General News of 2012-09-03

Parliament cannot act unconstitutionally – Lawyer

Arguments that MPs can go ahead and sit on the CI73 in spite of a court application seeking to bar them from doing so because Parliament is a master of its own rules, are moot, Lawyer Godfred Dame has said.

He said the matter in issue was not the independence or internal rules of Parliament but the constitutionality of an action of the legislative body.

Mr. Dame last Friday filed processes at the Supreme Court seeking an interlocutory injunction to stop Parliament from sitting on the CI which will give legal backing to the creation of some 45 new constituencies.

But Majority Leader Cletus Avoka said the court processes could not impeach Parliament’s powers as an independent constitutional body. He insisted that merely filing an application at the courts could not bar the House from performing its constitutional duties.

Mr Dame, however, told Joy FM’s Super Morning Show Monday that the legal “principle that the party against whom an order of injunction is sought – if served with that motion – is restrained from engaging in the act that is being complained about, is well established.”

He maintained that the reason for which Parliament had been recalled from recess to begin sitting from September 3, 2012 was for the CI which was the subject of the court case, to mature and that it was only right and proper that nothing that is contemptuous of the court processes is done.

Rejecting Mr. Avoka’s submissions that Parliament was an independent constitutional body and a master of its own rules, Mr. Dame said “It is very pertinent to note that on this occasion we are not even challenging an internal rule of Parliament, we are actually challenging the constitutionality of a law which is before Parliament and of course that is within the purview of the Supreme Court.”

He said unlike in the United Kingdom where Parliament is Supreme, “in our specific circumstance it is the Constitution which is supreme; that is why the Supreme Court has been vested with the power to rule out the constitutionality of any act or omission of any person, including Parliament.

“…So one cannot hide under the cloak of parliamentary supremacy or parliamentary independence to act unconstitutionally.”

Mr. Avoka, however, remains unconvinced.

"I am yet to be convinced on the legal arguments that anybody who goes to court to say that they are not happy with a matter before Parliament, Parliament should be restrained from carrying out that exercise; with the greatest of respects to those lawyers who hold that opinion, I [disagree]," he stated.