(1)
Institutions of Government. There are four major institutions – the head
of state, the legislature, the executive and the judiciary. In a unitary constitution
there is only one of each of these institutions. By contrast in a federal system
of government governmental power is divided between a central government
and two or more regional governments that are called by such names as states
(for example United States and Australia), provinces (for example Canada)
and cantons (for example Switzerland).
(2)
Source of Power. There is some rule or doctrine that asserts, justifies or
legitimises the power of the government.
These five basic components of constitutional can be set out in a table in the
following manner:
Source of Power
Head of State
Legislature
Executive
Judiciary
Source of Power
Figure 3.9 Constitutional Law
Institutions of Government
Provisions regulating the four institutions namely the head of state, the
legislature, the executive and the judiciary, are conveniently described in their
legal form by reference to four characteristics. These provisions establish the
institutions, provide their composition, confer their powers and lay down
procedures for the exercise of their powers.
Establishment
Establishment provisions establish the institutions of government. Under the
best drafting practice the statute creates the court explicitly. For example s5 of
the Federal Court of Australia Act 1976
establishes the Federal Court of
of
Australia, is created by this Act”.
An alternative means is to create an institution by oblique or implicit reference.
To illustrate this, section 1 of Article I of the United States Constitution
creates the United States Congress by incidental syntax which vests legislative
power in the Congress. It provides: “All legislative Powers herein granted shall
be vested in a Congress of the United States, which shall consist of a Senate
and House of Representatives”.
Establishment provisions have an unusual quality. While most legal rules are
framed as conditional statements (when certain types of facts occur
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