Legislative Dictatorship

Chief Justice Ian Chang (acting) issued a decision on the case brought by the attorney general against the leader of the opposition and the Speaker of the House on the issue of the criteria for constituting the Committee of Selection (CoS).

The gravamen of the government’s argument was that the Speaker and the combined opposition used its one seat majority to alter the strength of the “mother of all committees” from 10 to nine and then allocated them on a 4-4-1 basis to the PPP, APNU and AFC respectively. With its one out of 65 seats (1.5 per cent) advantage at the plenary level it catapulted this into a one out of nine advantage (11 per cent) at the CoS level.

For its part, the government proposed that a 5: 4: 1 split between the government and the opposition reflected a fairer allocation based on the Proportionality Principle immanent in the Constitution. This principle has been the foundational principle of representation since 1964. The government has made reference to Articles 60 and 160 of the Constitution and the provisions of the Elections Laws (Amendment) Act Number 15 of 2000. In addition and more specifically Standing Order 94 (1) of the Parliament states: “Every select committee shall be constituted as to ensure, as far as possible, that the balance of parties in the Assembly is reflected in the committee.”

The constitutional provisions all refer to the electoral system and the need to maintain proportionality between the votes obtained by the individual parties and the seats they end up with in Parliament. This is succinctly summarised on the GECOM website: “Under the current system which was adopted after the amending of the Constitution and the Representation of the People Act {Constitution (Amendment) Act Number Three of 2000 and Election Laws (Amendment) Act Number 15, 2000} in November, 2000, all members of the National Assembly are to be directly elected. Twenty five (25) to be elected from the ten (10) geographic constituencies and the remaining forty (40) elected from a national “top-up” list to guarantee a very high degree of proportionality.”

To emphasise the overriding need for proportionality, GECOM points out: “On February 13, 2001, conscious of the need to ensure the constitutional requirement for proportionality, the National Assembly further amended the Representation of the People Act, Constitution (Amendment) Act Number One, 2001 and Representation of the People (Amendment) Act 2001 to allow the National Assembly to have at least sixty five (65) members and allow GECOM to allocate “overhang seats”, if required. Overhang seats would be required if a Party wins a disproportional number of constituency seats thereby giving it an advantage over other parties. Under these circumstances, GECOM would award overhang seats to the national top up to ensure that the advantage is removed.”

Notwithstanding the above arguments, Justice Chang ruled bluntly: “It is the National Assembly which fixes the numerical strength of its membership. If so, it is difficult to conceive that there would be any constitutional limitation on the power of the National Assembly to fix the numerical strength of the membership of any of its Standing Committees.” What the CJ is now affirming is that the Legislative branch can do whatever it wants inside Parliament – even though their procedural action has infringed on the right of representation of the people.

And this is the bottom line. As we pointed out at the time of the action: “It is pellucid that after going to such lengths to ensure proportionality of votes from the people to be reflected in the respective voting strength in Parliament, it is unthinkable the framers of the constitution would completely eviscerate the principle at the points where it becomes most meaningful: the committees. Considering the history of the framing of our constitutional principles, the principle of proportionality, based on fundamental fairness, cannot be sacrificed at the altar of bureaucratic efficiency – ‘gridlock’, according to the opposition.” We are on the cusp of a legislative dictatorship.