LEGISLATIVE OR PARLIAMENTARY SUPREMACY

CONTENTS

1.0      Introduction

2.0      Objectives

• Main Content
• Scope of Legislative Supremacy
• Some Exceptions to Legislative Supremacy
• Legislative Supremacy vis-à-vis and the Federal Republic of Nigeria
• Legislative Supremacy in Military Regimes

4.0      Conclusion

5.0      Summary

6.0      Tutor-Marked Assignment

7.0      References/Further Readings

INTRODUCTION

Of all the many constitutional concepts, legislative or parliamentary supremacy stands out. This is because of the fact that it appears to run counter to  our tradition or convention of  rule  of  law, constitutional supremacy, etc. It is a concept that promotes  the superiority of the will of man over that of law. It is practised in the UK. Notwithstanding its seeming absoluteness, parliamentary supremacy is subject to some exceptions especially with the fact that the UK, being a responsible member of the international community, cannot be heard to elevate such concept to the international plane. You must note that despite Nigeria’s romance with parliamentary system of government, it did  not  go  as  far  as  experimenting  with  the  concept. Ever since the 1960s, Nigeria has reflected its preference for constitutional supremacy till date. It is equally important to note, however, that we have had our own share of the bitter pill that legislative supremacy represents in the period Nigeria was governed by the military.

OBJECTIVES

At the end of this Unit, you will be in a position to:

• Appraise the concept of legislative supremacy as applicable in the United Kingdom;
• Evaluate the reality of legislative supremacy in military regimes anywhere in the world

MAIN CONTENT

Parliamentary sovereignty

Parliamentary sovereignty or legislative sovereignty is a legacy of the British parliamentary practice which arose out of the conflict between the Crown and Parliament. It is a legal concept which means that an elected body of men (by whatever name it is called, whether parliament, congress, house of representatives, etc.) can pass any law on any topic which affects the interests of persons. According to Hood Phillips:

The most important characteristic of British Constitutional law is the legislative supremacy of the United Kingdom. Positively, this means that Parliament can legally pass any kind of law whatsoever; negatively, it means that there is no person or body whose legislative power competes with or overrides it.

The sovereign legal power in the United Kingdom lies in the Queen in Parliament, acting by Act of Parliament. An Act of Parliament generally requires the assent of the Queen in Parliament, acting by Act of Parliament generally requires the assent of the Queen, the House of Lords, and the House of Commons, and the assent of each House is given upon a simple majority of the votes of members present. The power of an Act of the sovereign Parliament, howsoever, is boundless. See the case of Jackson v. A.G (2005) 56 1 A.C. 262

As the name implies, parliamentary supremacy means that the parliament is supreme. In other words, it does not share equal or coordinate status with the other arms of government. Put differently, it is superior to the executive and even the judiciary. A ready example of where parliamentary supremacy reigns is the United Kingdom. According to Sir Erskine May:

“The parliament can pass any laws unjust and contrary to sound principles of  government, but it is not controlled in its discretion and when it errs; its errors can only  be corrected by itself.”

Under the traditional rule, any previous Act of Parliament can always be repealed by a later Act.

Acts of the most fundamental kind, such as the Habeas Corpus Act 1679, the Bill of Rights 1688, the Act of Settlement 1700, the Statute of Westminster 1931, the European Communities Act 1972 and the Human Rights Act 1998 are just as easy to repeal, legally speaking, as is the Antarctic Treaty Act 1967. No special majorities or procedure are needed. The ordinary, everyday form of Act of Parliament is sovereign and can affect any legal consequences whatsoever.

Parliamentary sovereignty means that parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept  the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.

One consequence of parliamentary sovereignty is that the country has no constitutional guarantee. In other countries there is normally a written constitution, embodies in a formal document, and protected as a kind of fundamental law, against amendment by simple majorities in the legislature.

Also, if two Acts of Parliament conflict, the later Act must prevail and the earlier Act must be repealed by implication to the extent of the conflict. The court in Thoburn v. Sunderland where the court held that fundamental constitutional statutes (in this case the European Communities Act 1972) were repealable only express words and not by mere implication. Parliament cannot bind its successors. Parliament cannot therefore, modify or destroy its own continuing sovereignty, for the courts will always obey its latest command.

Parliamentary supremacy fits perfectly into the legal  theory of  John  Austin  who defined law as the command of the uncommanded commander, that is, law made by a politically superior sovereign to be obeyed by the politically inferior subjects. In the scheme of legislative supremacy, the legislature is the  supreme authority. The  direct manifestation of its superiority  is its absolute powers to amend the Constitution and to repeal laws. In doing so, it can reconfigure the status of the other arms of government. Legislative supremacy implies that the court cannot question the validity of an Act of Parliament. In  fact,  the  courts  take  as  given the validity of Parliamentary Acts.

Parliamentary sovereignty, as it is now, affects the position of judges. They are not the appointed guardians of constitutional rights, with power to declare statutes unconstitutional, like the Supreme Court of Nigeria subject only to the overriding law of the European Union; they can only obey the latest expression of the will of Parliament. Nor is there own jurisdiction sacrosanct. They lack the impregnable constitutional status of their other counterparts in other jurisdictions like the United States or here in Nigeria. They cannot insist, for example, that power should be subject to ‘due process of law’ and similar guarantees, if  a  statute should try  to infringe them. They can only obey the latest expression of the will of Parliament. If they go too far in interfering with administrative affairs, Parliament may retaliate by legislation.

Another aspect of parliamentary supremacy is that ministers are responsible to it, both individually and collectively, through the Cabinet. Parliament is the body before which ministers are called upon to account, and without the confidence of which they cannot continue. But here again, the theory is far from reality. They party system means in practice that, in anything but the last resort, the government controls the parliament. This is especially evident in the process of litigation. Bills are drafted by government departments and are often driven through Parliament by the party whips and inadequate time for many of their clauses to be properly considered.

The Position under Written Constitution

The doctrine of legislative supremacy distinguishes the United Kingdom from those countries in which a written constitution imposes limits on the legislature and entrusts the ordinary courts or a constitutional court to decide whether the acts of the legislature are in accordance with the constitution. In Marbury v. Madison 1 Cranch 137 (1803), the US 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

The legislature or parliament is the arm of government charged with the responsibility  of making laws for the peace, order and good  government of  a  State. In  Nigeria, for example, S. 4 of the CFRN 1999 vests such powers in the National Assembly at the Federal level, and in each of the State House of Assembly at the state level.

The legislative powers of Nigeria are shared mainly between the Federal Government (as represented by the National Assembly) and the State Government (as represented by the State House of Assembly). While the National Assembly has  exclusive competence to  legislate on the 67 specific matters listed in the Exclusive Legislative,  the  State  House  of  Assembly shares with the National Assembly the competence to legislate on matters enumerated in the Concurrent List subject to the doctrine of covering the field.

In the exercise of its powers to make laws, the National Assembly has the capacity to delegate part of its law making powers to administrative agencies. It does this when it enacts an Act, providing only for general principles. Subsequently, pursuant to the enabling Act, the administrative agency so created enacts detailed  rules  and regulations for  fulfilling the purposes of the Act and other allied objects. Because the National Assembly is the  principal  and the administrative agency its agent, the latter cannot exceed the scope of its authority. In order to guide against administrative abuse of powers, the National Assembly controls the administrative agency in a variety of ways.

In addition to the law making functions and pursuant to the principle of  checks and balances,  the National Assembly also carries out oversight functions especially on the executive and, to a limited extent, on the judiciary. For example, it can investigate the Executive, impeach the President or the Vice President, and approve presidential appointments, etc.

Note that a fundamental feature of legislative supremacy is the principle of ministerial or collective responsibility. This means that the body of ministers, otherwise known as the cabinet, is collectively – and not individually – responsible  for  the  success  or  failure  of  the incumbent government. In other words, they swim or sail together. Also, in violation of the doctrine of separation of powers, the minister is simultaneously a member of the legislature.

SELF ASSESSMENT EXERCISE 1

1. Analyze the nature and scope of parliamentary sovereignty.

Some Exceptions to Legislative Supremacy

Because every general rule begets an exception, you should note that the legislature is not totally an absolute supremo, John Austin’s uncommanded commander.  It is, afterall,  limited in its powers. First, it can neither bind itself nor its successors. In Ellen Street Estates Ltd v. Minister of Health, Maugham L.J. said that:

The legislature cannot, according to our Constitution, bind itself as to the form of subsequent legislation, and it is impossible for parliament to enact that in a subsequent statute dealing with the same subject matter, there can be no implied repeal. If in a subsequent Act parliament chooses to make it plain that the earlier Statute  is  being  to  some  extent repealed, effect must be given to that intention just because it is the will of parliament.

Secondly, the supremacy of the British parliament is subject necessarily subject to its international obligations. As a responsible member of the international community, the UK has rights and duties under international law, especially those arising from  the  Conventions to which it is a signatory. On the principle of pacta sunt servanda, every State is bound to discharge the obligations it has undertaken. And no State is at liberty to plead the sanctity or even supremacy of its domestic legal system in order to override or defeat such obligations. Therefore, the supremacy of the British parliament is subject to its obligations within the Commonwealth, and to the European Union, amongst others.

In the third place, parliamentary supremacy is without  prejudice  to  people’s sovereignty.  In the past, sovereignty was exercised by or at the pleasure of  the  absolute  ruler.  In  contemporary times, however, the ultimate provenance  of sovereignty is  the  people.  They have the inalienable right to vote in and vote out governments. It is only  when  they first perform this civic right or  duty that  the subsequent talk about parliamentary sovereignty may be meaningful.

Legislative Supremacy vis-à-vis the Federal Republic of Nigeria

You should recall that Nigeria adopted the parliamentary system of government in the First Republic  that  spanned  between  1960  and  1966.  Note  that  the  governmental system was     o p e r a t e d without the concept of legislative supremacy. Save in aberrational military  regimes, Nigeria has never operated parliamentary or legislative supremacy. This is demonstrated by the fact that the nature of an entrenched constitution which Nigeria has operated since 1960 under its civilian administrations has been incompatible with the theory of legislative supremacy. For the avoidance of doubt, Nigeria runs governments based on constitutional supremacy. This means that the CFRN is the only litmus test for determining the legality or validity of any law or conduct. Thus, Section 1 of the CFRN 1999 provides as follows:

• This Constitution is supreme and its provisions have binding force on  all authorities and persons throughout the Federal Republic of ”
• The Federal Republic of Nigeria shall not  be  governed,  nor  shall  any person  or  group of persons take control of the Government of Nigeria or any part thereof, except  in accordance with the provisions of this
• If any other law is inconsistent with the provisions of this Constitution, this  Constitution shall prevail, and that other law  shall  to  the  extent of  the inconsistency  be

See the case of Oladele v. Nigerian Army (2004] 6 NWLR (Pt. 868) 166 C.A.

Legislative Supremacy in Military Regimes

We have stated generally to the effect that legislative supremacy is an anathema in Nigeria. However, there is an exception in military regimes. Military intervention in the political rulership of the country is, pursuant to S. 1(2) CFRN 1999 (and the equivalent provisions  in  past Constitutions) is aberrational, abnormal, extraordinary, and unlawful. But,  because  a (legal) revolution is a social fact, successful military  coups  tend  to  transform  the  initial illegal act of the actors into a legitimate act. According to Kelsen:

A revolution…occurs whenever the  legal  order  of  a  community  is  nullified and replaced by a new order in an illegitimate way, that is, in a  way not prescribed  by  the first legal  order itself. It is in this context irrelevant whether or not this replacement is effected  through  a  violent uprising against those individuals who so far have been legitimate organs competent to create and amend  the legal order….  From  a  juristic  point  of  view,  the  decisive criterion of  a revolution is that the order in force is overthrown and replaced by a new order in a way which the former had not itself anticipated.

Civil or human rights advocates would ordinarily find this unacceptable but we still have to separate the law from our emotions or sentiments. This is another  way  of  saying that we should distinguish the law as it is from the law as it ought to be.

When the military strikes, the first thing it does is to suspend or modify parts  of  the pre- existing Constitution that governed the operations of the persons and institutions it has overthrown. Thus, Decree No. 1 of 1984 was fully entitled: Constitution (Suspension and Modification) Decree No. of 1984.  The  Decree  usually  abrogates  democratic  institutions such as the legislature and the executive, political parties, etc. On  the  other hand, it  suspends  or modifies constitutional provisions bordering on the independence of the judiciary and the protection of human rights of citizens.

In a military government, the concept of legislative supremacy is real. The military enacts Decrees and they put it beyond doubt that the Decrees are supreme and incapable of being declared null and void by the  judiciary.  For  example,  S.6  of  the  Constitution (Suspension and Modification) Decree 1966 provides that no question as to the validity of  any Decree or  any Edict shall be entertained by any court of law in Nigeria. This provision  has  been replicated in almost every decree that the military has ever promulgated.

The golden opportunity for the military to  unambiguously  assert  its  legislative  superiority  over the judiciary presented itself in the aftermath of E.O Lakanmi & Kikelomo Ola v. Attorney General (Western State) & Others. [1971] 1 University of Ife Law Reports 201.

The main issue for determination was whether the  powers  of  the  military  government  of 1966 derived from the pre-existing 1963 Constitution or whether it was a product of revolutionary coup d’etat a la Kelsen’s theory on revolution. The Supreme Court held,  inter alia, that the military was not a product of revolution, that it derived its powers from the

1963 Republican Constitution, meaning that its powers were finite or limited.

SELF ASSESSMENT EXERCISE 2

1. With military    regimes    as    reference    point,    critically    examine    the    concept    of legislative supremacy.

 CONCLUSION

We are much used to the theory that the three arms of government are equal and coordinate and that no one is superior or inferior to another. But legislative supremacy constitutes a rude exception to this widely-held view. It asserts that the parliament or legislature stands in a position over and above the executive and the judiciary. In fact, the legislature can legislate on any matter and in any  manner  that  may  negatively affect  the  status of the other organs of government. It is practiced in the UK. But we note that there are exceptions because nothing is absolute in life.

In Nigeria, parliamentary supremacy is, generally speaking, unheard of. Ours is rooted on constitutional supremacy. This claim remains valid even when one alludes to Nigeria’s brief  stint with parliamentary democracy between 1960 and 1966. Noteworthy, however, is the fact that military regimes are typical examples of what legislative supremacy looks like.

SUMMARY

In this Unit, we dwelt on legislative supremacy, the exceptions thereto, its theoretical relevance to Nigeria, and its manifestation in military regimes.

 TUTOR-MARKED ASSIGNMENT

1. The claim to legislative superiority by military regimes is  unacceptable especially against the background of the fact that they assume power by unconstitutional means. Discuss.

 RE F E RE NCE S /FURTHER READINGS

1. Hans Kelsen, General Theory of Law and State 117 (New Brunswick, London: Transaction Publishers, 2006).
2. W.R. Wade, Administrative Law (Oxford: Clarendon Press, 3^rd Edition, 1971