International Conventions and Debasement of Legislative Process Part II

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By 2017-10-18

By Sriyan de Silva

The conduct of officials of UN Agencies such as of the UNHRC for example, which includes sponsoring palpably false reports and threatening small/defenceless countries to please certain powerful countries, whilst turning a blind eye to their abuses, stands in stark contrast to that of a major UN specialized agency, the International Labour Organization (the ILO, founded in 1919). Its impeccable Constitution ensures its governance through its tripartite structure of governments, employers' and workers' organizations, all of which are represented in its Governing Body and participate in its decision-making processes.

This makes it impossible for a few powerful governments to control its agenda. It has passed 189 Conventions – more than any other body. ILO Conventions become a part of national law, not on ratification by States, but by incorporation of their provisions in their national laws. Unlike individuals in some UN agencies, ILO officials treat members with the utmost respect and in a civilized manner - a culture alien to, many of these, human rights specialists.

What if a Sri Lankan Government finds a way to incorporate foreign laws into our law through a process inconsistent with the law making procedure, even unconstitutional, and by-passing the Supreme Court? In such an event, it would require the development of a doctrine of nullity (as the law has in other areas) applicable to such law. Our Constitution debars a challenge of a law passed by Parliament and has received the Speaker's assent. We need to develop a principle that if a law is passed by surreptitious means, a process which denies adequate scrutiny to prevent opposition, uses language in the Bill/Law which signifies different meanings in the three languages – such laws should not be covered by the constitutional bar to challenging it in the Supreme Court after it has received the Speaker's assent. Prior to December 1968, Courts in England took the view that a statutory provision that a Minister's decision on a particular matter shall not be called in question in any Court or otherwise, ousted the jurisdiction of the Courts to examine and rule on such decision. However, in what came to be a famous decision of the House of Lords in Anisminic Ltd. v. Foreign Compensation Commission (1968 2 AC 147) the Court held that the principle of the exclusion of the Court's jurisdiction to challenge a Minister's decision in the earlier mentioned circumstances, did not apply where the Minister acted without jurisdiction (i.e. outside his jurisdiction). A similar doctrine could be developed to the effect that the Constitutional bar to a challenge of a law after it is enacted would not apply where such enactment was improperly obtained through means earlier referred to.

Amendments

The Government has resorted to a strategy of introducing amendments at the last moment into Bills which are unrelated to the subject matter of the Bill. In essence, the Government introduced a Bill to increase female representation in the PCs, but subsequently added at the committee stage, provisions contained in the proposed 20th Amendment which had failed to find acceptance by the Supreme Court. These additions were unrelated to the subject matter of the Bill. What, should have been done at that stage was for the Bill to have been returned as being inconsistent with proper legislative procedure. The standard work on the subject, Erskine May's 'Parliamentary Practice'(17th ed.) refers to types of Bills returned by the Speaker in the House of Commons. Significantly, it includes a Bill 'which has gone beyond its title' (page 248). The chief characteristics of the Speaker's Office are authority and impartiality (May, page 247). He further states that 'Confidence in the impartiality of the Speaker is an indispensable condition of the successful working of procedure, and many conventions exist...to ensure the impartiality of the Speaker...'

We thus need to develop a doctrine of nullity or an equivalent in the context of what is happening in the country, or else remove the constitutional bar to challenging a law after it has been enacted and the Speaker's assent obtained.

Speaker's assent

Legislative powers are too important for the well-being of people in a country to allow laws improperly enacted to be protected from challenge due to a failure to dispute them prior to the Speaker's assent. Legislation pushed through by curtailing the right to proper examination of its provisions or through other practices which amount to deception and/or a lack of transparency and/or a fraudulent procedure, is surely not valid law and is therefore a nullity. If a law is enacted through such means before it can be challenged in Court authorizing the Government to seize the assets of any citizen, or even order his/her imprisonment without due process, such would not be a law that would enjoy our Constitutional protection because it must surely be deemed a nullity.

These extreme examples raise questions such as: what is a law, what procedures must be followed for a law to acquire that status, etc. If the Bill on Disappearances had been passed by Parliament before being challenged in Court, it would not qualify as a valid law due to its conflict with the Constitution, and therefore should be regarded as a nullity. If it is not a nullity and, therefore, it cannot be contested in the Supreme Court after the Speaker's assent, then the implication is that a Government can change most of the Constitution by slipping unconstitutional provisions into other Bills. Even a fully fledged dictatorship could be established through the means presently being resorted to. If they are not contested before the Speaker's assent, such would become law. We would then reach the situation that even non-laws become laws.

All this, calls for an appropriate legal fraternity willing to challenge the actions of the Government. It also requires a degree of jurisprudential thinking. Crucially, we also require an independent Supreme Court which we do have, notwithstanding politically motivated criticisms, willing to uphold such a doctrine. The law is not static. We need to accept that legal development is required not only in the sphere of human rights. Just as much as human rights are said to be an integral part of a democratic system, so also should the right to be subject to laws which are passed in a manner which does not debase or destroy the very fundamental legislative system which is an integral part of a democratic system.

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