prerogative itself in to a certain extent moved to the administrative apparatus. The share of parliamentary acts in the system of legal norms has sharply decreased, and their application and interpretation is directly dependent on the administration.
Thirdly, the parliamentary majority that makes laws is to a certain extent deprived of independence and votes at the direction of its party leaders.
In parliamentary countries, party discipline is usually so strong that the majority faction is effectively subordinate to the government. All activities of deputies are strictly controlled. This system is especially effective in countries where there are one-party governments (for example, Great Britain).
In presidential republics, party discipline is much weaker and party factions are freer. The absence of an institution of responsible government takes the very process of forming an executive body beyond the walls of parliament. However, even in these countries, free voting is by no means a general rule.
Thus, legislative activity in foreign countries is, to a certain extent, only formally carried out by parliament. To a certain extent it is directed and controlled by the government. This general pattern always manifests itself in full. Political situations are possible when parliament has the opportunity to activate its powers. This happened in the United States during the Watergate case, which led to a sharp decline in the prestige of presidential power. This balance of power continued after President D. R. Ford took office. A similar situation arose at the end of R. Reagan’s presidency, as well as in France after the 1986 elections.
Passing the budget and other financial powers is the oldest prerogative of parliament. However, as the executive power became stronger, financial powers increasingly shifted from parliament to government. In modern industrialized countries, the preparation and execution of the budget and all other financial powers have passed almost entirely into the hands of the government.
Financial activities modern state is very complex, and is dealt with by many parts of the central government apparatus. In the sphere of financial activities, the parliament has the right to for the most part passive role. Budgeting is done by the government. For example, the US Congress does not take any part in preparing the federal budget (this task is assigned to the Office of Management and Budget, subordinate to the president); only approves the government's financial proposals. Moreover, Congress, as a rule, does not even have an idea of the budget as a whole, usually voting only individual financial bills. Thanks to this system, Congress does not know until the future what the federal budget is, the President can make additional expenses, Congress is faced with a fait accompli. However, the situation changes when the president and the majority in both houses of Congress belong to different political parties.
In the UK, the House of Commons also deals with financial proposals already prepared by the cabinet, which are approved by it without significant changes. Review of both the revenue and expenditure side of the budget by the Ways and Means Committee and the Appropriations Committee is formal, and any opposition proposals are rejected by the government majority.
This situation is typical for all countries without exception. Legally, all financial legislation comes from parliament, but in practice it plays a purely nominal role in this area. Parliament cannot play a more active role in the sphere of budgetary relations (as in other areas) simply because it does not have adequate information support.
Control over government activities is one of the most important powers parliament.
Parliamentary control over government activities is inherent only in a democratic political regime. Its specific expression depends on the form of government. In presidential republics, the control powers of parliaments are less varied, but their effectiveness increases due to the government’s lack of powers to dissolve parliament. In parliamentary countries, on the contrary, the extensive control powers of parliament are largely neutralized by the government's right to dissolve parliament.
Modern parliamentary practice knows the following main methods of exercising control over government activities.
1. The question of trust, applied only in parliamentary countries, where the government is responsible to parliament (usually the lower house) for its activities.
The use of this control means is virtually nullified due to the fact that, firstly, the question of trust is usually raised by the government in its own interests; secondly, in the event of a vote of no confidence, the government can dissolve parliament and call new elections. Practice shows that the government often uses the issue of confidence to blackmail parliament, thereby putting it at risk of dissolution.
In modern parliamentary practice, the resignation of a government as a result of a vote of no confidence is a fairly rare occurrence and most often coalition governments (Italy) fall victim to it.
The failure of an important government bill in parliament may cause the government to resign, whether it wishes to do so or if it is forced to do so because of the importance of the rejected bill.
A vote of no confidence in an individual minister is used quite rarely in modern parliamentary practice. In recent years, such cases have occurred in Japan, India and several other countries.
2. A resolution of censure, which, unlike a vote of no confidence, is introduced not at the initiative of the government, but at the proposal of the chamber.
The legal consequences of passing a resolution of censure are the same as those of a vote of no confidence. This type of parliamentary control is especially carefully regulated in France. Article 49 of the 1958 Constitution contains the following provision: “The National Assembly expresses no confidence in the government by passing a resolution of censure. Such a resolution can be put up for discussion only if it is signed by at least 1/10 total number members of the National Assembly. Voting can only take place 48 hours after the resolution is submitted. Only the votes cast for a resolution of censure are counted, which can only be adopted by a majority of those constituting the National Assembly. If a resolution is rejected, then its authors cannot introduce a new similar resolution during the same session..."
Thus, the adoption of a resolution of censure is surrounded by a number of constitutional slingshots, the main purpose of which is to protect the government from this form of parliamentary control. In other parliamentary countries, the process of passing censure resolutions is no less complex.
3. Interpellation, i.e. a request for a government to explain its domestic or foreign policies or a specific issue.
Interpellations are used in parliamentary practice in many countries (Italy, Belgium, Denmark, Finland, the Netherlands, Norway, Japan). It is characteristic that neither in Great Britain nor in countries that have adopted the British legal system, interpellations are used.
The introduction of interpellations is practiced, as a rule, only in the lower chambers, and this procedure breaks down into the following main stages: submission to the chamber of a memorandum on the reasons for the interpellation and the text of the interpellation itself; informing the government about the interpellation received and setting a response date; government response to interpellation; introducing additional questions and opening general debates; raising the question of approval or disapproval of government activities.
Interpellation can cause the resignation of the government if its performance during the discussion and subsequent vote is considered unsatisfactory.
4. Oral and written questions. This form is widely used in parliamentary countries and serves not so much to control the government as to criticize it. Parliamentary questions are of a very different nature - from purely informational to openly anti-government. Parliamentary practice knows many ways in which the government neutralizes the effectiveness of issues.
The introduction of parliamentary questions is always subject to various kinds of procedural restrictions. As an illustration, here is Rule 39 of the Rules of the Canadian House of Commons: “Matters relating to the receipt of information on public matters from Ministers of the Crown may be placed on the order of the day; questions received from other deputies related to any bill, proposal or other public issue related to the affairs of the House in which such deputies may be interested are also included; however, in raising or answering such questions, no argument or opinion shall be offered, no facts shall be declared, except such as may be necessary to explain the substance of the matter; When answering such a question, the essence of the matter to which it relates should not be discussed)).
Despite the strict rules on the “admissibility of questions” established by parliamentary rules, this method of criticizing the government is very effective. In Great Britain and countries that have adopted its parliamentary procedures, almost every parliamentary meeting begins with Question Hour. Ministers and other government members answer parliamentary questions orally or in writing. The relevant information becomes public knowledge.
5. The activities of investigative committees and commissions that are created by the parliaments of all countries, regardless of the form of government.
These bodies are used not only to audit the activities of the administrative apparatus, but also extend their activity to the work of political parties, trade unions, and public organizations. To carry out these tasks, investigative committees are given significant powers. They have the right to request information and documentation from any government bodies, political and public organizations, to call officials, experts and individual citizens. Widespread legal doctrine holds that such powers are granted to parliamentary investigative committees in order to assist legislative activity. Scientists believe that these bodies are the most effective means of exercising the control functions of parliament. Investigative committees often make scandalous revelations of bureaucracy, bribery and incompetence of certain public administration bodies. The activities of committees in many countries are public, their hearings are broadcast on radio and television. The standing committees and subcommittees of the Senate and House of Representatives of the US Congress are especially active in this regard. Sometimes investigative committees achieve significant results. Thus, the investigative committee of Senator Sam Erwin did a lot in solving the Watergate case and the subsequent resignation of President Richard Nixon. The special committees of the US Senate and House of Representatives in 1987 played a significant role in exposing the Iran-Contra scam.
The legal basis for investigation committees is various types of acts. Thus, in Germany, the establishment of investigative committees is provided for by the basic law (Article 44/1). In many countries, these committees are created on the basis of constitutional and organic laws, parliamentary statutes and regulations. In the United States, similar authority is contained in the Reorganization Act of 1946, which gave select committees the power to carry out “continuous supervision of the execution of the laws by administrative agencies.” Similar provisions are contained in the Budget Control Act of 1974.
Temporary investigative committees are created on the basis of joint or separate parliamentary resolutions. Finally, in a number of countries (Great Britain, New Zealand, etc.) investigation committees can be created on the basis of customs and precedents.
A unique form of parliamentary control over the activities of the government and the administration subordinate to it is the institution of ombudsmen. This institute first originated in Sweden in the very early XIX century and subsequently became widespread in a number of countries (Denmark, Finland, Norway, Great Britain, Germany, New Zealand, etc.). Ombudsmen are appointed by parliaments and are their officials. They are vested by parliaments with fairly broad control powers. For example, the Parliamentary Commissioner for the Scrutiny of Administration in Great Britain investigates complaints of maladministration made by constituents to their MPs in the House of Commons. Its powers extend to all activities of central departments, with the exception of political decisions. Foreign policy and the activities of British officials outside the United Kingdom also remain outside its jurisdiction. He has access to all departmental papers and reports the results of his investigation to the House of Commons. An inquiry committee is usually appointed to consider the Parliamentary Commissioner's proposals. The results of investigations carried out by ombudsmen are usually published in the press. Parliaments in some cases take legislative measures to eliminate detected abuses. The institution of ombudsmen to a certain extent complements traditional forms of parliamentary control. He is highly regarded in foreign legal literature. However, arguments have also been put forward against this method of control. Since the introduction of ombudsmen in some US states, concerns have been raised that they are effectively usurping the functions of mayors, district attorneys and other elected officials.
Judicial powers of foreign parliaments are limited and their implementation does not figure prominently in normal parliamentary activities. Parliaments are rarely vested with the powers of a court of first instance. The most typical example is the British House of Lords, which is traditionally the court of first instance for mayors accused of serious public or criminal offenses.
Giving parliaments appellate jurisdiction is also an exception. The House of Lords in Great Britain has such powers.
In a number of countries, parliaments are given the right to carry out special judicial proceedings (impeachment) in cases of a certain category of officials. Impeachment was first used in England when the institution of parliamentary ministerial responsibility did not exist. Legally, even now, the House of Commons can hold accountable any minister or other official who has committed a criminal or political crime. In this case, the verdict would be passed by the House of Lords in accordance with the charge formulated by the House of Commons. The last time impeachment was used in Great Britain was in 1805.
The US Constitution also provides for the possibility of impeachment of a number of federal officials, including the president. Under the Constitution, the House of Representatives, which serves as the chamber of the trial, drafts charges in the form of “articles of impeachment,” which are sent to the Senate for conviction. A person found guilty by impeachment is removed from office, but may subsequently be subject to ordinary criminal prosecution. Over the entire existence of the United States, the impeachment procedure was used 13 times, and only in 4 cases did the Senate find the defendants guilty. Last time was impeached in 1936 federal judge X. Ritter and found guilty by the Senate. In 7 cases, impeachment proceedings were initiated, but various reasons was interrupted. In 1970, two resolutions were introduced in the House of Representatives to impeach Member Supreme Court USA W. Douglas, but the special judicial subcommittee of the House did not see grounds for impeachment in his actions. In 1974, the impeachment procedure was interrupted by the resignation of President R. Nixon (a preliminary survey of congressmen and senators showed that he would certainly be found guilty). During the Iran-Contra scandal, a bill to impeach President Ronald Reagan was introduced in the House of Representatives.
The impeachment procedure, with certain additions and changes, has been adopted by the parliaments of many countries. Thus, according to the French Constitution of 1958, the president can be held accountable for committing high treason. In this case, the charge is brought by parliament, and the case is considered on its merits by the Supreme Court. A similar procedure is provided for in the Italian Constitution of 1947, according to which the president can be held accountable for treason or infringement of the constitution. In this case, the charges are brought by parliament, and the verdict is passed by the constitutional court.
The Indian Constitution of 1950 also provides for impeachment, but introduces a significant innovation - charges can be brought by either house, and the verdict, accordingly, is passed by the other house.
The judicial or quasi-judicial powers of the parliament may include its right to resolve disputes about the legality of the deputy mandate and the legality of elections.
The foreign policy powers of parliaments are limited. Parliament is practically deprived of the opportunity to exert a decisive influence on the formation and implementation of foreign policy. He can express his opinion and exercise control over the foreign policy government. These functions are usually assigned to commissions for foreign affairs relevant chambers. The rights of parliament to declare war and make peace are purely formal, since these powers are actually completely concentrated in the hands of the government. As for the right of ratification and denunciation of international treaties, which belongs to some parliaments, this power, as a rule, is not effective. Often the government has the power to enter into international agreements that do not require parliamentary ratification.
CONCLUSION: Passing laws is the main task of parliament. In theory, only parliament has the sovereign right to make laws.
Powers of Parliament
Taking into account the dependence on powers, there are three types of parliaments: 1) with unlimited powers in most countries, when parliament makes decisions on any issue; 2) with limited powers, when constitutions list the range of issues on which parliament can legislate, and on other issues regulatory acts of the president, government, etc. are issued.
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(France and its former colonies); 3) consultative parliament - typical for some Muslim countries, since it is believed that all major decisions that become the subject of laws are already regulated in the Koran.
The powers of parliament may be enshrined in constitutions or other acts. As a rule, these are powers of a legislative nature, powers in the field of finance, powers to control the activities of the government, and powers related to the formation of other government bodies. Specific constitutions and special laws may establish a more extensive range of these powers.
The most important of these powers of parliament is adoption and publication of laws : constitution, amendments to it, organic laws, laws on the state budget.
Parliament elects, appoints, and forms other supreme bodies of the state, forming them entirely or in parts. In many countries, the parliament forms the entire composition of the government: by voting on the government program it expresses confidence in it, after which the government is appointed by an act of the head of state. Parliament (sometimes one of the chambers) forms the constitutional court (or appoints some of its members), the supreme court (or appoints its chairman), and appoints the prosecutor general, comptroller general, and some other senior officials. The powers to form higher bodies and appoint senior officials are usually exercised separately by different chambers: each of them has its own competence.
In the field of foreign policy parliament ratifies (claims) international treaties or gives consent to the president to ratify them, decides on the use of armed forces outside the country.
He has some quasi-judicial powers : resolves issues of impeachment (removal from office) of the president and some other officials (USA), makes decisions on bringing ministers and other senior officials to trial (France, Poland). Parliament has the right to decide issues related to the fundamentals of the legal status of a group of people: only it can declare an amnesty (stop punishment for those convicted under certain articles of the criminal code).
Are of great importance financial and control powers parliament. In most countries, only he has the right to establish material burdens of the state (make decisions on government loans, loans from foreign states and international organizations), establish taxes, adopt the state budget in the form of a single law on state revenues and expenses for a year (France) or in the form of a set of budgetary (financial) laws (Japan).
An important right and authority of parliament is parliamentary control over the activities of the executive branch and other higher state bodies. The forms of such control are different. Parliamentary control can be of a political nature (expressing no confidence in a minister) and legal (the activities of investigative commissions created by parliament). The following forms of control are used:
1. Special questions and requests
to the highest bodies of the state and senior officials: government, ministers, To the Prosecutor General and etc.
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at a plenary session of parliament.
2. Debate on predetermined issues and general policy government. The debate is not intended to pass judgment on government performance.
3. Interpellation , providing for the raising of a socially significant issue at a plenary meeting, followed by an explanation by the minister (head of government), discussion and decision-making by voting. An unsatisfactory assessment of the response, an expression of no confidence, or censure of actions may lead to the resignation of the minister or the government, or, on the contrary, the latter may, acting through the head of state, dissolve parliament and set a date for new elections.
4. Staging question of vote of no confidence or motion of censure government. Moving a resolution of no confidence, like interpellations, is difficult and subject to strict rules. Usually this question is raised by the opposition, which is trying to “overthrow” the government. When there is a vote of no confidence in even one minister, the responsibility must be collective: the entire government resigns.
5. Reports and reports of the government and ministers about its current activities at plenary sessions of the chambers. In parliamentary republics and monarchies, if the performance of the executive branch is unsatisfactorily assessed, the question arises of the resignation of the government and ministers. Under other forms of government, reports and records become essentially information.
6. Presentation to relevant standing committees parliament ministerial annual reports on the activities of ministries (the Minister of Foreign Affairs - to the Foreign Affairs Committee, the Minister of Labor - to the Labor Committee, etc.).
7. Parliamentary hearings . Hearings are aimed at attracting the attention of the public and government bodies to issues of great importance. Representatives of the executive branch, well-known public figures, scientists, experts, other persons. No binding decisions are made at the hearing.
8. Parliamentary inquiries . For this purpose, parliament or its chambers create special commissions that have access to all documents, including secret ones; all officials and citizens must appear when summoned by these commissions and give evidence; refusal threatens to be charged with contempt of parliament and punished.
9. Activities of parliamentary commissioners and other bodies under parliament. They make annual reports to parliament on the state of the law, on shortcomings in the organization of governance in the relevant area, can contact the justice authorities with a demand to initiate criminal proceedings in cases of gross violations of the law by officials, and in some countries they themselves can initiate such cases. Sometimes they are also obliged to monitor compliance with ethical behavior by officials.
10. Convening special sessions of parliament to control the actions of executive authorities in special situations (with the introduction state of emergency, application of federal intervention).
11. Impeachment in relation to senior officials, when parliament (the lower house) brings charges and, in a quasi-judicial process, the upper house decides on the issue of removal from office. In some countries, parliament only formulates the charge, and the case is considered by a special court.
12. Control over delegated legislation – acts of the executive power issued on behalf of parliament and having the force of law. Such acts are submitted to parliament and are sometimes subject to approval by it within a specified period (otherwise they become invalid).
13. The control method is ratification (approval) by parliament of international treaties concluded by the executive branch (cases of non-approval are rare).
The powers of parliament - concept and types. Classification and features of the category “Powers of Parliament” 2017, 2018.
First main function parliament - legislative, in which the following stages are distinguished: discussion, adoption of amendments, coordination of the interests of various groups and party factions, signing of the bill by the head of the executive branch. Very often, a bill is discussed in several readings, during which amendments and additions are made.
Condemnation of bills at a plenary session takes place, as a rule, publicly, in commissions - at behind closed doors. In most countries, the bill is first considered by the lower house, and the upper house approves, changes or rejects it.
Passing legislation is difficult if both chambers have equal powers. In this case, the bill, amended by one chamber or the other, can be discussed endlessly (this practice is called the “shuttle” and with its help any objectionable law can be defeated). To avoid this, a conciliation commission is created from representatives of both chambers to develop an acceptable text. If he is also rejected, then the bill is not adopted.
In addition to discussions and verbal skirmishes during the work of parliament, deputies use some tactics, for example, “suwarikomi”, when some of them deny entry to other deputies, “boycott” - refusal of mandates, from attending meetings. Techniques are used aimed at preventing unwanted speakers from giving the floor, for example, the guillotine, i.e. despite the desire of the deputies to continue the debate, they move on to voting, “filibustering” - prolongation of the debate (in the US Congress, the speaker does not have the right to interfere in the debate, even if the deputies begin to read the text of the Bible). The discussion of bills is led by the speaker, selecting at his discretion some of the amendments and grouping them by similarity. This technique is called "kangaroo". In Japan, the “cow step” tactic is popular among deputies, when they try in every possible way to delay discussion and voting in order to prevent the ruling party from bringing the debate to the end of the session. And in the Japanese parliament, if a law is not adopted by the session, then its consideration may be pushed back to a very distant future, or even not discussed again at all.
The second function of parliament is representative. This means that members elected to parliament must represent and protect the interests of their constituents. True, it must be admitted that in real life The opinion of citizens does not have a significant impact on the activities of legislators. This happens for various reasons. One of them is absenteeism (from the Latin absens, absent, indifferent attitude of citizens to political life, avoidance of participation in it, in particular in voting in elections). In addition, the imperfection of legislation leads in a number of cases to a violation of the principle of representation of national-ethnic and social groups. Thus, in Israel, considered one of the most democratic states, the rights of the Arab population are violated, because they have little representation in the Knesset, although they make up a significant part of the country's population.
The third function is closely related to the representative function - the feedback function, without which government bodies cannot provide social support for the course being pursued. Feedback is provided through contacts between deputies and voters, letters, briefings, and round tables. In the USA, lunch and dinner parties are practiced, although they are inaccessible to the average citizen, because the entrance ticket to them costs up to a thousand dollars.
The fourth, no less important function of parliament is budget formation, which is figuratively called the “power of the purse”. In many states, parliament literally lays out the details of budget expenditure items. There are a number of examples in US history where Congress, using the “power of the purse,” shaped certain policies. So, in 1972, he refused the president to allocate funds for the maintenance ground forces in Vietnam and eventually forced The White house get them out of there.
Deputies in countries with parliamentary forms of government have broader powers. So; In many parliamentary republics, the head of state is elected by legislators. Their competence also includes forming the government and monitoring its activities.
The forms of control are varied: oral and written questions, interpellations (Latin interpellatio - interruption of speech, complaint before the court) - requests addressed by deputies to the prime minister or minister with demands to give an explanation for any reason or fact. Interpellation differs from a question in that the official’s answer is discussed by the chamber and an appropriate resolution can be adopted on it. Sometimes this ends with a vote of no confidence in a minister or government. In most states, interpellation can be submitted only on behalf of a certain number of deputies: in Finland this is at least 20, in Germany - at least 30 people. The response to interpellation must be given within a certain period of time, usually up to two weeks. The Institute of Interpellation exists in all countries. Its role increases with the democratization of the political life of society and government.
Some states have a special institution of parliamentary commissioners (ombedsmen), whose purpose is to monitor compliance with laws by government officials. If violations are detected, they have the right to initiate criminal prosecution against those responsible for abuse. The commissioners present an annual report to parliament on their activities.
In a number of countries (France, Italy, Belgium, etc.) the parliament has a so-called Accounts Chamber, which checks the financial activities of state-owned enterprises and accounts for the use of the state budget.
Foreign policy functions should also be highlighted in the activities of parliament. These include:
1) approval of military doctrine and main directions foreign policy activities states;
2) ratification and denunciation of international treaties;
3) declaration of war, conclusion of peace, etc. The implementation of all these functions makes it possible to prevent the development of undemocratic, authoritarian tendencies.
The head of state personifies the unity of the nation, country, performs representative functions in the international arena, and in domestic political activities the highest state acts. The role, place and functions of the head of state are determined by various factors, the greatest influence of which is the form of government and political regime.
As a rule, the head of state is the monarch, the president, or the prime minister. However, other options are not excluded. Thus, in the USSR the Chairman of the Supreme Council was officially the head of state.
In monarchies, the head of state is the king, emperor, shah, etc. and his post is inherited for life (history knows of exceptions when tsars were elected: in Russia, before Peter I, they were elected by boyars).
When transferring the throne, the Castilian system was most often used, according to which his heir is determined by direct male and female descendants in the order of primogeniture, with men having precedence over women. The monarch has state regalia- throne, crown, scepter, etc. At the beginning of the reign, a certain amount of money (civil sheet) is allocated for the maintenance of the court (that is, the staff of persons in charge of the private affairs of the monarch). In addition, the monarch has income from shares, real estate, etc., which he owns, which are not taxed in a number of countries. Thus, English monarchs were exempt from taxes, but under public pressure in 1992, Queen Elizabeth was forced to renounce this privilege.
Key role in socio-political life, monarchs play only in absolute and dualistic monarchies, and there are few of them in the modern world (UAE, Saudi Arabia, Kuwait and some others).
In modern parliamentary monarchies, the institution of the monarch is primarily a tribute to tradition and is mainly of a formal nature. The monarch “reigns, does not rule,” although legally he can approve the prime minister, be a permanent member of the government, have access to all documents, and be the supreme commander in chief. The monarch is not responsible for all his actions, and each of his acts requires a countersignature (the signature of the relevant minister, meaning that he takes responsibility).
Let us note that modern monarchs, having high authority and respect among citizens, can play a big role in a crisis. Thus, the Spanish king, having managed to paralyze the will of the putschists, significantly increased his influence and proved that he is the guarantor of the country’s integrity, stability and order. And the inability of the King of Greece to resist the establishment of a military dictatorship led to the fact that in a referendum citizens: spoke in favor republican uniform board.
If the monarch is unable to perform his functions (infancy, illness), these responsibilities are assigned to the regency council or a guardian.
In a republic, the head of state is usually the president. Its main difference from the monarch is that presidential post Elective and presidential rule is limited by time frame. The origins of the institution of the presidency go back to the Ancient Roman Republic, in which, in emergency circumstances, a “leader of the people” (magister populi) was elected, later a “dictator” (dicto - prescribe, command), whose term of office was six months. Modern version The presidency arose in the United States in 1787.
The procedure for electing the president, his powers and their duration vary. Thus, in most countries the president is elected popularly (France, Venezuela, Ireland, Russia, Belarus, etc.), in some - by the electoral college (USA), in Germany - by a special assembly, which includes representatives of the states and deputies of the Bundestag, in Switzerland - government, in Greece, Israel - by parliament. The term of office is also different: in the USA, Russia, Colombia - 4 years, in India, Venezuela, Belarus - 5, in France - 7 years. In addition, in a number of countries, constitutions limit the term of office of the same person to one (Mexico, Ecuador) or two (USA, Austria, Germany, Russia, Belarus) terms; in France, Italy, Finland there are no term limits.
If the president is unable to perform his functions, his place is taken by either the vice president (USA), or the speaker of parliament (France), or the chairman of the government (Russia, Belarus) and early presidential elections. Such situations arise when the president:
Incapacitated due to health reasons;
Committed treason or another felony, violated the Constitution, and was removed from office through impeachment proceedings. This is a complex procedure that begins with the relevant parliamentary decision;
Resigns voluntarily. The powers of the head of state are determined by the constitution and depend mainly on the form of government. In a parliamentary republic, the president is the head of state formally. Its functions are purely representative. In fact, all power is concentrated in the hands of the person heading the government.
In presidential republics and in republics with mixed government, the president is a key figure in the structure of the highest authorities. He is both the head of state and the head of government, despite the presence of the post of prime minister or chairman of the government in a mixed form of government. They carry out:
Formation of government and control over its activities;
Resolving issues related to the use of armed forces, developing military policy states;
Acceptance of credentials and letters of recall from foreign diplomats;
The right to pardon, amnesty;
Appointment of judges (without the right to interfere in the justice process). For example, in order to ensure the independence of the judiciary in the United States, Supreme Court judges are appointed by the president for life;
Addressing parliament with messages;
Dissolution of parliament in cases provided for by constitutions (France, Russia, Belarus);
Monitoring the implementation of laws;
Negotiating and concluding international agreements;
Signing laws;
The right to veto certain legislative acts;
Introduction of a state of emergency in cases provided for by the constitution; and etc.
Thus, a simple listing of the functions of the head of state in presidential republics and republics with mixed government indicates; that the president virtually single-handedly determines all the main areas of activity of the executive branch, delegating a number of his powers to ministers, and, for example, the president of France, having broad rights, is not always responsible for his actions: most of his acts are countersigned by the prime minister.
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