“The unwritten nature of the UK fundamental law has made the legal system of the UK even better structured. It has the most supreme authorization over its establishments and is organised plenty as to run the maps of parliament in comparing to the written fundamental law of the people’s democracy of Bangladesh ” Critically analyse.
Every province has an ultimate beginning of legal authorization. A written fundamental law is a papers which provides the province an ultimate authorization. [ 1 ] By contrast, United Kingdom ( UK ) does non hold a written fundamental law [ 2 ] , as a consequence, the ultimate law-making power lies with Parliament, the House of Commons ( HC ) , House of Lords ( HL ) and the Crown [ 3 ] . For this everything that go oning in UK it is constitutional and if nil happens that would be constitutional besides. [ 4 ] But as the parliament and Judgess are the precautions of justness and autonomy and they embody the spirit of the fundamental law [ 5 ] in comparison to giving unconditioned power to the Westminster Parliament and carefully restricting the powers of Bangladesh parliament by the constitutional or judicial domination construct it is really dubious in world that whether adult male is adequate of a political animate being to bring forth a good, reasonable, serious and efficient fundamental law as all the grounds is against it. [ 6 ] (George Bernard Shaw ) .
In other word in this inquiryI will discourse the importance of a fundamental law and the nature of it exist in UK and Bangladesh and eventually iwill give a comparison thought of two sort ofdomination exist in a constitutional system, which is most justifiable TO uphold and keep the autonomy and justness in a democratic system,in world.
A fundamental law is defined byAristotle( B. 384 – d. 322 BCE )[ 7 ] as the manner of life that the province has chosen for itself [ 8 ] and it is the highest of all. [ 9 ] He identifies it as same with the authorities. [ 10 ] [ 11 ] But Harmonizing to Thomas Pains and De Tocqueville the fundamental law means the aggregative [ 12 ] of merely those written rules which regulate the disposal of the province. K.C Wheare, Hood Phillips and Gilchrist included besides the unwritten rules. [ 13 ] So, whether it is in written or unwritten, it is a aggregation of rules [ 14 ] and regulations, which identify and regulate the major establishment of the province and govern and specify the relationship between the province and single citizen ; i.e. specify the extent of civil autonomy. [ 15 ]
At first sing the UK fundamental law, which is a merchandise of gradual development and its chief characteristics are- Unwritten, Flexible, Unitary, Supremacy prevail to parliament, by and large centralised, Monarchical in nature with a Bicameral parliament. [ 16 ] It is wildly known as un-codified fundamental law for its chief beginnings, like Israel and New Zealand. [ 17 ] As the chief beginnings of UK constitutional are – ( I )Parliamentary legislative acts( two )Conventions and usage( three )Historical Principles(the sovereignty of Parliament,regulation of jurisprudence )( four )Common Law ( V ) Royal privilege ( six ) European Torahs.Due to its flexible nature, the fundamental law is described as a ‘fundamental law in flux’[ 18 ] .
On the other manus the Fundamental law of Bangladesh ( BD ) is the merchandise of the Liberation Struggle. After nine month war Bangladesh achieved its independent on 16ThursdayDecember 1971 from Pakistan and shortly after merely within 11 month on 4ThursdayNovember 1972 the concluding bill of exchange was adopted by its Constituent Assembly. [ 19 ] The Silent characteristics of this fundamental laws are- Written, Rigid, Preamble, and Supremacy of the fundamental law, unitary govt. system, Independence of bench, Fundamental Principle and rights. It has a unicameral parliament. [ 20 ]
So, in comparison to the Bangladesh fundamental law some argued that British Constitution should be codified. As a written fundamental law would be a better precaution for the people’s rights, Liberals and freedoms. It reduces the executive powers of the Politian’s. It’s making much better public consciousness.
But there are some statements for an un-codified fundamental law those are- It is adaptable to altering fortunes as it is easy to amend. The power of unelected organic structures has merely passed to elected or accountable organic structures. The constitutional precautions are weaker in the UK Governments can react more easy to crises such as the increased panic menace after 9/11. It has stood the trial of clip, unlike much of the Countries there have been no violent revolutions or civil wars for several centuries. [ 21 ] So, it is so much justified that the un-codified nature of UK fundamental law is more efficient from a written one.
Now, I will give a comparison thought about constitutional domination in Bangladesh with the parliamentary domination in UK.
First sing the UK fundamental law the philosophy of the limitless sovereignty of parliament in UK is a merchandise of a long battle between parliament and the Crown which culminated in 1688 with themeasure of rights 1689.[ 22 ] As Harmonizing to A.V. Dicey ( 1885 ) sovereignty are of two types, legal sovereignty and political sovereignty. [ 23 ] The people holdpolitical sovereigntywhilst legal sovereignty remainders with the“Queen in Parliament”in UK. [ 24 ]
Dicey had illustrated three chief regulations of legal sovereignty. Harmonizing to the first rule of Dicey,Parliament is the supreme jurisprudence doing organic structure and may ordain Torahs on any capable affair.
For case UK parliamentin 1716, to widen its ain life enacted theSeptennial Actto widening the continuance of parliament from 3 to 7 old ages ( Now 5 old ages by Parliament Act 1911, s.7 ) . By ordainingthe Act of Settlement 1700[ 25 ] and His Majesty’s Declaration ofAbdication Act 1936,[ 26 ] now UK parliament may pass to alter the sequence to the throne. By go throughing the Union act withScotland in 1706[ 27 ] , Parliament may get rid of itself and restructure itself as a different organic structure. Now it may besides pass to change its ain powers (Parliament Act 1911 and 1949 )by ordaining theHouse of Lords Act 1999,its removed the familial equals from the Upper House.
UK Parliament may allow independency to dependent provinces, whether rules or settlements, as with theNigeria Independence Act 1960and theZimbabwe Independence Act 1979.
UK Parliament can go through Torahs which are retrospective or prospective. Following the House of Lords determination inBurmah Oil Company V Lord Advocate,[ 28 ] parliament passed retrospective statute law,the War Damage Act 1965to invalidate the consequence of the House of Lord’s determination. [ 29 ]
UK Parliament may pass with excess territorial consequence beyond the legal power of the UK even if this produces a struggle with international jurisprudence. ( SeeCheney V Conn[ 30 ]and Morisneen V Peters[ 31 ]instance ) .As,the Aviation Security Act 1982,which extends the legal power of the tribunals to seek the highjacking instances irrespective of the district in which the offense occurred.
It can besides go through Torahs which are contrary to cardinal constitutional rules (R V Jordan[ 32 ]) .InR V Secretary of province for the Home Department ex parte Simms Lord Hoffmanstated that the rule of Parliamentary Sovereignty means that parliament can if it chooses ; pass contrary to cardinal rules of human rights. [ 33 ] So we can state that harmonizing toSir Ivor Jennings ( 1882 )parliament can pass to censor smoke on the streets of Paris.
However it is of import to observe that Dicey’s theory is concerned strictly with the absence of any legal restrictions on Parliament. He acknowledged that there were clearly political bounds on what parliament could make. Harmonizing to him sovereignty is limited on every side by the possibility of popular opposition.
The 2nd limb of Dicey is,No Parliament may be bound by his predecessor or adhere his replacement.That means each parliament must bask the same limitless power as any before it. In Austin’s word“illimitable” .
Two signifiers of repeal exist to mean that fact that parliament are non bound. They are ;
As Express Repealis where statute law is passed which expressly states its purpose an act should be repealed. There are some strong statements that the UK has wining in adhering itself in this manner in sing the consequence ofhuman rights act 1998 and the European Communities 1972.
However there is besides the statement that the demand to utilize express words is non peculiar burdensome and represents at best a limited signifier of intrenchment.
Another, the philosophy ofimplied abrogationprovides the mechanism by which the justice gives effects to the regulation against Parliament being bound by old Parliaments. If Parliament passed an Act and did non revoke the old Act expressly, so the philosophy of implied abrogation come into the drama and the Judgess will use the latest legislative act deeming that the earlier Act was impliedly repealed.
The two instances( Vauxhall Estates LTD V Liverpool Corporation 1932[ 34 ]) and ( Allen Street Estates LTD 5 Minister of Health 1934[ 35 ])illustrated the rule of philosophy of implied abrogation.
AsThe Statute of Westminster 1931, s4was enacted to give statutory force to the convention that the UK parliament would non pass for Dominions without their consent. The Statute imposes substantial and procedural limitations on Parliament’s ability to pass for former settlements.In Blackburn V AGLord Denningstated that, in legal theory one parliament can non adhere another. But legal theory does non ever process aboard political world. Legal theory must give manner to practical political relations. [ 36 ] (British coal corporation v The King instance) [ 37 ]
But Inmanuel V AG[ 38 ]and Megarry v C instanceclearly restated the Orthodox position of sovereignty. In this position, “it is a fundamental of the English Constitution that Parliament is supreme. As a affair of jurisprudence the tribunals of England acknowledge Parliament as being in all same the power to destruct its ain omnipotence” .There can be seen that the grants of independency do enforce political bounds on parliament but do non restrict the legal power of Westminster to go through Torahs regulating these provinces.
Furthermore, TheAct of Union with Scotland 1707provided a fertile beginning for academic argument which remains a powerful statement against the limitless freedom of any Parliament at any clip to statute law. In the words ofProf. J Mitchellthe close parliament was ‘born unfree’ , because the Acts bind and limits the power of Parliament [ 39 ] (MacCormick V Lord Advocate[ 40 ]and Gibson v Lord Advocatestated the above besides ) .
In Attorney-General for New South Water V Trethowan[ 41 ] instance others the cogency ofthe Constitution ( Legislative Council ) Amendment Act 1929was tested besides. [ 42 ]
But harmonizing to Dicey’s viewed the Acts of the Apostless as holding no higher legal position than any other act and could non endanger sovereignty. As the UK Parliament has altered may of the rules contained in both the Scottish and Irish Acts of Union. Further the judicial comments were obiter and for others statements some faculty members have challenged that as parliament can non adhere its replacements as a consequence of some commonwealth instances.
The 3rd limb of A. V. Dicey is, no individual or organic structure – including a tribunal of law- may oppugn the cogency of Parliament’s passages. As the mode in which sovereignty is upheld in UK is through judicial determinations. Lord Denning stated this as “in my sentiment, it is the map of the tribunal to see that the process of the Parliament itself is non abused and that undue advantage is non taken of it. In so making the tribunal is non intruding on the legal power of Parliament itself. It is moving in assistance of Parliament, and, I might add, in assistance of justness. If is proved that Parliament was misled, the tribunal can and should pull it to the attending of Parliament.” But, the House of Lords rejected this position and Lord Reid stated,“The map of the tribunals is to interpret and use the passages of Parliament. The tribunals have no concern in the proceedings how the Act was passed.”( Pickin v British Railways Board 1974[ 43 ]and Jackson v Attorney General 2006 )[ 44 ]
The U.K. has incorporated theEuropean Convention of Human Rights ( ECHR )into domestic jurisprudence through theHuman Rights Act 1998 ( HRA 1998 ) .It imposes some duties on Parliament and Judgess. Under this actSection 3 requiresthe statute law to be interpreted every bit far as possible in a manner which is compatible with Convention rights.Section 4 allows the higher tribunals to do a ‘declaration of incompatibility’but the tribunals can non declare an Act of Parliament shut-in. If the Act is non compatible with Convention rights, so the tribunals have to go forth it to Parliament to ordain the necessary alterations. (Thoburn 5 Sunderland City Council 2002 )[ 45 ]
Furthermore the UK became a member of European Community by agenciesof European Communities Act 1972 ( ECA 1972 ) .TheECA 1972, Section 2 and Section 2 ( 4 ) hasradically altered the standing of Parliamentary Sovereignty. InVan Gend en Loos ( 1963 )the European Court of Justice ( ECJ ) held that by subscribing pacts, the member provinces had created a new legal order in which single provinces had limited their crowned head rights. [ 46 ] InInternationale Handelsgesellschaft ( 1970[ 47 ])where ECJ stated that EU jurisprudence is even superior to U.K. jurisprudence. (Factortame no. 1 to 5. ) [ 48 ] Furthermore, inSimmenthalinstance, ECJ held that EU jurisprudence is superior to national jurisprudence whenever enacted. [ 49 ]
As discussed above, EU and ECHR jurisprudence is superior to English jurisprudence and now U.K. parliament will non ordain any jurisprudence which is contrary to EU jurisprudence and violates of Human rights. Therefore, regulation 1 of A.V. Dicey is violated. Equally far as present U.K. Parliament is concerned, it is still bound by the duties which were accepted by theParliament of 1972 and HRA 1998. This is the misdemeanor of regulation 2 of A.V. Dicey. Furthermore, if U.K. Parliament enacts any jurisprudence reverse to EU jurisprudence, U.K. tribunals will ne’er accept it. Furthermore, Judgess now have the power to publish ‘Declaration of incompatibility’ if the jurisprudence is contrary to human rights.This is a signifier of challenge and hence rule 3 of A.V. Dicey is violated.
However, theoretically Sovereignty of Parliament remains as the Parliament canrevoke the ECA 1972 andHRA 1998 andtake UK out from EU. But in practical, it may non be possible due to of all time increasing engagement of the U.K. with the European Communities and as the HRA 1998 it provides basic rights and freedom to the citizen of UK.
To sum up, it is to state that, by the transition of clip, parliamentary sovereignty has become limited to some extent. Since 1689 to recent clip, legion alterations has occurred and therefore, Dicey’s limbs of parliamentary sovereignty has lost their significance to some extent and are non relevant with todays modern changed civilisation. But, it is indispensable to state that, under an uncodified fundamental law of United Kingdom, Dicey’s theory and rules of parliamentary sovereignty has provided a guideline to the United Kingdom.
In decision, it can be said that with the inclusion of rank of EU and incorporation of HRA 1998, it is obvious that Parliament’s jurisprudence doing power has been practically limited and partial, but theoretically parliamentary sovereignty remains in UK.
In other words, all lawfully organised parliaments have limited powers. The
Westminster Parliament has constitutionally limited powers, really much like banglad