08-04-2008, 05:17 AM
<b>Comment: Parliament and foreign policy âA G Noorani</b>
Can any one imagine that a democratic government can conclude an international agreement of a sensitive nature and escape accountability to Parliament and public opinion?
Opposing the Prime Minister of India Dr Manmohan Singhâs motion of confidence in his Council of Ministers in the Lok Sabha, on July 21, the Leader of the Opposition Mr Lal Kishan Advani suggested that the constitution should be amended to obligate ratification by Parliament of international agreements of a certain kind; for example those that bear on national security. Ever since the debate on the draft agreement between India and the United States on nuclear cooperation began, not a few demanded that it must be ratified by Parliament. Some proposed constitutional amendment to ensure that. Mr Advani only gave this suggestion a precise form.
This reflects an old South Asian tendency to seek institutional or legislative action to meet a political problem â set up a Committee, or a Commission of Inquiry; or change the law, or the Constitution itself. Can any one imagine that a democratic government can conclude an international agreement of a sensitive nature and escape accountability to Parliament and public opinion?
In the instant case the Prime minister sought a vote of confidence because the President asked him to do so. Since his supporters, the Left parties, had withdrawn their support, he had to prove his majority. But there was nothing to prevent the Opposition from moving a motion of non-confidence or rejection of the draft or an adjournment motion with the stigma of censure. In any of the three cases the Government would have been bound to resign.
The Shimla agreement of July 3, 1972 did not provide for ratification. But each Government faced its Parliament and obtained a vote of support. During the debates the leaders gave their views on the finer points of the Shimla Pact in response to criticism. Mrs Indira Gandhi told the Lok Sabha on August 2, 1972, âI am not bothered whether they go to the United Nations...We can meet them there. I have no fear of their getting away with anything at the United Nations.â
Mr Zulfikar Ali Bhutto showed equal realism when, about the same time, he told the National Assembly, âIn the beginning we were excited at the concept of the United Nations...You know very well what we got from the United Nations...in 1964 the UN was not even prepared to give a resolution to Pakistan...And what did the president of Security Council say?â He said, âWe can say India and Pakistan must have bilateral negotiations.â
Parliamentary democracies follow the British model. Parliamentary ratification is an option, not a binding duty in law. However, politically it is inescapable. International agreements do not always provide for ratification. They can come into force either on signature or on ratification by the Government. Treaties almost invariably provide for their ratification, but do not stipulate that it must be done by the legislature. That is a matter of choice for each signatory State.
Also, a treaty has no legal effect domestically. Legislation is necessary to implement it; for example on environment. In the United States, treaties must be ratified by the Senate. When so ratified, they acquire the force of law superseding previous laws. Presidents try to evade this by concluding âexecutive agreementsâ. But the Senate, indeed the entire Congress with the House of Representatives, is not powerless. The Senate can obstruct legislation which the President seeks. The House of Representatives can hold up the budget.
It is politics which determines the course to be adopted. In view of its fractured divided polity and its distrust of foreign powers the democratic Constitution of Nepal of 1990 â which King Gyanendra foolishly violated and lost his throne â had a special provision which is not to be found in the Constitution of any other country. It deserves to be quoted in full to illustrate the deep distrust which inspired Article 126. It said that ratification and approval of âtreatiesâ or agreements shall be concluded as determined by law. It added that the law shall require ratification by a two-thirds vote at a joint sitting of both Houses of Parliament if the treaty concerns â(a) peace and friendship; (b) defence and strategic alliance; © boundaries of the Kingdom of Nepal; and (d) natural resources, and the distribution of their usesâ Otherwise the treaty will not bind Nepal. Also âno treaty or agreement shall be concluded in detriment to the territorial integrity of the Kingdom of Nepal.â What if it settles a border dispute?
Indiaâs Constitution contains a sweeping provision. Article 253 gives a carte blanche to the Centre: âNotwithstanding anything in the foregoing provisions of this chapter (on centre-state relations in the legislative sphere), parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country/countries or any decision made at any international conference, association or other body.â
The italicised words were added on October 14, 1949, without debate in the constituent assembly just as the text was on June 13, 1949. No one perceived its wide sweep. If the government of India concludes an international convention on, say, health, parliament will have the power to make any law to implement it despite the fact that the subject falls in the State list. More, it applies not only to a treaty but covers any âdecisionâ made at any international âconferenceâ, association or âother bodyâ.
Sir Ivor Jennings threw up his arms in alarm as he read this and said: âIt does not specifically refer to conferences, associations and other bodies representing governments, and, on its face, it would seem to apply to any international organisation representing, let us say, universities or trade unions. Nor would it seem to matter that the organisation had merely advisory powers. The word âdecisionâ cannot mean a binding decision, for the assumption is that legislation is needed to implement it. If this is the correct interpretation, the union parliament can acquire of the Inter-University Board of India, which is an international body, because it contains representatives of universities in Burma and Ceylon (Sri Lanka).â Of course the courts will give it a restrictive meaning.
The Constitution of Pakistan achieves the same result. Entry 3 in the Federal Legislative List relates to âexternal affairsâ and to âthe implementation of treaties and agreements, including educational and cultural pacts and agreements with other countries.â Thus a law to implement a treaty will override Provincial laws.
The controversy on ratification is an unreal and unnecessary one. Indiaâs Parliament always debated and approved all agreements of a political nature since the days of Jawaharlal Nehru. If India settles the Kashmir problem with Pakistan or the boundary problem with China, can anyone believe that the agreement will not be placed before Parliament for its approval?
A G Noorani is a prominent lawyer and a commentator on regional affairs
Can any one imagine that a democratic government can conclude an international agreement of a sensitive nature and escape accountability to Parliament and public opinion?
Opposing the Prime Minister of India Dr Manmohan Singhâs motion of confidence in his Council of Ministers in the Lok Sabha, on July 21, the Leader of the Opposition Mr Lal Kishan Advani suggested that the constitution should be amended to obligate ratification by Parliament of international agreements of a certain kind; for example those that bear on national security. Ever since the debate on the draft agreement between India and the United States on nuclear cooperation began, not a few demanded that it must be ratified by Parliament. Some proposed constitutional amendment to ensure that. Mr Advani only gave this suggestion a precise form.
This reflects an old South Asian tendency to seek institutional or legislative action to meet a political problem â set up a Committee, or a Commission of Inquiry; or change the law, or the Constitution itself. Can any one imagine that a democratic government can conclude an international agreement of a sensitive nature and escape accountability to Parliament and public opinion?
In the instant case the Prime minister sought a vote of confidence because the President asked him to do so. Since his supporters, the Left parties, had withdrawn their support, he had to prove his majority. But there was nothing to prevent the Opposition from moving a motion of non-confidence or rejection of the draft or an adjournment motion with the stigma of censure. In any of the three cases the Government would have been bound to resign.
The Shimla agreement of July 3, 1972 did not provide for ratification. But each Government faced its Parliament and obtained a vote of support. During the debates the leaders gave their views on the finer points of the Shimla Pact in response to criticism. Mrs Indira Gandhi told the Lok Sabha on August 2, 1972, âI am not bothered whether they go to the United Nations...We can meet them there. I have no fear of their getting away with anything at the United Nations.â
Mr Zulfikar Ali Bhutto showed equal realism when, about the same time, he told the National Assembly, âIn the beginning we were excited at the concept of the United Nations...You know very well what we got from the United Nations...in 1964 the UN was not even prepared to give a resolution to Pakistan...And what did the president of Security Council say?â He said, âWe can say India and Pakistan must have bilateral negotiations.â
Parliamentary democracies follow the British model. Parliamentary ratification is an option, not a binding duty in law. However, politically it is inescapable. International agreements do not always provide for ratification. They can come into force either on signature or on ratification by the Government. Treaties almost invariably provide for their ratification, but do not stipulate that it must be done by the legislature. That is a matter of choice for each signatory State.
Also, a treaty has no legal effect domestically. Legislation is necessary to implement it; for example on environment. In the United States, treaties must be ratified by the Senate. When so ratified, they acquire the force of law superseding previous laws. Presidents try to evade this by concluding âexecutive agreementsâ. But the Senate, indeed the entire Congress with the House of Representatives, is not powerless. The Senate can obstruct legislation which the President seeks. The House of Representatives can hold up the budget.
It is politics which determines the course to be adopted. In view of its fractured divided polity and its distrust of foreign powers the democratic Constitution of Nepal of 1990 â which King Gyanendra foolishly violated and lost his throne â had a special provision which is not to be found in the Constitution of any other country. It deserves to be quoted in full to illustrate the deep distrust which inspired Article 126. It said that ratification and approval of âtreatiesâ or agreements shall be concluded as determined by law. It added that the law shall require ratification by a two-thirds vote at a joint sitting of both Houses of Parliament if the treaty concerns â(a) peace and friendship; (b) defence and strategic alliance; © boundaries of the Kingdom of Nepal; and (d) natural resources, and the distribution of their usesâ Otherwise the treaty will not bind Nepal. Also âno treaty or agreement shall be concluded in detriment to the territorial integrity of the Kingdom of Nepal.â What if it settles a border dispute?
Indiaâs Constitution contains a sweeping provision. Article 253 gives a carte blanche to the Centre: âNotwithstanding anything in the foregoing provisions of this chapter (on centre-state relations in the legislative sphere), parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country/countries or any decision made at any international conference, association or other body.â
The italicised words were added on October 14, 1949, without debate in the constituent assembly just as the text was on June 13, 1949. No one perceived its wide sweep. If the government of India concludes an international convention on, say, health, parliament will have the power to make any law to implement it despite the fact that the subject falls in the State list. More, it applies not only to a treaty but covers any âdecisionâ made at any international âconferenceâ, association or âother bodyâ.
Sir Ivor Jennings threw up his arms in alarm as he read this and said: âIt does not specifically refer to conferences, associations and other bodies representing governments, and, on its face, it would seem to apply to any international organisation representing, let us say, universities or trade unions. Nor would it seem to matter that the organisation had merely advisory powers. The word âdecisionâ cannot mean a binding decision, for the assumption is that legislation is needed to implement it. If this is the correct interpretation, the union parliament can acquire of the Inter-University Board of India, which is an international body, because it contains representatives of universities in Burma and Ceylon (Sri Lanka).â Of course the courts will give it a restrictive meaning.
The Constitution of Pakistan achieves the same result. Entry 3 in the Federal Legislative List relates to âexternal affairsâ and to âthe implementation of treaties and agreements, including educational and cultural pacts and agreements with other countries.â Thus a law to implement a treaty will override Provincial laws.
The controversy on ratification is an unreal and unnecessary one. Indiaâs Parliament always debated and approved all agreements of a political nature since the days of Jawaharlal Nehru. If India settles the Kashmir problem with Pakistan or the boundary problem with China, can anyone believe that the agreement will not be placed before Parliament for its approval?
A G Noorani is a prominent lawyer and a commentator on regional affairs