This Article is written by Aditya kamal (1st year BBA LLB in Kle Law College, Bangalore)
Firstly the words Constitutional Supremacy and Parliamentary Sovereignty are not easily understandable to all ( apart from legal scholars/aspirants/students). Let me first clear your doubt.
Table of Contents
“What is Constitutional Supremacy” and “What is Parliamentary Sovereignty”.
Constitutional Supremacy is a principle which states that the provisions of the constitution are superior to any other law of the land. It states further that if any other law is inconsistent with the constitution, such contravening section or law will be null and void. This concept also means that every person, whether citizens or government officials, is bound by the provisions of the constitution.
The term Parliamentary Sovereignty is a principle derived from the constitution of the United Kingdom. It makes Parliament the supreme legal authority in the respective state which can create or terminate any law. Generally, the courts cannot overrule its legislation and no Parliament can pass laws that future parliaments cannot change.
Every informed citizen knows that for any civilised society to function in a peaceful and orderly manner, it requires laws. We need laws to regulate various aspects of society’s affairs, including the government itself. Good and justifiable laws make its citizens earn a good living by using their talent to create or acquire a job. In India, the lawmaker is the parliament(legislature).
A society with no supreme and stable authority is baseless and it leads to a complete imbalance of the economy, for that we have the Prime Minister and his cabinet, the civil service, the Attorney General Chambers, the various enforcement agencies and so on who, among other things, make government policies and implement them. This is called the Executive.
Before the evolution of the proper law, the kings or the religious leaders used to dictate the terms and that was the final statement for the issue, the term “Rule of law” has been derived from a French Phrase called ‘la principle de legality means a government based on the principles of law. Rule of law means, among other things, that everyone is equal before the law, it is clear and unambiguous, everyone regardless of status has access to justice, the process itself is transparent and disputes or injustices suffered can be corrected.
Who carries out these functions? It is the Judiciary.
The Legislature, Executive and Judiciary make up the three important branches of government that have a tremendous impact on the lives of every citizen every day and sometimes even after you die. Each of these branches has important roles to play and their roles are so far-reaching on the lives of the citizens that checks and balances are necessary. In other words, some sort of check and balance ought to be put in place so that each of them does not abuse their positions or behave oppressively.
Firstly, the three branches of government owe their existence to the Federal Constitution. Secondly, their roles and the extent of their powers are actually spelt out in the Constitution. In other words, they are all subject to Constitutional provisions and cannot do as they fancy. However, all these institutions are made up of mortals and mortals, we have to presume, may be carried away by vested interests and may be prone to all sorts of weakness from recklessness to corrupt practices.
So how does society ensure a workable check and balance mechanism?
In theory, we say that the Legislature can check the Executive by holding the executive to scrutiny in Parliament. In practice, however, it appears to be possible only if we have a credible and strong opposition. The cabinet is part of the legislature and we cannot expect it to criticize itself. The administrative part of the government, such as the civil service and others, are usually appointed or condoned by the political masters of the day. Without casting any aspersions, how many would dare to dissent with an unlawful, irregular or dubious request from their political masters when it may affect their rice bowls? How then can society help to muster the courage of the honest civil servant to do the right thing?
Let us look at Parliament and ask this question: can Parliament pass any laws? A more radical question is this: can Parliament pass a law that can change the character of our constitutional monarchy and our democratic way of life?
If we hold that Parliament is supreme, then the answer would be a resounding yes. However, Article 4(1) of the Federal Constitution not only declares itself to be the supreme law of the country but also goes on to limit the power of parliament to pass laws. It does not recognise as valid any law passed by Parliament after Merdaka day that is inconsistent with the Constitution. Hence, Parliament is not supreme in the sense that it can pass any law it wants.
This does not mean however that Parliament cannot amend the Constitution. Of course, it can and it may have to as life is ever-changing and the law has to evolve with the changing times. In fact, the procedures for amending the Constitution are set out in Article 159 of the federal Constitution itself. This procedural provision has been unsuccessfully argued by some as a provision that empowers Parliament to amend anything. If this was true, then the net result would be that even article 4(1) can be amended to make Parliament absolutely powerful to pass any laws, for example, including abolishing elections. All the fundamental liberties of the citizens can be removed by Parliament if indeed Parliament can pass any laws without any checks and balances. This scenario sounds completely ridiculous and dangerous to the democratic way of life. However, before dismissing the possibility of this scenario, let us learn from the pages of political history, including that of Nazi Germany.
There was also the case where the Prime Minister of India, Indira Gandhi was declared guilty of corrupt practices and her election was declared null and void. Thirteen days after the judgement, she declared an emergency in India in flagrant contempt of the court order. She used the emergency to pass undemocratic laws. Briefly, these laws were subsequently struck down by the Supreme Court of India as violating the basic features of the Indian Constitution.
While the citizens were going about their daily lives, there has actually been a “judicial and legal debate” for decades in this country on whether there are some essential features of the Constitution that cannot be amended or abrogated. The judicial attitude today is that there are some basic features in the Constitution that cannot be abrogated. This idea came to be known as the basic structure doctrine among legal circles.
The first judicial pronouncement of the judicial recognition of this doctrine was by Gopal Sri Ram, FCJ in the case of SivarasaRasiah (2010) where he held that “..it is clear from the way in which the Constitution is constructed, there are certain features that constitute its basic fabric..”.
It is must be noted that the Federal Court Judge held that the fundamental rights of citizens guaranteed under part II of the Federal Constitution form part of the basic structure of the Constitution. Today, with the clear and comprehensive judgement in the Malaysian case of, ironically involving a litigant also named Indira Ghandi (2018), the basic structure doctrine is entrenched in our laws. This is a brilliant judgement delivered by Tan Sri Zainun Ali, FCJ which must be read by all concerned citizens as a celebration of democracy, separation of powers and confirmation of the judiciary’s role as a bulwark against injustice.
I have to add this. A former Chief Justice had recently argued that the basic structure doctrine would mean that the Judiciary usurps the role of the Legislature. He argues that a few judges cannot overrule the majority of members of Parliament who pass laws on the authority of being voted in by the people. With respect, this is a puerile argument that shows a lack of understanding of world political history and political pragmatism. (I refrain from canvassing the separation of powers argument here). This also overlooks the power of the whip in Parliament where members of Parliament can be compelled to vote in one way by their party. The whip system effectively makes voting nothing more than a façade to compel only one result.
In conclusion
Unlike the United Kingdom, Malaysia practices Constitutional supremacy and the judiciary has the role to uphold and protect the Constitution, the doctrine of the separation of powers is given meaning, the courts can judicially review executive decisions and there are some basic features of the Constitution that cannot be abrogated or amended by the Legislature. The views expressed here are entirely the writers’ own.
