{"id":13356,"date":"2012-12-08T23:47:08","date_gmt":"2012-12-09T04:47:08","guid":{"rendered":"http:\/\/dbsjeyaraj.com\/dbsj\/?p=13356"},"modified":"2012-12-09T07:54:45","modified_gmt":"2012-12-09T12:54:45","slug":"we-do-not-have-the-concept-of-supremacy-of-parliament-in-this-countryin-our-constitution-the-people-are-sovereign","status":"publish","type":"post","link":"https:\/\/dbsjeyaraj.com\/dbsj\/?p=13356","title":{"rendered":"\u201cWe do not Have the Concept of Supremacy of Parliament in This Country; In our Constitution the People are Sovereign\u201d"},"content":{"rendered":"

By<\/p>\n

MA Sumanthiran M.P.<\/strong><\/p>\n

S<\/strong>ri Lanka\u2019s modern political system is largely a legacy of British colonialism. This legacy is reflected in the Parliamentary system of government that Sri Lanka inherited. With this system came the British political principle of Parliamentary Supremacy. Indeed this principle lies at the heart of the British political tradition.
\n
\nParliamentary Supremacy is a phrase that implies a hierarchal relationship amongst branches of government. The British system is not unique in that it operates off a standard triumvirate of governing bodies: the Parliament or Legislative Body, the Monarch or Executive, and the Courts or Judicial Body. Under the British system, of these three branches the Parliament is Supreme. <\/p>\n

There are three principles concerning Parliamentary supremacy. First that the Acts of Parliament are not subject to judicial review, second that the Acts of Parliament cannot tie the hands of fa uture Parliament, and third the Acts of Parliament are unlimited in scope. A.V. Dicey wrote: \u201cNeither more nor less than this, namely, that Parliament thus defined has, under the English constitution, the right to make or unmake any law whatsoever; and, further, that no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament.\u201d <\/p>\n

The three principles of Parliamentary supremacy are enshrined in British common law. Of these, the first regarding the relationship between the Courts and the Parliament is of particular interest. <\/p>\n

Because Britain has no written Constitution, this fundamental principle protecting the Acts of Parliament from judicial review is (ironically) canonized in common law jurisprudence. In fact it is the Court\u2019s recognition of the primacy of Parliament that forms the foundation for British political system. <\/p>\n

In 1842, Edinburgh & Dalkeith Railway Co v Wauchope Lord Campbell wrote<\/p>\n

“All that a court of justice can look to is the parliamentary roll: they see that an Act has passed both Houses of Parliament, and that it has received the royal assent, and no court of justice can inquire into the manner in which it was introduced into Parliament, what was done previously to its being introduced, or what passed in Parliament during the various stages of its progress through both Houses of Parliament.”<\/p>\n

In 1871 Justice Willes J. rejected the notion that the Court was to act as a regent over the acts of Parliament. His position per Lee v Bude & Torrington Junction Rly Co was \u201cIf an Act of Parliament has been obtained improperly, it is for the legislature to correct it by repealing it: but, so long as it exists as law, the courts are bound to obey it.” In deciding the matter Cheney v Conn [Inspector of Taxes] [1968] Thomas J. wrote that Parliamentary law \u201c . . . is the law which prevails over every other form of law, and it is not for the court to say that a parliamentary enactment, the highest law in this country, is illegal.” <\/p>\n

Sir Edward Coke expounded on the unbridled power of Parliament to make laws in Blackstone\u2019s Commentaries. He proclaimed that \u201cthe power and jurisdiction of Parliament is so transcendent and absolute, that it cannot be confined, either for causes or persons, within any bounds.\u201d According to Sir Edward, Parliament has uncontrollable authority to make, confirm, enlarge, restrain, abrogate, repeal, revive and expound on laws. He concludes his statements by saying that \u201cwhat the Parliament doth, no authority upon earth can undo.\u201d <\/p>\n

The Supremacy of Parliament also means that Parliamentary legislation is both supreme and sufficient\u2014that is, all proper legislation finds its origin in the Parliament. Experiments in delegating legislative responsibility to Executive or the Monarch were short lived and quickly abandoned as was the case with Henry VIII in 1539. Henry\u2019s self-assumed \u201cprerogative\u201d powers were repealed during the reign of Edward VI. Out of modern necessity, the Parliament will at times empower the Privy Council or the judges to work out the details of legislation, but this empowerment is strictly as applied. The executive is not granted wide latitude to supplement Parliamentary law with Executive orders.<\/p>\n

Even the \u201cprerogative\u201d powers of an executive, which even the monarchs of Britain are accustomed, such as the ability to make treaties and grant pardons are not beyond the supreme reach of the Parliament. The understanding is that even as the executive exercises these powers the Parliament can regulate or abolish this or any other royal\/executive act. <\/p>\n

The Sri Lankan Context <\/strong><\/p>\n

The Supremacy of Parliament cuts two ways. If the Parliament is indeed supreme than the Judiciary, it does not, by common application, have the privilege post-enactment judicial review. But additionaly, if the Parliament is supreme, then the Executive does not have discretionary legislative power. And the Powers of the President enumerated in Article 33 of the Constitution and alluded to in Article (33)(f) are limited. Article (33)(f) \u201cto do all such acts and things, not being inconsistent with the provisions of the Constitution or written law as by international law, custom or usage he is required or authorized to do.\u201d Under the doctrine of the supremacy of Parliament, the powers of the Executive must be curtailed.<\/p>\n

The supremacy of the law of the land was not a novel doctrine in the 19th century. It may be traced back to the medieval notion that law, whether it be law ordained by God or by man, ought to rule the world.\u2019<\/p>\n

In our Constitution the people are sovereign. It is not the Parliament that is sovereign. This is different to the British concept. In fact, A.V. Dicey says that in Britain, Parliament means three things: the King, the House of Lords and the House of Commons. All these three things, together, is called the Parliament and the essence of the supremacy or the sovereignty of Parliament is that Parliament can make any law whatever and Parliament can unmake law and that is what we call the legislative supremacy of Parliament.<\/p>\n

In this country we do not have the concept of the supremacy of Parliament. That\u2019s a wrong notion. Not even in England, now. Hundred years ago that concept went out. In the 8th edition of A.V. Dicey, that was in 1855, he talked about the sovereignty of Parliament but in 1911, after the Parliament Act in the UK, in the 1914 edition, before he died, at the age of 92, he retraced it and said that the concept of Parliamentary sovereignty was outdated. The situation had changed. But in Sri Lanka, in the 1972 Constitution, we did have the notion of Parliamentary supremacy or the legislative supremacy of Parliament. But in the 1978 Constitution, for the first time, the issue of referendum was introduced.<\/p>\n

In our Constitution we have two concepts: one is the rule of law and the other is separation of powers and as Parliament is supreme in the legislative sphere, the Judiciary is supreme in another sphere. Even in England, the concept of legislative supremacy came about through interpretation of Courts. In our Constitution, in Article 125 it has been very clearly laid out that it is only the Judiciary, and that too only the apex court, the Supreme Court, that has the sole and exclusive jurisdiction to interpret the Constitution.<\/p>\n

When the concept of referendum was brought in through the 1978 Constitution the powers of Parliament were restricted. Even by 2\/3 majority you can\u2019t change certain provisions of the Constitution. You can change it only by additionally going directly to the people and getting their consent at a referendum. The point is that in the 1st Republican Constitution you could make any law. You didn\u2019t have to get the consent of the people at a referendum. But now, under the 2nd Republican Constitution that we live under, the power of the Parliament has been restricted because you can\u2019t change or you can\u2019t make laws contrary to certain entrenched provisions. <\/p>\n

You have to go directly to the people because the people are sovereign, not Parliament. People have delegated their sovereignty to be exercised by three branches of government and one has been given to Parliament, the other has been given to the President. The President has also been elected directly by the people but that does not mean that the Executive is supreme. These are three parallel institutions that operate under a concept of separation of powers and unless we function in that way, the whole system will collapse.<\/p>\n

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By MA Sumanthiran M.P. Sri Lanka\u2019s modern political system is largely a legacy of British colonialism. This legacy is reflected in the Parliamentary system of government that Sri Lanka inherited. With this system came the British political principle of Parliamentary Supremacy. Indeed this principle lies at the heart of the British political tradition.<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":[],"categories":[12],"tags":[],"_links":{"self":[{"href":"https:\/\/dbsjeyaraj.com\/dbsj\/index.php?rest_route=\/wp\/v2\/posts\/13356"}],"collection":[{"href":"https:\/\/dbsjeyaraj.com\/dbsj\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/dbsjeyaraj.com\/dbsj\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/dbsjeyaraj.com\/dbsj\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/dbsjeyaraj.com\/dbsj\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=13356"}],"version-history":[{"count":2,"href":"https:\/\/dbsjeyaraj.com\/dbsj\/index.php?rest_route=\/wp\/v2\/posts\/13356\/revisions"}],"predecessor-version":[{"id":13358,"href":"https:\/\/dbsjeyaraj.com\/dbsj\/index.php?rest_route=\/wp\/v2\/posts\/13356\/revisions\/13358"}],"wp:attachment":[{"href":"https:\/\/dbsjeyaraj.com\/dbsj\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=13356"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/dbsjeyaraj.com\/dbsj\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=13356"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/dbsjeyaraj.com\/dbsj\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=13356"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}