Parliamentary Sovereignty and Written Constitutions in Comparative Perspective

Abstract

Many former colonies of the British Empire inherited a culture of parliamentary sovereignty from Britain, despite having written Constitutions. The tension between the Diceyan view of parliamentary sovereignty which allows for no distinction between constitutional and statutory law on the one hand, and the evolving idea of written constitutions as supreme law on the other, is unavoidable. This chapter examines the way in which this tension played out in Australia, South Africa and Sri Lanka, from the reception of the doctrine of parliamentary sovereignty in these former British colonies, to its effect on the jurisprudence on constitutional entrenchment and the making of post-independence constitutions in these countries. The chapter demonstrates how parliamentary sovereignty, as a product of the British historical experience, was not easily transplanted into new colonial settings and argues that in all cases, the desire for a full measure of parliamentary sovereignty comparable to that in the UK weakened the capacity of written constitutions to engender a culture of constitutionalism in these countries. The chapter concludes by reflecting on recent debates about parliamentary sovereignty in the United Kingdom to show that the concept of parliamentary sovereignty is subject to pressure even in its place of origin and in the absence of a written constitution.

Keywords: Parliamentary sovereignty, constitutions, Australia, South Africa, Sri Lanka, United Kingdom

JEL Classification: K00, K39