Sunday, March 14, 2010

The changing face of Sovereignty

By Nina Nariman, III Year, LL.B., Campus Law Centre, Delhi University.

[Synopsis of the lecture delivered by Dr. Stewart Motha, Professor, Kent Law School on March 10 at Campus Law Centre, Delhi University. Motha is the editor of Democracy's Empire]

Dr. Motha’s lecture dealt with the idea that parliamentary supremacy in the United Kingdom has been ‘de-positioned’, i.e. that Parliament is no longer the all- powerful sovereign, but rather, has had to yield this sovereignty to other organizations and individuals.

This notion of parliamentary sovereignty is what Dr. Motha went on to analyze as the primary focus of the lecture. According to him, with the advent of the European Union, parliamentary supremacy has undergone erosion. The Treaty of Rome, 1957, which established the European Economic Community (the precursor to the European Union), created a province of law where European law is supreme. With the European Communities Act, 1972, British Parliament allowed for the application of European Community Law in England. This, according to the Professor, was a classic challenge to the Westphalian model of sovereignty.

He illustrated this with an example: the sharp tension between the efficacy of European Community Law and the supremacy of Parliament was first seen in the enactment of the Merchant Shipping Act, 1988 by the conservative government of Margaret Thatcher, wherein it was laid down that Spanish vessels would not be given free movement within British waters – this violated European Community Law. This led to the Factortame case in which, for the first time, the Judicial Commission of the House of Lords (now the Supreme Court of the United Kingdom) injuncted an Act of Parliament, showing that court had the power to review an Act of Parliament if it came into conflict with European Community Law. Thus, the emergence of the new European Community led to the displacement of Parliamentary sovereignty in United Kingdom. With reference to India, Dr. Motha showed that this situation would not arise in India because the Indian Constitution reigns as sovereign, and neither Parliament not the courts stand above it.

He went on to show that while at the macro level, Parliamentary sovereignty was being challenged by the advent of the European Community, at the micro-systemic level, the ungovernability of science and genetic technologies was posing a similar challenge. The Human Fertilisation and Embriology Act, 1990 laid in place a mechanism whereby major decision were left to a ‘quango’ (quasi-autonomous non-governmental organisation) consisting of experts. These experts had the power to determine, for instance, whether or not a foetus should be used only as an end in itself or can be used for other purposes like its medicinal value. Thus, in such cases there is rule by experts not rule by law. He supplemented this hypothesis with the example of the rule that after a 14 day period, a human embryo used for research must be destroyed, as laid down by the quango. Here, experts and not political persons are determining questions of policy in the ‘ungovernable’ field of science and technology yielding further ground in the sovereignty of Parliament.

The talk was followed by an interactive session between him and the students and faculty present. Questions regarding the legitimacy of wars like the Iraq war, where one ‘sovereign’ (George Bush of the United States or Tony Blair of the United Kingdom) had the power to unilaterally declare war were raised, showing that the classical ‘sovereign’ – one who can unilaterally make a decision that will affect all those he rules – was far from dead. Dr. Motha in reply said that the legitimacy of the war was beyond the ambit of this talk and that such examples of the classical sovereign still exist. However, in his opinion, this type of example becomes an exception to the rule that classical sovereignty is in fact gradually being eroded.

With the arrival of scientific research, aspects of regulation are left to experts where they determine matters of policy. For instance, in research being conducted in areas like cloning the decision of an expert in the field becomes seminal, removing the role of the archetypal ‘political’ sovereign.

Dr. Stewart Motha concluded his discussion with the thought-provoking statement that this analysis of the shifting planes of sovereignty could allow for more scholastic attention to be devoted to areas within the law outside of traditional parliamentary sovereignty like non-governmental autonomous bodies.
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