Module 2

Public Law
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Constitutional Supremacy
vs
Parliamentary Sovereignty
*Ensure you recall the role and function of the JA Constitution
“
“…the people for whom new
constitutions were being provided
were already living under a system of
public law in which the local
institutions through which
government was carried on, the
legislature, the executive and the
courts, reflected the same basic
concept…”
- Lord Diplock, Hinds v The Queen (1976)
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Background
● The principles of constitutional law set out the relationship
between the different organs of state as well as the
relationship between the state and its citizens.

● The constitution may be written or unwritten or it may be

contained in a single document or derived from a number of
sources (UK).

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Structure of the Constitution
● It is divided into chapters or parts and one separately dealing
with the powers and functions of the three arms of the state.

● There is also a chapter that deals exclusively with the

fundamental rights and freedoms; commonly called the Bill
of Rights.

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 Process of Drafting
● 1. Local Drafting
● 2. Local Debates on the Draft
● 3. Discussion and negotiation in England at Constitutional Convention
● 4. Ratification by Local Legislature
● 5. UK Act of Parliament

● However, one criticism is that Caribbean constitutions were ‘imposed’ and there is a
lack of autochthony (wasn’t home grown).
● T&T , Guyana abandoned the Independence Constitution.
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 How Original Are Independence
Constitutions?
● They lack originality.

● Norman Manley suggests that approximately 90% of constitution is the

same as existed as before independence.

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 Hinds v The Queen (1976)or
Hinds v R (1977)
● Hinds v The Queen [1976] 1 All ER 353:  

● Lord Diplock said: “…the people for whom new constitutions were being provided
were already living under a system of public law in which the local institutions
through which government was carried on,

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 Hinds v The Queen (1976)or
Hinds v R (1977)
● in which it was held that it was a violation of the separations of power
doctrine enshrined in the Jamaican Constitution for the Jamaican
Parliament to seek to establish a Gun Court giving Resident Magistrates
jurisdiction reserved for Supreme Court Judges under the Constitution

● Judgment represents first instance in which an Act of Parliament by an

independent Caribbean State was invalidated as unconstitutional

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 Westminster Model Constitution
The Westminster Model is characterized the following:
● Head of State – Her Majesty Queen Elizabeth II, represented by the
Governor General. In Trinidad the Head of State is the President and
performs the same role as Her Majesty.
● Separation of Head of State and the Head of Government (there is a fusion
of both offices in the U.S and Guyana).
● Cabinet Government – the Prime Minister chooses cabinet members from
Parliament and cabinet members are collectively responsible to Parliament.
Together they compose the Executive.
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 Westminster Model Constitution
● The Prime Minister must come from the lower/elected house.
● The Westminster Model has a bicameral legislature (Senate and the House
of Representatives).
● There is a similar voting system – first past the post compared to
proportional representation (70% of votes = 70% of seats).
● The Westminster Model connotes a separation of powers, but in practice
this is mostly demonstrated by the independence of the judiciary.

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 Difference between Caribbean &
U.K Constitution
● Single source vs. several sources
● Supremacy of Constitution vs. Parliamentary Supremacy
● Fundamental rights and freedoms are entrenched – a simple majority in
parliament can’t change them.

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 Changing the Constitution
● Machinery for change – the constitution is supreme. The constitution itself sets
out the process by which its provisions can be changed.
● There are different levels of entrenchment of the provisions in the constitution.
● In order to change the constitution, different parliamentary majorities are required.
● Minimum requirement – majority of the members of parliament of those present as
long as they form a quorum (minimum of twenty people).
● Simple majority of the particular House (Senate, House of Representatives)
● Absolute Majority (both Houses)
● 2/3 majority

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 Changing the Constitution
● Method
● The constitution cannot be changed by implication. It must be changed by express
amendment such as a declaration of intent.
● There must be a delaying period.
● Some provisions require a referendum (difficulty – partisan politics)
● Difficulty in changing – interlocutory – impacts on another section of the
constitution, thus the change affects another section.

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 Entrenched provisions of the Jamaican
Constitution
● Examples of entrenched provisions of the Jamaican Constitution :

● Section 2 which establishes that (subject to sections 49 & 50 of the Constitution)

where any other law is inconsistent with the Constitution, the Constitution shall
prevail and the other law shall, to the extent of the inconsistency, shall be void.

● Section 34 which establishes the Parliament and states that it shall which shall
consist of Her Majesty, a Senate and a House of Representatives.

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 Entrenched provisions of the Jamaican
Constitution
● Section 35 and section 36 which deal with the Senate and the House of
Representatives respectively.

● Section 39 which sets out the Qualification for membership of Senate and House of
Representatives.

● Section 63 (2) which states that Sessions of Parliament shall be held at such times
so that a period of six months shall not intervene between the last sitting of
Parliament in one session and the first sitting thereof in the next session.

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 Entrenched provisions of the Jamaican
Constitution

● Section 64 (2), (3), (5) which deal with Prorogation (the time between legislative
sessions) and dissolution of Parliament.

● Section 68(1) which establishes that the executive authority of Jamaica is vested in
Her Majesty.

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Stay focused
Stay Awake

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 Parliamentary Sovereignty

“the principal of parliamentary sovereignty means that parliament has the right
to make or unmake any law whatever and that no person or body is recognized
by the law as having a right to override or set aside the legislation of
parliament.”

- Dicey

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 Parliamentary Sovereignty

● Parliament has control over its internal proceedings

● The courts will not review this process to see if parliament conform to the
manner and form requirements for making laws.

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 Parliamentary Sovereignty
● “The supremacy of Parliament is a legal doctrine which refers to the
relationship between the courts and Acts of Parliament.

● The nature of this relationship is that the courts must give effect to Acts of
Parliament.

● They may not deny them legal effect, as can happen in the Commonwealth
Caribbean, where incompatibility with the constitution is a basis on which
the courts may strike down legislation.” Thompson ,“Textbook on
Constitutional and Administrative Law”

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 Parliamentary Sovereignty
● “The supremacy of Parliament is a legal doctrine which refers to the
relationship between the courts and Acts of Parliament.

● The nature of this relationship is that the courts must give effect to Acts of
Parliament.

● They may not deny them legal effect, as can happen in the Commonwealth
Caribbean, where incompatibility with the constitution is a basis on which
the courts may strike down legislation.” Thompson ,“Textbook on
Constitutional and Administrative Law”

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 Parliamentary Sovereignty
● Edinburgh v Dalkie Railway (1842):  

● Lord Campbell (paraphrasing) if it appears that a bill has passed both houses and
received the royal assent, no court could inquire into the mode in which it was
introduced into parliament, nor into the action taken before its introduction, or what
happened in parliament during its progress in its various stages through both
houses.

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 Parliamentary Sovereignty
● The second aspect of parliamentary sovereignty means that the courts will not
review acts of parliament they will only interpret them.

● What they can do is to make what is known as a Declaration of Incompatibility,

for instance, with international law.

● When they make this declaration, although parliament is not bound by it, in
practice, parliament will take steps to be compatible with whatever area its policies
are in conflict with.

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 Parliamentary Sovereignty

● In the United Kingdom the doctrine of Parliamentary Supremacy renders the courts
powerless to question the legality and constitutionality of primary legislation.

● The third one is that parliament is not bound by its predecessors. What
parliament does today would not bind it in the future.

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  Parliamentary Sovereignty
● When Britain decided to grant the countries of the Commonwealth Caribbean
independence, she also stipulated that their constitutions be written, as opposed to
the unwritten system, which guides the United Kingdom up until the present time.

● The fact that constitutions in the region are written and declare themselves to be the
supreme law of the particular jurisdiction, it puts a limit on Parliamentary activities
that would otherwise have made the body supreme.

● The Constitution has given the courts a duty to review Acts of Parliament to see if
its laws are consistent with the stipulations of the constitution and so it is the
Constitution, which is supreme, and not Parliament.

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 Constitutional Supremacy

● Because of constitutional supremacy, parliament has to make laws that

conform to the constitution. Under the constitution parliament has the
power to make laws for the peace, order and good government of that
jurisdiction. This law making power is subject to the constitution.

● The second characteristic is that, parliament in changing the constitution

must conform to the requirements for change that are set out in the
constitution.

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 Constitutional Supremacy

● Constitutional Restrictions on Parliamentary Sovereignty

● Parliament has been given power by the Constitution to make laws for the
“peace, order and good government” of the land. This is the widest law
making power a legislature may have. Despite this however, this power, the
constitution says, is “subject to the provisions of this constitution”. It
follows then that; the law of the constitution is higher than any other law,
including law made by Parliament.

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 Constitutional Supremacy

● Parliament may therefore be sovereign within the limits thereby set, but if
an whenever it should seek to make any law such as the Constitution
forbids; it will be acting ultra vires.

-Wooding CJ in
Collymore v AG [1967] 12 WIR 5
(read Chief Justice Frasier)

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 Constitutional Supremacy

● Entrenchment: The scheme of entrenchment is the protecting of all or

some of the provisions of a constitution against change by the ordinary
legislative process; that is, the majority. Entrenchment means that the
passing of legislation for the alteration of some or all provisions of the
constitution entails the observance of requirements, which do not have to
be met for the passing of other legislation.

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 Constitutional Supremacy

● In Payne v. A.G. (1982) 30 WIR 88, it was stated: “certain alterations in the
constitution were certainly not left to chance or an ordinary legislative
enactment.

● Some entrenchment devices include special formulae and delaying

procedures, through special parliamentary majorities and Senate vetoes, to
referendum requirements.

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{meaningful words}

VICELAND
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{meaningful words}

VICELAND
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Maps

Tsunami

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7,200
seconds are exaclty 2 hours.

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Learn:
Hinds v R
Page 59 of text
And Online

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Learn:
Hinds v R
Page 59 of text
And online

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