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Thread: Sovereignty of parliament

  1. #1

    Yelp 32 Sovereignty of parliament

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    Q. 4: Discuss Supermacy of British parliament in detail. (2003) (2001)
    Q. what do you understand by the parliament sovereignty how this concept is applied in British Constitution (2001)
    1- Introduction:
    ,, parliament can do everything but make a woman a man and a man, a woman,,.
    (De Lome)
    ,,The power and jurisdiction of parliament is so transcendent and absolute, that it cannot be confined either for causes or person within any bounds,,
    (Coke)
    The U .K. parliament is the oldest institution in the field of legislation and has sovereignty and supremacy in U .K. Governmental System. It was not till the Glorious revolution of 1688 that the supremacy of parliament was established.
    2- Constituent Of Parliament:
    The U.K. parliament Consists of the following institution.
    I. The House of Commons
    II. The House of Lords
    III. The King
    3- Meaning OF Parliament ARY Sovereignty:
    I. According To Prof. Keith:
    ,, The Sovereignty of parliament means that parliament is the Supreme power of the state in the sense that it can make or unmake any law, that courts will obey its legislation nor is there any power is the state capable of overriding curtailing or prescribing its authority.
    4- Principles Of Parliament Sovereignty
    The parliament sovereignty can be understood by taking into consideration the following parliament of U.K. Constitution.
    (i) The legislative Sovereignty of parliament
    (ii) The complete Supremacy of Ordinary law thought the Constitution.
    (iii) The dependence of the conventions upon the law of the Constitution.
    5- Exposition Of Parliamentary Sovereignty:
    Parliamentary Sovereignty implies following three things
    (i) The right to make or unmake any law whatever parliament Sovereignty implies following tree things and to alter or repel any law.
    Cheney vs. Conn:
    It was held that what parliament enacts cannot be unlawful.
    No person or body of person in U.K. has a right to override seta side the legislation of and decisions the parliament”
    Case Of Shariff Of Middle Sex:
    “ It was held that Court can not interfere with the mattes and decisions of the parliament”
    (iii)This authority of parliament extends to every part of British Dominions.
    6- Examples Of Parliamentary Sovereignty:
    The U.K. parliament has attained Supremacy Gradually with the passage of time. Its supremacy may be discussed under following heads.
    I. Supremacy as Regards to public Rights.
    II. Supremacy as Regards to private Rights.
    I. Supremacy As Regards To Public Right:
    (i) Bill of Rights 1689:
    The provisions of Bill illustrate that how the parliament became defacto Sovereign of the state. The Bill sought to remove legislative and judicial abuses and to secure the privileges of parliament. For example it states:
    (a) The election of members of parliament ought to be free.
    (b) The power of the king of Suspending or dispensing with law without the assent of parliament is illegal.
    (ii) The Act of Settlement 1701:
    This Act shows that the king occupies a throne not because he was a member of the Royal Family, but under parliament title.
    (iii) Acts of Union With Scotland (1707) and with 1reind (1800):
    By passing these two Acts, parliament made Scotland 1riand parts of U.K
    (iv) The Septennial Act of 1718:
    It establishes that there was nothing to prevent parliament form perpetuating its existence form the legal point of view.
    (v) Act of 1ndemnity:
    By virtue of these Statutes parliament legalizes acts of person which when committed, were illegal and thereby frees them form the liability arising out of the breach of the law.
    (vi) The Parliament Act of 1911:
    This Act curtailed the powers of the House of Lords. All legislative power relation to Money Bill was taken away form the House of Lords.
    (vii) The Statute of West minister 1931:
    Under this Act the Dominion legislature were granted full legislative authority.
    II. Supremacy As Regards Private Rights:
    Parliament also has established its Supremacy by interfering with the private rights. According to Coke following are the instance of parliament Sovereignty.
    (i) It may adjudge an infant or minor, of all age
    (ii) It may naturalize an alien
    (iii) It may legitimize an illegitimate child.
    7- Limitation On The Parliamentary Sovereignty:
    There are two Kinds, of limitations of parliament Sovereignty
    (i) Alleged Limitations
    (ii) Actual Limitations
    I. Alleged Limitations:
    (i) Moral Law:
    It is asserted that an Act of parliament is invalid if oppsed to spirit of morality.
    Criticism:
    As regard moral law, it way be stated that though judges may make certain laws, yet they are bound to implement an Act passed by parliament.
    (ii) Royal Prerogatives:
    In may fields, the riyal prerogative operates and the Sovereignty of parliament is excluded.
    Criticism:
    The prerogative are completely subordinate to parliament which can abolish or control them in the manner it likes.
    (iii) Preceding Acts Of Parliament:
    Some Statutes have tended to direct the Course of future legislation and it appears that they could not be repealed in future.
    Criticism:
    A Sovereign power cannot limit its own sovereignty. An act may be passed by a parliament in on one Session and repealed in the subsequent.
    II. Actual Limitations:
    These limitations may be either
    A. External, or
    B. Internal
    A. External Limitations:
    The Sovereignty of parliament is subject to the force of public opinion parliament may pass any law so long as it is backed by the political sovereign viz, the elector.
    B. Internal Limitations:
    The internal check comes form the sovereign powers itself. They would not make law against the wishes of the people.
    8- Other Limitations On Parliamentary Sovereignty:
    I. Rule Of Law:
    Parliament cannot make a law opposed to the rule of law
    “west Rand Gold Mining Co. Vs. The Crown:”
    “it was held that if parliament passes a law opposed to rule of law, it imperils its own supremacy”
    II. Statute Of West minister 1931:
    By virtue of the statute of west minister Act 1931, the Dominion Constitutions cannot be altered or amended by parliament except with the consent of dominions.
    III. International Law:
    Which interpreting the Statute the Courts proceeds on the assumption that parliament did not intend to violate the principles of International law.
    IV. Judicial Interpretations:
    It is claimed that the judges through judicial interpretations have the power to legislate but in reality no case law can even be in opposition to statute law passed by parliament.
    9- Conclusion:
    To conclude, I can say, that the parliament is the highest authority in England concerning all matters of state. It can enact, amend alter or repeal any law whatsoever at any time. The sovereignty of parliament is theoretically unlimited. As said by Burleigh, “England could never be “ ruined but by a parliament”.



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  2. #2
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