Methods of legislation


At Penpoint


  • The GIDC mess here, and the UK’s dissolution woes, don’t show the parliamentary system at its best


The problems of parliamentary democracy were to be seen both in Pakistan’s problem with the legislation about the Gas Infrastructure Development Cess (GIDC) and in Westminster’s problems with Brexit, both examples of how the self-correcting mechanism present in parliamentary democracy are being strained to the maximum.

Perhaps the GIDC issue, which came up before Pakistan’s Senate has less urgency, but it is more illustrative of the problems faced, even 70 years after Independence, by a former colony. However, it should be noted that jettisoning the system is not the solution, for even those colonies which have become dictatorships would find the same problems, because the problem is in the methods of legislation.

The GIDC mess is the more illustrative because it is not political. The opponents of the regime are not being hounded, nor are any political supporters being benefited. However, the mess was created because the government was taken to court by some companies which objected to paying the GIDC when it was imposed. They consistently won, and the payment of the GIDC was stayed. The government opted for an out-of-court settlement in which no less than Rs240 billion were to be waived. This needed a piece of legislation. For this, the government did not have a majority in the Senate, so it had to issue an ordinance. Ordinances are supposed to be emergency legislation, to allow the government to take immediate action when Parliament is not in session.

This is particularly relevant in the present case, because if the ordinance expires, then the preceding position (of the companies being liable) will re-emerge. It might seem that all the rule of law does is inconvenience the government, while all it does is require that it engage in a little bit of forethought

Ordinances can either be left to expire, or serve as bills, being laid in Parliament and then following normal procedure until they are passed as Acts. If a government needs to legislate when Parliament is in session then that is where it will go. However, the convenience of legislating by means of a simple signature meant that parliamentary sessions were so manipulated that ordinances were promulgated the day before Parliament met, or the day after it was prorogued. Then the practice arose of re-promulgating ordinances just before they were due to expire. The Supreme Court took exception to this, and ruled that the government could not do so.

This is particularly relevant in the present case, because if the ordinance expires, then the preceding position (of the companies being liable) will re-emerge. It might seem that all the rule of law does is inconvenience the government, while all it does is require that it engage in a little bit of forethought.

In the present case, the government has backtracked on the out-of-court settlement, because of the public uproar against the government. If the government had not had a proper fear of the electorate, could it have got away with the deal? Probably not. Since it could not push through the necessary litigation, it would have been left with no choice but to abide by the court decision, an option it has chosen now, approaching the Supreme Court to take up the case.

It should be noted that the government is in a peculiarly advantageous position as a litigant. It makes the laws according to which the court is to judge. In theory, it is Parliament which makes laws, but in the parliamentary system, the executive power is placed in the hands of whoever commands a legislative majority. It has been recognised that to govern, you sometimes might need to make the law. If you can do so, then no one else can govern. Of course, in presidential systems, the executive and the legislative powers may be separated. Pakistan has an element, for the Senate, which is elected separately from the government, is necessary to legislation, and getting control of the executive by being elected in the National Assembly, as Imran Khan is finding out to his cost, does not mean being able to legislate.

The UK had developed a constitutional convention forbidding the House of Lords from voting on money bills, or indeed from preventing the passage of any bill passed by the House of Commons. One element that enforced this was the power of the Prime Minister to create peers. When Labour first took office in 1924, there were no Labour peers, so the PM had to create four. He chose men who had no heirs, so the title would die with them. Now, of course, there are life peers, and there are no hereditary titles created.

More serious for the UK, and the British example of parliamentary democracy, is the inability of Prime Minister Boris Johnson to dissolve. The British law is that the dissolution request must be approved by a two-thirds majority. Since two-thirds majorities are not achieved in British elections, that means dissolution requires the opposition to back it. Convention says that the opposition does not deny the Prime Minister his wish. Wham! It just did.

So, what does the Prime Minister do? Bring legislation allowing him to advise dissolution? He lacks a majority in the House. Should the Ministry resign? Who would replace him? Then maybe there should be a dissolution after all. The alternative would be to leave the government to stagger on, but its tenure ends in 2022 (the last general election having been held in 2017).

The politics all seems related to the UK’s exit from the European Union. Much of the problem has been created by the problem posed by the desire to preserve the Good Friday Agreement (which ended barriers between Eire and Ulster), as well as the Union of Great Britain and Northern Ireland.

That is a peculiarly British problem, and serves the Europeans right for getting involved. However, the basic problem of dissolution has been solved in most countries with a parliamentary system. In Pakistan, for example, dissolutions are the PM’s prerogative to advise. But there seems to be developing a constitutional convention against dissolutions, what with the last three National Assemblies going to full term.

There is a contrast with the presidential system, where the president cannot dissolve the legislature. But then, the president is not a part of that legislature, nor does he derive his office from it. While Imran Khan might see positives in a presidential system, in terms of freedom to choose his ministers (something he has pretty much done anyhow). But then, if the parliamentary system is running into problems, it cannot be said that the presidential is in any better shape, not with Donald Trump as US President.