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Debate on Constitutional Supremacy and Parliamentary Supremacy

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23rd-Sep-2017       
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Md. Shamsul Arefin Arif :
Two types of supremacy are found in the constitutional systems in different countries of the world. One is Parliamentary Supremacy and another  is  Constitutional Supremacy. The term Parliamentary Supremacy means that Parliament is Supreme over the Constitution. It is also called Legislative Supremacy because the Legislature is not a body created by the Constitution; neither the power of the Legislature is limited by the Constitution; the Legislature exercises an unlimited and Supreme power in law-making process. Such Legislative Supremacy is possible only when the Constitution is unwritten and flexible. All over the world only the United Kingdom (UK) Constitutional system has this Legislative Supremacy. Three basic features of Parliamentary Supremacy  are as follows: (i) There is  no law which the parliament cannot change or modify, (ii) There is no distinction between constitutional law and ordinary law, and (iii) There is no body which can declare the law passed by the Parliament illegal or unconstitutional.
The term Constitutional Supremacy means that the Constitution is Supreme  over the Parliament and the Parliament can exercise its functions being only within the bounds of the Constitution. The basic features of the Constitutional Supremacy are as follows: (i) The Constitution is written, (ii) The Constitution must be rigid, (iii)  There is a distinction between Constitutional Law and Ordinary Law (iv) There must be a provision in the Constitution, either express or implied, that the Constitution shall  be the Supreme Law of the country and any other law inconsistent with the Constitution shall be void, (v) The Parliament is created by the Constitution itself and the Parliament  exercises  its Legislative power being within the bounds of the constitutional limitations, and (vi) There is an independent body [Court] created by the Constitution to examine the constitutionality of  Legislation made by the Parliament and any  action taken by the Executive.
The Constitutional Supremacy is also called Judicial Supremacy in the sense that the Judiciary i.e. the Highest Court  of the country is Supreme over the Legislature. Because the Judiciary is invested with the power to examine the validity and constitutionality of any Legislation made by the Parliament and can declare a law void on the ground of inconsistency with the Constitution.
The object of making the Constitution written and rigid is to limit the powers and functions of the Executive/ Government and the Legislature. The USA Constitution makers were the 1st to designate their Constitution as the Supreme Law of the country and this designation has resulted the Doctrine of Constitutional Supremacy. The USA Constitution makers had the painful experience that even an elected representative body might be cruel, undemocratic and autocrat. They felt that there should be a Law superior to the Legislature itself and that it was the reason of this permanent written law which  could only save the People from the fear of absolutism and autocracy.
The following arguments will help to understand that the Constitutional Supremacy is ensured in The Constitution of the People's Republic of Bangladesh: (1) The Constitution of Bangladesh is written one. It specifically prescribes the manner how the power and functions of the 3 organs of the Government will be exercised, (2) It is a rigid Constitution. Because as per Article 142 the Constitution  can be amended only when it is passed by the votes of not less than two-thirds of the total number of Members of  the Parliament. The basic provisions of the Constitution are not amendable, The Article 7B says: " Notwithstanding anything contained in article 142 of the Constitution, the preamble, all articles of Part I, all articles of Part II, subject to the provisions of Part IXA all articles of Part III, and the provisions of articles relating to the basic structures of the Constitution including article 150 of Part XI shall not be amendable by way of insertion, modification, substitution, repeal or by any other means", (3) Fourth paragraph of Preamble says: "Affirming that it is our sacred duty to safeguard, protect and defend this Constitution and to maintain its supremacy as the embodiment of the will of the people of Bangladesh so that we may prosper in freedom and may make our full contribution towards international peace and co operation in keeping with the progressive aspirations of mankind", (4) Article 7 (2) says : "This Constitution is, as the solemn expression of the will of the people, the supreme law of the Republic, and if any other law is inconsistent with this Constitution that other law shall, to the extent of the inconsistency, be void", (5) Part III, Fundamental Rights, "Article 26 (1) : All existing law inconsistent with the provisions of this Part shall, to the extent of such inconsistency, become void on the commencement of this Constitution. Article 26(2) : The State shall not make any law inconsistent with any provisions of this Part, and any law so made shall, to the extent of such inconsistency, be void", (6) Article 65 (1) says: "There shall be a Parliament for Bangladesh (to be known as the House of the Nation) in which, subject to the provisions of this Constitution, shall be vested the legislative powers of the Republic", (7) As per Article 94 (1) Constitution itself created the Supreme Court of Bangladesh,  (8) Article 94 (4) says "Subject to the provisions of this Constitution the Chief Justice and the other Judges shall be independent in the exercise of their judicial functions" (9) Under Article 102 the Supreme Court has been empowered to scrutinize the Government actions taken in violation of fundamental rights, (10) Again under Article 7 and Article 26 the Supreme Court exercises the power of Judicial Review i.e. to examine the constitutionality of any law passed by  the Parliament, e.g. the Supreme Court declared many laws unconstitutional and void like 5th Amendment, 8th Amendment, Indemnity Ordinance etc.; (11) Article 108 says: " The Supreme Court shall be a court of record and shall have all the powers of such a court including the power subject to law to make an order for the investigation of or punishment for any contempt of itself",  (12) Article 111 says " The law declared by the Appellate Division shall be binding on the High Court Division and the law declared by either division of the Supreme Court shall be binding on all courts subordinate to it" and (13) Rule 53 (2) (xx) (a) of the Rules of Procedure of Parliament says "it shall not- contain any reflection on the conduct of the President or of the Judges of the Supreme Court".
From the foregoing provisions of the Bangladesh Constitution we can conclude  that the Constitutional Supremacy is ensured in The Constitution of the People's Republic of Bangladesh. It is my humble submission to the People including all political parties of Bangladesh to give due respect to our Constitution.

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