On the front page of The Nation of March 31, 2016, there is a heading ‘MPs move to corner Presidents’. The article tells us that Parliamentary Legal Affairs Committee has proposed to add a Standing Order to parliamentary rules of procedure to compel the country’s Presidents to answer questions from legislators in the National Assembly.
The Malawi Law Society (MLS) has given its views purely from a legal and constitutional angle. What is missing is a commentary from a political scientist or philosopher’s view. As is well-known, law develops out of a people’s or nation’s philosophy. Law, both constitutional and substantive is expected to embody and crystallise the culture, morals and hopes of a people. I am going to dwell on philosophical side of the relationships of the three powers of the State.
These days most countries possess constitutions, which guide rulers. These constitutions try to balance between the need for effective government and liberty of the people. Constitutional lawyers are guided to a certain extent by the writing of Baron Moutesquieu’s (1689-1755), a French political philosopher and jurist. On a visit to England he observed that the English were enjoying more liberty than the French because in England, the Legislative, Executive and judicial powers were exercised by different persons. Where one person wields all the three powers Legislative, Executive and judicial, people’s liberty suffers.
Though some commentators tell us that Montesquieu’s observations were not 100 percent accurate about the English system of government. In principle, separation of powers is a minimum guarantee of the citizen’s freedom and liberty.
It is in the course of trying to safeguard their hard won freedom that Americans added to the separation of powers the principle of checks and balances. None of the three powers should usurp the powers of the other.
Framers of our Constitution in 1993 sought to borrow from both the United Kingdom and United States of America. The US constitution is said to be Presidential because a President is elected directly by the people. The UK constitution is parliamentary because the majority party in Parliament automatically forms a government and chooses the Prime Minister.
When the Legal Affairs Committee talks of writing standing orders to compel a president to appear in Parliament and answer questions, it suggests that Parliament has overriding powers over the President. Has it? Are those powers embodied in the Constitution? Are they in consonance with the principle of checks and balances?
The Legal Affairs Committee is putting the cart before the horse by dealing with substantive law before settling the basic or constitutional law. In the years 2007 and 2008, an indaba of Malawians from all walks of life gathered in Lilongwe and drafted a new Constitution. After deliberations, I do not know if in the final copy of the draft Constitution, the Legislature is given powers to compel a President to do its bidding. The first thing the Legal Affairs Committee should do is to advise MPs that they should ask the president to bring the draft Constitution to Parliament for deliberation amendments and finally approval. It is at that stage that Constitution could provide for Parliament’s supremacy over the presidency if that is the wish of the people outside Parliament.
Giving excessive powers to any of the three powers would be inimical to good governance. n