Legal opinion should be sought from Law Ministry to conduct the Election of Speaker to the Puducherry Legislative Assembly and giving sufficient time limit for legislators to decide.
Unprecedented happenings in the Puducherry Legislative Assembly had necessitated for seeking legal opinion from Union Law Ministry on holding Election to the Speaker of the Legislative Assembly...
Election results were out on 13 th May 2011. All India N.R.Congress won 14 seats and All India Anna DMK bagged 5 seats. This pre-election alliance if had staked to form Government the strength would have been 19 in the 30 member assembly reflecting majority in the floor of the assembly. But All India N.R.Congress broke its pre-election alliance and indulged in horse trading securing the support of lone independent and the leader of All India N.R.Congress was invited to form the Government thinking All India N.R.Congress had 15 seats plus 1 independent gives them majority in the 30 member legislative assembly. But as constitutional authority you should have given shortest time to prove the majority in the floor of the assembly. Even the number 16 got reduced to 15 with Chief Minister without a cabinet, at that point of time , resigning one out of two seats he had won. Thus the effective strength of the group you invited to form Government is just 15 with independent .This created a constitutional crisis. The Government does not have a MAJORITY. Under such circumstances it had to elect a Speaker. Chief Ministry in suspense had announced on 29 th June Speaker’s election will be held. Let me quote the procedure in Parliament/ States/ and Union Territories with regard to election of a Speaker.
ELECTION OF SPEAKER AND DEPUTY SPEAKER AND NOMINATION OF PANEL OF PRESIDING MEMBERS.
8. Election of Speaker – (1) The election of Speaker shall be held on such date as the Governor may fix, and the Secretary shall send to every member a notice thereof: [Art. 178.]
Provided that the date so fixed shall, in the case of a vacancy occurring during the term of the Assembly be within fifteen days from:
a. The date of the occurrence of the vacancy, if the Assembly is at that time sitting and
b. The date on which the Assembly first meets thereafter, if it is not so sitting.
ELECTION OF SPEAKER, DEPUTY SPEAKER AND NOMINATION OF PANEL OF PRESIDING MEMBERS Chapter III of Rules of Procedure and Conduct of Business of the Pondicherry Legislative Assembly
9. Election of Speaker: [1] The Election of Speaker shall be held on such date as the Administrator may fix and the Secretary shall send every member notice thereof:
Provided that the date so fixed shall in case of a vacancy occurring during the term of the Assembly be not beyond 15 days from…….
So identical provisions for States and Union Territories exist. But with regard to State , Governor had to decide, but in Union Territory Administer had to decide but after taking clearance from the President of India acting on the advice of the Home Ministry..
The constitutional crisis in this Union Territory had never been envisaged when these laws were drafted and passed. These Acts and Rules are silent on HOW MUCH TIME should be given to CONVENE THE ASSEMBLY AND ELECT A SPEAKER. It is also silent on HOW LONG A GOVERNMENT WITH NO MAJORITY DELAY THE CONDUCT OF THE ELECTION OF THE SPEAKER. If the Speaker’s election is held and ruling combine with 15 member strength elects its Speaker it will be reduced to 14 numbers. Combined opposition strength is 14. And all times Speaker cannot cast casting vote to save the Government of the day.
Having broken the pre-election alliance the Chief Minister designate with a Cabinet with no portfolio is wooing the Main Opposition through media and NO NEW ALLAINCE RE-STRUCTURING HAD TAKEN PLACE. Everything is in fluid state. Everything is ambiguous.
The Lt.Governor of Puducherry is turning blind eye to the horse trading that is taking place to ensure NR Congress nominee win Speaker’s post. As per rumour mills 2 AIADMK MLA’s will be POACHED BY NR CONGRESS and I had sent TELEGRAM TO TAMILNADU CHIEF MINISTER to ISSUE WHIP to her MLA’s and the black sheep in her party may even throw her a surprise. Similarly I had sent telegram to Dr.Kalaignar M.Karunanithi, DMK PRESIDENT that out of 2 MLA’s of DMK in Puducherry Legislative Assembly ONE may follow the precedent laid by S.S.Rajendran M.P by going to toilet to abstain at the time of voting for privy purses issue and will enable NR Congress nominee to snatch victory. Auction for MLA’s vote had started, and day by day bid amount is on increase.
If in hurried state Administrator i.e Lt.Governor you fixes the date for Speaker’s election following questions arise. We are not sure on how without proving strength in floor of the assembly one man can rule without Cabinet for some days and with cabinet without allocation of portfolios for some days and how long can a Chief Minister delay Speakers Election and re-negotiate alliance or resort to horse trading infringing the rights of the Elected Members of this Legislative Assembly.
Since these issues which are silent in Acts and which has no precedence in India had landed our Union Territory in a constitutional crisis and we hope Lt.Governor will seek the advice of the Union Law Ministry and Attorney General through the President of India before taking hasty and wrong steps in fixing date for election of Speaker.
THE CONSTITUTION (THIRTY-NINTH AMENDMENT) ACT, 1975
Statement of Objects and Reasons appended to the Constitution (Fortieth Amendment) Bill, 1975 which was enacted as the Constitution (Thirty-ninth Amendment) Act, 1975
STATEMENT OF OBJECTS AND REASONS
Article 71 of the Constitution provides that disputes arising out of the election of the President or Vice-President shall be decided by the Supreme Court. The same article provides that matters relating to their election shall be regulated by a parliamentary law. So far as the Prime Minister and the Speaker are concerned, matters relating to their election are regulated by the provisions of the Representation of the People Act, 1951. Under this Act the High Court has jurisdiction to try an election petition presented against either of them.
So the constitution provides scope for judicial intervention, but it would be unnecessary if Administrator acts on the advice of Union Law Ministry and every step taken in this situation must be measured one with wider consultation with Union Government.
“The life of the Assembly is 5 years from the date appointed for its first meeting beginning with the address of the Governor under Article 176 (1), unless sooner dissolved. The expiry of the said period of 5 years operates as dissolution of the Assembly”. Life of the assembly itself had to begin with Governor’s address, unfortunately precedents practiced since independence is taken for a ride here ever since recent election results were out. A Government in Coma keeps Assembly in Suspense depriving people’s representatives to function as legislators for which public have given their mandate.
In Canada when the House convenes on the first day of a new Parliament or on any day when the House is to elect a Speaker, the election of a Speaker must be the first order of business and has precedence over all other matters. Only after a Speaker has been elected is the House properly constituted to conduct its business
SUPREME COURT OF ZIMBABWE CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA & GARWE JA HARARE, SEPTEMBER 21, 2010 & MARCH 10, 2011
T Hussein, for the appellants Ms C Damiso, for the first respondent M Chaskalson SC, for the second respondent
CHIDYAUSIKU CJ: This is an appeal against the judgment of the High Court wherein PATEL J dismissed the appellants' application to have set aside the election of the second respondent as the Speaker of Parliament (hereinafter referred to as "the Speaker"). The appellants, as the applicants in the court a quo, sought the following relief set out in the draft order:
"WHEREUPON after perusing the documents filed of record and hearing counsel, it is hereby declared that: - 1. The election of (the) second respondent as the Speaker of the Parliament of Zimbabwe on 25 August 2008 is null and void and set aside.
These examples of other countries prove the importance of the Office of the Speaker and even the Highest Courts of other countries intervening to protect the sanctity of the Speaker’s post.
Under such global scenario, the Administrator should seek the advice, guidance and instructions of the Union Law Ministry on how to proceed to fix a date for Speaker’s post and such a Speaker will be a prisoner of circumstances with bailing his government with casting vote at all occasions, since without casting vote the government may not sail.
With Regards
Yours sincerely
N.Nandhivarman General Secretary Dravida Peravai
Date :27.06.2011
No comments:
Post a Comment