CONSTITUTIONAL SUPREMACY VERSUS

PARLIAMENTARY SUPREMACY

Constitutional supremacy exists when the constitution is the supreme law of the land, with
anything inconsistent with it void (See Section 3 of the constitution of Zimbabwe). In the U.K
the concept of parliamentary sovereignty is the cornerstone of British constitutional law. This
concept is that Parliament is competent enough to make or unmake any law whatsoever in any
matter whatsoever and no U.K court is competent to question the validity of an act of Parliament.
Further, any other law making body in the country exercises that authority at the pleasure of
Parliament – it can neither be superior to nor at the same level.

According to Dicey, “Parliament has, under the English constitution, the right to make or
unmake any law whatever and further that no person or body is recognized by the law of
England as having the right to override or set aside the legislation of Parliament.” (See Dicey,
The Law of the Constitution, p.39; Madzimbamuto v. Ledner Burke [1969] 1 AC 645 @
723)

In Cheney v. Conn [1968] 1 WLR 246 @ 247, it was emphatically stated, “What the statute
itself enacts cannot be unlawful because it is the highest form of law that is known to this
country. It is the law which prevails over every other form of law and it is not for the court to say
that a parliamentary enactment is illegal.”

*There are a few exceptions to parliamentary sovereignty in the U.K (European Court of Human
Rights and European Union law)

The exact opposite is the position under constitutional supremacy – a statute can be declared
illegal by the courts for being contrary to the constitution (See Ian Douglas Smith v. Didymas
Mutasa 1989 (3) ZLR 183). The approach of constitutional supremacy was pioneered by the
U.S.A when in the famous case of Marbury v. Madison 5 U.S 137 [1803] the U.S Supreme
Court held that the judicial function vested in the court necessarily carried with it the task of
deciding whether an act of Congress was or was not in conformity with the constitution. It
should be noted that the U.S constitution itself did not make any specific provision for judicial
review. It is the Supreme Court which formulated the doctrine, Marshall CJ reasoned as
follows, “The purpose of a written constitution is to outline and limit the powers of the
legislature and other branches of government. Its principles are fundamental and there can be
no point in framing a constitution if the legislature could exceed the limits of the
constitution.” Thus it is implicit in the very nature of a written constitution that legislation
inconsistent with it is null and void. Constitutional supremacy stands on two legs – the existence
of a written constitution and judicial review to check conformity with the constitution.
 CONSTITUTIONALISM AND DEMOCRACY
The cornerstone of the principle of constitutionalism is the belief in limited government, namely,
that the exercise of governmental power should be controlled so that it is not abused to the
detriment of society. According to Eric Baron, constitutionalism is “a belief in the imposition
of restraints on government by moves of a constitution. It advocates the adoption of a
constitution which is more than a “power map” its function is to organize political authority
so it cannot be used oppressively or arbitrarily.” Not every constitution respects
constitutionalism. Constitutionalism is not merely adherence to a constitution whatever its
contents. It is adherence to a constitution which embodies fundamental features of limiting
governmental powers such as separation of powers, independent judiciary, and protection of
fundamental human rights and provision of a full democracy. In other words constitutionalism
requires that the constitution should necessarily check absolute power. If it doesn’t it can’t be fit
to be called a constitution e.g. Hitler’s constitution.

An aspect which has raised problems for constitutional theory is what Americans call “counter-
majoritarian dilemma” namely, that when a court declares a legislative act to be
unconstitutional it undermines the democratic will in that unelected judges who are not
accountable to the people nullify the acts of a democratically elected legislature. The difficulty is
judicial review is accepted in almost all leading democracies – how can it be justified? A number
of constitutional law theories have justified judicial review. The first is by Alexander Bical in
his book ‘The Least Dangerous Branch’, it is said that the democratic process itself has
inherent weaknesses. One which is that legislation may be rushed through Parliament without
consideration of its impact on the public. The court has certain capabilities of dealing with
matters of principle which the legislature does not have, “When the pressure for immediate
results is strong enough and emotions are high enough legislators will ordinarily prefer to act on
expediency rather than taking the long view. Judges have the leisure, the training and the
insulation to follow the ways of the scholar. This is crucial to preserve the values of society. The
court can appeal to man’s better nature.” This is unsatisfactory as it sees judges as super-beings
who have their own politics.

The second theory has been promulgated by Professor Ronald Dworkin; it says that judicial
review is a necessary part of a democratic system in that there some things that a majority cannot
do no matter how democratically it decides to do them. In other words democracy means more
than majority rule. The majority has to respect certain fundamental values and rights. The model
advocated under this system is a constituted democracy where judicial review is the most
effective procedure for the protection of fundamental rights.

The third theory is called the theory of originalism which argues that the courts should interpret a
constitutional provision according to its original meaning – the meaning intended by the framers
of the constitution. The justification of this approach is that the constitution itself is the will of
the people and the objective of the judicial process is to ascertain this will so the counter-
majoritarian dilemma is removed because what the courts are merely doing is to express the will
of the majority as embodied in the constitution. A leading expert of this theory is Robert Bork
in his book, ‘The Tempting of America – The Political Seduction of the Law 1990’.

The fourth theory is the “Mugabe Approach” namely that the counter-majoritarian dilemma is a
minor because majoritarianism will ultimately win by reversing the decisions of the court
through an appropriate constitutional amendment.

BOURGEOIS/LIBERAL THEORIES ON THE STATE, LAW

AND THE CONSTITUTION
These set of theories share one quality namely that they are not Marxist theories. This group sees
the state and the law as inevitable.

A leading theory of the state and constitution is that of John Locke who popularised the theory of
the social contract. The central component of the social contract is that persons subject
themselves to the power of others by way of consent, “the only way whereby anyone diverts
himself of his natural liberty and puts on the binds of civil society is by agreeing with other men
to join and unite into a community for their comfortable, safe living and secure enjoyment of
their properties and a greater society against enemies that are not part of it.” Only that which is
necessary to create the community is given up. Political power should only be exercised for the
common good. The wording of the American declaration of Independence is a clear reflection of
the social contract theory.

“We hold these truths to be self-evident that all men are created equal, that they are
endowed by their Creator with certain inalienable rights that among these are Life, Liberty
and the pursuit of Happiness. That to secure these rights, governments are instituted by
men deriving their power from the consent of the governed that it is the right of the people
to institute a new government, laying its foundations on such principles and organizing its
power in such form as to them shall seem most likely to promote their safety and
happiness.”

Another theory falling into this class is Kelsen’s theory known as the pure theory of law.
According to Kelsen the validity of a legal order ultimately rests on its effectiveness. He wrote,
“Suppose a group of individuals attempt to seize power by force in order to remove the
legitimate government, if they succeed, if the old order ceases and the new order begins to
be effective because people believe in conforming to it, it becomes the valid order in all
legality. But if they fail their undertaking is an illegal act as the crime of treason, they must
be judged by the constitution which they have failed to overthrow.” The Kelsenian view has
been considered in a number of cases.

Madzimbamuto v. Ledner Burke 1968 (2) SA 284

This case contested the legality of Smith’s UDI regime. In 1965 Ian Smith declared
independence from Britain, this was condemned world wide but Smith and his government
remained in power. They severed all ties with the British government under the previous
constitution and governed without any reference to the British. UDI was a strategy to avoid
the British giving independence to the blacks. Madzimbamuto challenged the legality of
Smith’s laws. The laws were illegal because the regime was illegal. The Rhodesian Appellate
Court referred to Kelsen with approval but claimed that it was unable to say whether the
Smith regime was in effective control. The court then invented and applied the “doctrine of
necessity” – They could not create a legal and political vacuum. They upheld Smith’s laws on
that basis.

R v. Ndlovu 1968 (4) SA 515

The Rhodesian Appellate Court was now confident – it held that the Smith regime was in
effective control and was therefore the new legal order.

Recently Kelsen resurfaced in Malawi in 1996 in the so called Press Trust case. In that case, the
Malawian government had serious clashes with the opposition. According to the constitution a
two-thirds presence was required to constitute a quorum. The opposition boycotted Parliament
and no quorum could be formed. The government went ahead with Parliamentary business and
enacted legislation, contrary to the constitution. The resulting act was challenged in the High
Court and was nullified. On appeal in the Malawi court of appeal references were made to
Kelsen and to the case of Madzimbamuto. The court applied the doctrine of necessity from
Madzimbamuto and upheld the act.

MARXIST THEORY ON THE STATE, LAW AND THE

CONSTITUTION
The theory is built on the principles of dialectical and historical materialism which may be
summarized as follows.

a. All things and phenomena in nature are interconnected and conditioned by each other.

b. Everything in nature is in a state of motion with some things appearing and developing
while others wither away and disappear.

c. Development in nature occurs as a result of small unnoticeable and gradual quantitative

changes which suddenly leap into a new quality i.e. quantitative changes lead to
qualitative changes.

d. Developments are due to internal contradictions which are inherent in all things and
phenomena. It is the struggle between these contradicting aspects which causes
transformation from quantity to quality.
When these principles are applied to the study of development of society the method is called
historical materialism. It is characterized by the following features:

1. Matter is primary in the sense that it is the material basis of society rather than ideas
which determine development. That material basis is the economic structure of society
and this determines the legal and political institutions.

2. Social ideas, law and politics are called the superstructure; they are determined by the
economic structure. They may in turn exercise influence on the economic base.

3. As everything in nature is always in a state of motion one social economic structure is

replaced by another and this arises from the inherent contradictions of society. These
contradictions arise by way of class struggles. The class that owns the economic base
oppresses the other classes and uses law to advance its agenda. Changes in class
formation always take place through revolution i.e. for a new class to own the means of
production. Thus society has moved from primitive communalism to the slave trade, to
feudalism to capitalism and communism (the first phase of the communist system is
socialism). To each of these social formations corresponds a definite type of state and
law. Law and the constitution have not always existed; they emerged at a certain stage in
the development of society as an admission that society was involved in class struggle.
According to Frederick Engels the state arose as a power seemingly standing above
society to moderate the conflict. However, as a rule the state is controlled by the most
powerful, economically dominant class. It therefore is a state of a particular class and
uses law to promote class rule. Constitutions therefore come into being as instruments of
class rule – the success of a revolution leads to the adoption of a new constitution to
record the victory.