Is Parliament Sovereign?

By Dr Reeza Hameed -December 7, 2012

There is no basis in the Sri Lanka Constitution for the view that is currently being propagated that the Sri Lanka Parliament is sovereign. It is neither sovereign nor supreme.

Parliamentary sovereignty in England

The doctrine of parliamentary sovereignty has its roots in the legal theory developed by A.V. Dicey in relation to English constitutional law. In a Scottish case it was described as ‘a distinctively English principle which has no counterpart in Scottish constitutional law’.[1] The doctrine of sovereignty implies that there is no higher law to restrain Parliament from making – or unmaking- any law. It also implies that the Courts are obliged to give effect to the laws passed by Parliament.

In the Bonham case (1610), Lord Chief Justice Coke had this to say about Parliament’s power to legislate without any limits: “In many cases, the common law will control Acts of Parliament, and sometimes adjudge them to be utterly void, for when an Act of Parliament is against the common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such Act to be void”.

In Jackson v the Attorney General[2], the then House of Lords considered the relationship between the rule of law and parliamentary sovereignty, and it was suggested by some of the Law Lords that the theory of parliamentary sovereignty has its limits and that Courts would contradict Parliament if it were to enact legislation contrary to the rule of law. In Jackson, Lord Steyn said:

“The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom. Nevertheless, the supremacy of Parliament is still the general principle of our constitution. It is a construct of the common law. The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism. In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish.”[3]

In the same case, Lord Hope spoke of the supremacy of the law and said:         Read More