Constitutional Supremacy

Constitutional supremacy refers to the principle that a constitution is the highest form of law
within a particular legal system, and all other laws and governmental actions must conform to its
provisions. This concept is foundational in constitutional law and plays a crucial role in ensuring
the rule of law, protecting individual rights, and maintaining the separation of powers. Here's a
detailed explanation of constitutional supremacy along with references from the provided
bibliography:

Definition and Conceptualization:

Constitutional supremacy can be understood as the elevation of the constitution above all other
laws and governmental actions within a legal system. This means that any law or action that
contradicts the constitution is considered invalid and unenforceable. The concept embodies the
idea that the constitution represents the will of the people and sets the fundamental framework
for governance and the protection of individual rights.

Legal Foundations:

The legal foundations of constitutional supremacy vary across jurisdictions. In some countries,
such as the United States and Germany, the principle of constitutional supremacy is enshrined in
the text of the constitution itself. In others, it may be established through judicial interpretation
or constitutional conventions. Regardless of the specific legal mechanism, constitutional
supremacy serves as a cornerstone of the rule of law and ensures that governmental powers are
limited and subject to legal constraints.

Enforcement Mechanisms:

Constitutional supremacy is often enforced through a system of judicial review, whereby courts
have the authority to invalidate laws or governmental actions that are inconsistent with the
constitution. This power allows courts to act as guardians of the constitution and protect it from
encroachment by the legislative or executive branches of government. Additionally,
constitutional supremacy may be reinforced through mechanisms such as constitutional
amendments, which require a special procedure and often higher thresholds than ordinary
legislation.

Global Perspectives:

The principle of constitutional supremacy has implications beyond individual countries,

particularly in the context of international law and global governance. As nations interact and
integrate through treaties, agreements, and supranational institutions, questions arise regarding
the relationship between domestic constitutions and international legal norms. Some scholars
advocate for the primacy of national constitutions, while others argue for the development of a
system of "world constitutionalism" that recognizes and coordinates the diverse legal orders
existing at the global level.

In summary, constitutional supremacy is a foundational principle in constitutional law that

establishes the constitution as the highest form of law within a legal system. It ensures the rule of
law, protects individual rights, and maintains the separation of powers by requiring all laws and
governmental actions to conform to constitutional standards. This principle is enforced through
mechanisms such as judicial review and has implications both domestically and globally.

Principles of Constitutional Supremacy

Principles of constitutional supremacy encompass the fundamental tenets that underpin the
concept and operation of constitutional supremacy within a legal system. These principles serve
as guiding norms and ideals that shape the interpretation, application, and enforcement of
constitutional supremacy. Here are some key principles:

Primacy of the Constitution: The principle of primacy asserts that the constitution holds the
highest legal authority within a legal system. It establishes the constitution as the supreme law of
the land, and all other laws, governmental actions, and legal norms must conform to its
provisions.

Rule of Law: Constitutional supremacy upholds the rule of law, which ensures that government
actions are bound by legal constraints and that all individuals are subject to the same laws. This
principle promotes legal certainty, predictability, and accountability, while preventing arbitrary
exercise of power.

Separation of Powers: Constitutional supremacy often embodies the principle of the separation
of powers, which divides governmental authority among distinct branches—typically the
executive, legislative, and judicial branches. This separation serves to prevent the concentration
of power in any one branch and fosters a system of checks and balances.

Judicial Review: Judicial review is a core principle of constitutional supremacy, granting courts
the authority to review the constitutionality of laws, regulations, and governmental actions.
Through judicial review, courts can strike down provisions that violate the constitution, thereby
safeguarding its supremacy.

Limited Government: Constitutional supremacy imposes limitations on government authority

by delineating the scope of governmental powers and protecting individual rights. This principle
ensures that government actions are restrained by constitutional provisions and that individual
liberties are preserved.

Democratic Governance: Constitutional supremacy often aligns with principles of democratic

governance, emphasizing the importance of popular sovereignty, representative government, and
respect for minority rights. Constitutions typically establish mechanisms for democratic
decision-making, such as elections and legislative processes, while also safeguarding
fundamental rights and freedoms.

Amendment Procedures: Constitutions typically include provisions for their own amendment,
outlining specific procedures for modifying or updating constitutional provisions. These
procedures may require a supermajority of legislative support, popular referendum, or other
stringent requirements, reflecting the significance and stability of constitutional norms.

Supremacy Clauses: Some legal systems include supremacy clauses within their constitutions
or legal frameworks, explicitly affirming the supremacy of the constitution and the obligation of
all laws and governmental actions to conform to its provisions. These clauses reinforce the
primacy of the constitution and may provide additional clarity regarding its authority.

By adhering to these principles, constitutional supremacy ensures the stability, legitimacy, and
effectiveness of constitutional governance, safeguarding the rule of law, protecting individual
rights, and promoting democratic principles within a legal system.

Parliamentary Supremacy:

Parliamentary supremacy, also known as parliamentary sovereignty, is a fundamental principle

in the constitutional law of many countries, particularly those with a parliamentary system of
government. It asserts that the legislative body, typically referred to as parliament, is the supreme
legal authority within the state and possesses the power to make, amend, or repeal any law.
Here's a detailed exploration of parliamentary supremacy:

Origin and Development:

The concept of parliamentary supremacy emerged in the United Kingdom, where it developed as
a response to the historical struggle for power between the monarchy and parliament. Over
centuries, through events like the English Civil War and the Glorious Revolution of 1688,
parliament gradually asserted its authority over the monarchy, establishing itself as the
preeminent institution of governance. The principle gained formal recognition with the passage
of the Bill of Rights 1689 and the Act of Settlement 1701, which confirmed parliamentary
authority over the monarch.

Principle of Legislative Supremacy: At its core, parliamentary supremacy affirms that

parliament is the supreme legal authority, and its enactments are binding on all other institutions,
including the executive and judiciary. This principle grants parliament the power to enact laws
on any subject matter, amend existing laws, and repeal or abolish legislation, without being
bound by prior legal norms or constitutional provisions.

Absence of Legal Restraints: One of the defining features of parliamentary supremacy is the
absence of legal restraints on parliamentary power. Unlike constitutional supremacy, which
places limits on the authority of the legislature through a written constitution or judicial review,
parliamentary supremacy allows parliament to enact laws that may contravene fundamental
rights or principles. As such, no body or institution can invalidate or strike down legislation on
the grounds of unconstitutionality.

Flexible and Adaptive Nature: Parliamentary supremacy is characterized by its flexibility and
adaptability to changing circumstances. Parliament has the authority to respond to evolving
social, political, and economic challenges by enacting new laws or amending existing ones. This
flexibility enables the legal system to remain responsive to the needs and aspirations of society
without the need for cumbersome constitutional amendment processes.

Judicial Recognition: While parliamentary supremacy is a foundational principle in the United

Kingdom and other countries with similar legal systems, its scope and application may be subject
to judicial interpretation. Courts may recognize the principle of parliamentary supremacy as a
constitutional norm but also exercise a limited form of judicial review to ensure compliance with
fundamental principles of justice and the rule of law.

Potential Limitations: Despite its overarching authority, parliamentary supremacy may face
certain practical and political limitations. In practice, governments may be constrained by
political realities, public opinion, or international obligations, which may influence legislative
decision-making. Additionally, the principle of parliamentary supremacy does not preclude the
possibility of informal constitutional conventions or norms that guide governmental behavior.

Critiques and Challenges: Parliamentary supremacy has been subject to criticism from some
quarters, particularly in cases where it has been used to justify laws that infringe upon human
rights or undermine democratic principles. Critics argue that an unchecked legislature may lead
to tyranny or oppression, highlighting the importance of mechanisms to protect individual rights
and maintain the rule of law.

Overall, parliamentary supremacy represents a distinctive feature of certain legal systems,

providing a framework for legislative authority and governance. While it affords parliament
significant powers, it also raises important questions about the balance of power, the protection
of rights, and the role of the judiciary in ensuring accountability and upholding constitutional
principles.

Parliamentary Supremacy Vs Constitutional Supremacy

Parliamentary supremacy and constitutional supremacy are two distinct principles that govern
the legal systems of different countries. While both concepts pertain to the source and hierarchy
of legal authority, they embody different approaches to governance and the relationship between
branches of government. Here's a comparative analysis of parliamentary supremacy versus
constitutional supremacy:

Source of Authority:
Parliamentary Supremacy: Under parliamentary supremacy, the legislative body, typically
referred to as parliament, holds the highest legal authority. Parliament is sovereign and possesses
the power to make, amend, or repeal any law without being bound by prior legal norms or
constitutional provisions.

Constitutional Supremacy: Constitutional supremacy asserts that the constitution is the supreme
law of the land. The constitution serves as the source of authority for all branches of government,
including the legislature. All laws and governmental actions must conform to constitutional
provisions, and the constitution may establish limits on the authority of the legislature.

Hierarchy of Laws:

Parliamentary Supremacy: In systems of parliamentary supremacy, there is no hierarchy of laws.

Parliament can enact laws on any subject matter, and its enactments are binding on all other
institutions, including the executive and judiciary. No body or institution can invalidate or strike
down legislation on the grounds of unconstitutionality.

Constitutional Supremacy: In contrast, constitutional supremacy establishes a hierarchy of laws,

with the constitution at the apex. All laws, including those enacted by the legislature, must
comply with constitutional norms. Courts have the authority to review the constitutionality of
laws and invalidate those that are inconsistent with constitutional provisions.

Flexibility and Adaptability:

Parliamentary Supremacy: Parliamentary supremacy is characterized by its flexibility and

adaptability. Parliament can respond to changing circumstances by enacting new laws or
amending existing ones without the need for cumbersome constitutional amendment processes.

Constitutional Supremacy: While constitutional supremacy provides stability and consistency

through adherence to constitutional norms, it may require formal amendment procedures to adapt
to evolving societal needs or values. Constitutional amendments typically require a
supermajority of legislative support or other stringent requirements, ensuring that changes to the
constitution reflect broad consensus.

Legal Restraints:

Parliamentary Supremacy: Parliamentary supremacy is marked by the absence of legal restraints

on legislative power. Parliament is not bound by prior legal norms or constitutional provisions
and can enact laws that may contravene fundamental rights or principles.

Constitutional Supremacy: Constitutional supremacy imposes legal restraints on governmental

power, including the legislature. All laws and governmental actions must comply with
constitutional provisions, and courts have the authority to invalidate laws that violate
constitutional rights or principles.
 Judicial Role:

Parliamentary Supremacy: While courts may recognize parliamentary supremacy as a

constitutional norm, their role is limited in reviewing the constitutionality of laws. Courts may
defer to legislative decisions and refrain from invalidating legislation on constitutional grounds.

Constitutional Supremacy: In systems of constitutional supremacy, courts play a significant role

in safeguarding the constitution. They have the authority to review the constitutionality of laws,
strike down provisions that violate constitutional rights, and ensure compliance with
constitutional norms.

In summary, parliamentary supremacy and constitutional supremacy represent different

approaches to governance and legal authority. While parliamentary supremacy emphasizes the
sovereignty of the legislature and legislative flexibility, constitutional supremacy prioritizes
adherence to constitutional norms and the protection of individual rights. The choice between
these principles reflects differing conceptions of democracy, the rule of law, and the separation
of powers within a legal system.

Features of Constitutional Supremacy:

1. The Constitution is written.

2. The Constitution must be rigid.

3. There must be, in constitution, either express or implied

declaration that this Constitution shell be the supreme law
and any other law inconsistent with this Constitution shell be
void.

4. The parliament is created by the Constitution itself and it

exercises its legislative power being within the bounds of the
constitutional limitations.

5. There is distinction between constitutional law and ordinary

law.

Constitutional Supremacy and Bangladesh Constitution:

The constitution of Bangladesh is supreme over the parliament

for the following reasons:

1. The constitution of Bangladesh is a written Constitution.

2. It is a rigid constitution because in ordinary law making
process the constitution cannot be amended and article 142
requires the votes of two third majorities of the members of
parliament to amend the provisions of the constitution. Basic
structure cannot be changed even by the amendment (art.
7B). The idea of basic structure is established by the 15th
amendment which is backed by the 8th amendment case
(Anwar Hossain Chowdhury vs Bangldesh 1989, 18 CLC,
AD)

3. The constitution of Bangladesh declares itself as the supreme

law of the Republic and any law inconsistent with the
constitution shall be void. As article 7(2) (Supremacy of the
Constitution) states: “This Constitution is, as the solemn
expression of the will 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.” Article 26 also confirms that any law
made or to be made inconsistent with part III of the
constitution shall be void. The preamble to the constitution
also requires maintaining its supremacy.

Means to check the constitutionality:

The constitutionality of a newly made law is examined

by judicial review with a view to maintaining the supremacy of
the constitution. In pursuance with art 102, 7 and 26, The
supreme court of Bangladesh as the guardian of the constitution
is authorized to conduct judicial review. A recent notable
 instance of judicial review is 16th amendment case (Advocate
Asaduzzman Siddiqui vs Government of Bangladesh and
others, Writ Petition No.9989 of 2014)

In the case, amendment to article 96 which abolished the

Supreme Judicial Council and conferred the power to remove a
judge to the parliament was declared unconstitutional by the
Supreme Court on the ground of violation of the notion of basic
structure.

Features of Parliamentary Supremacy: A. V. Dicey

identified the following features of Parliamentary
Supremacy:

1. The parliament can legislate on any subject matter without

any restriction.

2. Nobody can call in question a law made by parliament.

3. The parliament is not bound by its predecessor or successor.

Parliamentary Supremacy and the UK Constitution:

In the United Kingdom parliamentary Supremacy is prevalent

and the fact is justified for the following reasons-
1. The Constitution of the UK is an unwritten constitution.

2. It is flexible one.

3. The parliament of the UK can legislate on any subject

matter without any constitutional binding.

4. No one can question the validity of a newly made law.

For example, the Supreme Court cannot check the validity
of the law by judicial review like ours.

5. New law whatever contains prevails over everything