The Supremacy of Parliament and the Supremacy of the Constitution

• Author: Hamid A. Ghany
• Profession: Director of the Sir Arthur Lewis Institute of Social and Economic Studies (SALISES) at The University of the West Indies, St Augustine
• Pages: 33-48

2.

The Supremacy of Parliament

and the Supremacy of the

Constitution

The advent of newly independent countries in the Commonwealth

Caribbean that were formerly colonies of Great Britain brought with it the

establishment of parliaments authorized to enact and repeal legislation

in accordance with the provisions of their written independence

constitutions.

The transfer of the doctrine of the supremacy of Parliament is an

important matter that goes to the heart of the democracies of these

countries and their simultaneous acceptance of fundamental human

rights and freedoms upon becoming independent through the grant of

fully responsible status to them by the British government.

The question of the supremacy of Parliament is a legal doctrine of the

British system of government. According to A.V. Dicey:

The principle, therefore, of parliamentary sovereignty means neither more

nor less than this, namely that “Parliament” has “the right to make or

unmake any law whatever; 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,” and further that this right or power of Parliament extends to

every part of the King’s dominions.1

It was from the Revolution Settlement of 1688 that sovereignty was

vested not in the King alone, but rather in the King in Parliament.2

This has

remained as the foundation of the British system of government for more

than 300 years. To challenge this phenomenon would require a revolution

as it has been recognized by the courts and by constitutional scholars alike.

This dominance was also exported to the colonies of Great Britain in

such a manner that the legislatures in the colonies themselves became

constrained in the exercise of their own powers by the omnipotent

powers of the British Parliament. This power, though, had been erratically

enforced in theory on the premise that the inhabitants of British colonies

were naturally subject to British law. Indeed, in the American Colonies Act

Constitutional Development in the Commonwealth Caribbean

34

17663 it was asserted that the British Parliament had ‘...to have full power

and authority to make laws…to bind the colonies and people of America.’4

This dominance was later imposed on the colonies in a more forceful

manner by legislating for the repugnance of colonial law in relation to the

laws of the Imperial Parliament in cases where colonial law contradicted

imperial law. The vehicle through which this was achieved was the Colonial

Laws Validity Act 1865.5

The attainment of fully responsible status or independence by most

of the former colonies of Great Britain brought with it the creation of

parliaments that were competent to make their own laws. This was usually

accompanied by a clause in the instrument granting fully responsible

status that removed the applicability of the Colonial Laws Validity Act 1865

(supra).

The challenge for parliaments throughout the Commonwealth is

whether they are supreme to the extent that their power to make law

can disregard the instrument that established them. In the landmark

Ceylonese case of Bribery Commissioner v Ranasinghe,6 the Judicial

Committee of the Privy Council established the principle that the power

to make law is controlled by the instrument that establishes the legislative

body. Such a restriction was deemed to exist notwithstanding the issue of

the sovereignty of Parliament.

The Privy Council relied upon the certificate of the Speaker as being

conclusive evidence of the adoption of the correct procedure in the

enactment of legislation. Where the certificate of the Speaker was not

available for whatever reason, there was ground to question the validity

of the enactment.

The Privy Council, however, has not adopted a consistent approach on

this subject of the Speaker’s certificate over a period of about 20 years in

different parts of the Commonwealth. In Grenada, after the restoration of

civilian government, following the United States-led military intervention

in the political crisis in October 1983, in the case of Mitchell & Others v

DPP and Another,7 the Privy Council held that knowledge of the size of the

majority of the governing party provided ‘common ground’ to conclude

that a bill had been passed by the requisite majority specified in the

Constitution and that this diminished the requirement for the Speaker’s

Certificate.