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Supreme Court Case to Stop Private Member's Bill: Part II - Bill
Watch 21/2012
Veritas
May 15, 2012
Part
II
Weakness
of Case
Part
1 [Bill Watch 20/2012 of 15th May] covered the background to
the case the Minister of Local Government, Rural and Urban Development
has taken to the Supreme Court to stop the Urban
Councils Amendment Bill. The Minister’s argument in his
submission to the court – that Article 20.1.2(c) of the GPA
as incorporated into the Constitution by Amendment 19 prohibits
Private Member’s Bills – was outlined and counter-arguments
were put forward to show the weakness of the Minister’s case.
There are additional
aspects of the case – the undesirability of bringing a case
to court while a Bill is being considered by Parliament
and the possible effect on other legislation including other Private
Member’s Bills.
No Precedent
for Courts to Intervene while Parliament Considers a Bill
To avoid infringing
the principle of separation of powers, and to avoid unnecessary
and undesirable conflict between Legislature and Judiciary, the
courts should not interfere in the workings of Parliament. There
used to be strict adherence by the courts to the principle that
Parliament has absolute control over its internal proceedings which
cannot be interfered with by the courts. More recently there have
been several cases challenging Parliamentary decisions post hoc:
as in the Mutasa and Bennett contempt of Parliament cases where
the outcome was appealed not during the process [the Supreme Court
did not overrule Parliament’s decision]; and in the General
Laws Amendment Act of 2002 case [when the Supreme Court did nullify
the Act, but this was not the same as interfering while the Bill
was going through Parliament]. The recent Zvoma case, in which a
High Court judge issued an order provisionally nullifying a House
of Assembly resolution, concerned an employee’s [the Clerk
of Parliament] right to due process and did not interfere with Parliament’s
core functions and prerogatives.
Political
Debate Belongs in Parliament not the Courts
Judicial intervention
in the passage of Bills through Parliament would open the door to
political manoeuvring through the courts rather than political debate
in Parliament where it belongs. It would be a sad day if Parliamentarians
opposed to any particular Bill could go to court for orders directing
Parliament on whether or how to proceed on the Bill.
Why
has the Minister gone to Court?
The Minister
must be aware of the weakness of his argument on the constitutional
provisions [outlined in Part I] and the lack of precedent for judicial
intervention to nullify a Bill before it has been passed and gazetted
as an Act. Why, then go to court?
Were his constitutional
rights violated? In his submission to the Supreme Court the Minister
claimed his fundamental human right to a fair hearing had been violated
and this entitled him to approach the Supreme Court for relief under
section 24 of the Constitution.
He said he was denied the opportunity to put his views to the House
when, after he and other Parliamentarians objected to the introduction
of the Bill to no avail, he wrote to Parliament on 13th March setting
out his objections. Because Parliament’s reply rejected his
objections he claimed his rights to protection of the law and due
process under section 18(1) and (1a) of the Declaration of Rights
had been infringed.
As Parliament
considered the Minister’s objection before rejecting it with
carefully formulated reasons, the claim that due process has been
denied is weak. Moreover, until the Bill is passed by Parliament,
the Minister and his political colleagues will be free to express
their views when the Bill is debated.
Was his motive
to delay the Urban Councils Amendment Bill? This would seem a reasonable
conjecture if the Minister is banking on the argument that the House
of Assembly should not take the Bill further because its right to
do so is sub judice. If he were to win the sub judice argument,
it would take some time before the Supreme Court gets round to considering
the case, and if, after hearing the parties, the Supreme Court postpones
its judgment, which it usually does in constitutional cases, the
Bill will be delayed even longer. As this Bill, if passed, would
considerably curb the Minister’s powers over urban local authorities,
most of which are controlled by MDC-T-dominated councils. There
would be political benefits for the Minister and his party, bearing
in mind up-coming elections, not to have such a Bill passed.
Was his motive
to delay other Private Member’s Bills coming before Parliament?
If he were to win the sub judice argument while the case is with
the court, it would also benefit his party not to have the other
Private Member’s Bills in the pipeline go through Parliament.
Implications
of this Case for Other Private Member’s Bills
Although Minister
Chombo’s application asks the Supreme Court for an interdict
stopping further Parliamentary consideration of the Urban Councils
Amendment Bill only, the argument he has put forward is applicable
to Private Member’s Bills generally [see Part 1], and the
court’s final ruling will serve as a precedent for other Private
Member’s Bills. So too would a sub judice prohibition of further
debate, although it is hoped this will not happen [see below]. Private
Member’s Bills already tabled are:
Note: When Hon
Gonese, the MDC-T Chief Whip, got leave from the House of Assembly
to introduce his Bill to amend the Public Law and Order Act [POSA]
in November 2009, it was well after Schedule 8 to the Constitution
was enacted by Constitution Amendment No. 19 of 13th February 2009.
There was no attempt to raise the constitutional argument based
on Article 20.1.2(c) of Schedule 8 now put forward by Minister Chombo
against the Urban Councils Amendment Bill. Nor was this argument
raised when the debate started on Mr Gonese’ motion for leave
to introduce the Private Member’s Bill to repeal section 121(3)
of the Criminal Procedure and Evidence Act.
Any ruling in
Minister Chombo’s case would have implications for other envisaged
Private Member’s Bills, for example, Bills to replace or amend
Media and Access to Information laws.
Importance
of these Private Member’s Bills
These Bills,
if enacted, would fill the gap created by the Government’s
delay in producing Bills to achieve the changes called for in the
GPA and Government policy documents such as STERP and contribute
to meeting the requirements of the SADC Guidelines for Elections
and ensuring acceptance of the result of the next elections as free
and fair. They would enhance democracy and even before being passed
they serve to draw attention to laws needing reform. As a general
principle, Private Members Bills enhance democracy and are an important
element of a dynamic parliamentary democracy.
Impact
of the Court Case on Parliamentary Efficiency
The Urban Councils
Amendment Bill is on the Order Paper for this week. If it comes
up, it is inevitable that:
The sub judice
rule will be raised in an attempt to stop further debate on the
Bill on the ground that Standing Order 61 prohibits members from
referring to “any matter on which a judicial decision is pending”.
The Speaker
will have to give a ruling – when he gave a ruling on a sub
judice objection in the Zvoma case in December 2011, the Speaker
said that the Standing Order prohibition only comes into operation
after a case has been heard and the judge is considering his or
her ruling – but is not brought into operation by the mere
lodging of a court application. He pointed out convincingly that
otherwise it would possible to disrupt the work of Parliament merely
by lodging an application, no matter how frivolous or vexatious.
[It is true that Justice Bere in his later judgment disagreed with
that ruling, but he did so in remarks that were not essential to
his decision. So the judge’s view is not binding on the Speaker
– or for that matter on the Supreme Court or any other judge.
Which means the Speaker can be expected to follow his previous ruling
if the occasion arises.]
It could affect
all Parliamentary work – it would be most unfortunate if this
case results in a precedent for using the sub judice rule to stop
debate on a Parliamentary agenda item every time a dissatisfied
MP lodges court papers challenging Parliament’s handling of
the item. That might encourage flimsy applications to court simply
to delay proceedings in Parliament. Parliament’s legislative
work could be disrupted and bogged down. This was the danger to
which the Speaker drew attention in his December ruling: “If
the Speaker were to expunge motions on the Order Paper on the basis
of someone having merely filed a court application, the House would
never conduct any business.”
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