HISTORICAL AND COMPARATIVE REVIEW 1. The right of petitioning the authorities took its rise in constitutional law from the Magna Carta (1215). Ever since the right ...
HISTORICAL AND COMPARATIVE REVIEW
1. The right of petitioning the authorities took its rise in constitutional law from the Magna Carta (1215). Ever since the right of petitioning the Crown and Parliament for redress of grievances has been acknowledged as a fundamental principle of the English constitutional law and has been uninterruptedly exercised.
When an aggrieved party could not obtain a write to suit his case he would often adopt the expedient of presenting a petition to the King in Council, concisely stating the facts of his case and the relief sought. Such petitions were delegated by the Council to one or more of its members, usually the Chancellor, but in cases relating to admiralty to the Admiral, for consideration and decision. By the middle and later fourteenth century, however, a variety of addresses occur on those petitions. Sometimes this were sent to the King, sometimes to the Council and more often to the Chancellor. In this way the chancery jurisdiction originated. As a result of the Seven Bishops Trials the right to petition has been recognized by an express provision in the Bill of Rights, 1668, to the effect that
“It is the right of the subjects to petition the King and all commitments and prosecutions for such petitions are illegal”.
Petitions were also submitted to the King in Parliament as the highest court of justice. They were originally directed to judicial rather than legislative measures, and they were dealing with individual grievances. Gradually, however, and especially during the seventeenth century when Parliament came to be regarded as a political and legislative body rather that as a court, the petitions were addressed to either of the House and were praying usually for an alteration of the general law rather than a redress of private wrong.
The right to petition the House of Commons and its powers in this respect there were laid down in the following two resolutions of the House of Commons in 1699:
“That it is the inherent right of every commoner in England to prepare and present petitions to the House of Commons in case of grievance, and the House of Commons to receive the same”.
“That it is an undoubted right and privilege of the Commons to judge and determine, touching the nature and matter of such petitions, how far they are lit and unfit to be received”.
Under the prevailing practice such petitions are presented to the Houses of Parliament by one of their members but they may be sent directly by British subjects residing abroad or by inhabitants of overseas British territories. Of course their receivability depends upon the competence of Parliament to deal with them.
Petitions to the Crown continue to be submitted in exercise of the constitutional right comprised in the aforesaid provision of the Bill of Rights.
2. The right to petition is guaranteed by the First Amendment of the Constitution of the United States. Under that Amendment.
“Congress shall make no law … abridging the right of the people peaceably to assemble, and to petition the government for a redress of grievances”.
Though historically the right to petition in the primary right and the right to peaceably assemble a subordinate and instrumental right as if the First Amendment was reading “the right of the people peaceably to assemble in order to petition government”, nevertheless, the modern view is that the right to peaceably assemble is “a cognate to those of free speech and free press and is equally fundamental”. Furthermore the right to petition has expanded as it was found not to be confined to “redress of grievances” but to comprehend demands for any exercise by the government of its powers in furtherance of the interest and prosperity of the petitioners and of their views an politically contentious matters. As observed by Chief Justice Waite in the Cruikshank’s case.
“The right of the people peaceably to assemble for the purpose of petitioning the Congress for a redress of grievances or for anything else connected with the powers or the duties of the national government, is an attribute of national citizenship and, as such, under the protection of, and guaranteed by, the United States. The very idea of a government, republican in from, implies a right on the part of its citizens to meet peaceably for consultation in respect of public affairs and to petition for a redress of grievances”.
In this way the sending of a telegram to the Secretary of State for Labour sharply criticizing the action of a State court in a pending case was considered an exercise of the right to petition a duly accredited representative of the United States.
Also the right of lobbying in its commonly accepted sense of directing communications with members of Congress on pending or intended federal legislation is considered as an expression of the right to petition.
The right to petition cannot be amended either by a State or by a private individual.
3. The right to petition in France has become today an historical memory. The development of the press and the freedom of assembly and association, the emergence of various political parties and other pressure groups and the expansion of their influence on the formation of public opinion and the outlining of parliamentary policies and the recourse to administrative tribunals contributed to the loss of the former importance of that right.
In the past, however, and especially towards the end of the eighteenth and throughout the nineteenth century the right to petition has played an important role in the constitutional history of France. The Declaration des droits de l’homme et du citoyen contains no provision relating to that right.