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"id": 384800,
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"content": "Hon. Senators, when the National Assembly held a different view than our own and determined that the Division of Revenue Bill was a matter solely for the National Assembly to determine, the only recourse for the Senate as a law abiding organ of the Republic was to obtain a dispassionate arbitration from the legitimate constitutional body ordained for that purpose, namely, the Supreme Court. The Questions raised by Sen. (Dr.) Khalwale are, therefore, of the first importance if the Senate is to remain on the right side of the Constitution. We must determine whether, when we believe the Constitution has been flouted and while we await the adjudication of the matter by the Supreme Court, we can legitimately proceed on the basis of the very instruments whose constitutionality we consent. Does proceeding in that matter prejudice our position? Is it sub judice ? Hon. Senators, pursuant to Standing Order No.90(2) a matter is sub judice when it refers to active criminal or civil proceedings and the discussion of such a matter is likely to prejudice its fair determination. However, the Standing Orders also provide at Standing Order No.90(5) that:- “Notwithstanding this Standing Order, the Speaker may allow reference to any matter before the Senate or a Committee.” In the instant matter, I think that our Legal Counsel on record at the Supreme Court has fairly framed the issues in respect to which the Supreme Court’s advice is being sought. The Supreme Court is also the highest court in our land. I think there would be no basis to form a view that at reading or not reading the County Allocation of Revenue Bill, 2013, a First Time or, indeed, proceeding with its transaction, would affect the fair determination by the Supreme Court as to the question as to whether or not the Division of Revenue Bill, 2013, is under the Constitution a matter for one or for both Houses to deal with. Hon. Senators, I also do not think, in all fairness, by the fact that the Senate proceeds in one way or another, in this matter, because of the practical exigencies confronting us, can lead to any conclusion by the Supreme Court that we have abandoned the fundamental constitutional questions that we have placed before them; or that we have not acquiesced in the unconstitutional conduct we have reported to them. Therefore, the Senate must proceed in this matter in the fashion of what good lawyers like to call “on without prejudice basis.” An important jurisprudential question that has been brought to the fore by the concerns of Sen. (Dr.) Khalwale relates to the status of unconstitutional law. What is a responsible organ of State or, for that matter, a citizen to do when he or she has to confront a law which they believe to be clearly unconstitutional? How is Article 3 of the Constitution obligating every person to “respect, uphold and defend the Constitution” to be vindicated? What about Article 73 of the Constitution placing certain responsibilities of leadership on all State Officers? In the present matter, I am clear that the course of action adopted by the Senate is the responsible one for a State organ like ourselves. We have proceeded to court and we are prepared for the outcome of the matter, such as it may be. Whatever may be our views on the Division of Revenue Bill, 2013, the moment that it was assented to, it became, regrettably, until the Supreme Court strikes it down, one of the fixtures of the The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate."
}