Introduction

Discussion on Parliament Supremacy

The term of Parliament indicates the legislature body as one of the three bodies
(include Judicial and Executive) in the separation of power of a constitution system that
assembled by a group of authorities to make and enact laws for a political entity such as a
country or states. Whereas, the term supremacy indicate the highest rank or authority and
can be even known as all-powerful position. Therefore, the conventional view of the doctrine
of parliament supremacy (also called parliament sovereignty) literally and basically defined
as legislative assemblies have the liberty and freedom to enact or repeal law as it wish and
no other institution can challenge that right , nomatter how absurd, unjust or unreasonable
the law is.
The traditional view about supremacy of parliament has put forward by and usually
referred to the description of Professor A.V. Dicey, who was a British jurist and constitutional
theorist. According to his Introduction to the Study of Law of the Constitution, 1885, A.V
Diceys view of parliamentary sovereignty consisted four factors that makes parliament
unlimited and supreme:
1. Parliament is competent to pass laws on any subject;
2. Parliament's laws can regulate the activities of anyone, anywhere;
3. Parliament cannot bind its successors as to the content, manner and form of
subsequent legislation; and
4. Laws passed by Parliament cannot be challenged by the courts.
In term of unlimited in parliamentary supremacy, it is obviously illustrated in the His
Majestys Declaration of Abdication Act 1936 that passed by the parliament. It
showed that the parliament has the power to alter the succession of a throne.

UNLIMITED
As referred to the His Majestys Declaration of Abdication Act 1936, it can be seen
that parliament had pass act to alter the succession of a throne. As King Edward VIII
desired to marry his lover, Wallis Simpson- a divorcee, he had faced strong
opposition from the Government of United Kingdom and the church as it may cause
constitutional crisis. Due to his marriage to Wallis Simpson, the Parliament had
passed the act to remove his throne and His Majesty shall be terminated to be King,
His Majestys descendants shall not have any rights, title or interest to the
succession.

SUPREMACY AND UNLIMITED

Besides that, the sovereignty of Parliament can be seen in the case of Burmah Oil
Company v Lord Advocate. In 1942, British army has intentionally destroyed the oil
instillation in Rangoon by the order of royal prerogative as to prevent it from being
conquered by the Japanese. The court held that, the sum of compensation shall be
payable by Crown for the destruction caused as the destruction does not occur
during actual battle. Directly after, the Parliament passed a War Damages Act 1956
which prevents other from obtaining compensation and it acted retrospectively and
stop the payment towards the Burmah Oil Company.

In the case of Pickins v British Railway Board, before 1968, Acts of Parliament
provided that the land acquired by the old railway company to place the trail shall be
return to the adjoining land owners if the trails stop its service. In 1968, Parliament
passed the British Railway Act that removes the rights to revert. The plaintiff, the
owner of the adjoining land argued that the act of Parliament should be invalid as it
was passed through a faulty Parliamentary procedure. The court held that, the
parliament shall not be questioned in any other in any matter.

Acts of Parliament can breach international law, for instance. The case students
usually learn as authority for this is Mortensen v Peters, in which a Danish ships
captain found international law did not help him in a criminal court. Contemporary
proof is the fact that Parliament doesnt let prisoners vote even though this breaches
Britains international human rights law obligations. Parliament can ultimately lay
down the law regardless of human rights; and (something that comes as a surprise to
many people) the Human Rights Act 1998 allows it do so.

https://webstroke.co.uk/law/cases/r-jackson-v-attorney-general-2005

Bodies
NOT SUPREMACY

Developments affecting Parliamentary sovereignty

Over the years, Parliament has passed laws that limit the application of parliamentary
sovereignty. These laws reflect political developments both within and outside the UK.
They include:

The devolution of power to bodies like the Scottish Parliament

and Welsh Assembly.

The Human Rights Act 1998.

The UK's entry to the European Union in 1973.
The decision to establish a UK Supreme Court in 2009, which
ends the House of Lords function as the UK's final court of appeal.
These developments do not fundamentally undermine the principle of parliamentary
sovereignty, since, in theory at least, Parliament could repeal any of the laws implementing
these changes.

As in the case of PP v Dato Yap Peng, the accused was charged with criminal breach
of trust. The deputy public prosecutor tendered a certificate issued by the public
prosecutor to transfer the case to the High Court under Section 418A of the Criminal
Procedure Code. Before the High Court, accused argued that Section 418A of the
CPC violates Article 121(1) (before 1988) and thus unconstitutional. The majority of
held that, the Section 418A of CPC contravene the Article 121(1) of the Federal
Constitution as the power to transfer cases is falls under the jurisdiction
of judicial power. The Section 418A of CPC had obviously giving power to a non- judi
cial authority (deputy public prosecutor) and by that it had violates Article 121(1) of
the Federal Constitution. Even though the case had involved both legislative and
executive power, the court still upheld the supreme Constitution.

For instance, as Malaysia one of the countries that have the constitution as the
higher law, the process to enact the act of parliament consists of two stages which
are pre-parliamentary stage and parliamentary stage. In pre-parliamentary stage a
government will make a proposal relating to the enactment of an act and they will
discuss with all government authority involved. Then, the parliamentary draft person
will make the proposal become a Bill. Once after the cabinet has been accepted the
proposal, the Bill is ready to be introduce to the Parliament. While in parliamentary
stage, the Bill will go through few stages which involved debates on the general
principles followed by a vote then the Bill will be presented to the Yang di-Pertuan
Agong for his assent before the Act comes into force. Therefore, it will take a lot of
times and procedure to amend the act.

The big legal debate of modern times is whether Parliamentary sovereigntys what it
used to be, now that were in the EU. Laws made by the EU institutions dont have
effect in this country in their own right, but they take legal effect here because
of section 2(1) of the European Communities Act 1972. Not only that: the EU law rule
that EU law is supreme over national laws is also imported into our legal system
by the notoriously obscure section 2(4), part of which says any enactment passed or
to be passed, other than one contained in this part of this Act, shall be construed and
have effect subject to the foregoing provisions of this section which means every Act
of Parliament gives way (in the event of conflict) to EU law brought into our system
by section 2(1).

Section 2 has weakened Parliamentary sovereignty as Parliaments law-making

powers have been severely limited by the ECHR. This is supported by the case of R
(Ullah) v Special Adjudicator [13] . In this case Lord Bingham stated that "it follows
that a national court subject to a duty such as that imposed by Section 2 should not
without strong reason dilute or weaken the effect of the Strasbourg case law, it is
open to member states to provide for rights more generous than those guaranteed by
the Convention, but such provision should not be the product of interpretation of the

Convention by national courts, since the meaning of the Convention should be

uniform throughout the states parties to it [14]

NOT UNLIMITED

In the United Kingdom Parliament, each bill passes through the following stages:
o

Pre-legislative scrutiny: Not undertaken for all bills; usually a joint committee
of both houses will review a bill and vote on amendments that the government
can either accept or reject. The report from this stage can be influential in
later stages as rejected recommendations from the committee are revived to
be voted on.

First reading: This is a formality; no vote occurs. The Bill is presented and
ordered to be printed and, in the case of private members' bills, a date is set
for second reading.

Second reading: A debate on the general principles of the bill is followed by a

vote.

Committee stage: This usually takes place in a public bill committee in the
Commons and on the Floor of the House in the Lords. The committee
considers each clause of the bill, and may make amendments to it.

Consideration (or report) stage: this takes place on the floor of the House,
and is a further opportunity to amend the bill. Unlike committee stage, the
House need not consider every clause of the bill, only those to which
amendments have been tabled.

Third reading: a debate on the final text of the bill, as amended in the House
of Lords. Further amendments may be tabled at this stage.

Passage: The bill is then sent to the other House (to the Lords, if it originated
in the Commons; to the Commons, if it is a Lords bill), which may amend it.

Consideration of Lords/Commons amendments: The House in which the bill

originated considers the amendments made in the other House.

Royal assent: the bill is passed with any amendments and becomes an act of
parliament.

Regarding the enactment of legislation, Section 19 of the HRA provides that a

minister in charge of a Bill being introduced into Parliament will be required to make a
statement of compatibility prior to the Bills second reading, indicating how the Bill
complies with Convention rights. This puts restraints on Parliamentary sovereignty as
it requires them to incorporate the Convention rights at the early stage of enacting
legislation. However it would be misleading to say that it prevents Parliament from
actually enacting legislation, as a statement of non-compliance can be issued which
indicates the conflicts between the Bills proposals, the ECHR and the reason for no
compliance.