Parliamentary supremacy

Introduction

According to Dicey, Supremacy of parliament means, “the right to make or unmake any law whatever and further, that no person or body is recognized by law of England as having the right to override or set aside the legislation of parliament. Dicey also says that the principle of parliamentary supremacy can be looked at from both it’s positive and negative side. From the positive side, it simply means that an Act of parliament or any part of an Act of parliament, which makes a   new law or repeals or modifies an existing law will be obeyed by the courts.

Another definition of the parliamentary supremacy is that the parliament (that is the Queen, Lords and commons in parliament assembly) can pass laws in any topic affecting any person, and that these are not fundamental laws which parliament can not prevent or repeal in the same way as ordinary legislation[1].

The historical back ground of the parliamentary supremacy in 19^thC the prevailing justice theory in this country was Austin’s doctrine of sovereignty which supposed that, in every mature legal  system there was same person or body that body is sovereignty and it is Vested with Unlimited power to make law[2].

The parliamentary Supremacy or Sovereignty in England

According to Dicey parliamentary Supremacy is known as parliamentary sovereignty and he continue further by saying that parliamentary supremacy or sovereign is Omnipotence power that the parliament enjoy in the legislative process. Objected by the temporally constitution lawyers Dicey and Ivor Jennings. In his book written “the law and constitution”[3].The objection to use parliamentary sovereignty is backed up by with several reason among those are as follows.

Sovereignty was the doctrine developed at the close of the secular state against the claims of the church in this sense the word sovereignty has connotation of Quasi theological origin which may easily lead us in difficult understanding and application.

The parliament is not sovereign for there are many things which the parliament can not do, The concept of the parliamentary sovereignty is highly doubted. This is because there are two categories of sovereignty associated with the parliament include   Legal Sovereignty, Political sovereignty

Legal Sovereignty is a merely legal notion or Understanding this means the power of law making is unrestricted by legal limit. It is legal concept and a form of expression  which lawyers use to express the relation between parliament and the court. In this sense or conception it means that the court will always recognize as law or the legislation or statute which the parliament make[4].

Political sovereignty, this refers to electorate or voting public if this is the position legal sovereignty is not sovereignty at all. To avoid this problems there is tendency of using the term supremacy instead of sovereignty.

Unlimited limb of parliamentary sovereignty or supremacy in England is not limited, due to the following reasons;

Unlimited legislative Authority, parliament ‘s infinite power to legislate is well documented in black stone’s commentaries. The power and jurisdiction of parliament is so transcendent and absolute, that it can not be confined, either for course or persons, within any bounds it has sovereign and uncontrollable authority of the making, confirming, enlarging, restraining, abrogating, repealing, reviewing, and expounding laws, concerning matters of all possible denominations, ecclesiastical or temporal, civil military maritime, or criminal.........All mischief and grievances, operations and remedies ,that transcend the ordinary course of the laws are within the reach of this extraordinary tribunal...It can in short do everything that is not naturally impossible[5].

By virtue of its pre-eminence position the parliament has invariably seized this opportunity to make laws which clearly demonstrative its legislative supremacy.

Unlimited legislative authority further means that the parliament in England can pass law of any topic affecting any person in England. Again unlimited legislative authority there is no fundamental law which the parliament can not amend or repeal in addition to that limited legislative authority means that once the document is recognize has being the Act of parliament no English court can refuse to obey the Act of parliament or can question it’s validity finally the parliament may make legislation with retrospective operation this is an exception to the general rule that legislative did not operate retrospective. This was explained in the case of MANUEL v. ATTORNEY GENERAL[6]  in this case Learned Chancellor Miguary reconsidered Canada Act of 182 and once satisfied that it had been passed by in the house of lords and house of commons and has received the Royal assent and there was no suggestion that the copy was not a true copy of the Act he recognized this Act to be valid Act.

Also in the case of TRACOMIN V. SUDAN ALL SEEDS CO. LTD[7]in this case the court held that if the parliament wish to enact retrospective it can do so provided that it used sufficiently plain word. Their intention is to legislate retrospective need to be expressed provided that there is a very clear implication of the effect.

The parliament in England has passed many laws with clear demons late that the parliament in England have unlimited legislative authority and may legislate retrospectively.

The law damages Act of 1965 which have retrospective operation, the Act of indemnity which was in a statute the purpose of which was to make legal transaction where formally illegal. The union of Scotland Act (1906) by which English parliament extinguish it self and transferred authority to the new power. The Act of settlement of 1700 the parliament Act 1949 which reduced the maximum duration of the parliament from seven to five years the parliament Act of 1911 which restricted the power of House of Lords to withhold it’s own assent to the public bill especially money bill, Septennial Act of 1715 the Act extended the duration of the parliament from three to seven years.

With unlimited legislative authority of parliament in England, it may remodel or it may prolong it’s own life, it may legalize illegality, it may legislate retrospective, it may interfere contract, it may provide for individual case, it may authorize for seizure of property, it may give dictatorial powers to the government, it may dissolve the United Kingdom, it may introduce communism or socialism, it may introduce fascism. All these may be done by the parliament in England entirely without legal restriction.

Another limb of parliamentary supremacy or sovereignty in England is absence of competing legislative power. The authority to legislate in England was originally resided into the crown, but at present time this authority no longer lies with the crown. The crown in England can issue royal proclamation but those proclamations can not impose legal obligation to the citizens of England. The crown may just draw attention of the citizens to adhere the law. In this context the crown in England has lost the ground as a competitor of the parliament even judge made law are not judicial legislation, the major reason of this are the judges in England do not exercise any power to repeal the statute also the so called judiciary legislation (precedent) are subordinate legislation carried on with the assent of the parliament and also precedent in England are subject to the supervision of the parliament[8]

The following are the limitations of parliamentary supremacy in England.

Despite the fact that, parliament supremacy means that the parliament in England has unlimited power to make law and that there is absence of competing organ in law making, yet that unlimited power of legislation has limitations;

Self limitation, the parliament in England can not restrict it’s own powers by any enactment while it exercises it’s own supremacy, if the supreme impose legal limitations upon it self such limitation is ineffective. This is because the supreme power to change the law that affect it self, but the parliament may be limited by the higher laws that is the law made by God. In the case of GOLDEN V. HALLE[9], Albet C.J as he then was observed that if the Act of parliament which has a close in it that it should never be repealed, yet without question, the same power that made it may repeal it.

Further more the Septennial Act[10] provides inter alia that the parliament also is not bound by its predecessor, this was seen in the case of HELLEN STREET ESTATE LTD V MINISTER OF HELATH[11] in this case the court held that the legislation can not bind it self as to the form of subsequent legislation and it is impracticable for the parliament to enact that in a subsequent legislation and in dealing with the same subject matter there on be no implied repeal. if a subsequent to Act of parliament choose to make it plain that the earlier statute is being  to some extent repealed, effects must be given to that intention just because it is the will of legislation.

The problem raised in this self limitation is that known to logicians as self referring on reflexive propositions, the view put forward here is that it is impracticable for the legislature to limit it self as to the laws it shall make or repeal unless it is empowered expressly or impliedly so to limit it self by some higher law that is some prior law not laid down by it self. If our courts were to recognize any limitation on the power of the parliament to pass statutes applicable within the United Kingdom dealing with constitutional statutes[12].

Political limitation

This is practical limitation to real power of the parliamentary constitution in England, consist in the possibility or certainty that people or large proportion of them will, disobey or resist the laws passed thereof. Supremacy of parliament is therefore limited on every side by the possibility of popular resistance. It follows that parliament can not enact laws that would prove unenforceable to them being repugnant to the moral sense of the people in England.

The doctrine of mandate 

Mandate means authorization of consent. This is the doctrine which was invested during the later part of 19^th century. Several meaning have been imputed on the doctrine. It may mean that a government should not introduced major changes by legislation unless they have been an issue in general election, or that a government which have lost general support in the country should not force major legislation through parliament shortly before an election, even though that legislation may have been in it’s electoral program. It may also mean that state or government has an obligation to carry on to be statute book the main heads of it’s electoral programmer.

The first and last meaning suggest that a government in power is bound by it’s party’s manifesto and consequently any legislation to be tabled before the parliament and should conform with manifesto. But we know that the government acts with for the general populace and not necessarily those who voted for it or it’s party. In this case the government is bound to remain flexible and pass any legislation that will care of any exigency that might arise irrespective of party’s manifesto. The doctrine of mandate, it is said that it is a stick used by the opposition parties to the government   in   power[13].

Public opinion

However, it expressed it self thorough the press, eg. Redio, television, trade unions, party organizations, associations and in countless other ways. The manner in which the reigning government and parliament interprets it naturally effects the parliament activities including the passing of legislation.

Parliament exercises it’s legislative supremacy with it’s responsibility to the general public or electorate in mind. So the government in power have to discharge their responsibility taking into consideration the fact after expiration of it’s tenure the government has to face the electorate in another general election[14].

International Law

In practice parliament is further limited by rules of international law. It is commonly said that the principles or rules of international law are part of international law. But this suggests only that the law of England is presumed not to be contrary in international law.

Phillips says “there is presumption that parliament does not intend to legislate contrary to the principles of international law, and a statute would be interpreted as far as possible so as not to conflict with them, but the legal power of the parliament to make laws contrary thereto remains for the sovereign power of the parliament, it extends even to breaking treaties. But before the principle of international law are thrown over-board in favour of an English statute, the statute should bear clear and unambiguous to express that intention[15].

Consultation of Interest Affected 

There is mo general legal duty to consult before the government pushes a bill into the parliament for legislation. But lately modern states do not in practice introduce legislation affecting the major interests of well-defined section of the community without prior consultation with organization or pressure groups defending their interests. In deed in many occasion and particularity in cases of delegated legislation the parliament has mere than often provided for consultation between ministers and the organizations of pressure groups representing effects be affected by the subsidiary legislation[16].

The advantages underlying such consultations are obvious firstly, it equips the legislating authority with enough and adequate knowledge of problem which is to be covered by legislation. Secondly it guarantees the authority and cooperation essential for the enticement of the legislation. But consultation does not mean being bound by the advice thought from the pressure groups or the associations and at no point should it be allowed to hamper parliament in reaching, financial decisions. However it is important that the persons or groups consulted be truly representative of the interest concerned .

Generally, the doctrine of parliamentary supremacy signifies unlimited power of legislation on any subject, in reality the are number of practical limitations which erode sanctity of this doctrine. The limitations are dictated by political and public considerations the desire for consultation and the respect for international law.

Reference book

O. Hood Philips and Jackson (2001) Constitution an Administrative Law 8^th Edition London Sweet and Maxwell

Manual

Constitution and Legal System of East Africa C.K Mtaki; Constitution and Legal System of East Africa, 1^st edition, Open \university of Tanzania

Foot notes

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[1]Hood Phillips and Jackson,constitution and Administrative law pg 47

[2]Ibid

[3]Constitutions and legal system of E.A pg 219

[4] Ibid

[5]Constitutions legal system of E.A pg 222

[6] (1983) Chancellery decision No 77.

[7] (1983)

[8] Constitution and legal system of E.A pg 224

[9] (1686) LR VOL 11

[10] (1715)

[11] (1934) VOL 1KB Pg 50

[12] O. Hood Phillips and Jackson,Constitution and Administrative Law 8^th Edition pg 56

[13] Constitution and Legal System of E.A pg 229.

[14] Ibid

[15] Ibid

[16] Constitution and Legal System of E.A pg 230