Parliament exceeding its powers and acting illegally

Some politicians and opinion leaders have expressed some doubts regarding the correctness of the National Assembly’s encroachment on the powers and privileges of the Executive. They oppose the trend saying Parliament is impairing the balance that ought to constitutionally and legally exist among the basic organs of Government.

I support the reservations, regardless of the past of the presidency and the Executive, and regardless of who holds (or will hold) the presidency. I support them because that is not how a democratic government works.

Anybody with basic knowledge of knowledge of constitutional law and public administration, and with a little rectitude in his blood will oppose Parliament’s flagrant forays into areas reserved for the Executive. Constitutional law restricts Parliament to legislation, the approval of taxation and watching the Government. As a deliberative body, it is peculiarly fitted for these tasks. Its strength on this score does not mean that it has capacity to handle administrative issues.

Proponents of the rise of parliamentary hegemony have invoked the principle of supremacy. But in no way have those opposed to usurpation of Executive powers and privileges questioned the House’s legislative supremacy. This is sacrosanct. It is in vain to challenge it because legislative sovereignty is a hallowed principle of constitutional Government.

separation of powers

The basic complaint against Parliament is that it is violating equally sacrosanct principles, such as that of separation of powers, which spells out the functions, powers and prerogatives of the three organs of Government. Under this principle, the parliament’s function is to make laws, the executive to enforce or execute these laws, while the judicature adjudicates the laws. Government powers are distributed among the branches, which, as far as possible, are independent.

Parliament cannot supplant the supremacy of the Constitution. House Standing Orders cannot, in all honesty, override the principles of the constitution, or norms and conventions. It does not matter how weighty they are; Standing Orders are only relevant in conducting the peculiar business of the House. It is therefore, an usurpation of power for the National Assembly to venture into realms that are purely administrative and constitutionally belong to the Executive.

To exercise such a power is to exercise power illegally. Power not granted by the Constitution — whether expressly or by implication is pretended power. Nor is Parliament competent to dabble in administration, appointments and running of agencies.

In his classic, The Representative Government, English political philosopher John Stuart Mill observed: "The proper duty of a representative asse-mbly in regard to matters of administration is not to decide them by its own vote, but to take care that persons who have to decide them shall be the proper persons. Even this they cannot advantageously do by nominating the individuals. There is no act which more imperatively requires to be performed under a strong sense of individual responsibility than nomination to employments."

Affairs of the Executive

It matters not whether Parliament can get better people to fill positions; it is wrong for the House to meddle in the affairs of the Executive.

A constitutional government gives the Chief Executive latitude to use his judgment in making appointments, subject to the advice and consent of the Legislature. It is more feasible to let one man — the President — nominate an individual into an office and then, let the collective wisdom of Parliament to assess their competence, experience and integrity before confirmation into the office in question.

Letting Parliament choose an individual and simply have the President confirm or appoint him does not allow society to test the appointee. This system unduly circumscribes the discretion of the President to accept or reject a parliamentary nominee, while Parliament has discretion to reject the President’s nominee.

We cannot just dismiss the honest objections against Parliament by invoking the supremacy principle. The House does not exercise supremacy in a vacuum. It does so in accordance with inviolable principles of the Constitution, such as the rule of law and the separation of powers.

The writer is a commentator on social and political issues.