How Sovereign is Our Parliament?

"Sovereignty of Parliament" is incontrovertibly the most popular phrase in the vocabulary of our politicians, irrespective of party lines. There is hardly a day, we do not hear someone belonging to our country's political arena referring to the quoted phrase. Unfortunately this is the singularly identifiable phenomenon which has received most illusive misconception from those who wander around our political spectrum.

Is our Parliament as sovereign as is generally perceived? Is it sovereign at all? Obviously we have to look at the very source whence the doctrine of Sovereignty of Parliament emanated and examine what this concept really connotes and presupposes.

Origin, Basis and Implication of the Theory

Professor A V Dicey, may very aptly be described as the patriarch of the modern theory of Parliamentary Sovereignty, to which our politicians refer days in and days out. It should not, however, escape from our mind that the concept of Sovereignty was thought of even before the revolution of Cromwell and the enactment of the Bill of Rights, by such jurists as Chief Justice Coke of the seventeenth century, and Blackstone. But their idiom of Sovereignty is distinct in character, for obvious reasons, from the one given by A V Dicey.

French theorist Jean-Jacques Rousseau, and Dicey's contemporary theorist John Austin, Hans Kelsen also endeavoured to advance their version on Sovereignty in a different context.

Dicey, in elaborating his theorem of Sovereignty, drew a distinctively visible line between legal and political sovereignty in the same way Chief Justice Coke and Blackstone did during an earlier period, and in doing so Dicey expressed that the legal sovereignty is vested in the Queen in Parliament, while political one remained within the captivity of the people.

Indeed Rousseau, Austin and Lock, based their theory essentially upon the approval and acceptance of the collective will of the people, and hence their propounded concept encompasses the idea of political sovereignty, rather than the legal one of Dicey.

Crown-Parliament Struggle

The concept of Parliamentary Sovereignty, as is prevalent in the United Kingdom in the legal sense, is the product of struggle between the Crown and the Parliament which was preceded by the proclamation issued by Henry VIII and Elizabeth-1, vesting upon English Crown supremacy over all person and causes of the realm and making the Parliament a device to attain that objective. Prior to its victory in the struggle against the crown, crown's claimed inviolable prerogative powers, vide which it ruled the realm, were deemed to be invincible.

Eventually the Bill of Rights in 1689 and the Act of Settlement brought about recognition for the legislative authority of parliament, inclusive of the authority to reverse Crown Prerogatives by Acts of Parliament. The assumption of the aforesaid legislative authority initiated the evolution, which, at a later stage, gave rise to the unquestionable pre-eminence of the British Parliament, which is regarded as the cornerstone of the British Constitutional law, and it is that state of unhindered power, on which Dicey wrote his treatise on the Sovereignty of Parliament.

Meaning and Characteristic of Parliamentary Sovereignty 

In nutshell, the Sovereignty of Parliament, signifies infinite and untrammelled power and competence of the August Body.

In Dicey's own language "the principle of Parliamentary Sovereignty means neither more, nor less than this, namely, that Parliament thus defined has, under the English Constitution, the right to make or unmake any law whatever, and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of parliament."

By the time Dicey started to compile his immortal work known as "Law of the Constitution" British Parliament attained so much of unquestionable authority in its legislative sphere that Sir Ivor Jennings said, "Parliament can legally turn a man into a woman, and Sir John Leslie said "Parliament could legislate to have blue eyed babies to death.

The doctrine expounded by Dicey and endorsed by others, pre-conceives a situation where parliament is not bound by or subordinate to any superior law, which may put any embargo on Parliaments unrestrictable authority to legislate.

Britain is a nation where none can point out to any document which can be designated as the Constitution and hence nothing in Britain exists to limit the legislative power of the Parliament. As Blackstone observed, "True it is that what the parliament doth, no authority on earth can undo."

A modern example of the unequivocal recognition of British Parliament's omnipotence can be traced from the following observation of Lord Reid, made in the case of Pickin-vs-British Railway Board, "In earlier times many learned lawyers seem to have believed that an Act of Parliament could be disregarded in so far as it is contrary to the law of God or the law of nature or natural Justice, but since the Supremacy of Parliament was finally demonstrated by the revolution of 1688, any such idea has become obsolete ...."

Parliamentary Sovereignty-vs-Written Constitution

What transpires from the Dicey's doctrine is that a Parliament is Sovereign only if its legislative competence is not circumscribed by any superior authority.

The position, as it universally stands, is that in a country with a written Constitution Parliament and other state organs are but creations of the Constitution, which defines the line and the ambit within which such Constitution created organs must dwell. The Constitution thereby limits and restricts the power, authority, jurisdiction and competence of all the state organs including that of the Parliament. The power of the Parliament, therefore, under a written constitution, is not, and by its very nature, cannot be unlimited or unrestricted as the same is compartmentalised by the provisions laid down in the inscription that created Parliament.

Such limitation can be best ascertained from the judgement of the US Supreme Court in the celebrated case of Marbury-vs-Maddison, in which, Chief Justice Marshall, ignoring the politicians claim to the contrary, expressed that the Constitution was the "fundamental and paramount law of the nation, that it was the particular duty of the courts to interpret the law that is, 'to say what the laws is.' He concluded by saying "thus the particular phraseology of the Constitution of the United States confirms and strengthens the principle supposed to be essential to all Written Constitutions, that law repugnant to the Constitution is void and that the courts and other departments are bound by that instrument."

Though President Jefferson declared, that the 'design of the fathers' was to establish three independent departments and that to give the judiciary right to review the Acts of the Congress and that of the President, was not only violative of the Constitution, but also that of the doctrine of separation of power, the principles enunciated in Marbury-vs-Maddison have survived the test of time and Its validity has remained beyond any question ever since.

Countries other than the United States

The situation in India and some other democracies, is even clearer. Their High Courts are empowered to review Acts of Parliament and declare the same invalid if found to be repugnant to any Constitutional provision. The US Constitution does not give such direct authority to its Supreme Court to declare an Act of Congress void and Chief Justice Marshall assumed such jurisdiction from inference only though the doctrine of "Due Process" is essentially an American Constitutional feature.

The position of a country with a written Constitution other than the United States may be succinctly depicted by quoting some observation by Justice B K Mukherjee who said, "Constitution of India is a written Constitution and though it has adopted many principles of the English Parliamentary system, yet it has not accepted the English doctrine of the absolute Supremacy of Parliament in matters of legislation. In this respect it has followed the American Constitution and other systems modelled on it. ... In India it is the Constitution that is supreme and parliament as well as state legislatures, must not only act within the limits of their respective legislative sphere as demarcated."

The above passages confirm that judicial review is an essential part of Indian Constitutional Law as well.

In the case of Goplan-vs-State of Madras, the Supreme Court of India Stated, "the authority of the Court was to be exercised in such a manner that neither the Parliament nor the Executive can exceed the limits set for them by the Constitution. If they do, the Supreme Court has the power to halt them."

The Supreme Court of India assumed jurisdiction to nullify Acts of Parliament, including Acts to amend the Constitution in a score of other cases like, (1) Keshowananda-vs-Kerala AIR 1973 SC 1461 (2) Indira Gandhi-vs-Raj Narayan AIR 1975 SC 2299 (3) Sampath Kumar-vs-India AIR 1981 SC 386.

The position in other democracies with written constitution is identical as far as the subordination of the Parliament to the Constitution is concerned. In Canada, the British North America Act 1867, which is the Constitution of the Dominion, vested on the Supreme Court the Guardianship of the Constitution and the power on it to interpret the said Act in cases where the question of validity of a Dominion or a Provincial legislation is involved. The position in Australia, New Zealand and other democracies within the old Commonwealth are just the same whose Constitutions were enacted by the Parliament in Westminster.

Reasons of divergence between Britain and other Democracies

The most spectacular divergence between British Parliament and the Parliament in other democracies are attributable to the distinctive origin of the two system.

In Britain the phrase "Sovereignty of Parliament" is not laid down in any statute, nor could that be, for the ultimate law maker can not confer upon itself the ultimate power. The very foundation of the concept of Sovereignty of Parliament in the UK is, as the legal theorists like Hans Kelsen and Professor Hart Endorse, essentially laid on the acceptance of the same by the judges. (the reason why Hart termed it as the Ultimate Rule of Recognition) Kelsen saw it as an outcome of "Juristic Consciousness." In other words, it is the judges who uphold and reinforce the Sovereignty of Parliament, as the "Basic Norm" of the British Constitution. Sovereignty, is hence a product and is the fundamental rule of the English Common Law, for it is the judges who, in Britain, accept and uphold the Sovereignty of Parliament following the Revolution of 1688.

Lord justice Diplock observed in BBC-vs-Johns (1956 Ch 32), "with the reduction of kings prerogative powers, there came about the correlative rise in the sovereignty of Parliament. From 1688 the Supremacy Parliament over the Crown was established."

The scenario of countries with written constitution stand on an entirely different footing. Such Countries are governed by a supreme law called "Constitution," which were framed either through a procedure known as "autochthonous," as was done in our country by the Constituent Assembly, and by a Convention in Philadelphia in 1787 in the United States or vide a procedure whereby Imperial Parliament, while granting independence or Dominion Status to its colonies, as happened to Canada, Australia, New Zealand, enacted. A body of Rules to become the Constitution of those decolonised Countries.

Does Sovereignty lie with the Supreme Court in a Written System?

Howsoever the written Constitution gets it life, it becomes the Supreme law of the Country, creates all the State organs including the Parliament and the Apex judicial body, and defines their boundaries. All the organs and institutions of the State are necessarily sub-ordinate to the constitution, for it is the Constitution which creates them and says what they can and can not do and hence none is, "Sovereign," as "Sovereignty" necessarily entails unrestricted power to do as it likes. Although Chief Justice Charles Evans Hughes expressed "the constitution is what the judges say it is," he did nevertheless, not refrain from saying "we are under a constitution," by which qualifying observation he negated the idea that the US Supreme Court was Sovereign. Even justice Frankfurter by his remark "Supreme Court is the Constitution" did not mean to say that Sovereignty in the US system lay with the Supreme Court. His remarks was essentially aimed to re-iterate the Guardianship Character of the Supreme Court over its Constitution. Mr. S.C Dash of India, who in his book titled "Constitution of India" tersely opined that the Judges of the Supreme and the High Courts in India make and subscribe an oath and affirmation, before assumption of office to "uphold the constitution and the laws" and that no other functionary of the State, not even the President is administered similar oath. Again he referred to the Guardian Status of the Constitution.

Clearly, neither the Parliament, nor even the Supreme Court, though the Guardianship of the Constitution, is vested upon the latter Organ, can be Sovereign under a written Constitutional regime.

Bangladesh Scenario

The legal position is even more explicit in our Constitution in that our Constitution categorically states in its Article 7(2), "This Constitution is, as the Solemn expression of the People, the Supreme law of the Republic and if any other law is inconsistent with this constitution, that other law shall, to the extent of the inconsistency, be void." Such an objective can be achieved by the express provision of Article 102. Can there be any scope to assert that our Parliament, which is restricted by article 7 from legislating as it likes, be termed as Sovereign? The obvious and only sensible answer would be "No".

Our Supreme Court, and before that, the High Courts and Supreme Court in Pakistan, and even in the olden days, the Federal Court of India on several occasions declared Acts of Parliament and even Constitutional amendment as void. The observations of Chief Justice Badrul Haidar Chowdhury, in the case of Anwar Hossain Chowdhury-vs-Bangladesh, highlighted the position in it's proper perspective by saying, "This topic can now be remedied off by saying that the contention of the Attorney General that our Parliament has got unlimited power is unsound, on the contrary contention of all the counsel appearing for the appellants is grounded on the preamble of our Constitution which even the Parliament can not amend without referring to the people, nor can the Parliament amend Article 8 without referendum. Article-7 stands between the preamble and Article 8 as statute of liberty, supremacy of law and to put in the words of the American judge, quoted by Mr Syed Ishtiq Ahmed, that it is the pole star of our constitution." His Lordship went on to say, "No Parliament can amend it because Parliament is the creation of this Constitution and all powers flow from this Article, namely Article 7."

His Lordship further stated ".....our Parliament is not only a Controlled one but the limitation on legislative capacity of the Parliament is enshrined in such a way that a removal of any plank will bring down the structure itself."

Chief Justice Badrul Haider Chowdhury, citing Dicey, re-iterated that sovereignty of Parliament is a concept of Constitutional Law in the history of England and that concept is fundamentally inconsistent with the nations with inflexible constitution.

Even during Pakistan period, the Supreme Court of Pakistan held in Fazlul Quader Chowdhury-vs-Abdul Huq (18 DCR SC 69) that the constitution vested on the Supreme Court the power and duty to declare an Act of Parliament void even if such an Act is in the form of amending the Constitution.

The Federal Court in British India, declared as ultra vires, a Rule made by the Government under authority granted by Defence of India Act. Indeed the first Chief Justice of the Federal Court of India Sir Maurice Gwyer, while inaugurating the said Court on 1st October 1937 under the provisions of the Government of India Act 1935 declared, "Independent of Governments and Parties, the Court's primary duty is to interpret the Constitution, not with the cold eyes of an anatomist....."

Mr. Mahmudul Islam, the Attorney General in office and the author of a comprehensive text book on Constitutional Law of Bangladesh, quoting Chief Justice Marshal and the ratio of the Pakistan Supreme Court's decision in Fazlul Quader Chowdhury-vs-Abdul Huq, (in which the Pakistan Supreme Court declared a purported Constitutional amendment void) stated with reference of Article 102 of our Constitution, in his aforementioned book, that judicial review of laws is implant in any written Constitution providing for a government in which powers of all functionaries are limited and circumscribed by the Constitution.

We do, therefore, have no choice but to live up to the reality, even if we find is difficult to swallow it, that the concept of "Sovereignty of Parliament" is unique to British Constitution only and that the said theory is totally out of order where a written Constitution reigns supreme. In as much as the Parliament in Bangladesh is subjected to limitation and constraint imposed by the Republic's Constitution and in as much as the Supreme Court has been vested with the power by the said supreme law of the country, to nullify any law passed by the Parliament, clearly Bangladesh stands at per with any other country with a written Constitution where the latter is the supreme law of the land. The principle that parliament under a written constitution can not be sovereign has been affirmed not only by the Judges of the United States or other written-Constitution countries, but also by the Law Lords of the United Kingdom while they sat in the Judicial Committee of the Privy Council to hear appeals from those independent members of the Commonwealth whence appeal still go to the said Council, though it is the same Law Lords who uphold the concept of Sovereignty of British Parliament, when they act in a different forum, i.e. as Judges of the House of Lords, the highest Court of the United Kingdom. The Privy Council has on numerous occasions proclaimed that the "Sovereignty of Parliament" has no place in a country with a Written Constitution.

It does then necessarily follow, that the two concepts namely "Written constitution" and "Parliamentary sovereignty" can not go together, and is a contradiction in terms.

Professor E.C.S Wade Q.C (who edited Dicey's 9th and 10th edition) stating that Dicey himself never claimed his ideas axiomatic, made it clear that it is the doctrine of the Sovereignty of Parliament, which distinguishes the United Kingdom from other Countries which are governed under written Constitutions. By referring to the cases of Liyanage-vs-R, E.G Aptheker-vs-Secretary of State of the USA and Harris-vs-Minister of Interior, he stated, "In a Constitutional system, which accepts judicial review of legislation, an Act of Parliament may be held invalid on variety of grounds....."

The above survey poses the question as to where, in a written Constitution system Sovereignty lies? Mr Justice Mustafa Kamal, while hearing a Constitutional case recently, gave the most appropriate answer by emphasising that none of the three Organs of the state hold the Sovereignty, it is rather the Constitution itself, which alone is Sovereign.

The writer a Barrister-at-law has recently been appointed as the Deputy Attorney General, of the Government of Bangladesh.