One of the most important parliamentary committees in the law making process is the Parliamentary Legal Committee (PLC).
IN THE HOUSE WITH JOHN MAKAMURE
The committee has a statutory mandate to examine the constitutionality of every bill or statutory instrument and report its opinion to Parliament or the authority empowered to make the legislation.
In addition to the functions outlined in section 152 of the Constitution, the Standing Orders or Rules of Parliament confer further functions on the PLC. The committee must ensure that no statutory instrument contains matters more appropriate for parliamentary enactment, make the rights and liberties of persons unduly dependent upon administrative decisions, which are not subject to review by a judicial tribunal; and changes an Act of Parliament.
The PLC may also recommend the correction of any error or omission in any Statutory Instrument or Bill. Other functions as enunciated by the standing orders are as follows:
●Ensuring that no statutory instrument derogates from the exercise of legislative power;
●Considering all petitions; and
●Reviewing existing law and interacting with the Law Development Commission for its development.
So the PLC has been substantially empowered by the Constitution and the rules of Parliament to play a significant role in the lawmaking process. It does not exist only to review draft legislation or statutory instruments tabled in Parliament by ministers. The committee can be pro-active in the review of existing laws and consult the Law Development Commission to make necessary improvements.
The PLC has so far done a fairly good job in terms of scrutinising bills and statutory instruments to determine if any of their provisions contravene the Constitution and the Bill of Rights. The committee has not been afraid to issue adverse reports if in its opinion there are certain provisions that violate the supreme law. A good example is the latest adverse report on Statutory Instrument 77 of 2015 (SI 77/2015).
Under this Statutory Instrument, the President sought to invoke the Presidential Powers (Temporary Measures) Act [Chapter 10:20] to make the State Liabilities Act [Chapter 8:14] applicable to legal proceedings against the Premier Service Medical Aid Society (PSMAS).
The State Liabilities Act provides that before anyone can sue the State, the State has to be notified in writing of the intention to bring the claim at least 60 days before the institution of the proceedings. In addition, if a judgment is issued in favour of a person suing the State, the State Liabilities Act provides that no execution or attachment of property of the State shall be issued against the State.
The PLC unanimously issued an adverse report on this statutory instrument basically because PSMAS is not a State-owned company.
The PLC argued that PSMAS is a medical aid society (registered under the Medical Services Act [Chapter 15:13] and not a State controlled entity as envisaged by the State Liabilities Act. The PLC argued that because PSMAS was a private company, whose employees are not part of the civil service, the President could not extend the application of the State Liabilities Act to PSMAS.
The PLC report details government’s relationship with PSMAS and concludes that what S.I. 77/2015 seeks to achieve is beyond the scope of and powers granted under the State Liabilities Act. In addition, the PLC also reasoned that the Consolidated Revenue Fund cannot be used for purposes outside the scope of the provisions of Part 2 of Chapter 17 of the Constitution to satisfy the debts of a private company.
It was refreshing to see Members of Parliament across the political divide supporting the PLC report. This is as it should be because the PLC is the technical think-tank of Parliament on constitutional issues. For other members to argue against the PLC report defies logic, and can only be described as cheap politicking.
All the members of the PLC are legally qualified and meet the constitutional requirement of being qualified to practice in Zimbabwe as legal practitioners.
So the House must surely respect a situation where the committee unanimously issues an adverse report on a Bill or Statutory Instrument. Rejection of a unanimously adopted PLC adverse report basically means Parliament is not protecting the Constitution as required under section 119.
Parliament should never pass any law that is inconsistent with the Constitution because it will be violating the supremacy of the Constitution principle. Section 2 categorically states that the Constitution is the supreme law of Zimbabwe and any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency.
The work of the PLC must, therefore, be taken seriously by the other members because the committee will be advising on the constitutionality of what has been brought before the House. The whipping system must be set aside when it comes to the reports of the PLC. This would be technical advice and nothing more.
John Makamure is the executive director of the Southern African Parliamentary Support Trust. Feedback: firstname.lastname@example.org