What do you make of the government ordinance?
First, the ordinance-making power must be used only in the rarest of rare case because it is an executive act and not a legislative one. Second, there is no reason given for concluding that a constitutional consequence of a disqualification does not occur when a conviction takes place. Even assuming that an amendment had to be considered, it had to be done only after debate, with all the material placed before Parliament. It is the government’s duty to show Parliament the number of candidates in the past two elections (General and Assembly) and find out how many were accused, charged, convicted and how many appeals against convictions were disposed of while these lawmakers were holding office. There can be a politically- motivated complaint but it is unfair to say that there is a politically-motivated conviction. An offence is convicted only with evidence. There is no room for a convicted lawmaker to continue to discharge his duties. The crucial test is, did the Constitution-makers want convicted members to continue to hold office? Parliament exercises both constituent and legislative powers. Should they exercise constituent power? This has a direct bearing on political theory and morality. They cannot abuse this for political survival and support. The belief that political survival is more important than the purity of the Constitution has to be dispelled.
They did not even wait for the Bill to stand the test of Parliament. What does this rush indicate?
There is no doubt that the recourse to ordinance is being undertaken to deal with certain situations. It is sad that the Cabinet should have even allowed this to happen. Constitutional governance is not about power but the exercise of power for a genuine purpose, which is missing here. If you see the figures published by the Association for Democratic Reforms and how candidates don’t report what happened to their appeal, this shows the ordinance is meant to prevent a cleansing of the polity by the SC. The ultimate test is if we are serving the ethos of the Constitution or certain existential desires like political survival.
What are the technicalities of passing an ordinance?
It is an executive decision, acting on the aid and advice of the Cabinet. The President must also consider if the matter was of an emergent nature, that it could not be placed before Parliament and that it brooks no delay. The President’s discretion is not simply bound by the Cabinet, but he can refuse to sign if he believes it to be an unconstitutional ordinance or if parliamentary processes are being bypassed. Everything should be tested through legislative democracy.
Should the Attorney or Solicitor General be consulted?
The President has intimate experience of constitutional law and needs no advice.
Will the ordinance stand against an existing SC ruling?
As per newspaper reports, the AG suggested that there should be a constitutional amendment and not an amendment to the rp Act. That is the right view. There cannot be a constitutional amendment by ordinance.
What power does the SC have now?
Under our Constitution, judicial review is permitted, including that of an ordinance through a writ petition or application for review.
Politicians have been arguing that immediate unseating upon conviction could be unfair given the fact that a large number of such convictions by trial courts end up being overturned by the appellate courts. How does one resolve this conflict?
We don’t have adequate data to show that the appellate courts overturn the convictions. There is no basis to assume that trial courts render completely unsustainable convictions, which are overturned in appeal. The appellate process is just and available to all citizens. A conviction against a politician is an effective conviction.