LECTURE 2 : SUPREMACY OF THE CONSTITUTION

❏ You should be able to explain the meaning of constitutional supremacy and its key
elements using constitution, cases, commentators [ordinary laws must conform with the
constitutions, there are constitutional restrictions on parliament and state
behavior,there are special procedures for altering the constitutions, judicial review
of legislation is possible]
❏ Explain using cases like Collymore and Bahamas Symonette the relationship between
constitutional supremacy and parliamentary sovereignty today
❏ Describe the procedures for introducing changes to constitutions in a jurisdiction of
your choice and consider whether a constitutional amendment can be unconstitutional
[explain why Jamaica’s attempt to introduce an amendment to the constitution by
ordinary legislation was not effective in replacing the Privy Council with the CCJ,
explain why the outcome in Richardson was different to Independent Jamaica Council for
Human Rights]

ELEMENTS OF CONSTITUTIONAL SUPREMACY

- Ordinary must conform with the constitution : Ordinary laws are ranked lower than the
constitution. The constitution is the highest
- Special procedures for amending the constitution : Parliament must follow special
procedures for amending the constitution if it wishes to enact legislation that
infringes the constitution. It is supreme and not yet supreme. Parliament can alter the
constitution in the manner prescribed by the Constitution.
- Judicial review : court is the institution with the authority to resolve conflicts
about the constitutionality of governmental action.
- Limits on governmental power

TOOLS OF CONSTITUTIONAL SUPREMACY

- Judicial review [mechanism to ensure supremacy]
- Entrenchment [procedure to ensure thoughtful change]

TEXTUAL SUPPORT FOR SUPREMACY

- Supremacy clause [section 2 of Jamaica constitution (can be explicit or implied)]
- Limits on parliamentary power [section 48 of Jamaica constitution; Subject to the
constitution, Parliament may..]
- Judicial review [section 19 of Jamaica constitution; redress clause]
- Entrenchment [section 49 of Jamaica constitution]

NB. Some constitutions have one redress clause and others have two [eg. Antigua and Barbuda]
one is in the Bill of Rights and one is outside the Bill of Rights.
PARLIAMENTARY SOVEREIGNTY AND CONSTITUTIONAL SUPREMACY

Locus classicus - Collymore v Attorney General of Trinidad and Tobago

- Do I know the main issue at stake in the case that is important to my course?
- Do I understand the context and background for the case, both in terms of facts and
concepts?
- Am I looking for ratio,dicta or both?
- What is the relationship between case and constitution?

A KEY CONCEPT : Traditional understandings about UK Parliamentary Sovereignty and how they
have changed.

Traditional understandings :
- Parliament can do everything but make a woman a man and a man a woman [Dicey]
- Parliament can make and unmake any law [Dicey]
- Parliament is not bound by its predecessors, no special procedure is required to make
changes

Legal theory giving way to political realities :

- Freedom once given cannot be taken away as a political matter [Blackburn]
- Independence
- Devolution

- UK Human Rights Act 1998 gives the court power to make a ‘declaration of
incompatibility’

BACKGROUND TO THE CASE

- The Industrial Stabilisation Act was passed in 1965 and it prohibited calling a strike
in contravention of the provision of Act and mandated arbitration in disputes.
- The employees of an oil company brought an action for judicial review of the Act on the
ground that it contravened the provisions of the 1962 Constitution, particularly
freedom of association.

SUPREMACY CLAUSE IMPLIES JUDICIAL REVIEW OF LEGISLATION [Phillips JA]

- Doctrine of ultra vires is not applicable to the present case
- Even without express provision a power of judicial review of Parliamentary legislation
must reside in the Supreme Court of this country.
ENTRENCHMENT, LIMITS ON PARLIAMENT AND REDRESS CLAUSE IN BILL OF RIGHTS CONSTITUTE
SUPREME COURT AS GUARDIAN OF THE CONSTITUTION [Woodings CJ]
- The power and authority of Parliament to make laws are subject to its provisions
- Parliament may therefore be sovereign within the limits thereby set, but if and
whenever it should seek to make any law such as the Constitution forbids it will be
acting ultra vires.
- Our Supreme Court has been constituted and is the guardian of the Constitution, so it
is not only within its competence but also its right and duty to make binding
declarations, if and whenever warranted, that an enactment passed by Parliament is
ultra vires and therefore void…

NO ONE, NOT EVEN PARLIAMENT, CAN DISOBEY THE CONSTITUTION WITH IMPUNITY [Fraser JA]
- The Constitution is to confer upon the High Court the function of judicial review.
- No one, not even Parliament, can disobey the Constitution with impunity. Parliament can
amend the Constitution only if the constitutional prescriptions are observed and
providing Parliament fulfills the requirements of the Constitution its power is
sovereign and supreme.

KEY IDEAS FROM COLLYMORE

- Supremacy central [section 2 : prohibitive, imperative, entrenched; introduces the
doctrine of ultra vires]
- Powers of parliament limited [section 36 : subject to the constitution cannot disobey
the Constitution with impunity; Parliament is supreme if it follows the constitution]
- Powers of supreme court augmented [constituted as guardian of constitution; judicial
review not just within competence, but right and duty; power is implied even if not
express]

BAHAMAS METHODIST V SYMONETTE : ON THE RELATIONSHIP BETWEEN PARLIAMENTARY SOVEREIGNTY

AND CONSTITUTIONAL SUPREMACY
- Dispute within the Methodist Church which split in two
- Parliament was considering a private Bill to redistribute the assets of the Church
- The largely excluded section brought a constitutional action. They said : Parliament
did not follow its own procedures for enacting a private Bill; The Bill violated their
fundamental rights
- On the other side the concern : It was still a bill, not yet law; didn't parliament
have control of its own procedures?; the relationship between parliamentary sovereignty
and constitutional supremacy; parliament must have control of its own procedures
PARLIAMENTARY SOVEREIGNTY IS MODIFIED TO THE EXTENT NECESSARY TO GIVE EFFECT TO SUPREMACY
- In other common law countries [other than the UK}, their written constitutions, not
Parliament, are supreme.
- In Bahamas, the first general principle [that the Parliament may make laws for peace,
order and good government] is displaced to the extent necessary to give effect to the
supremacy of the Constitution

- The courts have the right and duty to interpret and apply the Constitution as the
supreme law of The Bahamas. In discharging that function the courts will, if necessary,
declare that an Act of Parliament inconsistent with a constitutional provision is, to
the extent of the inconsistency, void.

- The second general principle must be modified to the extent, but only to the extent,
necessary to give effect to the supremacy of the Constitution.

THE DECISIONS IN COLLYMORE AND BAHAMAS SYMONETTE TELL US THAT :

CONSTITUTIONAL SUPREMACY DISRUPTS THE CONCEPT OF THE SOVEREIGNTY OF PARLIAMENT

- Parliament is subject to the Constitution
- Ordinary laws made by Parliament are void to the extent of inconsistency with the
Constitution
- Supreme/High Courts have the power and duty to review Acts of Parliament and declare
their void
- Parliament must observe special procedures to amend the Constitution

OTHER ASPECTS OF PARLIAMENTARY SOVEREIGNTY REMAIN : PARLIAMENT IS SUPREME AND YET NOT SUPREME
- If Parliament follows the constitution, it can make law
- Parliament has control over its own internal procedure and the courts should not
interfere in its internal procedures unless it fails to follow the Constitution
- Generally courts should wait until a bill becomes a law before reviewing it
- But for the exception power to review laws for their consistency with the Constitution,
the courts should apply parliament’s law