The limits of parliamentary sovereignty

প্রকাশিত:রবিবার, ২৯ সেপ্টে ২০১৯ ০২:০৯

The limits of parliamentary sovereignty

Mostafa Kamal Majumder

The British Parliament is resuming its sitting on Wednesday unceremoniously ending its prorogation, termed unlawful by the Supreme Court, forcing a fresh assessment of the limits of House’s sovereignty, and making political scientists to ponder, shall the Westminster still have power to do anything except turning a man a women or a woman man.The unanimous decision of 11 justices of the Supreme Court meant Parliament had effectively not been prorogued – the decision was null and of no effect, Supreme Court president Lady Hale said, as reported by the BBC.

BBC quoted a No 10 Downing Street source as saying, the Supreme Court had “made a serious mistake in extending its reach to these political matters”, and had “made it clear that its reasons [were] connected to the Parliamentary disputes over, and timetable for” Brexit.

But Lady Hale emphasised in the ruling that the case was “not about when and on what terms” the UK left the EU – it was about the decision to suspend Parliament.

The conclusion of the 11 justices was: “The decision to advise Her Majesty to prorogue Parliament was unlawful because it had the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions without reasonable justification.”

PM Boris Johnson has said he “profoundly disagreed” with the ruling but would “respect” it.

The report said, lawyers for the government had argued the decision to prorogue was one for Parliament, not the courts.

But the justices disagreed, unanimously deciding it was ‘justiciable’, and there was “no doubt that the courts have jurisdiction to decide upon the existence and limits of a prerogative power’.

The British PM had advised Her Majesty to prorogue Parliament as he wanted to pursue ‘no deal Brexit’ to come out of the European Union without any deal by 31st October next. The move brought the PM’s defeat in votes in the House.

He was first defeated on September 8, 2019 when the opposition, joined by a group of 21 Conservative rebels, seized control of parliamentary business. British lawmakers in the House of Commons passed a bill aimed at preventing a no-deal Brexit, in another blow for Prime Minster Boris Johnson.

In another setback within 24 hours for the PM, lawmakers rejected Johnson’s proposal to hold a snap election on October 15. Johnson ousted 21 MPs from his own party after they voted with opposition lawmakers to take control of the parliamentary agenda, depriving him of a working majority. This also brought an end to the political career of Sir Arthur Nicholas Winston Soames, grandson of Winston Churchill.

UK remains divided since the Brexit referendum of 23 June 2016. The UK voted to leave the EU by 52% to 48%. Leave won the majority of votes in England and Wales, while Scotland saw Remain majority. The referendum results reopened the debate for Scotland’s independence from the UK.

David Cameron then Prime Minister of UK resigned as he was not prepared to deal with negotiations to come out of the European Union. His successor Theresa May had to resign for her failure to make a headway. Boris Johnson is more determined than Theresa to get Brexit done.

Jeremy Bernard Corbyn, Leader of the Labour Party and Leader of the Opposition has demanded Boris Johnson’s resignation as Prime Minister. But according to reports coming from different sources, the opposition is not sure about winning an election against Boris Johnson because the pro-Brexit opinion still remains dominant among the people in England and Wales. So despite his three successive defeats in the House of Commons, Boris Johnson may come out victorious winning a majority in a snap election although his first move for snap election has been blocked. The political chaos over Brexit has thus more deepened.

 

Coming to the point, one may argue that the Supreme Court by its latest decision has actually strengthened the Parliament’s power to deliberate and decide on matters like Brexit. But the decision has also made a decision on a prerogative of the Prime Minister who is also the leader of the House of Commons, null and void. That court has a say about the legality or otherwise in the affairs of the House Commons and has effectively said so is now the reality. Would this over time evolve as a check on the sovereignty of the House of Commons? Who knows?

In Bangladesh a Parliamentary system is in force since the passage of the Constitution 12th Amendment Act in 1991. Politicians here always proclaim, the Parliament is sovereign in line with the tradition of the House of Commons known as the mother of parliaments. The judges of the Supreme Court of Bangladesh have in private always disagreed with this, because the Bangladesh Constitution empowers them to decide on the constitutionality of Acts of Parliament and the SC has actually knocked down the 8th Amendment Act that had paved the way for setting up SC benches in the division headquarters of the country. The declaration of the 16th Amendment Act, that empowered the Parliament to impeach judges, null and void by the SC created a row between the two organs of the state.

The present development is thus very important from the point of view of the unwritten Constitution of the United Kingdom. The Supreme Court rule undoing the prorogation of Parliament by the Prime Minister would remain as a precedent to follow in such controversial circumstances. The 11 justices of the Supreme Court said, they gave the rule as “the effect on the fundamentals of democracy was extreme.”

(The writer is the Editor of GreenWatch Dhaka)

 

 

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