WHAT IS PARLIAMENTARY SUPREMACY?
The principle of Parliamentary sovereignty means that parliament has under the constitution the right to make or unmake any law whatever; and that no person or body is recognized by law as having the right to override or set aside the legislation of parliament. Sir Edward Coke says, “The power and jurisdiction of parliament is so transcendent and absolute, that it cannot be confined, either for causes or persons, within any bounds”. It is a fundamental principle with English lawyers, that parliament can do everything but make woman a man, and man a woman.
Historically, the crown had the power to legislate by means of proclamations. There is an established distinction between ‘laws’ properly so called as being made by the legislature and ‘ordinances’ having the force of law, though not in strictness laws as being rather decrees of the executive power than Acts of the legislature. The legislature lays down the general principles of legislation, and leaves them to be supplemented by decrees or regulations from the executive. In the English system, each house of parliament has complete control over its own proceedings, and has the right to protect itself by committing for contempt any person who commits any injury against the house, and no court of law will inquire into the mode in which each house exercises the powers which it by law possesses as held in the case of BRADLAUGH v GOSSETT 12 QBD 272 and the case of THE SHERIFF OF MIDDLESEX (where the Sheriff was imprisoned by the speaker for contempt, when brought before the Queen’s Bench by habeas corpus, the judges held that they could not inquire into what was the contempt the Sheriff committed against the house).
In the case of TUFFOUR v AG, the court held that it did not and could not inquire into how parliament went about its business. The house of commons is not a court of justice, but it has the privilege to regulate its own internal concerns, practically investing itself with a judicial character when it has to apply to particular cases the provisions of Acts of Parliament. The maxim that there is no wrong without a remedy does not mean, as it is sometimes supposed, that there is a legal remedy for every moral or political wrong. Rather, it means only that legal wrong and legal remedy are correlative terms, and it would be more intelligibly and correctly stated, if it were reversed, so as to stand, thus where there is no legal remedy, there is no legal wrong. Precedent leads inevitably to gradual formation by the courts of fixed rules for decisions, which are in effect laws. Judicial legislation might appear, at first sight, inconsistent with the supremacy of parliament. But this is not so, they are subordinate legislation, carried on with the assent and subject to the supervision of parliament.
Austin argues that there are limits placed on parliament’s sovereignty. He says that there are three limitations.
1. Acts of Parliament are invalid if opposed to the principles of morality or to the doctrines of international law. Courts might refuse to enforce statutes going beyond the proper limits or parliamentary authority. This is not to say that judges as exponents of morality may overrule Acts of Parliament, but rather in ascertaining the meaning to be affixed to the said Act, it will presume that Parliament did not intend to violate the ordinary laws of morality, or principles of international law, and will interpret it as fitting as such.
2. Doctrines maintained to deny the right of Parliament to touch the Prerogative.
3. One Parliament can make laws which cannot be touched by any subsequent parliament, thus limited by the enactments of predecessors. Thus, the sovereign power of parliament is not unlimited.
Dicey states, that “the principle of parliamentary sovereignty means that parliament has under law the right to make or unmake any law whatever, and further, that no person or body is recognized by law as having the right to override or set aside the legislation of parliament. Any Act which makes a new law, repeals or modify an existing law will be obeyed by the court. There is no person or body which can make rules which derogate from an Act or which will be enforced by the courts in contravention of an Act”. From the definition, three main basic rules may be identified, Parliament is supreme law-making body, cannot be bound by predecessor or bind a successor and no body or person, including the courts, may question the validity of parliament’s enactments.
Per Ivor Jennings, Parliament can legislate for all persons and all places. As well as legally enact legislation dealing with any subject-matter whatever. Dicey distinguished between Political Sovereignty (which is held by the people) and Legal Sovereignty (which is held by the Queen in Parliament). Chief Justice Marshall in the case of MARBURY v MADISON (supra) held that ‘the theory of parliamentary sovereignty is essentially attached to a written constitution’. In relation to international law, Parliament legislates only in respect of its own territory or its own citizens abroad. An Act which may infringe on a customary international law, ius cogens, may be considered invalid.
According to Wheare, ‘written constitution exists where the document is considered supreme. All powers entrusted government comes from the people, as CJ Marshall says in the case (supra) that written constitutions form the fundamental and paramount law of the nation, and an act of legislature repugnant to the constitution is void.
The constitution controls any legislative act repugnant to it’. This provided under Article 1(2) of our 1992 Constitution that the constitution is the supreme law of Ghana and any law found inconsistent with any of its provisions shall be void. This supremacy was explained in the case of TUFFOUR v AG per Sowah JSC that ‘A written constitution such as ours is not an ordinary act of parliament. It is the source of power of all the three arm of government. It created theses organs and their authority is derived from it. Per Article 93(2) of our constitution, although parliament is vested with legislative power, such power is to be exercised in accordance with the constitution. Our constitution curbs the idea of parliamentary supremacy, unlike Great Britain where it is acknowledged. Article 3(1) prohibits parliament from enacting any law establishing Ghana as a one-party state. Article 107 prohibits parliament from passing retroactive legislation. Article 270 puts limits on parliament’s involvement in chieftaincy matters. Per Chapter 25, parliament is prohibited from amending the transitional provisions, especially section 34 and 35 ans provided under section 37.