The Gov­ern­ment has tabled in Par­lia­ment the Rep­re­sen­ta­tion of the Peo­ple (Amend­ment)(No 2) Bill 2020 which seeks to reg­u­late the for­ma­tion, func­tion­ing and op­er­a­tion of po­lit­i­cal par­ties. In seek­ing to do so, it pro­pos­es to en­hance and al­ter the func­tions of the Elec­tions and Bound­aries Com­mis­sion (EBC).

The po­lit­i­cal and le­gal strat­e­gy be­ing used by the Gov­ern­ment is to seek to amend an ex­ist­ing law (The Rep­re­sen­ta­tion of the Peo­ple Act 1967-Chap. 2:01) which would per­mit it to evade any re­quire­ment for a three-fifths ma­jor­i­ty hav­ing re­gard to the nu­mer­ous in­fringe­ments of fun­da­men­tal rights and free­doms con­tained in the bill or to amend the Con­sti­tu­tion which would re­quire a three-fourths ma­jor­i­ty in the House of Rep­re­sen­ta­tives and a two-thirds ma­jor­i­ty in the Sen­ate.

Ex­ist­ing laws can be amend­ed if the amend­ment does not dero­gate from hu­man rights and free­doms to an ex­tent greater than had al­ready been dero­gat­ed. How­ev­er, this bill has a num­ber of con­sti­tu­tion­al chal­lenges as­so­ci­at­ed with it on three fronts. First­ly, the bill dero­gates from hu­man rights pro­vi­sions (sec­tions 4 and 5) to an ex­tent greater than had pre­vi­ous­ly been dero­gat­ed. Sec­ond­ly, the bill seeks to al­ter the role and func­tion of the EBC as set out in the Con­sti­tu­tion by us­ing the amend­ment to the Rep­re­sen­ta­tion of the Peo­ple Act 1967 to as­cribe new func­tions for the EBC that are not cur­rent­ly set out in the Con­sti­tu­tion it­self. Third­ly, the bill seeks to ex­pand the role and func­tion of the EBC to con­trol the man­age­ment of po­lit­i­cal par­ties and to con­trol their ex­pres­sion of views through the me­dia by as­crib­ing me­dia reg­u­la­to­ry func­tions to the EBC.

Sec­tion 4 of the bill pro­pos­es as fol­lows:

‘4. Sec­tion 3 of the act is amend­ed by in­sert­ing af­ter sub­sec­tion 3(1), the fol­low­ing new sub­sec­tion:

“3 (1A) The Com­mis­sion shall have, in ad­di­tion to the func­tions as­signed to it by the Con­sti­tu­tion, such func­tions as are as­signed to it by this act and, in the ex­e­cu­tion of this act, such au­thor­i­ty of the Com­mis­sion as is ex­er­cised in pur­suance of the pro­vi­sions of the Con­sti­tu­tion shall be du­ly de­ferred to.”’

This is per­haps the most dan­ger­ous sec­tion of this bill as it seeks to give the EBC new func­tions with­out any amend­ment of the Con­sti­tu­tion.

The role and func­tions of the EBC are set out in the Con­sti­tu­tion at sec­tions 71 and 72 and the Sec­ond Sched­ule. These new func­tions that are be­ing pre­scribed by amend­ment to the Rep­re­sen­ta­tion of the Peo­ple Act 1967 are an at­tempt at pre­scrib­ing sur­plusage by ref­er­ence as op­posed to di­rect con­sti­tu­tion­al amend­ment.

This strat­e­gy of avoid­ing an amend­ment to the Con­sti­tu­tion or even us­ing the three-fifths ma­jor­i­ty tech­nique which would con­fess that the bill seeks to in­fringe fun­da­men­tal hu­man rights and free­doms is fraught with risk and le­gal jeop­ardy see­ing that the ex­ist­ing law (the Rep­re­sen­ta­tion of the Peo­ple Act 1967 which was a law in force at the com­mence­ment of the Con­sti­tu­tion in 1976) is be­ing amend­ed.

The cau­tion is based on the pro­vi­sions of sec­tion 6 of the Con­sti­tu­tion, part of which reads as fol­lows:

“6.(l) Noth­ing in sec­tions 4 and 5 shall in­val­i­date—(a) an ex­ist­ing law;(b) an en­act­ment that re­peals and re-en­acts an ex­ist­ing law with­out al­ter­ation; or (c) an en­act­ment that al­ters an ex­ist­ing law but does not dero­gate from any fun­da­men­tal right guar­an­teed by this Chap­ter in a man­ner in which or to an ex­tent to which the ex­ist­ing law did not pre­vi­ous­ly dero­gate from that right.

(2) Where an en­act­ment re­peals and re-en­acts with mod­i­fi­ca­tions an ex­ist­ing law and is held to dero­gate from any fun­da­men­tal right guar­an­teed by this Chap­ter in a man­ner in which or to an ex­tent to which the ex­ist­ing law did not pre­vi­ous­ly dero­gate from that right then, sub­ject to sec­tions 13 and 54, the pro­vi­sions of the ex­ist­ing law shall be sub­sti­tut­ed for such of the pro­vi­sions of the en­act­ment as are held to dero­gate from the fun­da­men­tal right in a man­ner in which or to an ex­tent to which the ex­ist­ing law did not pre­vi­ous­ly dero­gate from that right.”

Turn­ing the EBC in­to a me­dia reg­u­la­tor or a body that can reg­u­late the po­lit­i­cal as­pi­ra­tions of those who wish to form po­lit­i­cal par­ties or who wish to form coali­tions is an un­com­fort­able prospect be­cause the per­mis­sion of the State will now be re­quired. This is trou­bling.