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15 Jun 2018

The Concept of Parliamentary Supremacy in Constitutional Democracy: an Example of Britain



Parliament is a group of people who are elected to make and change the laws of a country. The Nchi Law Dictionary defines a Parliament as the supreme legislature of a country with or without plenary powers to say what the law shall be. The parliament is known by different name in different countries of the world. In Nigeria it is called the National Assembly (the Federal Legislatures). In the United States of America it is known as the Congress, in Germany it is called the ‘Bundestay, while in Britain it is called the Parliament, consisting of the House of Lords and Commons.

A parliament is said to be supreme if it has the plenary power, without limitation to decide what the law shall or shall not be. The United Kingdom still remains the most classical example of a democracy with a sovereign parliament. The doctrine is a fundamental principle of the United Kingdom Constitution. It makes parliament the supreme legal authority in the United Kingdom, which can create or end any law.
Generally, the courts cannot overrule its legislation and no parliament can pass law that future parliaments cannot change. When used in the boarder sense, parliament is the body of elected persons that can enact laws on any subject or matter. The power of the British parliament is transcendent and absolute.

As a body next to non in actual governmental power, the parliament in it power of law-making cannot be confined for ‘persons or causes’ within her bounds. Positively, it means the British parliament can legally enact any kind of law whatsoever, negatively, it means that there is no person or authority or body whose legislative powers can compete with or override the parliament.

This is unlike the exercise of legislative power in a constitutional democracy where we have but a supreme constitution that defines the powers, functions and limits of the law-making body i.e the legislature, as it is in Nigeria.
However, by the legislative supremacy of parliament is meant that there are no legal limitations on the power of parliament to legislate. Parliament here does not refer to the two houses of parliament individually, for neither House has authority to legislate on its own, but to the constitutional entity known as the queen parliament; namely the process by which a bill approved by lords and commons receives the royal assent and thus becomes Act of parliament. Thus defined, parliament, said Dicey, has under the English constitution, the right to make or unmake any law whatever; and further..no person or body is recognised by the law of England as having a right to override or set aside the legislation of parliament.

The doctrine distinguishes the United Kingdom from those countries in which a written constitution imposes limits on the legislature and entrusts the ordinary courts or a constitutional court to decide whether acts of the legislature comply with the constitution. In Marbury v. Madison, the US supreme court held that the judicial function voted in the court necessarily carried it the task of deciding whether an Act of congress was or was not in conformity with the constitution. In legal systems like Nigeria and the US where judicial review of legislation is accepted, legislation may be held to be invalid on a variety of grounds: for example, when it conflicts with the principle of separation of powers, when it infringes human rights guaranteed by the constitution, or has not been passed in accordance with the procedure laid down in the constitution.

By contrast, in the United Kingdom judges cannot entertain any question as to the competence of the legislature to enact a law. Supposing parliament passes a law that Englishmen may be imprisoned without trial; a judge may dislike it, and even consider it as being against the spirit of the constitution; but he has no right or power to question its validity or declare it unconstitutional. On the other hand, the legislature can, by an amendment of the law, virtually override the decision of the courts. For example, the court held in the Taft Vale case (1901) that trade union as a body was bound to suffer for the mistakes of the officers of the union in the conduct of the strike. But the parliament thought that the decision could impede healthy growth of trade union movement, which they sees it necessary for social progress. So they passed the Trade Dispute Act in 1906, overriding the decision of the court by declaring that trade union was not responsible for the mistake of it members.

By and large, Sir Erskine may in his ‘parliamentary supremacy practice’ (15th ed page 26) states that the parliament may enact laws that are unjust and contrary to principles of government, but the parliament is not control (or limited) in it discretion, and when it errs, it errors can only be corrected by itself.        

Author: Wilson Dakuni, Sudent of the Faculty of Law, Nasarawa State University, Keffi


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1 comment:

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