SUPREMACY OF THE CONSTITUTION AND THE CONCEPT OF PARLIAMENTARY

SOVEREIGNTY

Essential cases – Bahamas District of the Methodist Church v Symonette [2000] 5

LRC 196

Jaundoo v AG (1968) 12 WIR 221, 226

PARLIAMENTARY SOVEREIGNTY

1. Dicey States that Parliamentary Sovereignty is:

“The principle of parliamentary sovereignty means neither more nor

less than this, namely, that Parliament [defined as the Queen, the

House of Lords and the House of Commons acting together] … has,

under the English constitution, the right to make or unmake any law

whatever; and, further, that no person or body is recognized by the law

as having a right to override or set aside the legislation of Parliament.”

2. Generally, we have taken parliamentary sovereignty to mean the following:

(a) Acts of Parliament. Acts of Parliament must be obeyed in courts. Courts

only have the power to interpret and administer the laws of parliament.

They cannot review Acts of Parliament.

(b) Internal proceedings of Parliament: Parliament has control over its

internal proceedings. Courts will be reluctant to review the process or

internal proceedings of parliament to see if they conformed with the

manner and form requirements imposed.

Page 1 of 7 - Ron Motilall – CAPE LAW UNIT 1 (2020) Module 2.1

 (c) Parliament is not bound by the acts of its predecessors, it can make

changes in its constitution by ordinary law and no special procedure is

needed. But theory and reality may be two different things.

3. The Doctrine has been eroded by:

(a) A transfer of the sovereignty

(b) Community Law (note impact of Brexit)

(c) Impact of devolution (e.g. The Scotland Act)

(d) Human Rights provisions which cannot be struck down or repealed

4. Note the Cases of Symonnette and the Case of Jaundoo v AG which explain

the demise of the doctrine:

“Before the advent of a written constitution the legislature of

colonial British Guiana was supreme; true, its supremacy was not

absolute in the sense in which the United Kingdom Parliament is

absolute. A colonial government’s legislation was subject to the

supervision of the Secretary of State who could withhold his

assent if the proposed law infringed certain canons of justice or

policy. But within the limits of these restrictions the legislature

could introduce laws which were severe or even revolutionary.

Colonial politicians accustomed through reading and association to

the moderation of English politicians, and Guyanese lawyers

trained in England and engrained in the common law of England

which had spread its roots throughout the British Commonwealth,

Page 2 of 7 - Ron Motilall – CAPE LAW UNIT 1 (2020) Module 2.1

 recognised the greatness of a system which protected the

democratic rights of peoples. No attempt was ever made to alter

or restrict the fundamental principles of British jurisprudence.

Even when Roman-Dutch law was the common law of Guyana

judges trained in British institutions were engrafting and

introducing bit by bit the canons of English common law.

When internal self-government was introduced, and when

independence was achieved, all those safeguards which had

protected colonial peoples from oppression were engrafted into the

Constitution and called fundamental rights. By inserting them into

the Constitution the result which flowed was that Parliament

became subject to the Constitution. It was supreme and yet not

supreme, Parliament can alter the Constitution in the manner

prescribed by the Constitution, but until it is altered no legislation

can be enacted which infringes a fundamental right.

THE CONCEPT OF CONSTITUTIONAL SUPREMACY

5. Constitutional supremacy can be summarized as follows:

(a) Acts of Parliament Ranked lower than the constitution. The constitution is the

highest authority. Acts of Parliament must conform with constitution.

(b) Entrenchment Provisions. Parliament must follow special procedures for

amending the constitution if it wishes enact legislation that infringes the

Page 3 of 7 - Ron Motilall – CAPE LAW UNIT 1 (2020) Module 2.1

 constitution. It is supreme and not yet supreme. Parliament can alter the

constitution in the manner prescribed by the Constitution.

(c) Judicial review. Court is the institution with the authority to resolve conflicts

about the constitutionality of governmental action.

(d) Notwithstanding supremacy, it has been said that parliament has control over

its internal proceedings. And apart from cases of inconsistency with the

constitution, the duty of the courts is to administer Acts of Parliament, not to

question them. The courts should avoid interfering the legislative process

(Separation of Powers doctrine).

THE SUPREME LAW CLAUSE – ARTICLE 8 OF THE CONSTITUTION

6. Declares the Constitution supreme.

7. Gives the Courts the power to review (Judicial Review).

8. Even if no special provision exists to give judicial review of the Constitution, it is

implied (see Collymore v AG).

9. Imposes limitations on the power of Parliament (ultra vires)

10. States the consequence of inconsistency (i.e. the law is void)

THE DOCTRINE OF ULTRA VIRES

11. A public authority must act within the four corners of the instrument that is the

source of its power. The Constitution is the source of parliamentary power and in

performing its functions, it must act in accordance with provisions.

12. This is echoed by Case Law. See Bribery Commissioner v Ramasinghe:

Page 4 of 7 - Ron Motilall – CAPE LAW UNIT 1 (2020) Module 2.1

 Parliament is bound by the constitution because it derives its

lawmaking powers from the constitution. A legislature has no

power to ignore the conditions of law-making that are imposed

by the instrument which itself regulates the power to make law.”

13. See CJ Wooding in Collymore v AG:

The basis of the claim in this case was that the Industrial Stabilization

Act was ultra vires the Constitution because it violated the

constitutional right to strike:

“Section 36 of the Constitution provides that “subject to the

provisions of this Constitution, Parliament may make laws for

the peace, order and good government of Trinidad and

Tobago”. In my judgment, the section means what it says. And

what it says, and says very clearly, is that the power and

authority of Parliament to make laws are subject to its

provisions. Parliament may therefore be sovereign within the

limits thereby set, but if and whenever it should seek to make

any law such as the Constitution forbids it will be acting ultra

vires.”

ALTERATIONS OF THE CONSTITUTION

14. The Constitutions are not immutable; they can be changed in accordance with

their special provisions for alteration.

15. Note special procedure for entrenched provisions.

Page 5 of 7 - Ron Motilall – CAPE LAW UNIT 1 (2020) Module 2.1

16. The Case of Hinds v R gives a full explanation of the machinery for change.

“…where, as in the instant case, a constitution on the

Westminster model represents the final step in the

attainment of full independence by the peoples of a

former colony or protectorate, the constitution provides

machinery whereby any of its provisions, whether relating

to fundamental rights and freedoms or to the structure of

government and the allocation to its various organs of

legislative, executive or judicial powers, may be altered

by those peoples through their elected representatives in

the parliament acting by specified majorities, which is

generally all that is required, though exceptionally as

respects some provisions the alteration may be subject

also to confirmation by a direct vote of the majority of the

people themselves. The purpose served by this

machinery for ‘entrenchment’ is to ensure that those

provisions which were regarded as important safeguards

by the political parties in Jamaica, minority and majority

alike, who took part in the negotiations which led up to

the constitution, should not be altered without mature

consideration by the parliament and the consent of a

larger proportion of its members than the bare majority

Page 6 of 7 - Ron Motilall – CAPE LAW UNIT 1 (2020) Module 2.1

 required for ordinary laws. So in deciding whether any

provisions of a law passed by the Parliament of Jamaica

as an ordinary law are inconsistent with the Constitution

of Jamaica, neither the courts of Jamaica nor their

Lordships’ Board are concerned with the propriety or

expediency of the law impugned. They are concerned

solely with whether those provisions, however

reasonable and expedient, are of such a character that

they conflict with an entrenched provision of the

Constitution and so can be validly passed only after the

Constitution has been amended by the method laid down

by it for altering that entrenched provision.”

17. There should be evidence on the face of the statute that the constitutional

requirements for amendment have been met.

18. Provisions not entrenched can be amended in the ordinary way.

THE FUNDAMENTAL RIGHTS PROVISIONS

19. The very existence of a bill of rights has been viewed as a central limitation on

parliamentary sovereignty and a source of judicial review.

20. There are implicit restrictions in the bills of rights on the legislature and executive.

For example: When the bill of rights says no person shall be subjected to torture,

or inhuman or degrading or cruel and unusual punishment or other treatment. It

is implicitly limiting what the legislature and executive can do.

Page 7 of 7 - Ron Motilall – CAPE LAW UNIT 1 (2020) Module 2.1