Accords sans accountability

The provision for parliamentary ratification of international treaties signed on by the country needs to be incorporated in the Constitution. The NCWRC ought to look into this matter.

A MAJOR blunder committed under American pressure by the Indian government since Independence is the secret entry into the GATT (General Agreement on Tariffs and Trade) Treaties sans parliamentary debate or other ratificatory processes, exploiting the constitutional vacuum in the matter of treaty ratification. This omission in our Founding Deed cannot become a licence to the executive to sign away our swaraj and so we must wake up. It may well be an oversight the Founding Fathers winked at, assuming the pervasive paramountcy of parliamentary control and constant invigilation by the High Bench through its Review Power. Now that the National Commission to Review the Working of the Constitution (NCRWC) is scanning the working of the Constitution, an opportunity to alert the nation to a grave gap has offered itself.

In a normal situation, there are three stages in a treaty-making process - negotiation, signature and ratification. No doubt the initial step of negotiation is done by the executive. This diplomatic operation is too delicate, flexible and unstable for parliamentary intervention. Nevertheless, in dealings of great moment or polemical potential, to make available an opportunity for public discussion before the Cabinet makes even a tentative commitment is democratic decency, even necessity. The signature stage must be preceded by broad, popular, political consensus. More than mere ministerial signature should be necessary to make it a binding treaty. But signature does go a long way in obligating the signing member-state from doing anything that frustrates the substance of the treaty before formal ratification. Article 18 of the Vienna Convention on the Law of Treaties, 1969, lays down this proposition. A signature in excess of the powers of the plenipotentiary may be challenged as being ultra vires. However, the ratification of the treaty sets the seal of finality on the deed and so is a grave step where democratic authority must be sought from the nation's highest instrumentality. Executive ipse dixit cannot bypass the people's will or voice as it would defeat the principles of transparency and accountability of a democracy and endanger the sovereignty of Parliament by a cabal's unilateral act. Ratification, therefore, has received procedural sanctity and legal solemnity in the constitutions of many countries, including the United States, Nepal and South Africa. The Indian Constitution vests in Parliament the power to enact treaty-making legislation but, in the absence of such a law, the executive exercises this power, which may inflict incalculable injury on the citizenry or barter precious national values at the whim of a transient Cabinet.

The institution of ratification is an imperative process giving time for full consultation and final consideration before the nation takes the jural leap into a concluded treaty in the eye of international law. Oppenheim's International Law states:

The need for an institution such as ratification is principally that, for various reasons, states need time after agreement to commit themselves to it. One such reason may be the need to re-examine not the individual provisions but the whole effect of the treaty upon their interests. Another important and frequent reason is that a state, in order that it may be in a position as a matter of its internal law to give effect to the obligations it will assume under the treaty, needs time to enact the necessary legislation; or it may be that, particularly on important political matters even if not involving internal legislation, some kind of consent on the part of parliaments must be obtained.

There are internal and external grounds for the condition of ratification. The time gap between signature and ratification serves as an opportunity for reflection. There may be a change in the political atmosphere and the need to involve people in concrete discussions about the content of the treaty because more informed participation of the public is a democratic commitment, maybe a desirable desideratum.

The rules relating to ratification vary from country to country. In the United Kingdom, although the power of ratification is the prerogative of the Crown, it has become accepted that treaties involving any change in municipal law, or adding to the financial burden of the government or having an impact on the private rights of British subjects will be first submitted to Parliament and subsequently ratified. There is, in fact, a procedure known as Ponsonby Rule, which provides that all treaties subject to ratification are laid before Parliament at least 21 days before the actual ratification takes place. Different considerations apply in the case of the U.S. However, the question of how a state effects ratification is a matter for internal law alone and is outside the scope of international law.

Illustratively, here are three random instances of treaty ratification provisions:

The Constitution of the U.S. (1787), even in its brevity, has had the salutary sagacity to circumscribe the President's treaty-making power. By Article II Section 2, he shall have the power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senate members present concur. With Senate validation absent, presidentially signed treaties have been casualties. Even many United Nations instruments slumber without U.S Senate approbation.

Even a small state like Nepal has a ratificatory imperative for foreign treaties. Its Constitution (1990) provides in Article 126: "(1) The ratification of, accession to, acceptance of or approval of treaties or agreements to which the Kingdom of Nepal or His Majesty's Government is to become a party shall be as determined by law; (2) The laws to be made pursuant to Clause (1) shall, inter alia, require that the ratification of, accession to, acceptance of or approval of treaties or agreements on the following subjects be done by a majority of two-thirds of the members present at a joint sitting of both houses of Parliament."

South Africa made its recent Constitution (1996) after a survey of the world's best fundamental laws with eclectic excellence. The wisdom of Section 231 relating to international agreements flows as follows: "(1) The negotiating and signing of all international agreements is the responsibility of the national executive; (2) An international agreement binds the Republic only after it has been approved by resolution in both the National Assembly and the National Council of Provinces, unless it is an agreement referred to in Sub-section (3)."

THE case for ratification is too strong to be delayed and dilatory default is too dangerous to be risked what with GATTastrophe strangling our economy and the World Trade Organisation's commanding height holding us to recolonisation status.

The disastrous consequences of authoritarian or casual entry by Cabinets (cabals) into treaties, without consultation and even contrary to popular opposition, a la GATT treaties, strengthen the case for ratification as an affirmatory process. The broad conclusion, after a scrutiny of several constitutions, is that treaty jurisprudence has received great importance in many countries while only perfunctory attention has been bestowed on this subject in our lengthy Constitution.

The relevant questions are: "What is the impact of treaty-making power conferred by Article 253 of the Constitution of India and Entry 14 of List 1 of the Seventh Schedule on the federal structure and jural architecture of the nation? To whom does this power ultimately belong - to the executive or to Parliament or to a people's referendum? If it is the power of the executive, is it subject to parliamentary control or supervision?"

The consultation paper published by the NCRWC observes wisely:

The first thing that should be done by Parliament is to make a law on the subject of 'entering into treaties and agreements with foreign countries' as contemplated by Entry 14 of List 1 of the Seventh Schedule to the Constitution. The law should regulate the 'treaty-making power' (which expression shall, for the purpose of this discussion, include the power to enter into agreements and implement treaties, agreements and conventions). There is an urgent and real need to democratise the process of treaty-making. Under our constitutional system, it is not the prerogative (if we can use that expression) of the Executive. It is a matter within the competence of Parliament and it should exercise that power in the interest of the state and its citizens. In a democracy like ours, there is no room for non-accountability... Besides accountability, the exercise of power must be open and transparent (except where secrecy is called for in the national interest - what President Woodrow Wilson of the U.S. called 'open covenants openly arrived at'.

By way of aside, an excerpt from the Gujral Committee Report (Rajya Sabha-Department Related Parliamentary Standing Committee on Commerce (1993-94) may throw light on India's unpatriotic U-turn at the Uruguay Round:

Summary and recommendationsPara 195:

(b) At the initiative of the U.S., all elements of IPRs (intellectual property rights), including norms and standards, were brought into the Uruguay Round Negotiations. India had opposed this more to begin with, but when several countries, who were supporting India, agreed to the negotiations involving norms and standards of IPRs, India also agreed to join the negotiations. This was the view expressed by the Ministry of Commerce. On the other hand, several witnesses indicated that it was India's agreeing to negotiating TRIPS in GATT which had weakened the position of the developing countries...

(d) (iii) Exclusion of licence of right and compulsory licensing, introducing the provisions that would allow treating importation as working of a patent.

The Review Commission's reference to multilateral treaties like the one at Marrakesh (GATT) is pregnant with significance. The view that Parliament must be involved even at the stage of negotiation has a popular appeal. The Commission further holds:

A special procedure to be provided where a treaty, agreement, etc. calls for secrecy, or has to be concluded urgently, subject to subsequent parliamentary approval consistent with the requirements of secrecy. The law to also provide for consultation with affected group of persons, organisations and stakeholders, in general for greater democratisation of the process.

While globalisation in many dimensions has made national insulation an impossible expectation, surrender to big business or a superpower is a syndrome irretrievably deleterious to the people's interest. Sometimes, denunciation of unrighteous treaties may have to be provided for. The questionnaire of the Commission underscores the need for a legal provision:

We in India cannot afford to ignore this subject any longer, particularly because of the experience of WTO treaties signed by our government without consulting or without taking into confidence either the Parliament or the public or, for that matter, groups and institutions likely to be affected adversely thereby.

THE power to enter into treaties, if vested in the executive, may be used to subvert the basic structure of the Constitution itself, defy its federal character and nullify the human rights of the people. It is a measure of caution that the Supreme Court's advisory jurisdiction should be invoked whenever treaties of grave importance are contemplated. It is heartening that the Review Commission prima facie feels that there is an urgent and real need to democratise the process of treaty-making. The details of procedure may be debated but the inevitable obligation to secure parliamentary approval cannot be circumvented. In the agenda of constitutional change, a high place belongs to the implementation of amendments that have a bearing on treaty-making and denunciation of treaties. Our struggle against GATT and the WTO has provided us with a drive of despair, even Constitutional consternation, to demand militantly an urgent amendment in the fundamental law. Beware of the next treaty lest swaraj should be scuttled. We, a billion Indians, are in perennial emergency in our communal fury and economic penury and cannot afford to trust those who are drest in pro tem authority when our country is gaining notoriety, nationally as a crowd of dubious politicians and internationally as being among the most corrupt 10 in the world.

Another parting thought and haunting fear. Can we categorically assume the Review Commission to be the nidus of radical realism or will it shift to a mood of noetic negativity and jettison the avant garde idea of treaty ratification, which is a necessary democratic restraint on executive action or excess which binds the nation. A countrywide campaign on ratification of treaties needs to be launched so as to forbid the ukase of the Council of Ministers to masquerade as the law of the land.

V.R. Krishna Iyer is a former Judge of the Supreme Court.