UK Experience
Resignations of Law Makers
Vanam Jwala Narasimha Rao
Published in “The Hans India” (Hyderabad) July 20, 2011
With more than one hundred resignations of elected representatives of Andhra Pradesh, Speakers of the Lok Sabha and AP Legislative Assembly are in a dilemma whether to accept or reject them. The reason is simple. There has never been a hard and fast rule or a pattern or a well laid convention or practice in dealing with such mass resignations of elected members to the legislatures. Mere Constitutional Provisions unless otherwise supported by well laid conventions, practices and past experiences have no value. Convention is an expression used in contradistinction to rules or laws and a manner a thing is done within given time frame or circumstance. Convention as a constitutional concept refers to the acceptable way or manner of doing things by those people who are expected to do those things. In any case well laid procedure has to be followed.
Procedure is a “means of reaching decisions on when and how power shall be used” and the “means” used to circumscribe the use of power and a “process” that legitimizes the exercise of, and opposition to, power. Procedure is “a combination of two elements, the traditional and the democratic”. In other words, parliamentary procedure based on the Westminster model stems not only from an understanding and acceptance of how things have been done in the past, but is embedded in a particular culture that evolves along democratic principles.
Though the resignations in writing are in the prescribed Speaker’s format, all the members who resigned made it public that either the resignations are to be accepted or formation of Telangana has to be announced. If the Speaker accepts the resignations, it indirectly implies that the government is not in favor of conceding separate statehood for Telangana Region. In case the resignations are rejected it implicitly means that the government has to come out with a definite stand on Telangana. If they are kept in pending, then, it is anybody’s guess on this crucial issue.
The constitutional structure of India is based largely on the Westminster model of parliamentary system. Indian and UK systems of traditions, conventions and procedures in a way are similar since both the countries follow parliamentary form of democracy. While India has adopted most of the rules, regulations and conventions of the United Kingdom Parliament, it has failed to follow the spirit and the basic tenets of constitutional morality and propriety of an elected member resigning his post in the middle of his term. There is however always something new about the Westminster and hence, it is something that might be a good idea to adopt in India. For instance the Speaker of Parliament and state Legislative Assemblies should seek re-election as “Speaker “only and not as member of any political party as is done in UK.
It is a well-established practice in the English Parliament that a Member of Parliament once elected cannot resign. During the 17th century, getting into Parliament was regarded as an honor and duty to serve the people and as such could not desert the post under any circumstances. On March 2, 1623, the House adopted a resolution that Members of Parliament cannot resign their seats which still holds good. In the election law as it stands in India, there is no bar on a member contesting in two constituencies. There is also no bar on a member resigning his seat and then contesting the by-election to fill up the vacancy caused by resignation. It is high time the law is amended so as not to allow a person to contest from more than one constituency at a poll. Further, the parties should consider the British practice of no-resignation of a person once elected.
In India, Canada, Australia, and New Zealand, a Member elected to the legislatures, who wishes to resign, simply informs the Speaker (in a prescribed format) in writing of their intention. In India the Speaker may at once accept as in the case of YS Jaganmohan Reddy or may postpone decision until he or she is satisfied that the resignation is genuine. If the Speaker is not available (as in the case of AP MLA s recent resignations), there are other provisions available to the Member for submitting the letter. They can submit their letter of resignation either to the Deputy Speaker or even in the Speaker’s office.
The Principle of Parliamentary Law in UK says that a Member of the House of Commons cannot relinquish his seat. In order to evade this restriction, a Member who wishes to retire accepts office under the Crown, which legally vacates his seat. The funniest thing is that, the two such offices do not actually exist now. These probably would have existed once and have been preserved as “legal fictions” handed out by the Chancellor of the Exchequer to any Member who applies for them.
Against this background, the recent resignation of “Sinn Fein”- a left wing Irish Republican Political Party MP Gerry Adams to the Membership in the UK Parliament, brought on to surface some interesting developments. Sinn Fein is currently the second largest party in the Northern Ireland Assembly and shares power in the Executive. Historically Sinn Fein has been associated with the Provisional IRA-Irish Republican Army whose aim was to remove Northern Ireland from UK and bring about a Socialist Republic by force of Arms and political persuasion within United Ireland.
Gerry Adams was an "Abstentionist" Westminster Member of Parliament from 1983 to 1992 and from 1997 to 2011. Abstentionism is standing for election to a deliberative assembly while refusing to take up any seats won or otherwise participate in the assembly's business. Abstentionism has been used by Irish republican political movements in the United Kingdom and Ireland since the early 19th century. In 2005, the Provisional IRA indicated that its armed campaign was over and that it is now exclusively committed to democratic politics. Under Adams, Sinn Fein changed its traditional policy of Abstentionism towards the parliament of the Republic of Ireland in 1986 and later took seats in the Assembly of Northern Ireland. It retains a policy of Abstentionism towards the Westminster Parliament.
Adams in January 2011 announced that he was resigning his Parliament Membership so that he can run for a seat in the Irish parliament. The Chancellor, as per the convention and procedure, appointed Adams to the office under the Crown to allow him to resign and to stand for election. Adams has publicly rejected the offer. Sinn Fein MPs have never actually taken their seat in the House of Commons because they refuse to swear an oath of loyalty to the Queen.
Does this mean that Adams will not be able to run for election to the Irish Parliament? The answer is No. In the UK, under the “Disqualifications Act of 2000” of the Parliament of the United Kingdom, a privilege is extended to Ireland whereby persons elected to its houses of Parliament are eligible, to sit in the UK Parliament also. Consequently, Adams can run and even win a seat in the Dail - Lower House of the Irish Parliament while remaining an MP in the House of Commons, until the next general election, expected in 2015. The dual mandate option is unlikely to appeal to the Sinn Fein president, who has stressed that he is committed to serving only in the Dail. Adams may probably be automatically disqualified from the House on the grounds that he has not sworn the oath, and a writ would then be moved for a by-election in West Belfast.
Every rule of law must and can be traced to a statute or a judicial decision, but conventions, unlike rules of law, cannot be traced to any particular regulation. There are clear consequences for a violation of a rule of law, but a breach of a convention attracts no consequence. In most cases, a breach of a legal rule attracts direct consequences. A rule of law can be amended but a convention cannot be amended. Although there are conventions in the society, what determines whether a thing is properly done or not is not the convention but the prevailing rule of law as regards that subject matter.
The authority of the Speaker is no greater than the House wants it to be. When the rules are clear and offer precise guidance to the Speaker, the authority is absolute and unquestioned. On the other hand, when there are no rules to fall back on, the Speaker must proceed very cautiously indeed. The best and last resort is that the Speaker can decide to lay the matter before the House which can then itself create a new precedent.
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