his statement attacking the Vietnam policy was held to be justiciable on the
ground that it was not within the jurisdiction of the Legislature to find out
whether a member was sincere in regard to his oath of the legislature. In
Adam Clayton Powell v. John W. McCormack. (1969) 23 L Ed 2d 491 the
disqualification by the House of a Congressman on the basis of qualification
on the ground which was not in the Constitution was held to be justiciable.
The Federal District Court has jurisdiction over the subject-matter of
controversies arising under the Constitution. The conferment of power on
each House in America to be a judge of elections is an exclusive ground of
power and constitutes the House to be the sole and ultimate Tribunal.
30. The Amerian decisions show that if the House claims additional power to
disqualify a member on the ground other than those stated in the Constitution
judicial review against disqualification would be available. In Bond's case (1966) 17
L Ed 2d 235 (supra) disqualification was on an unconstitutional ground that his
statement on Vietnam policy was a matter of free speech and expression. The court
did not decide an election dispute but as a custodian of judicial power judged
whether the House was acting within its power.
31. Parliament itself can also hear election disputes. That was the English
practice until the Grenville Act. 1868 when Parliament conferred power on courts.
Before 1770, controverted elections were tried by the whole House of Commons as
party quesions. The House found that the exercise of its privilege could be submitted
to a Tribunal constituted by law to secure impartiality in the administration of
justice according to the laws of the land. In 1868 the jursdiction of the House in the
trial of controverted elections was transferred by statute to the courts of law. The
persent procedure is contained in the English Representation of the People Act,
1949. The trial is confided to judges selected from the judiciary. Provision is made in
each case for constituting a rota from whom these judges are selected. The House
has no cognizance of these proceedings until their determination when the judges
certify their determination, in writing, to the Speaker, which is final to all intents
and purposes. Trial is not a proceeding of the House. The judges are to make a
report in any case where charge has been made in the petition of corrupt and illegal
practice. Provision is also made for the trial of a special case. All certificates and
reports of the election court are entered in the Journals of the House. Under Section
124 (5) of the English Representation of the People Act. 1949, it is the duty of the
House to make orders for carrying the determination of the judges into execution.
32. Judicial review in many matters under statute may be excluded. In many
cases special jurisdiction is created to deal with matters assigned to such authorities
A special forum is even created to hear election disputes. A right of appeal may be
conferred against such decision. If Parliament acts as the forum for determination
of election disputes it may be a question of parliamentary privilege and the courts
may not entertain any review from such decisions. That is because the exercise of
power by the Legislature in determining disputed elections may be called legislative
power. A distinction arises between what can be called the traditional judicial
determination by courts and tribunals on the one hand and the peculiar jurisdiction
by the legislature in determining controverted elections on the other.
33. The legal order is a system of general and individual norms connected with
each other according to the principle that law regulates its own creation. Each norm