By Jivesh Jha–
Continuing a series of examination on different legal and constitutional provisions, let’s look into the arrangements of ‘International treaties, and conventions’ in Constitutions of member states of South Asian Association for Regional Cooperation (SAARC) this time.
Having gone through the provisions relating to International Laws in Constitutions of South Asian countries, it became clear that these sovereign nations are pledged to acknowledge the conventions and treaties in their domestic legislations. These democratic countries are at even to envisage that their respective constitution is supreme law and it’s enacted for garnering the principles of democracy and socialism.
The newest Constitution of world which was enforced on Nepali soil on September 20 last year provisions that the state would be obliged to implement the international treaties and agreements to which Nepal is a State party,’ Article 51(b)(3). Under the verse of Directive Principles of State Policy (DPSP), Article 51 (m) beginning with the marginal note of ‘Policy regarding international relations’ provides, “Pursuing an independent foreign policy considering national interest to be of utmost importance, on the basis of the UN Charter, non-alignment, principle of Panchasheel, international law and universal norms, and by remaining active to defend the sovereignty, indivisibility, national independence and national interest.”
The provision in one way or the other clarifies that the state would give oxygen to the International Laws only when such laws don’t have potential to jeopardize the sovereignty and integrity of Nepal. And, Article 52 imposes an obligation on the state to maintain Nepal’s independence, sovereignty, territorial integrity, autonomy of Nepal, protecting and promoting fundamental rights and human rights, and to observe the directive principles of the State and gradually implementing the policies.
Further, the state shall make every effort for “Entering into treaties and agreements on the basis of equality and mutual interest, by reviewing past treaties,” says Article 51 (m)(2).
However, as the provisions being the part of DPSP, the same are unenforceable in any Court of law, Article 55.
Similarly, Article 50(4) provides “The international relations of the State shall be directed towards maintaining international relations based on sovereign equality, protecting sovereignty, independence, territorial integrity and national interest of the country, and promoting national prestige in the international community.”
While describing the role of National Human Rights Commission (NHRC), the statute provides that the NHRC shall “recommend with reasons to the Government of Nepal that it become a party to any international treaties and agreements on human rights, if it is desirable to do so, and to monitor the implementation of the international treaties and agreements on human rights to which Nepal is a party to and if found not to be implemented, forward recommendations to the Government of Nepal for effective implementation of such agreements,” Article 249(2)(g).
However, “The history is full of examples where the Nepali state has failed to act against human rights’ violation. For instance, Nepal government took all of those stringent moves to suppress the Madhesh unrest last year. Nepal police was empowered by the state to open fire for a no good reason. And, the result was very unappealing: Nepal Police gunned down more than 60 lives. Even the reports of NHRC revealed that there was fault at the part of state. Nepali state is good at legislating the Acts but bad at implementing it. It seems that the state is pledged to ignore the concerns of NHRC and other Human Rights organizations,” said Dipendra Chaubey, a practicing advocate at Delhi High Court.
Similarly, the National Women commission has been empowered “To review whether or not statutes related to women’s welfare are executed, and whether the international covenant signed by Nepal, as a signatory, has been executed, and to forward a recommendation to the Government of Nepal in case they are found not to have been executed,” Article 253(1)(b). Further, the women Commission has been given responsibility to “monitor the government regarding report to be submitted by the Government of Nepal in matters related to international covenant and treaties to which Nepal is a party,” Article 253 (1)(e). Likewise, the National Dalit Commission has been empowered with similar function as envisaged under Article 256.
On the other hand, entry number 16 of the Central List embodied under Schedule-V talks about ‘Foreign and diplomatic affairs, international relations and related to United Nations’. Further entry 17 of the same List speaks for “International treaties and agreements, extradition, mutual legal assistance and international border, international border river.”
Article 57 (1) explains that “The power of the federation shall be relating to the subjects mentioned in Schedule-V, and such authority shall be exercised in accordance with this Constitution and the Federal law.”
Similarly, Article 109 beginning with the marginal note of ‘Legislative power of Federal Parliament’ provides that “The legislative powers of the Federal Parliament shall be as enumerated in Schedule-V, Schedule-VII and Schedule-IX.”
Schedule V talks about Federal List (also called central List), Schedule-VII deals with ‘Concurrent (federal and provincial) Powers/Jurisdiction’ and schedule-IX relates to “List of concurrent Powers/Jurisdiction for Federation, Province and Local Level.”
It appears that the parliament has been empowered to enact laws on any matters related to international conventions, while provincial legislature is barred to carry the same task.
In contrast, the Constitution of India, the eldest charter in South Asia, provides a spacious shelter to International Laws by enacting as many as half dozen of provisions relating to treaties. The constitutional provisions contained under Article 51, Article 73, Article 245, Article 246, Article 253, Article 260, and entry number 10 to 21 of Seventh Schedule are of intrinsic value as they irrigate the international laws.
The Constitutional Act of India envisages that the state shall strive for the promotion of international peace and security, while maintaining just and honorable relations between nations. The charter imposes an obligation on the state through DPSP to foster respect for the International Law and treaties,’ Article 51 (c). Underscoring the need of mediation and conciliation, the charter further provides that the state shall encourage settlement of international disputes by the process of arbitration,’ Article 51 (d).
Moreover, Article 73 (b) provides that the executive power of the Union extends to the exercise of such rights, authority and jurisdiction as are exercisable by the government of India by virtue of any treaty or agreement. As Article 53 (1) envisions that “executive power of the Union shall be vested in the President”, he is empowered to enter into any treaty or convention.
However, as India has adopted parliamentary system of democracy, the President acts ‘on the aid and advice of the Council of Ministers’ headed by the Prime Minister,’ Article 74.
It appears that the treaty and convention making power in India is an executive act rather than legislative. However, the treaties must be approved by the legislature in order to attain force of law. “It’s a well-settled principle that a Bill becomes law when ratified by the parliament. Mere entering into the treaties would have little significance unless the parliament ratifies it,” said Aalok Kumar Yadav, faculty of International Law at HNB Garhwal Central University.
Moreover, Article 245 provides that the parliament may make laws for the whole or any part of territory of India. Supporting this provision, Article 253 beginning with a marginal note of ‘Legislation for giving effect to international agreements’ enacts that the Indian parliament has power to make any law for the whole or any part of India for implementing any treaty, agreements or conventions made at international platforms.
Under Article 246 of the Constitution (read with entry number 14—entering into treaties and agreements with foreign states and implementing them–of List I of the Schedule-VII), Parliament has been empowered to legislate any law in a bid to give life to any treaty. “Being a civilized nation, it’s a moral obligation on the state to legislate laws in the line with international conventions,” added professor Yadav.
Explaining that international agreements should be consistent with domestic laws, Article 260 of the statute envisages that the Government of India may by agreement with the Government of any territory not being part of the territory of India undertake any executive, legislative or judicial functions vested in the government of such territory, but every such agreement shall be subject to, and governed by, any law relating to the exercise of foreign jurisdiction for the time being in force.
Similarly, the constitution of Bangladesh embodies two main provisions regarding the International Law; namely Article 25 and 145A. Article 25 beginning with marginal note of ‘Promotion of international peace, security and solidarity’ refers to the promotion of international peace, security and solidarity in concurrence with the established principle of international law. The concluding clause further provides that the state shall endeavor to consolidate, preserve and strengthen fraternal relations among Muslim countries based on Islamic solidarity, Article 25 (2).
Moreover, Article 145A governs the adoption and codification of international treaties in domestic law.
Article 145A beginning with a marginal note of ‘International Treaties’ reads as “All treaties with foreign countries shall be submitted to the president, who shall cause them to be laid before parliament, provided that any such treaty connected with national security shall be laid in a secret session of parliament.” Noted, the Republic of Bangladesh has a parliamentary form of government where the President is merely a nominal head who acts on the aid and advice of the Council of Ministers with the Prime Minister at the head.
As the provision does not expressly mention that a convention cannot be embraced as the law of the land unless ratified by the parliament, the Constitution [Article 145A] imposes a kind of obligation to present treaty before the parliament only for discussion not for ratification. In contrast, Article 145A further provides that if any treaty relates to the national security then it will be discussed by the secret session of parliament. The provision has potential to curtail the people’s right to know on any issues that has been discussed by the parliament during the closed sitting.
“Article 145A clarifies that a Bill related to treaties would become law when passed by the both Houses of parliament and certified by the president. There is nothing wrong in the Constitutional arrangement,” further said professor Yadav, adding, “It’s just to impose a reasonable restriction on the matters connected to national security. It would be futile to reveal every classified document in the name of right to know.” He then went on argue that “It’s so obvious that the people would come to learn if any Acts are respiring on their national soil.
On the contrary, the Constitution of Bhutan enacts that all International Conventions, Covenants, Treaties, Protocols and Agreements duly acceded to by the Government shall be deemed to be the law of the Kingdom only upon ratification by Parliament unless it is inconsistent with the Constitution, Article 10(25).
Like Bhutan, the charter of Maldives provides that the treaties entered into by the Executive in the name of the State with foreign states and international organizations shall be approved by the People’s Majlis [House of People], and shall come into force only in accordance with the decision of the People’s Majlis, Article 93 (a). Article 106 (a) legislates that the executive power shall be vested in the President.
Although the lawmaking power in pursuance of treaties remain legislative, the treaty making power still remains an executive power rather than legislative as suggest Article 93(a) of Maldivian Constitution.
The succeeding clause further provides, “Despite the provisions of article (a), citizens shall only be required to act in compliance with treaties ratified by the State as provided for in a law enacted by the People’s Majlis,” Article 93 (b).
The provisions provide that no treaties would find life on domestic soil of Maldives unless ratified by the parliament. Exploring injunction of Islam, Article 70 (c) of the statute states that the People’s Majlis shall not pass any law that contravenes any tenet of Islam. In one way or the other, the Constitution emphasizes that no convention would be acknowledged in domestic legal system if it’s contrary to any tenets of Islam.
Much like Maldives, Article 157 of the Constitution of Sri Lanka beginning with the marginal note of ‘International Treaties and Agreements’ provides that no international treaties would gain force of law unless its approved by two-thirds of the whole Members of Parliament. The Article further commands that the international conventions would be enforced for the further development of national economy and security.
In contrast, the Constitution of Afghanistan provides that “The state shall observe the United Nations Charter, inter-state agreements, as well as international treaties to which Afghanistan has joined, and the Universal Declaration of Human Rights (UDHR). The state shall prevent all kinds of terrorist activities, cultivation and smuggling of narcotics, and production and use of intoxicants,” Article 7.
Article 28 provides, “No citizen of Afghanistan accused of a crime shall be extradited to a foreign state without reciprocal arrangements as well as international treaties to which Afghanistan has joined.”
“The state shall guarantee the rights and liberties of foreign citizens in Afghanistan in accordance with the law. These people shall be obliged to respect the laws of the state of Afghanistan within the limits of the provisions of international law,” Article 57.
The President shall have the power to issue credential letter for the conclusion of international treaties,’ Article 64(17). Similarly, the Constitution imposes an obligation on National Assembly to ratify the international treaties, Article 90. “In deciding about the proposed laws, the National Assembly shall give priority to treaties,” says Article 97.
Asserting that the Supreme Court would be the final authority to interpret the International Laws, Article 121 provides “At the request of the Government, or courts, the Supreme Court shall review the laws, legislative decrees, international treaties as well as international covenants for their compliance with the Constitution and their interpretation in accordance with the law.”
On the contrary, the Constitution of Pakistan under Article 40 provides that the state shall endeavor to preserve and strengthen fraternal relations among Muslim countries based on Islamic unity and the said provision begins with a marginal note of ‘Strengthening bonds with Muslim world and promoting international peace.’ The statute ruled out the possibility of enactment of any laws repugnant to injunctions of Islam, and Holy Quran,’ Article 227.
The Federal List of the Constitution of Pakistan empowers the parliament to legislate laws on international treaties. However, the charter lacks any express provision for acknowledging international treaties and conventions.
Although the member states of SAARC stand on the same page in envisaging the status of international treaties, there appears some differences. For instance, the power of ratification of international treaties rests with the National Assembly in Afghanistan [Article 90], whereas the Bangladeshi statute provisions for laying down the treaties before parliament which is only for discussion but not for ratification [Article 145A].
Apart from the Constitutional provisions, there is a Treaty Act, 1990 in Nepal for the ratification and adaption of international instruments. Noted, Nepal stands alone in South Asia to legislate a separate legislation for dealing with treaties.
In an exception in SAARC region, the Pakistani Constitution offers no room for any express provision relating to international conventions and treaties.
In an endeavor to irrigate the International Laws, the Indian Constitution has made a deliberate and conscious departure from the other charters of the South Asia by enacting more provisions than other SAARC countries’ Constitutions.
“This is the sparkling feature of the Indian constitution which has succeeded enough to water the international humanitarian laws. The seriousness of the state becomes apparent when it comes to learn that the scores of environmental legislations have been drafted to acknowledge the Stockholm Declaration-1972 to which India is a state party,” opined Dr Nidhi Saxena, a distinguished faculty of International Law at Central University of Sikkim.
She further said that the judiciary stepped into the shoes of ordinary mass on number of occasions to declare that every right to live a dignified life would fall within the ambit of Article 21, a fundamental right of natural import. The said arrangement is of intrinsic value as it shows a deep commitment of state towards ecological values, environmentalism, natural justice and international humanitarian laws.”
While sharing unanimity of opinion, the treaty making power remains executive rather than legislative in South Asia. However, the law-making power on the foundation of international treaties still remains legislative.
When asked whether South Asian states are relatively weak at enforcing the international treaties, Dr Saxena said, “We have strong provisions but weak implementations. However, with the robust foundation of Public Interest Litigation (PIL), the Apex Court of India on number of occasions has watered the international humanitarian laws and treaties.”
“We need to consolidate our efforts and focus our energies on existing laws rather than making further newer laws, unfamiliar to our society, culture and harsh realities of the ordinary life,” added she.
There is no legal status of international conventions in the domestic legal systems of SAARC states unless its been ratified by the parliament. However, the charters are at even to command that any conventions reached at international fronts shall straightaway be declared void if they are inconsistent with the fundamental document of their country.
Like other states, the parliaments in South Asia have been clothed with a blanket power to ratify a treaty or convention in a bid to implement it as a law at the domestic stage.
The South Asian states must not waste time exploring alternatives when the answers exist in laws made by parliament for dealing with the existing or non-existing problems.
Published on 26-09-2016
(The author can be reached at [email protected])