constitutional & parliamentary - asgp · web viewrelations between parliaments and the...

CONSTITUTIONAL & PARLIAMENTARYINFORMATION

—61th year, No. 202

Bern, October 17-19, 2011

CONTENTS

Relations between Parliaments and the Constitutional Courts — Alain DELCAMP, Secretary General of the Senate (France)...................................................... 3

The unseating of a Speaker by the courts and its implications — Austin ZVOMA, Clerk of Parliament (Zimbabwe)...............................................21

Planning Chamber business – informal channels for decision-making and timetabling — General debate moderated by Marc BOSC, Deputy Clerk of the House of Commons (Canada)............................... 28

The rationale and background conducive to the establishment of the Parliamentary Institute of Cambodia and the strategic development of the Parliamentary Institute of Cambodia — OUM Sarith, Secretary General of the Senate (Cambodia)................................................................. 46

Suspension of a Member from attending proceedings of the House — V.K. AGNIHOTRI, Secretary General of the Rajya Sabha (India) .......................................... 58

Attendance policy for Members of Parliament: The South African experience — Kamal MANSURA, Secretary to the National Assembly (South Africa) 67

Rules for the use and misuse of research facilities in Parliament — Dr Ulrich SCHÖLER, Deputy

2 Const.Parl.Inf. 61 (2011), 202

Secretary General of the Bundestag (Germany). 71

Exchange of information between government and parliament — Geert A HAMILTON, Secretary General of the Senate of the States General (Netherlands)...................................................... 75

Recent developments in the Inter-Parliamentary Union — Presentation by Mr Martin CHUNGONG and Ms Kareen JABRE (Inter-Parliamentary Union) 88

The concept of an activist Parliament — General debate moderated by Zingile DINGANI, Secretary to the Parliament (South Africa)......................... 96

Const.Parl.Inf. 61 (2011), 202

RELATIONS BETWEEN PARLIAMENTS AND THE CONSTITUTIONAL COURTS

—

Alain DELCAMPSecretary General of the Senate (France)

The idea of this report came to me through an observation that, I think, can apply to many countries – that of the development of judicial control of the constitutional validity of laws. It can be diffuse, via the Judiciary, or concentrated, via specialised jurisdictions, or mixed, where Courts step in a priori (before the laws are effective) or a posteriori (after their passage and during a proceeding) or both a priori and a posteriori.

One of the aims of this report will actually be to describe the different types of constitutional control systems and to categorise them according to various legal traditions.

This development of constitutional justice has been hailed by academics and specialist reviewers as one of the major phenomena of the assertion of constitutionalism, to the point of sometimes shadowing a more traditional view of the institutions, which we are naturally attached to as Secretaries General of Parliaments.

Whatever the nuances, the existence and autonomy of Parliaments lie indeed at the very heart of today's democracies – and oftentimes symbolise them – even though one has always been and is still able to challenge the merging between the idea of democracy and that of representative democracy, where the People act via elected representatives, be they gathered in one or two-chamber Parliaments.

To us, the law is the expression of sovereignty: it is only truly meaningful when it arises from as free deliberations as possible between elected representatives.

3


The development of constitutional justice in itself questions the concept of democracy based on election. Indeed, these Courts are not directly issued from vote and are by definition able to go against the People's will as expressed by its representatives. Famous constitutionalist Hans Kelsen had actually named them "negative legislators".

Due to the development of constitutionalism in most countries – the adoption of fundamental laws defining both the rules of the organisation of powers and what is commonly called the citizens' fundamental rights – one could of course easily reply that Parliaments express the People's sovereignty "within the frame of the Constitution".

One should then separate the "constituent power" – the People's direct expression when the Constitution is adopted – and the "constituted powers" – those that precisely derive their authority from the Constitution.

From now on, Parliaments in most countries should therefore be considered as constituted powers as well and, as such, subject to compliance with the Constitution. This should not in any case be seen as a violation of the principle of the People's sovereignty. However it calls for a broadening of the very notion of democracy; one should also be specifically concerned with how the Parliaments' and "constitutional justices"' respective skills and roles can be organised.

Courts are constituted powers too, since they derive their power from the same source as Parliaments, but they cannot claim the same legitimacy.

It is now even more necessary to clarify the relationship between Courts and Parliaments. Indeed, changing minds and above all, mediatisation, our societies' growing need for transparency and the very evolution of institutions lead to a challenging of the representativeness, if not the usefulness, of the Parliaments' operating mode: criticism may arise here and there – of how the law is developed, of the very legitimacy of Parliaments to monopolise, or nearly so, the development of laws in view of their representativeness.

The movement of constitutional justice – too hastily likened to the development of the "rule of law" – is also part of the idea that there should be a balance of powers, and that within institutions (besides Parliaments, which express changing majorities), there should be elements of continuity and balance, which constitutional Courts would be a part of.

Through the notion of the rule of law, the very notion of sovereignty is now being challenged or even modified, since Parliaments are admittedly held primarily responsible for the establishments of norms, but they may also be judged, or even corrected in their actions by bodies checking that such norms are consistent with all supra-legislative rules. The rule of law is sometimes reduced to those supra-legislative rules, while it refers to a much broader reality: that of the whole of legal standards – primarily the laws – developed within democratically organised societies.

4


To me, it was not as much about restoring the concept of sovereignty, but about determining to what extent constitutional control could be reconciled with the primary source of sovereignty, i.e. popular expression.

Rather than opposing constitutional Courts and Parliaments, it might be useful if we all tried to refine our conception of democracy. We could then show that the development of constitutional case-law is not just a movement competing with Parliaments development of norms. Indeed, it necessarily completes it and is accepted as such by Parliaments, if it remains within the functional needs it emerged from.

For this work, I used two different sources: first your replies as Secretaries General. As of the 7th of October,

when this report was written, I had gathered replies from 28 Secretaries General from 26 countries;

I also benefited from fourteen reports submitted by academics or members of constitutional Courts during the 27th International Roundtable of Constitutional Justice on the 9th and 10th of September 2011 at the Université Paul Cézanne in Aix-en-Provence (France), and for which I was General Rapporteur.

41 reports for 38 countries have therefore been gathered: 24 European countries including 18 members of the European Union, 2 from the Middle-East, 3 of Sub-Saharan Africa, 5 of America, 3 of Asia: Austria, Bahrain, Belgium, Bosnia-Herzegovina, Brazil, Bulgaria, Canada, Costa Rica, Czech Republic, Denmark, Egypt, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, India, Italy, Japan, Luxembourg, Madagascar, Mexico, Monaco, Norway, Poland, Portugal, Romania, Senegal, Slovenia, South Africa, Spain, Switzerland, Thailand, Ukraine, United Kingdom, United States of America.

I. – THE VARIOUS SYSTEMS OF CONSTITUTIONAL JUSTICEConstitutional justice existed before Hans Kelsen, the University of Vienna

professor who inspired the 1920 Austrian Constitution. But with him, it became all important, and as such a subject for all constitutional reflections. It was theorised in his book "Pure Theory of Law", but also in an article entitled "The Judicial Guarantee of Constitution", published 1928 in Paris in a journal of public law.

The events that tore Europe apart and lead to question the very notion of democracy showed the importance of setting up systems of constitutional control certainly based on the separation of powers, but they also raised the concern of protecting the citizens' freedom against various abuses from those supposed to stand for democracy – elected representatives, always likely to "use their majority unduly". From then on there was a growing

5


tendency1 to include a number of so-called "fundamental" rights in constitutional texts, an expression borrowed to German Law. Their control was assigned to a specialist body – the constitutional judge. This constitutional judge had to review rules produced by Parliaments with the regard to the fundamental rights developed in the Constitution, or included in the international Conventions which the relevant States adhered to, or even to principles "discovered" by the constitutional judges themselves. The movement widely spread to post-war Constitutions, as in Germany and Italy primarily, and later on in Spain and Portugal. After the fall of the Berlin Wall, the concept of constitutional control immediately appeared to be a substantial part of the balance of new Constitutions and accepted as such by most Constitutions emerging from the period's popular movements.

However, this development has not been entirely identical and constant in all the countries, for at least three reasons:

It first ran counter to some legal traditions, which made the law voted by representatives the very centre of the normative structure ("law-centeredness"). The notion of constitutional justice was therefore reluctantly introduced in 1958 in France, for instance. Not until 1971 or 1974, and very recently in the 2008 constitutional review, has it finally settled within the institutions.

Some other countries generally based on the so-called Westminster model and on the notion of the Parliament's sovereignty still largely lack a true constitutional justice system, even today. They consider especially that the Parliament's acts cannot generally be controlled by the judiciary (those are "Parliamentary Privileges"). This attitude is found not only in the United Kingdom, but also in most former dominions, including those with a federal structure, be it Canada or the Indian Union. Even though they are not, strictly speaking, the heirs of the British system, some of these constitutional systems still favour a so-called "by-way-of-plea" control, when there are court cases questioning the constitutional validity of laws. Such is the current system in, say, Northern European countries that have not experienced the same political upheavals as the rest of the continent. Thus Norway has had so-called "diffuse" constitutional control exercised by "ordinary" Courts since 1843.

Third-case scenario is in countries where constitutional control first arises from the necessity to control the implementing of power distribution between central and decentralised or federate powers, whatever the extent of decentralisation. The most topical example is obviously the United States of America. The Supreme Court decided (1802, Marbury vs. Madison) that it should control not only the distribution of powers, but also the constitutional validity of

1 However, that tendency was there from the start, especially in the United Kingdom ("bill of rights", 1689), in the United States (Declaration of Independence in 1787) and in France (Declaration of the Rights of Man and of the Citizen in 1789).

6


laws. The same goes for the whole legal system, at the top of which it stands. This model has naturally spread to the American continent (Centre and South), however Canada, though a federal country, has kept the Westminster model. The change from distribution of powers to constitutional control of the law, an American feature, has not been emulated by all federal states. In Switzerland, the constitutional Court cannot constitutionally judge whether federal laws are constitutionally valid.

Likewise, the organisation of constitutional Courts in federal, regional or "composite" countries does not follow uniform regulation. The organisation system of constitutional justice does not necessarily match the form of the State: some federal states have federal Courts and State Courts. Some others have only one federal Court. And in some composite states, especially in Europe, Courts sometimes wish to avoid constitutional Courts being established at the level of entities. On the other hand, the fact that a State is unitary does not prevent decentralised communities from being able to uphold the vertical distribution of powers when addressing the constitutional Court (Bulgaria, Czech Republic, Japan, Madagascar, Slovenia).

A priori control is mostly found in countries with a specialist constitutional Court separate from the judicial system (for instance Austria, Belgium, Bosnia Herzegovina, Bulgaria, France, Germany, Italy, South Africa, Spain, Ukraine). The Court may be referred to immediately after the passage of the law and before its promulgation, generally by the Executive but also by a given number of Parliamentarians, as we will see later. Until 2008, this was the only system in France. However, this system was abolished in Spain in 1985. Exceptionally, it has sometimes been introduced to complete a posteriori a system already in place (Brazil since 1946, Egypt 1979).

This a priori control by a specialist constitutional Court is still called "concentrated" or "abstract".

The panel shows however that a posteriori control is the most widespread, since it can be common to all systems. In this case, in various ways, it can be brought to any ordinary Court in the event of litigations. Control is "diffuse" when it is likely to be used in all parts of the territory, or even all levels of the Judiciary. It is "specific" when it regards the text relevant to the current litigation. It does not generally lead to the law being repealed, in which it differs from a priori control. It simply puts aside its implementing for the litigation to be resolved. Sometimes the judge may also, upon referral of the parties or – rarely – on their own motion, bring a preliminary ruling to the constitutional Court or the body serving as such. The decision may then be that of repeal. Note that Supreme Courts may sometimes have a gatekeeper function before deciding to transfer the request themselves to the constitutional Court (France 2008). In this case, they act as "filters".

Significantly, a priori control has developed after a posteriori control, especially in those countries with dual jurisdiction inspired by the Napoleonic model. Indeed, in this system, the establishment of

7


administrative jurisdiction – the administrative judge – counterbalanced the judicial court being banned from controlling government actions, generally on the administrative level.

Despite a general trend towards developing constitutional control of the laws, some countries still explicitly ban the Judiciary from having such control (The Netherlands). For others, the ban might be more subtle (Finland has a priori parliamentary control, the United Kingdom does not allow amendments "of constitutional significance" to be submitted to the Parliament1, Luxembourg does not have "erga omnes" cancellations).

Finally, note that especially in countries with more recent Constitutions, if constitutional control is explicitly mentioned in the Constitution, it belongs to the Supreme Court – the top of the Judiciary. This can imply that constitutional control might be carried out by a specialist chamber of this Court (Austria, Estonia).

Specialist constitutional Courts might well have the main role of controlling the constitutional validity of laws. However, a progressive diversification of their competences can be noted. They can act as a direct or appeal judge of matters related to the status of Parliamentarians, such as immunity (Czech Republic, Estonia, France, Germany, Slovenia, Thailand, the United States). They might also act as High Court of Justice to judge the Head of State and ministries (Bulgaria, Czech Republic, Germany, Italy (since 1989)), as an election Court2

(Austria, Bulgaria, Costa Rica (on Supreme election Court appeal), Estonia, France, Italy, Portugal, Senegal (presidential election), Slovenia), as an administrative authority – control of the organisation of elections (Egypt, India) –, or of course, as Supreme Court.

The Parliament can therefore be faced with constitutional justice in contexts not necessarily limited to constitutional control alone.

II. ROLE OF PARLIAMENTS IN THE DEVELOPMENT AND DEFINITION OF THE OPERATING RULES OF COURTS

Various reports show the importance of institutional links between Parliaments and constitutional Courts, as if it was necessary, to assert the legitimacy of the latter – especially if they were created after the Parliaments, as is often the case –, to rely on the obvious assertion of their relationship with the natural – or primary – representative of the sovereign outside election time.

This link is especially obvious in the institutional and constitutive regulations of the Courts.

II.1. Institutional and constitutive regulations of Courts:

1 Human rights and powers delegated to Scotland, Wales and Northern Ireland – Legislative and Regulatory Reform Act 2006 2 Competence extended to political parties (status and control) and to corruption matters (Bulgaria, Estonia, Germany, Thailand).

8


The decision of establishing a constitutional Court comes from the original constituent power. Sometimes, however, this creation or change may provisionally or permanently arise from the institutional, special or even ordinary legislator according to legal traditions and historical events (reinstatement of the Austrian constitutional Court in 1945, creation of the constitutional Court in Poland in 1985, creation of the constitutional Court in Belgium in 2007, 1982 constitutional law in Portugal).

However, though not always – this depends on the legal system –, the operating modalities of Courts fall within the so-called "institutional or special" laws, which means, with exceptions, that they require specific majorities to be adopted (Brazil, France, Italy, Madagascar, Romania, Senegal, Slovenia, Spain, Thailand, Ukraine).

Whatever those majorities, these rules almost exclusively fall within the Parliament, which therefore receives full delegation of the constituent to organise constitutional justice, subject to specific deliberation conditions and, ironically, margin checks by the constitutional Courts themselves when procedures are appropriate. Sometimes the legislator acts upon a Court proposition, with circumscribed powers (Brazil and Costa Rica).

This regards: the modalities for the implementation of rules for the appointment of judges (sometimes the very principles), referral modalities (authorities, procedures), possible impact of decisions, sometimes, and proceedings before the Court (France, Germany, Italy, Thailand) 1. The relative importance of the regulatory framework and internal rules varies from country to country. The Rules of Court are considered important in South Africa. The Supreme Court regulations in the United Kingdom are established by its President (but can be annulled by the Chambers).

The Parliament thus plays a major role in defining the constitutive and functional rules of the Court. Throughout the period, these rules have often been amended, commonly leading to power extensions (appeal via election established in Italy in 1948, a priori control suppressed in Spain in 1985, progressive reinforcement in Belgium (1969, 2003, 2007) and even more often in several "new" democracies2). In other circumstances, some legislatures have not resisted limiting the role of the Court or amending the system in a more restrictive way (Mexico, United States), but also for objective reasons (congestion in Spain).

II.2. – Regulations for the appointment of judges:

These regulations actually give an important role to the Parliament, although within proportions and according to varying modalities. In very few countries do Parliaments play no role whatsoever (Bahrain, Senegal). It is due to the nature of the Court, primarily a Supreme Court

1 Contrary to popular belief, the American Congress has significant authority to define the Supreme Court's intervention conditions (i.e. authority of appeal).2 Especially in Romania, where the Judiciary has consistently reinforced and diversified the Court's competences, therefore also weakening it.

9


(Canada, Indian Union, Japan1) and therefore with appointed judges. The intervention of the Parliament can be replaced by consultation of a body representing the Judiciary (Egypt).

The mixed nature of functions (a constitutional Court acting as a Supreme Court or vice-versa) calls for mixed procedures. Some appointments, even though approved by the Parliament, involve the judiciary's representative bodies (or have to be selected amongst judges or former judges (Belgium since 2007 to one half, Germany, Italy) or various high jurisdictions (3 of the 8 members of each "Senate" (Chamber) of the German Supreme Court have to be elected amongst the members of the Federation's Supreme Courts). In Thailand, primary election through General Assembly of the Supreme Court and the Supreme Administrative Court. Out of the Court's 8 positions, a few may be explicitly restricted to "ordinary and administrative Supreme Judiciaries": 33 % in Italy2, 2/3 in Bulgaria (elected by General Assembly of the Supreme Court of Cassation (1/3) and by the administrative Supreme Court (1/3)), 2 out of 12 in Spain by the High Council of Judiciary.

Overall, the consensus of approval by the Parliament seems like a substantial formality that may concern a variable proportion of members, although on average between 1/3 and 2/3: 33 % in Bulgaria, Italy or Ukraine; around 40 % in Austria, Bosnia Herzegovina; 2/3 in France, Romania, Spain; 77 % in Portugal; all of them in Belgium, Brazil, Costa Rica, Czech Republic, Estonia, Germany, Madagascar, Mexico, Poland (election by the Sejm alone), Slovenia, Switzerland (election by the assembled Chambers, as in Italy), Thailand (by the King upon a proposal from the Senate), United States (although it is primarily a Supreme Court).

Parliaments generally also share this authority with the Head of State or the Government.

Appointment modalities, however, are usually highly supervised: presentation procedure (Austria, Belgium, Brazil (by the President, as in Mexico), Estonia (proposition by the President of the Supreme Court), Germany, Portugal in part, Spain and the United States). Assembly of qualified majorities (Austria, Belgium, Brazil, Germany, Italy (assembled Chambers), Portugal, Slovenia, Spain). France's partial appointments by Assembly Presidents seem a relative oddity in this respect. In Switzerland, the system is especially open, since any citizen can be a candidate according to the Constitution.

Most commonly as well, Parliamentarians face qualification conditions in choosing proposed or selected people. These may be constitutional (Bulgaria, Germany, Poland, Thailand), or simply legal (Belgium3 , Bosnia Herzegovina, Italy, Spain).1 Note the specific case of South Africa, where the President appoints on presentation or after consulting with the Judicial Service Commission and the political parties.2 Note the specificity of the constitutional Court of Bosnia Herzegovina (which has two other Courts for the two entities, the Federation of Bosnia and Herzegovina and the Serb Republic): 3 out of 7 are appointed by the President of the European Court of Human Rights, following consultation with the head of state.3 As of the 2007 Act, Parliamentarians should be elected alongside judges.

10


Finally, should appointments not be carried out by the Parliament itself, the relevant authority has to consult at least one of its internal bodies (standing committees in France). A hearing is also explicitly expected in Spain or Belgium (as well as in the United States, obviously), in Mexico and in Romania. This trend is being pragmatically developed (it has been emerging in Canada since the 2000’s).

This parliamentary role has variously appreciated effects, such as the politicisation and the important involvement of main parties in appointments, or delays within the system (Italy, Mexico, Spain, the United States).

III. PARLIAMENTS AND CONSTITUTIONAL CONTROL PROCESSESIII.1. – Referral procedures

Defining referral procedures also largely involves the Parliament or Parliamentarians.

Indeed, the Court may rarely take up a case on its own motion (even though it has been so in Austria since 1920), at least a priori. It is more common a posteriori (Egypt 1979; Estonia, upon request by the other Chambers of the Supreme Court, Bulgaria and Romania (including upon constitutional review), Poland – so-called "signal" decisions). The judge may bring up a constitutional invalidity on their own motion in the event of litigation in Belgium, Iceland, Slovenia and Spain.

Referral may be compulsory for specific laws ("institutional" in France and Thailand, Court laws, reviews – Costa Rica). It may also be the case for Treaties (Costa Rica).

Referral by an external authority is the norm. However, the Parliament mostly intervenes in countries where there is a priori control, although not exclusively.

Parliamentarians get involved concurrently with the Government, sometimes even with Governments or Assemblies in federal, "regional" or composite States (Austria, Belgium, Brazil, Germany, South Africa).

Finally, even when the Parliament does not appoint (Japan), there are impeachment procedures against judges in which Parliamentarians play an important role (Costa Rica, Japan – but also confirmation and recall – Thailand, the United States).

Referral can be restricted to an Assembly in a bicameral system (Spain and South Africa); to Assembly Presidents (Bahrain, Bosnia Herzegovina, Brazil, Czech Republic, France, Romania); or to part of an Assembly (a third of the Bundestag in Germany and of the Parliament in South Africa):

1/4 of each Assembly in Bosnia Herzegovina, 1/5 of Bulgarian MPs, 10 MPs in Costa Rica, 60 députés or 60 sénateurs in France, 50 in Spain before the suppression, 41 deputies or 17 Senators in the Czech Republic, 25

11


Senators or deputies in Romania, 10% of deputies or senators in Senegal (deputies or senators in both when they represent 10% of the Parliament).

Amongst other conditions, one can note: The Bureau of Chambers in Brazil, Parliamentary group Presidents in Romania, one party represented in the Brazilian Parliament, each Parliamentarian in Austria (1975) and in Brazil upon constitutional amendment infringing a fundamental feature of the form of the State.

Few countries allow Court consultation for interpretation: section 83 of the Norwegian Constitution (never applied), Madagascar and the United Kingdom. As in Finland, there remains an internal procedure of constitutional control in Poland (3/5 of the Law Commission have to advise and check (as ruled by the constitutional Court in 2007) that impact research has been carried out).

Rules subject to challenge are obviously laws in between adoption and ratification, and emergency decree-laws.

A priori control most commonly regards Treaties prior to ratification, either de jure (Bulgaria, Estonia, Germany), or upon referral to various, mostly decentralised, authorities (Czech Republic, France, Mexico, Spain, Thailand).

Even for a posteriori control, the Parliament has some role in the referral. However, this seems more linked to the structure of the State than to the will to involve the Parliament in its own control (Belgium: general Assemblies + Community and Regional Parliaments; Germany: Government of Länder, 1/3 of the Members of Bundestag; Mexico; South Africa: members of the National Assembly but also of the National Council of Provinces, Spain (Assemblies of the autonomous Communities), same in Italy: Council President vs. regional laws, or regions vs. State Law).

III.2. – Court proceedings

One essential matter is not directly apparent from the questionnaires, or relevant works and articles, is that of the Parliament's involvement in the constitutional Court proceedings. Do Assemblies act as parties? Are they represented? Do they (officially or not) file briefs? Are the proceedings contradictory? If so, who acts as defender of the law? There are clear textual answers to this. However in most cases, practice and its evolution should be examined.

Logically, a priori or abstract control is an "objective" one, where there are not actually any parties to the constitutional trial. This is the general interpretation, but there may be exceptions due to specific organisation rules: public hearings (Brazil and Mexico). The Parliament is then represented by the President of the Senate (Brazil) – rules of ordinary civil proceedings. Chambers may be parties and represented by their President (Belgium, Czech Republic). In the United States they can act under the amicus curiae or in case of litigation with the Executive. However, the law is defended in principle by the General Department of Justice. The Parliament's competent Committees may be addressed (Bosnia Herzegovina). The

12


Chambers may produce briefs, officially or not (secret procedure in Romania).

Elsewhere, there is a true institutional dialogue between Parliaments and Courts (Poland, Slovenia). In Poland, the President of the constitutional Court submits an annual report to both Chambers.

III.3. – Impact of Parliament structure

Bicameral or monocameral structure does not seem to greatly impact the structure of relationships between Courts and Parliaments. There are however some notable exceptions – the United States and the Czech Republic – where the Senate has a specific role in controlling appointments, or even ensuring the appointed judges' autonomy.

The second Chamber often intervenes in federal or composite structures as a vehicle for entities to take part in presentation procedures (Spain, Belgium). Such procedures, however, seem insufficient to counterbalance the influence of political parties. The Bundesrat is not directly involved in the referral. One reason is that intervention is up to the Governments of the Länder, who make up the Bundesrat.

Regarding the second Chamber's equal or differentiated participation, Poland seems to be an exception. There, the Sejm (Assembly) alone is called to vote for an appointment. This is balanced by the Senate supervising the application of Court rulings. In Brazil, the second Chamber plays an even greater role, since it ensures the application of the Courts' decisions (it may suspend the application of a law declared unconstitutional).

On the other hand, it is likely that the absence of a second Chamber significantly alters the relationship between Courts and legislators as to the concrete operating of the institutional system and especially the possible appreciation of the Courts' role on the political scene. In a monocameral system, the Court might easily appear as the only countervailing power, or even an "objective" ally of the political minority. In the end, this would be going back to one of the main reasons for the movement that called for the creation of constitutional Courts, even for Kelsen. The idea was to counterbalance possible undue uses of majority powers via an appreciation based more on laws, collective "values" or long-term interests of the State rather than according to current majority powers.

IV. RELATIONSHIPS BETWEEN COURTS AND PARLIAMENTSData referring to institutional relationships between constitutional Courts

and Parliaments seem much fuzzier. Indeed, they depend very much on the political systems and traditions of the various related countries. This is even more so since they are seldom formalised – with a few exceptions already mentioned.

Therefore, these relationships need to be grasped via the role of constitutional Courts within the whole political system and the various practices.

13


IV.1. – Impact of the role of Courts in the institutional system

The Courts' role depends on when and mostly why they were established. The most significant cases are countries with federal structures, where the establishment of the Court answered the need to set up an adjudicative structure between the various powers and chiefly for the vindication of the interests of the federal competences. This obviously happened in the United States, but also in Switzerland, or even in a country turned federal through dissociation, like Belgium.

Only afterwards were those Courts called to check the constitutional validity of laws, especially in regard to the fundamental principles recognised in the Constitutions. This power was extended at various paces, but seems like a natural evolutionary rule. The evolution may have been due to the Court itself (the United States) or the constituent (Belgium). But in some other federal countries, it is not yet complete (Switzerland). Sometimes, federate powers may have benefited from it, despite an obvious reluctance from specialist Courts at the central level (Italy, Mexico, Spain).

In countries where civil and administrative jurisdictions were dual, constitutional Courts were often created sui generis (France, Austria, Federal Republic of Germany).

Only in countries with more recent Constitutions, at least post-World War II and post-1989 in Europe, do we see Courts that might be described as “multipurpose”. Indeed, they have authority to consult for the Executive and incidentally for the Parliament (assessing constitutional invalidity of treaties, acting as constitutional Court, Supreme Court, election judge, administrative authority, High Court able to judge the Head of State, ministers, Parliamentarians, sometimes all three).

If such a unified structure does not trivialise constitutional litigations, at least it makes it a logical step in the operating of the whole Judiciary. We saw earlier that this is the case in Austria and Estonia, where communication between the Judiciary and the constitutional control body is carried out by the various Chambers of the Court.

IV.2. – Diversity of the Courts' competences and relationships between Courts and Parliaments.

Even specialist Courts do not lack complementary powers. Indeed, when these do exist, communication between Courts is the clearest and most direct.

The election judge Court usually has authority to judge regularity in organising election, either presidential or parliamentary, and often federal or decentralised. They can also announce the results. If need be and on appeal, it also often acts as a surveyor of parliamentary powers. It judges immunity and incompatibility cases, mostly on appeal upon the decisions of the Parliament's bodies or on remand of those.

IV.2.1. – Institutional or adjudicative competences

14


As for their constitutional judge competences per se, Courts may act as a safe-keeper within the balance of powers. They can therefore appear as protective elements of the competences of the Parliament itself. It is so in federal systems, as well as numerous countries regarding separation of powers as a fundamental part of any democracy.

The Court is then both part of this pluralism and the main keeper of its balance. This concept seems very strong in Constitutions and institutional practices of Southern European countries, especially when part of the European Union. When it is separate from the Judiciary, some tension with the latter may arise.

Sometimes, even when the Court was established to preserve the competences of the Executive (France), it actually acts as keeper of the parliamentary power. It can even lead to its extension (negative incompetence).

IV.2.2. - Courts judging material constitutional law. Fundamental rights

If challenges arise, or more accurately, signs of misunderstanding or uncertainty, it has nothing to do with the constitutional Courts' role as keeper of the balance of powers, but with their functions as keeper, or even finder, of fundamental rights and what they seem to exercise at that point: some establishing power rivalling or even surpassing that of the Parliament.

Thus, it is less about the Courts' powers per se than about how they develop their case law. They are often granted this power of fundamental rights appreciation by Constitutions. But they may contribute to assert it themselves, or even to this end rely on international Conventions, whose implementing, by definition, eludes Parliaments.

IV.2.3. - Constitutional Courts and operating rules of the Parliament (Rules, procedures and interna corporis acta)

One specificity should be noted: the Courts' powers and case-laws regarding the very operating rules of the Parliament as an administrative body, be it procedure or operating rules.

The Parliament's administrative acts do not necessarily come under the jurisdiction of constitutional Courts, but often of administrative Courts, as long as they are deemed separable from the legislative function. This trend is far from being universal, though.

Rules of organisation and procedure, and especially regulations, are not always directly checked for their constitutional validity. In some countries, they undergo a priori control (France, Madagascar, Monaco, Thailand); in others, the legality of regulations is checked by way of plea, as this can be done for all other categories of rules (Czech Republic, Germany, Romania since 2000). The so-called amparo appeal in Spain and Iberian countries (a citizen's appeal for protection against an act directly infringing their fundamental rights) allows Parliamentarians to ensure the respect of their "right to political involvement". However, its practical scope is limited.

15


In this respect, countries seem divided between supporting and opposing automatic control. But there is of course an obvious link between the existence of a specialist constitutional Court and the possibility of controlling internal actions in Parliament. Indeed, the Westminster model users remain extremely reluctant about judges possibly interfering with the operating of the Parliament.

Finally, the procedure is one of the aspects Courts have generally to check when assessing the constitutional validity of the law. Concepts of "quality of law" and "comprehensibility" are increasingly considered as constitutional principles. However, the legislative procedure should not be deemed the same as substantive law. Courts therefore make sure to exercise minimum control (even when such procedures have been constitutionalised).

IV.3. – Impact and implementing of decisions

All Courts do not necessarily have power of repeal (or, to quote Kelsen and the theory of constitutional justice, that of negative legislator). In Luxembourg, for example, a constitutional Court's decision is only valid for litigations.

The power of repeal, however, may generally be total or partial.Through law-case evolution, this repeal power can be combined with a

large amount of procedures prolonging its effects and likely to be felt as constraints by Parliaments.

It can also set timelines for constitutional amendments. Regarding the circumstances of declaration of constitutional invalidity and predictable rejections, it can, if need be, proceed to – at least temporary – legislation changes itself. This is acting as an actual "positive legislator". In quite a few countries, it can even show jurisdictions that have provided it with a cause how to interpret the law to end the litigation. Courts may also issue injunctions to the legislator and give them "tips" to put an end to the constitutional invalidity. Note that the distinction between the two can be tenuous.

This diversification in the nature and impact of decisions has various, subtle and evolving characteristics.

Sometimes Courts might even claim being competent to judge constitutional amendments. This raises a matter of principle and creates controversy (accepted in South Africa and in Germany, more frowned upon in Romania). Such controversies will probably be tackled during the second roundtable.

Note however that at this stage, Courts seldom hail themselves as the Parliament's rivals for the establishment of legal order. Most commonly, they carefully insist on the degree of autonomy of the legislator and, at least formally, make a clear distinction between the "political" and "legal" fields.

16


V. "CONFLICTS" BETWEEN COURTS AND PARLIAMENTS – OBJECTIVITY AND SUBJECTIVITY

V.1. – Impact of the moment when a decision of constitutional invalidity is made

The "clash" between Courts and Parliaments may nevertheless be quite strong and depend on when the Court has to intervene.

Regarding relationships between Courts and Parliaments within their constitutional functions, one should distinguish between a priori and a posteriori referrals. Indeed, the timing of the referral may very well impact how Parliamentarians perceive the attitude of constitutional Courts.

In the case of a priori control, the Court's decision is interpreted as immediate and even "frontal" rejection of the legislator's decision. Its decision might be even worse perceived if it seems to give way to the Opposition's arguments. However, a priori control seems to occur relatively rarely. Some situations have even been known to be amended, precisely due to their possibly too provocative nature (2005 Spanish revision).

On the other hand, the possibility of immediate ruling has some advantages, since it avoids establishing an unconstitutional provision and does not infringe legal security.

Most referrals, however, are a posteriori. Examples in this respect are extremely varied. Referral may call for executive – more rarely parliamentary – bodies to intervene. But most commonly, litigation cases are brought before the Courts, either on the initiative of parties, or judges themselves. In the latter case, the decision of constitutional invalidity is, most frequently, only the result of an exception. It can undermine the norm's legal security, but does not always (although apparently increasingly) lead to its erga omnes annulment.

In any case, citizen's access is thus ensured. And this large number of possible distrainers leads to a fundamental change in the practice of constitutional control, especially when it exists on its own. It is then no longer about confrontation between Courts and Parliaments, but about some given point in time, even though it is an essential part of the operating of the Judiciary. The whole society is involved in the process. At this stage, the Court and the Parliaments may appear as elements of one single norm-producing institutional system.

The Court therefore has a mediation role between public expectations and the assessment of legal norms. Its decisions thus have to take into account both parliamentary and public opinions. Hence, several constitutional Courts in countries where individual appeal is allowed have a screening role, and therefore a system-regulating one1. In a way, they protect the classic system of norm production. Strangely, conflicts 1 They have actually wished to introduce procedures for the selection of appeals (Germany, Spain, United States).

17


should therefore be looked for more within relationships between Courts and ordinary judges, or even Supreme Courts when both functions are not held within the same institution.

V.2. - Conflict resolution:

Although most Courts repeatedly claim not to interfere with the legislative function, some specific arrangements or decisions may sometimes raise controversy. On the other hand, if Parliaments usually take constitutional invalidities into account and do agree that Courts have a complementary and useful role, they may from time to time assert their autonomy (a rescinded law may remain so) or to react by "taking their time", although sometimes with deadlines due to agenda matters, as well as political expediency.

It is nevertheless quite common for Parliaments or constituents having introduced the adopted provisions to instigate a constitutional review, so as to "break the verdict", rather than accept the Court's decision. There are quite a few examples even if they are not that common. However these should not be viewed as symptomatic of a conflict between Courts and Parliaments, but as a normal application of power distribution. According to French Dean Georges Vedel, the Court's role is more about "guiding" rather than "censorship" (the Court indicates the right procedure).

Although the questionnaire asked about it, it is difficult to reach a conclusion about Courts and Parliaments' mutual opinions. Indeed, assessing any opinion is partly subjective.

Considering the answers, it seems that the role of the Courts in the democratic system is now recognised as a necessity in most countries. Parliaments themselves not only consider that the Courts play a useful role, but also contribute to legislation improvement. In this respect, the constitutional control seems like a necessary dialogue, even if it should preserve the autonomy and functions of each party.

Here and there in a few answers, there was the feeling that some countries were wary of seeing a constitutional judge as a legislator. Personally as well as theoretically, I do not see how they could be denied this quality. Besides, many respondents explicitly quote Kelsen's famous term "negative legislator". This is crucial as to the assessment of the role of Courts in the institutional system: far from weakening the legislator, it allows to ease constitutional control into the norm-producing process. It also rids it of its sanctioning aspect, which it is too often confused with.

This does not mean that Courts should act as "legislators" and substitute their opinions and choices to the People's elected representatives' decisions. Regarding this, the near unanimity of the reports is striking when it comes to the Courts' – at least apparent – respect for parliamentary sovereignty and their "reluctance" to rescind a law.

18


V.3. -Elements of standardisation: what the Parliament gains from constitutional control

As a result, relationships between Courts and Parliaments should not be regarded unequivocally: constitutional control ensures the citizen's protection against undue uses of majority powers. On top of this, despite short-lived drawbacks, it has at least three advantages for the Parliament:

Helping it in its work:It might uncover aspects that the Parliament might have missed in the

heat of the moment. To quote French political scientist Pierre Rosanvallon, Courts act within "reflective democracy". They are part of the second legitimacy of modern democracy, which besides "establishment legitimacy" (election results) recognises a second source – the "universal identification legitimacy".

Hence do Courts bring a political dimension of impartiality. Their dual status is thus assessed: They are institutions of the political system (they can only act within the legal scene) and autonomous authorities with specific responsibilities. Strangers to the political scene, their legitimacy lies within their own ability to stick to their attributed – or at the very least, functional1 - legitimacy.

It can also give the Parliament a second chance. One should really praise how the Courts' methods have evolved through choices pertaining to the retrospectivity, or lack thereof, of their decisions, as well as establishing timelines to correct constitutional invalidities submitted to the legislator.

It can save a law by eliminating its faults (although there is a risk the Court's interpretation might depart from the intent of the legislator). However, I shall not conclude on the discussion over the constitutional validity of "interpretation in conformity", which has already taken us time;

It can restore the norm-producing function of the Parliament:

By reminding what constitutional balance is wished by the constituent (in this respect, there are revealing reports from countries having recently completed a transition process: Courts have a great role in ensuring law enforcement, including by filling the gaps during transitions).it reminds the Parliament of its duties: "negative incompetence" springs to mind, but in some other cases, Courts might refuse to come to a decision instead of the Parliament. In some countries,

1 Besides competences per se, these responsibilities are increased by the inevitable emergence of strategic and administrative matters, especially for flow management. (In many countries, a posteriori constitutional control leads to an actual explosion of appeals. This calls for some new awareness, leading to procedural reforms and thoughts about the future of the system itself.)

19


resorting to a constitutional judge sometimes seems to be a way of getting rid of difficult political choices.

I shall conclude with a general reflection, drawn from my own experience as a practitioner: I do not know of any conflicts that cannot be resolved, albeit with various ups and downs. But conflicts are best resolved when their terms are best defined. One might therefore wish for a future and renewed effort to better define parliamentary and judicial identities, and to initiate a composed process of mutual recognition, which would preserve a broader concept of democracy combining principle of sovereignty and rule of law.”

Mr MANSURA (South Africa) said that the growing power of unelected constitutional courts were a matter of growing concern in many parliaments. He had particular worries where important judgments were reached by a split majority.

Dr AGNIHOTRI (India) said that the situation in his country was peculiar. India was a union of states and not a federation, with constitutional separation of powers. But the interaction between the pillars of the state generally left Parliament holding the wrong end of the stick. Ordinances, on which he had recently given a presentation, were an example of this, with the executive pre-empting the legislative right of the Parliament. A series of rulings by the supreme court over a number of years had resulted in a situation in which Parliament’s right to amend the constitution had become restricted.

Mr LAURENCE SMYTH (UK) noted a misunderstanding in Mr Delcamp’s paper. All he had meant to say about the British situation was that the courts did not tend to expedite judgments on matters of constitutional significance.

Mr NINI ABINO (Ethiopia) said that the upper House in his country had a role in interpreting the constitution. Political legitimacy and judicial professionalism were combined in a special unit with this particular role, which included members of the Upper House. He asked whether Mr Delcamp had anything to say about principles of constitutional interpretation.

Mr PAPAIOANNOU (Greece) noted the delicacy of balancing constitutional powers. Greek politicians did not like the status quo, but could not achieve a consensus for changing it. The same went for the method of appointment of supreme court judges. In fact, there was no supreme court in Greece, just an a posteriori application of the law in ordinary court cases raising constitutional issues. This led to significant delays in judging the constitutionality of laws. There was also no judicial restraint: courts often

20


put a greater emphasis on environmental protection than seemed justified by the Constitution. A group that was under-represented in the political system might justify special protection under the Constitution. But for the courts to intervene in a properly operating political system was excessive.

Mr HAMILTON (Netherlands) reiterated that his country was a peculiar case in that Parliament was considered the highest authority in constitutional matters. However, a draft law was in process that might change this situation – although it was doubtful whether it would be passed. One argument against change was that there seemed to be no examples of anything going wrong under the current system.

Mr DINGANI (South Africa) said that a lack of sufficient public consultation in passing a law by Parliament meant that the law could be challenged and set aside by the constitutional court on the grounds that Parliament had not followed its own procedures. Chapter 9 of the Constitution included institutions in support of democracy in the role of ensuring public protection. Judges were appointed by the Executive, but with a rigorous selection system behind it. There had been a recent case in which the qualifications of the proposed Chief Justice had been criticised by lawyers and the public. This showed public engagement in the system.

Mr ZVOMA (Zimbabwe) said that his country had no separate constitutional court, but the supreme court could sit as such. Laws had to pass a constitutionality test before they could be proceeded with in Parliament. There had been challenges to laws passed by Parliament, nonetheless. Interpretation of the Constitution was a matter for the courts.

Mr DELCAMP (France) said that his communication covered both a fundamental matter of principle and a technical matter. Constitutional issues did not need to be left to the courts. Parliaments, as democratically elected institutions, had an important role to play. Courts should not be rivals to Parliaments. Parliaments were often involved in the appointment of constitutional judges as a reflection of this. Parliaments sometimes felt helpless in the face of international case law, which they had brought upon themselves through treaty ratification. His communication was only a starting point, and he looked forward to further work on the subject. He noted some misunderstanding of the US system. He wondered why the Indian system could not deal with ordinances in an a priori fashion. Parliaments should not accept that it was beyond their powers to modify parts of the constitution on the say-so of judges. Courts had to balance constitutional principles in their judgments: it was their role to reach opinions based on considered thought, but parliamentarians did not always understand this. More work was needed to explain to the public the representation of voters by parliamentarians and the technical work of the courts. Courts were not more legitimate than Parliaments, but they had an important role to play.

21


THE UNSEATING OF A SPEAKER BY THE COURTS AND ITS IMPLICATIONS

—

Austin ZVOMAClerk of Parliament (Zimbabwe)

“1.0. Objective and Scope This paper chronicles the unprecedented setting aside of the August 2008

election of Mr. Lovemore Moyo as Speaker of the House of Assembly by the Supreme Court of Zimbabwe sitting as a court of final appeal in March 2011. The paper relies on the Supreme Court landmark ruling in the case of Jonathan Moyo and 3 ors v Austin Zvoma NO and Anor, SC 28/10. It reviews literature and legislative practices from regional and international parliamentary jurisdictions on precedence in the removal of a Speaker from office by the judiciary.

2.0. Introduction and Background The Speaker of the House of Assembly in Zimbabwe is elected in terms of

Section transacts any business. The Constitution and Standing Orders (SOs) of the House of Assembly do not give the Clerk any powers in the conduct of an election of Speaker. Section 39(1) and (2) of the Constitution simply states:

‘When the House of Assembly first meets after any dissolution of Parliament and before it proceeds to the dispatch of any other business it shall elect a presiding officer to be known as the Speaker; and whenever the office of the Speaker becomes vacant the House of Assembly shall not transact any other business until a person to fill that office has been elected’

SO 6 provides that:-

22


‘If more than one person is proposed as Speaker, the Clerk shall conduct the election of Speaker by a secret ballot.’

Accordingly, pursuant to a proclamation by the President, the Clerk convened the first meeting of Parliament on 25 August 2008 for the purposes of swearing in the Members of Parliament and electing Presiding Officers of the two Houses. Following the nomination of two candidates, the Clerk conducted an election of Speaker in accordance with clearly laid out rules. He read out the previously circulated rules to Members. The rules provided that upon receipt of a ballot paper, each Member was required to:

i. cast his/her vote in a Polling Booth placed in the Chamber;ii. fold the ballot paper;iii. show the stamped side to the Clerk; andiv. deposit the folded ballot paper in one of the two ballot boxes

on the Table of the House.

Needless to say, the Clerk reminded Members that, as products of the same electoral process which international norms expect to be transparent, free and fair, they were equally expected to observe and respect the rules. Members refused to leave the Chamber after voting as requested. At this juncture, it is important to note that during the electoral process, six members, including Mr. Lovemore Moyo, defiantly and openly displayed their ballots in the process showing other members how they had voted. The Clerk decided against taking any action as he considered that this would have worsened an already near chaotic situation. This was to become a contested point during the court hearing. At the conclusion of the election process, the Clerk declared Mr. Lovemore Moyo duly elected. The open display of ballots was not disputed in Court. What became contentious was its effect on the electoral process and whether or not the Clerk had complied with the law when he allowed those votes to be deposited into the ballot boxes and counted as valid votes.

3.0. Tenure of Office of Speaker The tenure of office of a Speaker is provided in the Section 40(2) of the

Constitution. The Speaker shall vacate his office: i. on the dissolution of Parliament;ii. if he holds another public office incompatible with that office.iii. if he is found to be mentally disorderediv. the High Court declares that he is incapable of managing his own

affairs;v. he has been convicted of an offence under the Electoral Law and

the High Court disqualifies him from registration as a voter or from voting at any election;

vi. if he has been the subject of a preventive detention order for a continuous period of six months or more.

In addition to the above, the office of the Speaker shall become vacant if the House of Assembly resolves by the affirmative votes of not less than

23


two-thirds of its total membership that the office of the Speaker shall become vacant (our emphasis).

Similar provisions exist in other jurisdictions. In Nigeria a Speaker may be removed by the votes of not less than a two-thirds majority while in South Africa the National Assembly may remove the Speaker or Deputy Speaker from office by a resolution of the majority of members present.

Our research suggests that constitutions of many countries are silent on the removal of a Speaker from office by the Judiciary. This brings to the fore the question of the involvement of the courts in unseating a Speaker and its implications.

4.0. Application to the High CourtAggrieved by the conduct of the election of Speaker, Professor Jonathan

Moyo made a chamber application to the High Court praying for the setting aside of Mr. Lovemore Moyo’s election. In his Founding Affidavit, Professor Moyo submitted that the election had not been conducted in terms of Section 39 of the Constitution of Zimbabwe, as read with Standing Order 6 of the House. He further pointed out that the election had not been conducted by secret ballot as at least six members of the MDC-T, including Mr. Lovemore Moyo, had defiantly and openly displayed their ballots; and that there was ‘chaos’ in the Chamber during the elections.Through its verdict of 10 March 2010, the High Court upheld the election of Speaker after concluding that the display of ballots by six members did not materially affect the outcome of the election. Professor Moyo reacted by appealing to the Supreme Court.

5.0. Supreme Court AppealIn the papers filed at the Supreme Court, Professor Moyo argued that the

High Court erred in finding that a proper election of Speaker of the House of Assembly was conducted in terms of the Constitution and the law. He submitted that the learned Judge of the High Court had erred in condoning the Clerk’s failure to implement and enforce his own procedures for the election. He also argued that the High Court erred in finding that the exposure of completed ballot papers was not a violation of the secret ballot. Professor Moyo further argued that the learned Judge erred in both finding that a secret ballot took place and in interpreting Section 39 (2) of the Constitution as read with SO 6 of the House as directory and not peremptory.

6.0. Supreme Court JudgementAfter hearing submissions from Counsels representing both parties, the

Supreme Court made the following observations:‘Section 39 of the Constitution, as read with Standing Order 6, is not a

constitutional or statutory provision conferring the right to vote on a voter in the form of the Member of Parliament. Section 39 of the Constitution, as read with Standing Order 6, prescribes how a particular officer in Parliament, namely the Speaker, is to be elected. It expressly provides that

24


if more than one person is proposed as Speaker the Clerk of Parliament shall conduct the election of the Speaker by a secret ballot. In other words, the use of the words "by a secret ballot" in the Statute is prescribing the method by which a Speaker is to be elected. The language is peremptory language (sic). It would be a different story if the wording of Standing Order 6 were to the effect "If more than one Member is proposed Members of Parliament may vote by secret ballot to elect the Speaker". Therefore, ‘In view of the explicit language of the Statute, it is not open to the Clerk or any Member of Parliament to substitute the method of electing a Speaker with another method of their own choice, such as by open ballot. Put differently, it was not open, for instance, to Members of Parliament to tell the Clerk that they were waiving their right to vote for the Speaker by secret ballot or that they wished to vote for the Speaker by open ballot either individually or as a group. That option was not open to the Members of Parliament as a whole or to individual Members of Parliament.”

The Supreme Court noted that voting by secret ballot entails the following procedures:-

i. Each Member receives a ballot paper;ii. Each Member indicates on that ballot paper the candidate of choice

in private and to the exclusion of the public; iii. The Member deposits his/her ballot paper into the ballot box

privately without disclosing his/her ballot paper to the world. The process of voting by secret ballot ends with the ballot paper being

deposited into the ballot box. Thereafter, a Member would not be violating the secret ballot if he/she discloses whom he has voted for.

The Court found that Parliament had, in violation of the law, conducted a cross-breed partly secret and partly open election. The Supreme Court concluded that Parliament intended to render invalid an election wherein the Clerk fails to comply with the provisions of Section 39 of the Constitution, as read with SO 6. Thus, failure to stamp his authority and to comply with peremptory provisions rendered the elections a nullity. The Clerk should have insisted that Members conduct themselves in accordance with set instructions. The Court concluded that six named Members did not vote by secret ballot and, therefore, their votes were irregular and should not have been deposited in the ballot boxes. Consequently, their inclusion contaminated the final outcome of the election of the Speaker rendering it invalid and hence the nullification of the election results.

7.0. Implications of the JudgementIn light of this development a number of questions arose:

i. The Judiciary’s jurisdiction in determining the regularity of the election of Speaker;

ii. The application of the Doctrine of Separation of Powers a matter occurring within Parliament;

iii. Mr. Lovemore Moyo’s status after the Supreme Court set aside his election in 2008 given the fact that his seat had been declared vacant;

25


iv. The constitutional and other provisions the Clerk would use to conduct a fresh election for Speaker.

8.0. JurisdictionZimbabwe is a constitutional democracy in which all arms of the State are

subordinate to the constitution. Parliament’s independence from the other two arms of the State and power to make its own rules in terms of Section 57 of the Constitution does not exempt those rules from complying with the provisions of the Constitution. As such, all its actions must have a basis in law. The Supreme Court ruling is in line with the principles of constitutionalism which states that there ought to be strict adherence to constitutional provisions, particularly the peremptory provisions. Where Parliament lacks internal remedies to deal with failure to abide by mandatory provisions, the Judiciary will intervene. From the foregoing, it is indisputable that the Judiciary has jurisdiction in a contested election of Speaker.

9.0. Separation of Powers The three arms of the State have separate but co-ordinate roles with

each being supreme in its own sphere. In other words, while the Legislature is supreme in making laws, the Judiciary is similarly supreme in interpreting those laws. Thus, there is no total separation of powers.

10.0. Mr. Lovemore Moyo’s Status after JudgementThe Supreme Court only set aside the election of Speaker for non-

compliance with the secrecy of the ballot. It did not reverse or set aside any other act done or presided over by Mr. Lovemore Moyo. Accordingly, the Clerk disagreed with his argument that he reverted to being Member of Parliament for Matobo North Constituency which he held immediately prior to his irregular election on 25 August 2008. In the event, Mr. Lovemore Moyo made an urgent chamber application demanding that the Clerk declares him member for Matobo North which he abandoned in part for failure to comply with court rules. Needless to say, neither the constitution nor Standing Orders repose in the Clerk such powers.The Clerk accordingly barred former Member, Mr. Lovemore Moyo, from voting in the subsequent re-run of the election on 29 March 2011. This is because as de facto Speaker of the House of Assembly, he had declared Matobo North Constituency vacant after his election.

11.0. Post-Judgement ImplicationsThe constitution and Standing Orders specifically state:

i. ‘whenever the office of the Speaker becomes vacant the House of Assembly shall not transact any other business until a person to fill that office has been elected’;

ii. the Clerk shall conduct the election’.

The Supreme Court had also previously ruled on Parliament’s failure to comply with the SOs. In 2002 in the case of Biti and Anor v. the Minister of

26


Justice, Legal and Parliamentary Affairs and Anor, 2002 (1) ZLR 177 (S), the Supreme Court ruled that SOs made in terms of the Constitution have the status of law. Mr. Biti had approached the Supreme Court praying for it to set aside the enactment of the General Laws Amendment Act passed by Parliament in violation of SOs.The Supreme Court accordingly nullified the Act. That nullification was consistent with another landmark ruling in the United States where the Federal Supreme Court ruled in the case of Marbury v. Madison (1803) that the delegated powers (of the Court) include the authority to determine whether a statute violated the Constitution and, if it did, to declare such a law invalid. http://usinfo.state.gov (2004).

The Judiciary’s constitutional competence to intervene and interpret the law, therefore, compels all arms of the State to operate within the confines and limits of the law. The rule of law enjoins citizens, Members included, to approach the courts for the resolution of legitimate disputes.

The co-ordinate relationship involving Parliament’s legislative function, the Courts interpretative role and the Executive’s determination of public policy and implementation of the law can be summarized as: Enactment, Interpretation and Implementation (EII or EI2). This contrasts sharply with the jurisdictions which practice parliamentary democracy defined as a political system ‘…based on the idea that Parliament is supreme or sovereign’. In Zimbabwe, the Supreme Court, in the case of Chairman of the Public Service Commission and Others v. Zimbabwe Teachers Association and Others, 1996 (9) BCLR 1189 (ZS), affirmed that:

‘We consider that …Zimbabwe, unlike Great Britain, is not a parliamentary democracy. It is a constitutional democracy. The centre-piece of our democracy is not a sovereign parliament but a supreme law (The Constitution)’.

Parliament must always exercise its powers within the confines of the Constitution and not to purport to legislate beyond those powers. The Supreme Court concurred that the major facet of a parliamentary democracy as that obtains in the UK is that their ‘constitution does not permit the judicature to strike out laws enacted by Parliament. Their Parliament, in the field of legislation is supreme and sovereign’. This contrasts sharply with the case in Zimbabwe where the supremacy of the constitution is protected by the authority of the independent judiciary.

12.0. Consequences of the Supreme Court JudgementThe nullification of the election of Speaker had a number of far reaching

implications. The setting aside of the election of Speaker did not affect or reverse any other act performed or presided over by the de facto Speaker. The only unfinished business from August 2008 was to complete the process of electing the Speaker. Accordingly, the President fixed 29 March 2011 as the date on which Parliament was to meet and elect the Speaker. Informed by the Supreme Court’s strict criteria for an election by secret ballot, the Clerk put in place an elaborate fool-proof system for the election to avoid a

27


repeat of August 2008. He conducted the election in a room where a few members were allowed at a time, thus guaranteeing orderliness of the process. All the 199 members who voted complied with strict instructions save for one member whose ballot was disqualified as a spoilt paper. The process which was closely observed by two election agents for each of the two candidates and the press fully complied with Supreme Court criteria for a secret ballot. Mr. Lovemore Moyo garnered 105 votes against 93 obtained by the ZANU PF candidate, Ambassador S. K. Moyo.

13.0. Lessons LearntThe rulings of the Supreme Court relating to Parliament are in line with

the principle of the separation of powers. The landmark Supreme Court ruling is important in that it underscored the need for Parliament to strictly adhere to the Constitution and the Standing Orders in the conduct of its administrative and legislative business. The ruling was also precedent-setting in circumscribing the criteria for and conducts of elections for Presiding Officers by the Clerk.

14.0. ConclusionParliament‘s total compliance with the Supreme Court’s ruling is a clear

indicator of the state of comity which exists between the Legislature and the Judiciary. The ruling did not challenge the privileges of Parliament but failure to comply with the law. The ruling should guide both current and future Administrations of Parliament on the need to adhere to the laws of the country.

15.0. References1. Constitution of Zimbabwe2. Constitution of the Republic of South Africa3. Constitution for the Federal Republic of Nigeria4. Standing Orders for the House of Assembly, Parliament of

Zimbabwe, 20055. Privileges, Immunities and Powers of Parliament Act (Cap 2.08)6. Outline of the US Legal System, Bureau of International Information

Programs, United States Department of States (2004).”

Claressa SURTEES (Australia) said she had no background on the Tasmanian situation that had been mentioned. There had been a challenge to the Speaker’s authority in House of Representatives, but no judicial involvement.

Mr ZVOMA (Zimbabwe) noted an earlier occasion on which the Speaker had accused the judiciary of loyalty to ZANU-PF, the former ruling party. He had therefore been seen by some as in a complicated situation when his

28


appointment as Speaker was disallowed by the courts. This showed the sensitivity of relations between elected Members and the judiciary.

29


PLANNING CHAMBER BUSINESS – INFORMAL CHANNELS FOR DECISION-MAKING AND

TIMETABLING

—

General debate moderated by Marc BOSCDeputy Clerk of the House of Commons (Canada)

The business of the House of Commons is conducted, for the most part, in an orderly manner in large part because of mechanisms for informal consultation that are the outcome of both formal rules and well-entrenched practices that have evolved over time. Some would say that due to these informal channels Chamber Business is so well planned that proceedings are de facto choreographed. The Standing Orders of the House include some mechanisms for the planning and scheduling of the House’s business. These rules are extensive but not exhaustive. For example, the Standing Orders establish a daily program in general, but the detailed structure of the time set aside for Government Orders and how it plays out is largely dictated at the government’s discretion.

I would like to talk to you today about compromise and adaptability in the practices of the House, and to share some of the experiences we have had recently in Ottawa of negotiation in minority government versus majority government situations. I will provide examples especially from the work done by House Officers, primarily party House leaders, but also from time to time party Whips, and from the work done by private Members themselves.

HOUSE OFFICERSFor many years now, the planning of House business has been executed

mainly through the House leaders’ meetings, which are informal in the sense that they are not explicitly provided for in the Standing Orders.

30


Each recognized party, that is, each party that has a minimum of 12 seats in the House of Commons, appoints one Member to be its “House Leader”. The position of the party House leader has existed for a very long time, and it benefits from a status recognized in the Parliament of Canada Act, that provides for additional allowances to those Members playing that role. The House leaders are the primary agents for the planning of House business as they, along with their staffs, party Whips and their staff, meet regularly to discuss upcoming business in the Chamber, how long bills will be debated, when particular issues will be discussed, and the like. The Clerk of the House is a regular attendee as an observer at these weekly meetings.

House leaders are generally expected to be familiar with the Standing Orders, with the gist of Speakers’ rulings, and with the various conventions that apply to the day-to-day functioning of the House. Their effectiveness as negotiators is in part a product of this familiarity. Furthermore, the success of the House leaders at managing and expediting the business of the House is related to their perception of themselves as House Officers with an obligation to serve the best interests of the institution as well as those of their respective parties. It is not unusual, for example, for the House leaders to negotiate a more expeditious discharge of outstanding business prior to the Christmas or summer adjournments. It is, I believe, accurate to state that the House leaders’ meetings, though not provided for by statute or by the Standing Orders, are nevertheless indispensible to the effective planning and timetabling of Chamber business. By keeping the details of House leaders’ meetings confidential, the parties ensure that discussion can be frank and collaborative. House leaders can be candid with each other about the obstacles they face in gaining acceptance of particular proposals from their respective caucuses.

The Government House Leader plays the most important role here — particularly when there is a majority government — and bears the responsibility of ensuring the smooth flow of government business. In order to accomplish this, he or she must determine the level of priority which the Cabinet attaches to particular legislative initiatives, statutory deadlines (if any) for the renewal of legislation, and the availability of Ministers who sponsor bills and of the committees designated to consider them.

Given that the Government House Leader must ensure that the consideration of legislation takes place in a timely fashion, he or she will consult with the other House leaders to eliminate obstacles to its progress.

Regular meetings of the House leaders are convened by the Government House Leader; they vary in frequency but tend to be weekly. At these meetings they discuss, negotiate and arrange House business to ensure the smooth, thorough and speedy consideration of legislative initiatives. The Government House Leader indicates the tentative order in which items of government business will be considered, usually over a two-week horizon, in order to afford the other House leaders the opportunity to have their spokespersons in the House as appropriate. The House leaders may also come to agreements to expedite the passage of government bills and they may negotiate the conditions of special debates (e.g. Take-note debates), statements on occasions of note, or other special proceedings. They also

31


discuss the scheduling of allotted opposition days, although the timing of such debates remains a government prerogative.

The tone of these meetings is dependent upon the political context, but tends to be cordial and collaborative. The House leaders come to know each other well as a result of these frequent meetings and the result is usually a productive working relationship. In order to function effectively, the House leaders have considerable delegated authority from their parties so that they can commit to negotiated agreements with the confidence that they will receive the necessary support from their respective caucuses, though of course they often return to their parties for explicit confirmation.

Since agreements during House leaders’ meetings concern the allocation of House time, the opposition House leaders are at somewhat of a disadvantage in a majority-government situation since the government has at its disposal procedural tools, such as time allocation and closure, that it can use to expedite the progress of legislation. In a minority Parliament, on the other hand, the government must be prepared to put some water in its wine if it hopes to achieve anything on its legislative agenda; such negotiations often occur at the House leaders’ meetings, although private agreements may also be arrived at between the government and one or more of the opposition parties. An agreement negotiated by the House leaders might, for example, limit the number of speakers on a bill at a given stage, in exchange for certain considerations — perhaps an agreement by the government not to oppose an opposition amendment. A majority government may also on occasion be receptive to such agreements, simply as a gesture of good will. The tendency for these types of negotiations is well-established, and has become an inevitable and effective feature of the arrangement of the House’s business.

Agreements tentatively negotiated beforehand by House leaders are often effected by the unanimous consent of the House. In fact, practically all motions that are eventually adopted by unanimous consent are preceded by much negotiation, and unanimous consent is little affected by the minority or majority status of the government. Since one dissenting voice is sufficient to deny unanimous consent for a motion, even an independent Member without the leverage provided by party status has the power to block certain initiatives and therefore, potentially, to secure concessions on matters of importance in return for granting consent. The 41st Parliament has already been fascinating to observe in this respect, since the Bloc Québécois – at one time the Official Opposition, and the second opposition party as recently as the last Parliament – was reduced to only four Members during the last election, and thus no longer has official party status. These four Members sit as independents, even though they identify themselves by party. A fifth independent Member is the leader of the Green Party but she is the only Member from that party in the House. These five independent Members have already exercised their ability to deny unanimous consent on occasion and, as a result, House leaders have found it necessary to consult them beforehand in order to reach agreements regarding the conduct of House business.

Informal agreements also facilitate special events that require the House to resolve itself into Committee of the Whole (in order to allow non-Members

32


on the floor of the House, something that is not allowed when the House is sitting). This has happened in recent memory when the House resolved itself into Committee of the Whole in order to allow the Olympians from the 2010 Olympic and Paralympic games to stand in the House for a brief ceremony in their honour, and when the House sat in Committee of the Whole so that representatives of aboriginal communities could be present on the floor of the Chamber to accept the Prime Minister’s apology for abuses committed against First Nations in Canada’s residential school system. In the latter case, an agreement amongst parties also allowed the aboriginal representatives to not only be present on, but also to speak from, the floor of the House. These are but a few examples which clearly demonstrate the impact of informal negotiations between House leaders on the ability of the House to adapt to new and unprecedented circumstances, as well as allow its procedures and practices to evolve.

There are, of course, other parliamentary conventions that also require the use of informal channels for decision-making. One of these is the number and order of speaking slots available to the Members of any given party, which is usually proportionate to the number of seats held by that party in the House. Since a number of recurring procedures in the House are managed by rotation lists – Question Period, Statements by Members and debate, it is incumbent upon the parties, and in particular their Whips, before the start of a new Parliament, to agree upon the order in which representatives from the various parties will speak. While mathematical calculations form the basis for these rotation lists, there can still be room or need for negotiation, particularly as the list varies according to the procedure. The official opposition, for example, normally has the greater part of the questions during Question Period, with proportionate accommodations made for each of the other opposition parties and any independent Members. Government Members are also allotted a certain number of speaking slots but not in proportion to their numbers in the House since Question Period is ultimately an opportunity for the opposition to ask questions of Ministers in order to hold them accountable.

While such negotiations take place between the representatives of officially recognised parties, they must at times take into consideration the independent Members. Independent Members usually have relatively infrequent opportunities to make statements or ask questions given their small representation in the House. It falls to the Speaker, as guardian of the rights of all Members, to ensure these Members are aware of the House time available to them, and to monitor their use of it. In the past, many of the independent Members did not even use these rare chances to speak. In the current Parliament, however, independent Members are making full use of their allotted time and have risen to speak or to pose a question more regularly than was the case in the last Parliament.

This is but one example of how the Speaker too, by taking on an informal planning role, can contribute to ensuring the effective functioning of the Chamber.

PRIVATE MEMBERS

33


But it is not only House leaders and the Speaker who informally take charge of certain aspects of House business. Private Members too can become engaged in negotiations in order to pursue their particular interests. Their lobbying of other Members in order to secure support for their items of Private Members’ Business is certainly the most common instance given the usually lengthy process as prescribed in the Standing Orders that requires private Members’ items to gradually and repeatedly work their way to the top of an official list, the “order of precedence,” before coming before the House for each step in the process.

The progress and eventual success of an item of Private Members’ Business will naturally depend on securing the support of a majority of Members in the House. Since private Members’ bills or motions are customarily the objects of free votes – in the parlance of the Commons, they are not “whipped” votes along party lines – a private Member may see his or her bill supported by Members from several or even all parties. In addition, the rules permit two Members with items in the order of precedence to exchange places. If this is carefully arranged, it is possible to have a bill considered and passed more quickly than would normally be the case. For these reasons, private Members’ items are excellent examples of informal, behind-the-scenes negotiation and discussion among Members as private Members drum up support for their legislative projects and possibly make concessions (perhaps by accepting proposed amendments) to increase the chances of successful passage.

Private Members’ consultations are not limited to their own private Members’ items. In fact, there are times when motions originating with backbench Members (e.g. for the designation of a day in commemoration of a particular historic event) are adopted by the House, usually by unanimous consent. The lobbying that precedes these is necessarily focused on other Members and House Leaders both from the private Member’s own party and from other parties.

CONCLUSIONThe procedures and practices of the House of Commons are governed

explicitly by its Standing Orders, rules that provide guidance, structure, safeguards for the minority and some assurance that business can be transacted fairly and effectively. As we have seen, there is much that is left unsaid in the Standing Orders, much that perhaps must be left unsaid, and the work of the House depends vitally on a number of informal, unwritten channels that allow for negotiation, compromise, and gestures of goodwill among the Members.”

Dr V.K. AGNIHOTRI (India) presented the following contribution :

Introduction

34


1. Parliament occupies a pivotal position in democracy. Parliament is not only the supreme legislative body but also a deliberative and representative body. It represents the sovereign will of the people and articulates their concerns through various procedural devices on the floor of the House for redressal of grievances. It has a multi-functional role in modern day governance. Its responsibilities have increased manifold due to the unprecedented growth and expansion in governmental activities. The rising expectations of the people and their changing needs, demand appropriate response from Parliament by way of passing new legislations and scrutinising governmental policies and programmes for promoting the welfare of the people. The legislative and oversight role of the Parliament has become more complex and diversified. As a result, Parliaments, all over the world, are faced with tremendous challenges to carry out their legislative, financial and other business within the time at their disposal. Considering the heavy demand on parliamentary time, Parliaments in many countries have devised rules and procedures, which ensure prudent use of time available for transacting legislative business.

2. Planning Chamber business and its management within the stipulated time involves a lot of hard work, dedication and coordination among those who are closely involved with the functioning of the House, be it Presiding Officer, Leader of the House, Leader of the Opposition, the Minister of Parliamentary Affairs, Whips of Government and Opposition parties, etc. In a parliamentary form of Government, since the executive forms an integral part of Parliament and is collectively responsible to the latter, coordination and consensus among these key parliamentary functionaries assumes special significance for organising the Parliamentary business through formal or informal channels.

3. Our Constitution provides that each House of Parliament has the power to make rules for regulating its procedure and conduct of its business. Both Houses of Parliament have devised similar rules of procedure for conduct of their business with certain variations as per the constitutional role of each House. Our Parliament has kept pace with the changing times and the demands for faster development and good governance. It has framed rules and procedures and evolved conventions and customs to enable Members to raise issues of public importance freely and effectively within the stipulated time, while upholding the high standards of parliamentary conduct. The significance of informal channels in decision making and time-tabling in the context of planning Chamber business has been well recognised for the efficient management of precious parliamentary time which holds the key to promoting effective functioning of the House. This process involves dynamic interplay of the roles of the key parliamentary functionaries to keep the deliberations in the House on the right track.

Parliamentary Business4. There are two broad categories of business which is transacted by the

Parliament-the Government Business and the Private Members’ Business. The Government business constitutes the major portion of the business before Parliament. Planning of the Government business, therefore, assumes great significance and it becomes the responsibility of the

35


Government of the day to ensure that the parliamentary time for transacting the Government business is wisely and effectively utilised. The Rules of Procedure and Conduct of Business in Rajya Sabha and Lok Sabha also provide that on days allotted for transaction of Government business, that business shall have precedence and it shall be arranged in such order as the Presiding Officers of both the Houses may determine, in consultation with the Leader of the respective Houses. The responsibility of planning and coordinating Government business has been entrusted to the Ministry of Parliamentary Affairs which works under the directions of the Cabinet Committee on Parliamentary Affairs, while discharging this responsibility. Except the Question Hour everyday and two-and-a-half hours on Fridays, almost the entire time of Parliament during the session is at the disposal of the Government for transacting Government business. The Government, however, agrees to provide time for consideration of issues of urgent public importance as demanded by the Members from time to time and recommended by the Business Advisory Committee of the two Houses whenever required. Such items of business include Zero Hour Submissions, Calling Attention, Motion of Thanks on the President’s Address, Short Duration Discussion, Special Mentions, Half-an-Hour Discussion, etc.

5. According to the constitutional scheme, the President, being the Head of the Executive, summons the Indian Parliament to transact such matters as are brought before it by the Government and prorogues it after the transaction of the scheduled business. As the session of Parliament is convened mainly to transact the Government business, it is the prerogative of the Government to decide the date of its commencement and duration. The task of fixation of dates of summoning and prorogation of the two Houses of Parliament is assigned to the Ministry of Parliamentary Affairs under the Government of India (Allocation of Business) Rules made by the President under article 77(3) of the Constitution. Before the commencement of the session of Parliament, the Ministry of Parliamentary Affairs gets the legislative and non-legislative proposals from all Ministries of the Government of India for consideration during the ensuing session of Parliament. It makes an estimation of the approximate time span of the session by taking into account the volume of Government business to be transacted and the debates and discussion likely to be initiated by Members on a wide spectrum of issues. The Secretary, Ministry of Parliamentary Affairs accordingly holds a meeting with the Secretary, Legislative Department, Ministry of Law to ascertain the ‘legislative readiness’ in respect of various Bills proposed by various Ministries/Departments for the ensuing session of Parliament. The Minister of Parliamentary Affairs then convenes a meeting of Secretaries and other senior officers of the Ministries and Departments inter alia to prioritise legislative business, based on the readiness of proposals available and to impress upon them the necessity of giving priority to the finalisation of legislative proposals and other items of Government business. The Minister of Parliamentary Affairs, subsequently takes review meetings with Secretary/senior officers of his Ministry, as and when necessary, before commencement of the session, and on an almost daily basis during the session period, and gives such directions, as may be necessary, for expeditious and smooth disposal of pending and new Government legislative and other business in the two Houses. After making

36


proper assessment of the Government business, a calendar of Government business is tentatively drawn up for each session, which is made available to both Rajya Sabha and Lok Sabha Secretariats for circulation amongst Members of Parliament to enable them to have a broad idea about the Bills and other subjects that might come up during the session and to prepare themselves for participation in debates on such matters.

6. Intimation regarding date of commencement of a session and its duration is received from the Government through the Ministry of Parliamentary Affairs. Based on these dates, the Legislative Section of the Rajya Sabha Secretariat prepares a provisional Calendar of sittings showing Government and Private Members’ Business (Bills and Resolutions) to be taken up on each day of the sitting. Likewise, the Question Branch also prepares a question calendar showing allotment of days for answering questions by the Ministries/Departments and a question chart showing the dates for answering questions and the last date of receiving notices of questions pertaining to various Ministries/Departments. Besides, a comprehensive Bulletin Part-II is also issued through which the Members are informed, inter alia, about date and time of sittings, date and time of ballot for Private Members’ Bills, Resolutions and notices of questions and also the procedure regarding submission of various notices etc. Detailed information on the procedure relating to Questions is also given in the Bulletin. The Provisional Calendar, Chart showing dates of answering questions and the last date of receiving notices of questions pertaining to various Ministries/Departments are issued to Members, along with Summons, for their information.

7. In order to give Members advance information of the Government business to be transacted by both Houses of Parliament, the Minister/Minister of State of Parliamentary Affairs makes a statement in the Rajya Sabha and the Lok Sabha every week regarding the Government business to be taken up in the succeeding week. Besides, the progress of business is constantly and closely monitored so that adjustments, if needed, could be made at short notice. In actual practice, such adjustments are required to be made on a day to day basis. For this purpose, the Ministry of Parliamentary Affairs supplies the order of Government business to the Secretariats of both Houses for inclusion in the List of Business.

Business Advisory Committee8. The role of Business Advisory Committee in the matter of allocation of

time for the business to be transacted in the Rajya Sabha assumes critical importance. It is the nodal Committee, headed by the Chairman, Rajya Sabha. The leaders of all major parties are represented in this Committee which consists of 11 Members. However, in order to make the Committee as broad based as possible, so that its recommendations could be acceptable to all sections of the House, leaders of groups having a strength of five or more, which do not find representation in the Committee, are invited to attend its meetings as special invitees. The Leader of the House or Minister(s) in charge of Parliamentary Affairs are nominated as Members of the Committee. The Leader of the Opposition, if not already a Member of the Committee, is invited as a special invitee. The Committee allocates time for

37


the discussion of such Government legislative and other business as the Chairman, in consultation with the Leader of the House, may direct to refer to the Committee. The items of business to be transacted during Government time, particularly legislative proposals, are normally placed before the Business Advisory Committee for allocation of time. The suggestions made by the Government in that regard are considered by the Committee and the recommendations of the Committee are reported to the House by the Chair in the form of an announcement on the same day on which the sitting of the Committee is held or the next day. As per the well established practice, the announcement is treated as final and no formal motion in respect thereof is moved. The recommendations of the Committee, as announced in the House, are notified in Parliamentary Bulletin Part-II for the information of the Members of the House. As regards the transaction of the Private Members Business, unless the Chairman otherwise directs, not less than two and a half hours of sitting on Friday is allotted for the purpose.

9. While considering the allocation of time to various items of business, the Committee takes into account such factors as the volume and significance of the Bill, the interest of Members in a subject, the time taken on similar matters in the past or in the other House, the need and urgency of a measure to be disposed or discussed expeditiously or otherwise and the total time at the disposal of the House. No change in the allocation of time shall be made, except by the Chairman, who may make such variation if he is satisfied, after taking the sense of the House, that there is a general agreement for such change.

Management of Government Business – Role of Minister(s) of Parliament Affairs

10. Management of Government business demands a lot of skill and dexterity on the part of the Minister of Parliamentary Affairs. As the Chief Whip of the party in power, he must ensure the attendance of Members of his party as also of the supporting parties, if any. The role of the Government whip has assumed critical importance in the context of the coalition government, which has emerged a distinct feature of our parliamentary system of government in recent times. The duties of the Government Chief Whip are onerous as he has to be in close and constant contact with the Presiding Officers, the Leader of the House, the Leader of the Opposition, Chief Whips and Whips of various parties and groups and the Members. He has to constantly feel the pulse of the House and apprise the Leader of the House about the unfolding situation in the House.

11. The Minister of Parliamentary Affairs, as the Chief Whip of the Government, is assisted by the Ministers of State, drawn from both the Houses, in discharging his functions. In the Rajya Sabha, the Minister of State in the Ministry of Parliamentary Affairs discharges the functions of the Government Whip. His main responsibilities include: to decide about the spacing of Parliament Session, adjust the sessional programme between the two Houses, finalise the Government Business in consultation with the Ministers of the Government of India, ensure that the Government legislative, non-legislative and financial business is transacted in accordance

38


with the planned schedule, announce weekly Government business, send notices to Members (i.e. the Whip) indicating the urgency and importance of the business, prepare roster of duty to ensure presence of some Ministers in the House to attend to important work in the Parliament, assist Members by providing them general guidance, information and material, provide list of speakers who would speak on Bills and other business in the House to enable the Chair to call the Members to speak, suggest names of Members for appointment on various parliamentary committees and other bodies or for inclusion in various parliamentary delegations, attend meetings of the Business Advisory Committee for discussion and allotment of time for various items of the Government business etc. The day-to-day functioning of Parliament involves close coordination between the Whips of different parties to ensure that the Government business gets through. A large part of these interactions are informal in nature.

12. The principal task of the Government Chief Whip is the arrangement of Government business in the House. He ensures that in spite of the activities of the Opposition, by the end of the session, Parliament has passed all the legislations and completed all other business which the Government has planned for that period. Cooperation among the parties assumes importance to ensure that opposition parties are given a reasonable chance to ventilate the grievances of the people, and the Government a reasonable opportunity to get its legislations passed in the House. The day-to-day working arrangements and compromises are made through what are called the ‘usual channels’, a parliamentary phrase which covers the close and informal working relationships between the Whips of different parties.

Role of Whips of other Parties13. In the parliamentary form of government, whips of various political

parties are the vital links of the internal organisation of parties inside the legislatures. The efficient and smooth functioning of legislatures depends, to a considerable extent, on the office of the Whip. They are truly the managers of parties within the legislatures. Each party has a whip or a number of whips, depending upon its numerical strength in the House. Under the Leaders and Chief Whips of Recognized Parties and Groups in Parliament (Facilities) Act, 1998 in respect of Council of States, ‘Recognised Party’ means every party which has a strength of not less than twenty five Members and ‘Recognised Group’ means, every party which has a strength of not less than fifteen Members. Whips of the opposition parties play an important role by keeping their Members informed about important developments relating to the business of the House and ensuring the presence and participation of Members of their respective parties in the House, especially during important discussions and voting. They play an equally important role in maintaining the standard of debates in the Parliament. They also interact with the Presiding Officers and the Secretariats of both Houses on behalf of their parties and Members to ensure efficient coordination vis a vis the complex requirements of parliamentary procedures, practices and conventions. It may be worthwhile to mention that a Member who votes or abstains from voting, contrary to

39


the Whip of the party, runs the risk of losing his seat in the House under the Constitution (Fifty-second Amendment) Act, 1985, popularly known as Anti-Defection Act.

All India Whips’ Conference14. Given the important role of the whips in the planning and conduct of

parliamentary business for ensuring smooth functioning of the Parliament and State Legislatures, the idea of organising an All India Whips’ Conference was conceived to provide the whips an appropriate forum for periodical meetings and mutual exchange of views on issues of parliamentary significance. The first All India Whips’ Conference was held in September 1952 and 15 Conferences have been held so far. The object of convening the Conference was to establish a suitable link amongst the Whips who are concerned with the practical working of the legislatures, to discuss matters of common concern and evolve standards to strengthen the institutions of parliamentary democracy. The Ministry of Parliamentary Affairs organises this Conference, which usually makes a number of recommendations for smooth and efficient working of Parliament and the State Legislatures in the light of the experience gained by the Whips.

15. It may be worthwhile to mention the recommendations made by the 13th All India Whips Conference held in 2005 in the context of the management of the parliamentary business and the consultation between Government and Leaders/Chief Whips. The Conference inter alia emphasised the need for regular consultation between Government, leaders and whips of the opposition parties for the smooth functioning of the legislatures. To strengthen democracy and democratic values, the Conference felt that all concerned should take active steps to promote greater interaction between the Government and chief whips of all parties. Greater understanding can develop if meetings between the Minister of Parliamentary Affairs/Government Chief Whips and Chief Whips of different parties are held at least on alternative days during the session and at least once during every inter-session period. An occasional informal meeting with the Prime Minister/Chief Minister will also be immensely beneficial to foster greater mutual understanding. It further emphasised the need for a well planned and coordinated effort to deal with the volume and complexity of legislative and other business in Parliament and State Legislatures so that valuable time of the House is well utilised. The Conference felt that notwithstanding any difference amongst the various political parties on an issue, it is in the interest of all that the legislative and other business in the House is transacted smoothly.

Leader of the House16. The Leader of the House is an important parliamentary functionary

and exercises direct influence on the course of parliamentary business. The arrangement of the Government business is the ultimate responsibility of the Leader of the House. However, in actual practice, subject to his approval, the details regarding the Government business are worked out by the Minister of Parliamentary Affairs, who is the Chief Whip of the Government as stated earlier. As per the Rules of Procedure and Conduct of

40


Business in Rajya Sabha, the Leader of the House means the Prime Minister, if he is a Member of the House, or a Minister who is a Member of the House and is nominated by the Prime Minister to function as Leader of the House.

17. The Leader of the House occupies the first seat in the Chamber at the right side of the Chair. He is available for consultation to the Presiding Officer. Under the rules, he is consulted by the Chairman in regard to the arrangement of Government business in the House; allotment of days or allocation of time for discussion of the matters referred to in the President’s Address; transaction of private members’ business on any day other than Friday, which is normally fixed for private members’ business; short duration discussions; consideration and return of a Money Bill; discussion on no-day-yet-named motions etc. Besides, Leader of the House is also informally consulted by the Chairman in the matter of adjournment or otherwise of the House for the day in the event of death of an outstanding personality, national leader or international dignitary. As the Leader of the House performs all encompassing role in the functioning of the House, including planning of the business of the House, he is held in high esteem by the entire House.

Leader of the Opposition18. In parliamentary democracy, the role of the opposition assumes

importance in excoriating the Government for its failures and lapses. In fact, the Government and the opposition are based on the covenant whereby the minority agrees that the majority must govern, and the majority agrees that the minority should criticise. The Government has the legitimate right to formulate policies and propose legislative business, including the scheduling of Parliamentary session. The opposition discharges its responsibility of constructive criticism by demanding debates and discussion on important issues. There is thus a popular saying that while the Government can have its way, the opposition should be allowed to have its say. The task of the Leader of the Opposition may, therefore, not be as onerous as that of the Leader of the House, but it is nonetheless of paramount importance. He, among other things, watches for encroachments on the rights of minorities and demands debates on the issues when the Government of the day avoids the parliamentary scrutiny. In India, the Leaders of the Opposition in the Rajya Sabha and the Lok Sabha are accorded statutory recognition under the Salary and Allowances of Leaders of Opposition in Parliament Act, 1977.

Private Members Business19. Rules of Procedure and Conduct of Business in the Rajya Sabha and

the Lok Sabha afford opportunities to Members (who are not Ministers) to raise issues of urgent public importance and ventilate the grievances of the people through various procedural devices like Calling Attention, Short Duration Discussion, Special Mentions, No-day-yet-Named Motions, Half-an-Hour Discussion etc. Besides, the Private Members’ Bills and Resolutions are taken up alternatively for two-and-a-half hours, normally on Fridays. The Cabinet Committee on Parliamentary Affairs determines the Government’s stand on the Private Members’ Bills and Resolutions listed and put down for consideration of the two Houses of Parliament. In its meetings, the

41


Committee decides whether the Bills & Resolutions need to be opposed or the Members concerned be requested to withdraw the Bills/Resolutions. In the Lok Sabha, there is Committee on Private Members’ Bills and Resolutions, which examines and classifies all Private Members’ Bills according to their nature, urgency and importance after they have been introduced and before they are taken up for consideration in the House. It recommends allotment of time to Private Members’ Bills and Resolutions. The report of the Committee is adopted in the House on the day allotted for Private Members’ Business on a motion moved by the Chairman or any other Member so authorised by him that the House do agree with the report. On adoption of the motion, the classification of Bills and allocation of time to Bills and resolutions become an order of the House.

20. Normally the business of the House is arranged in the same order in which it is furnished by the Ministry of Parliamentary Affairs. This order is not disturbed unless the Chairman is satisfied that there is sufficient ground for such variation or there is consensus in the House in the matter. An item of business may also be included in the List of Business if the leaders of parties informally agree. A List of Business or a revised List of Business containing items of Government as also Private Members Business is prepared and made available to each Member before the commencement of the sitting of the House on that day.

Role of Presiding Officers21. The Presiding Officer, being the custodian of the rights and privileges

of the Members and the House, has an important role to play in the effective management of time for transacting the business of the House. He interprets the rules, maintains the order and decorum of the House and keeps the Members and the deliberations of the House on track. The Chairman, Rajya Sabha, has the ultimate responsibility in managing the time of the House in such a manner that Members get adequate opportunity to raise matters of public importance in the limited time at the disposal of the House. The Chairman can direct Members, who persist with irrelevant submission or make tedious repetitions to discontinue their speech, so that the precious time of the House is effectively utilised for transacting the listed business.

22. In the Rules of Procedure and Conduct of Business in the Rajya Sabha, there are several provisions highlighting the role of the Chairman in regulating the business of the House so that the parliamentary time could be effectively managed. From time to time, rulings and observations have been made by the Chairman giving proper directions for conducting the business of the House. In fact, the Chairman has the authority to schedule the business of the House in order to deal with the emerging situations and thereby ensure better time management in the House. For instance, the Chairman, having regard to the state of business, can direct the days of sittings of the Council of States which concludes at such hour as he may direct.

Regulating Zero Hour Submissions: Matters Raised with Permission of the Chair

42


23. While there are several formal parliamentary devices for raising matters of public interest, Members, however, wish to raise informally matters of urgent public importance in the House after the Question Hour. This time has been colloquially termed as `Zero Hour’. As such, there is no procedure prescribed in the Rules of Procedure and Conduct of Business in the Rajya Sabha to regulate the Zero Hour submissions. However, in order to productively utilise the scarce parliamentary time as also to afford opportunity to a large number of Members to give expression to public concerns, a need was felt, from time to time, to regulate the Zero Hour submissions. Several initiatives had been taken by successive Chairmen in the past to put in place procedures acceptable to all sections of the House. These submissions have come to be known as “Matters Raised with Permission of the Chair”.

24. As per the existing procedure, a Member who wishes to raise a matter of urgent public importance on a particular day, should give notice of his or her intention to the Chairman latest by 10 a.m. on that day and should indicate in the notice a synopsis of the matter that he or she wishes to raise, justifying therein its urgency and importance. The Chairman, on examination and consideration of all such notices, may admit them to be raised as ‘Matters Raised with Permission’; these matters will be raised after the questions and laying of papers, if any, on the Table and before any other item in the List of Business is taken up. For notices admitted by the Chairman, the concerned Member would be given three minutes to raise the matter in brief. Further, at the end of this period of 3 minutes assigned for making the submission and shown on the Electronic Display Board as a count-down manner, the mike is cut off. Not more than one submission as ‘matter raised with permission’ shall be permitted on one subject. No Member shall be allowed to make more than one submission as ‘matter raised with permission’ in a week. As decided in the Leaders’ meeting taken by the Chairman on 11 March, 2008, not more than ten matters would be permitted to be raised with permission on a day.

25. In order to optimise the output of the Question Hour, and at the same time allow Members regular opportunity to mention matters of urgent concern with the permission of the Chair, the Chairman, Rajya Sabha, directed in March 2011 during the Budget Session that such matters would be raised at 11.00 a.m. It was decided to shift the Question Hour, on an experimental basis, to the first hour after lunch. However, it was subsequently decided by the Chairman, in consultation with the leaders of the parties, that the Question Hour would be restored to its original timing from 11.00 a.m. to 12.00 noon from the 1st August 2011 onwards.

Meeting of the Presiding Officers with Leaders of Parties26. Multi-party system has become a regular feature of the composition

of both the Houses of Indian Parliament. At present, as many as thirty-eight parties are represented in the Lok Sabha and twenty-seven in the Rajya Sabha. Every party, irrespective of its numerical strength, demands adequate time for participation in parliamentary deliberations. However, in actual practice, while the bigger parties get most of the time allocated to an item of business, smaller parties and independents have to be content with lesser time in proportion to their strength in the House. Therefore, given the

43


large number of political parties, allocating the available time equitably is certainly not an easy task for the Presiding Officer. Similarly, parliamentary deliberations are also obstructed when Members raise sensitive political issues even though they do not form part of the agreed agenda before the House. Disorderly scenes in the House leave the Presiding Officer with no choice but to adjourn the House, which not only leads to wastage of the valuable time of the House but also lowers the image of parliamentary institutions as well as legislators in public estimation. To address this problem, there is a practice of the Presiding Officer calling a meeting of the Leaders of Parties in the House, on the eve of every session to discuss matters likely to be raised by Members during the Session. It provides a forum for informal discussions between the Leaders and the Government on the issues agitating the Members and which they are most likely to raise in the House. It helps in better management of the business of the House.

27. Besides, the Chairman, Rajya Sabha convenes, every morning before the sitting of the House, a meeting of Leaders of Parties to discuss the listed business of the House as well as the matters likely to be raised by the Members them in the House. Such meetings help the Chairman in understanding the mood of the House and determine the priority of matters to be raised. It saves the precious time that would have been wasted if those matters are raised unexpectedly instantly on the floor of the House.

Presiding Officers Conference28. The issues relating to the functioning of the Parliament and State

Legislatures, including the planning and management of the business of the House, are periodically discussed in the Conference of the Presiding Officers of Legislative Bodies in India held annually. The Conference has emphasised the need for greater coordination among the Presiding Officers, the Leaders of the Houses and Leaders of the Opposition, and proper regulation of the Zero Hour to raise only very serious and urgent issues of public importance. It has also held that there should be more time available for non-Government business and two days in a week should be allotted for Private Members Business. Taking note of the reduction in the number of sittings of the Parliament and State Legislatures and frequent disruptions, which derail the scheduled business, resulting in loss of the precious time of the House, the Conference has emphasised that smaller States should have at least sixty sittings in a year and larger States as well the Rajya Sabha and the Lok Sabha 100 sittings in a year. These sittings should also be spelt out in terms of an organised calendar, as far as practicable, each House deciding its own timings according to local conditions.

29. Some of the suggestions given by the Vice-President of India and the Chairman, Rajya Sabha, to deal with the situation caused due to the wilful obstruction of the proceedings of the House at the Fourteenth All India Whips Conference held at Mumbai in February 2008, deserve serious consideration. He said that if time is lost due to disruptions it should be compensated for, the same day, by sitting beyond normal hours. The Chair should take this up with the whips, on a daily basis, incidents of violations of behavioral norms by Members. He further said that the deliberative role of Parliament could be restored by increasing the number of its sittings per

44


annum to about 130, in lines with the of US Congress, which remains in Session for 150 days in a year, on an average.

Conclusion30. The role and responsibilities of legislatures in modern times have

increased enormously due to the growth and expansion of developmental and welfare initiatives of the Government. The legislative and oversight functions of the legislatures have assumed critical importance in promoting the welfare of the people. Considering the heavy demand on parliamentary time, planning, organising and managing the parliamentary business has become a challenging task for the key parliamentary functionaries. Efficient time management has, therefore, emerged as the key to promoting efficient functioning of the legislatures. In this context, the significance of formal as well as informal channels, involving consultation, negotiations and agreements among the parliamentary functionaries, especially whips of the government and the opposition parties can have the desired effect on smooth functioning of the legislatures. Government business being the main component of the parliamentary business, the responsibilities of the Leader of the House and the Minister(s) of Parliamentary Affairs, in planning the Government legislative agenda setting it in motion in the Parliament are enormous, which require a great deal of skill and dexterity on their part. In close coordination with the Presiding Officers as well as the floor leaders of the opposition parties, the Government tries to ensure smooth passage of its legislative and other business in the scheduled duration of parliament session. This aspect assumes more importance in the context of the reduction in the number of sittings of the legislature to transact parliamentary business. Given the volume and complexity of legislative and other business transacted in the legislatures, the need for a well planned and coordinated efforts can hardly be over emphasised. Better planning and management of the business of the legislatures is, therefore, the outcome of greater coordination amongst the Presiding Officers, the Leader of the House, the Leader of the Opposition and Chief Whips/Whips of the Parties in the House. It is also imperative for the Members to ensure that while participating in debates and discussions, they act with self-restrain and their conduct should not go contrary to the set procedures and established conventions of the House. The Code of Conduct also prescribes certain do’s and don’ts for the Members which inter alia include that Members must not do anything that brings disrepute to the Parliament and affects their credibility. This assumes significance when the legislatures face a critical challenge of declining public trust and confidence. The parliamentary time in planning and transacting the business of the House should be optimally utilised, which would go a long way in strengthening the regime of legislative oversight of the executive.

31. Highlighting the role of Parliament in the successful functioning of democracy, the President of India, in her address to the nation on the eve of the 65th Independence Day, inter alia said, “Parliament represents people from all parts of our country and a broad spectrum of political thought. Its legislation is an outcome of collective thinking and application of minds. The different shades of opinion should be channelized through elected

45


representatives for the formulation of necessary legislation”. The President reminded that, “We have to preserve the democratic values of our country and, for this, healthy conventions of parliamentary procedures should be upheld”.”

Mr A. PAPAIOANNOU (Greece) described the workings of the bureau of his Parliament. Minutes were taken, but not published. There were very few leaks. Decisions were usually unanimous, although the usual requirement was for a three-fifths majority. Independent Members of Parliament were not represented, and in Greece, parties had to have at least fifteen elected Members to be validly constituted. Dissenters within political parties could also complain that their views were not taken into account. Usually, however, the system worked well. Private informal meetings were a good way of reaching agreement on contentious issues.

Mrs LUQUIENS (France) said that the French system was similar to that in Canada and Greece. There was a conference of Presidents, involving the Speaker, the Deputy Speakers, Committee chairs and leaders of political groups; in 2008, the system of allocating time had been changed from one dominated almost entirely by the government, to one more evenly divided between government and other business. In practice the system worked flexibly.

Mr NOMBRE (Burkina Faso) said that the system in his country was also similar to that described by France and Greece. The Government set the priorities through a letter sent by the Prime Minister to the Speaker, but the order in which business was taken was set by a conference of Speakers and Chairmen. Bills emanating from Parliament had to be sent to the Government for their views, and the Government could object.

Mr MANSURA (South Africa) said that his parliament was more formal than informal in its programming of business. This was because of close scrutiny by the public and media. There was a calendar for the coming year (although Mr Mansura hoped this might change into a five-year programme). There was a formal weekly meeting of a programming committee chaired by the Speaker; this was open to the public and media, who took great interest in it. There was a technical assessment by House staff of what legislation would be ready for consideration. This then went to a closed meeting of the chief whips’ forum, where all the bargaining took place. There was then a consensus presented at the formal meeting that took place each Thursday. The Speaker was consulted at every point.

Mr ALBA NAVARRO (Spain) had read that the one deciding the business of the House is its master. Now, the media were the masters of the House. Parliament in Spain was in practice very informal in its decision-

46


making processes. Standing Orders could be set aside if there was a consensus to do so. Informality brought problems, however, for parliamentary staff, and questions around who was entitled to attend informal meetings, and what public money could be spent on them.

Mr SOCRATOUS (Cyprus) said that in his Parliament, an informal body comprising the Speaker and party leaders met once a week to decide on the business to be taken. Ministers were sometimes invited to explain government bills. Some Members did not like having an informal body taking decisions of this kind.

Mr HAMILTON (Netherlands) said that there were twelve political parties in the two Houses of the States General. The Government had nothing to do with setting Parliament’s agenda. A polite letter to the Speaker was the only way of expediting government business. The Speaker of each House decided on the agenda for the plenary. A wise Speaker avoided fights and sought consensus. A college of elders met weekly, and was often consulted. It was for the relevant committee to decide if a bill was ready for consideration in the plenary.

Mr OLLARD (UK) said that in the UK, the Government set the parliamentary agenda, although in the House of Lords, this was largely through informal negotiation with other parties and individual Members. A principle of mutual benefit applied where governing parties thought that they themselves might soon be in opposition. But this principle was breaking apart in the House of Lords. Some parliamentary staff were seconded to work for the Government in the House of Lords to join up the dots. In a bicameral parliament, there was also a need for negotiation between the two Houses as to progress of business.

Mr SCHWAB (Switzerland) said that it was Parliament’s duty in his country to set its own pace for making progress in business. Government never intervened in the parliamentary programme, other than discreetly and diplomatically. There was no majority or opposition in Parliament, but rather a multi-party system with fluid coalitions of interest. Both Chambers had the same remit: all laws had to be passed by both. This made organising the agenda a more complex matter. Agreement between the two secretaries general was crucial to smooth progress of business. The two Speakers decided on their own authority which draft laws should begin in which Chamber. This was a finely tuned mechanism that would fall apart if one part were removed.

Mr PAPAIOANNOU (Greece) added to his earlier comments that while the Government was not formally represented in the process of decision-making on the parliamentary timetable, the majority of those involved in the process belonged to the party of Government. The Government would therefore normally get its way!

47


Dr AMRANI, President, said that his country, Algeria, was experiencing a phase of major political transition. Informal meetings were extremely important in this context, to give the Speaker a good sense of how political opinions were divided. It was not always the case that Speakers of the two Houses got on well, and this could cause difficulties. Allocation of speaking times was discussed at informal meetings of the co-ordination committee. He asked Mr Bosc if speaking times in the Canadian House of Commons were limited, and if so, how.

Mr BOSC (Canada) said that informal arrangements were by their nature extremely fragile until they were successful. In Canada they tended to depend on unanimous consent. A fine balance could be easily upset by a single Member, perhaps because he had not been given the opportunity to speak in a debate, or because his office was smaller than he wanted. There were many possible time limits in the Canadian House of Commons. Informal agreements were often aimed precisely at restricting speaking times to speed up the work of Parliament. He thanked members for their participation in a useful debate.

48


THE RATIONALE AND BACKGROUND CONDUCIVE TO THE ESTABLISHMENT OF THE

PARLIAMENTARY INSTITUTE OF CAMBODIA AND THE STRATEGIC DEVELOPMENT OF THE PARLIAMENTARY INSTITUTE OF CAMBODIA

—

OUM SarithSecretary General of the Senate (Cambodia)

“The purpose of The Parliamentary Institute of Cambodia (PIC) is to become a centre of excellence in parliamentary development, supporting and enhancing the capacity and improving the performance of the Cambodian parliament.

The current governance context in Cambodia is of one of a strong executive branch and a much weaker parliament. While the executive has been continuously strengthened through among others, international assistance, the Parliament has remained weak due to continued limited political understanding of its value and utility and inadequate technical and financial support available for its development.

Both the National Assembly and Senate’s Strategic Framework and Action Plan for Capacity Building of the Cambodian Parliament (2007) and the Strategic Framework and Activity Plan for Capacity Strengthening of Cambodian Senate (2007-2018) outline the need for and intention to establish a parliamentary institute/centre to support the legislature.

1.1 Governance Development

49


The Royal Government of Cambodia (RGC) is committed to a multi-party, participatory democratic system and views this as key to the attainment of the Cambodian Millennium Development Goals (CMDGs).

Since the first multi-party elections in 1993, there has been a gradual movement towards a society in which citizens participate more in matters of national importance and contribute in decision-making processes. Developments include:

The emergence of the communes as important decision-making mechanisms under the decentralisation and de-concentration reforms of the RGC;

Significant empowerment in the areas of gender, human rights and electoral reform;

The peaceful conduct of elections; Movement towards a multi-party culture; Increased general interest amongst citizens in political activities; More positive attitudes towards principles of transparency and

accountability; The formation of civil society organizations which can influence

democratic governance through stronger political awareness and monitoring of political and socio-economic trends.

Despite these achievements, there is need for considerable advancement in a number of essential areas:

The executive branch continues to dominate over other branches of the democratic system, including the Parliament. These branches remain weak, inexperienced and reticent in meeting their full mandates.

Overall awareness of democratic rights and responsibilities remains low among the population.

Weak public dialogue and demand for accountability by the media is a further constraint.

Better democratic political practices are emerging at local levels. The first commune council elections in 2003, and the subsequent elections of district and provincial councillors in 2009 have enabled the establishment of local democratic bodies, but public and civil society participation in decision-making remains limited. Problems include capacity constraints, fear of participation, limited institutional development, and insufficient access to information and resource scarcities.

Reducing poverty and meeting CMDG targets depends to a large degree on the ability of citizens and society to organize, voice their needs, increase pressure for policy change and monitor the government’s performance.

To summarize therefore, while progress has been made on the institutions and basic governance structures necessary for democratic development, there is a need for more clarity about the nature of democratic practices/behaviour and the institutions required which are suitable to the culture and state of socio-economic development in the country. Improved democratization processes have emerged, however this

50


progress has yet to be fully translated into stronger and more broad-based development practices and has not resulted in a more equitable distribution of the benefits of growth to the whole population. Developments such as these can only be expected to emerge in an environment where there is an ever-increasing understanding of democratic practices and rights, and in which citizens are afforded the opportunity to voice their needs and opinions.

Support for further progress in Cambodia’s democratic development is essential to strengthen and evolve key democratic institutions, and their structures at national and sub-national levels. Most important is the way in which these bodies encompass wider public participation in decision making, and hold decision-makers and service providers accountable for their actions. Progress in the building of such an environment requires long-term, continuous and consistent commitment.

1.2 The ParliamentOversight by strong democratic institutions, of which the parliament is

key, helps governments to achieve higher efficiency, better governance and less corruption, and lower fiscal deficits. Parliamentary development is also important to ensure the balance of power between the branches of a democratic system – the Executive, Legislative and Judiciary, which enables the mechanism of checks and balances essential to sustainable economic growth and development.

The Parliament of Cambodia has made progress over the past decade in fulfilling its democratic mandate. The capacity of Parliament to review and adopt laws prepared by the Government has been enhanced; MPs and Senators are more responsive to the needs of their constituents; and the General Secretariats of both houses have made progress in developing professional support services to parliamentarians.

However, this progress is still at an early stage, and development of processes to increase institutional strength and effectiveness take considerable time and continuous effort. Sufficient time and resources are needed to consolidate these gains and to make progress in democratizing traditional customs and mindsets, to govern differently and more effectively and to improve performance.

Parliament needs to be given more political space to develop as a legitimate and effective bridge between citizens and the government, and as an institution that can contribute to the substance of government alongside its role in holding other elements of government to account.

Parliamentarians acknowledge that they need to further improve their capacity and capability to play their roles effectively. The increasing political will for Parliament to fully develop and play its constitutional role was recently evidenced by Senate leadership’s decision to undergo an internationally accepted self-evaluation process designed by the Inter-Parliamentary Union. This self-evaluation concluded that there was a need for extensive changes to working processes and working procedures. Amongst the main areas of endeavour and key issues identified were the following:

51


Improving the legislative function of parliamentarians: Develop a sustainable mechanism that provides subject-matter expertise

to the technical commissions and all parliamentarians, allowing them to provide input into laws and policies more effectively.

Improving the representation function of parliamentarians: Further develop public consultation and outreach practices and

strengthen the Department for Collective Territory and Regions of the Senate (DoCTR) and the Department of Provincial Constitutional Offices of the National Assembly (DoPCO) to help parliamentarians have a comprehensive understanding of issues facing Cambodian citizens and allow them to respond to these issues.

Improving the oversight function of parliamentarians: Generate an expert hearing mechanism that permits the Parliament to

oversee the actions of the government and the implementation of legislation in a constructive manner, and oversee the implementation of projects funded by donors and implemented by the executive.

Balancing gender participation: Adopt an approach by which gender issues are more fully understood and

integrated into government development, legislation and public budgets.

Based upon the findings of this self-evaluation, the Senate leadership requested that an agency be created to assist Parliament in addressing these important changes. Establishment of the Parliamentary Institute of Cambodia (PIC) is one of a direct response to this request.

1.3 Environment Supporting the Establishment of a Parliamentary Support Institution

A scan of the internal and external environments conducive to the establishment of the PIC emphasized the following points:

External EnvironmentAgreement of Need and Demonstration of WillThere is general agreement amongst all political parties and within the

Parliament itself that there is a pressing need for a neutral body with the responsibility to support and increase the ability of parliament to develop and fulfill its democratic mandate.

Democratic Progress While all concerned agree that a fully functioning parliamentary

democracy will take many years to evolve, progress is discernible and there are increasing possibilities to make progress on several fronts. In particular, there is scope to support aspects of research and skills training to support parliamentarians in the performance of their functions relating to parliamentary oversight, consideration of legislation within parliamentary commissions and increasing civil society input into decision-making on national issues, such as the decentralization process.

52


Government Resources The Government and Parliament have agreed to provide some of the

support required for the establishment and operation of PIC. Adherence to the Paris PrinciplesThe Paris Principles on aid effectiveness have fostered a new

development architecture that offers additional opportunities for the effective development of PIC. Parliament’s oversight mandate provides an institutional mechanism for implementing and overseeing measures consistent with the Paris Principles in terms of donor supported-programs and projects, such as:

Open development planning; Increased governmental financial management capabilities; Better monitoring and evaluation of development results; Emphasis on human rights and reducing corruption.

Internal EnvironmentGovernment Approval The government has formally approved the establishment of PIC as a

non-governmental organization. This approval gives PIC the mandate to contribute to strengthen and support the Parliament in pursuing the specific objectives summarized above.

Governance and Management StructurePIC now has a governing board, is constituting an advisory committee and

is recruiting additional staff.Corporate Operations and CultureAs a result of the successful 10-year operation of the Cambodia-Canada

Legislative Support Project (CCLSP), PIC has inherited a strong corporate culture and functioning organizational structure. Although the establishment of a new parliamentary support institution will differ in both form and substance from CCLSP, the institutional lessons and basic organisational elements of CCLSP will nevertheless help to ensure that PIC functions effectively through its initial stages of operation.

Successful DeliveryPIC will inherit the legacy of CCLSP, which established a reputation for

successful delivery of parliamentary support. In addition to an established record of partnership-building with the parliament, PIC will gain from the high-quality and tested capacity-building tools, techniques and programs produced under CCLSP, which it can improve and build upon. Furthermore, it will inherit a library of training manuals and other publications that contextualised for the Cambodian parliament, and readily available for use.

The external and internal environments have clearly laid a firm foundation for PIC’s operation, providing many strong reasons why the PIC should be established and which point towards its effective operation. However, the main stumbling block is that its continuity and sustainability will remain dependant on external donor support at this stage of its development.

53


2. The Strategic Development of the Parliamentary Institute Centre of Cambodia (PIC)

The purpose of PIC is to become a centre of parliamentary development, supporting and enhancing the capacity and improving the performance of the Cambodian Parliament. It will provide expertise, organize workshops, seminars and training, and assist in the development of management and procedural tools while incorporating best practice and lessons learned. All productions will be contextualised and produced in understandable language in accordance with the needs of the Parliament.

PIC has a strong precedent of success, being drawn from the experience of the 10-year Cambodia-Canada Legislative Support Project (CCLSP), funded by the Canadian International Development Agency (CIDA). Essentially, the formation of this new Cambodian agency represents an important ‘sustainability outcome’ of CCLSP: the creation of a permanent independent body to continue support for parliamentary democracy in Cambodia.

2.1 VISION, MISSION AND CORE VALUESThe vision of PIC is to become a national leader and regional partner in

democratic development, specializing in the strengthening of representative institutions and parliamentary leadership.

The mission of PIC is to assist legislatures in Cambodia and in the wider region in building their capacity as effective democratic institutions; promoting parliamentary credibility and accountability, and assisting legislators in realizing their potential for democratic leadership.

The core values of PIC are: credibility, accountability, participation, openness, integrity, non-discrimination and transparency.

2.2 INSTITUTIONAL AND PROGRAM STRATEGIESA - Institutional Strategy:In terms of institutional development, PIC represents the next step in

evolving CCLSP into a permanent facility serving the capacity development, information and research needs of parliament, thus transforming a 10-year program (the CCLSP) into a sustained and essential component of democratic government in Cambodia.

Conceptually, PIC represents a common component of democratic governmental structures; a publicly financed, non-partisan agency, that remains independent from the civil service, judiciary and executive arms of government, yet meets the research, analysis and development needs of each of these.

It is very important to bear in mind that in the first five-year period the transition from programme to sustainable agency will be in its initial stage. The entire transformation process will take much longer, and can only progress in step with the evolution of democratic governance in the country. Furthermore, both the institutional and programming initiatives of PIC must

54


be very carefully calibrated, balanced and managed so as to foster yet not exceed the rate at which the government is democratizing. This imperative, to progress step-by-step and with careful deliberation, necessitates the following strategies:

Engage all political parties To be broadly effective, PIC must be, and be seen to be, politically

neutral. It must engage and retain the support of all political parties. The development of political parties is important for a competitive democratic system to take root. This was a critical foundation and platform used by CCLSP to ensure program credibility, demonstrating that a non-partisan approach to parliamentary strengthening is crucial for success. Maintaining equity in strengthening parties across the political spectrum is essential in building mutual respect and the concept of ‘noble opposition’. It is key to reducing the levels of animosity, rancour and potentially violent radicalism that can occur in maturing parliaments.

Internally, build the capacity of the PIC to serve the needs of parliament Although CCLSP provided the precedent for PIC, building PIC as a new

institution represents a new challenge, and is a cultural and organizational evolution from the roots of CCLSP. During the initial years, the management and operational aspect of the agency must be continually assessed and adjusted to meet the changing issues and context for the Cambodian parliament.

An important part of the institution-building challenge will be assembling and training PIC staff. It has been argued that insufficient trained and experienced individuals are available in Cambodia. However, the hiring experience of CDRI has disproved this argument. If PIC can offer competitive compensation and benefits, it will be able to hire suitable and experienced professionals locally. However, upon hiring appropriate staff members, they must also be further trained/oriented/sensitized to work effectively on parliamentary-centred research, information gathering and analysis, as well as training processes suitable for the effective delivery of PIC’s parliamentary support programs.

B - Programming StrategiesProvide parliamentary staff training and capacity building. This support component seeks to increasingly professionalize the work of

the Parliament and its constituent bodies: elected and appointed members of members of parliament, secretariat staff, and commissions. In so doing, it ensures the foundation and structure - the expertise, research, information and procedures – upon which legislatures and their committees can deliberate and make informed decisions. It supports the most fundamental building blocks of parliament as an institution.

Reinforcing the parliamentary strengthening strategy will be courses, workshops, study missions, case studies, on-the-job mentoring/coaching and other hands-on methods. The aim is to produce a variety of learning experiences that will allow individuals and teams to increase their abilities, and applying these new capacities to real on-the-job situations. In addition,

55


and importantly, new approaches will allow parliamentarians and secretariat staff to observe role models and best practices and create professional links and networks with other legislatures.

Align with Parliament’s priority areas. As a service institution, PIC will be largely driven by Parliament’s

legislative agenda and national priorities. However, as noted below, because of resource constraints and political considerations PIC must select from the numerous government priorities and focus carefully on certain issues of relevance, so as to build and maintain its credibility within the environment of Cambodia’s maturing parliamentary democracy.

56


Target key commissions and themes. In this initial phase of development, PIC will be constrained not only by

the political space available to deal with selected issues, but also the human and monetary resources available to create, build and maintain a strong agency.

To this end PIC will focus primarily on high priority and regulatory commissions of parliament; primarily those commissions involved with the budget, decentralization and de-concentration, poverty reduction strategies and government accountability and regulatory mechanisms. The focus on these commissions may change according to the needs of the parliament. Also, since opposition party members do not sit on the commissions, they will be actively invited/recruited to participate in PIC activities with targeted commissions.

Select the most effective entry points and approaches. Initially, PIC cannot be expected to work on all mandated parliamentary

functions. It must select those functions which the government sanctions, and which PIC management judges to be integral to the institution’s continued neutrality. It is also essential that PIC focus its resources on those activities that can assist parliamentary bodies with democratic development more broadly. Two important examples drawn from the experience of CCLSP are:

Decentralized Public Hearings - In terms of the work of the National Assembly and Senate sessions, it has been observed that there is little debate on legislation that is tabled by the Executive. Currently, legislation is ‘rubber-stamped’ by parliament. This is partially because of members’ reticence to publicly ‘engage’ the governing party due to the political context of the country. However, one of the most effective tools for soliciting opinion and discussing national issues, adding information and increasing understanding, is the holding of public hearings at local levels. In the regions, parliamentarians are accorded considerable respect. During these hearings, politicians of all denominations meet with civil society representatives and the public. Hearings are held openly at the provincial and commune levels and all political parties pay attention to their results. If they are held in timely and well-organized manner, these hearings can inform commission and executive decision-making. Consequently, the hearings can provide input into legislation presented to the parliament for approval. Increased numbers of public hearings, held more widely and effectively are an important ‘entry point’ in which PIC will play a significant organizational role.

Open Expert Hearings - These are special formal sessions designed to review various sectoral, technical and management issues put before the commissions. During these hearings, specialists/experts are called to present their (sometimes varied and opposing) understanding and opinions on specific issues. They are open hearings and can be attended by governing and opposition party members. Since only governing party members sit on the

57


commissions, Open Expert Hearings afford opposition parliamentarians and the public, the opportunity to become informed, and to form and express their positions on the key issues of the day. In addition to providing new information and perspectives, these meetings can be designed to inform the oversight functions of Parliament. PIC will play an important role in the organization and conduct of these hearings, in addition to recording and disseminating the results to interested parties. Again, owing to limited resources, PIC will focus attention on select priority commissions and the oversight themes/issues described above.

Both of these activities represent only incremental steps toward full parliamentary participation in the democratic process. However, during CCLSP it is claimed that they exerted influence on the improvement of economic planning, budgeting and accounting, the press and anti-corruption laws. As an established institution serving parliament, it is expected that PIC will further reinforce and improve on the effectiveness of these functions.

Employ a diverse team of experts/mentors. PIC will tap into local, regional and international sources of expertise.

Peer-to-peer learning will take place, for example through the use of former parliamentarians and senior parliamentary staff in program delivery.

Proactively identify and collaborate with local partners. Local partnerships fostered under CCLSP, including those with civil society

and international organizations, will be used to ensure the appropriateness of activities, to build a broad constituency of support for projects and the sustainability of results.

Coordinate with other related parliamentary development and governance projects.

To optimize linkages forged under CCLSP, efforts will be made to harmonize activities with new and traditional development partners, such as UNDP, to avoid duplication.

Promote knowledge sharing and dissemination. In harmony with the objectives of the Paris Declaration on Aid

Effectiveness, PIC will seek out and utilize the resources/material/research performed by others and translate it into a form and language accessible to parliamentarians and parliamentary staff. PIC will also periodically convene forums to disseminate tools and best practices with the development and governance community of practice, sharing knowledge and experience gained in project implementation.

C - MAIN PROGRAM OBJECTIVES (IF time permits)As noted earlier, PIC will program within three major categories of

objectives. To:

58


a - Strengthen PIC Institutionally Consolidate establishment of PIC with a governance structure that meets

international standards. This represents the primary objective of PIC in its first year of operation,

alongside securing funding for its continued successful operation. In the longer term, attention will focus on transformation of PIC into an effective public institution. An evaluation close to the end of the fifth year will inform the Board’s decision whether to continue PIC as an NGO or establish a more formal and structural linkage with the Parliament.

Consolidate the programs developed and experience gained from 10 years of CCLSP

This includes the operational procedures, training formats and manuals, and the available cadre of trainers and trained personnel: the tangible results of CCLSP. However, it must be recognized that the goal of PIC is to build a functioning arm of parliament as a sustainable institution, while at the same time delivering the next stage (post-CCLSP) of effective parliamentary support.

Build regional linkages. PIC will link to the community of practice in democratic and parliamentary

development to share the Cambodian experiences of ways in which to improve the quality of governance and the performance of parliamentary institutions in the region.

Increase capacities to leverage resources and learning through global partnership building.

PIC aims to build on linkages established under CCLSP and increase its capacity to partner effectively with donors, other international organizations and legislatures so as to better leverage resources and learning, and to promote collaboration in democratic development programming.

Work towards financial sustainability. PIC will work towards diversifying and stabilizing sources of funding,

combining core funding with project/program funding. Funding and resources for workshops and conferences will be diversified and sustainable as PIC develops a reputation for high quality learning products and services. PIC will seek funding sources from a variety of donors committed to improving governance and democratic development in Asia.

Capture aid effectiveness principles. It must be recognized that the establishment of the PIC and delivery of its

programs will strongly adhere to the Paris Principles of Aid Effectiveness, including:

o Promotion of increased and improved democratic governance.o Building Cambodian ownership of the country’s institutional

development and reforms.o Creation of a sustainable local democratic institution.o Increasing the cohort of specialists trained and able to serve the

county’s needs.

59


o Increasing funding stability though diversifying and blending local and multi- donor sources.

o Networking and harmonizing programs nationally, regionally and internationally in order to share knowledge and best practice.

b - Improve Legislation and ResearchPromote legislative capacity building and development. PIC will work to increase the capacity of Parliament to play its legislative,

representative and oversight functions. PIC will both advocate for and act as a proponent of legislative capacity building and development and will contribute to building subject-matter research on issues identified by parliamentary leadership, disseminating findings through workshops and seminars with parliamentarians, parliamentary staff and other stakeholders to share knowledge and expertise.

Increase the capacity of research units of parliament. In order to better support the Parliament, the capacity of parliamentary

staff will be improved, through the mentoring of research staff and institutionalization of public consultation practices. Research is critical in helping MPs and Senators more fully understand legislation, policy and issues affecting the country. At the present time, international assistance supplies funds for research bodies that are primarily used by the Executive, but there are no such provisions for bodies used by the parliament. Training, mentoring and study missions will take place to enable research staff to prepare briefings on matters of importance to the Cambodian parliament, and prepare papers on upcoming bills before the Parliament.

c - Increase Outreach Representation and OversightStrengthen links between citizens and legislature. There will be an emphasis on the creation of avenues for pluralistic and

participatory citizen involvement in democratic decision-making, and the formulation and implementation of laws. Parliamentarians’ role in consultation with the public will be developed through public hearings, training and field visits, allowing parliamentarians to obtain information from citizens to help make decisions in the public interest, and to inform citizens about government action.

Ensure local ownership and develop local sources of expertise and link to available global expertise.

PIC will act as a bridging organization between the legislative branch of government and civil society, and will use and expand existing ties with local experts and organizations to deliver seminars, workshops and training on priority areas identified by the parliament. As noted earlier, the research staff working/training at the PIC will help build and sustain local ownership and capacity for democratic development.

Strengthen gender networks amongst parliamentarians and incorporate gender analysis into activities.

60


There will be an emphasis on a holistic approach to gender issues, not only focusing on certain target programs, but more strategically through the gender mainstreaming of activities, events and training. There will be an emphasis on encouraging the participation of women in legislative development and policy research.

Conclusion:PIC seeks to improve the parliamentary aspect of governance in

Cambodia. To ensure credibility and buy-in, PIC will engage all political parties, pursuing a gender balance in all activities. It will collaborate with Civil Society Organizations (CSOs) in order to strengthening links between civil society and the Parliament. In accordance with the Paris Declaration on Aid Effectiveness, promotion of knowledge sharing and exchange and strategic partnerships will be pursued with other democratic and good governance initiatives in Cambodia, as well as the Mekong Sub-Region.

Thank you for your attention.”

Mr DE PELSEMAEKER (Belgium) asked why an institution had been set up outside Parliament to support Parliament itself.

Dr AMRANI, President, asked whether the strategic plan of the Cambodian Parliament was in operation. He also asked whether the Cambodian Parliament needed the Government’s approval to establish an institution of this kind, and why the Government was not supporting the funding of the institute, especially as it was intended to support other parliaments in the region.

Ms SURTEES (Australia) noted the existence of Parliamentary Studies Associations in her country. These included parliamentarians and former parliamentarians and parliamentary staff, and academics. They held discussions on a regular basis, which offered a training effect for those interested. She wondered if there was academic input into the Cambodian institute.

Mr DARARITH (Cambodia) (non-member) made clear to Mr de Pelsemaeker that the information made available by the Institute disseminated information along party lines in a way that would not be appropriate for a parliamentary administration. Over an eight-year period, a Cambodia-Canada legislative project had operated. Before setting up the institute, they had wanted to provide continuity. NGOs had to register with the Ministry of the Interior, which was why government approval was required. Funding of the Institute was supported by Sweden. Most international aid flowing to Cambodia had been made available to the

61


Executive, not the Parliament. Setting up the institute was an attempt to find a better balance. The institute was an attempt to reflect Cambodia’s very particular experience of moving to democracy.

Mr OUM Sarith (Cambodia) also stressed the particular context of the Cambodian situation. He wanted to encourage particular structures to evolve, of which the Institute, it was hoped, would play a part.

Mr DARARITH (Cambodia) said that the Institute was looking for partnership, and for ways of making others’ research accessible within Cambodia.

62


SUSPENSION OF A MEMBER FROM ATTENDING PROCEEDINGS OF THE HOUSE

—

Dr Vivek K. AGNIHOTRISecretary General of the Rajya Sabha (India)

“Discipline and decorum are of critical importance for smooth functioning of parliamentary democracy. Any departure or deviation from the established norms of conduct by the Members tends to erode the image and credibility of parliamentary institutions in the eyes of the people. While Members have to remain sensitive and responsive to the public opinions and interests, they are also expected to adhere to parliamentary etiquette and high standards of behaviour while conducting themselves inside and outside the legislature. Dissent is a democratic norm but it should be expressed within the limits prescribed by parliamentary procedures. It is only through constructive and persuasive advocacy of people’s demands and expectations that the purpose of Parliament in promoting the welfare of the people can be realised.

Article 105 of the Constitution of India inter alia provides the powers, privileges etc., including freedom of speech and vote of the Members inside the Parliament without subjecting them to scrutiny of courts, but subject to, among other things, to the rules and standing orders regulating the procedure of Parliament. The Rules of Procedure and Conduct of Business in the Council of States provide for penal provisions in case of disorderly conduct by the Members. However, these penal provisions are invoked by the Presiding Officer in exceptional circumstances only. Whenever these provisions have been used against an erring Member, it has been done with a great sense of anguish by the Presiding Officer, who is entrusted with the responsibility to regulate the proceedings of the House and to uphold its dignity.

63


Rule for Withdrawal of a MemberThe business of the House is governed not only by the Rules of Procedure

and Conduct of Business in the Council of States, but also the rulings as well as the directions from the Chair and conventions of the House. According to these rules, the Chairman has various options to deal with breaches of discipline and decorum in the House. There is a specific rule for the withdrawal of a Member. Thus, Rule 255 states, “The Chairman may direct any Member whose conduct is in his opinion grossly disorderly to withdraw immediately from the Council and any Member so ordered to withdraw shall do so forthwith and shall absent himself during the remainder of the day’s meeting”.

Naming of a Member by the ChairmanThe Rules also provide for suspension of a Member through ‘naming of a

Member’ by the Chairman. Thus Rule 256 provides: “(1) The Chairman may, if he deems it necessary, name a Member who

disregards the authority of the Chair or abuses the rules of the Council by persistently and willfully obstructing the business thereof.

(2) If a Member is so named by the Chairman, he shall forthwith put the question on a motion being made, no amendment, adjournment or debate being allowed, that the Member (naming him) be suspended from the service of the Council for a period not exceeding the remainder of the session:

Provided that the Council may, at any time, on a motion being made, resolve that such suspension be terminated.

(3) A Member suspended under this rule shall forthwith quit the precincts of the Council.”

There have been instances when Members, who persistently caused disruptions, have been suspended from attending the proceedings of the House. The first Member to be so suspended, on a motion moved by a Member, was Shri Godey Murahari, who was suspended after the Chairman named him on account of his ‘grossly disorderly’ conduct in the House. He was suspended for the remainder of the session on 3 September 1962. He was physically removed by the Marshal of the House.

Again, on 24 July 1974, the Deputy Chairman named Shri Raj Narain for purposely obstructing the proceedings of the House. The Minister of State in the Department of Parliamentary Affairs moved a motion for the suspension of the Member for the remainder of the session. The motion was adopted. When he refused to leave the House, the Marshal was called and the Member was removed. Thereafter, the House continued with its proceedings. At the end, the Minister in the Department of Parliamentary Affairs moved a motion that Shri Raj Narain may be suspended from the service of the House for the rest of the day and his suspension for the remainder of the session, as resolved earlier by the House, may be terminated. The motion was adopted and, on the next day, Shri Raj Narain was permitted to make a statement on the incident.

64


More recently, on a Motion moved by the Minister of State in the Ministry of Parliamentary Affairs and adopted by the House on 9 March 2010, seven Members were suspended from the service of the House for the remaining part of the 219th Session. However, on a motion moved by the Minister of Parliamentary Affairs and Water Resources, and adopted by the House on the 15 March 2010, the suspension of four of the Members from the service of the House was terminated. On two Motions moved subsequently by the Minister of State, the suspension of two other Members was terminated on 23 April and 28 April 2010, respectively. The suspension of remaining one Member was continued till the end of the Session.

There are occasions when the Chair categorically and fervently tells the concerned Member that if he/she does not mend his/her behaviour, Rule 255 or 256, as the case may be, would be invoked. For instance on 29 August, 2011, while conducting the proceedings of the House during the Question Hour, Hon’ble Chairman cautioned a Member, who was not paying heed to his repeated pleas to remain quiet, and warned him not to force the Chair to invoke Rule 255 (Withdrawal of Member).

Unethical Coduct Leading to SuspensionApart from acts of disorderly conduct within the precincts of the House

culminating in suspension, unethical conduct of a Member, that compromises the dignity of the Parliament outside the precincts of the House, can also invite suspension. The Code of Conduct for Members of Rajya Sabha inter alia provides that ‘Members are expected to maintain high standards of morality, dignity, decency and values in public life.’ Rule 297 of the Rules of Procedure states that, “Where it has been found that a Member has indulged in unethical behaviour or there is other misconduct or that the Member has contravened the code/rules, the Committee on Ethics may recommend the imposition of one or more of the sanctions, viz. censure, reprimand, suspension from the House for a specific period and any other sanction determined by the Committee to be appropriate”.

For instance, on 13 December 2005, the House adopted the motion for consideration of the recommendations of the Committee on Ethics as contained in its Fifth Report. As a consequence, Dr. Chhattrapal Singh Lodha was suspended from the House on grounds of having been caught on tape accepting money for asking questions, pending the presentation of the final report of the Committee. Making an announcement in the House on this issue, the then Chairman of Rajya Sabha called it a matter of great concern and anxiety for all Members. He announced:

“The Parliament is the pillar of dignity for the democracy. The dignity of democracy can remain safe and dignified only if the dignity of Parliament itself remains intact….The House will have to contemplate seriously on how to maintain the integrity and credibility of the Parliament and in case its dignity is harmed in any manner, how to protect it effectively.”

Rules of Suspension in the Lok Sabha

65


The norms of ethical behaviour for Members of the Lok Sabha have been adequately provided for in the Rules of Procedure and Conduct of Business in the Lok Sabha, Directions by the Speaker and in the conventions, which have evolved over the years on the basis of recommendations made by various Committees in their reports. This was stated by the Committee on Ethics of the Lok Sabha in its First Report adopted by the House on 16 May 2002. The Committee on Ethics also made certain recommendations of general ethical principles, which Members should abide, and which are not based on the Rules and Procedure, Directions of the Chair or conventions and precedents. For example, it recommended that Members must utilise their position to advance general well-being of the people. They should maintain high standards of morality, dignity, decency and values in public life.

The rule for withdrawal and suspension of Members for disrupting the House in the Lok Sabha is similar to the rule in the Rajya Sabha. Rule 373 of the Rules of Procedure and Conduct of Business in Lok Sabha states that the Speaker may direct any Member whose conduct is, in his opinion, grossly disorderly to withdraw immediately from the House, and any Member so ordered to withdraw shall do so forthwith and shall absent himself during the remainder of the day’s sitting. Under Rule 374, the Speaker may, if he deems it necessary, name a Member who disregards the authority of the Chair or abuses the rules of the House by persistently and willfully obstructing the business thereof. If a Member is so named by the Speaker, the Speaker shall, on a motion being made forthwith put the question that the Member (naming him) be suspended from the service of the House for a period not exceeding the remainder of the session. However, the House may, at any time, on a motion being made, resolve that such suspension should be terminated. The rule further states that a Member suspended under this rule shall forthwith withdraw from the precincts of the House.

There have been several instances when these rules have been invoked. Dr. Datta Samant was directed to withdraw from the House on 11 May 1988 for persistently interrupting the proceedings. Ajay Biswas was suspended from the service of the House for the remaining part of the Eighth Session of Eighth Lok Sabha on a motion moved by the Minister of Parliamentary Affairs on 29 July 1987 and adopted by the House. The suspension was revoked with immediate effect on 30 July 1987 on a motion moved by the Minister of Parliamentary Affairs and adopted by the House.

Automatic Suspension of a Member in the Lok SabhaUnlike in the Rajya Sabha, the Lok Sabha has a provision for the

automatic suspension of a Member for serious disorderly conduct or disruptions. Rule 374A, which was incorporated in 2001, states:

“(1) Notwithstanding anything contained in Rules 373 and 374, in the event of grave disorder occasioned by a Member coming into the well of the House or abusing the Rules of the House persistently and willfully obstructing its business by shouting slogans or otherwise, such Member shall, on being named by the Speaker, stand automatically suspended from

66


the service of the House for five consecutive sittings or the remainder of the session, whichever is less:

Provided that the House may, at any time, on a motion being made, resolve that such suspension be terminated.

(2) On the Speaker announcing the suspension under this Rule, the Member is immediately to withdraw from the precincts of the House.”

This Rule primarily aims at doing away with the requirement of moving a motion and its adoption for securing suspension of a Member from the service of the House. Under this Rule, merely the naming of the Member by the Speaker is enough to secure his suspension for five consecutive sittings or remainder of the session, whichever is less. However, this rule has not been invoked in the Lok Sabha so far.

Follow up Action on Suspension of MembersFollowing the suspension of a Member, there are certain consequences

which follow and remain in force during the period of suspension. The Member cannot enter the Chamber, the Inner Lobby and the Galleries of the Rajya Sabha. He stands suspended from the sittings of the Parliamentary Committees and fora of which he is a Member. Notices of meetings and tours to be held during the period of suspension are not to be issued to him. He cannot vote at elections to Committees or Bodies, which are held during the period of his suspension. No item is put down in the List of Business in the name of the suspended Member.

Further, no notice tabled by him is acceptable during the period of suspension. Notices tabled by a Member prior to his suspension are not admitted or included in the List of Business or Lists of Questions or Lists of Amendments in respect of Bills etc. If the list of Questions, incorporating the question(s) of the suspended Member has already been printed, the question(s) is/are stamped as ‘CANCELLED’ and the Ministry/Ministries concerned is/are informed accordingly. However, a suspended Member continues to receive salary but he is not entitled to the daily allowance for the period of his suspension, if suspended from the service of the House for the remainder of the Session. This is because the Member’s stay at the place of duty cannot be regarded as ‘residence on duty’ under section 2(d) of the Salary, Allowances and Pension of Members of Parliament Act, 1954. He is, however, entitled to daily allowance, if suspended for a specified period during a Session.

Follow-up Action in the Various Sections/Branches of the Secretariat

In order to ensure that the above mentioned provisions are enforced, various Sections/Branches of the Rajya Sabha Secretariat are obliged to take certain follow-up actions. The responsibilities of various concerned Section/Branch are briefly outlined in the following paragraphs.

Table Office

67


Immediately after a motion is moved and adopted in the House for suspension of a Member, the Table Office issues a circular informing all concerned about the suspension of the Member from the service of the House for the period specified. It mentions that the Member cannot enter the Chamber, the Inner Lobby and Galleries of the Rajya Sabha during the period of suspension. Similarly, when the suspension of a Member is terminated, the Section issues another circular informing all concerned regarding the termination of the suspension. The Table Office also ensures that the suspended Member’s name is not included in the list of speakers for participation in discussions etc.

68


Parliament Security Service

The Parliament Security Service has the primary responsibility of ensuring that the direction of the Chair regarding suspension of a Member is implemented with immediate effect. Its duty is more functional than procedural. In case of a suspension, the Security Office assists the Chair in maintaining order in the House, as and when summoned. In case suspended Member refuses to withdraw from the Chamber, defying and disobeying the direction of the Chair, Marshal(s) is/are summoned to remove him/her physically from the Chamber without causing any injury. The security personnel deployed in the Chamber, Inner Lobby and Galleries are also briefed and directed that no suspended Member should be allowed entry in these places.

Committee Coordination Section

The Committee Coordination Section is concerned with action consequent to the suspension of a Member vis-à-vis his Membership of Parliamentary Committees/Bodies. The Section issues a circular stating that the concerned Member stands suspended from the sittings of Parliamentary Committees/fora of which he is a Member, during the period of his suspension; that notices of meetings/tours to be held during the period of suspension are not to be sent to him; and that he is not allowed to vote at elections to Committees/Bodies held during the period of his suspension. However, communication regarding sittings or tours or Parliamentary Committees/sittings of Forum scheduled to take place after the expiry of the period of suspension may be sent to him during the period of his suspension. The section sends a communication regarding the guidelines of the circular to the Lok Sabha Secretariat (LSS) for their information with reference to Joint Committees of the two Houses. Likewise, LSS is again informed when the suspension of the concerned Member is terminated.

Question Branch

There are no specific provisions in the Rules of Procedure and Conduct of Business in the Council of States to regulate Questions in the Rajya Sabha of Members in the event of their suspension from the service of the House. However, as the right to ask/put Questions is available to Members only, a Member loses the right to participate in the business of Questions in any manner, during the period of his suspension. Accordingly, the Question Branch initiates the following actions consequent to the circular issued by the Table Office:

All Notices of Questions, Short Notice Questions and notices for Half-an-Hour Discussion of the suspended Member are not considered till the termination of his suspension.

Questions listed against the name of the suspended Member in Starred/Unstarred lists are treated as cancelled and the word ‘CANCELLED’ is stamped on them. These Questions are also deleted from the index of the Questions list.

69


In the Unstarred lists, if the name of the suspended Member appears as clubbed with other Members, it is deleted by striking out the name manually.

All the Ministries/Departments, in whose name the Questions of the suspended Member are listed, are informed telephonically and an errata to this effect is also issued immediately, asking them not to send the answers of such Questions.

In case the lists of Questions are at the printing stage, the Questions of the suspended Member are removed from the lists and his name is also deleted if it is clubbed with other Members.

However, all these actions are reviewed as soon as the suspension of the Member is terminated.

Bill Office

The suspension of a Member from the service of the House, whether for a day or for a period of time, deprives him of the opportunity to introduce Bill(s) or to move a Motion for consideration of Bill(s), if listed in his/her name on that day or during the period of suspension. Even the notice for leave to introduce a Bill or any notice for any stage of legislative business is also not entertained. The Bill Office removes the name of the Member from the List of Business of the day on which such Bill(s) are scheduled to be introduced or moved for consideration by the suspended Member. No separate Bulletin or Circular is, however, issued by Bill Office to that effect.

Legislative Section

The Legislative section ensures that on the suspension of a Member, the notices of the concerned Member, i.e. Special Mention, Matters Raised with the Permission of Chairman, Calling Attention, Short Duration Discussion, Resolutions and Motions, are treated as withdrawn and are not included in the concerned list(s). Accordingly, his name is deleted from the list of notices. Besides, notices given by a suspended Member for raising matters of urgent public importance are not entertained during the period of his suspension.

The dilemma of the Chairman/SpeakerThe subject of indiscipline, including display of disrespect for the

authority of Presiding Officers, disturbances, disruptions and other serious acts of misconduct in Legislatures and future strategies to improve the situation has been discussed in the Presiding Officers’ Conferences in India. Presiding Officers have been unanimous in their view that the tendency to show disrespect to the Chair and to violate the rules and conventions, indulging in undignified behaviour, forcing adjournments of the House and not permitting the Question Hour and debates and discussion, were matters of serious concern warranting deep introspection. It has also been emphasized that orderly and dignified conduct of the Legislators, both inside and outside the Chambers, is a pre-requisite for the smooth and effective functioning of parliamentary system.

70


In any democratic debate, passions tend to run high and decibels get louder, often leading to chaos and disruptions in the House. Such delicate situations usually require sensitive handling from a perceptive and astute Chairman or Speaker. In the event of disorderly conduct by Members in the House, it is imperative for the Chair to be guided by the need to maintain his/her own dignity, the dignity of the Office of the Chair as well as decorum in the House. Therefore, the Rules of Procedure and Conduct of Business in the House, apart from various Rulings and conventions, have vested enough powers in the Office of the Chairman/Speaker to enable them to diffuse tense situations and ensure that decorum is maintained. For instance, there is a ruling of the Chair, given in July 1987, regarding the suspension of a particular Member from the House. Admonishing the Member for his unruly behaviour, the Chair asked the Member to withdraw from the House. When the Member did not abide by the direction of the Chair, the Chair asked the Minister of State for Parliamentary Affairs to move a motion under the rules for the suspension of the Member. The House unanimously resolved that the Member may be suspended for a week from the House. Suspension of a Member is thus not the arbitrary decision of the Chairman or the Speaker but an act carried out by the authority bestowed on him by the House. Ultimately, it is again the House, on a motion being moved, which can terminate the suspension of a Member from the proceedings of the House.

ConclusionWhile privileges are available to Members to enable them to perform their

parliamentary duties without any let or hindrance, they also entail certain obligations, and dignified conduct is one of the primary obligations of the Members. Suspension of a Member from the House for a long period would appear unfair, and it would appear as if the whole constituency is being punished for the conduct of a Member. However, as representatives of the people, Members are obliged to maintain high standards of discipline and decorum in the House. The rule of suspension is a necessary self-correcting procedure to make Parliament an effective institution of democracy. Functioning of Parliament is the very basis of a democratic structure, upon which the whole constitutional system rests. Therefore, care has to be taken that nothing, either by actions within the precincts of the House or outside, erodes public confidence in the credibility of the institution of Parliament, thereby weakening the grand edifice of democratic polity.”

Mr CAVERO (Spain) asked if members suspended from the Rajya Sabha also had their allowances and pay suspended, and asked in addition if there was any opportunity for appeal against the Speaker’s decision.

Mrs LUQUIENS (France) said that there was a stricter range of sanctions available in France than in India, though a higher threshold for exercising them. Suspension of a member was rare. It had happened once in 1984, when Members had spoken insultingly of the President of the

71


Republic, and again in 2010, when a Member had caused a disturbance during a public, broadcast meeting. For any suspension of more than two weeks, there was also a financial sanction on the Members concerned.

Mr LAURENCE SMYTH (UK), exploring the areas to which a suspension might be considered to apply, mentioned the case of a Member of the House of Commons suspended for an ethical breach, who had asked if he could meet a Minister on behalf of his constituents during his period of suspension. He also asked whether suspension in India “for a session” meant a year, or a shorter period.

Mr BELLEN (Philippines) asked how a vote would take place on a proposal to suspend a member if it was not passed unanimously. In the Philippines Senate, a member could be suspended only for disorderly behaviour. The sanction was decided by a committee on ethics after some consideration, not on the spot immediately after the alleged offence. A two-thirds majority was necessary to suspend or expel a member.

Mr ZVOMA (Zimbabwe) asked about whether rights other than attendance, such as salary, were also suspended. The Supreme Court in Zimbabwe had ruled that a member’s salary was a constitutional right.

Mr AGNIHOTRI (India) clarified that members in India received a daily allowance for attending sittings, which was not paid during a period of suspension. Salaries continued to be paid, however. There were three distinct sessions in India every year. There was no appeal against the Speaker, who was the highest authority. An appeal to the Chair or an apology was possible, however. Suspension in India was also only an occasional occurrence. Disruption was often instigated by political parties, rather than because individual members wanted to cause trouble. The House decided whether to suspend a Member for disrupting proceedings. A vote could take place either by voice, or by electronic roll-call vote.

Mr KALKAN (Turkey) asked if a Member who had been elected but not been sworn in was subject to any kind of penalty in the Indian context, and if he received a salary in this situation.

Mr AGNIHOTRI (India) said that a Member started to receive his salary on election, but could not participate in proceedings without being sworn in. He could in theory sit at home and be paid for five or six years.

72


ATTENDANCE POLICY FOR MEMBERS OF PARLIAMENT: THE SOUTH AFRICAN

EXPERIENCE

—

Kamal MANSURASecretary to the National Assembly (South Africa)

“A road long travelled Since 2001 our Parliament has been grappling with establishing of

leave/attendance policy for members.The journey has been long and arduous. We are now on the 13th

discussion document on the subject and no one seems in a hurry to finalise the matter.

The discussion started with talking about “leave” for members and evolved to “attendance policy” for members.

There is general agreement that parties should control their members’ absence from plenary or committee meetings. In this regard it must be remembered that the election of our members is based on the proportional representation system. We therefore vote for a political party rather than for an individual.

Statutory basis for sanctions in respect of absences The basis for sanctions in respect of members’ absence from

parliamentary work is contained in two separate pieces of legislation:(1) The Remuneration of Public Office Bearers Act provides that the payment of salaries and allowances of members “is subject to the rules and orders” of the House. The Act provides the basis for deductions from members’ salaries for absence from parliamentary work.

73


(2) Our Constitution provides that a member loses membership if that member is absent without permission in circumstances for which the rules and orders prescribe loss of membership.

The rules currently do not make such provision.

Working conditions of membersMembers have multiple functions, including setting norms, standards and

regulations and overseeing delivery through their parliamentary work and being accountable to the electorate and facilitating public participation through their constituency work and party political work through their political party offices and structures.

However they are required to be at the seat of Parliament in Cape Town during parliamentary session periods which spans almost the entire year.

During parliamentary constituency periods and often over weekends members, as national representatives of the people, are required to travel to their allocated constituencies, which may not necessarily be the same as their permanent place of residence.

Members are thus often required to spend considerable periods away from their families in conducting their parliamentary work both nationally and internationally.

Key principles Parliament should not deal with leave for members. It is the party that

regulates leave. Parliament however insists on a certain minimum standard for attendance of members at plenary sittings and committee meetings.

Every member has a dual responsibility to the party and to Parliament.The attendance system should take into account that members work over

weekends and late into the evenings, mostly in respect of party work.Parliament should therefore have an attendance policy which allows for

non-attendance as specified in the rules. This should be based mainly on a leave policy administered by the party but lodged with Parliament for record purposes.

Parties should publish leave reports for specified periods.

Minimum standards regarding absences should be set to allow for sanctions as provided for in legislation.

A framework should be developed which lists areas around which parties may grant leave. This would ensure uniformity and consistency among parties.

The attendance policy should balance the needs of parties with those of Parliament.

In the context of Parliament’s needs, consideration should be given to sanctions to ensure members’ attendance.

74


SanctionsAbsence from plenary sitting: Deductions – if absent for 15 consecutive

sitting days, without leave of the House, an amount of R500 to be deducted from a member’s salary for each day in excess of the 15 days.

Loss of seat – if absent for 30 consecutive days, without leave of the House, the member loses his/her seat in the House.

Unanswered: How is leave of the House obtained? Should the House grant leave without knowing reasons? Should a multi-party committee process leave applications?

Absence from committee meetingsThe dynamics are different for each party as the size of the party plays a

role.If absent for three consecutive meetings without leave of the

chairperson/committee, the member should be discharged from the committee and fined.

Quorum requirementsThis part of the draft policy is based on the principle that parties have an

obligation to ensure that Parliament and its committees are able to function by taking the decisions required.

Failure by parties should result in some form of sanction being imposed against the offending party. Details of sanctions are still being developed.

Party guidelines in granting leave The draft policy provides that parties mainly control leave for their

members. However for the sake of transparency, parties should publish at least annually details of leave granted to their members.

The party must keep proper records of leave. While Parliament should be a priority, the nature of their duties is

such that it is essential for members to be away from Parliament, with permission, to attend to their voters/constituencies, their party, interest groups and to represent Parliament at workshops, seminars and on local and international visits.

They must be able to take leave for personal reasons such as illness, bereavement, maternity or paternity, study etc

No holiday should be granted as this is built into the annual parliamentary programme (last two weeks in December and 1st week of January.)

Mr KOO (Republic of Korea) asked about the disciplinary process in the South African Parliament where Members were absent without

75


permission, particularly where suspension and salary deductions were in consideration. In Korea, Members were personally responsible for attending Parliament, rather than the parties to which they belonged. The Speaker and Committee Chairs could approve requests for absence, but only for certain statutory reasons, such as attending international assemblies and family illness. Members could not request leave of absence to carry out constituency activities, but given that the salary deduction imposed for unauthorised absence amounted to only around 15 US dollars per day, the punishment was little more than symbolic.

Mr AGNIHOTRI (India) said that under the Constitution of his country, a Member who was absent without permission for more than 60 days could have his seat declared vacant. Those asking for leave of absence of more than ten days during a session needed to have the House’s permission. The Parliament’s website included data on Members’ attendance records.

Mr BYAZA SANDA (Congo) said that in his country, attendance was required. If a Member in his country was absent for more than one quarter of the sittings in a session, their seat became vacant. Where Members were absent from two consecutive sittings without justification, they could also be excluded. Nonetheless, the House was sometimes inquorate when a vote came to be taken. The Bureau took decisions on whether an absence could be justified, not the political parties. But political networking often prevailed over legal considerations. He asked Mr Mansura who decided on suspension or other sanctions for absence.

Mr NOMBRE (Burkina Faso) said that in his country, the rules on attendance were much more lenient. Attendance at committee meetings was compulsory, but not in the plenary. One politician had decided to boycott the business of the House. The Bureau proposed as a result to withhold his allowances, and to amend the rules to deal with this type of situation. But the court said that such an amendment would be unconstitutional.

Mr SCHÖLER (Germany) asked about the prospects in South Africa for sanctioning political parties where they were partly responsible for non-attendance. In Germany it would be hard to find a legal basis for such a sanction.

Mr MANSURA (South Africa), answering Mr Koo, said that there were no additional sanctions proposed. The paper before the Association was a discussion document. The Indian experience was constructive. Responsibility for suspending a Member was the main unanswered question in South Africa. It might be awkward to get the House to decide if personal considerations were involved. There was no legal basis yet for sanctions involving political parties, but there was broad thinking that the party owed a responsibility to the Parliament.

76

Const.Parl.Inf. 61 (2011), 202 77


RULES FOR THE USE AND MISUSE OF RESEARCH FACILITIES IN PARLIAMENT

—

Dr Ulrich SCHÖLERDeputy Secretary General of the Bundestag (Germany)

Today, most parliaments (at least in Europe) have their own research services, even if they differ enormously as far as their size, human resources and competences are concerned. From the perspective of parliamentary history, many of these services evolved out of what were originally library departments. Once these libraries existed, there came to be demand for them to be used in a meaningful fashion. In the past, parliamentarians would look things up for themselves in books, dictionaries and commentaries in order to find answers to political or legal questions, but they do not have the time to do this today. Moreover, parliamentarians’ personal staff, in those parliaments where members are lucky enough to have such staff, are often busy dealing with other tasks: organising constituency work, preparing appointments and speeches, etcetera.

This is why it certainly made sense, and is explicable as a historical process, for the libraries that were already in existence to gradually build up teams of staff that, as it were, would bring together the hardware of the books with the software of the knowledge contributed by these employees so as to provide solidly founded academic support for their parliaments and assist them in their decision-making processes. This made a great deal of sense for yet another reason: In the majority of our states and systems of government, the executive has excellent human resources at its disposal in the various specialist sections within its ministries, human resources that, in this respect, are far superior to those of any parliament. Even if we accept that good, trusting cooperation between the executive (the government) and the legislative (parliament) does in fact take place in many cases, it is

78


one of the noblest functions of a parliament to scrutinise its country’s government. If it is to be capable of doing this as effectively as possible, an in-house staff of well trained academics with the broadest possible range of expertise is indispensable.

Between 80 and 100 people, including about 50 highly-qualified members of staff responsible for producing expert opinions, work in the Research Services Directorate, which performs this function at the German Bundestag. The Directorate is subdivided into 11 research sections, as they are known, each of which deals with substantive issues that fall within the jurisdictions of several specialist ministries. Several thousand enquiries are answered every year by this parliamentary ‘think tank’. Depending on the needs of the ‘customer’, the service provided can vary tremendously in quality and scale. Sometimes, all that is needed is a quick, precise answer to a specific question. Sometimes, a request comes in for expert research into a complex topic that may well take several weeks to complete.

As the title of my paper suggests, apart from the great and undisputed benefits offered by our research facilities, problematic cases that are not easy to deal with do arise from time to time as well. I would like to look at one or two examples in order to explore in a little more depth the rules we have put in place to govern the use of the Research Services. The most spectacular case of abuse came to light this year and will undoubtedly have been picked up by the media in other countries – at least in Germany’s neighbours. What happened? In the spring of 2011, the German Defence Minister, Karl-Theodor zu Guttenberg, the most popular politician in the country at that time according to the opinion polls, had to resign, partly due to the improper use of documents produced by the Research Services of the German Bundestag.

In the early years of the last decade, he had commissioned a number of expert opinions from the Research Services on foreign policy topics – something he was perfectly entitled to do, just like any other Member. His requests were certainly consistent with his work in the Committee on Foreign Affairs, and there was absolutely no reason for them to be challenged. The rules say the research they commission must aid Members in the exercise of their parliamentary mandates. However, long passages from these expert opinions eventually found their way into zu Guttenberg’s own doctoral thesis, which was being written over the same period, without the sources being acknowledged adequately. A committee established specially by the university that had awarded him his doctorate judged that this was impermissible plagiarism. In consequence, he was stripped of his doctoral title.

It should therefore be evident that a Member of the German Bundestag is not at liberty to decide how they wish to use an expert opinion produced by the Research Services. Our rules stipulate that the content of an expert opinion is the responsibility of the authors involved. The decision about whether such a document may be handed over to the Member who ordered it is taken solely by the author’s immediate superior, the head of the division. Since it therefore remains the responsibility of the individual researcher, the text does not become an official document of the German

79


Bundestag. How could it be otherwise? Parliament’s views on a specific issue can only be determined by means of a decision voted on in the plenary chamber. At the same time, however, this provision ensures the author is also protected under copyright law. Without their consent, an expert opinion cannot be published or disseminated (this was another rule broken by our former Defence Minister because he failed to apply for permission to publish the texts). Since it is, nonetheless, a document drawn up in an official capacity, the author’s copyright is complemented by the copyright that lies with their ultimate employer, the President of the German Bundestag. As the person responsible for this part of the Administration, I decide on applications for the publication or dissemination of such documents on his behalf.

The kind of case that comes up far more frequently than the sort of thing I have been talking about is encountered when a Member wishes to use the contents or results of an expert opinion for their press work. Of course, it carries considerable weight with the public if a politician can claim their policy or legal ideas are backed up by an expert opinion from the Bundestag’s Research Services. Occasionally, though, we still experience situations in which a Member of the German Bundestag orders an expert opinion – quite possibly requesting that the commission be handled confidentially –, only for us to find its contents quoted at lengths in a newspaper or magazine just a day after it has been delivered. This is definitely not permissible. When this happens, it is necessary to make it clear to the Member who ordered the work that they have committed an infringement of copyright law by disclosing the document in this way. Frequently, however, there is another problem we find ourselves having to grapple with. Again and again, particularly when it comes to politically controversial questions, the media convey the impression that a text is an official statement of the Bundestag. For example, someone will say, ‘A report from the German Bundestag comes to the conclusion that the draft bill presented by the Federal Government on topic X, Y or Z is contrary to the constitution.’ What would actually be correct would be to say that a specialist working for the Research Services of the German Bundestag has arrived at this opinion – but then, of course, the headline would not be nearly as exciting.

In order to find solutions for as many of the problems associated with the drafting of expert opinions as possible, we have adopted, as I mentioned, a set of systematic rules. These rules are laid out in the Guidance for the Research Services Directorate, as it is titled, which is attached to the written text of my paper1. I hope it will be useful to some of you in your own work. Finally, however, I would like to talk about yet another quite fundamental aspect of the Research Services’ duties, the question: What does such an expert opinion need to be like? In abstract terms, the answer is: It must be equally useful for every Member of the German Bundestag, regardless of the parliamentary group or tendency to which they belong. I can start to explain the implications of this by expressing it in negative terms. To put it concisely: We do not produce expert opinions that say what Members want

1 This document is available on the ASGP website on the Past Meetings page.

80

http://www.asgp.info/en/pastmeetings/


to hear. Nor do we describe a problem in a specific field or a legal problem from the point of view or for the purposes of a single parliamentary group – which means, furthermore, that we do not write draft bills for individual parliamentary groups. Rather, the underlying principle of our work is that all aspects of the question raised or the complex of problems thrown up should and must be illuminated as comprehensively as possible in the time that is available. In seeking to do this, we do not carry out original research or academic work. Rather, the parliamentary Research Services function as what could be termed an interface between academia and the world of politics. We base our expert opinions on the research results that are accessible in different academic disciplines, discuss and weigh up the various and, in many cases conflicting, standpoints, and attempt to translate them into forms that will be productive for political decision-making processes. Only once the various different standpoints have been detailed and given due consideration is the author also allowed to draw conclusions that reflect their personal opinions, if this has been requested. In summary, it can be said that the research work conducted by our Administration has gained ever more in significance over the last few years, and is greatly valued by the Members and parliamentary groups of the German Bundestag.

Thank you for your attention!”

Mr LAURENCE SMYTH (UK) mentioned his responsibility for copyright in the House of Commons. The House had recently adopted a form of ‘by attribution’ licence, modelled on the Creative Commons licence. The House of Commons Library was highly respected and very clear about the kinds of enquiries it could not help with, such as requests for schoolwork.

Mr NINI ABINO (Ethiopia) asked how much of the information held by the Bundestag research service was accessible to the public.

Mr CAVERO (Spain) asked whether briefings prepared at the initiative of the German research service were ever more useful to some political parties than others.

Mr BELLEN (Philippines) asked how the confidentiality of the work of the research service was ensured.

Mr MANSURA (South Africa) differentiated between research provided to all Members and that provided to specific political parties. Governments sometimes suggested in his country that certain papers were not appropriate ones for Parliament to have produced.

Dr SCHÖLER (Germany) said that more work was needed on copyright for the Internet, as opposed to paper. Where there was any doubt about the use to which research would be put, Members of Parliament were asked to sign a form confirming that it would be put to an appropriate use. Some

81


research information was made available on the Internet, at Dr Schöler’s discretion. Some of the papers published had been written at the research service’s own initiative. Sometimes this had led to questions in the Council of Elders, but the work of the service was widely respected. The research service did not conduct research for individual political groups. Papers commissioned by individual Members could be provided for their own sole use if they wished for up to four weeks.

.

82


EXCHANGE OF INFORMATION BETWEEN GOVERNMENT AND PARLIAMENT

—

Geert A. HAMILTONSecretary General of the Senate of the States General (Netherlands)

Members of Parliament are constantly gathering, processing and producing information. They all live in their own ‘sphere of information’, consisting of different sources, among which the official documents from government, national media, personal contacts and connections with civil society. A politician depends on useful information. ‘Information is power because it’s the substance of which decisions are made.’ (Witherspoon). This lecture starts with recent developments in the Netherlands and will elaborate on recent research on the information position of parliament. I will conclude with a short international comparison and suggestions for improvement.

Recent developments in the NetherlandsOver the past ten years several innovations were introduced in the

parliamentary process, such as the citizens' initiative, the right of a qualified majority of 20% to apply for an emergency debate and the consideration of EU-matters at an early stage. In 2007, the House of Representatives started a process of parliamentary self-reflection, under the leadership of the President of the House. This resulted in the House drawing up its own agenda for the future and its own inquiry agenda, and led to extended assistance to MPs.

But still there are problems and imperfections. A recent study of Dutch parliamentary inquiry over the past twenty-five years indicates a recurring pattern of misinformation from government to parliament. The information defects vary from providing false information, inaccurate information, incomplete information, veiled information, misleading information, and an

83


overflow of information. From time to time information is kept behind closed doors by stating that it concerns classified information. Existing policy alternatives and possible risks are scarcely communicated. Explicit questions from members of parliament are frequently answered in vague or multi-interpretable terms. The practice of parliamentary questions can be summarized in an aphorism:

Asking the right questions is an art, getting the right answers is a mercy.There is a significant information asymmetry between government and

parliament. A minister has, depending on the size of his department, a few hundred to several thousand officials and policy-makers working for him. He can call in the advice of several advisory boards and planning agencies and has a substantial budget for hiring external expertise. Compared to high government officials and ministers, members of parliament are very limited in support from their staff.

There is a lot to say about the performance of parliament itself. Parliament sometimes fails to fulfil its supervisory task and oversight duties and displays signs of short-term memory. Parliament frequently lets political considerations prevail over monitoring and reviewing governments’ policies. Coalition parties are better and earlier informed by the department; in this respect opposition parties are disadvantaged. Consensus and gaining a parliamentary majority that supports the cabinet is most of the time considered to be more important than a strong information position of parliament as a whole.

This is problematic because knowledge and information are considered key factors for the innovative capacity of an organization. Scholars like Willke and Weick note that the main difference between innovative organizations and non-innovative organizations, between "best performers" and "bad performers" lies in the way knowledge is organized and the extent to which it is shared with others in- and outside the organization. The existing information arrangements between government and parliament hamper the innovative capacity of public administration.

Restricted contacts MPs and civil servants Since 1998 contacts between Dutch MPs and civil servants are restricted.

Civil servants can only provide information of a public and factual nature. In the perception of many civil servants this is an iconic notion: ‘Thou shall not communicate with MPs’. According to some MPs the current interpretation of ministerial responsibility leads to a systematic smothering of ideas from administrators. According to them there are no compelling reasons to exclude the ideas of officials and civil servants, or regarding them as untouchable in the public debate. Dutch parliament is putting more and more pressure on government to withdraw or loosen the instruction on restricted contacts between MPs and civil servants.

International comparisonDuring the years 2007-2009 the Dutch Parliament organized a process of

so-called ‘parliamentary self-reflection’. ECPRD research shows that in nearly two thirds of the responding countries (n=30) there had been some

84


process of parliamentary self-reflection during the last fifteen years. The most important innovations and findings consist of four main topics.

(1) Evaluation and accountability. An important conclusion of several parliamentary committees is that more attention is necessary for the evaluation of political decisions and the implementation of policies. Quite a number of parliaments have, in the past few years, sharpened their evaluation function, in order to scrutinize the work of the government more effectively.

(2) Parliamentary minority rights. Strengthening minority rights, directly or indirectly, influences the information position of opposition parties. In some countries minorities have the right to initiate a parliamentary inquiry. In other countries a qualified minority can order an independent investigation by the parliamentary research body or organize a hearing.

(3) Interacting with the civil society. In the period of research, several parliaments experimented with forms of interaction with the civil society. This often involved forms of consultation of the organized civil society; it also encouraged citizens to voice their ideas on specific issues. Through interaction with society, parliament is informed about the problems, ideas, and preferences that exist amongst the electorate.

(4) Future commissions. Eventually, there is growing interest in the impact of policies and legislation on future generations. Some parliaments have decided to set up parliamentary committees dealing with future developments. These Committees on the Future are in a relatively early stage of development, but it seems inevitable that it affects the information exchange with science and society.

There is a lot more to say about this. I could elaborate on the implications of the so called wiki-leaks sites, or on access to commissioned research. But time runs out. Here I focused on Parliament’s relation with the Executive power. Parliament can break through the selective information monopoly of government by demanding equal access to information. On politics one can argue, but the underlying information should be adequate. I thank you for your attention.

85


Annex 1 Innovations in western parliamentsOutcomes of the ECPRD researchIn the period from 2007-2009 a number of questions about parliamentary

self-reflection were presented to parliamentary research and information departments in other countries, through ECPRD's network. ECPRD stands for European Centre for Parliamentary Research and Documentation, a knowledge network of parliamentary research and information departments "The ECPRD acts as a channel for requests for information whenever one parliament would like to know more about practice and policy in other countries."

A process of parliamentary self-reflection is by no means exceptional. About 65% of the respondents answered that in their country some kind of parliamentary self-reflection had taken place over the past 15 years. The substantive agenda of these self-reflection programmes varied from country to country. In some cases the reflection programme focused on the functioning of parliament as the people's representation. This type of self-reflection is about the relationship between the voters and those elected, more in particular about the relationship between representative and participative democracy. In other cases, the self-reflection process concentrated on the relationship between parliament, as the legislative power, and the government, as the executive power. In these cases, the system of checks and balances was subject to debate, for instance, as well as the extent to which parliament actually manages to scrutinize the work of the government. In other cases, the whole range of issues was dealt with, including fundamental reflection on the future of parliamentary democracy, as well as more practical proposals to change the meeting schedule or the rules of procedure of the parliaments in question. For instance, in Belgium, in the second half of the 1990s, a number of working groups was set up to discuss such issues as the funding of political parties, the desirability of referenda and the relationship between the citizens and their political institutions. In October 2006, the Danish parliament (Folketing) organised a conference of people's representatives, civil servants, political scientists and lawyers. The theme of the conference was the information position of parliament vis-à-vis ministers, and the right to ask questions in particular.

In Germany, several adaptations to the position and the working methods of the German parliament (Bundestag) were implemented, including new rules concerning the role of the Bundestag in decision making about the deployment of German troops in war zones. Moreover, new arrangements were agreed with regard to the cooperation with the government in EU-matters. The rules for parliamentary inquiry committees were reviewed as well.

In Sweden, parliament (Riksdag) set up several reform committees over the past 15 years. They produced reports carrying such prosaic titles as: "Reforming the Work of the Riksdag" (1993), "The Riksdag Facing the 21st Century" (2001) and "The Riksdag in a New Age" (2005). Key themes of this reflection process were the management and the organisation of parliament, the budgetary process, the follow-up and evaluation of legislation and the consideration of EU-related subjects.

86


In Israel, the last four presidents of parliament strongly advocated an independent position of Knesset towards the government. Over the past 10 years, all the presidents of Knesset each managed some process of self-reflection or another.

87


parliamentary self-reflection

parliamentary self-reflection in part

no parliamentary self-reflection

Austria XBelgium XBosnia and Herzegovina XCroatia XCzech Republic XDenmark XEstonia XEuropean Parliament XFinland XFrance XGermany XGreece XIsrael XItaly XLithuania XMacedonia XNetherlands XNorwayPoland XRussia XSerbia XSlovakia XSpain XSweden XSwitzerland XTurkey XUnited Kingdom XUnited States X

Figure 6.4Parliamentary self-reflection in western democracies between 1990-2010

What follows is a summary of the international comparison, clustered along these key themes:

Evaluation and accountability Parliamentary minority rights Interaction with society Committees on the future Assistance to parliamentarians

Evaluation and accountabilitySome reforms relate to the improvement of the evaluation and

accountability role of parliament. A key conclusion of several parliamentary reform committees is that more attention should be paid to the evaluation of decisions. The Swedish Riksdag, for instance, concluded that "a special

88


function should support the committees in their work with follow-up and evaluation."

In 1999 a programme was introduced in Denmark under the name of "law surveillance", aimed at monitoring and evaluating the implementation and the effects of new laws after three years. As a rule, every year one law per ministry is subject to monitoring, on which occasion organisations, implementing bodies and stakeholders are asked to express their experiences with the law in question.

Some years ago, the Riksdag in Sweden created a structure to strengthen the evaluation function of its committees. Since then, an average ten parliamentary evaluations on key policy issues are held every year, resulting in evaluation reports to be discussed by the Riksdag.

The House of Commons has a dual committee system. Standing committees are set up ad hoc and focus on the management of the law making or policy making process. Their way of operating is marked by a great deal of monism: party discipline is enforced by the strong position of the so-called "whips". Besides, there are "select committees". These are permanent committees, set up along the line of the government departments they scrutinize. They focus on scrutinizing the government's policy. Members of a party in government will take a much more critical and independent stand in a select committee than they can afford to do in standing committees. This is generally accepted as proper behaviour. In select committees experiments have been carried out with "video evidence from selected groups in civil society".

In 2006, the French parliament carried out a large-scale reorganization of its own administration. The main idea behind this was the growing importance of monitoring and scrutinizing legislation and its implementation. In France, activities in the field of legislation and scrutiny were strictly separated until recently. A key part of the reform is the support of the people's representation by six large thematic units: "legal affairs; cultural and social questions; economics and scientific assessment; public finances; European affairs, defence and international affairs."

In Italy, parliamentary inquiry is considered to be one of parliament's strongest tools. Most inquiry committees are composed of members of both the Italian House of Representatives and the Senate. When carrying out a parliamentary inquiry they have the same competences as the judiciary. Parliamentary inquiry is mostly retrospective, with the effect of measures being examined afterwards. Parliament can also decide to do fact finding in advance ("indagini conoscitive"). The standing committees of parliament have the right to do so, which can be exercised when scrutinizing bills or policy programmes. In hearings ministers, civil servants, experts and other stakeholders can be heard about the

89


proposal in question. The aim of these hearings is to gather information which could be useful for a better political judgement of the issue at stake.

A couple of years ago, Accountability Day was introduced in the Dutch parliament. On that day, the cabinet has to account for its policy over the past year and for the realisation of the aims of the cabinet's policy. After a somewhat troublesome start Accountability Day gradually seems to develop into a tool which enables the House of Representatives to better carry out its duty to scrutinise the work of the government.

In April 2007, the Belgian Federal Parliament, composed of the Senate and the House of Representatives, set up a parliamentary committee focusing on the evaluation of laws (“Wet tot oprichting van een Parlementair Comité belast met de wetsevaluatie”). The committee is composed of members of the House and the Senate. The committee evaluates how legislation that has been adopted at least three years before works out in actual practice. Citizens, government bodies or parliamentarians can apply for such an evaluation. The committee may call in experts. The committee can also carry out an inquiry into the government body in question. Moreover, every year the committee receives the annual reports of the Prosecution Office on the problems courts meet when interpreting and implementing laws.

The new Swiss constitution grants parliamentary committees the right to any information they need to carry out their duties. This constitutional principle is further elaborated in legislation. Parliament can decide independently which information it needs to scrutinize the work of the government, whereas before it was up to the government to decide about that. "Insbesondere wird für die Oberaufsicht festgeschrieben, dass neu der Kontrolleur und nicht wie bisher der Kontrollierte darüber entscheidet, welche Informationen für eine wirksame Kontrolle benötigt werden." Moreover, the new constitution explicitly commissions parliament to monitor the implementation of new government measures, or to make sure that such verification takes place.

The aim of the introduction of the so-called "Kernzeitdebatte" is to ensure that key themes in German politics are thoroughly discussed on a regular basis. These debates are held on Thursday ("Donnerstags-Debatte"), they take four to six hours on average and are broadcast live. In principle, no other official meetings are held during these debates.

Parliamentary minority rights A basic principle of democratic rule of law is that minorities are

respected. In several parliaments the rights of parliamentary minorities have been codified and linked to the use of a set of scrutiny tools.

90


In Israel, Knesset has a relatively independent position. Members of coalition parties are supposed to support the cabinet, but nevertheless a culture of some "intractability" exists. The lack of strong party discipline gives Knesset a relatively strong position. In 2000, Knesset set up its own enquiry department, staffing 30 investigators at the moment. In some cases the department cooperates with universities and knowledge centres. Every committee and every single member of parliament has the right to apply for an inquiry.

In Germany, a qualified majority of 25% of the members of a parliamentary committee can decide to hold a public hearing, in which stakeholders' organizations and experts can be heard. Every year, an average of 75 public hearings are held.

In Denmark, several minority rights ensure that the voice of opposition parties is heard as well. A two-fifths minority in Folketing can apply for a debate on a certain issue. Once a bill has been adopted, a one third minority in Folketing can request that a referendum be held. Delegation of powers to international authorities, such as the EU, requires a five-sixth majority in Folketing. If there is only a single majority, and the government wants to maintain the proposal, it can be put before the people in a referendum.

The developments in Norway are particular in the sense that this country has a long tradition of minority cabinets. The number of staff supporting parliamentarians has been extended. Opposition parties in particular make use of their enquiry services. In 1993, the parliament of Norway set up the "Standing Committee on Scrutiny and Constitutional Affairs" in order to strengthen parliament's role in the field of scrutiny. A qualified minority of one third of the members of this committee can decide to carry out an inquiry. Meanwhile, tradition has it that a member of the opposition chairs this committee. The establishment of the committee largely contributed to strengthen parliament's scrutiny role. A one third qualified minority is enough to hold a "public hearing".

In the Netherlands, the so-called emergency debate has been introduced, which can be applied for by a one-fifth minority in the House of Representatives. (The "thirty members rule".) Although some parties frown at the multitude of these debates and their "wheezy" character, parliament decided in 2007, after evaluation, to continue the emergency debate.

The parliament of Bosnia and Herzegovina has an independent inquiry department, which is equally accessible to all the representatives. A request from the opposition to carry out a further enquiry is generally honoured; no parliamentary majority is needed.

Interaction with society

91


During the research period, several parliaments carried out experiments with some form of interaction with civil society. This often involved forms of consultation with institutions of organised civil society, but also engagement of citizens in the process of political consideration which takes place in parliament.

In Denmark, the committees of Folketing organise around 150 conferences or open consultations every year, which citizens can attend and in which representatives of social organisations can participate.

• In Sweden, inquiry committees are set up regularly before important political decisions are made. It has become standard practice that representatives of trade unions, employers and other stakeholders join such parliamentary inquiry committees. An average 15% of the members of these "Commissions of Inquiry" represent interest groups.

In Lithuania, Seimas can set up so-called preparatory working groups. Not only members of Seismas, but also representatives of authorities, social organisations and experts can hold a seat in these working groups.

The Norwegian parliament can direct the government by law to elaborate legislation in a dialogue with relevant stakeholders in civil society. An example of this is the regulation of accounting rules. The Norwegian Parliament, "Stortinget" has directed the government to elaborate these rules in a dialogue with the national accounting organisation.

In Austria, all bills are subject to a so-called "general examination procedure". All departments must first send their proposals to all relevant stakeholders for comment, such as universities and other relevant organisations. Subsequently, an amended proposal is submitted to parliament, together with all the comments and suggestions from stakeholders. A similar procedure is in place in Sweden and Denmark, among other countries.

Sweden has its "Parliamentary Ombudsmen". The Riksdag appoints four of these "Parliamentary Ombudsmen". It is a politically neutral institution which sees to it that the authorities carry out their duties in accordance with the legal provisions. They can start an investigation on questions or complaints from citizens.

In the United Kingdom the "think tanks" play an interesting role. Although most think tanks, such as the Institute for Policy Studies and Demos, are affiliated with a political party, they take an independent position. The "Better Government Initiative" is a group of influential former politicians and experts. They carry out research and make recommendations to strengthen parliament's independent position towards the cabinet.

In Germany a popular initiative was launched recently, called "abgeordnetenwatch.de", an internet platform which is run outside parliament. Citizens can ask questions to their representatives and the answers given by the members of the Bundestag, the regional

92


"Landtage" and the European Parliament are accessible for every visitor. The motto of the platform is "weil Transparenz Vertrauen schafft". This initiative is similar to the British "Lords of the Blog" which is run by the Hansard Society.

Committees on the futureThere seems to be growing interest in the effects of legislation and policy

making on future generations. Over the past few years, several parliaments decided to set up parliamentary committees on future developments.

In Israel the "Commission for Future Generations" was set up on the basis of a process of parliamentary self-reflection.

In 2006 the "Parlementarischen Berat für nachhaltige Entwicklung" was established in Germany. This parliamentary advisory committee on sustainable development deals with the impact of globalisation on future generations. The committee operates beyond the limits of the separate specialist committees and checks the "future-proofness" of legislation. The committee also contributes to the structuring of politics for the coming generations.

In the 1990s a "Committee for the Future" was set up in Finland. The committee discusses future-related issues and advises the specialist committees on future-related aspects of policy and legislation. Special attention is given to the social impact of new technologies. At its establishment the committee deliberately chose to take an innovative approach towards science and technology. This approach can be explained by the fact that the economy of Finland was in deep depression in that period. Issues to be dealt with in the next parliamentary period include: "global challenges of food production", "participatory content production" and "taboos of the welfare model, sacred misconceptions". The committee also experimented with a "virtual commentary portal", where citizens could comment on issues the committee was dealing with.

Annex 2 - Contact between parliamentarians and government department officials

The arrangements in various countries with regard to contacts between parliamentarians and government department officials show big differences. Every country has its own constitutional system, its own political history and its own culture. In some countries a close symbiotic relationship between parliamentarians and government department officials exists, whereas in other countries their relationship is more like that between "natural enemies". Some smaller countries do not have any arrangement at all as to the contacts between civil servants and parliamentarians.

Countries can be divided into two groups with respect to the arrangement of contact between parliamentarians and civil servants. In the first group of countries such contacts are normally allowed. Parliament can also hear civil

93


servants in a hearing, in order to gain more information about intended policy.

As a rule, in the second group of countries contacts between parliamentarians and civil servants are not allowed, as this could conflict with the ministerial responsibility. In a formal parliamentary inquiry, however, civil servants can be heard. Parliament's powers are extended in such cases.

Examples of countries with a "big-hearted" arrangement are: Italy. Department officials may provide information on technical

aspects of policy issues. Moreover, they can be heard in so-called "fact-finding enquiries".

Austria. Although contacts take place via a minister formally, an extensive practice of exchange of information between parliamentarians and civil servants has developed.

Germany. The German system has strong monistic characteristics, with government and parliament sometimes closely entangled. Most ministers are also members of parliament. Besides, there are close contacts between (politically appointed) civil servants and members of parliament. In some cases this even leads to a parliamentary question and the government's answer, or a government proposal and the political reply in a parliamentary debate, being written by one and the same person.

The United Kingdom has a more dual committee system. "Select Committees" specialize in scrutinizing the government's policy. They have the right to question civil servants in public and they frequently make use of this right. As a rule, individual members of the opposition cannot contact civil servants directly to gain information and advice. Yet, the UK has a remarkable arrangement, allowing the opposition access to information before an election: "During the period before an election, the Opposition Shadow Cabinet are allowed to make contact with civil servants directly in order to discuss policy and organisational issues."

In the United States of America there are frequent contacts between Congressmen and civil servants. Every committee of the House of Representatives or the Senate organizes tens to hundreds of hearings each year, in which representatives from companies, stakeholders' organizations or civil servants are heard.

In Norway, contacts normally take place via the minister in charge. However, civil servants can be heard in hearings. Moreover, information can be gained from parliament's administration. "More often a staff member of Parliament contacts the relevant level in the Ministry. This is not considered to be a problem – in fact, the Parliament relies on such contacts for its work."

In Finland, civil servants are mainly heard as experts: "Ministerial civil servants are regularly consulted in their capacity as experts at hearings arranged by the committees of the Eduskunta and

94


committee members can ask them questions about the matter under deliberation."

In Estonia, members of Riigikogu can contact civil servants directly. Requested information is seldom refused.

In Switzerland, there is much informal contact between parliamentarians and civil servants: "A member of parliament may at any time contact a civil servant, ask him or her questions or ask for information."

Examples of countries that are more restrictive when it comes to contact between MPs and civil servants are:

Portugal. Civil servants can be invited to give evidence, but "they must require the authorisation of the respective minister to take part in Committees proceedings".

Spain is very restrictive in this field: "Although there is not an explicit prohibition of contacts between Members of Spanish Parliament and civil servants, in practice this kind of contact is extremely rare."

In the Netherlands, former prime minister Wim Kok's "ukase" still applies, which is broadly considered as a qualified ban on contact between MPs and department officials. Members of coalition parties maintain informal contacts with government departments, members of opposition parties to a much lesser extent.

The Belgian arrangement is similar to that of the Netherlands. Contact normally takes place via the minister. Civil servants can be heard in case of a parliamentary inquiry. In all other cases the minister's consent is required.

In Poland, MPs have access to any classified information. "MP’s are all entitled to access to the classified information on the force of law." However, it is difficult for an MP to contact civil servants: "Civil servants employed in ministries avoid contacts with parliamentarians, in order not to be accused of favouring certain political parties."

Romania has an exceptional form of government, in the sense that a special minister is in charge of "the Department for Relation with Parliament". Information to parliamentarians is provided by this ministry.

No unambiguous conclusions can be drawn from this international comparison. The actual practice is more vague and varied than the above-mentioned division suggests. There are good reasons to place the positions of the various countries on a continuum rather than in the above-mentioned clusters. However, a continuum would also lead to new definition problems, such as the question how to balance the formal arrangement and the informal practice. Moreover, essential differences occur within a country, in terms of the period monitored and in terms of differences between members of the government or cabinet involved.”

95


Sources:ECPRD research on parliamentary self-reflection (2007-2009) Enthoven, G. (2011), Hoe vertellen we het de Kamer? Een empirisch

onderzoek naar de informatierelatie tussen regering en parlement, Eburon, Delft”

Dr AGNIHOTRI (India) said that iPads had been introduced in the Rajya Sabha in July, with certain papers sent electronically to Members on a daily basis.

Mr WICKHAM (United States) (non-member) said that the US House of Representatives had in January taken the step of allowing iPads into the Chamber. He asked if the iPads in the Dutch system had a dedicated security function, and what steps had been taken to ensure the digital archiving of documents.

Mr OLLARD (UK) asked how far the documents deposited for post-implementation review were actually used in practice. He also asked what steps had been taken to ensure the security of the electronic system put in place.

Dr AMRANI, President, asked if all of the Senators used the iPad or not. The Algerian experience was that only 10% of senators used the computers provided to them.

Mr HAMILTON (Netherlands) said that there were no new important security risks posed by providing parliamentary documents on iPads. All the documents had already been placed on the Internet. It was just a question of bringing these documents together in a handy place. The iPads were the only computers Members could bring into the Chamber. If an iPad was lost, it was password protected. But the only information on the iPads that was confidential were the personal notes and e-mails made by a Senator. It was a necessary gadget for Senators to access parliamentary papers, so they used it. Senators could not use it for frivolous activities: they could only put apps on it with the permission of the parliamentary ICT service. All parliamentary documents had been electronically archived since 1995. All papers dating back to 1815 were now on a special website. Members’ ability to access precise information online about the previous year’s budget allowed for more informed debate and questioning in discussions on the upcoming budget. There was only one Senator who had objected to the iPads, but he had been brought round with the help of his wife within a month.

96


RECENT DEVELOPMENTS IN THE INTER-PARLIAMENTARY UNION

—

Presentation by Mr Martin CHUNGONG and Ms Kareen JABRE(Inter-Parliamentary Union)

97

Const.Parl.Inf. 61 (2011), 20298

Const.Parl.Inf. 61 (2011), 202 99

Const.Parl.Inf. 61 (2011), 202100

Const.Parl.Inf. 61 (2011), 202 101

Const.Parl.Inf. 61 (2011), 202102


Mr CHUNGONG said that fast-moving developments in the Middle East, with the ‘Arab Spring’, had raised awareness that the IPU needed a rapid response mechanism to react to similar developments in a timely way. He mentioned a request from the Parliament of the Cook Islands for more information on international comparators on how parliaments themselves were held accountable, particularly in terms of their spending. There had been support from ASGP members for the Palestine Legislative Council project, which was to begin shortly. Secretaries general would be asked to make their expertise available.

There had been a delay in publication of the Global Parliamentary Report, because more research had been required than originally envisaged. He hoped that secretaries general would contribute to the expert review of the draft report that would take place in December.

The IPU’s working methods had been reviewed by an external consultant. The IPU was moving towards resource-based management, and aimed to measure better the impact of its activities around the world. The IPU was, of course, under pressure to reduce its budget.

Mr CHUNGONG thanked Dr AMRANI for his co-operation over the previous three years, and said that he looked forward to working closely with Mr BOSC.

Mr LAURENCE SMYTH (UK) congratulated the IPU on an excellent sourcebook, which would prove a valuable resource. He thought that only

103


through printing on paper could certain documents be optimally influential, and was concerned that budgetary reductions might make this more difficult in future.

Mr DINGANI (South Africa) asked if the study had picked up on threats to the promotion of gender equality, in particular failure to prepare women sufficiently for positions of leadership.

Ms JABRE agreed with Mr Dingani on the need to provide capacity-building for female parliamentarians after their election, not just to support them in getting elected in the first place, but also pointed to a lack of understanding in many Parliaments of what gender mainstreaming meant in practice. Institutional capacity-building could also therefore be necessary.

Mr ZVOMA (Zimbabwe) mentioned that the women’s caucus in his Parliament, although well-supported, tended to preach only to the converted, rather than reaching out to the male ‘culprits’. He asked for observations on this phenomenon.

Ms JABRE said one of the challenges caucuses faced was how to join up with Parliament’s other work. Some caucuses also had men as honorary members, Rwanda for example.

Dr AMRANI, President, said that he was impressed by the impressive and committed work carried out by Ms Jabre and her team. He mentioned a draft law being studied in Algeria under which 33% of seats would be reserved for women. The ASGP also gave thought to the place of women within parliamentary administrations. He stressed the importance of the IPU’s work in other North African countries.

104


THE CONCEPT OF AN ACTIVIST PARLIAMENT

—

General debate moderated by Zingile DINGANISecretary to the Parliament (South Africa)

“Let me firstly thank you for the opportunity to provide introductory remarks to this important topic.

South Africa’s history of racial oppression and the denial of human rights are well documented. In the free and democratic society we fought so hard to establish, we based our struggle on the principle contained in the first clause of the Freedom Charter of 1955 where it states:

“The people shall govern”.At the dawning of the new democratic age for South Africa, our

Constitution was crafted in such a way that it sought to heal the divisions of the past and establish a society based in democratic values, social justice and fundamental human rights.

The South African Constitution today lays the foundation for a democratic and open society in which government is based on the will of the people and every citizen is equally protected in law. In drafting our Constitution, ensuring equal social and political inclusion in society, was of utmost importance. As such, our Constitution provides the political and legal structure to guarantee and protect all human rights and puts in place mechanisms through which governance based on the will of the people is ensured.

An activist Parliament calls for an approach in which Parliament interacts with and responds to the needs of the people. This means that the programmes of Parliament should be driven by the people and should be for the people. This is a central tenant for Parliament as an institution mandated to ensure both representative and participatory democracy.

105


In the South African Parliament this has been given impetus through the vision of our Parliament:

“To build an effective people's Parliament which is responsive to the needs of the people and that is driven by the ideal of realising a better quality of life for all the people of South Africa”.

Parliaments should be the vehicle through which people and civil society at large are reached. In this regard the terms “people’s parliament” and “activist parliament” should be seen as mutually reinforcing constructs.

In recent meetings the African National Congress (ANC) has also come out in support of the concept of an activist parliament when it stated the following:

“Legislatures and the entire legislative arm of the State are to be treated as an activist’s forum. The ANC has committed itself to an activist Parliament and Legislatures that put the interests of all South Africans first, especially the poor, as it performs its constitutional responsibilities as a National Liberation Movement and governing party...The Legislatures must be felt by the people. They must be visible through their representatives and have a meaningful impact upon the lives of the people so that they can practically feel and see in practice the concept of “the People shall govern” that the Freedom Charter spoke of in 1955. To achieve this there is a need to have a “Peoples Parliament” and Parliamentary Constituency Offices that are used as springboards for community outreach work. These offices must be the hubs for advice, the engine rooms for discussion and centres where communities can receive literature and information to become informed...”

Parliaments should be seen not only as the guardians of democracy, but must also shape and give meaning to democracy. Parliaments are the central institutions of democracy that represent the hopes and aspirations of the people. Parliaments must ensure transparency, responsiveness and accountability of government to the people.

In South Africa, our Constitution, specifically mandates Parliament to facilitate public involvement in its legislative and other processes. Public participation is both an obligation and a powerful tool to ensure an inclusive process that strengthens democracy.

A core function for Parliament is also to maintain oversight of Government on behalf of our people. It is Parliaments that must hold government to account for the achievement of their development commitments, to ensure that these commitments are truly reflected in national plans and policies and in the national budget. The oversight function of parliaments is the most important power that we have to ensure and assist our governments to meet their commitments to the people.

Parliaments must ensure that all executive organs of state are accountable to it and that it maintains oversight of the national executive authority. Parliaments must therefore ensure that they conduct their mandate of conducting oversight and ensuring accountability in such a manner that the needs of ordinary people are represented while service delivery is enhanced.

South Africa has adopted legislation which gives parliament the ability to effect changes to the national budget. We intend to use this oversight tool

106


to ensure that our Government’s policies allow for sufficient expenditure to ensure the improvement of the quality of life of all our people.

Challenges of inequality, poverty, increased joblessness, climate change, migration, food security and financial turmoil face all countries today. These challenges require Parliaments to intensify their efforts to become activists for change. In this regard they must give voice to the people in the advancement of both representative and participatory democracy. Our Parliaments can not be a place of stale debate without bringing about meaningful change for the people they represent.

An activist Parliament, however, also needs people and civil society to be activist in their own right. This activism requires devotion to principles of egalitarianism, and partnership with the people, who are included as co-decision makers, co-planners, co-implementers, co-monitors and co-evaluators of the laws and projects that are meant to change their lives for the better.

As we have witnessed, sweeping changes in the world have been brought about by the calls for democratic accountability from ordinary people who demand that their voices be heard and that they are governed in an accountable and transparent way.

A strong civil society which functions in support of the democratic political order may be seen as a way in which democracy can be upheld. The development of a democratic culture where the rights of all people are protected, discrimination is eliminated and people actively exercise their civil rights can be a catalyst to uphold the democratic principles we all hold dear.

This, however, also gives us the responsibility to ensure that our Parliaments provide not only for public participation, but also for public education that promotes democratic values, respect for the rule of law and fosters tolerance and inclusivity within society.

In this regard the South African Parliament has embarked on a process of establishing Parliamentary Democracy Offices which act as satellites of the national Parliament. We also regularly hold programmes to “take Parliament to the People” specifically in deep rural areas. We also have various sector Parliaments that look specifically at the matters of concern to the youth, women or the disabled.

It is my view that an activist Parliament should seek to correct injustice, to put the interests of the people we serve first, most specifically the poor, to be visible and to have a meaningful impact on the lives of people.

Parliaments must ensure that they continue to emerge as agents for change, as true activists in the fulfilment of their representative, legislative and oversight roles.

I hope that in our discussion today we will be able to further elaborate on the concept of an activist Parliament, to set out what we consider to be the attributes of such a Parliament and to debate our place in ensuring the realisation of this ideal.

I thank you.”

107


Mr BOSC (Canada) said that the struggle for servants of parliament was to understand what activism could mean for them in a context of political impartiality. In Canada, it could only involve promotion and defence of the institution of Parliament – the rest was for the politicians. Canadian parliamentary staff worked with schoolteachers, for example, to help promote understanding of Parliament among children. He asked to what extent did Mr Dingani and his staff have to take care to balance the demand for activism with political circumstances in South Africa.

Mr LAURENCE SMYTH (UK) suggested that some of South Africa’s difficulties in reaching out to localities was its use of a list system for electing Members. The public in the United Kingdom was beginning to set the agenda for Parliament, through the introduction of an electronic petitioning system. Thanks to a popular initiative with more than 100,000 supporters, the Commons was going to debate whether the United Kingdom should leave the European Union. This was an attempt to make the institution responsive to public opinion.

Mr AGNIHOTRI (India) said that in his country, Parliament had surrendered much of its jurisdiction to the Executive and judiciary. Proceedings were regularly disturbed, with little legislative work taking place. This was a defeatist, rather than an activist, Parliament.

Mr ZVOMA (South Africa) asked about how the people were expected to benefit from an activist Parliament.

Mr KALKAN (Turkey) said that his Speaker had ordered him to prepare for an open e-consultation via the parliamentary website. Both public and NGOs had very little information about the law-making process. They needed to be helped to contribute, but could not substitute themselves for elected politicians.

Dr AMRANI, President, thanked Mr DINGANI and other members who had contributed to the debate.

Mr DINGANI (South Africa) responded, by reiterating that

parliamentary staff needed to remain non-partisan. Their role was to support politicians of all parties. The electoral system in South Africa was supported by all the political parties. A constituency-based system would fail to ensure representation of minorities in South Africa. In governing, public opinion needed to be taken into account without going back on manifesto commitments. Activism did not require conflict, just that parliamentarians needed to be active in fostering a close relationship with the people. He suggested colleagues read Noam Chomsky’s book Hopes and Prospects.

108


INTER-PARLIAMENTARY UNION

AimsThe Inter-Parliamentary Union, whose international Statute is outlined in a Headquarters Agreement drawn up with the Swiss federal authorities, is the only world-wide organisation of Parliaments.The aim of the Inter-Parliamentary Union is to promote personal contacts between members of all Parliaments and to unite them in common action to secure and maintain the full participation of their respective States in the firm establishment and development of representative institutions and in the advancement of the work of international peace and cooperation, particularly by supporting the objectives of the United Nations.In pursuance of this objective, the Union makes known its views on all international problems suitable for settlement by parliamentary action and puts forward suggestions for the development of parliamentary assemblies so as to improve the working of those institutions and increase their prestige.

Membership of the UnionPlease refer to IPU site (http://www.ipu.org).

StructureThe organs of the Union are:1. The Inter-Parliamentary Conference, which meets twice a year;2. The Inter-Parliamentary Council, composed of two members of each

affiliated Group;3. The Executive Committee, composed of twelve members elected by the

Conference, as well as of the Council President acting as ex officio President;

4. Secretariat of the Union, which is the international secretariat of the Organisation, the headquarters being located at:

Inter-Parliamentary Union5, chemin du Pommier

109


Case postale 330CH-1218 Le Grand Saconnex

Genève (Suisse)

Official PublicationThe Union’s official organ is the Inter-Parliamentary Bulletin, which appears quarterly in both English and French. The publication is indispensable in keeping posted on the activities of the Organisation. Subscription can be placed with the Union’s secretariat in Geneva.

ASSOCIATION OF SECRETARIES GENERALOF PARLIAMENTS

AimsThe Association of Secretaries General of Parliaments, constituted as a consultative body of the Inter-Parliamentary Union, seeks to facilitate personal contacts between holders of the office of Secretary General in any Parliamentary Assembly, whether such Assembly is a Member of the Union or not.It is the task of the Association to study the law, procedure, practice and working methods of different Parliaments and to propose measures for improving those methods and for securing cooperation between the services of different Parliaments.The Association also assists the Inter-Parliamentary Union, when asked to do so, on subject within the scope of the Association.

Executive Committee (Bern 2011)President: Hafnaoui Amrani (Algeria).Vice-Presidents: Marc Bosc (Canada), José Pedro Montero (Uruguay).Elected Members: Mr Heiki Sibul (Estonia), Oum Sarith (Cambodia), Ulrich Schöler (Germany), Alain Delcamp (France), V.K. Agnihotri (India), Alphonse K. Nombre (Burkina Faso).Former Presidents and honorary members: Helge Hjortdal (Denmark), Doudou Ndiaye (Senegal), Sir Michael Davis (United Kingdom), Adelina Sà Carvalho (Portugal), Ian Harris (Australia), Anders Forsberg (Sweden), Jacques Ollé-Laprune (France).

Constitutional and Parliamentary Information

110


Published by the Association of Secretaries General of Parliaments, under the auspices of the Inter-Parliamentary Union, is issued twice a year both in English and French.

One number.........................................................................25 CHFOne year (two numbers)......................................................40 CHF

Orders for subscription may be sent to:Mme Sylvie Piard-BeaubeAssemblée nationale. 126, rue de l’Université. F-75355 Paris Cedex 07 SPCourriel : [email protected]

111

constitutional & parliamentary - asgp · web viewrelations between parliaments and the...

Documents