Constitutional & Parliamentary Information — 58th Year No 195

constitutional & parliamentary information — 58th year, no. 195 cape town, april 14 – 18, 2008 contents the role of parliamen

constitutional & Parliamentary
Information
—
58th year, No. 195
Cape Town, April 14 – 18, 2008
CONTENTS
The role of Parliament in a changing environment — Zingile Dingani
Secretary General of the Parliament (South Africa) 3
The work of parliamentary committees — General debate moderated by
Anders Forsberg, President 11
The autonomy of Parliaments: responses to a questionnaire — Alain
Delcamp Secretary General of the Senate (France) 37
Reform of the Portuguese PARLIAMENT: progress and problems — Adelina
Sà Carvalho Secretary General of the Assembly (Portugal) 63
An example of well developed parliamentary minority rights: the rules
of procedure of the German Bundestag — Ulrich Schöler Deputy Secretary
General of the Bundestag (Germany) 73
The role of the backbencher — Douglas Millar Clerk Assistant of the
House of Commons (United Kingdom) 81
Participation in the legislative process of the NGO’s in Turkey — Ali
Osman Koca Secretary General of the Grand National Assembly (Turkey)
87
The Pan-African Parliament — Morad Boularaf Deputy Secretary General
of the Pan-African Parliament 91
The role of parliamentary committees and their impact on the budget
process in the SADC region — Austin Zvoma Clerk of the Parliament
(Zimbabwe) 95
The challenges of parliamentary administration in African countries:
the case of Algeria — Hafnaoui Amrani Secretary General of the Council
of the Nation (Algeria) 105
The African Network of Parliamentary Staff — Brissi Lucas Guehi
Secretary General of the National Assembly (Côte d’Ivoire) 123
Parliaments as peacebuilders in conflict-affected countries — General
debate moderated by Mr Ian Harris Clerk of the House of
Representatives (Australia) 129
IMPEACHMENT: still a relevant institution ? Recent changes in Norway —
Hans Brattesta Secretary General of the Parliament (Norway) 141
Parliamentary relations with the media : responses to a questionnaire
— Xavier Roques Secretary General of the Questure of the National
Assembly (France) 147
Promotion of exchanges between parliamentary secretariats in the
global era — Tae-Rang Kim Secretary General of the National Assembly
(Republic of Korea) 163
Parliaments and privacy legislation — Jacqueline Biesheuvel-Vermeijden
Secretary General of the House of Representatives of the States
General (Netherlands) 169
The revision of the institutions of the Fifth Republic — Xavier Roques
Secretary General of the Questure of the National Assembly (France)
173
The role of Parliament in a changing environment
—
Zingile Dingani
Secretary General of the Parliament (South Africa)
The Members of all our Parliaments have represented the voices of the
people over many years, as the reach of democracy and good governance
increase day by day. Although Members of Parliament still perform
their basic function of representation today, the context within which
they fulfil this has dramatically changed over the last hundred years.
Since the beginning of the previous century four major areas have
radically changed the landscape of the work of Members of Parliament.
Firstly, the work of government has become extremely complex over the
last few decades. Legislation and other instruments reflect this
complexity as they regulate matters such as communications, the use of
technology, the protection of the environment and many more. As
parliaments oversee the work of government, these complexities demand
of members high levels of expertise and capacitation.
Secondly, whereas members fulfill a vital role of communicating
information about governance and other important matters, the
expansion of information technology has provided greater access to
information to citizens.
Thirdly, and also assisted by the expansion of information technology,
the role of the media has become more prominent in the role that they
play in our society.
Lastly, the role that Parliaments play in international relations and
participation in global governance structures has increased
significantly.
It is these and other trends that tell us that as in the last hundred
years, the future will bring many challenges that will necessitate
parliaments to keep on evolving.
South Africa – a celebration of freedom
Since the early decades of the previous century, much interest was
shown all over the world in archeological findings which tells the
silent and ancient history of those that came before us. Several major
findings point to the origin and existence of many societies and
communities on all continents. As information on these findings became
more known, and technological advances assisted in the analysis of
these, clear links were built to provide a full picture of the
evolution of human life.
The recent discoveries at the Sterkfontein caves, here in South
Africa, have established another vital link in the unravelling of the
understanding of early human life. This discovery at the site in South
Africa, now known as the Cradle of Humankind, has produced some of the
oldest archeological findings up to date and indicates that life
started on the African continent.
In a further development around these matters, Parliament established
the Millennium Programme (PMP) with the discovery of several ancient
maps of Africa. These maps predate any previously known maps and
indicate that the African continent has been a thriving and prosperous
continent with even trading relations with the Far East, as far back
as a thousand years.
Chairperson, this specific discovery, which is also the mission of the
Millennium Programme, challenges the perspectives of Africa that the
continent was discovered by European colonisers in the last few
hundred years. This perspective is indeed far from the truth. As part
of this issue, the further global customary view of our planet has
complicated matters. As a mapping convention, and innocent reflection
by the cartographer, the first global maps of the world established
that North is top and South is bottom. All over the world maps are
printed in this way, even up until today. And since there is actually
no link between North and Up, or South and Down, our view agrees with
maps found indicating that South Africa is rather on top.
The struggle for freedom from colonial powers and the oppression from
the apartheid regime, is recent history in South Africa. This struggle
came to a turning point with the un-banning of the ANC and the
subsequent release of Nelson Mandela in 1990, here in Cape Town. This
led to a process of negotiation by all parties in South Africa, which
led to the establishment of a new era through the adoption of the
Constitution.
The first democratic elections in South Africa were held in 1994. This
event was witnessed all over the world, and hailed as a miracle. We
inherited the name of the rainbow nation overnight.
The Constitution
The Constitution was drafted and adopted in 1996 as the supreme law of
South Africa after an extensive public participation process. It lays
the foundation for a democratic and open society in which government
is based on the will of the people. The Constitution contains the Bill
of Rights, the cornerstone of democracy in South Africa, enshrining
the rights of all our people and affirming the values of human
dignity, equality and freedom. It further establishes South Africa as
a single, sovereign, democratic state, founded on the values of :
– Human dignity, the achievement of equality and the advancement of
human rights an freedoms
– Non-racialism and non-sexism
– Supremacy of the Constitution and the rule of law
– Universal adult suffrage, a national common voters roll, regular
elections and a multi-party system of democratic government, to ensure
accountability, responsiveness and openness.
Governance in South Africa is affected through Parliament, the
Executive and the Judiciary. The legislative authority is vested in
Parliament, the Executive authority is vested in the President, and
the judicial authority is vested in the Courts. Chapter three of the
Constitution provides the principles and values of co-operative
government by which the arms and spheres of government must work
together in securing the well­being of the people of South Africa.
Government is constituted as national, provincial and local spheres,
which are distinctive, interdependent and interrelated. In addition,
the Constitution provides for state institutions supporting democracy,
and includes:
*
The Public Protector
*
The South African Human Rights Commission
*
The Commission for the promotion and protection of rights of
Cultural, Religious and Linguistic Communities
*
The Commission for Gender Equality
*
The Auditor-General
*
The Electoral Commission
These institutions are independent, and subject only to the
Constitution and the law, and they must be impartial and perform their
powers without fear, favour or prejudice.
Role of Parliament
The role and mandate of Parliament, as prescribed in Chapter four of
the Constitution, is to represent the people and ensure government by
the people under the Constitution.
In this, the Constitution establishes a people centred democracy,
where our people form the centre of our democracy. The unique nature
of the democracy lies in its characteristics, being a representative
and participatory democracy. This means that Members of Parliament are
elected as the representatives of the people, whilst the Constitution
provides for the involvement of people in the legislative and other
processes of Parliament.
The role of Parliament includes the promotion of the values of human
dignity, equality, non-racialism, non-sexism, the supremacy of the
Constitution, universal adult suffrage and a multi-party system of
democratic government. It upholds our citizens’ political rights, the
basic values and principles governing public administration, and
oversees the implementation of constitutional imperatives.
The Core Objectives of Parliament are as follows:
*
Passing legislation in accordance with the provisions in the
Constitution (Bills amending the Constitution, Ordinary Bills not
affecting provinces, Bills affecting provinces, and Money Bills).
*
Conducting oversight over the Executive, through various
mechanisms including question to the Executive, the budget
process, the accounting of Ministers to the committees of
Parliament, and the scrutiny of departmental annual reports.
*
Facilitating public participation and involvement in the processes
of Parliament.
*
Promote and oversee co-operative government, and to
*
Engage in, participate in, and oversee International relations.
How Parliament functions
Parliament comprises of two Houses. There is a clear demarcation of
responsibilities between the two Houses, the National Assembly and the
National Council of Provinces.
The National Assembly represents the people, chooses the President,
acts as a national forum for debate, passes legislation and oversees
executive actions. The National Council of Provinces represents the
interest of the provinces, participates in the national legislation
process, and receives mandates from the provincial legislatures.
The work of Parliament happens in committees, the engine rooms of the
Institution. Parliament has several different types of committees,
including Portfolio Committees (National Assembly), Select Committees
(National Council of Provinces) and Joint Committees
Committees function under the authority of the respective house of
Parliament. Bills and matters of core business are referred to these
committees. It is here where Members of Parliament consider bills and
issues in further detail. Committees make recommendations and deliver
reports to the Houses from where these recommendations are deliberated
upon and adopted.
Governance of Parliament
Section 45 of the Constitution provides for the Joint Rules Committee,
which makes rules and orders concerning the business of Parliament. It
determines the procedures to facilitate the legislative process, and
establishes joint committees to consider matters referred to such
committees.
The new governance model creates a directing authority for Parliament
called the Parliamentary Oversight Authority (POA). The mandate of the
POA is to ensure an effective and efficient Parliament by putting in
place an appropriate system of governance by which Parliament is
managed and controlled in support and furtherance of its strategies
and policies.
Members feed into the governance structure through the Consultative
Forum. The Executive Committee which comprises of the Presiding
Officer balances the needs of members against the financial resources
of Parliament. This is done through the Parliamentary Budget Forum.
In terms of legislation, the Speaker of the National Assembly and
Chairperson of the National Council of Provinces acts jointly as the
treasury of Parliament. The POA then considers all matters and then
reports to the Houses as necessary.
The Constitution furthermore provides for the Leader of Government
Business, which serves as the interface between Parliament and the
Executive.
Vision and Strategic Objectives for 3rd Democratic Parliament
At the start of the 3rd democratic Parliament, processes were
initiated for Parliament to facilitate discussions on the Vision for
Parliament. As a result of these processes, both the National Assembly
and National Council of Provines produced working documents based on
the identification of key issues in the environmental analysis.
Within the context of Parliament, three areas were identified to lead
the process by which a new vision will be created. The first area was
the area of oversight and related matters, secondly the area of public
participation and involvement, and lastly the area of creating an
effective and efficient institution.
This process then culminated in the adoption of the new Vision of
Parliament on 22 February 2005 by both Houses of Parliament.
The new Vision is:
To build an effective people’s Parliament that is responsive to the
needs of the people and that is driven by the ideal of realizing a
better quality of life for all the people of South Africa.
This vision is being implemented through three strategic objectives,
that of building a quality process of scrutinizing and overseeing
government’s action, further building a people’s Parliament that is
responsive to the needs of all the people of South Africa, and
building an effective and efficient institution.
Achievements made since 2005
Since 2005 significant achievements were made towards the
implementation of this new vision.
Firstly the introduction of various sectoral progammes have provided
opportunities for people to interact with parliament and to actively
participate in the processes of Parliament. These programmes of public
participation include the People’s Assembly (an annual sitting of
Parliament in one of the nine provinces), the Taking Parliament to the
People campaign (by which the National Council of Provinces have two
sittings annually in different provinces), the Women’s Parliament, and
the Youth Parliament.
In order to further provide access to the work of Parliament, we
established Parliamentary Democracy Offices in provinces.
A major achievement was the very recent adoption of the Oversight
Model in the Joint Rule Committee. This Oversight Model provides for
the conceptual mechanism and other instruments by which oversight is
conducted over the Executive.
As you are aware, the pace at which technology develops today,
provides a huge challenge to our institutions. Parliament developed
the Master Systems Plan by which new systems and technologies will be
implemented.
One of our challenges remains the matter of capacity building for our
members. For this purpose, we introduced a Leadership Development
Programme.
Chairperson, in my previous slide I have indicated the importance of
Committees in Parliament. However, the work of Committees over the
last ten years has not only increased due to its volume, but also
because of the additional impact of the increasing complexity of
government, the use of technology, and public participation. As a
consequence the capacity of the Committee Section had to be increased
in terms of its research and content function by the provision of more
researchers and subject experts. We also created dedicated support to
committees in this regard.
Lastly, we have recently embarked on a new programme to provide more
space and accommodation for Parliament.
Challenges we are facing
Going forward, we face certain challenges, including the following:
The changing needs of the electorate and how to renew our institutions
*
A renewed focus on public participation and involvement
*
Our continued efforts to strengthen democracy and its institutions
*
Strategies to retain institutional knowledge
*
Matters of global governance and international participation in
continental and regional parliaments
*
The role and status of Parliament in relation to the Executive
Role of Parliament in an evolving world
In conclusion Chairperson, we need to ask ourselves the following
questions in order to prepare for the future, and to also understand
how our institutions can best support the work of members, and
ultimately the work of Parliament.
*
How will our institutions look in 2030?
*
What will be the status, role and image of Parliaments (public
trust)?
*
Who will be the electorate?
*
Who will be our representatives?
*
How will the institution best support Members?
*
What can now be done to position for the future?
*
Where will the 162nd Plenary of the IPU take place?

Mr Quddas KHAN (Bangladesh) asked for further information on
Parliament’s functions as a check, particularly in the context of the
scrutiny model described by Mr Dingani; he asked if resolutions
reached by parliamentary committees with regard to the Government were
binding.
Mr Marc BOSC (Canada) wished to understand how the machinery for the
annual sitting of parliament in one of the provinces was organized.
Did the two chambers meet together? What were the logistical aspects
of this sitting?
Mr Ahmed A. ALYAHIA (Saudi Arabia) asked for information about the
staff working for the Parliament. How many were there? Were there
research and expert staff?
Mr Constantin TSHISUAKA KABANDA (Democratic Republic of Congo) asked
for more information about the Youth Parliament, its role and impact
on the aims of Parliament (parliamentary control of government,
legislation and budget).
Mr Zingile DINGANI replied that the control exercised by Parliament
was a constitutional imperative within the South African political
system, and that the scrutiny model created a framework for this. One
of his priorities, moreover, was to strengthen the resources and
expertise provided to parliamentarians for their work in committees,
in order to be in a good position compared with ministers, who had
large teams available to them. As for committee resolutions, they had
to be adopted by both Chambers, but also, in practice, be in line with
the Government’s political orientation, in order to become binding.
Nevertheless, if the Government made undertakings which it was not
respecting, Parliament could draw attention to this and invite it to
respect these undertakings.
When the Assembly held its annual meetings in one of the provinces of
South Africa, it worked in particular on a subject of primary interest
to the relevant province. For this Assembly of the people, the sitting
took place in the normal way, under the same rules, with in addition
the possibility for everyone to take part in the deliberations of the
chamber. This annual session often took place in remote areas, and it
had happened that the logistics could be a little complex, with for
example the erection of a tented camp.
In total, 1,300 people worked in the South African parliament. Support
for committees was provided by the Committee Office; it was
nonetheless not unusual to call on external resources when they could
not be provided from within the Parliament.
Constituted and brought together each year, the Youth Parliament was
not a permanent organisation. It was essentially interested in
Government policies affecting young people, and the conclusions from
its work were presented to the Government, which took its
recommendations into account. As for budgetary control, the
Constitution foresaw that Parliament should have a say in this area,
but it was convenient to take into account the principle of separation
of powers. Parliament took part in the preparation of the national
budget; by way of example, the National Council of Provinces kept
watch to ensure that the allocation of the budget to the provinces was
equitable.
Mr Anders FORSBERG, President, wanted to know the history of the
Vision for Parliament presented by Mr Dingani: was it based on a
decision of the Speaker? Had the Parliament had a role in developing
this Vision?
Mr Dagnachew BEFEKADU (Ethiopia) wanted to know by what means those
parties not belonging to the majority were represented on committees,
and in what way they contributed to the activities of the Parliament.
Dr José Pedro MONTERO (Uruguay) asked in what way the National Council
of Provinces took part in the national legislative process.
Mr Zingile DINGANI replied that the development of the Vision for
Parliament had followed a complex process, beginning in 2003, under
the second legislature, with the third legislature putting the
finishing touches to it. The political parties, but also the Speakers
of the National Assembly and the National Council of Provinces took an
active part in this process, which involved long negotiations. In
November 2004, an agreement was reached within the joint committee on
the wording of this vision.
The mission of the Electoral Commission, an independent authority, was
to educate voters, and it carried out before any election, a large
amount of work on the ground, in order to ensure that citizens could
exercise their choice in good conditions and could participate without
impediment in the elections at any polling station. The Vice-President
of South Africa was in charge of ensuring good relations between
Parliament and the Executive, in particular concerning the means of
control of the former over the latter (Questions to Ministers,
Ministerial statements). All of the political parties were
well-represented in Parliament, but also in the parliamentary
governing body, mentioned earlier, including small opposition parties.
The mission of the National Council of Provinces was to look after the
interests of the provinces; for example, if a bill risked having an
impact on these, the National Council must organize public hearings on
the proposal, including hearings in the provinces, and then organize
meetings to discuss the proposal. Ultimately, the members of the
National Council vote not along party lines, but according to the
interests of the provinces.
The work of parliamentary committees
—
General debate moderated by Anders Forsberg, President
Mr Anders FORSBERG, President, presented the following contribution:
“Development of the work of the committees in the Swedish Parliament”.
Introduction
There are 15 parliamentary committees with the task of ensuring that
all items of parliamentary business are considered thoroughly before
any decisions are taken. In addition to these parliamentary
committees, the Riksdag has a Committee on European Affairs. The main
task of the committees is to present proposals as a basis for
decisions by the entire Riksdag. Each of the parliamentary committees
has 17 members representing the parties in proportion to their
relative strengths in the Riksdag. When the Government submits a bill
to the Riksdag, it must first be considered by a committee before a
decision can be taken. This is known as compulsory referral to a
committee. The same applies to private members’ motions from the
members of the Riksdag. These must also be considered by a committee
first before the Riksdag can take a decision.
Each committee has one chair and one deputy chair. The chairs preside
over the committee meetings. Each committee has its own secretariat,
headed by a committee secretary, and staffed by between five and ten
officials who assist the members in drafting their reports with
proposals for decisions. These reports are referred to as committee
reports. The officials are non-political appointees.
Evaluation and follow-up in the Riksdag
– Background
The Riksdag has devoted considerable attention in recent years to
finding methods to develop its work with democracy. The general
objective is that parliament and its committees will obtain
high-quality background materials in order to set correct priorities
and better be able to assess the resources required to achieve
politically determined targets. When the members of the Riksdag and
parliamentary committees consider Government bills, written
communications and private members’ motions, they should be acquainted
with the outcome of previous decisions taken by the Riksdag. This is
to be achieved through follow-up and evaluation. In 2001 and 2006, the
Riksdag adopted guidelines for the follow-up and evaluation by the
parliamentary committees. According to the Riksdag’s guidelines,
follow-up and evaluation are to become a natural part of the
activities of all committees. Follow-up and evaluation as a task for
the committees has also been written into the Riksdag Act.
The higher level of ambition for the committees’ work with follow-up
and evaluation has meant new responsibilities for the Riksdag
Administration, which is to support the work of the committees. The
committees are supported by the committee secretariats and the
Research Service’s evaluation and research unit, which was established
in the autumn of 2002. The unit serves both as a support to the
parliamentary committees in their follow-up and evaluation activities
and as a motor in the general development of committee activities.
Special funds have also been earmarked for the procurement of
researchers and other experts who can provide background materials for
the committees’ follow-up and evaluation activities.
Follow-up and evaluation are to be included in the committees’ regular
processing of parliamentary business, and can either be thematic or
ongoing. The committees’ thematic follow-up and evaluation activities
normally concern larger initiatives to build up the knowledge base in
connection with the consideration of an item of parliamentary
business. Ongoing follow-up activities include assessing targets and
target statements as part of the committees’ consideration of the
Budget Bill, and analysing information provided by the Government
about results in relation to targets set by the Riksdag.
– Examples reported and ongoing evaluation projects
During the last electoral period (2002–2006) about 60 thematic
evaluation projects were completed by the committees. The results from
the projects are usually published in the committee reports and/or in
the Riksdag publications series Reports from the Riksdag, which can
all be found on the website. The following are examples of projects
from recent years:
*
The Committee on Environment and Agriculture has evaluated the
results of Sweden’s fisheries policy and its consequences for
enterprises in the fisheries sector. This project lasted for about
one year. Evaluators from the evaluation unit supported the
Committee by conducting interviews and collecting data.
*
The Committee on Transport and Communications evaluated the
measures that the Government had taken to restore the
infrastructure system after the devastating storm that struck the
southern parts of Sweden in January 2005. The basics for the
project were carried out by the committee secretariat and the
evaluation unit.
*
The Committee on Justice has an ongoing project where similarities
and differences between women and men in prison are compared and
evaluated. The project will pay visits to prisons, for example a
prison for women. The committee secretariat and the evaluation
unit support the group with research and basics.
Research and future issues in the parliamentary decision process
– Background
In June 2006, on the basis of the Parliamentary Review Commission’s
proposals, the Riksdag adopted guidelines for the Riksdag to begin
working more systematically, and with a higher level of ambition, with
issues relating to research and the future. This task should primarily
be dealt with by the regular organisational structures. This means
that the committees and committee secretariats need to take
considerable responsibility. This is the best way of ensuring that
this knowledge is incorporated into the day-to-day work and
decision-making process of the Riksdag and that it contributes to
well-founded decisions.
– Guidelines
During the spring of 2007, two new research secretary positions were
established as a support to the committees with issues related to
research and future issues. The new guidelines adopted by the Riksdag
include, for example, research overviews. All committees will have the
opportunity to conduct at least one research overview, presenting
Swedish and international research within their respective areas of
responsibility. An example of present work is the Committee on
Environment and Agriculture which has initiated a research overview of
fish ecosystems, with the aim of increasing the knowledge base when
considering the 2008 Budget Bill.
Another example is that the committees can cooperate in initiating
joint analyses of the future and performing technology assessments.
The committees’ proposals and requests can be submitted to the
Research Service’s evaluation and research unit, which assists in
conducting analyses of the future and technology assessments. The
ambition is that the Riksdag’s work with issues relating to the future
should largely take place on a cross-committee level. An example of
present work is the Committee on Transport and Communications that has
prepared a research overview on renewable fuels with the aim of
increasing the knowledge base in the field, presenting future
scenarios and preparing for the 2008 infrastructure bill.
Improved communication and the transfer of knowledge between
researchers and members of the Riksdag and developing national and
international networks are important. Contacts have been developed in
specific important areas, for example, with the help of the National
Science Council, other research councils and organisations.
International parliamentary cooperation in the fields of research and
futures studies has also been developed.
Events such as research and future days should be held at regular
intervals. In 2004 a research day was held, in 2005 three future days
were held and in January 2008 the Riksdag Future Day was organised.
Together, 11 committees organised three seminars on different themes,
where researchers presented future scenarios which were later
discussed together with the MPs.
Committee hearings are to be organised at which various research
findings and issues relating to the future will be presented and
considered.
Mr Ian HARRIS (Australia) presented the following contribution: “The
role of parliamentary committees in the light of the twentieth
anniversary of the Australian House of Representatives modern
committee system”.
Introduction
In 1987, the Australian House of Representatives established a
comprehensive committee system by setting up eight general purpose
standing committees. At the same time, the functions of the Joint
Committee on Foreign Affairs and Defence were extended. The total
result was that the House had the capacity to monitor the work and
operations of all federal government departments and agencies1. With
occasional variations in total number(increased to nine in 1992,
thirteen in 2002 and twelve in 2008), these committees have remained
operational throughout that time.
The twentieth anniversary of the establishment of the House’s modern
committee system thus occurred in 2007. However, because the high
possibility of a general election at about the time of the actual
anniversary, the Department of the House of Representatives decided to
postpone commemorative parliamentary action. The major event was a
seminar held in conjunction with the Parliamentary Studies Centre
based at the Australian National University. The Parliamentary Studies
Centre was the subject of a communication in Nusa Dua, Indonesia, in
May 2007.2 The seminar was conducted in Parliament House Canberra on
15 and 16 February 2008, and provided valuable insights into the
formation, functions and operations, and deficiencies of the House’s
committee system. The papers presented and the transcript of
proceedings is available on the Australian Parliament’s website.3 The
seminar was attended by current and Members of the House, current and
past members of staff, and leading academics and thinkers from
Australia and overseas.
Presentations and subsequent discussions focussed on the practical
side of parliamentary committees and the experiences of those who
participated in and chaired parliamentary committees over the
preceding twenty years. Academic presentations gave an institutional
and participative perspective. A staff person raised considerations in
assisting committees and posed challenging questions about wider
participation, particularly Australia’s indigenous people. The seminar
concluded with the contemplation of the current situation, the
challenges facing parliamentary committees and the role of committees
in determining the nation’s future.
It is not the intention to examine each presentation and ensuing
discussion in detail. The occasion presented an opportunity to reflect
on certain aspects of parliamentary committees, and to compare
experiences across a number of jurisdictions. Specific reference will
be made to certain aspects subsequently, particularly when the
conventional categorisation was challenged or questioned.
Functions of Parliament
The traditional view of the functions and needs of parliamentary
committees are appropriately viewed within the functions of the
legislature itself. Parliament discharges the following major
functions:
*
Forming the basis of government, under the system of responsible
government.
*
Legislating (including the sub function of providing finances, by
means of legislation).
*
Facilitating Members to perform their representation function:
providing a forum for the discussion of issues of national
concern; being a sounding board for the people.
*
Accountability, keeping the Executive accountable to the people
through the legislature.
Sometimes these functions overlap, and it is important not to see them
as isolated or mutually exclusive. Usually a legislature does not
legislate on Monday, provide a national forum on Tuesday, and make
Wednesday the day on which is performs its function of accountability.
The functions frequently cross categories; when Members are debating
legislation, they are obviously involved in the legislative function,
but as most Bills are initiated by the Government, the Parliament is
also exercising its accountability function. This is reflected in the
functions that parliamentary committees perform.
Functions of parliamentary committees
*
General functions: Parliamentary committees can range over all the
functions that the legislature itself performs, with the exception
of determining the formation of the Government. They perform
functions which Houses of Parliament are not as well-fitted to
perform, such as finding out facts of a case or issue, examining
witnesses, sifting evidence and drawing up reasoned conclusions.
*
Accountability: Committees provide an increased ability for the
Parliament to scrutinise government policy and expenditure.
Committees are frequently appointed to parallel the ministerial or
departmental structure adopted by the Executive. Each committee has a
responsibility to provide oversight of government agencies within
specific portfolios. It is not unusual for the scope of each
committee’s scrutiny power to be provided in a list from the Speaker
at the beginning of each Parliament.
The accountability functions of parliamentary committees include their
ability:
*
to conduct inquiries;
*
to compel the attendance of persons and presentation of documents;
and
*
to make reports and recommendations to Parliament.
In another presentation, I have identified the important role of
parliamentary committees in assisting Parliament to perform a role in
the peace building process. Parliamentary oversight of the security
sector (military, police & intelligence services) is desirable as part
of the legislature fulfilling a peace-keeping role. Frequently this
oversight occurs under a legislative framework, and is often conducted
by parliamentary committees
*
Legislation: Committees can be an important part of the
legislative process. Examination by a committee can allow public
input into the legislative process.
*
Representation/ Education of Members: Committees enable the
Parliament to be taken to the people, and enable evidence to be
gathered from expert groups or individuals. They enable direct
contact between the public and representative groups of Members of
Parliament and a flow of information to Members. They facilitate
an increased level of collegiality between members from different
political parties who may not otherwise have the opportunity to
work with one another.
One interesting concept that emerged from the twentieth anniversary
seminar related to the quotation from [Australian] House of
Representatives Practice cited in footnote 1 in this paper. Professor
John Halligan, from the University of Canberra, discussed the
committee role of monitoring or shadowing government departments and
instrumentalities, raising the question of where a committee system
begins and ends and posing the consideration that a fuller
appreciation of committee contributions needed to take into account
complementary functions performed by parliamentary committees.
Professor Halligan identified three basic types of committee policy
role:
*
Scrutiny
*
Investigation (divided into review and strategy)
*
Legislation.
Two broader responsibilities were central to the performance of these
roles:
*
Parliamentarians’ recruitment. And
*
Public interaction and communication.
The Speaker of the House opened the seminar. He saw accountability,
participation and collegiality as three features that a functional
system of standing committees could hope to achieve.
There was some examination at the seminar of the concept of one
function of a parliamentary committee as tapping into the wisdom of
the Australian people. One presenter, who had been a committee member,
the Chair of a committee, and subsequently a senior Minister, drew on
his ministerial experience to indicate that the civil service was
overwhelmingly comprised of hardworking, thoughtful and dedicated
people who wanted the best for Australia. However, there were
orthodoxies in all departments and agencies, and vested interests. It
was the role of committees to expose, to test and to challenge these
approaches. One presenter described the success of the committee
system as a coming together of something like a trinity, comprised of
politicians, public servants and the people. I believe that there is a
temptation to believe that all wisdom resides in Canberra, the
national capital of Australia. Committee members, representing a cross
section of Australian society, bring a practical perspective to the
examination of public issues, and they provide a means to tap into the
wisdom of the people.
However, there was also a serious questioning at the seminar about the
way in which committees operate. One presenter pointed to a lack of
understanding of the work that committees perform as being a barrier
to participation. Committees had widened their method of gathering
evidence to encompass seminars, roundtable discussions and community
statement sessions. However, the replication of a parliamentary
environment outside of Canberra was replicating its culture of
antagonism and debate and discouraged ordinary people from
anticipating in the process.
There was a need for Parliament to become more innovative in
communicating with the general population, and in opening committees
for external communication. One paper focussed on the impact of
technology on committee consultation, and whether increased usage of
deliberative information communications technologies would aid or
hinder the work of House committees. The concept of e-communication
was explored. A need was identified to get out of central business
districts, hotel conference rooms, parliamentary buildings, and to
enter schools, community halls and similar locations.
In taking Parliament to the people, a note of caution was sounded that
members not be seen as people who fly into remote locations, take
information as they need and then fly out again. Witnesses at the
grass roots level expressed feelings of frustration at explaining the
same things to different people who then flew out again. There was a
need to establish long-term working relationships within communities.
This could be undertaken by secretariat staff.
The need for relationship-building was of particular concern in
relation to Australia’s indigenous population. There were significant
barriers to indigenous participation in committee inquiries. The
Administrative Review Committee of the Parliament of the State of
Queensland identified the following as barriers to participation:
*
Lack of civics education (including how to vote and becoming more
involved in the political process);
*
Racism;
*
Lack of self-confidence;
*
Higher priority issues, more close to existence such as health and
housing);
*
Mistrust of government;
*
Westminster systems being inappropriate for indigenous people;
*
Participation being seen as a concession of sovereignty1.
A matter of personal concern to me has been the way in which the
system appears to be geared to a literate, Anglo-Saxon audience, both
in relation to inputs and outputs. It was gratifying to observe, some
time ago, a parliamentary committee report relating to an indigenous
matter to be presented in audio-visual as well as written form.
Methods of appointment of parliamentary committees & their inquiries
*
Investigatory committees are usually appointed:
*
by Act of Parliament
*
under standing orders
*
by resolution of the House
*
In bicameral parliaments, by the adoption of identical resolutions
of appointment by both Houses.
*
Committee inquiries are established by terms of reference that are
referred either by:
*
a Minister (the usual way of gaining an inquiry);
*
a House (or both Houses in the case of joint committees in a
bicameral system); or
*
self-referred (Under standing orders, an item of an annual
report or a report of the Auditor-General into an agency that
lies within the scope of the committee’s scrutiny powers under
the Speaker’s list. In Australia, this is an increasingly
popular method of instituting an inquiry.)
Committees are usually empowered to compel the attendance of
individuals and the presentation of documents. The defiance of an
order of a parliamentary committee or the provision of misleading
evidence may result in charges of contempt of the House.
Stages of committee inquiry
The common stages of committee inquiry are:
*
Receipt of terms of reference.
*
Collecting evidence:
*
Advertising;
*
Letters inviting submissions;
*
Internet.
*
Processing of submissions:
*
Briefing papers;
*
Possible questions.
*
Hearings;
*
booking venues; and
*
making some travel arrangements when meetings are held outside
of capital city.
*
Preparation of a draft report:
*
Reflecting the evidence and the trends indicated by committee;
members in private and public meetings – Tensions in the process -
A Chairman’s draft and the thoughts of other members;
*
Recommendations: How many and how specific?
*
Clarity of writing – Keeping the target audience in mind;
*
Printing arrangements.
*
Presentation to Parliament:
*
“Leaks”.
*
Assisting in speaking arrangements.
*
Media conferences.
*
Post-tabling action.
Possible limitations on powers of parliamentary committees
The following considerations may impose limitations on the powers of
parliamentary committees:
*
Budget: It is important for the committee to have an agreed budget
and to operate within that budget.
*
A Minister may claim certain information to have public interest
immunity on the grounds that disclosure would be prejudicial to
the public interest (sometimes referred to as “Executive
Privilege”). A committee may negotiate to receive the information
in private or it is open in principle for the committee to
challenge the Minister’s claim in the House by raising the matter
as a possible contempt of the House;
*
A Minster or a witness may declare information sought to be
commercial-in-confidence, where similar considerations to those
immediately above may apply;
*
Matters that have never been tested are:
*
In a federal system, the ability to compel a public employee of a
state or territory government, and
*
In a bicameral legislatures the power to compel the attendance of
a Member or staff person of the other House against the wishes of
the individual or the House in question.
A committee’s powers to gather evidence is balanced by the protection
of parliamentary privilege extended to all authorised information
provided to an inquiry.
Government response to committee reports
Once a committee has gathered adequate evidence it deliberates and
reports its findings together with any formal recommendations to
Parliament.
In some jurisdictions, governments have undertaken to provide
responses to committee recommendations within three months although it
is not rare for a government to fail to meet this self-imposed time
frame.
Where the government response system is employed, it is not unusual
for the Speaker to present a schedule to the House listing government
responses to House and joint committees and as well as responses that
remain outstanding. The Leader of the House also presents a list of
committee reports showing the stage reached with government responses
in each case.
During the twentieth anniversary seminar, one paper was devoted solely
to this topic. The suggestion was made that one of the most effective
ways to increase government responses to committee reports and thereby
increasing the effectiveness of parliamentary inquiries was for
committees to follow up their own reports by measures which included:
*
Dedicated researchers attached to the committee secretariat
(including the investigation of policy developments in
departments), and
*
Inviting the relevant Minister to meet with the committee to
update it on implementation of recommendations and explain any
inaction.
The author of the paper conceded that formal responses were not the
only key to implementation of a committee’s work. Another presenter,
who had been a committee Chair and a senior Minister, told the seminar
that if a committee has identified a logical and achievable case for
change, a responsive minister or government is able to adopt the
likely recommendations before they are made. The presenter indicated:

Committee support
In Australia, in 2006-07 the expenditure for the provision of services
by the Committee Office was $A10.72 million. Staff numbered 65 out of
a total departmental staff numbering 157.
The Committee Office in the department has nine secretariats.
Typically, secretariats support two or three committees. The 32 member
Foreign Affairs, Defence and Trade Committee and its four
sub-committees is supported by a single secretariat.
Secretariats consist of a secretary, two to three inquiry secretaries,
some additional research staff and two administrative officers –
although staffing levels change between secretariats in response to
changing workloads.
Secretariats provide support through:
*
provision of research support
*
drafting proposed terms of reference, briefing papers and
committee reports
*
provision of procedural advice on the operation and powers of a
committee
In Australia, staff of secretariats are employees of the department
and are responsible to and under the direction of the Clerk of the
House rather than individual committees or chairs. Staff are employed
under the Parliamentary Service Act 1999 and subject to a
parliamentary Service Values and Code of Conduct which includes the
requirement to provide:
non-partisan and impartial advice … to committees of each house, to
joint committees of both Houses and to senators and members of the
House of Representatives.
It is imperative that members and senators trust departmental staff to
provide impartial advice and maintain the confidentiality of private
discussions.
During the twentieth anniversary seminar, most oral presenters touched
on the role of committee staff. One senior presenter said:

Another former Chair said:

Secretariat staff in another inquiry were described as being
absolutely sensational.
Of course, it was satisfying to hear secretariat staff described in
this way. However, a member from a committee secretariat pointed to
the need for staff to be creative and innovative:

This presenter also indicated:

This contribution reflected a concept that has been for me a
continuing consideration in the selection of committee secretariat
staff: Whether generalists or specialists represent better value.
Staff are sometimes retained because of specialist knowledge in a
field, but it is more common for generalists to be employed.
Specialist advisers can be contracted for short periods, but care
needs to be taken that their personal convictions are not foisted on
the committee.
Conclusion
The twentieth anniversary of the Australian House of Representatives
Committee system provided a valuable opportunity to examine some of
the traditional concepts underlying the operation of parliamentary
committees. The contributions of members of the Association of
Secretaries-General of Parliaments on the committee experiences of
their jurisdictions will broaden this examination to an international
scale, and thereby further enrich the study.
Dr José PEDRO MONTERO (Uruguay) presented the following contribution:
“Working methods of the committees of the House of Representatives of
Uruguay”.
The rules and proceedings of the Committees of the House of
Representatives are enshrined in Article 120 of the Constitution of
the Republic, by Laws 16.698 and 16.758, on 25th April 1995 and 26th
June 1996, respectively, and by the Rules of the House.
Such constitutional rules and legal provisions also rule the
Committees of the Senate.
1. CONSTITUTIONAL FRAMEWORK
Article 120 of the Uruguayan Constitution provides that “The Chambers
can set up Parliamentary Committees for inquiry or for data supply for
legislative purposes”.
2. LEGAL FRAMEWORK
Parliamentary Committees are defined in Article 1, Law 16.898, as
“multi-personnel bodies, provided by the Constitution, the legislation
or the internal rules of the designating body, whose general task is
to advice it in the exercise of its legal powers of legislating,
administrative monitoring or internal management”. Its 2nd Article
provides a classification for the parliamentary committees to be
permanent, special or select and for data supply for legislative
purposes.
Then it states that “The membership and functions of both Permanent
and Special Committees are determined by the designating body internal
rules” and “Permanent Committees carry out in certain subjects an
on-going advice function to the body to which it belongs, in the
exercise of its legal powers of legislating, administrative monitoring
or internal management”.
The legislation provides then that “Special Committees have advisory
functions to the body to which they belong to on a certain issue of
legislation, administrative monitoring or internal administration” and
“Select Committees advice the body to which it belongs to, both in the
exercise of its legal powers and administrative monitoring. But their
set-up takes place only when such situations occur or if the issues to
be investigated have been reported, with grounds of irregularities or
illegal issues”.
3. REGULATIONS
Article 114 of the Rules of the House of Representatives provides a
definition of the Committees, stipulating that “Advisory Committees of
the House belong to two categories: Permanents and Specials” and
therefore defines what it is understood by Permanents and Specials.
Such rule states that Permanent Committees are those which have
general mandates, stated on the Rules itself, and that Special
Committees are those which are set up for a fixed mandate in a certain
occasion.
Article 115 of the Rules lays down sixteen Permanent Committees, the
great majority of which, for their competence and even for their
nomination, coincide with the Ministries of the Executive Branch.
As an example, the Foreign Affairs Committee is in charge of
international agreements, pacts, protocols and treaties, diplomatic
and consular organization as well as diplomatic service, etc., for we
can state that the issues that it addresses are those appointed to the
Foreign Ministry.
The National Defence Committee addresses national defence related
issues, the permission for military officers to go abroad in missions
and set military officers; issues that fall within the National
Defence Ministry competences.
Others Permanent Committees are the following:
*
Livestock, Agriculture and Fishery;
*
Education and Culture;
*
Tourism;
*
Internal Affairs;
*
Housing, Territory and Environment;
*
Industry, Energy and Mining;
*
Treasury;
*
Budget;
*
Constitution, Codes, General Legislation and Administration;
*
Social Security;
*
Labour Legislation;
*
Transport, Communications and Public Works;
*
Public Health; and
*
Human Rights.
4. MEMBERSHIP, ACCORDING TO THE RULES
Every Member of Parliament has to be a Member of one Permanent
Committee in a compulsory way. The only Member of Parliament that it
is not a Member of any Committee is the Speaker of the House, but he
can attend any of their sessions, having the right to speak but not to
vote.
In view of the fact that there are political sectors that due to the
numbers of their parliamentarians do not have enough Members to have
one in each Permanent Committee, the Rules entitles them to designate
a “sector delegate” within the Committees in which they do not have a
representation. Such “sector delegates” have the right to speak but
not to vote. Every Member of Parliament, except the Speaker, is a
Member of only one Permanent Committee but he/she can be a sector
delegate in one or more Permanent Committee.
Every Member of Parliament can be designated Member of one or more
Select or Special Committees.
That is to say that every Member of Parliament –but the Speaker of the
House of Representatives – is a Member of one Permanent Committee and
can be a Member of one or more Special or Select Committee.
The House of Representatives has 99 Members where 98 of them are
Members of one of the 16 Permanent Committees and can be designated as
a Member of one or more Select o Special Committee. And so it is that
in the current Legislature there is one political sector that has only
one Member of Parliament, being a titular Member of one Permanent
Committee and a sector delegate in fifteen Committees. The rules aim
at achieving all sectors participation and knowledge of Committees
deliberations.
Committees, whatever their nature be, elect annually a Chairperson and
a Vice-President, who can be re-elected or not, being his/her
nomination the result of political agreements for the distribution of
offices.
The number and names of the Members of each Permanent Committee are
established by the Plenary of the House of Representatives at the
beginning of every Legislature by distributing the corresponding posts
through the agreement of all political sectors. In case of Select and
Special Committees, the number of Members is set out by the Plenary at
the time of designating them and also by a political agreement will be
the corresponding post distributed.
The Members of a Committee who are on leave, which have been granted
by the Plenary, are automatically replaced by substitute
parliamentarians who will be entitled to the same faculties as titular
Members.
The Secretariats and Joint-Secretariats of each Committee are hold by
administrative officers designated by the Secretariat of the House of
Representatives. Unlike other Parliaments, although they are not
required to be lawyers, they should have the hierarchical office
qualifying them to be designated as such.
5. RULES OF THE SESSIONS
At the beginning of every legislative period – annually – the general
rules of the sessions of Permanent Committees are set out by the
Plenary.
For the present Legislature, the Plenary stated that Permanent
Committees will hold sessions during the dates and time they have set
by their owns, informing their decision to the Presidency of the
House.
Committee sessions are held in camera. Under Article 133 of the Rules,
the Committees are authorized to have the advice of public officers,
individuals as well as experts. In other words, Committee sessions are
held with the presence of Committee Members, Sector Delegates, Members
of its Secretariat and the corresponding parliamentary staff. The only
persons that can attend their deliberations are those designated by
the Committee to advice them. This rule is not contrary to the
publicity of the deliberations, provided their secrecy is not stated,
they are at public disposal through shorthand versions and summary
records, which are printed and posted on the Web Site.
6. SPECIAL AND SELECT COMMITTEES MEMBERSHIP
Special Committees are set up by the Plenary of the House by absolute
majority, setting out the report submission deadline as well as the
number of Committee Members. If the deadline expires, the Plenary can
grant an extension.
Select Committees have the constitutional rules above-mentioned.
According to the Rules of the House of Representatives and Law 16.698
they are set up by a previous report of a pre-select Committee
composed of three members of parliament, which under the mentioned
rule, has a 48 hours deadline to make its pronouncement. If the
pre-select Committee advices to set up a select Committee, then the
Plenary will decide if it will set up it or not, the number of Members
and the deadline it will have to make a pronouncement, which could be
extended any times needed.
7. PARLIAMENTARY COMMITTEES REPORTS
The general principle is that Committees advice the Plenary. Thus,
their task is to inform the bills to be addressed by the House.
The bills addressed by the Plenary come from the Executive Power, the
Senate and from the initiative of one or more member of parliament.
According to topics, a draft law, resolution, communication and
statement are sent to the corresponding Permanent or Special
Committee.
Permanent Committees should make their pronouncement within a 90 days
term, counting from the date that the Plenary was informed on the
subject item destination. If they fail to do so, the Speaker, at a
request signed by twenty five members of parliament, must designate a
Special Committee, to which the Membership of the previous committee
cannot belong to. If the new committee fails to make a pronouncement
within the deadline mentioned, it should proceed in the same way.
Permanent Committees never fulfil the deadlines set by the Rules of
the House and in 8 years as Secretary General of the House of
Representatives, members of parliament asserted such provision.
The bill can be informed by a single report – when it is voted by the
entire Membership attending the Committee. Likewise, it may occur that
the bill has one or more Committee reports, one in majority – that is
to say with the positive vote of more of the half Committee Membership
– and other or others in minority. It is also possible that a bill has
one or more reports in minority since none of them ever reached the
mentioned regulation majority.
In case of having more than one report, but only one of them has
reached the majority, this will be the one which the Plenary of the
House will address. If there are many reports, but none of them reach
the Committee Membership majority, the Plenary will decide on which
report will be the one to be addressed for its endorsement.
We must bear in mind the general principle that within the Uruguayan
parliamentary system the Committees advice the Plenary but they do not
decide, but this does not alter the fact that a Committee report be
changed by the Plenary.”
Mrs Wanda FIDELUS-NINKIEWICZ (Poland) made the following contribution
available: “The rules of functioning of Polish Sejm committees”.
1. Introduction
Committees constitute one of the most traditional forms of the
organization of the parliament. The institution of parliamentary
committees has been known in Poland since the 16th century. Originally
their tasks included the writing down of the texts of laws, known as
constitutions at that time. The long process of the evolution of the
composition and powers of Sejm committees led, on the verge of the
Second Republic (the years 1918—1921), to the development of their
modern form. Sejm committees became organs of the Sejm established to
examine and prepare matters on which the Chamber was working and to
voice an opinion on matters referred to them by the Sejm or the Sejm
Presidium. Presently, committees are also the Sejm organs exercising
control over the performance of particular organs of the state, local
government and other bodies and organizations as regards the
implementation of Sejm laws and resolutions.
2. Types of committees
In keeping with the basic law, the “Sejm shall appoint standing
committees and may also appoint special committees.” It has become a
practice that standing committees reveal either a purposeful or
problem or ministry-related character. The Standing Orders of the Sejm,
as they read now, establish 25 standing committees.
3. Types of standing committees
In keeping with the established practice, standing committees reveal
either a ministry-related (problem) or purposeful character. The scope
of ministry-related committees’ operations corresponds to the
competence of one of the superior or central organs of the state. This
group includes these committees whose objective scope of operations
corresponds more or less exactly to particular sections of the state
administration (e.g. Administration and Internal Affairs Committee,
Infrastructure Committee or Culture and Media Committee), but also
those which reveal a problem character (e.g. Special Services
Committee, State Control Committee, European Committee).
Purposeful-character standing committees represent the other type.
Their respective scope of operations is associated with those Sejm
functions which are not related to the administrative structure. This
group includes, for example, the Deputies’ Ethics Committee, the Rules
and Deputies’ Affairs Committee, the Constitutional Accountability
Committee and the Legislative Committee.
4. Special committees
If the situation so requires, the Sejm may appoint (and dissolve)
special committees. Reasons for appointing a special committee are
usually related to the cross-sectional character of the matter to be
undertaken or to the need for intense concentration of the Chamber’s
effort on a definite task. In practice, such committees are appointed
to examine or prepare a definite legislative initiative of particular
significance to the public (e.g. a draft code). When appointing a
special committee, the Sejm defines its aims, principles and
procedures of operation. Such committees are provisional in nature and
they function until they carry out their respective task. In the 5th
Sejm (2005—2007) there functioned nine special committees, and in the
present, 6th one, so far two such committees have been appointed.
5. Investigative committees
The investigative committee constitutes a traditional form of
parliamentary control. It is appointed with the aim to establish the
actual state of the matter that arouses the parliament’s interest.
Under the Polish legal system, the investigative committee is the only
organ of the Sejm allowed to use investigative instruments
(questioning witnesses, demanding documents at the third person’s
disposal) in order to obtain information. In view of their interim
nature, investigative committees are treated as a subtype of special
committees. In keeping with Article 111, paragraph 1, of the
Constitution, “the Sejm may appoint an investigative committee to
examine a particular matter.” The law of 21st January 1999 on the Sejm
investigative committee establishes the procedure of investigative
committees’ operation. This law makes an exception to the principle of
the Sejm’s autonomy as regards its internal structure since all organs
participating in the legislative procedure (the Sejm, the Senate, and
the President) bear an influence on the shape of the law. The present,
6th Sejm has so far appointed two investigative committees.
6. Composition of Sejm committees
The Sejm determines the composition of the respective Sejm committees
at the beginning of its term. At one of its first sittings, on the
motion of the Sejm Presidium and after hearing an opinion of the
Council of Seniors, the Sejm agrees on the composition of particular
committees (changes in their composition are effected under the same
procedure). In practice, the division of seats in Sejm committees is
made on the basis of political parity. This means that in each Sejm
committee all caucuses are represented in proportion to their number.
Particular rules of procedure apply to the composition of the European
Committee, the Deputies’ Ethics Committee and the Special Services
Committee. A Deputy may be a member of no more than two standing
committees, at the same time he/she should belong to at least one.
Deputies fulfilling the function of a minister or secretary of state
are the only exception as they may not sit on any committee. In
practice, it is the leadership of one’s parent caucus who decide on
the composition of a specific committee.
7. Organization of the committee’s work
The first sitting of a committee is summoned and presided over by the
Marshal of the Sejm; at such sitting, the committee elect from amongst
its members a presidium composed of a chairperson and his deputy. The
presidium are in charge of the committee’s work, establishing, among
other things, the dates and agenda of particular sittings of the
committee, and oversee preparations for such sittings, ensuring that
committee members receive properly prepared materials in time. At the
committee presidium request ministers and heads of the supreme organs
of the state administration, and also heads of other state offices and
institutions are obliged to submit reports and provide information,
and take part in those committee sittings which examine matters
concerning their scope of operation. The committee presidium adopts
resolutions by majority vote. In case of an equal number of votes, the
vote of the committee chairman is decisive. The committee chairman,
and in case of his absence one of his deputies, presides over the
committee debate. Presiding over the debate includes the duty to take
charge of its course. The chairman of a committee may reproach a
Deputy who, speaking during a sitting, has gone beyond the subject of
the committee debate, and even request him/her to conclude his/her
speech if calling him/her twice to keep to the point under discussion
proved ineffective. The chairman may also eliminate the Deputy from
the committee sitting if he/she notoriously makes the conduct of the
debate impossible (the Deputy concerned may appeal from the decision
of the chairman of the committee to the committee presidium which
shall ultimately settle the case).
8. The competence of the standing committees
The most important tasks of the standing committees include:
*
considering bills and draft resolutions,
*
considering Senate resolutions to amend a given bill passed by the
Sejm or to reject it, and also the President’s motions that a
given bill should be reconsidered by the Sejm,
*
considering and giving an opinion on the guidelines for bills and
draft resolutions,
*
considering reports and information from ministers and heads of
the supreme organs of the state administration,
*
analysing the performance of particular sections of the state
administration and economy,
*
considering matters related to the implementation of the laws and
resolutions passed by the Sejm, and also to the realization of
Sejm demands,
*
giving an opinion on motions tabled by the Sejm Presidium,
concerning the election, appointment or dismissal by the Sejm of
particular persons to or from definite government posts.
ANNEX— 6th Sejm committees (as of 4th April 2008)
a) Standing committees:
1. Administration and Internal Affairs
2. State Control
3. Special Services
4. European
5. Education, Science and Youth
6. Deputies’ Ethics
7. Public Finances
8. Economic
9. Infrastructure
10. Physical Education and Sport
11. Culture and Media
12. Liaison with Poles Abroad
13. National and Ethnic Minorities
14. National Defence
15. Environmental Protection, Natural Resources and Forestry
16. Constitutional Accountability
17. Social Policy and Family Affairs
18. Rules and Deputies’ Affairs
19. Agriculture and Rural Development
20. Local Government and Regional Policy
21. State Treasury
22. Foreign Affairs
23. Justice and Human Rights
24. Legislative
25. Health
b) Special committees:
1.
Special Committee on Revision of Codes of Law
2.
“Friendly State” Special Committee to cut down on bureaucracy
c) Investigative committees:
1.
Investigative Committee to investigate the circumstances of the
tragic death of the former Sejm Deputy Barbara Blida
2.
Investigative Committee to examine the case of the charge of
exerting unlawful influence by members of the Council of
Ministers, by the Chief of the Police, by the head of the Central
Anticorruption Bureau and by the head of the Internal Security
Agency on police officers, on functionaries of the Central
Anticorruption Bureau, on prosecutors and on administration of
justice officials in order to force them to exceed their authority
or to make them fail to comply with their duties in connection
with penal proceedings and operational and investigative measures
taken with regard to cases involving or against members of the
Council of Ministers, against Sejm Deputies and against
journalists and reporters in the period between 31st October 2005
and 16th November 2007.

Ms Heather LANK (Canada) indicated that in the Canadian senate, it had
been decided to make the recording of debates and decisions in
committee more formal, in order to ensure greater respect for
procedures and more informative documents, especially minutes of
proceedings. The Rules, Procedures and the Rights of Parliament
Committee of the Senate had recently produced a report recommending
the possibility for senators to use their mother tongue even if this
was not an official language of Canada. In fact, the Senate
represented minorities in particular, which explained why it was
thought necessary to encourage the use of these languages – especially
in the committee of aboriginal peoples and the committee of fisheries
and oceans.
Mr Alain DELCAMP (France) said that he was surprised to learn that
there were permanent committees in the majority of parliaments, whilst
the idea prevailed in France that such committees did not exist in
parliaments with a Westminster tradition, except for scrutiny
purposes: what was one to make of this? He explained that in France,
the distinction between permanent and special committees corresponded
to the distribution of legislative and scrutiny tasks. He raised the
possibility that parliamentarians might belong to several committees,
raising the question of the number of members within each committee.
He then posed several questions, in a comparative perspective between
different countries: were committees composed in a similar way to in
the National Assembly? Did legislation committees undertake
preparatory work, or did they sometimes take decisions themselves
instead of the plenary? Were committee meetings public? He then
explained that in France, the staff working for permanent committees
were rather generalist civil servants who did not work to the
Chairman. Moreover, the problem of leaks of information rarely
occurred in permanent committees, but rather in committees of inquiry,
whose work was increasingly of interest to the media, and whose work
was conducted more and more in the public eye. Finally, as for the
follow-up of committee work, Mr Delcamp cited the question of
monitoring how laws are implemented once they have been passed, which
had been undertaken by the Senate for several decades, and needed to
be strengthened, as it was important, given the power of the French
administration, that decisions taken by Parliament should be
implemented properly.
Mr Hans BRATTESTÅ (Norway) noted that the Norwegian parliament had
thirteen committees, each matching an area of ministerial
responsibility; each parliamentarian could be a member of only one
committee. These committees did not have any powers of their own; they
could examine only those questions raised by the Parliament. He
underlined that he often found himself subject to a certain pressure
to increase the numbers of staff working for committees, and he did
what he could, in particular by instituting a protocol for resource
sharing and by calling on additional administrative staff and experts,
while keeping guard to ensure that the administrative arena should not
trespass on the political. As for the work of the committees, the
principle was of transparency, and hearings were public unless a
decision had been taken to keep them private. It was important to
ensure that committee work was not undermined. Finally, a degree of
specialization among parliamentarians was discernible, each one
concentrating on a small number of subject areas, although public
opinion believed that the 169 members of Parliament were all competent
in every area!
Mr George PETRICU (Romania) mentioned the big reforms that were to be
carried out in the Romanian Senate in autumn 2008, at the time of the
parliamentary elections. Several reforms had been adopted, in
particular of the permanent committees: their number would change from
16 as at present to a maximum of 10, or even eight, which would lead
to an increase in the number of senators on committees, allowing them
to specialize more and to produce their reports more quickly. The
orders of the day would have to be presented at least three weeks in
advance, which would allow senators to better plan and organize their
work programme. Moreover, it was planned to strengthen the expertise
available to parliamentary political groups and to integrate them more
effectively with the work of the Senate. As for committees of inquiry,
the number of proposals for new committees was strongly on the
increase, which could cause a waste of time – especially when the
subjects were of virtually no interest – and it could be desirable to
limit to one per session, or even per year, the number of proposals to
create committees of inquiry for each political group. In 2003, in the
context of Romania’s accession to the European Union, a mediating body
had been disbanded; it now appeared desirable to reinstate it, to
allow for greater co-operation between the two Houses of Parliament.
Finally, it was also planned to link different committees more
effectively with the work of the European Union, and not to limit the
examination of these subjects to the Foreign Affairs Committee and the
European Affairs Committee. All of these reforms had been carried out
with the support of the Hungarian, Italian and French senates.
Mr Douglas MILLAR (United Kingdom) raised the issue of leaks of
information, recalling that several years before, a leak had been
identified and that, when the launch of an inquiry was envisaged, the
chairman of the committee concerned had admitted to being himself the
source of the leak: often it was politicians who were looking for
publicity. In any case, the House of Commons had a procedure allowing
it to take action against its members in leak cases, but in practice,
it was not used. Mr Millar explained that the operation of scrutiny
committees had been made systematic, through a co-ordinating committee
called the Liaison Committee; the staff available to these committees
had increased, while there was also the possibility of calling on
experts; moreover, there was a special office which co-ordinated the
work of committees with the media, which had not existed before. He
asked what experiences colleagues had had of involving the public in
the work of Parliament, in particular electronic petitions. Finally,
he recalled an example of a difficult experience involving the Foreign
Affairs Committee: after having appeared before this committee, one of
its witnesses had committed suicide, which had given a bad impression
of the work of committees. It therefore seemed desirable to send to
witnesses an information sheet before they appeared.
Mr Quddas KHAN (Bangladesh) recalled that previously in Bangladesh,
ministers chaired parliamentary committees. This was no longer the
case, and from now on only a member of parliament could take the chair
– this deputy nonetheless remaining a member of the majority party.
The support given to parliamentary committees had been strengthened,
by the creation in Bangladesh of an institute of parliamentary
studies, which was a good source of information. He concluded by
asking for his colleagues’ opinion on the possibility of giving the
chair of a committee to an opposition member.
Mr Seppo TIITINEN (Finland) welcomed the interest in the debate, as
committee work constituted the core activity of secretaries general.
In the Finnish system, committees were tasked with carrying out
detailed work, in preparation for a decision by the plenary.
Committees, which could demand of ministries information on all of
their preparatory work, saw themselves as carrying out two tasks: the
preparation of legislative work, and monitoring after the fact of the
Government’s activities. The Finnish system was similar to the
Norwegian one, with fifteen permanent committees giving an impetus to
parliamentary work; they were tasked only with preparatory work,
except for the Foregin Affairs and European Affairs Committees, which
were the only ones to be able to speak in the name of the Parliament
as a whole. The committee secretariats made up one of the three main
departments of Parliament, and staff could be recruited from within
ministries, which allowed them to make use of the required expertise
in legislative matters. If the Finnish Parliament was a house open to
the outside world, the work of committees nevertheless generally took
place behind closed doors, to protect committee work and to shelter it
from the curiosity of the media; in contrast, when the reports were
completed, the work of the committee became public.
The question of publicizing their work had led to many debates and
discussions, but the conclusion had always been to prefer to work in
private.
Mrs Stavroula VASSILOUNI (Greece) explained that in the Greek
parliament, committees were tasked with preparatory legislative work,
before bills were examined by the plenary. Committees were able when
they wished to call on outside experts and non-governmental
organizations. In 2001, a reform of the Constitution had allowed
permanent committees to adopt laws without their passage through the
plenary; nevertheless, this provision remained the exception and was
used only for minor matters, more important bills having to be adopted
by the plenary. Moreover, committees carried out a role of monitoring
the government. Finally, the European Affairs Committee was also a
permanent committee, but somewhat different from the others; its role
had grown since the ratification of the Treaty of Lisbon.
Mrs Emma Lirio REYES (Phillipines) said that the idea of sending an
information sheet to people called to give witness to committees of
inquiry, suggested by Mr Millar, seemed interesting, in order to
ensure that the work of committees was not challenged in court. On
this subject, the Supreme Court of the Philippines had to give a
decision on the possibility of interrupting committee hearings because
of the failure to respect certain rules; this decision risked
supporting the refusal of certain witnesses to come and appear before
the committee, on the pretext that they were privileged witnesses.
Mr Marc BOSC (Canada) added that in Canada, hearings carried out by
the House of Commons were rather brusque and strained, especially in
contrast by those carried out in the Senate, which were often seen as
more peaceful. For example, recently a committee had asked to see a
witness, who had not refused to come before the committee, but was in
prison: the Speaker of the House of Commons had sent a warrant, which
had allowed the witness to appear.
Mr Sompol VANIGBANDHU (Thailand) indicated that in Thailand, where a
committee could demand that a person come to give evidence, it had no
way of forcing him to attend if he refused to do so. He wanted to know
if, in other countries, sanctions could be applied in such a case.
Mr R. K. SINGH (India) said that in the Indian parliament, the
committee system had been introduced in 1995, and had continued to
evolve since. Committees, which could be of two types, either
permanent or ad hoc, had on average thirty members; they could choose
their own subjects of work, in liaison with the ministry to which they
were connected. There was no precedent for a refusal to give evidence,
but if there were such a case, sanctions were envisaged. Ministries
carried out the bulk of the preparation of bills, but committees were
beginning to produce their own proposals, of which the Government took
more and more account, as they were bound to examine them. Finally,
the chairman of certain committees always came from an opposition
party. The current system was well balanced and produced good results.
Mrs Jacqueline BISHEUVEL-VERMEIJDEN (Netherlands) recalled the process
of revising the administrative support to committees in the
Netherlands, which had occurred ten years before. Three offices were
to be distinguished: one tasked with an inquiry and investigation
role, the second concentrating on the legislative process and the
third focusing on European Union subjects. In parallel, procedures had
been normalized, and whereas before each commission was autonomous,
they now had to refer systematically to a combined manual, setting out
all of the procedures. Moreover, in Septembher 2008, a new numerical
system would be put into place, especially in the area of document
management. Mrs Biesheuvel-Vermeijden noted two preoccupations: on the
one hand, parliamentarians increasingly wanted debates which had taken
place in committee to be reproduced in the plenary, which was a
problem; on the other hand, parliamentarians were asking for ever
increasing quantities of information, investigations and debates,
while the available resources were limited. As secretary general, one
was sometimes led to suggest a refusal, which was always delicate.
Mrs Doris Katai MWINGA (Zambia) raised the issue of the powers of
committees and of the Parliament when a person refused to give
evidence. Such a case had arisen, and the courts had been of the
opinion that Parliament could only reprimand, but could not apply any
penal sanction. She noted moreover that sometimes, when a report was
presented in plenary, some people, for political reasons, voted
against their own report, which posed the question of the validity of
this report.
Mr Umaru SANI (Nigeria) said that the three types of parliamentary
committee – permanent, ad hoc and special – could study those issues
referred to them by the plenary. They carried out a legislative and
scrutiny role, and formulated recommendations destined for the
plenary. Committees could not adopt laws, but a large part of
legislative work was carried out by them. When a person refused to
come to give evidence to a committee, the law authorized the committee
to deliver an arrest warrant and force the person to appear.
Committees played an important role within the Nigerian Parliament:
the National Assembly had 360 members and 72 committees, and the
Senate had 109 senators and 59 committees.
Mr Anders FORSBERG, President, was happy at the quality of the debate
and the large number of participants. Many common issues emerged from
their contributions, among them the central role of committees, but
also the existence of different rules and traditions.
Dr José Pedro MONTERO (Uruguay) mentioned that in Uruguay, the
distribution of members of permanent committees among the parties was
defined following negotiations, in order to ensure a balanced
representation. Special committees, tasked with scrutiny and inquiry
functions on precise topics, had a time-limited mandate, whose
duration was determined by the plenary. Committee meetings took place
in private, but the minutes were placed on the Internet, this solution
ensuring both transparency in the decisions that were taken and the
efficiency of committee work.
Mr Ian HARRIS (Australia) tackled the subject of leaks from committees
to journalists, saying that it could be considered that in such a
case, the press was in possession of stolen intellectual property and
could be pursued for handling stolen goods. Nonetheless, no politician
wanted to get into a fight with the press. Taking the example from the
Canadian senate, promoting the use of indigenous languages, he noted
that it was possible for a member of the Australian parliament to use
an indigenous language but this could lead to comprehension
difficulties. In the Australian parliamentary system, parliamentarians
could be members of several committees at once. If a person refused to
reply to a summons from a committee, sanctions could be brought to
bear, on the basis of contempt of the House.
Mr Anders FORSBERG, President, concluded the debate by underlining
that secretaries general had to ensure a delicate balance, responding
to the different needs and demands of committees, while at the same
time bound by budgetary constraints. Moreover, secretaries general
took on the role of employer, responsible for the staff and the smooth
running of the organization, which could prove complex.
The autonomy of Parliaments: responses to a questionnaire
—
Alain Delcamp
Secretary General of the Senate (France)
INTRODUCTION
The aim of this report is to synthesize answers to the questionnaire
on the “Autonomy of Parliaments in its various aspects” which was
drafted and approved at our meeting in Bali on May 3rd 2007. The
decision to conduct the study had been taken six months before in
Geneva. The reason behind the need to further investigate such a
familiar notion is twofold: identify to what extent our approaches are
similar; create, for our collective benefit, benchmarking tools.
Presumably, this should help us better assert the autonomy of decision
of the House we are in charge of.
Our association had already tackled the subject in 1998 in a study
approved in Moscow and published in the Constitutional and
Parliamentary Information. It will be referred to this document when
needed, though its focus was narrower and mostly centred on
administrative aspects.
The present study relies on the idea that before looking into the way
Parliaments use their power to organise themselves autonomously, it is
necessary to clarify the foundations of this autonomy and to identify
the areas in which Parliaments can be autonomous.
Researching the foundations of parliamentary autonomy has, very
interestingly, led each of the contributions to mention the key
principles of the political organization of their country. It appears,
from the very rich body of data that has been collected, that there is
a big distance between, on the one hand, what can be found on the
subject of autonomy in our legislations and, on the other hand, the
historical and political context in each of our countries, which is
the decisive factor for understanding of how Parliaments work.
The questionnaire was divided into three parts: foundations and
sources of Parliamentary autonomy; administrative autonomy; financial
autonomy. The vastness of the subject has not frightened our
colleagues. Neither has the number of questions.
The scale of the questionnaire allowed our colleagues not only to
describe how the principle of autonomy is implemented in their
institution, but also to examine how it influences the way Houses play
their political, legislative and scrutinizing role. This aspect was
not part of the initial project but the quality of the contributions
made it necessary to give some elements of feedback on their content.
However, since not all contributions raised them, In institutional
issues will not be dealt with in the same degree of detail as the
administrative aspects. In any case, this data is an appropriate
landmark for future studies in the field of the ability for
Parliaments to autonomously organize themselves and define their roles
and procedures.
The present study is based on 35 contributions:
25 from 19 European countries (Germany, Belgium, Estonia, Spain,
Finland, Greece, Iceland, Italy, Netherlands, Poland, Principality of
Monaco, Romania, United-Kingdom, Serbia, Slovakia, Slovenia, Sweden,
Switzerland), including 13 members of the European Union. Also falls
in this category the answer of the Parliamentary Assembly of the
Council of Europe and references to France (even though there has not
been a proper French answer to the questionnaire);
3 from the Middle East (Bahrain, Israel and Lebanon);
1 from Maghreb (Morocco);
2 from the Americas (Chile and Canada);
2 from Asia (Japan and Thailand);
1 from Oceania (Australia).
Among the 35 answers, 12 came from single House countries, 22 from
bicameral (including 12 from lower houses, 9 from upper houses and 1
joint answer).
All contributions have been reviewed and compiled in a document
available upon demand ([email protected]) and which could be posted
on the IPU/ASGP website.
The present paper organizes the answers by theme in order to highlight
the relevant issues and to provide a frame for future discussions. The
aim was to make the document a convenient reference tool.
The questions have been regrouped under three headings:
Foundations and sources of Parliamentary autonomy. This topic is the
heart of our subject as it allows to understand not only the rules and
conceptions behind the creation and development of a Parliament in
each country, but also the global philosophy of the political system
and the practical elements of the institutional system (most notably
the relationship with the executive branch and, if it exists, the
Constitutional court).
Autonomy, organization and powers of Parliament: this topic
encompasses what one could call “institutional autonomy”. It had not
initially been planned to raise this issue but the amount of elements
gathered made it necessary. The word “organization” (which should be
distinguished from the “running”, subject of the third point) refers
to the ability of Parliaments to design their internal organization
and to use the decision making power bestowed upon them by
constitutional arrangements (in areas such as, on the one hand, law
making and government scrutiny and, on the other hand, internal
administrative organization). All the aspects are unfortunately not
extensively dealt with in the same length given the limited data
available.
Legal, administrative and financial autonomy. This section will be the
most detailed given the precision of the contributions. It deals with
- and this is a matter of interest for the managers we,
secretaries-general, are - the working of Parliaments, the way they
conduct their day to day business.
This aspect of parliamentary autonomy, though less visible than the
“institutional autonomy”, is a necessary condition of its realisation.
A large number of contributions consider indeed “material autonomy” a
significant aspect of autonomy.
Through the study of these three themes, this paper will present the
diversity of questions raised by the notion of parliamentary autonomy.
It will illustrate the fact that considerations of high institutional
theory, such as our debates on the significance of parliamentary
autonomy, have direct implications for the practical running of our
Parliaments.
List of contributors
Germany Bundesrat
Australia House of Representative
Bahrain the Council of the Representatives
Belgium House of the Representatives
Belgium Senate
Canada House of Commons
Chile Senate
Estonia Riigikogu
Finland Eduskunta – Riksdagen
Greece Boulê
Iceland Althingi
Israel Knesset
Italy Camera dei Deputati
Italy Senate
Japan House of Councillors
Lebanon National Parliament
Morocco House of the Representatives
Norway Stortinget
Netherlands Eerste Kamer
Netherlands Tweede Kamer
Poland Sejm
Poland Senate
Principality of Monaco National Council
Romania House of Commons
Romania Senate
The Council of Europe Parliamentary Assembly
The United Kingdom House of Lords
The United Kingdom House of Commons
Serbia Narodna skupstina
Slovakia National Council
Slovenia Assembly National
Spain Senate
Sweden Riksdagen
Switzerland National Council and the Council of the States
Thailand House of Representatives
I. FOUNDATIONS AND SOURCES OF PARLIAMENTARY AUTONOMY
Before studying the foundations and sources one had to make sure the
definition of autonomy used in the questionnaire was widely shared and
understood.
1. A shared value
One can only be satisfied to note that all contributors more or less
share the suggested definition, which goes as followed : “By autonomy,
we mean the ability of Parliament to work out its own standards of
operation and to obtain the means necessary to the achievement of its
missions, mainly : to represent the population, to express various
points of view publicly, to work out and vote the most important
standards (generally called laws) and to control in a way as
independent as possible the action of the government and operation of
the services of the executive”. At this stage, it can be noted that
the definition places a lot of emphasis on the autonomy from the
government, a point which will later prove debatable.
A majority of contributions totally approve the definition, which
matches their idea of parliamentary autonomy (Germany, Australia,
Bahrain, Belgium, Canada, Chile, Spain, Estonia, Finland, Iceland,
Israel, Italy, Japan, Lebanon, Norway, Netherlands, Poland, Romania,
Slovakia, Slovenia, Sweden, Thailand).
The British contribution stresses that it would have been worth
specifying from whom the autonomy is conceived. In the British
context, the definition is relevant regarding the judiciary, but not
regarding the executive as there is, in the Westminster system, a
“substantial identity between the Government and the majority in the
House of commons”.
The fact that there is, in every political system of parliamentary
inspiration, a strong identity between the government and the majority
in Parliament does not mean that the distinction between the
legislative and the executive power is not relevant. Both are
institutions organized separately and according to specific rules.
What it shows - and this will be dealt with further - is that
“autonomy of powers” does not mean “separation of powers”.
Parliamentary life is a good example of it (especially in legislative
matters, as pointed out by the Dutch contribution).
When answering this first question, contributions stress the
importance for a Parliament of being able to: draft its own standing
orders and internal working procedures (Australia, Canada, Germany,
Thailand, Japan) ; scrutinize the action of the executive branch, even
though prerogatives and means of action may vary from one Parliament
to the other (Canada, Slovakia, Lebanon) ; be independent from the
Government (Thailand, Japan).
Some contributions also mention the importance of practical elements
in order to achieve a level of real autonomy, such as the freedom to
decide on its own budget and the ability to determine the appropriate
level of resources (Australia, Belgium, Finland, Switzerland). Police
powers and the ability to resort to the use force within the
institution are also mentioned (Italy, Japan).
2. Separation of power and parliamentary sovereignty
Two foundations of parliamentary autonomy have been identified in the
contributions: the principle of separation of powers and that of
parliamentary sovereignty. The latter is often mistaken for the notion
of sovereignty of the People.
The distinction (inspired by the two main systems of organization of
powers: Westminster on the one hand, the United States and France on
the other) was suggested in the questionnaire, but no one knew whether
it was relevant or not. It appears that it is. An excellent summary of
the alternative can be found in the contribution from the Belgian
House of Representatives: “Parliamentary autonomy results necessarily,
depending on the constitutional system, either from the principle of
separations of powers (autonomy being conceived as a barrier
protecting the assembly against interferences from other powers), or
from the principle of sovereignty of Parliament (autonomy being the
consecration of the prominence of Parliament over every other
authority within the State)”.
A number of nuances, mentioned in the contributions, are worth noting:
The distinction between countries with a tradition of separation of
powers and those with a tradition of parliamentary sovereignty does
not match up the distinction between countries of “Anglo-Saxon”
culture and countries of “Latin” or “continental” culture (eg :
Australia affiliates itself to both conceptions; Nordic democracies
are countries with a tradition of sovereignty or Parliament but also
have constitutional arrangements with references, direct or indirect,
to the separation of powers). Most of the times, both traditions
coexist;
The attachment to the principle of parliamentary sovereignty leads to
an “innocent” question: autonomy from whom? Depending on the nature of
the political system, the question has to be looked at from the point
of view of the autonomy from the judiciary and/or the executive
branch.
In systems of separation of the powers -on this, contributors are
unanimous- separation shall not be absolute : “Separation of powers is
one of the founding principle of the Swiss legal order. But it is
relative. The three powers do not limit their interventions to their
main area of competence. They also take part in the exercise of other
official functions”. The Romanian contribution opportunely links the
notion of separation to that of balance of powers. The latter notion
is found again in the contribution from the Bahrain’s Council of
Representatives: “separation of powers plays an important part by
providing to each power a reasonable space for autonomy”.
Most of the times, the principle of separation of powers is seen as
the source of parliamentary autonomy, either as an implicit
philosophical foundation (Australia, Belgium, Chile, Finland, Iceland,
Japan, Morocco, Monaco, Norway, the Netherlands, Poland, Serbia,
Switzerland) or because it is explicitly mentioned in the Constitution
(Bahrain, Estonia, Greece, Lebanon, Poland, Romania, Slovenia) or in
constitutional case law. The American notion of “Checks and balances”
(the Netherlands) and that of cooperation of powers (Bahrain, Lebanon)
are also mentioned.
XVIIth and XVIIIth century philosophical principles are sometimes
referred to in order to justify the separation of powers (references
to Locke or Montesquieu are found in the Icelandic and Italian
contributions).
A number of contributions make it clear that separation of powers is
not absolute and the Constitution can arrange for various types of
cooperation of powers (Iceland, the Netherlands, Lebanon, Bahrain,
Australia), for instance through the responsibility of the Government
before Parliament (Australia), the fact that ministers remain Members
of Parliament (Australia) or the possibility for judges in exercise to
become Members of Parliament. Cooperation of powers can also consist
in the participation of the executive branch in the legislative
function (Monaco, Switzerland, the Netherlands, Iceland): in
Switzerland, the Federal Council has legislative powers while, in
Iceland, the President (and in the Netherlands the Government) can
refuse to promulgate a bill that has already been passed by Parliament
(leading to a referendum in Iceland; to the dissolution of the Lower
House in the Netherlands). Another instance of cooperation of powers
is when judicial powers are bestowed on Parliament (Switzerland).
Another principle, bordering that of cooperation of powers, has also
been called up: the principle of power sharing (Israel, Thailand).
Only one contribution indicates that in its country, the principle of
parliamentary autonomy is unknown, as such, even though elements of
autonomy exist in practice (Israel).
The principle of parliamentary sovereignty, consubstantial to the
British approach to parliamentary democracy, is also referred to
elsewhere (Finland, Sweden, Slovakia). It is worth noting that not all
Parliaments of Anglo-saxon tradition recognize themselves in the
principle of parliamentary sovereignty (Australia). Some identify
themselves with both the separation of powers and the sovereignty of
Parliament (Canada). Several contributions regard autonomy as a
defining principle of “parliamentary democracy” (Estonia, Iceland) or
as a necessary consequence of traditional democratic values (Greece,
Poland, Romania, Spain). Germany combines for historical reasons, both
principles of separation of powers and of parliamentary sovereignty in
its Federal organization, according to which the Länder, through their
representatives in the Bundesrat, participate in the exercise of
competences of the Federal State (in this instance, Federalism is
viewed as another form of separation of powers).
Parliamentary autonomy can also rely on the principle of sovereignty
of the People, given the fact that Members of Parliament are the
representatives of the People (Germany, Italy, Finland, Japan,
Slovenia). Several contributions also mention the function of
representation as a foundation for autonomy (Canada, Lebanon, Romania,
Sweden): being the highest representative institution of a country is
considered enough of a justification for autonomy. According to this
line of thought, Parliaments occupy a central and prominent place in
institutional arrangements (Italy, Japan, Romania, Sweden, Serbia) and
need a high degree of independence from the other powers (Italy,
Morocco, Serbia, Slovakia).
To sum things up, it appears that, in some constitutional systems,
several philosophical principles, for instance the sovereignty of the
People combined with separation of powers or Parliamentary
sovereignty, can be seen as the foundations for autonomy.
3. A reality of constitutional, or even supra-constitutional, level …
Every contribution mentions the Constitution as a foundation for the
principle of parliamentary autonomy, either because there is an
explicit reference in the text (which is rare) or because essential
elements of autonomy are guaranteed by the Constitution (even though
it does not explicitly refer to the principle). In any case, the
principle of autonomy is of supra-legislative level.
The vast majority of contributions consider that the founding
principles of parliamentary autonomy (separation of powers,
sovereignty of the People, sovereignty of Parliament) are either
mentioned in a legal text (usually of constitutional level as in
Germany, Bahrain, Belgium, Canada, Chile, Estonia, Finland, France1,
Greece, Iceland, Israel, Italy, Japan, Lebanon, Morocco, Monaco,
Poland, Romania, Serbia, Slovenia, Spain, Thailand) or are the
consequence of constitutional provisions (Australia, Norway, the
Netherlands, Slovakia). Countries of the latter category sometimes
point out that the principle of responsibility of the government
before Parliament (according to which a government resigns when it
loses the confidence of Parliament) is a necessary consequence of the
Constitution, even though it is not explicitly mentioned (Norway, the
Netherlands).
The United Kingdom sets itself apart because of the customary nature
of its Constitution: the principle of parliamentary sovereignty is the
product of a number of texts (“Parliamentary Acts”) and of
institutional habits. The same remark can be made for Israel, whose
contribution notes that, given the absence of a Constitution, the
founding principles of the prerogatives of Parliament derive from the
fundamental law and the proclamation of independence, both of
supra-legislative value.
Lastly, the Italian contribution contends that some of the principles
which are closely linked to Parliamentary autonomy (such as the
principle of popular sovereignty), are bestowed a value superior to
that of the Constitution. Consequently, even a revision of the
Constitution could not undermine them.
4. … closely linked to the history of each country …
The founding principles of Parliamentary autonomy and of parliamentary
sovereignty have generally been asserted in times of major political
changes, for instance independence or accession (or return) to liberal
democracy, over a period covering the last two centuries.
In the first category can be found Poland (both the first Polish
Constitution of May 3rd, 1791, which is also the oldest written
Constitution in Europe, and the latest of April 2nd, 1997, refer to
the separation of powers), the Netherlands (Constitution of 1815 and,
above all, 1848), Chile (Constitution of 1828), Belgium (1831), Serbia
(the first Serbian Constitution in 1835, acknowledges three powers),
Canada (Constitutional law of 1867), Iceland (1874, 1904, 1944),
Australia (1901), Finland (Constitution of 1919, significantly
modified in 2000), Estonia (Constitution of 1920 whose principles have
been confirmed by the Constitution adapted in 1992), Lebanon (1926),
Israel (proclamation of independence in 1948), Morocco (1962),
Slovenia (1991) and Slovakia (1942).
The contribution from the Dutch Upper House describes the historical
process which led to, in 1848, the implementation of ideas of
separation of powers in the organization of the State, and
subsequently made way to the principle of responsibility of the
Government before Parliament (which is the condition for legitimacy in
every parliamentary regime). In France, the Constitution of September
3rd, 1791 is the first to organise the new powers after the
proclamation of sovereignty by the National Assembly on June 17th,
1789.
In the second category fall Spain (Constitution of 1812), Morocco
(1911), Thailand (Constitutional monarchy in 1932), Japan
(Constitution of 1947, even though early elements of separation of
powers could be found in the Imperial Constitution of 1889), Italy
(Constitution of 1948), Germany (Constitution of 1949), Romania
(1991), Bahrain (“National Action Charter” adopted by referendum in
2001, Constitution of 2002).
The United Kingdom has followed a different process: parliamentary
sovereignty has been asserted as early as 1689. Subsequently, a
continuous process led to the 1911 Parliament Act.
Sweden is another unconventional example of institutional evolution :
the Swedish contribution notes that the principle of parliamentary
sovereignty was asserted as late as 1975, as a result of a
modification of the Constitution. Norway’s institutional history does
not either fall into a category: its Constitution is the oldest
written constitution still in force and refers to the separation of
powers. It was written in 1814, when Norway and Sweden formed a
unified kingdom within which each enjoyed a large autonomy.
In some instances, constitutional case law played (or still plays) an
important part in the definition of the content and the scale of
Parliamentary autonomy (Norway since 1884, Italy in 1959, Slovakia in
1995). In Italy, popular sovereignty, a notion from which
parliamentary autonomy derives, is regarded by constitutional case law
as a principle of supra-constitutional value.
5. … in a complex institutional context
Several contributions state that Parliament enjoys absolute autonomy
(Bahrain, Finland, Greece, Iceland, Lebanon, Netherlands, House of
Commons of Romania, United Kingdom, Thailand).
Some point out that it is in the exercise of constitutional duties
that Parliament enjoys absolute autonomy, particularly in defining its
internal procedures and regulations. This is especially true where
there is no control of the compliance with the Constitution of the
Houses’ standing orders (Belgium, Sweden).
The contribution from Slovakia concludes that Parliaments’ autonomy is
almost absolute if the only limitation is the obligation to comply
with the Constitution.
a.
The need to comply with the Constitution and the prerogatives of
other constitutional powers
The other contributions indicate that the principle of parliamentary
autonomy has to be reconciled with other principles of constitutional
value : compliance with the Constitution and other principles of
constitutional level (Germany, Belgium, Chile, Italy, Japan, Monaco,
Slovakia, Slovenia, Switzerland); legislative provisions applicable to
public authorities (Switzerland); prerogatives of other branches of
the State which are usually mentioned in the Constitution (Morocco,
Norway), fundamental rights (Canada, France, Iceland); sovereignty of
the People (Serbia).
Several contributions specify that there can be parliamentary autonomy
only within the limits set by the Constitution and that Parliaments
can only be autonomous so long as they do not go against fundamental
rights (Germany : “legislative power is bound by the constitutional
order”). It must not encroach on attributions of other branches of the
State (Slovenia, Slovakia), unless in cases when Parliament explicitly
decides to make the Government accountable.
In some contributions, the need to comply with the Constitution is
considered a limitation to parliamentary autonomy (Dutch Upper House,
Estonia, Italian Senate, Romanian Senate, Spain). The argument is that
it conveys the idea that autonomy is not absolute or that it is
perceived as absolute only within the perimeter of its constitutional
prerogatives… The contribution from the Spanish Senate explains that
Parliament shall not be fully sovereign because, as an institutional
body, it is under the obligation to comply with the Constitution it
has been instituted by. The Greek contribution specifies that all
powers come from the people and must be used according to the
Constitution.
It is sometimes argued that autonomy must not be in contradiction with
national laws and case law (Poland) as well as international
agreements (Norway).
Israel’s situation is peculiar – and is now becoming controversial –
in the sense that the High Court of Justice is bestowed extensive
powers over parliamentary work: it scrutinizes the observance of the
democratic process, the regularity of parliamentary procedures and the
extent to which laws comply with constitutional principles.
Parliaments of the Westminster tradition seem not to place a lot less
emphasis on the notion of autonomy because, in their approach,
Parliament comprises the Houses and the Crown, including members of
the Government (United Kingdom, Australia, Canada). In the United
Kingdom, particularly, the principle of autonomy is ranked a lot lower
than that of parliamentary sovereignty, “the most important principle”
in the British Constitution.
According to the Italian contribution, the autonomy of Parliament is
also limited by the need not to encroach on the prerogatives of other
constitutional bodies.
Some contributions contend that autonomy does not imply full
sovereignty in the enactment of internal rules, either because of the
constitutional prerogatives of the executive power (Morocco, Monaco)
or because the executive power is involved in the drafting of
constitutional or institutional provisions regarding autonomy
(Norway).
b.
Compliance with the rule of law
Several contributions underline that autonomy is limited by the rule
of law (Bahrain, Poland, Estonia, Finland, Iceland, Japan, Serbia,
Slovakia). Such a limitation can either be explicitly mentioned in the
Constitution (Germany, Iceland, Poland, Serbia) or only be a
consequence of constitutional provisions (Japan). The Finnish
contribution notes that the rule of law limits the scope of
parliamentary sovereignty. The British one contends that there is no
limitation to the sovereignty of Parliament but makes it clear that
the rule of law is guaranteed by independent Courts and that, in
practice, Houses of Parliament fall into the Court’s jurisdiction.
Some contributions mention the need to respect fundamental rights
(Canada, Estonia, Finland, Japan, Monaco) and the principle of
equality (Iceland).
Other contributions highlight the fact that, in some countries, the
absence of legal boundaries to parliamentary autonomy might be due to
the fact that there is no Constitutional Court (United Kingdom, the
Netherlands).
Another set of contributions does not explicitly refer to the rule of
law but argues that autonomous Parliaments must, in the first place,
comply with the Constitution and the ensuing principles (Belgium,
Australia, Canada, Germany, Spain, Greece, Italy, Slovenia, Romania,
Norway, Monaco, Lebanon, Chile). Compliance to constitutional case law
is also mentioned (Germany, Romania, Lebanon, Italy).
Several contributions from Parliaments in Member States of the
European Union underline the need to comply with the European Union
law (Italy). Compliance with international law is also noted
(Slovenia, Norway).
Some contributions specify that the Constitutional Court can be in
charge of solving disputes between constitutional authorities (Poland,
Italy).
Beyond the question of autonomy stricto sensu, several contributions
emphasize the fact that bills passed in Parliament must comply with
the Constitution (Australia, Slovenia, Finland, France, Poland,
Morocco, Japan, Italy) and that so do Parliament’s standing orders
(Spain, France). The Swiss contribution adds that no authority shall
refuse to implement the provision of a Federal law on the grounds that
it might be contrary to the Constitution.
Contributions from Morocco and Bahrain specify that autonomy is
limited by the interdiction made to Parliament and its members to
question the monarchial nature of the regime as well as, in Morocco,
Muslim faith and the King’s person.
The contribution from Israel stresses the extended powers of the High
Court of Justice in terms of control over Parliament’s acts and
regulations.
II. AUTONOMY AND ORGANIZATION OF PARLIAMENT
In this section is summed up data which has been collected despite the
fact that it is not strictly related to the questionnaire. It needed
to be presented, given the richness of its substance.
1. Statutory autonomy
A large number of contributions identify the elements of parliamentary
autonomy which are mentioned in the Constitution, and most notably two
of them: statutory autonomy and parliamentary immunity. Regarding
statutory autonomy – the ability to autonomously enact regulations -,
many contributions did not dissociate the “standing orders” and “rules
of procedure” from internal administrative acts. If the ability of a
House to enact both types of documents has the same foundation, the
legal status of the documents is not necessarily the same.
The aim of standing orders is to determine the conditions according to
which Parliament can exercise its constitutional prerogatives (mainly:
law making and government scrutiny). To that extent, standing orders
can be described as supplements, substitutes or even, in the British
case, substantial elements of the Constitution.
Administrative acts determine internal management rules and mainly
deal with the definition and use of the resources granted to
Parliament. The question one should ask in relation to administrative
acts is whether Parliament should be regarded as a “regular” public
institution and if the rules applicable to its internal management
should be the same as the ones governing the rest of the public
sector.
Regarding the first category of regulations, the general feeling is
that the ability to autonomously enact standing orders and rules of
procedures is regarded as the symbol of the autonomy of Parliament.
The drafting of internal regulations differentiates itself from the
drafting of laws by the fact that the executive does not take any part
in the process. The only limitations to the powers of Parliament in
this area arise, in some countries, from the Constitution:
constitutional provisions which provide the framework for
parliamentary organization; standing orders submitted to the control
of the Constitutional Court. The latter situation seems to be more
frequent in the bi-cameral countries than in others (France,
Switzerland).
Regarding the second category, the situation is very different from
one country to another. However, two situations can be identified: on
the one hand, a number of Parliaments adopt for their internal
organization the rules applicable to all other public institutions
without viewing it as a breach in the separation of powers; on the
other hand, there are countries where Parliament insists, even
symbolically, on enacting its own rules. A middle ground seems to be
emerging, where Parliament holds on to its statutory autonomy in areas
related to its missions but tries, as much as possible, to take into
account the general legal rules and transpose -all or some of- them
into its own regulations. For instance, in France, Courts tend to
recognize the statutory autonomy, as long as both Houses of Parliament
are responsible enough to take the appropriate measures. Where the
assemblies have failed to regulate, Courts refer to the general legal
rules.
The vast majority of contributions consider that autonomy means the
possibility for a Parliament to enact its own rules (Germany,
Australia, Canada, Chile, Spain, Estonia, Finland, Greece, Iceland,
Israel, Italy, Lebanon, the Netherlands, Poland, Serbia, Slovakia,
Slovenia, Romania, Japan, Thailand). The British Constitution makes it
clear that the only limitations to the statutory autonomy of both
Houses are the ones the Houses set themselves…
The freedom each House enjoys to determine its standing orders and
internal procedures, in compliance with the Constitution, is presented
as the key element of parliamentary autonomy (Germany, Australia,
Belgium, Finland, Greece, Iceland, Israel, Italy, Japan, Lebanon,
Morocco, the Netherlands, Poland, Romania, Slovenia, Sweden,
Switzerland).
The Belgian contribution specifies that autonomy means both the
independence of Parliament from the executive branch and the
independence of each House from the other. As a result, it cannot be
up to the legislator to interfere in the statutory organization of
each House.
However, in several - limited - instances, certain aspects of the
internal organization of Parliament are regulated by legal provisions
and not by autonomous regulation (Belgium, France, Japan, the United
Kingdom), especially in countries where there are two Houses.
All contributions indicate that the executive does not have any power
to intervene in the definition of the rules governing the internal
running of parliamentary assemblies, which remains of the exclusive
competence of the assemblies (Germany, Australia, Bahrain, Belgium,
Canada, Chile, Spain, Finland, Greece, Israel, Italy, Japan, Lebanon,
Morocco, Norway, the Netherlands, Poland, Romania, the United Kingdom,
Serbia, Slovakia, Slovenia, Sweden, Switzerland, Thailand).
The Belgian contribution adds that the Constitution explicitly forbids
any kind of interference on the executive’s part in the drafting of
standing orders. The Dutch contribution indicates that only members of
Parliament can initiate amendments to standing orders. In Italy, only
parliamentary authorities are entitled to implement and interpret
standing orders.
If the executive cannot interfere in the definition of the rules
governing the working of Parliament - and this is a substantial
difference with the law making process, even in countries where the
legislative power is shared with the executive (the Netherlands) -
there are countries where it can - but rarely does - suggest
amendments and modifications to Parliament’s internal rules (House of
Commons of the United Kingdom, Sweden).
Nevertheless, in parliamentary regimes where there is a necessary
congruence of the parliamentary majority and the government, Houses of
Parliament consult and involve the Government when they decide to
change their rules.
Several contributions identify the control of compliance with the
Constitution as a limitation to the ability of the assemblies to
self-regulate (Italy, Monaco), even when standing orders are not
submitted to any kind of constitutional control: a Constitutional
Court can indeed decide to repeal a provision when it judges that is
has been adopted according to a procedure which is contrary to the
Constitution, even though the said procedure is governed by standing
orders of a House. In France, since 1958, it is a constitutional
requirement (article 61) that every modification of standing orders is
submitted to the Constitutional Council. It could be argued that this
constitutional provision imposes a tight limitation of Parliament’s
margin for manoeuvre.
Lastly, the peculiar situation of the Houses of the British Parliament
has to be mentioned as there is in each House a “Leader” appointed by
the Prime Minister, acting both as a minister in charge of the
relations with Parliament and as an official of the House (advisor for
the implementation of standing orders in the House of Lords).
2. Parliamentary immunities
In many contributions, parliamentary immunities and the liberties
bestowed to the members of Parliament in order to guarantee their
independence from the executive and judicial powers are perceived as
supplements to institutional autonomy. Among these supplements are
also, on the one hand, the need for judges to obtain an authorization
of the assembly in case of most law suits against a Member (“inviolability”)
(Belgium, Estonia, Finland, Italy, Japan, Lebanon, Monaco, Slovakia,
Slovenia, Sweden, Switzerland) and, on the other hand, the freedom of
speech and of vote that Members of Parliament enjoy (“irresponsibility”)
(Belgium, Estonia, Finland, Italy, Japan, Lebanon, Monaco, Slovakia,
Slovenia, Sweden, Switzerland).
In some instances, assemblies hold the exclusive power to appreciate
the regularity of the election of their members (Belgium, Italy, the
Netherlands) and to implement the rules applicable to “ineligibility”
and “incompatibilities” (Italy).
The prohibition of the imperative mandate, regarded as a protection of
free speech and free vote, is also considered as a guarantee of
autonomy (Estonia, Slovakia, Finland, Lebanon, Slovenia). It is
explicitly mentioned in the French Constitution. The Estonian
contribution mentioned also the parliamentary indemnity as a guarantee
for independence.
In some instances, standing orders are granted a value superior to
that of the law (Chile, Slovenia, Sweden).
The ability of a House to elect its president has been mentioned as a
protection of its autonomy (Iceland, Italy, Japan, Romania).
3. Legislative and budgetary powers
a.
Legislative powers
Our British colleagues, in a joint contribution, provide us with
enlightening insights on the spirit of the Westminster system. They
reassert the sovereignty of Parliament but move on to admit that it
cannot be absolute anymore, even in the United Kingdom: “After
centuries of struggle, the power of the British state resides in the
Government. The Government’s creation and continued existence depends
on its ability to command a majority in the House of Commons”. In
addition, countries of British tradition seem to place less emphasis
on the principle of autonomy as their Parliament comprises at the same
time Houses and the Crown, including members of the Government
(Australia, Canada, the United Kingdom). In the United Kingdom
especially, the principle of autonomy is based on that of sovereignty
of Parliament, the most important principle of the British
Constitution. It is almost as if the issue was irrelevant.
It arises from this conception that governmental legitimacy is based
on the fact that it is an emanation of the majority in Parliament.
Hence, the question of the scale of Parliament’s independence from the
executive loses some of its relevance.
“By-products” of this conception can be found for instance, in the
Netherlands or in Iceland where the legislative power is shared
between Parliament and the Government. Such an arrangement can justify
(as in Monaco) that the Prince’s approval is required prior to every
modification of the law organizing the working of the Houses. In other
instances, where some areas of parliamentary activities are regulated
by Law, governments do not hold the power to oppose the promulgation
of bills (France, Japan, Slovakia). The case of Iceland is
interesting: the President of the Republic can oppose the promulgation
of a bill but, if he does, a referendum on the bill is automatically
organized. The contribution from the Dutch Upper House points out that
the government can refuse to promulgate a bill, but in this case it
either has to resign or to dissolve the Lower House and call for new
elections.
b.
Budgetary powers
Some contributions provided data on the powers of their Parliament in
the discussion of the nation’s budget.
Only Parliament can vote the budget, according to the principle of
“consent to taxation” (Canada). However, in a number of cases,
Parliament only enjoys limited amending powers in order to constrain
spending and limit the deficit (Estonia, Poland, Japan, Spain,
Lebanon). In Spain, Parliament cannot decide on a cut in public
resources. In Monaco, the House has no amending power. Where the
amending power is limited, the right to initiate provisions which are
potentially costly for public finances can also be restricted (Spain),
but not always (Lebanon).
Regarding the right of initiative, most contributions emphasize the
exclusive competence of the executive in budgetary matters: the draft
budget is first prepared by the Government and then presented to
Parliament (Belgium, Canada, Estonia, Spain, Japan, Monaco, Poland,
Romania, France).
In some countries, the budget follows the same procedure as other laws
(Chile, Norway, the Netherlands) while, in others, there are specific
procedures, especially in terms of organisation and timing of the
discussion (Belgium, Estonia, France).
A few contributions mention the prominent role of the Lower House in
budgetary matters: in Belgium, only the House of Representatives
discusses and votes the budget while, in the Netherlands, the Senate
does not have the power to amend (but this limitation is not specific
to the finance bill). In France, the budget must be presented to the
Lower House first, but Senators and Members of the National Assembly
have the same rights and powers once the examination process has
started.
4. Scrutinizing powers
Most contributions indicate that Parliament holds a scrutinizing power
on the actions of the executive. This power can be organized according
to rules defined by the Constitution (Spain, Estonia, Finland, Israel,
Japan, Morocco, Slovakia, the Netherlands, Poland, Romania,
Switzerland).
Constitutions can either be strict or loose in their definition of the
scrutinizing function: it is limited to the Lower House in Poland
while, in Japan, Houses cannot monitor the actions of the Government
during the sessions and cannot investigate twice the same policy area.
Several contributions insist on the political nature of parliamentary
scrutiny (Finland, Switzerland) except when the House has to question
the probity of a member of the government. The fact that governments
are accountable before Parliaments is presented as one of the
manifestations of parliamentary scrutiny (Slovakia). A few
contributions note that parliamentary scrutiny of Government work is
not mentioned in the Constitution and has been a custom since the XIXth
century (the Netherlands). In France, the Constitution does not
mention this power either.
Several contributions contend that the necessity for the majority to
support the government undermines the effectiveness of parliamentary
scrutiny (Australia, Israel, Thailand). The same goes for the
possibility for a government minister to remain a Member of
Parliament.
Scrutinizing tools are very diverse (Estonia, Israel, Monaco, Poland,
Romania): information of Members of Parliament, committee hearings,
questioning, parliamentary inquiries, votes of no-confidence, etc…
Parliamentary scrutiny can be focused on the way governments spend
public money. In this case, annual reports established by ministerial
departments can be used as a basis for parliamentary investigations
(Canada).
The Belgian contribution adds that Members of Parliament have the
power to conduct individual inquiries (eg: access to prisons, military
bases).
In Morocco, Bahrain and Monaco, the specificities of constitutional
monarchies tend to limit the scope of parliamentary control over the
executive (the Government is not accountable before Parliament in
Monaco and the monarchy cannot be questioned in Morocco and Bahrain).
In Chile, only the Lower House has scrutinizing powers while in Japan,
the resources available for monitoring the government, if they exist,
are not perceived as an element of parliamentary autonomy. The Serbian
contribution specifies that the control over the government is not as
independent as it could, given the strong political legitimacy of the
executive, superior to that of the legislative of judicial powers.
III. AUTONOMY AND THE RUNNING OF PARLIAMENTS
1. Administrative autonomy
The vast majority of contributions mentions Parliament’s
administrative autonomy, according to which House can autonomously run
- within a given budget - their own administration, finances and human
resources (Germany, Bahrain, Belgium, Canada, Chile, Estonia, Spain,
Finland, Greece, Iceland, Italy, Japan, Lebanon, Norway, the
Netherlands, Romania, the United Kingdom, Serbia, Sweden, Switzerland,
Thailand). The scope of the administrative autonomy is usually fairly
broad. It is sometimes determined by law. Provisions about
administrative autonomy can be found either in laws which are specific
to Parliament and its organization (Japan, the United Kingdom, Sweden,
Thailand) or in laws dealing with the relations between the citizens
and the public institutions (Finland).
The Italian contribution contends that administrative autonomy has
become a “constitutional custom”.
Administrative autonomy consists in the existence of administrative
departments specific to the institution and of employees recruited
freely and autonomously and managed according to rules inspired by
those implemented in the civil service (the United Kingdom, the
Netherlands, Sweden).
In some countries, administrative autonomy appears to be significantly
less developed, as a result of the strong control by the executive
over Parliament’s administration and resources.
a.
Legal status of Parliament’s internal acts
When dealing with the norms applicable to Parliament’s administration
and finances, one has to distinguish between the instances - frequent
- where Parliament uses the general rules of civil service Law and
those - rare - where Parliament enjoys full normative autonomy. In the
latter case, it has to be noticed that Parliaments very often chose to
transpose, into their own body of regulations, the general legislation
applicable in the rest of the public sector, except when they see an
absolute need for specific rules (Belgium, Spain, France, Israel,
Norway, the United Kingdom).
(1) The question of Parliament as a legal entity
There are mixed views on the question as to whether Parliaments shall
be considered legal entities;
some indicate that only the State is a legal entity and that
Parliament, as an organ of the State, is not (Germany, Belgium,
Canada, Estonia, Spain, Finland, Greece, Monaco, the Netherlands,
Poland, the United Kingdom, Slovakia, Slovenia). Parliament’s acts are
generally taken on behalf of the State (Belgium, Finland), but
sometimes also on its own behalf (Canada).
Others indicate on the contrary that Parliament, and each House in
bicameral systems, is a legal entity (Bahrain, Iceland, Israel, Italy,
Japan, Lebanon, Norway, Morocco, Romania, Serbia, Switzerland). It
can, consequently, go to court, manage its assets and sign contracts.
However, the Attorney General’s assent may be required before being
able to go to Court (Iceland).
The question of the ownership of the patrimony is sometimes
distinguished from that of “Parliaments as legal entities”. Indeed,
there are countries where Parliament are legal entities but do not own
their patrimony, which remains property of the State (Israel, Japan,
Romanian Senate, Serbia).
Nevertheless, and even though there are exceptions (Monaco), it can be
argued that Parliaments, even when they are not legal entities, enjoy
some degree of capacity to act autonomously in the legal field (day to
day operations, management of the assets of which they are in charge,
commercial or labour-related contracts) (Belgium, Canada, Estonia,
Spain, Finland, Greece, Iceland, the Netherlands, Poland, the United
Kingdom, Slovenia).
There are also Parliaments which, without being bestowed full legal
capacity, can nevertheless go to court (Belgium, Canada, Estonia,
Finland), where they are usually represented by the State or the
General Attorney (Greece, the Netherlands, Poland, the United Kingdom,
Slovenia). In France, it is usually considered that Parliament is a
component of the State but is a de facto legal entity. It can
consequently go to court autonomously.
(2) Potential controls over Parliament’s acts
There are two distinct types of contributions: those from countries
where there are only - when they exist - internal controls in
Parliament and those where external public bodies are in charge of
controlling Parliament’s acts.
In the first group, some indicate that there is no control over the
acts enacted by Parliament for the purpose of its internal running
(Norway, Switzerland).
Several contributions mention internal controls (Australia, Finland,
Italy, Japan, Morocco, Poland, Romania, Thailand), without specifying
if there are also external or judicial controls.
Some contributions describe in detail the nature of their internal
control mechanisms, generally organized around committees or organs in
charge of internal auditing (Australia, Bahrain, Finland, Japan). The
British contribution specifies that administrative and financial
management as well as internal scrutiny of the Houses are assigned to
their highest authorities (House Commission in the House of Commons
and House Committee in the House of Lords), with the assistance of
specialized committees.
The control resulting from pressure exercised by the public opinion,
especially where internal rules of the Houses can be challenged before
Courts, is also mentioned.
(3) Judicial control
Several contributions note the possibility for the Constitutional
Court or the Supreme Court to control Parliament’s internal acts
(Israel, Monaco, Romania, Serbia, Slovenia). In other countries, the
organ in charge of verifying public accounts also has this possibility
(Chile, Iceland, Israel, Slovenia). The existence of such external
control mechanisms does not stop Parliaments from setting up their own
internal control (Chile, Israel).
Some contributions point out that internal acts can be challenged
before ordinary Courts (Germany) or before specific Courts (Council of
State in Belgium for all internal regulations). Several contributions
specify that Parliament’s administrative acts fall into the
jurisdiction of ordinary courts (Australia, Canada). In France, Courts
can examine parliamentary acts only in a limited number of areas (most
notably human resources). In doing so, they base their appreciation on
the assemblies’ internal regulations when they exist, and on the
general legal provision when they do not. It is worth mentioning that
in some areas, the law asserts the competence of the Houses’
authorities, or even of the authorities of only one House (the Senate
owns the Luxemburg Gardens and as such has a competence in the area of
urban planning). The Italian situation is peculiar in the sense that
it takes to the limit the logic according to which parliamentary acts
cannot be subjected to any judicial control. As a result, Italian
Houses have to set up internal Courts. Their main task is to settle
disputes with their employees.
The privileges bestowed upon Parliaments of British tradition (Canada,
the United Kingdom), which result from the constitutional value of the
Bill of Rights of 1689, exclude, in principle, any possibility for a
Court to control internal act of a House without its consent.
2. Administrative resources
a.
Organization of administrative departments
(1) The principle of freedom
An assembly is generally free to make all the decisions regarding the
organization of its administrative departments (Germany, Australia,
Bahrain, Belgium, Canada, Chile, Estonia, Spain, Finland, Greece,
Iceland, Israel, Italy, Japan, Lebanon, Morocco, Norway, the
Netherlands, Poland, Romania, the United Kingdom, Slovakia, Slovenia).
The organization of administrative departments can be settled by
internal regulations (Belgium, Italy, Japan, Poland) or by specific
law (Japan).
There can be limitations to this functional autonomy: instructions
received from the executive power (Monaco); requirement of
governmental approval before implementing decisions that are
financially costly (Thailand); law limiting the number of employees in
public administrations (Serbia).
In bicameral Parliaments, two situations can be encountered : one in
which each House has its own administration (Belgium) even though
there can be - few - joint departments (the United Kingdom) ; another
in which both Houses share the same administrative structure, at least
in non legislative areas (Australia).
It can happen that a House has non permanent administrative
departments (Minutes Department in the Belgian House of
Representatives).
(2) Choices made
The choices made by Parliaments in terms of administrative
organization are very diverse and vary according to their size and the
traditions of their country.
However, in every Parliament with an administrative structure of a
certain size, legislative departments, which are specific to
parliamentary institutions and necessary to the completion of their
duties, have to be distinguished from administrative departements,
which can exist in any administrative entity.
Regardless the type of administrative organisation, all departments
report to a single authority, who is a high ranking civil servant and
not an elected member of the House (Secretary general in most cases,
Clerk of the House, Head of the Chancellery of the House). The
secretary general is assisted by sectorial deputies whose attributions
cover the distinction between parliamentary departments and the other
departments.
In addition, in bicameral systems, every House has its own
administration. Joint administrative departments remain the exception
(Australia, Switzerland).
Organisation charts have been collected and are annexed to this paper.
(3) The example of security
Parliament is usually responsible for organizing its own security even
if approaches to how to collaborate with police forces are very
diverse. Very often, Parliament has its own security department,
staffed with parliamentary employees (Australia, Bahrain, Belgium,
Canada, Estonia, Finland, France, Greece, Iceland, Israel, Italy,
Japan, Lebanon, Norway, the Netherlands, House of Commons of Romania,
the United Kingdom, Thailand).
It is usually the President of the House (Bahrain, Belgium, Spain,
Greece, Italy, Japan, Lebanon, Monaco, the Netherlands) or the
secretary-general (Estonia, Norway, Poland) who is responsible for the
security and the policing of the “parliamentary estate”.
Some Parliaments have a “sergeant-at-arms” in charge of internal and
external security as well as of the policing of the floor (Australia,
Canada, Israel, the United Kingdom).
In some instances, there even is a “parliamentary guard” in charge of
maintaining internal and external security of the assemblies (Japan,
Poland, Slovakia).
However, the security of Parliament often relies on a co-operation
with police forces (Australia, Iceland) which can place agents under
the authority of the assembly (France, Greece, the United Kingdom).
This cooperation can go as far as having Parliament’s security
maintained, for the most part, by police agents rather than
parliamentary employees (Germany, Estonia, Morocco, Slovenia,
Switzerland).
Police forces generally need an authorisation in order to penetrate
inside a House (Australia, Canada, Israel, Norway).
While internal security is usually maintained by employees of the
assembly, external security can sometimes be entrusted to police
agents (Estonia, Finland, Polish Senate) or, upon request of the
Assembly, to the army (Belgium, France, Japan). Sometimes, Parliament
can call for assistance of public forces to contribute to its
protection, especially from external aggressions (Belgium, Italy,
Japan, Monaco). Additional agents are then provided by the executive.
In some countries, security is not a prerogative of Parliament but one
of the Interior ministry and of the police forces (Chile, Romania
Senate, Serbia).
b.
Recruitment and management of human resources
Regarding the recruitment, status and carrier of parliamentary
employees, the most common situation is the possibility for
Parliaments to recruit freely, according to their own procedures
(Australia, Bahrain, Belgium, Canada, Chile, Spain, Finland, Greece,
Iceland, Japan, Lebanon, Norway, the Netherlands, Romania, the United
Kingdom, Slovakia, Thailand).
Parliaments usually apply, in the management of their employees, the
general rules applicable to civil service employers. It can happen
that these rules need to be slightly adapted (Germany, Australia,
Estonia, Morocco, Monaco, Poland, Serbia, Slovakia, Slovenia,
Switzerland).
In the few instances where Parliament determines autonomously the
rules applicable to its employees (Finland, France, Italy, Romania) -
sometimes by virtue of Law (Finland, Japan) - the rules are usually
very much inspired by those applicable to the rest of the civil
service (Belgium, Israel, the United Kingdom, Thailand). There can
also be an obligation to draft the rules within the general framework
of civil service regulations (France, Japan, Lebanon, the
Netherlands).
Several contributions point out that Parliament is free to recruit
either according to existing laws or to specific rules (Spain, France,
Greece, Israel, Norway).
As a result, it appears that, in most cases, human resources in
Parliaments are governed by the rules in force in the rest of the
civil service, either because Parliaments have to respect these rules
or because they have chosen to do so.
3. Financial resources
A number of contributions indicate that the executive does not have
the ability to interfere in the resources allotted to Parliament
(Germany, Belgium, Canada, Chile, Finland, Greece, Israel, Italy,
Norway, the Netherlands, Poland, Romania, Sweden, Switzerland).
However, one has to assert whether, on the one hand, this situation is
the consequence of a regulation according to which Parliament’s
financial autonomy is guaranteed or, on the other hand, if the absence
of governmental interference is merely a custom.
a.
Drafting Parliament’s budget
Most contributions stress the extent of financial autonomy Parliaments
enjoy. In most cases, the government does not question the budgetary
demands expressed by Parliament. Such an arrangement is usually
customary rather than inserted in a written regulation (Belgium, the
United Kingdom, Canada, Italy, the Netherlands, Sweden, Finland,
Poland, Norway, Romania, Switzerland, Chile, Spain, Iceland). The
requested sums are then included in the nation’s annual budget.
In some countries, Parliaments receive every year a grant with no
specification regarding how it should be spent (Belgium, Canada, the
Netherlands). In others, Parliament has no budgetary autonomy and is
not treated differently than other public administrations (Australia,
Morocco, Slovakia, Slovenia).
The credits allotted to Parliament are usually included in the
country’s budget, which is prepared and presented every year by the
Government. In many countries, Parliament’s budgetary requests are
drafted by an internal organ, which can include representatives of the
Government (Canada). The draft budget of the assembly is then
transmitted to the Government and inserted in the budget, without any
discussion. Since 1958, France has had a comparable system, in which
the budgets of both Houses are determined by a committee comprising
members of the House and chaired by a representative of the Court of
Accounts. The fact that the government does not discuss the content of
Parliament’s draft budget is often the consequence of a customary rule
(Canada, Finland, Iceland, the Netherlands, Sweden). However when the
Government engages into a policy of spending cuts, Parliament can be
invited to take its part (Israel). There are also countries (the
Netherlands) where it is a “gentlemen’s agreement” that there are no
amendments when Parliament’s grant is discussed on the floor of the
House. However, this custom has been questioned by the Government in
the recent past, as explained in the contribution from the Dutch Upper
House.
Several contributions indicated, on the contrary, that the executive
can interfere in the determination of financial resources granted to
Parliament, according to various mechanisms and on various scales
(Australia, Bahrain, Estonia, Japan, Morocco, the United Kingdom,
Serbia, Slovakia, Slovenia, Thailand). The Government can disregard
Parliament’s requests depending on the country’s fiscal situation
(Japan, Serbia, Slovakia, Slovenia, Thailand). There are also
countries where the total amount of Parliament’s budget is either
decided by the government (Australia, Morocco) or approved by the
government (Thailand). In Slovenia, the Government can make cuts in
Parliament’s spending if required by the country’s fiscal situation.
The British system as encountered in the House of Commons is a mix of
the previous examples: wages and pensions of the Members of the House
are decided on by the government (the House of Commons Members Vote)
while all other expenditure is decided on according to a principle of
a strict budgetary autonomy (the House of Commons Administration Vote).
b.
Managing Parliament’s budget
Every contribution indicates that Parliament is free to define and
execute its expenditure, once the grant has been allotted. Slovenia
and Thailand are the only examples of Parliaments in which an
authorization is needed before spending. In Lebanon, spending is
subjected to internal controls. The Thai contribution specifies that
administrative autonomy is limited by the fact the Finance Minister
has to approve all decisions with financial consequences.
It is worth noting that some Parliaments follow the same rules of
public accountancy as the State (Australia, Belgium, Estonia, Israel,
Japan, Lebanon, the Netherlands, Poland, the United Kingdom, Slovenia,
Thailand) whereas other have their own book-keeping standards.
Once the budget is voted, it can be necessary to enact an internal
regulation in which the projected expenditure is presented in detail,
especially in countries where the allotted budget comes as a global
grant.
Though Parliament’s spending has to remain within the limits of the
budget, some Parliaments have the possibility to benefit from
additional credits before the end of the year (Finland, the
Netherlands, Romania). The Japanese contribution specifies that there
are in Parliament’s budget, every year, sums which are provisioned in
order to be able to face unexpected expenditures without having to
depend on the Government. The Romanian contribution notes that all
surpluses have to be given back to the Government. This seems to be a
general rule in all the countries surveyed.
In some countries, it is possible - within the limits of the budget -
to modify the initial allocation of resources (Japan, Monaco, Norway).
In Poland, reallocation of resources is conditioned by prior
authorization of the Finance Minister.
Several contributions mention the existence of an annual report
presenting the details of the year’s spending (Australia, Canada).
c.
Control over Parliament’s internal management
Most contributions mention internal and external scrutiny of
Parliament’s accounts and financial management.
(1) Procedures of internal control
Only a few contributions indicate that the only control is internal
(Bahrain, Belgium, Canada, Spain, Finland, Italy, Lebanon, the
Netherlands, Slovakia). In this case, the organ in charge of the
control can audit the accounts as well as the administrative
organization of the House.
In the United Kingdom and in Iceland, Houses are under the scrutiny of
the National Audit Office, which certifies their accounts.
Usually, internal control relies on a specific administrative
department (Germany, Canada, Chile, Spain, Israel, Italy, Lebanon, the
Netherlands, Poland, Romania, Slovakia, Thailand) and not the
financial departments of the House. In some instances, internal
control is conducted by a committee which comprises Members of the
House. The Committee is in charge of verifying the accounts (Belgium,
Finland, France, Greece, Morocco Monaco) and can benefit from external
expertise (Finland, France).
Some contributions point out the absence of formalized internal
control mechanisms, either because external scrutiny is regarded as
sufficient (Australia, Estonia, Iceland, Norway) or because
Parliament’s budget is under the direct responsibility of the finance
ministry (Serbia).
(2) Organization of external control
Some contributions mention the existence of an external control over
the accounts, operated by the Ministry of Finances (Japan) or by a
specialized organ.
When there is external scrutiny, it is generally bestowed on an
independent authority in charge of controlling all public accounts
(Germany, Australia, Chile, Estonia, Iceland, Israel, Japan, Monaco,
Norway, Poland, Romania, Slovenia, Switzerland, Thailand, the United
Kingdom, Sweden). There are countries where this control is conducted
in application of constitutional provisions (Japan, Slovenia). The
scope of the control is twofold: regularity of the spending ; good use
of the funds. France has recently set up a mixed system in which each
House has a parliamentary committee in charge of controlling the
accounts. The committee can benefit from the expertise of a private
and independent auditor, especially in its task of certification.
Accounts are then transmitted to the Court of Accounts in order to be
inserted in the accounts of the State.
Sometimes, the Finance ministry has the power to control Parliament’s
use of its grant, either exclusively (Morocco) or in addition to other
controls (Japan, Slovenia, Thailand).
In the United Kingdom, Houses regularly commission external audits in
order to evaluate the quality of their management. A number of public
bodies can formulate an opinion on the way Parliament is run
(authorities in charge of controlling civil servant wages and ethics).

Mr Hans BRATTESTÅ (Norway) explained that a debate had emerged in
Norway on the autonomy of Parliament: it seemed that things had gone
very far, even, for some, too far in this area, with the Parliament
having wide autonomy in determining its own rules, preparing its own
budget and even managing its real estate. From this fact, the
prerogatives of Government had little by little disappeared, and it
appeared necessary to try to achieve a certain balance.
Mrs Adelina SÁ CARVALHO (Portugal) explained that the issue of the
autonomy of Parliament had been central for about fifteen years in
Portugal, and that the situation had evolved. Thus as of now, the law
provided that, on the basis of this principle of autonomy,
Parliament’s budget would be adopted in public sitting before the
whole of the national budget. The financial autonomy of Parliament had
been shown to be crucial, because it provided the conditions, in a
manner of speaking, within which it was possible for Parliament to
monitor the activities of Government. Parliament’s budget was audited
by the Court of Auditors, which was independent both of Government and
Parliament. Its report, leapt upon by the media, was published every
year, allowing for substantial financial transparency in Parliament;
Parliament’s budget was moreover subject to very many internal checks,
transparency giving more duties than rights.
Ms Heather LANK (Canada) thanked Mr Delcamp for his remarkable work,
and pointed out that the Clerk of the Canadian Senate was also working
on these issues. His study was concentrating more on the governance of
parliamentary institutions. He would be collaborating with Mr Delcamp
in this area.
Mr Alain DELCAMP explained that in the Westminster system, the
question of the separation of executive and legislative powers did not
arise in the same way, because Government and Parliament were
intrinsically linked, and one couldn’t speak of formal separation; the
Norwegian system seemed similar to that of the United Kingdom. He
stressed that, in effect, financial autonomy was indispensable, and it
was necessary to find a third way between controls imposed from
outside and self-regulation, which needed to be better defined and
perfected. On this last point, he raised the example of a bill
relating to archives, recently examined by the French parliament,
which initially proposed a unified management of the public archives,
Parliament’s included. The bill had subsequently been amended to allow
Parliament to choose. Nothing prevented the application of the general
law to Parliament, but Parliament needed to be able to decide if, in
one area or another, this ought to be the case. Finally, he noted that
it would be useful to compile a dictionary redacting and compiling the
organizational rules of different Parliaments across the world, in
their different aspects.
Mr David BEAMISH (United Kingdom) said that, if Mr Brattestå was
claiming that in Norway, the autonomy of Parliament had been pushed
too far, it seemed that an opposite movement had been played out in
the United Kingdom for thirty years or so, leading the British
Parliament to renounce part of its sovereignty. The principle
according to which laws did not apply to the internal workings of
Parliament was being increasingly breached. For example, a law of 2000
on freedom of information, which proposed wide access to public
documents, was not intended initially to apply to Parliament.
Nevertheless, the competent parliamentary committee in the House of
Commons had decided that this should be the case, and the implications
of this decision had been seen to be much more far-reaching than
initially envisaged. This led to a kind of renouncement of a part of
parliamentary autonomy. In contrast, one could cite the example of the
decision of the British group of the IPU to give up its budgetary
dependency on the Treasury, turning instead to Parliament, which had
allowed it to escape a 5 per cent cut in its budget planned by the
Ministry.
Dr Hafnaoui AMRANI (Algeria) stressed the evolutionary character of
the concept of autonomy. He noted that in Algeria, although the
Constitution foresaw a separation and division of powers, in fact the
executive power was largely dominant. Added to that was the issue of
the powers of the Constitutional Court, which exercised extensive
oversight over the laws passed by Parliament and against whose
decisions there was no recourse. Finally, although the Algerian
parliament had autonomy over its own rules and administration, this
was not the case in the area of finances, as the Court of Auditors,
which audited Parliament, answered to the power of the executive. Mr
Delcamp’s work, which was very interesting and clear, was worthy of
follow-up, in order to appreciate the evolution of this concept of
parliamentary autonomy.
Mrs Doris Katai MWINGA (Zambia) added that the Zambian Parliament had
real autonomy in the areas of administration, internal regulation and
security, but that, in contrast, this was not the case in the area of
finances. Parliament’s assets belonged to the Government and its
budget was negotiated with the Ministry of Finance, right now in fact.
She hoped nevertheless that this situation was in flux, with
Parliament having asked for this financial autonomy, as had the
judiciary.
Mr Alain DELCAMP (France) raised the fact, paradoxical on first
glance, that the rules defined by Parliament did not apply to the
internal functioning of Parliament. This was becoming more and more
difficult to explain to public opinion. It was therefore necessary, on
a case by case basis, to take the opportunity to apply one or another
provision to Parliament. As for the Court of Auditors, he thought that
the role played by those in charge of financial control was becoming
more and more important, to the detriment of the autonomy of those
taking decisions. Now, an organ of control such as the Court of
Auditors was made up of people who had been nominated, not elected. It
was therefore a good idea to place institutions in a kind of
hierarchy: if Parliament has a duty to be transparent, it represents
the people and holds a democratic legitimacy from this fact. This was
why it should not be denigrated by being placed on the same level as a
Ministry.
Mr Anders FORSBERG, President, added that in Sweden, the civil
servants in the Ministry of Finance were a bit frustrated not to be
able to get involved in the financial affairs of Parliament, but the
role of Parliament, the first power of society, was to keep an eye on
the Government. He concluded by inviting Mr Delcamp to attend a
meeting of the Executive Committee to debate how to pursue this
interesting topic.
Reform of the Portuguese PARLIAMENT: progress and problems
—
Adelina Sà Carvalho
Secretary General of the Assembly (Portugal)
1. The Reform of the Assembly of the Republic of Portugal
In July 2007 (at the end of the 2nd legislative session of the 10th
Legislature), the Portuguese Parliament concluded a parliamentary
reform process which, although not unique in terms of methodology,
because at various times during its history, working groups or
committees have been set up to reform the Parliament, it was, without
doubt, unique in terms of its ambition and the objectives that were
achieved1. This reform was concluded in an exceptionally short period
of time; the work began on January 2007 and the rules were approved in
July of the same year.
This Reform included:
a.
New Rules of Procedure;
b.
Amendments to the Statute of Members;
c.
Amendments to the Right of Petition;
d.
Amendments to the Law governing the form of bills.
Resolutions were also approved relating to:
e.
The rules of the Parliament Channel and the Website;
f.
The setting up of a Working Group to prepare a Code of Good
Practice (Questions and motions);
g.
The rules for editing and publishing the Journal of the Assembly
of the Republic;
h.
The adoption of energy efficiency and water-saving methods; and
i.
The progressive reduction of CO2 emissions inside the Parliament.
From this set of instruments, it is possible to identify the Reform
priorities, which have been evident since the beginning of the
process:
1.
Increasing transparency and moving closer to citizens;
2.
More flexible operating rules and better planning of
parliamentary work;
3.
Strengthening the political control instruments;
4.
Strengthening the role of the parliamentary committees;
5.
A more demanding legislative procedure;
6.
Responses to environmental questions.
1.
Increasing transparency and moving closer to citizens
The need to increase transparency and move closer to citizens is a
response to the growing requirements of civil society, which demands
immediate and accessible knowledge of parliamentary activity as well
as of the profiles and activities of its members; people also expect
the right to participate.
In some matters, this transparency also involves discarding the need
to go through the media, by making the information available to all
citizens, and whenever possible, at that moment.
It is now a rule for parliamentary committee meetings to be made
public.
All acts and documents which are required to be published in the
official Journal, along with all the documents which the Rules of
Procedure require to be produced and processed, are now available in
real time on the Internet and Intranet Websites. Journalists now have
the right to access all the documents distributed during every
committee meeting, as long as they do not contain confidential
material.
The Members of Parliament register of interests is public, and can be
found on the Internet Website. Members of Parliament absences from
plenary sittings and committee meetings have also been available on
the Internet Website since the beginning of this legislative session,
along with the respective justification, if any.
The citizen participation process has also advanced, with legislative
initiatives subject to public debate being published exclusively via
electronic format. This enables the citizens to subscribe, and to
immediately submit suggestions.
Petitions, which could already be sent in electronic format, can now
be later supported by other citizens and their processing can be
monitored.
2.
More flexible operating rules and better planning of
parliamentary work
Although they seem to conflict with each other, in fact, they
converge, because they guarantee greater malleability in operational
terms and simultaneously allow a better organisation of parliamentary
activities.
To improve planning, it is the responsibility of the Speaker, after
consulting the Conference of Leaders, to propose the parliamentary
activity calendar for the following legislative session; its approval
by the Plenary takes place before the end of each legislative session.
At the end of the legislative session, the parliamentary committees
draw up their proposed plans of activities and their respective budget
proposals for the following legislative session. These are subjected
to consideration by the Speaker, so that they can be included in the
budget of the Assembly of the Republic for the following year.
At the end of the legislative session, the committees prepare reports
on their activities, to be published in the official Journal.
In order to make parliamentary work more flexible, the Speaker, after
consulting the Conference of Leaders, may set aside two days for MPs
to keep in contact with their electors and, in the following week,
dedicate three days to meetings and other parliamentary committee
activities.
The calendar and timetable of the plenary sittings have remained
unchanged – taking place on Wednesday and Thursday afternoons and
Friday mornings. This was the object of a wide debate, especially
because there were those who defended setting aside a greater time for
parliamentary committee meetings.
Only the voting time has been changed: it takes place during the final
plenary sitting of each week where the order of business includes
matters that require a decision by the Members of Parliament. This
means that if the sitting takes place in the morning, the vote is held
at 12.00, if it takes place in the afternoon, at 6.00 pm.
The order of business is set by the Speaker at least 15 days in
advance and it is published on the Intranet within twenty-four hours
of being decided.
3.
Strengthening the political control instruments
Strengthening the political control instruments corresponds to
focusing on an area of parliamentary competence that has been taking
on increased importance, and has thus needed reassessment of its way
of working. A study of the Portuguese Parliament, concluded in 20011,
stated: “Sessions of questions to the Government, which take place on
Friday mornings attract little press attention, and are usually
described by Members as being monotonous and uninteresting”.
Furthermore, the Working Group on the Reform of the European
Parliament, set up in 2007, defined one of its objectives as, in the
case of plenary sittings, increasing the interest of the public and
the media in parliamentary debates and decisions, with livelier, more
interesting sessions, and on strengthening controlling powers.
With the current reform, the Prime Minister will now stand before the
Plenary every two weeks to a session of questions from Members of
Parliament.
The session of questions takes place in two alternating formats:
*
in the first case, the subject is chosen by the Government and the
debate is opened after an opening speech by the Prime Minister
lasting for no longer than 10 minutes. This is followed by a
period where there is a single round for Members to ask questions
followed by the Prime Minister’s answers, which cannot be longer
than the questions;
*
in the second case, the subject is chosen by the parliamentary
groups and the debate starts off with the single round of Members’
questions, followed by the Prime Minister’s answers.
Every minister must appear on the plenary sitting at least once during
every legislative session, to answer Members’ questions on areas that
he/she is responsible for.
4.
Strengthening the role of the parliamentary committees
The strengthening of the role of the parliamentary committees is a
result of their growing importance in parliamentary work and of the
efficiency of their action.
Their powers and competences have clearly been reinforced, especially
in terms of political control. Thus, ministers are now heard by the
committees at least 4 times in each legislative session.
The parliamentary groups have the right to demand the presence of
members of the Government (this cannot be used on more than two
consecutive occasions for the same member of the Government) or of the
directors and staff working in the State’s indirect administration or
in the public business sector.
The committees take part in hearings with the appointed directors of
the Independent Regulatory Authorities and holders of high level State
positions, namely the members of the Media Regulatory Body, the
Supreme Council of the Administrative and Fiscal Courts, the National
Data Protection Commission, and the Ombudsman.
The rules of work and the composition of the parliamentary committees
have been changed, and consequently the quorum for committees to
operate and take decisions has been modified to more than half of the
members in full exercise of their office.
5.
A more demanding legislative procedure
As far as the more demanding legislative procedure is concerned, it is
important to stress the greater demands imposed on the legislative
procedure and the simultaneous perception that the carrying out of
parliamentary legislative competences does not involve simply
legislating, but also includes monitoring the process of applying and
regulating the laws.
The Services of the Assembly of the Republic are responsible for
preparing a highly demanding technical note (within a maximum of 15
days) for every legislative initiative. More specifically, the
technical note contains:
*
an analysis of compliance with the formal, constitutional and
regulatory requirements;
*
the legal and doctrinal framework of the matter in question;
*
indication of any initiatives outstanding;
*
checking compliance with the Law governing the form of bills;
*
historical outline of the problems raised;
*
assessment of the consequences of approval and the expected costs
involved in its application; and
*
references to contributions from institutions that have an
interest in the items in question.
The reports prepared by Members of Parliament are now structured
differently, with a mainly political, rather than technical nature,
and include the opinion of the rapporteur, conclusions and annexes.
After the admissibility order, parliamentary committees have 30 days
to approve the report. Any members’ and government bills that are
accepted must mandatorily be debated and voted on the general
principles, by the Plenary, within 18 plenary sittings from the time
that the relevant parliamentary committee issues its report.
The debate and vote on the details are held within the deadlines set
by the Speaker, and the legislative initiatives are included in the
order of business according to the order that the reports are issued.
In the beginning of each legislative session, besides the preparation
of a progress report dealing with the approval and coming into force
of new laws and their consequent regulation, which includes compliance
or failure to comply with the corresponding deadlines, it is the
responsibility of the Conference of Parliamentary Committee
Chairpersons to define, as regards the approved laws, those which must
undergo a qualitative analysis and content review of how they are
being applied and their practical effects.
The parliamentary committees can also ask for a qualitative follow-up
report of the regulation and application of a specific law from the
rapporteur, or from any other member of the committee.
6.
Responses to environmental questions
In what concerns environmental questions two Resolutions have been
approved, the adoption of energy efficiency and water-saving methods
and improving a progressive reduction in CO2 emissions.
However, if the orientations of these Resolutions imply that the
Parliament will need external expertise, it is true that in other
aspects, those Resolutions have only confirmed environmental practices
that have been followed by the Parliament.
Examples of such practices include the generalised use of recycled
paper, the use of low-energy light bulbs, the installation of light
sensors in offices, corridors and toilets, the installation of
controlled flow taps, and sending light bulbs, batteries, paper and
toner away for recycling, as well as adopting ecological selection
criteria in calls for tender for the supply of goods and services.
In this spirit and in accordance with the abovementioned Resolutions,
the Portuguese Parliament has launched calls for tender for the
development of a project to equip the main building, the São Bento
Palace, with a solar-powered heating and air-conditioning system.
2.
Problems and progress
A reform of this type is not carried out without problems. The
consequences have been severely felt in the services area, more so
because the reform came into force during the time that Portugal held
the Presidency of the European Council, which led to the Portuguese
Parliament having to host an increased number of meetings and
international visits and, above all, because it resulted in profound
changes to the way of working, which required services to cooperate
and coordinate their operations and to accompany parliamentary work
much more closely and assiduously. And all this was carried out
without recruiting a single person.
As far as the Members of Parliament were concerned, this required an
effort to adapt, to the new procedural rules.
Earlier reforms had been carried out by amending the existing Rules of
Procedure, thus establishing procedural practices and interpretations
that ended up being quite unclear to those who were less familiar with
parliamentary activity.
Some years ago, a MP said that the Rules of Procedure were to be used
only when they could not reach consensus. The approval of new Rules of
Procedure inevitably led to some resistance to change.
As the Report of the Working Group on the Reform of Parliament states,
there is no such thing as perfect reforms and this makes it necessary
to closely monitor the political results of this process and of the
changes that have been introduced. This evaluation must concentrate
specifically on increasing the search for information by citizens and
their participation in parliamentary activities, the increased
visibility of the Assembly of the Republic, its image in the eyes of
the people, the level of satisfaction felt by the Members of
Parliament and the financial impact, in spite of the proposals being
contained in the Budget of the Assembly of the Republic.
In Portugal, a formal evaluation of the reform has yet to be carried
out, but some conclusions can already be drawn. The media have opened
up more space to Parliament. See how the number of news items between
1 October 2007 and 31 December 2007, which coincided with the first
three months after the reform came into operation, has increased when
compared to the same period of the previous year. There were 5,187
news items about Parliament and 6,208 about Parliament and the
Government in 2006. This increased to 6,025 about Parliament and 6,491
about Parliament and the Government in 20071.
The media has stressed that the rhythm of the debates has made them
more interesting. Some radio and television stations that used to
broadcast parts of parliamentary debates on the days that the sessions
of questions to the Government are held have taken an editorial
decision to broadcast them in their entirety.
Newspaper headlines have also reacted to this development:
“The honourable member may conclude…
There is a greater rhythm to parliamentary debates. The new rules have
led to short, incisive interventions”
Visão, 7 February 2008
“The new model for monthly parliamentary debates is better than the
earlier model. It demands much improved time management and less time
for preliminaries. Debates with each of the opposition benches have a
beginning, middle and end.
With this new system, questions relating to the Government have
acquired greater resonance and require clear answers. Evasive answers
do not go down very well. José Sócrates will have to be better
prepared to meet the challenge that he has set himself.”
Diário de Notícias 22 September 2007
This aim of the reform has therefore been achieved, because the
objective was to attract media and public interest and guarantee this
type of publicity. If for years, the action of the media reduced the
opinion-forming role of Members of Parliament, now MPs have adopted
the media’s methods, abandoning parliamentary rhetoric and
substituting it by short, quick, incisive debates, which are capable
of attracting and holding the public’s attention.
The availability of more information about parliamentary activity and
MPs, especially with respect to their absences and register of
interests, has prevented speculative and partial news, which
contributed negatively to the image of the Parliament leading to the
need of corrections and denials that would only make the situation
worse.
Amendments to the legislative procedure, leading in short periods, to
the preparation of the technical note, presentation of the report to
the Committee, and including a debate and vote on the general
principles, on the order of business of the plenary sitting, has given
responsibility to all MPs and staff, and led to a concentration in the
legislative procedure whose analysis no longer depends on the will of
the majority.
Does a parliamentary reform process ever end? Does it end with its
practical application? Or is it a continuous process that starts off
with the previous reform and runs until the next one in a process of
continuous improvement1?2
Is it in fact true that all these reforms merely hide the feeling,
which was summed up by Garibaldi Alves, the President of the Brazilian
Senate, as a desire for a better Parliament?

Mr Douglas MILLAR (United Kingdom) wanted to know what the effects of
these reforms had been on the behaviour of members of parliament.
Mrs Stavroula VASSILOUNI (Greece) asked if the Portuguese Parliament
had statistics on the early effects of these reforms, largely based on
bringing Parliament closer to citizens, and if a specific office
within Parliament had been tasked with dealing with the comments and
reactions of citizens faced with these reforms.
Dr Hafnaoui AMRANI (Algeria) wanted to know the nature of the register
of Members’ interests mentioned, and asked if this reform had led to
changes in the administrative organization of Parliament.
Mrs Adelina SÁ CARVALHO replied that the reforms had in effect led to
a change in the behaviour of Members of Parliament. They remained
active in the constituency, but they were aware that their absence
from Parliament would not be understood. The reactions of citizens to
these reforms had not yet been statistically assessed; it was the job
of committees to deal with them all and to make Members aware of the
most useful that had been received. The register of Members’ interests
detailed the career of Members of Parliament and, if need be, their
participation in business ventures, which ensured a large measure of
transparency. She thought it would be desirable to be just as
transparent about Members’ pay, and to publish it on the Internet;
discussions were taking place on this point. Thought was also being
given to changes in the administrative organization which flowed from
these reforms.
An example of well developed parliamentary minority rights: the rules
of procedure of the German Bundestag
—
Ulrich Schöler
Deputy Secretary General of the Bundestag (Germany)
At the present time a debate is taking place in Germany on enhanced
rights for parliamentary minorities.
One of the reasons for this debate is that the two large mass parties,
the CDU and the SPD, have been holding the reins of government since
the last general election in 2005, and the three opposition parties
together provide fewer than a third of the Members of the Bundestag.
As a result, the Opposition is currently unable to exercise some
minority rights for which a certain quorum is required. This applies
especially to the right to demand an extraordinary sitting of the
Bundestag and the right to have a law examined for constitutionality
by the Federal Constitutional Court, a mechanism known as the
abstrakte Normenkontrolle, i.e. a review of constitutional norms
without reference to a specific case, for which a quorum of a third of
all Members is required under the current provisions. Preparations are
currently being made for a relaxation of this rule, the intention
being that a quarter of all Members will suffice in future.
The debate on enhanced minority rights is also being influenced by
developments in the EU and particularly by the Treaty of Lisbon.
Following the rejection of the Constitutional Treaty in referendums in
two Member States, the Treaty of Lisbon is designed to renew the
common contractual foundations of the European Union. Among the
provisions of the Treaty of Lisbon are measures to strengthen the
rights of national parliaments, which will henceforth play a key role
through the mechanism of the subsidiarity review, the purpose of which
is to determine whether a matter can be better resolved in the EU
framework or by the individual Member States.
To this end national parliaments are to be empowered to bring an
action of their own before the European Court of Justice to enforce
adherence to the subsidiarity principle. There is agreement in Germany
that this right of action should not be made conditional upon the
decision of a parliamentary majority. On the contrary, to protect the
interests of the minority, it will suffice if a quarter of the Members
of the Bundestag call for a subsidiarity action to be brought. If that
quorum is obtained, the action will have to be instituted.
Let me take these current developments as the basis for a few comments
about the principles governing the rights of the parliamentary
minority in Germany.
Majority principle and minority safeguards
In the German system of parliamentary government, the majority
principle and safeguards for the parliamentary minority are
inextricably linked. The principle of majority voting ensures that
substantive decisions in parliamentary processes are taken by a
majority and are then regarded as decisions of the whole parliament,
which the minority also respects. The German system, however, is based
on the view that real democracy only comes into play when a viable and
effective minority or opposition is guaranteed and protected. Only
then is the parliamentary majority compelled to deal in parliament,
under the public gaze, with the substance of the views put forward by
the opposition and to justify its own government policy.
The rights of the parliamentary minority are defined in both the Basic
Law of the Federal Republic of Germany and the Rules of Procedure of
the German Bundestag. They are formulated in such a way that they can
be asserted by either an individual Member, a parliamentary group or a
quorum, in other words a certain number of Members acting together.
Let me begin by citing some examples from the Constitution itself:
Constitutional protection of parliamentary minorities
A particularly important right of parliamentary minorities, which is
chiefly used by the opposition of the day to examine, in the public
spotlight, alleged abuses on the part of the government and the civil
service, is the right of inquiry. It only takes a quarter of the
Members of the German Bundestag, for example, to demand the
appointment of a committee of inquiry. This contrasts with the
situation in many other parliaments, where a majority vote would be
needed.
In addition, the Basic Law already lays down that an extraordinary
sitting of the Bundestag must be convened if the President of the
Federal Republic, the Federal Chancellor or a third of the Members of
the Bundestag so request. Although in the latter case the minority is
not empowered to determine the agenda for the entire sitting, it can
at least insist on treatment of the matter that prompted its request.
Finally, I should point out that a constitutional amendment can only
be adopted with the consent of two thirds of the Members of the
Bundestag. The purpose of this clause is to guarantee that fundamental
decisions relating to the organisation of the state and the life of
society are based on the broadest possible consensus. Accordingly,
before such parliamentary decisions are made, the opinions of the
minority must be taken into account with a view to securing the
necessary consensus.
Minority safeguards established by the Rules of Procedure
Although the rights of parliamentary minorities are ultimately
guaranteed by constitutional provisions, it is in the Rules of
Procedure of the German Bundestag that they are systematically
defined. They comprise the parliamentary right of initiative,
procedural rights, the right to address the House and the instruments
of scrutiny, foremost among which is the right to ask questions. Here
are some examples:
Parliamentary initiatives
In contrast to other countries, such as the United States, Germany
does not give its individual Members of Parliament the right to
initiate legislation. As a matter of principle, bills initiated by the
Bundestag must be signed by a parliamentary group or by five per cent
of the Members of the Bundestag, which is equivalent to the minimum
size of a parliamentary group. If that quorum is achieved, however,
the Bundestag must examine the proposal. In this way, three weeks
after such a bill has been distributed to all Members, the Opposition
can compel the House to put its bill on the plenary agenda and to
debate it in the chamber.
In the case of bills that are normally given three readings in
plenary, however, individual Members do have the right to table
amendments at second reading, that is to say after the committee stage
which is a customary part of our parliamentary process.
Procedure
In any parliament, the subjects discussed in plenary are the key to
the structure of parliamentary business. In Germany the agenda is not
determined unilaterally by the majority, far less by the Government,
as is the case in some of Europe’s national parliaments. Setting the
Bundestag agenda is the task of the Council of Elders, on which all
the parliamentary groups are represented. And our Council of Elders
must act unanimously. This is, therefore, another point at which
compromises have to be negotiated. In practice, the Council of Elders
almost always manages to reach a compromise. The alternative, which is
only used as a last resort, would be a partisan vote in plenary.
In the parliamentary process many minority safeguards are designed to
enable an individual Member or a parliamentary group to table a motion
on which the Bundestag is required to take a decision. Such motions
may seek to add an item to the agenda or to summon a member of the
Federal Government.
The Rules of Procedure also contain provisions enabling part of the
House, such as a parliamentary group, to exercise a right of veto in
certain circumstances. A late addition to the agenda, for example, may
be vetoed.
Finally, there are rules which stipulate that certain things must be
done if a minority so requests. For instance, a minority can demand
that a vote be taken by roll call, which means that the vote cast by
each participant is registered and is published in the official record
of proceedings. In a committee responsible for discussing a
legislative bill or other initiative, a minority can demand a public
hearing. If a committee does not complete its deliberations within a
reasonable time, a minority can require that the matter be reported to
and debated by the whole House.
That brings me to other areas of parliamentary business in which major
importance attaches to minority safeguards.
The right to speak
The right of Members to address Parliament is constitutionally
enshrined and, together with their voting rights, is essential to the
exercise of their parliamentary mandate. Parliament, however, is
empowered to lay down its own Rules of Procedure and may therefore
structure and limit the right to speak. This is another area where
ample consideration is given to the special needs of the parliamentary
minority.
This consideration is reflected most clearly in the structure of
plenary debates. In practice, the total speaking time to be devoted to
an agenda item as agreed by the Council of Elders is distributed among
the parliamentary groups on the basis of a formula laid down at the
start of the current electoral term. The distribution formula is
essentially based on the relative strength of the groups, but the
share of speaking time it gives to smaller groups is
disproportionately large in relation to the number of their members.
In a one-hour debate at the present time, the CDU/CSU and the SPD, the
groups forming the governing coalition, are each entitled to 19
minutes, the FDP group is given eight minutes, and the groups of The
Left Party and Alliance 90/The Greens have seven minutes each. It
should be emphasised that the speaking time granted to the coalition
groups normally has to cover speeches by government ministers too. The
distribution formula ensures that the Government and the parliamentary
majority supporting it cannot hog the floor in plenary debates to the
detriment of the Opposition.
The relative strengths of the parliamentary groups are also important
when it comes to determining the order of speakers, as is the
principle of presenting arguments for and against a motion.
Accordingly, the first part of the debate is not devoted exclusively
to contributions from the Government and from Members belonging to the
coalition parties but is structured in such a way that representatives
of the various groups are heard in turn.
Rights of scrutiny
Scrutiny of the Federal Government is one of the main tasks of the
Bundestag. A wide array of instruments is available to Members and
parliamentary groups to enable them to perform this scrutinising
function. Besides the right to appoint a committee of inquiry, which I
mentioned before, the principal powers of the Bundestag in this
context are the right to ask questions and the right to obtain
information. Many of the instruments of scrutiny are specifically
designed as minority rights in order to give the Opposition a fair
chance to review the actions of the Government and its parliamentary
majority.
To this end, each Member of the Bundestag may address up to four
written questions per month to the Federal Government. Moreover, in
the weeks when Parliament is sitting, each Member is also entitled to
put a maximum of two questions to the Federal Government for an oral
reply during question time. There is no provision for a quota system
based on group membership or relative group size for question time.
In the weeks when the Bundestag is sitting, question time is regularly
preceded by a question-and-answer session with members of the Federal
Government, which takes place immediately after cabinet meetings.
During this session each Member of the Bundestag may put questions to
the Federal Government for an immediate oral reply. Precedence is
given to questions on the foregoing cabinet meeting, but they may also
refer to issues of topical interest. Quotas based on group membership
or strength do not apply to these sessions either.
Other channels through which the Government may be questioned are open
to the parliamentary groups or to a number of Members corresponding to
the minimum size of a parliamentary group. These channels are known as
minor and major interpellations, through which the Federal Government
may be required to provide written information on more complex issues.
Replies to minor interpellations are provided in written form only,
whereas major interpellations are also debated in the Bundestag, which
serves not only to uncover factual information but also to initiate a
public examination of policies pursued by the government of the day.
Like major interpellations, debates on matters of topical interest are
a special type of debate and an important guarantor of open
government. For this reason, a single parliamentary group may demand a
debate on a specific issue of topical interest. This debate involves
short speeches of up to five minutes’ duration. It is also subject to
the distribution formula based on the relative size of the
parliamentary groups, so the views and concerns of the Opposition
receive adequate consideration in these debates too.
Minority safeguards in the formation and composition of parliamentary
bodies
In the formation and composition of parliamentary bodies too, ample
account is taken of the need to safeguard the rights of parliamentary
minorities.
Since the specialised and detailed aspects of parliamentary business,
especially in the legislative process, are primarily dealt with in
committee, it is also important that the parliamentary minorities
receive due consideration in the allocation of seats on committees and
the appointment of committee chairpersons. For this reason, the Rules
of Procedure stipulate that the members of committees are not selected
by majority vote but nominated by the individual parliamentary groups.
In this case too, the number of committee members provided by each
group is based on its relative strength.
The same applies to the distribution of chairmanships. This means that
each political group in the Bundestag is entitled to provide the
chairpersons for a number of committees. As you know, this is done
differently in many parliaments. Following the Democrats’ electoral
victory in the United States, for example, the chairmanships of all
House committees, which had hitherto been held exclusively by
Republicans, had to change hands. Such wholesale changes of personnel
are unknown in the German parliamentary system. Indeed, there is an
unwritten tradition that the committee regarded by many as the most
powerful, namely the Budget Committee, is always chaired by a member
of the largest opposition group. This is an acknowledgement of the
need to exercise parliamentary scrutiny of the Government’s management
of the budget.
Finally, the membership of the Council of Elders is also determined on
the basis of relative group strengths. And, last but not least, each
parliamentary group is represented by at least one Vice-President on
the Presidium of the Bundestag, which comprises the President
(Speaker) and his deputies. Consequently, plenary sittings chaired by
a member of the Opposition are a regular occurrence.
Conclusion
Following this non-exhaustive review of various rights accorded to
parliamentary minorities, I would like to stress that the array of
parliamentary powers and opportunities for parliamentary minorities in
the Bundestag is extremely wide. On the one hand, this ensures that
all views held in Parliament can be clearly voiced.
On the other hand, the numerous minority rights do not unduly delay,
let alone cripple, deliberation and decision-making processes or the
essential routine tasks of government. It may be that the odd decision
takes longer to reach, but equitable involvement of the Opposition in
all decision-making processes ultimately guarantees its acceptance of
the outcome of those processes. Accordingly, there is scarcely any
obstruction; apart from some exceptional situations, the majority and
the minority treat each other with due respect.
In the event of reports or allegations of actual abuses, the right to
demand the appointment of committees of inquiry and study commissions
gives the Opposition suitable instruments with which it can ensure
transparency and obtain information. The deliberations of these bodies
always arouse great interest among our mass media.
Democracy as we understand it is more than a procedure designed to
obtain parliamentary majority decisions. In our view, minority
safeguards must not be confined to situations in which ethnic,
national or cultural minorities or any other minority groups within
society require protection. Every minority in a parliamentary system
must have the means of publicising its alternatives to proposals
presented by the governing majority and having those alternatives
debated and put to the vote. That occasionally takes more time.
Ultimately, however, such delays pay off handsomely in terms of the
greater democratic legitimacy of the final decision.

Mr Ian HARRIS (Australia) noted that in Australia, as in Germany, the
quorum had been reduced from a third to a fifth. This issue had led to
debate in Australia, as some people had taken advantage of this reform
to cause disturbances.
Mr Ahmed A. ALYAHIA (Saudi Arabia) noted that the procedures existing
to protect the rights of minorities within Parliament were in effect
in their earliest stages, but he asked what kind of minorities were
not represented within Parliament, and could not make their voices
heard. How could one help these minorities to access Parliament?
Mrs Jacqueline BIESHEUVEL-VERMEIJDEN (Netherlands) stressed the
importance of the points in common between the Bundestag and the Dutch
House of Representatives. She then asked if written questions could
not be deposited when the Bundestag was sitting, and if the total
number of questions that a Member could ask was limited. As for
topical issues, since 2004 in the Netherlands, a fifth of Members
could ask for an urgent debate. Experience had shown that this
possibility had given rise to numerous requests, doubtless too many.
How was it in the Bundestag?
Mr Xavier ROQUES (France) indicated that the French National Assembly
had copied a rule from the Bundestag relating to the financing of
political parties, which foresaw an increase of 10% in these finances
in relation to the rule applying to opposition political groups. This
provision had caused repercussions after the legislative elections of
2007, when the Socialist Party, an opposition party, had won more
seats than in the previous Parliament and had benefited from this fact
through such a financial increase.
Dr Ulrich SCHÖLER noted that, on the subject of lowering the quorum,
it was worth noting that in Germany, unlike in Australia, a lone
parliamentarian could not seek to catch the Speaker’s eye, and that
only a political group could intervene in debate, which doubtless
limited the scope for disturbance. The current situation in Germany
was not usual, because in the past, the majority represented 60% of
the seats, as against 40% for the minority, whereas in the grand
coalition, the majority represents 70%, as against 30% for the
minority, the three other parties represented in the Bundestag having
each between 8 and 10%. Only those parties gaining more than 5% of the
vote could enter the Bundestag: this threshold could be judged too
high or too low, according to different points of view. In any case,
it avoided a purely bipolar system. It was not for Parliament itself
to act to make minorities its members.
He then replied that each parliamentarian could ask up to four written
questions a month, as well as two oral questions, the Government being
required to reply. Urgent debates were rarely susceptible to abuse;
their opportuneness was debated in the Council of Elders, and
generally consensus intervened.
Mr Marc BOSC (Canada) asked if the roll-call vote, which could be
obtained by the minority in the Bundestag, was often requested.
Mr Edwin BELLEN (Philippines) wanted to know if the Government was
allowed not to provide all of the information requested by the
Opposition, and if, in this case, the opposition could take legal
action.
Mrs Stavroula VASSILOUNI (Greece) noted that in Greece, every Member
could present a bill, but that in practice it was very rare that one
would be adopted. How was it in Germany? Did it often happen that
texts proposed by Members were adopted as laws?
Dr Ulrich SCHÖLER replied that unlike in the Greek Parliament, a
Member could not propose a bill, only a political group being able to
do this. If members from different political groups wanted to present
a bill collectively, they had to represent at least 5% of the Members
of the Bundestag in order to do so.
Mrs Stavroula VASSILOUNI (Greece) asked if these bills were debated in
the plenary and, in any case, adopted.
Dr Ulrich SCHÖLER replied that every legislative proposal was dealt
with. He then indicated that replies from the Government to questions
from parliamentarians were sometimes very succinct; when the
Government did not wish to reply, it invoked issues of secrecy and
confidentiality. On a regular basis, this subject was raised within
the Council of Elders, who sometimes decided to send a letter to the
minister concerned to remind him of the duties of the executive power.
A political group had already brought an issue of this kind before the
Constitutional Court, but the court had not yet reached its judgement.
Finally, he indicated that only a political group could ask for a
roll-call vote.
The role of the backbencher
—
Douglas Millar
Clerk Assistant of the House of Commons (United Kingdom)
What is a backbencher?
In the House of Commons, Members who are not Ministers in the
Government (of whom there are more than 80) and nor members of the
Official Opposition team of senior spokespeople (the Shadow Cabinet)
are said to be “backbenchers”. Also excluded from the definition would
be the leaders of the smaller parties. There are well over 500 out of
the total of 646 Members of the House who can therefore be described
as backbenchers. The term derives from the fact that Government and
opposition spokespeople sit on the front benches on either side of the
Table of the House while other Members sit on the “back benches”.
The role of the Back bench Member
Because of the nature of the British parliamentary system where
Ministers are members of the House and the continuation of the
Executive in power depends upon the continuing support of the House
for the Government, Members of the House of Commons have to fulfil a
variety of tasks which may not apply in all legislatures. The workload
for front and back benchers alike is greater now than it has ever
been. It is not surprising therefore that the House sits for more days
and longer hours than the parliaments of most developed countries in
the world.
The multiplicity of activities in which Members are involved and the
increasing volume of work associated with being a constituency Member
of Parliament has led to some concern about what actually is the role
of a backbencher in the modern House of Commons. How should a Member
prioritise their work? How important is it for Members to participate
in the Chamber of the House rather than work in their offices or
participate in Committee or party activity? The Select Committee on
the Modernisation of the House of Commons recently undertook a study
of this matter and reported last summer.
The report of the Modernisation Committee analysed the various roles
performed by Members, many of which have to compete against each other
for a Member’s time. These were identified as
*
supporting their party in debates and votes in Parliament;
*
representing and furthering the interests of their constituency;
*
representing individual constituents, taking up their problems and
grievances;
*
scrutinizing and holding the Government (the Executive) to
account;
*
initiating, reviewing and amending legislation;
*
contributing to policy development, whether in Parliament or
within party structures and in public forums.
It is noticeable that even when tackling this disparate group of
tasks, Members find many different ways in which to perform them. In
relation to scrutiny of the Executive for example, some are active in
the Chamber—asking Questions or taking part in debates; others
concentrate on correspondence or meetings with constituents and
influencing those who deliver services. In developing party policy for
example, is it more important to write pamphlets, take part in party
committees or address meetings or public policy institutes?
A background to the choices that Members must make, is the enormous
growth in constituency work which Members are expected to do, faced
with far speedier communications and a more vociferous and demanding
citizenry than existed thirty years ago. In short, expectations upon
Members have grown; the opportunities for activities have also grown
and they are forced to choose between competing demands on their time.
At one extreme, a Member might spend most of their time in their
Westminster or constituency offices dealing with constituency cases:
at the other a Member could spend twenty or thirty hours in the
Chamber or Committees of the House, participating publicly in
questioning and debating Government legislation and activities.
The Committee (and the Clerk of the House who gave evidence to the
Committee) wisely did not seek to prescribe how Members should do
their job. It is ultimately for the electorate, prompted by competing
candidates from other parties, to decide whether a Member has done a
satisfactory job when the next election is held.
Participation in the Chamber of the House
One aspect of concern to the House is the increasing emptiness of the
main Chamber of the House and the unwillingness of Members to attend
the Chamber except when they can expect to ask a Question or speak in
a Debate. The empty benches in the Chamber have been highlighted in
the media and this has led to further questioning of the role played
by individual Members.
The Modernisation Committee made a number of proposals to attract
Members to the Chamber:
*
more topical Questions;
*
more topical debates;
*
shorter or more flexibly timed debates
*
time limits on speeches
*
facilitating multi-tasking by allowing Members to use PDAs in the
Chamber.
The House adopted all of these proposals in October last year on an
experimental basis with mixed results
Topical Questions
The traditional centrepiece of the Parliamentary day, Question time
now regularly has a fifteen minute slot when the Secretary of State
can be questioned without notice on aspects of his or her
responsibilities. This has removed an element of artificiality from
Question time when Members sought to link their current concerns with
Questions tabled a few days previously on other topics. It has largely
met the aim of the Modernisation Committee to enable each Minister to
be questioned on the latest issues.
Time limits on speeches
The standing Order on Time limits on speeches was made much more
flexible in order to allow as many Members to participate in debates
as possible. The Speaker has announced that he will use powers to
limit speeches so that time limits can be relaxed or tightened even
during a debate. Limits of between three to twenty minutes have been
used at different times.
Electronic Devices in the Chamber
The House agreed that electronic devices could be used by Members in
the Chamber for the purpose of keeping up to date with e mails. The
Speaker has therefore permitted the use of PDAs in the Chamber
provided that they are not an obvious distraction from proceedings or
debates. However some Members have been seen to use the camera
function of the PDA in the Chamber which is strictly not allowed.
Members are also not allowed to be prompted by electronic messages in
the course of debates.
Topical Debates
The most problematic area of change has been the introduction of
topical debates. There has been no consensus that the choice of
subject by the Government has been appropriate or even topical. The
Government response is that such debates form part of their debating
time and so they should have the right to select the subject for
debate. A further review of this procedure is now underway some time
before the experimental period has been concluded.
E petitions
Another change on the horizon is the introduction of e petitions. The
Procedure Committee has agreed the House should accept e petitions.
Unfortunately, the technology is quite complicated if the essence of
the traditional Commons procedure is to be maintained, that
presentation of a petition should be done by an individual Member. It
has been mooted (no doubt by Government) that the House could in
effect take over petitions to the No.10 (Prime Minister’s) website.
This, it is suggested, might result in several thousand extra
petitions a year coming to the House—and take up an enormous amount of
Parliamentary time.
Conclusion
Whatever is done, the House is unlikely to return to a time when the
seats on the benches of the Chamber are regularly crowded. New ways of
working and demands for Members to be in several places at once are so
entrenched that it is practically impossible for Members to attend the
Chamber regularly in large numbers except for limited periods on
special occasions such as Prime Minister’s Questions or the Queen’s
Speech. In any event, it was never the case in days gone by that the
benches in the Chamber were always full. Some commentators would like
the House to return to habits that never existed!
gh
Mrs Claressa SURTEES (Australia) wanted to know if the questions asked
to ministers for fifteen minutes, without notice, as Mr Millar had
explained, had to all be on a common subject.
Mr Douglas MILLAR replied that this was not the case. However, when,
for example, the Minister for Transport was being questioned on a
given day, the questions asked of him had to more or less concern
those areas for which he was responsible.
Mrs Doris Katai MWINGA (Zambia) said that sometimes, during committee
debates, a parliamentarian gave a certain opinion on a subject, but,
under pressure from his political party, he changed his position in
plenary sitting. As a result, while a given subject could seem
consensual at first, it could lead to debate and difficulties in the
Chamber. An example of this was a bill on financial arrangements for
mines. It would therefore be necessary to investigate in Zambia the
concept of the backbencher and the issue of party whipping.
Mrs Jacqueline BIESHEUVEL-VERMEIJDEN (Netherlands) tackled the issue
of absenteeism: permanent committees had a full agenda, and plenary
business often brought together few parliamentarians, except for
debates of the moment and budget discussions. It was probably
necessary to explain to citizens the reasons for this absenteeism from
the sittings, in particular the obligations on and activities carried
out by parliamentarians over and above appearing in the Chamber. On
the subject of questions to the Government, the Presidium of the
Parliament had formulated strict rules, in particular the requirement
for questions asked to have a direct link with current events. For
each question time, twenty to twenty-five requests were made, but only
four questions were allocated each week. The current arrangement
worked very well. Questions to the Government were very lively;
carried live on television, they attracted between 20,000 and 90,000
viewers.
Mr Douglas MILLAR said that in general, party discipline was strong
within the House of Commons; Members followed their party’s
instructions, even if some academics claimed that there were more
rebels than there had been in the past. As for questions to the
Government, the Dutch system of four questions in an hour was closer
to that of the House of Lords than the House of Commons, where a
larger number of Members asked questions. In any case, no
parliamentarian had ever expressed any regret with regard to the
previous arrangement, which required notice to be given of questions.
As for absenteeism, he stressed that given the current media context,
which was rather biased against parliamentarians, to explain why
Members were absent from the Chamber would doubtless be useless, and
would not help to improve their image. But in fact, the growth in
meetings of different committees and within the parties explained why
Members were often everywhere except in the Chamber!
Participation in the legislative process of the NGO’s in Turkey
—
Ali Osman Koca
Secretary General of the Grand National Assembly (Turkey)
Representative democratic regimes, which are regarded now as the most
democratic form of government ever found by humanity, are in a
continuous progress of development and change. In the countries which
are presently governed in representative democracy, the concepts of
participatory democracy and co-government have long been concepts
referred to still more frequently. The level of participation in the
democratic system differs from country to country. Obviously, this is
being determined by the democratic accumulation of the country in
question and its historical past.
Parliaments which are the basic institutions of democratic regimes,
have been the legal fora of political participation. As an obvious
consequence of their nature, Parliaments enable political parties, the
most important actors of the political system, as well as the NGOs
that are supposed to build the ties connecting the public to the
political system, to take part in the political system. It is through
these organizations that political resolutions are made and laws are
enacted.
In modern representative democracies, the manners and degrees of
participation in the process of political decision-making of the NGOs
differ from country to country. When the practice in many European
countries is viewed, one observes that NGOs take part in the process
of political decision-making in two stages. The first stage of
participation occurs during the preparatory work carried out by the
executive. And the second during the proper activity of enactment in
Parliament. If and when the level of participation goes beyond this
degree, one approaches direct or semi-direct democracies. Such a
participation manifests itself as citizen initiatives, referendums and
tabling draft laws by citizens.
The participation in lawmaking of the NGOs is effected in two stages
in Turkey. Law drafts are first drafted by the ministries concerned,
then submitted to the Prime Minister, then forwarded to Parliament if
approved by the Council of Ministers, it is clear that the NGOs
provide their contribution in the course of consultations taking place
with the ministries concerned and public institutions and
organizations.
Under the Regulation put into effect in 2006 as regards the procedure
and essentials of how to prepare legislation: local governments,
universities, trade unions, professional organizations are recognized
as public institutions, and NGOs are entitled to express and
communicate their views on the proposed legislation.
The public is to be informed of drafts that interest the public at
large through the internet, the press and various publications before
being submitted to the Office of the Prime Minister. Moreover, at this
stage, an opportunity is offered to examine in depth the probable
effects of the proposed legislation in question on stock-exchange,
society, environment and legislation already in effect.
As for the second parliamentary stage, the NGOs are empowered to take
part in the process. Yet the said participation is only possible when
the proposed legislation is discussed in parliamentary committees.
When the proposed legislation is discussed at a full house meeting of
Parliament, the NGOs are not allowed to take part in it. Yet it is
worth underlining that discussions at full house meetings are open to
the general public, unless restricted. One more aspect: parliamentary
committees are entitled to invite experts and take their views in
course of their discussions. But they are not bound, under the
parliamentary by-laws, to invite representatives of NGOs to their
meetings.
The latest developments that is the country’s stepping in a new
period, membership negotiations with the European Union. a new
understanding of public administration and the growing importance of
the NGOs in public matters led to amend the by-laws in order to
increase the power of NGOs. So, an amendment was effected in the
by-laws to enable them to take part in the work of parliamentary
committees, which is sort of parliamentary kitchen work.
The main aim of the amendment effected in the by-laws was to allow the
NGOs to actively take part in legislative work, NGOs being organized
groups carrying out the important function of controlling the
political power in view of the fact that the legitimacy of the
operation of democratic political system is ensured by control only.
Because the NGOs are the units which promote the conscious of the
participation in mass by the nature of volunteerism and participation
and also assist in operating the system by participating directly in
the decision-making and information accumulation and specialization.
The concept of the administration focused on citizens, which is the
main principle in today’s information society, needs the active
participation of NGOs to process the decision-making of executives and
parliaments. The primary trend in administration today is governance.
Governance envisages the participation not only of elected persons or
bureaucracy but also ruled people who are affected by this process.
The amendment of by-laws is very important for the purposes of
controlling the leading persons by people continuously, operating the
system in a good manner, making the system more transparent and
increasing the effectiveness of democratic management.
The other point about the participation of NGOs in the process of
legislation is that today the roles of NGOs in the execution and
legislation process in either the members of the European Union or in
the number of countries is advisory rather than an imperative part in
the method of making law. This is the same in Turkey. The main
principle is that the government bills and the notice of motions
should be open to criticism and participation of NGOs in the
legislation process. In this context, there is evaluating and
harmonizing of different views and opinions but the last and final
decision belongs to the parliament. The importance of what we did:
first time, by the amendment in the by law which regulates the working
methods of parliament, the participation of NGOs to the legislation
process is institutionalized.
In this context, the panel namely “NGOs participation to the
legislation process: searching a system” was organized by the
Secretariat of the Grand National Assembly of Turkey and Legislation
Society on 19 November 2007 in order to establish a base for the
planned amendment with the participation of more than 80 NGOs and 150
representatives. Academics, bureaucrats, and, representatives of the
European Commission, United Nations Development programme and the
Secretariat General for EU Affairs participated the meeting. Thus, the
matters of the participation of NGOs effectively and the preparation
for the legal regulation were discussed together.
Finally, I would like to underline the importance of the participation
of NGOs to the legislation process and in general to the political
process. Because NGOs establish the inputs of political systems and
reflect the social requests. The participation of NGOs, which are the
fundamental elements for communicating the social requests to the
political system, to the legislation process provides great
contribution to promote our democracy.
On the other hand, I would like to give short information about the
Notice of Motion, which is foreseen to amend in the parliament’s rules
of procedures within the framework of the law of public financial
management and control. This Law brings many developments in the field
of public financial management and financial control relating to the
legislative budget process. The main objective of the Law is to
enhance transparency and accountability in public financial management
in conformity with EU standards. It improves Parliament’s information
on the government’s finances, assets and liabilities.
I don’t want to take your time but shortly I would like to give
information about the excavation in Patara Antique city in Southern
Turkey. In this excavation, the first democratic parliament ruins have
been found belonging to the Lycia period. On the prompting of this,
Turkish Parliament is planning to make a meeting of World Speakers in
2009.
gh
Mr Ian HARRIS (Australia) said that in some countries,
parliamentarians felt a certain resentment of non-governmental
organizations, as they had the impression that these organizations got
between them and the people, that they hijacked their work and that
they were sometimes led by foreigners. Was there such a feeling in
Turkey?
Mr Dagnachew BEFEKADU (Ethiopia) asked Mr KOCA what difference there
was between, on the one hand, non-governmental organizations and, on
the other, civil society and lobbyists. How could they be managed?
Mr Alain DELCAMP (France) explained the differences that existed
between the concept of the “ONG” in France and the notion of NGOs in
Anglo-Saxon countries: while the latter referred to civil society, all
actors outside of Government, in France “ONG”s referred rather to
international and institutional organizations – this was thus a
concept to be handled with care. Research on the role of civil society
tended to promote the notion of governance, in which Parliament and
various other actors were said to take part. This approach had the
disadvantage of trivializing Parliaments, by classing them together
with all the other actors. Now, Parliaments also represented civil
society, and carried a particular legitimacy.
Mr Ali Osman KOCA added that in effect if non-governmental
organizations comprised organized groups conveying the will of
citizens, and representing society, then Parliament did indeed also
represent civil society.
The Pan-African Parliament
—
Morad Boularaf
Deputy Secretary General of the Pan-African Parliament
Relationship between PAP and National Parliaments
1.
The Pan-African Parliament was established in March 2004 under
Article 17 of the Constitutive Act of the African Union as one of
the ten (10) Organs of the African Union.
2.
The establishment of the Pan-African Parliament is informed by a
vision to provide a common platform for African Peoples and their
grass-roots organizations to be more involved in discussions and
decision making on the problems and challenges facing the
Continent.
3.
At its first mandate, the Pan-African Parliament has consultative
and advisory powers. The ultimate aim is to evolve into an
institution with full legislative powers whose members are elected
by universal adult suffrage.
4.
Out of the fifty-three (53) Member States of the African Union,
forty-six (46) have already ratified the Protocol to the Treaty
establishing the African Economic Community relating to the
Pan-African Parliament and are represented in PAP.
5.
Each Member State is represented in the Pan-African Parliament by
five (5) Members at least one of whom must be a woman. The
representation of each Member State must reflect the diversity of
political opinion in the National Parliament or other deliberative
organ.
6.
The Bureau of PAP comprises five (5) Members representing the five
(5) regions of Africa. PAP has got ten (10) Permanent Committees.
7.
Among the objectives of the Pan-African Parliament we can mention
the following:
*
facilitate the effective implementation of the policies and
objectives of the African Union;
*
promote the principles of human rights and democracy in Africa;
*
encourage good governance, transparency and accountability in
Member States;
*
promote peace, security and stability;
*
facilitate cooperation and development in Africa;
*
Strengthen continental solidarity.
8.
Regarding the relation between the Pan-African Parliament and
National Parliaments in Africa, Article 18 of the Protocol to the
Treaty establishing the African Economic Community relating to PAP
states:
“The Pan-African Parliament shall work in close cooperation with the
Parliaments of the Regional Economic Communities and the National
Parliaments or other deliberative organs of Member States”.
9.
The Pan-African Parliament keeps the National Parliaments and
other deliberative organs of Member States informed on its
activities by transmitting them its annual legislative programme,
its hansards and committee reports.
10.
In practice, Pan-African Parliament which is in its third year of
existence is facing some difficulties and challenges regarding
this relation with National Parliaments.
11.
Because of financial constraints, some National Parliaments are
not sending all their representatives to participate in the
Sessions of PAP. It is to be recalled that the National
Parliaments have the responsibility to bear the costs of the
participation of their representatives to the statutory meetings
of PAP.
12.
This low rate of participation hamper the work of Committees and
Plenary Sessions in making decision or adopting resolution because
of the lack of quorum.
13.
The PAP expects from National Parliaments to facilitate their
representatives to entirely take part in its works and assist in
the achievement of the objectives of PAP.
14.
At PAP, we think that it is necessary for National Parliaments to
organize debates on the main topics examinated and adopted by PAP.
15.
These debates as well as the organization of parliamentary days on
PAP will help the latter to be known by the peoples of Africa.
16.
For a better following up of the work of PAP, we see it very
useful if a special structure dealing with African Affairs is
created in each National Parliament. This will greatly facilitate
the coordination and the follow up.
17.
It is also expected that the National Parliaments will make sure
that their Governments associate the African parliamentarians in
the election process and allow them to carry out their role of
observers.
18.
At each Session, PAP receives new Members number varies from 20 to
30. this is another difficulty PAP is experiencing.
19.
PAP wishes that the National Parliaments ensure through their
website, a link to PAP Website for a better promotion of PAP all
over Africa.
20.
Finally, PAP must pay tribute and express its gratitude to the
National Parliaments of Africa for the assistance they are giving
by providing staff during the Committee Sittings and the Plenary
Session PAP organises.
21.
The PAP is also having relationship with similar bodies:
*
the European Parliament;
*
the Parliamentary Assembly of the Council of Europe;
*
the Latin American Parliament;
*
the Canadian Parliament;
*
the Parliamentary Assembly of the Commonwealth of Independent
States
22.
The PAP hosts Regional Parliamentary Fora in Africa.
gh
Dr Hafnaoui AMRANI (Algeria) observed that at the end of its first
term, the Pan-African Parliament continued to have a consultative
status, while the objective was that it should become a parliament
with legislative powers. Were any developments expected in this
direction? In this context, it was foreseeable that national
parliamentary representatives within the Pan-African Parliament would
be elected, and no longer nominated by parliaments. Moreover, the
training programmes for staff could be useful for national parliaments
as well as for the Pan-African Parliament.
Mr Ernest Sipho MPOFU (Botswana) remarked that, on the subject of the
lack of assiduity of members at the meetings of the Pan-African
Parliament, the fact that this Parliament made significant financial
demands, in the form of a charge on national parliaments of around 500
dollars per member per day, partly explained the problem.
Mr Anders FORSBERG, President, wanted to know the main challenges and
difficulties faced by the Pan-African Parliament when preparing for
its sessions.
Mr Morad BOULARAF explained that the first term of the Pan-African
Parliament, as a consultative body, marked a period of transition,
from the standpoint of the transformation of the Parliament into a
legislative body. Now, the protocol bringing the Parliament into being
had to be reviewed every five years: since 2005 work had been
undertaken within the Parliament to study the conditions for this
change, emissaries had been sent into the five regions of Africa, and
the parliamentary session of May 2008 would have the transformation
into a legislative body as its main theme. As for the training of
staff of the Pan-African Parliament, they looked at their recruitment
for people coming from national parliaments and worked with the
European Parliament to build their capacities in human resources.
In reply to Mr MPOFU, he indicated that the Pan-African Parliament did
not prescribe any obligatory sum to take care of the needs of members,
but constrained itself to issuing reminders of the constraints
resulting from the cost of living where the sessions took place, in
South Africa, in particular the cost of hotels. It was certain that
the resulting costs for national parliaments were not negligible.
Among the challenges faced by the Parliament were finance issues, with
the Parliament having created a fund to complement the budget provided
by the African Union; furthermore, emphasis would be given to the
transformation of the Parliament into a legislative body.
Mrs Doris Katai MWINGA (Zambia) asked for details of the results of
the work of the Pan-African Parliament within national parliaments of
member states; did they take the form of resolutions, recommendations
or of reports sent to the national parliaments?
Mr Morad BOULARAF replied that following its work, the Pan-African
Parliament adopted a report containing recommendations. During African
Union summits, which happened twice a year, this report was presented
to the heads of state of the African Union. The Pan-African
Parliament’s rules also provided that the report should be sent to
national parliaments; delays or difficulties with punctuality might
explain why the reports were not always received. In any case, members
of the Pan-African Parliament were asked to present the reports to
their own national parliament.
Mr Anders FORSBERG, President, wanted to know what members’
expectations had been of the Pan-African Parliament, particularly at
the time of its establishment.
Mrs Doris Katai MWINGA (Zambia) thought that national parliaments
expected more information on the work carried out by the Pan-African
Parliament, beyond the useful mechanism for providing information for
African heads of state during African Union summits. Relations between
national parliaments and the Pan-African Parliament seemed rather
weak.
Mr Austin ZVOMA (Zimbabwe) said that national parliaments wanted to be
more involved in the preparation of the agenda of the Pan-African
Parliament, for example an upstream project allowing national
parliaments to debate in advance those issues being tackled. It would
also be a good thing if the Pan-African Parliament could send national
parliaments the reports it had adopted in electronic form. The issue
of the per diem needed to be examined, because it was a pre-condition
for the attendance of members of parliament, and thus for the meetings
of the Pan-African Parliament.
Mr Morad BOULARAF replied that it would indeed be a good solution to
send the Pan-African Parliament’s reports electronically. On the
subject of the per diem, furthermore, the Pan-African Parliament did
not fix the amount, but provided indications, based on the cost of
living in South Africa, where the Parliament met.
The role of parliamentary committees and their impact on the budget
process in the SADC region
—
Austin Zvoma
Clerk of the Parliament (Zimbabwe)
1. INTRODUCTION
The national budget in every country is one of the most important
pieces of legislation introduced in Parliament. In essence, the
national budget is an important policy statement by the Executive
reflecting its “fiscal, financial and economic objectives and reflects
its social and economic priorities”.1 According to former member of
the South African National Assembly Hon. Colin W. Eglin, the national
budget and procedures relating to its implementation underscore a
fundamental constitutional relationship between the Executive and the
Legislature”.2
This fundamental relationship is explicitly expressed in the
Constitutions of most countries of the Southern Africa Development
Community (SADC) which borrowed, or were derived, from the Westminster
or British System. A perusal of the chapters dealing with Finances in
most of the Constitutions of SADC countries reveals a similar pattern,
namely;
a.
the existence of a Consolidated Revenue Fund or its equivalent,
into which all public funds (i.e taxes and revenues) are to be
paid, except as otherwise provided for by an Act of Parliament;
b.
that the Minister responsible for Finance shall cause to be
prepared and laid before the Parliament, within a specified
period, the Estimates of the Revenues and Expenditures of the
country for that or ensuing financial year; and
c.
that it is the role of Parliament to authorize the raising of
revenues and approving withdrawals from the Consolidated Revenue
Fund to meet the country’s expenditure.
Thus in most Parliamentary systems, the Executive is responsible for
crafting and implementing the national budget while Parliament
exercises control over public finances by approving the raising of
revenues, withdrawals from the Consolidated Revenue Fund and
scrutinizing how the Executive utilizes the approved funds.1
The Congressional system, exemplified by the United States, differs
significantly from the Westminster system. While the Executive
prepares the national budget, Congress has the power to reject the
entirety of the budget prepared by the Executive and to draft its own
version.. Thus there exists a fundamental difference in the genesis of
the national budget in the Westminster and Congressional systems.
However, both systems emphasise the important role that the
Legislature plays in the budget process. The power of the Legislature
in the budgetary process is aptly summarized in the words of James
Madison who stated in 1788 “this power over the purse, may in fact be
regarded as the most complete and effectual weapon with which any
Constitution can arm the immediate representatives of the people for
obtaining the redress of every grievance, and for carrying into effect
every just and salutary measure.” 2
From the foregoing, it is clear that Parliament has an important
constitutional role to play in the budget process. However, while
provisions of legislative control over approving taxes and
appropriating funds are found in the Constitutions of most democratic
countries, the extent and nature of mechanisms for executing this
differs from country to country. This presentation, therefore, seeks
to scrutinize the role that Parliamentary Committees in Parliaments of
the SADC region play in the budget process. This is especially
important given that Committees do most of the work of Parliament.
2.
BACKGROUND
Wikipedia, the free encyclopedia, traces the roots of the Parliament
of England to the reign of Henry III, even though the concept of a
King/Queen seeking consent for his/her laws was not new to this
period. The English Monarch, post-1066, established Great Councils
comprising entirely of nobility and senior clergy. The Great Councils
were consulted and their consent sought when the King/Queen was making
major decisions. These Great Councils eventually evolved into the
Parliament of England, with the term Parliament coming into use during
the 13th century. The Great Councils were initially summoned when the
King/Queen needed to raise money through taxes thus laying the
foundation for the financial relationship between the Crown and
Parliament. The precedent that no law could be made, or tax levied,
without consent of both Houses and the sovereign was established
during the reign of King Edward III.1 In the United States the
evolution of the principle of “no taxation without representation”
emerged as the colony rejected the power of the United Kingdom to
impose a stamp duty on the colonies when the colonies had no
representation in the British Parliament.2
Erskine May’s Parliamentary Practice (20th Edition, 1983) traces the
emergence of the financial relationship between the Crown and
Parliament to the times when the King/Queen still ruled through
Ministers responsible to him/her. The House of Commons only exercised
negative power in so far as it could withhold supplies. The central
pillar of this relationship is that the Crown makes known to the
Commons the financial requirements of the nation, while the Commons
grants the resources needed to meet the requirements.3 This forms the
major basis of the Westminster system in relation to financial
matters.
With the exception of Angola, the Democratic Republic of the Congo and
Mozambique, financial procedures in most of the Parliaments trace
their roots to the Westminster system. This system also influenced the
development of budgetary processes and systems in countries like New
Zealand, Australia, Canada and India. Thus most of the current
practices on financial matters in SADC countries are variants of the
Westminster system.
Both the British and Canadian Parliaments, especially the Houses of
Commons, have, undertaken Parliamentary reforms in the 1970s to make
the Institution more effective in the discharge of its mandate. The
reform process in Canada saw the establishment of departmentally
related Committees that shadow government departments. These
Committees are staffed and serviced by professional researchers and
Committee Clerks.4 Since the 1990s, reforms in the SADC region have
also been initiated in the Parliaments of Angola, South Africa,
Tanzania, Zambia and Zimbabwe. These reforms, in the case of Zimbabwe,
are a result of criticism from the public that the institution was a
mere “rubber stamp” of policies initiated by the Executive and that
there was a lack of public participation and transparency in
parliamentary processes, especially the budget1. The reforms in these
Parliaments have, among other things, resulted in the introduction of
Portfolio Committees to assist the institution in the execution of its
constitutional mandate and the involvement of the public in the
legislative process. The mandate of the Parliament in Zimbabwe “is to
make laws for the peace, order and good government…” of the country.2
The mandate of Parliament in most SADC countries is similarly worded.3
However, the role of Parliamentary Committees in the budget process
differs significantly in the five Parliaments surveyed as will be
highlighted below.
2.
PARLIAMENTARY COMMITTEES AND THE BUDGET PROCESS
As a precursor to developing this paper, a questionnaire was developed
and circulated to all the SADC Member Parliaments soliciting for
information on their respective budgetary processes. The questionnaire
specifically sought to facilitate the collation of information on the
role that Parliamentary Committees in the region play in the budget
process. Five of the 13 Parliaments namely, Angola, Tanzania, Namibia,
Zambia and Zimbabwe, responded to the questionnaire. Due to the
limited number of responses, an analysis of the role of Parliamentary
Committees in the budget process is thus based on the responses
received and information gathered from various sources. This ensures
that a broader coverage of the practice in Parliaments in the region
is achieved.
The general pattern in the national budget process in most of the
countries in the region is for the Ministry of Finance to issue
general guidelines for budget preparation early in the financial year.
Ministries then prepare their draft budget proposals for the following
year and these are forwarded to the Ministry of Finance. Consultations
with Parliamentary Committees may be held at this stage as Ministries
develop their proposals. The proposals are then discussed with the
Ministry of Finance following which Ministries refine their bids
accordingly. The Minister of Finance then prepares and tables the
national budget in Parliament within a constitutionally specified
timeframe. This pattern has variations in the different countries but
borrows heavily from the Westminster system. Zimbabwe has since 2005
moved away from this pattern as the Ministry of Finance gives
Ministries expenditure targets for the coming year and, in turn, they
submit their bids. Thus in developing their proposals for the
following year, Ministries in Zimbabwe are guided by the expenditure
targets set by the Ministry of Finance.
Parliament and its Committees in each of the SADC countries surveyed
plays its part in the budget process differently guided by its
procedures. Committees as delegates of Parliament perform functions
assigned to them by Parliament. From the available literature and
responses to the questionnaire, it is clear that the role of
Parliamentary Committees in the budget process differs across the
region. The Parliaments of Angola, Tanzania, Zambia, and Zimbabwe have
Committees shadowing the work of Government Ministries. In Angola,
Tanzania and Zimbabwe there are Portfolio Committees that receive
reports on the implementation of the current budget and that
scrutinize Ministries’ priorities for the next budget. In both Zambia
and Zimbabwe, the chairperson or a designated Member of the Committee
presents the Committees’ report and recommendations on the Vote
allocation of a Ministry immediately after the motion on the
Ministry’s Vote has been proposed. In Zimbabwe, the recommendations of
each committee are also included in the composite report of the
Committee on Budget, Finance and Economic Development. That report
gives a broad overview of the national budget while those of the other
Portfolio Committees focus on the major highlights of the individual
Vote allocations of Ministries. The Parliament of South Africa also
has Portfolio Committees that play a similar role to those in Zimbabwe
in that the Portfolio Committees shadow government ministries and they
also have a role to play in the budget process. In Zambia, it is the
Parliamentary Committee on Estimates that has a role to play in the
budget process. The Committee on Estimates, among other
responsibilities, examines the Estimates and Supplementary Estimates,
Appropriation Bills, and carries out regular examinations and scrutiny
on the budgets, estimates and management thereof. The Committee also
makes recommendations to Parliament in the formulation and
implementation of future budgets. It is important to note that the
report of the Committee on Estimates on the budget is not tabled in
Parliament but is used as an important source of information by
Members. Other reports of the Committee on Estimates, are however,
debated before adoption by the National Assembly.
In Namibia, there is no provision for the National Assembly to make
inputs into the Budget as is the case in Angola, South Africa,
Tanzania, Zambia and Zimbabwe. In addition, Parliamentary Committees
are not involved in the budget process. The National Assembly has,
however, been pushing for prior consultations before the budget is
presented in the National Assembly. As a result of this initiative,
consultants were able to make an input into the budget in 2007. While
there is no express constitutional provision allowing for Parliament
to input into the national budget, there is nothing to prevent
Parliament from doing so. A recent survey by the National Democratic
Institute (NDI) indicates that the Namibian National Assembly’s
Economics Committee demonstrated the role that other National Assembly
Committees could play by holding public hearings and consulting widely
with interest groups and the public. The Economics Committee played an
active role in amending the Value Added Tax Bill resulting in 60 of
its amendments being adopted.1 The Zimbabwean constitutional
provisions on the budget are similar to those in Namibia, but through
the reform process, Parliament asserted its financial oversight role
and claimed a stake for itself and its Committees in the budget
formulation process. In Zimbabwe, Portfolio Committees engage
Ministries when they formulate their priorities for the next financial
year. Additionally, Parliament also conducts annual pre-budget
consultations co-organised with the Ministries of Finance, and
Economic Planning and Development and with the participation of other
line Ministries thus providing another avenue for Parliament to input
into the national budget process.
Responses from the five Parliaments surveyed also indicate efforts by
responsible Committees in each Parliament to involve the public and
civil society in the budget process. In both Tanzania and Zimbabwe,
the public is invited to hearings on the budget at Committee level as
each Committee considers the respective Ministry vote. In the
Zimbabwean case, stakeholders/ interest groups are also involved
during the setting of priorities for the next financial year. In
Zambia, the Committee on Estimates also invites comments from the
public and civil society during consideration of the budget estimates.
In all the five Parliaments that responded, meetings of Committees are
open to the public and the press thus keeping the public informed of
the work of Committees while at the same time affording the public an
opportunity to participate in Committee proceedings on the budget. The
South African Constitution has express provisions for Committees to
involve the public in the legislative process. The Finance Committee
in the South African National Assembly has seven days to hold hearings
on the budget and to report to the House. Portfolio Committees can
also hold hearings on the individual vote allocations of Ministries.1
The Public Accounts Committee (PAC) in the Parliaments of all SADC
member countries also plays an important part in the budget process.
The PAC plays an important post-audit function by receiving and
considering the Auditor General’s reports on Ministries’ accounts. The
reports of the PAC in all the countries are tabled in Parliament thus
contributing to Parliament’s financial oversight function. The PAC
also plays an important function in carrying out value-for-money
audits to ascertain whether the resources that are appropriated by
Parliament are used in the most efficient and effective manner.
Responses from the five countries (Angola, Namibia, Tanzania, Zambia
and Zimbabwe) and literature from South Africa and Malawi indicate
differing views as to the overall impact of Parliamentary Committees
in the budget process. There is general agreement in Angola, South
Africa, Tanzania, Zambia and Zimbabwe that involvement of the public
and civil society in the budget process through Parliamentary
Committees has enabled legislators to speak from an informed position
on the budget. This has generally helped to improve the quality of
debate on the budget among Members. Tabling of Committee reports
immediately after the Ministry’s vote has been tabled has helped to
highlight the salient features of the individual votes and hence to
focus debate on the votes. In South Africa, while the public has an
opportunity to participate in the budget process through Committee
hearings, there have been some misgivings about the effectiveness of
the consultations. In 1997 the Deputy General Secretary of COSATU had
this to say before the Finance Committee “ We are frustrated by the
constraining nature of the budget process, which renders meaningless
both contributions of civil society and deliberations of elected
people’s representative. … We will only participate in future
parliamentary hearings if meaningful participation is made possible
through a reformed budget process.”2 Thus while there are genuine
efforts by Committees of Parliament to involve the public in their
processes, there may still be perceptions among some members of the
public that the consultations are not meaningful. It is, therefore,
important that these perceptions are addressed and managed to retain
the credibility of the consultation processes and the role of
Parliament in the budget process.
From the responses received, it is important to note that the
interaction between the Executive and the Legislature on the role of
Committees in the budget process has resulted in the Executive
acknowledging this important function of Parliament. Both the Zambian
and Zimbabwean cases show that Parliament, through its Committees, has
been able to influence the budget process. In the Zimbabwean
situation, Portfolio Committees, through interaction with the
Executive, have managed to influence the inclusion of new budget lines
in future budgets (e.g. a budget line on children in difficult
circumstances). Thus while the results of the efforts of Committees
may not be immediate, through inclusion in the budget under
consideration, which may be frustrating for the public, they have the
potential to influence future budgets. Committees, therefore, have the
challenge to convince the public that while some of their views may
not be reflected in the budget under consideration, they could still
be incorporated in future budgets when circumstances allow.
Committees, therefore, need to create a platform for providing
feedback to the public on their submissions. It is also particularly
important that Committees of Parliament are forthright in their
dealings with the public and should not unnecessarily raise their
hopes. They should inform the public of the many competing demands on
the fiscus which place limitations on what can be accommodated in a
national budget.
In considering the role of Committees in the budget process, it is
also important to consider some of the challenges that may hinder the
effectiveness of Committees in their role. To begin with, Committees
of Parliament invariably do not possess necessary expertise to
effectively contribute to the crafting of the national budget or to
expertly review the proposed budget. The Executive has an arsenal of
expert personnel at its disposal for this purpose and hence its
predominance in the budget process. It is, therefore, important that,
as far as possible, Committees try to utilize the expertise of outside
consultants or institutions of higher learning in analyzing national
budgets. They should, however, also be supported by their own staff to
assist with consideration of the budget. There is, therefore, need to
build internal capacity and competence within Legislatures to enable
Parliamentary staff to effectively assist Committees in analyzing
national budgets. This is especially important given that there may be
insufficient time or resources for Parliaments to engage outside
experts to assist them in this exercise.
In addition, there are always competing demands on the time of
Committees to enable them to effectively consider proposed budgets and
to monitor the implementation of approved budgets. Thus it is
important for Committees of Parliament to have ample time from
presentation of the budget to the time budget debate commences. This
allows Committees sufficient time to consult with the public and civic
society and to come up with reports for tabling in the House. The
involvement of the public and civic society gives credibility of, and
also helps in developing consensus in, the budget process. The
Executive should also exhibit willingness to constructively engage
Parliamentary Committees so that the public has confidence in the
consultation process.
A major challenge in the efficacy of the role of Committees in the
budget process is the whip system and the Westminster system in which
members of the Executive are appointed from within Parliament. This
makes it potentially difficult for members of the ruling party to
effectively and critically analyse the budget as this would amount to
criticizing their party policy. The role of effectively critiquing the
budget, therefore, tends to fall heavily on the opposition. However,
this is mitigated by a nonpartisan and consensus approach in Committee
business.
2.
CONCLUSION
The role of Parliamentary Committees in the budget process in
different Parliaments in the SADC region is in many ways similar as
the majority of them evolved from the Westminster system. Parliament
plays its part in the budgetary process through approving the national
budget and monitoring the use of the approved budget. The Legislature
makes use of Parliamentary Committees in different ways to exercise
its mandates in the budget process. Reforms in some of the countries
(Tanzania, Zambia and Zimbabwe) have resulted in significant
differences in the role played by Parliamentary Committees even though
most of the countries’ financial systems have their roots in the
Westminster system. There are countries in the region in which there
is no role for Parliamentary Committees in the budget process (e.g.
Namibia). In some countries there is a system of Portfolio Committees
involved in the whole budget cycle from initiation, approval and
monitoring (South Africa, Tanzania and Zimbabwe). The Zambian
Committee on Estimates, which is expanded at budget time to include
all chairpersons of Portfolio Committees, considers the national
budget and monitors Government Expenditure. A salient element of the
Parliaments surveyed (Angola, Malawi, Namibia, Tanzania, South Africa,
Zambia and Zimbabwe) indicates that while there are various approaches
to the budget process, there is an element of public and civic society
consultation and participation in the process. This helps to ensure
public involvement in the budget process and fosters ownership of the
budget. However, the effectiveness of the consultations is perceived
differently by the public in those countries.
gh
Ms Heather LANK (Canada) said that, as Mr ZVOMA had stressed in his
communication, committees did not always have the necessary expertise
to work on the budget. It had been decided to create a post of
official responsible for budgetary documentation within Parliament,
allowing access to a centre of expertise on this subject for
committees.
Mr Austin ZVOMA (Zimbabwe) replied that he would follow with interest
the experiment carried out in Canada. In Zimbabwe, training courses
had been organized for parliamentary staff, and economists had been
taken on.
Mr Anders FORSBERG, President, wanted to know when co-operation
between parliaments of SADC countries had begun, and in what way the
Pan-African Parliament and the SADC states co-operated.
Mr Austin ZVOMA said that co-operation between the parliaments of the
SADC countries had begun with the creation of the parliamentary forum
of the SADC countries. This co-operation had been launched two years
before in Angola, and would be continued this year in Mozambique.
Given the common history of the SADC countries, these meetings were
very useful, and constituted a forum for exchange. Co-operation with
the Pan-African Parliament had not yet begun. In the beginning, the
Pan-African Parliament only had temporary staff; it now had permanent
staff, but was currently under-manned. It was only to be hoped that
the SADC parliaments could co-operate, as soon as possible, with the
Pan-African Parliament.
Mr Alain DELCAMP (France) wanted to know if the secretaries general of
the SADC parliaments and of parliaments of member states of the
Pan-African Parliament had met in order to promote the early
development of inter-parliamentary co-operation.
Mr Austin ZVOMA replied that such meetings would be desirable and
useful, and that they should be instituted, especially so as to allow
better co-ordination of work programmes.
The challenges of parliamentary administration in African countries:
the case of Algeria
—
Hafnaoui Amrani
Secretary General of the Council of the Nation (Algeria)
Before approaching the topic of this study it would be sensible in our
view to make a short presentation on Algeria as well as its
parliamentary system.
1. Some facts about Algeria
*
A country in North Africa, Algeria (capital Algiers) is, at
2,381,741 square kilometres, the second largest African country by
area (after Sudan). It has nearly 1,200 km of Mediterranean
coastline.
The total population is estimated at 34,400,000 inhabitants, with a
density of 14 people per square kilometre.
*
At the political level, Algeria has been a republic since its
independence in 1962.
- The current constitution confers on the head of state a central role
in the government of the country: he is the head of the executive
branch and supreme head of the armed forces.
The main economic indicators:
Indicator
Value
GDP
135 billion US dollars (2007)
GDP per capita
3,968 US dollars (2007)
Growth (excluding hydrocarbons)
6.5% (2007)
2. The parliamentary system in Algeria
*
Having been unicameral since its establishment the day after
independence, the Algerian Parliament became bicameral following
the constitutional revision of 28 November 1996 which altered the
Algerian institutional landscape and instituted the first
pluralist Parliament of an independent Algeria.
*
Legislative power in Algeria is thus exercised by a parliament
made up of two chambers, the Popular National Assembly (APN, lower
chamber) and the Council of the Nation (upper chamber or senate),
opened on 4 January 1998.
*
Each of the two chambers of Parliament has a distinct membership
and is endowed with its own powers. However, they have to act in
close dialogue. Indeed, to be adopted, any bill must be considered
in turn by the APN and the Council of the Nation.
*
The 389 members of the APN are elected by universal suffrage,
using a direct and secret ballot on a general ticket basis, for a
mandate of five years.
*
As for the 144 members of the Council of the Nation, two thirds
(96) are elected by indirect secret ballot from among and by the
elected members of local assemblies. A third (48) of the members
of the Council of the Nation are appointed by the President of the
Republic from among personalities proficient at a national level
in the areas of science, culture, the professions, the economy and
society.
*
The mandate of the Council of the Nation is fixed at six years.
Half of its members are re-elected every three years. The
President of the Council of the Nation is elected after each of
these elections.
Parliament sits for two ordinary sessions each year; the spring
session which opens in March and the autumn session with opens at the
beginning of September. The length of each session is a minimum of
four months and a maximum of five months.
*
Parliament can meet in extraordinary session on the initiative of
the President of the Republic or at the request of two thirds of
the members of the APN.
*
The organisation and functioning of the two chambers of parliament
are determined by law, as are their practical relations both
between themselves and with the Government.
*
Each of the two chambers has rules of procedure which determine
how it operates and within the framework of which permanent
committees are created (12 at the APN, 9 at the Council of the
Nation).
The right to initiate legislation belongs both to the Government and
to members of parliament.
I. The administration of the Council of the Nation
The fundamental mission of parliamentary administrations in nearly all
Parliaments, whatever their system and form, consists primarily in the
provision of technical and logistical support to the work of members
of Parliament thus ensuring the conditions necessary for them to carry
out their work.
This is why the administration of the Council of the Nation takes
care, through its mode of organisation and operation and its policy of
evaluating its human and material resources, to ensure permanently the
effectiveness and the efficiency of its action.
a. The organisation and operation of the administration of the Council
of the Nation
Attached to the Secretary General’s office, the administration of the
Council of the Nation is mainly grouped around two broad areas of
competence covered by two Directorates General:
1. the directorate general for legislative services
Charged with carrying out all of the tasks connected with legislative
and parliamentary activity, to prepare for and to follow the plenary
sessions of the Council of the Nation and to keep their minutes.
It is charged moreover with providing legal and technical support to
the permanent committees, to carry out studies and research relating
to the texts of bills which have reached the Council of the Nation, to
carry out all of the printing, editorial and translation work, to
ensure the management and preservation of the archives of the Council
of the Nation and to account regularly for their work.
This structure comprises three directorates:
*
The directorate of chamber services;
*
The directorate of studies and legislative research;
*
The directorate of documentation and publications.
These directorates are subdivided into sub-directorates made up of
offices and services.
2. the directorate general for administrative financial services and
for the business of members
Charged with providing all of the human and material resources needed
for the functioning of the institution and for safeguarding their
rational use.
This structure is subdivided into three directorates:
*
The directorate for human resources and finance;
*
The directorate for the business of members of the Council of the
Nation;
*
The directorate for procurement.
These directorates are subdivided into sub-directorates made up of
offices and services.
As well as the two directorates general cited above, the following
also report to the secretary general’s office:
*
The department for computing and new technologies;
*
The audiovisual department;
*
The financial control service.
b. The staff of the administration of the Council of the Nation
Numbering 461, the staff of the Council of the Nation are distributed
as follows:
*
Number of women: 142, or nearly 31%
*
Number of senior civil servants: 34 (of whom 6 women), or nearly
18%
*
Number of university graduates: 77, or nearly 17%.
*
By structure:
*
legislative services: 67
*
administrative services : 91
*
shared and technical services: 303.
c. the difficulties encountered by the administration of the Council
of the Nation
Constantly on the watch for new needs created by the development of
the institution’s legislative and parliamentary work, the
administration of the Council of the Nation continuously looks to
satisfy these needs effectively and promptly.
With this in mind, it works without slackening to adapt its
organisation and the tools at its disposal to overcome the various
difficulties with which it has been confronted since its creation.
Indeed, the speed with which the structures of the Council of the
Nation were put into place on its creation (in 1998) and the need to
ensure its smooth operation have led to certain difficulties, as much
of an organisational as a functional nature, which can be summarised
in the following points:
*
the inadequacy of the level of qualification of personnel, in
particular because of the anomalies and of the anarchy which
characterised the initial recruitments, which were carried out in
haste, in conditions often lacking in standards and sometimes on
personal recommendation.
*
the old-fashioned mentality of certain personnel who find it
difficult to understand the issues and the challenges of
performance and efficiency to which a parliamentary administration
must rise.
*
the monolingual training of staff, which constitutes an
unquestionable difficulty for those interested in assimilating and
adapting to developments and new methods of parliamentary work.
*
the sensitivity of the relations between the administration and
members of Parliament, characterised often by members’ suspicion
with regard to the administration, and sometimes even by a lack of
consideration and under-estimation.
*
inadequate coordination with the administration of the APN (1st
chamber of the Parliament) and the Ministry in charge of relations
with Parliament, in particular as regards planning plenary
sessions, determining the orders of the day for these meetings,
written and oral questions…
*
inconsistency in the system of performance evaluation for staff, a
system which is characterised by generosity, even laxity, in
evaluation. This has generated a simplistic egalitarianism, an
obstacle to and a source of frustration for those staff with real
ability and professional competences.
*
the poorly adapted statute governing the staff of the institution,
which has a negative influence on their career and their
prospects.
II The challenges of the parliamentary administration
It is established today that the parliamentary administration plays a
role of ever growing importance in the legislative process and in the
improvement in the quality of parliamentary work.
With this in end, the administration must not only assimilate and
understand the problems of the legislative and parliamentary work of
the institution, but also face up to the issues and challenges created
by the development of its environment and by new ways and methods of
working.
These challenges comprise principally the following points:
1. the rationalisation of the management of resources
It is obvious that society today has become more aware of the
requirement for efficiency and transparency in parliamentary work.
This new reality requires Parliament and consequently the
parliamentary administration to adopt the rules of the good governance
in its management so as to optimise the performance and costs of its
activities. For this purpose, the parliamentary administration must
introduce as much in its organisation as in its operation approaches
and methods of modern management which are more concerned with rigour,
effectiveness and professionalism. The realisation of this objective
inevitably requires a set of measures, in particular:
a. the modernisation of the management of human resources, in
particular through the following actions:
*
The putting into place of a predictive system of human resources
management.
*
The mastery of manpower and its adaptability to the needs of the
service.
*
A greater ability to match staff profiles to posts available.
*
A more pronounced specialisation of functions and a more precise
definition of objectives and tasks.
*
The installation of a reliable and capable evaluation system
revealing and rewarding personal qualities and abilities and
allowing a closer link between promotion, remuneration and return.
*
Greater rigour in the management of staff (control of discipline,
conduct at work, punctuality, open-mindedness, interest in work,
behaviour…)
b. the development of mobility
From a point of view of predictive management and reconciliation of
the needs for the administration and the aspirations of civil
servants, mobility must allow on the one hand, to assign staff
according to the needs of the services and, on the other hand, to
increase and adapt the competences of staff through the work to which
they are exposed. It is thus a question of allowing mobility to deploy
its full range as a research tool to achieve a better tally between
the needs of the administration and its resources.
This dimension, which needs to be taken up on a permanent basis,
implies the following measures:
*
Transparency in the management of staff and a systematic use of
open advertising for vacancies.
*
A communications system with can help reconcile the aspirations of
staff with the needs of the administration.
*
Mechanisms and administrative rules which can ease mobility
between services.
*
Taking mobility into account as one of the factors giving value to
a professional trajectory, especially for promotions.
c. the modernisation of the tools of work
notably through the introduction and spread of computing and the
recourse to new technologies to accomplish administrative and
technical tasks, such as the electronic transcription of debates and
parliamentary works, the use of electronic messaging, electronic
documents management…
d. the rationalisation of the organisational system
and this by a better definition of the tasks of the different
functions (in tandem with the evolution of the objectives of the
institution) and a judicious redistribution of appointments, thus
avoiding any duplication and interference or conflict over
competences.
Within this framework, the Council of the Nation has aimed ever since
its creation to ensure the coherence of the activities of its
structures and the continuous adaptation of the internal organisation
of its services to the needs resulting from the development of
legislative and parliamentary work.
It is in this spirit, moreover, that the internal organisation of the
services of the Council of the Nation, put into place on the creation
of the institution in 1998, was subject to adjustment in 2003, and is
constantly subject to revision.
2. training
An essential engine for growth and for the evolution of knowledge and
professional skills among parliamentary staff, training remains an
incontrovertible element for the assimilation and adaptation of these
staff to modern working practices and techniques, thus guaranteeing
the means necessary for the permanent improvement of their
professional performance and thereby of the quality of their services.
This shows that training is at once a challenge for the parliamentary
administration and the place where its interest meets that of its
staff.
As a consequence, training must constitute for Parliament a permanent
strategic activity needing to be brought into effect through the
institution of programmes to evaluate and reinforce the professional
competences and capabilities of its staff.
Based on these considerations, the Council of the Nation has developed
a policy for the training and improvement of all of its staff, no
matter their level (from senior officials to support staff),
consisting particularly in:
*
the organisation of training and improvement courses in all areas
and specialisations relating to legislative and parliamentary work
(law, economics, politics, international relations, management,
IT, protocol, librarianship, archives, foreign languages,
secretarial and office skills, security and control, car
driving…). This training is carried out by specialised national
and/or foreign institutions.
*
the secondment of staff, especially graduates with a professional
background, into foreign or international parliamentary
institutions and organisations (such as the IPU).
*
the participation of staff in regional and international meetings
(seminars, conferences, themed workshops).
*
accompanying Members of Parliament in their visits evaluating and
following up the execution of the Government’s programme, carried
out in the different regions and institutions of the country.
3. the development of legislative research
In effect, albeit that the right to initiate legislation is, in all of
the Parliaments of the world, recognised as belonging to
parliamentarians, the Government remains the real source of
legislative proposals, and, as a result, has significant resources and
skills at its disposal in conceiving, analysing and drafting laws.
Nevertheless, this situation must not affect the will and need of
Parliament to examine pertinently the direction and foundations of and
opportunities provided by texts submitted to it, and to contribute
effectively to their improvement.
These objectives, which constitute a permanent challenge for
Parliament require it to pay particular attention to legislative
research, which remains one of the means of providing parliamentarians
with trustworthy and relevant information, studies and expertise,
allowing them to understand and to figure out problem areas, to
evaluate their impact, and thereby to ensure the constant improvement
in the quality of their legislative and parliamentary work.
With regard to its present state (especially in African parliaments)
and to its impact, which is decisive and vital in the development of
legislative and parliamentary work, parliamentary research demands, in
our view, the combination of the efforts of all parliaments if it is
to be conducted efficiently and appropriately.
With this in mind, it would be opportune, even necessary, to begin to
think about the creation of an African centre for parliamentary
research, study and analysis.
4. communication and information
The process of democratisation underway in the world has brought about
greater freedom of expression, greater freedom of the press and
greater transparency in the activities as much of public bodies as of
Parliament.
Moreover, society sees its real participation in the management of
public affairs becoming increasingly important. Its demands in this
regard have been increasing for information about Parliament,
especially about how it carries out its legislative competence and its
role as a check on the activities of government, as well as about the
quality of its legislative and parliamentary work.
Furthermore, the political representation within parliaments is
becoming increasingly selective and of higher quality, which makes
parliamentary debates more dynamic and relevant, all the more so as
they are mostly carried by and repeated in the media.
Also, informing and communicating with society seems to be a social
need. This constitutes a genuine challenge for parliament as an
emanation of the people and symbol of democracy.
With this in mind, through its institutional role and constitutional
attributes, parliament must work unstintingly towards the development
of information and communication and towards the promotion of social
and political values within society.
Conscious of these challenges, the Council of the Nation has developed
a genuine policy for internal and external communication and
information, thanks to the modernisation of the means of communication
and information at its disposal and the institution of a policy of
openness towards society.
*
internal communication and information: Within this framework, the
Council of the Nation has put into place a reliable and
high-performing system of communication and of disseminating
information, notably by means of:
*
the introduction of an Intranet and electronic messaging system;
*
the modernisation and reinforcement of computer and audiovisual
equipment;
*
the widespread use of computer systems throughout the staff;
*
the rehabilitation and development of the archives, as sources of
information and technical support for research and analytical
work;
*
the compilation and distribution of a regularly updated catalogue
of the documentary contents of the library and of new acquisitions
of works, reviews and periodicals;
*
the publication of two magazines which comprise undeniably
reliable sources of information, communication and training. These
are:
*
“The magazine of the Council of the Nation”, a fortnightly
information sheet on the range of legislative and parliamentary
activities carried out by the institution during this period.
*
“The magazine of parliamentary thought”, a magazine with an
academic slant, containing studies and research into areas
associated with legislative and parliamentary work.
*
the automatic display of all of the notes and documents relating
to the institution’s legislative and parliamentary work (programme
of plenary sittings, orders of the day, scientific and cultural
activities) as well as to the management of the careers of staff,
social works, etc.
Beyond these activities, other projects are currently in the process
of being brought into effect. These are in particular:
*
the creation of a virtual library which will allow Members and
staff of the institution to obtain easily, instantly and at all
times, even remotely, all of the information they need whatever
its format or support (printed or electronic) and whatever its
location (internal or external).
With this in mind, the Council of the Nation has begun various
activities, notably: the finalisation of the technical design of the
project, the production of a service specification and the selection
of a study team to carry through the project, the organisation of
specific training for staff made responsible for the management and
monitoring of the virtual library and, finally, the process of
digitising the works chosen for inclusion in the digital library.
*
- the opening of the Council of the Nation to society
For this purpose, the Council of the Nation has adopted a methodical
approach, permitting it not only to make itself known and to
popularise its activities, but equally and especially to be aware of
the major preoccupations and national interests of society.
This approach, which aims to bring about the emergence of a
parliamentary culture, comprises in particular the following
activities:
a – the setting up of a website for the institution: a genuine mirror
of the institution for the outside world and a reliable and modern
means of information, the website allows access, for every interested
citizen, to all of the information and data relating to the
institution, in particular:
*
the fundamental texts relating to it: constitution, basic law,
rules and regulations,
*
legislative and parliamentary activities: plenary sessions,
meetings of agencies and authorities…
*
the diplomatic activity of the President and Members: hearings,
visits…
*
scientific and cultural activity: seminars, colloquia, study days,
open days, exhibitions.
*
the internal organisation of the institution
*
a detailed list of the members of the Council of the Nation
*
the official journal of debates
*
the catalogue of the documentary resources held in the library
*
all of the publications edited by the institution: the magazine of
the Council of the Nation, the magazine of parliamentary thought,
the outcomes of the colloquia, study days and seminars organised
by the institution
*
specific sites created to mark particular events organised by the
Council of the Nation (sessions of the African Parliamentary
Union, parliamentary days of the child, etc.)
b – the organisation of scientific and cultural events: going beyond
its constitutional role and wishing to contribute to and accompany
effectively the process of development and the motor of society, the
Council of the Nation has been transformed, thanks to the organisation
within it of scientific and cultural events, into a genuine platform
for debate and exchange for the national elite.
In effect, through the relevance of their themes, the quality and high
level of expertise of the participants (political scientific and
cultural personalities, both domestic and international), the
seminars, study days, conferences and colloquia organised by the
Council of the Nation constitute real opportunities for direct contact
by the elite with parliamentarians—“men of politics”—the mutual
exchange of knowledge, the meeting of ideas and mutual awareness
raising on questions of national importance.
c – the organisation of open days: intended for all social and
professional categories, open days are an effective means (even the
best means) of bringing citizens close to state institutions, which
serves to reinforce their democratic character and, as a consequence,
their credibility.
These visits in effect allow their beneficiaries to immerse themselves
more fully in the goals of the institutions, their organisation and
their operation.
This is why the Council of the Nation continually organises guided
visits of its different bodies, intended for different categories of
citizens (civil and public servants, all and any sectors, university
students, secondary school pupils, pupils at different levels of
national education etc)
d – the organisation of exhibitions: This activity is in line with the
desire of the Council of the Nation to make a parliamentary culture
emerge, and to participate in influencing and developing a national
culture with all its components, diversity and richness.
This is why the Council of the Nation organises, within its precincts,
periodically, and particularly on the occasion of certain events
(opening and closure of sessions, scientific exhibitions etc) numerous
and varied themed exhibitions (painting, books, archives, manuscripts,
environment, new technologies, etc.)
e - the organisation of parliamentary days of the child:
The Council of the Nation’s aim, by way of this activity, is to
contribute to getting children, the future of the nation, interested
in public life on the one hand, and to encouraging effort and personal
merit on the other.
In effect, bringing together the most meritorious pupils from the
three tiers of education, at a national level, this activity allows
the children involved to become, for the day, genuine members of the
Council of the Nation and to question the members of the government
(required to attend and to reply) on all the questions and
preoccupations relating to school life (curriculum, system of
evaluation, health, hygiene, sport, transport, environment etc).
Beyond the activities outlined above, and implemented, the Council of
the Nation intends in order to reinforce its means of information and
communication, the institution of:
- a virtual library;
- an electronic document management system
- a government intranet network
- parliamentary television and radio stations.
5. the institution of an strategy of interparliamentary co-operation
and of reinforcing relations with international parliamentary
organisations
This activity is of a kind to allow, as is obvious, capacity building
by the administrations of parliamentary institutions, especially
African ones, in order to realise their common objective, which is to
say the permanent improvement of their methods of organisation and
operation and the quality of their performance in the service of
parliamentarians.
It is therefore convenient with this in mind to encourage and increase
the number of meetings, exchanges and co-operation between the
administrations of African parliaments, on the one hand, and those of
the administrations of the parliaments of the rest of the world on the
other.
This activity is to be equally directed towards inter-parliamentary
organisations and international organisations, such as the IPU and the
UNDP.
In this context, and for its part, the Council of the Nation spares no
effort in reinforcing and developing this co-operation, notably
through the increase and the diversification of exchanges in the
context of its bilateral and multilateral relations on the one hand,
and its participation in the gamut of regional, continental and
international parliamentary events on the other.
With this in mind, on an internal level, the Council of the Nation has
proceeded to reinforce both in quality and in size the office within
it charged with inter-parliamentary co-operation and external
relations.
6. The integration of gender into parliamentary administration
A glance at the representation of women (as parliamentarians or civil
servants) in African parliaments (and to a lesser degree in other
parliaments) shows that this representation remains limited, notably
because of socio-cultural barriers and socioeconomic factors.
This situation, which constitutes a further challenge for African
parliaments, requires, over and above the implementation of a strategy
of consciousness-raising, information and explanation on this
question, real political will which could translate into a courageous
coherent and transparent demarche, comprising one of the following
steps:
*
The institution of a principle of positive discrimination in
favour of women. This principle will allow, in effect, where
qualifications and requirements for a job are fulfilled equally,
that the female candidate should be preferred.
*
The reservation of a quota of jobs (among them executive posts)
for women.
After this general and non-exhaustive presentation of the situation of
the parliamentary administration (common among African parliaments),
taking the example of the parliamentary administration of the Council
of the Nation, and the challenges which they have to face, are we not
allowed to ask some questions which appear to us to be relevant?
These questions involve in particular finding out what we have to
expect from parliamentary cooperation:
a – inter-African?
b – international?
c – with international organisations?
a- Concerning the first question, relating to intra-African
parliamentary co-operation, where the effort required is colossal
because of the derisory level of the means of a large number of
African parliaments and the lack of training of their staff, a basic
manual, including a modus operandi for a maximum of case studies and a
list of the reactions or attitudes that could be systematically
adopted would be one of the most useful things.
This would be a genuine “case law of parliamentary administration”.
On this subject, we can only be delighted by the efforts and
activities undertaken by the African Network of Parliamentary Staff
(RAPP) to build the capacity of African parliamentary institutions.
In effect, this non-governmental organisation dedicated to good
governance forms a privileged space (which should be supported and
strengthened) for exchange, co-operation, training and development of
the professional capabilities of the staff of parliamentary
administrations.
Moreover, it would be easy to describe our expectations and hopes, all
of them legitimate, and to summarise them in reinforcing inter-African
co-operation on parliamentary administration, through in particular:
*
an increase in exchanges about and information on experiences,
practice and shared techniques, especially in organisation and
operation.
*
the organisation of meetings for information and for parliamentary
administrative staff training in the context of seminars,
colloquia and conferences on themes relating to the missions of
parliamentary administrations.
*
the strengthening of methods of information and communication
about the administration of African parliaments (on this subject,
a large gap is apparent in this area to the extent that there is a
complete absence of information on this administration on all of
the websites of these parliaments).
*
integration into the new entity “the e-parliament initiative” or
virtual parliament to allow us as the people responsible for
parliamentary administrations:
*
to be in permanent contact with colleagues across the world
and to keep one another informed.
*
to develop collaborative solutions to our problems.
*
to encourage and dynamise the creation of the “African
e-Parliament”.
*
thinking about the development and realisation of an
African guide on practices and techniques of parliamentary
administration. It is obvious that such a guide will be a
reference point for each parliament, which will adapt it
according to its specific circumstances and constraints.
*
thinking about the creation of friendship groups for
parliamentary administrative staff, following the example
of friendship groups for parliamentarians. This could
happen in parallel with or independent of the friendship
groups for parliamentarians.
*
the creation of an African institute for training and
legislative research.
The aim is to put in place a technical support structure which would
respond to the information, research, study and analysis needs for
parliamentarians and all of the staff of the Secretary General.
This organisation which will have a double mission of study and
training will be charged in particular with:
*
carrying out retrospective and forward-looking research into
parliamentary law and inter-parliamentary co-operation.
*
compiling papers on the major problems of today: debt, poverty,
HIV-AIDS, globalisation etc
*
providing support and legal assistance to permanent parliamentary
committees, decision-making bodies and organs of parliament.
*
carrying out, on request, studies, research and preliminary
analysis on every question and legal text submitted to
parliaments.
*
compiling statistics.
*
possibly assisting parliamentarians in therir work.
*
participating in the organisation of training for the staff of
parliamentary administrations.
*
putting forward ideas and strategies.
To bring these missions to fruition, this centre will need to rely on
a certain number of structures such as the library and archives,
exploiting to its utmost the documentary resources and all the
research tools: files, notebooks, catalogues, bibliographies, etc.
It is obvious that this requires the updating of all of the data banks
held by parliaments.
b – As far as international co-operation is concerned, this must also
be strengthened and adapted in accordance with the real needs of the
parliamentary administration and their development.
With this in mind, there is scope initially to try to discover a
common denominator among the practices of the Anglo-Saxon,
Francophone, Asian, African and Arab worlds. Secondly, a genuine
course for the parliamentary administration should be worked through,
for the training of the different parliamentary staffs.
For the parliaments of developed countries, enjoying a wealth of
experience, their task will be above all to become aware of the
challenges faced by their African counterparts.
Moreover, possible secondments to these African countries should be
organised by way of well-targeted training seminars on one or another
aspect of legislative assistance, or administrative and financial
management of Parliament.
In contrast, the secondment of the staff of African parliaments should
always take the form of improvement or refresher courses.
This activity, which should be carried out on a bilateral basis, could
be expanded into regional or international initiatives, the better to
share experiences.
Another way of adding value to these relations would be to make
video-conferencing more widely available; this would lead to frequent
direct exchanges and, in the long run, to significant savings.
This co-operation should also encompass new information and
communication technologies, which are a genuine force for development
and interaction.
Moreover, good governance could also be the central consideration of
this co-operation, through the introduction of a genuine code of
worldwide best practice in parliamentary administration, in the form
of a “guide” which can be enhanced by all the Secretaries General, on
the basis of the daily life of their institution.
In parallel, an alert or alarm mechanism could be established to
anticipate disturbances or agitations harmful to the image of
parliaments.
From what has just been said, the idea is obvious of a partnership
between the parliamentary administrations of African countries, both
among themselves, and with the parliaments of the other parts of the
world.
This partnership, which should be organised by Secretaries General,
will need to be able to make the missions to accomplish clearly
visible and give a predictability to the release of adequate means to
accomplish them within the time foreseen.
c – Finally, as far as co-operation with international organisations
(UNDP etc) is concerned, it is worthy of note in the first place that
a number of parliaments in Africa are still seen as rubber-stamp
chambers. All the same, this situation has changed radically and
numerous international organisations are currently working with
parliaments, above all, because parliaments, notably those of the
emerging democracies, have become more important thanks to the wave of
democratisation which has been taking place since the 1990s.
Thus parliaments and parliamentarians are more and more frequently
considered as partners of choice for international organisations,
especially those promoting development.
However, this increased co-operation has not always been accompanied
by a better understanding of the role and working methods of
parliaments.
The staff members of international organisations have not always
familiarised themselves with the different resources they can call on
in parliaments and how to access them.
For their part, parliaments and parliamentarians are not necessarily
always aware of the advantages flowing from a partnership with
international organisations, and even when they are, they do not
always know where to turn and how to get in touch with these
organisations, from which arises a number of misconceptions and
misunderstandings.
It is therefore necessary to perfect a tool to compensate for these
gaps and to simplify the partnership between international
organisations and parliaments.
Moreover, and in order to ensure, as far as possible, the basic
conditions for the harmonious and homogenous development of all
African parliamentary administrations, solutions need to be found for
certain questions of a financial kind, which are a constraint, nay a
major handicap, for some countries in the realisation of their aims.
This could be achieved through the granting of aid and financial
contributions to the benefit of the parliamentary administrations of
these countries.
As regards the co-operation of the Council of the Nation with
specialised international organisations (to which it pays much
attention), there is reason to point out that this is illustrated in
particular with the UNDP through the agreement concluded within the
framework of a programme of co-operation lasting several years
entitled “Support to the Algerian parliament”. This agreement rests on
the following fundamental paths:
*
the strengthening of access to information as well as tools for
disseminating information about Parliament
*
the consolidation of the role of parliamentary control and the
relations between Parliament and society.
*
the strengthening of Parliament’s legislative capacities.
*
the integration of the gender dimension into the different
activities of the Algerian Parliament.
Various activities have been completed within the framework of this
programme and have consisted in particular in the organisation of
seminars, colloquies, study days, training programmes, and missions
for the information and improvement of the Members and staff of the
Algerian Parliament.
To conclude, it seems useful to me to point out that, like you, I
remain convinced of the modest but particularly effective role which
the administrations of our parliaments play alongside the
decision-making process, in particular in promoting knowledge and
exchange between our respective parliaments and in ensuring diligent
follow-up to actions undertaken or planned with that aim.
These are the few thoughts and observations that I have thought it
useful to impart to you on the theme of “The challenges of
parliamentary administration in African countries: the case of
Algeria”.
gh
Mr Mohamed Vall Ould KOUEIRI (Mauritania) recalled the situation of
the Mauritanian Parliament: the coup d’etat of August 2005 had been
followed by a period of transition of 18 months, during which work had
been led by all the political parties as well as civil society. A
referendum on a new constitution had then been organized by a national
independent commission, as a result of which Mauritania acquired a
bicameral Parliament. Efforts had been made to strengthen the place of
women in political life. The Mauritanian Parliament comprised 19%
women. In addition, the opposition had been given a special status,
offering it defined prerogatives.
Mr Gherardo CASINI (Global Centre for ICT) stressed the importance of
the issue of training for parliamentary staff. The United Nations had
been working for several years with about fifteen African parliaments.
The UN Department of Economic and Social Affairs had organized a
conference in Nigeria in 2007, attended by about 20 delegations, in
order to develop an African network for the exchange of parliamentary
knowledge. A new conference on the same theme would take place in
Egypt next June, and Mr Casini invited all African parliaments to
participate.
Mrs Martine MASIKA KATSUVA (Democratic Republic of Congo) said that,
among the challenges the parliamentary administrations had to face
were the difficulties that could arise between the administration and
parliamentarians. This was the case in the Democratic Republic of
Congo: for example, each member of the Bureau had a large personal
staff, who had awarded themselves the rights of the administration.
Did such a phenomenon exist in Algeria?
Mr Xavier ROQUES (France) welcomed the frankness of Dr Amrani’s
communication, and underlined the importance of the quality of
parliamentary staff. He wanted to know if the situation described by
Dr Amrani had improved, and in particular if the pressure of the
policies on recruitment had lessened.
Mr Marc BOSC (Canada) added that the question of resources, human as
well as financial, was crucial when considering the running of a
parliament.
Replying to Mrs MASIKA KATSUVA, Dr AMRANI said that all staff were
provided by the parliamentary administration, and that, unlike in the
Democratic Republic of Congo, the members of the Bureau could not
recruit their staff from outside this administration. Within the
Council of the Nation, which had been created in rather a rush, the
current policy was to interrupt recruitment, and rather to prioritise
the redeployment of staff in accordance with their abilities and the
training of those whose skills needed refreshing. Some people had in
the past gained their posts thanks to recommendations, although they
did not have the skills required. In the future, it would be necessary
to give thought to recruitment methods, resorting to examinations. The
main problem for the Council of the Nation was not insufficient
financial resources, but rather human resources: its organogram had
been hastily constructed, and after a first revision, a second was
currently under way.
The African Network of Parliamentary Staff
—
Brissi Lucas Guehi
Secretary General of the National Assembly (Côte d’Ivoire)
In this Africa Day, the Inter-parliamentary Union gives us the
opportunity to discuss about a framework of training, capacity
building and experience sharing for helping the African Parliaments
staff: this is the Reseau Africain des Personnels des Parlements
(African Network of Parliaments Staff) (RAPP).
I- ORIGIN AND MOTIVATION
The idea of creating an African Parliament Staff association was set
up in May 1995, This idea has been improved and finally reached the
step of a project in the meeting organized by the National Conference
of State Legislature (NCSL) in Porto Novo (Benin) in September of the
same year. NCSL is an American Organization which gathers MPs and
staff members of different legislatures (Senate and Chamber of
representatives) of the United States of America.
However it was only after the investigation trip organized by NCSL
from 14 to 30 September 2002 in the United States of America, that the
decision of implementing the African Network was strongly established.
This investigation trip enabled many delegates from Côte d’Ivoire,
Madagascar, Mali and Chad to share the American’s experience of
similar organizations. All these activities have been organized with
the significant support of the NCSL and the American State Department.
From 19 to 24 February 2003 in Bamako (MALI), a meeting permitted to
complete the creation of this pan-African organization of parliament’s
staff under the name of “Reseau Africain des Personnels des Parlements
“(African Parliament Staff Network).
The main purposes of this network are to contribute to:
 parliament staff training;
 continuous improvement of their professional skills;
 Inter parliamentary cooperation.
In fact the RAPP activities started by the International Conference in
N’djamena (Chad) where about sixty delegates came from 15 African
countries to settle the new organization. This conference also gives
to the participants the opportunity to take part in training workshops
and professional exchanges.
Then the Reseau Africain des Personnels des Parlements was born. It is
a political and professional consultation framework which missions
consist in contributing to:
- the establishment of African parliaments in their context within
republican institutions;
- the promotion good governance; and
- the improvement of parliamentary agents’ professional skills.
All these measures will allow the workers to be more professional,
efficient and dynamic in their mission of parliamentary assistance.
The objective assigned is to permit the members to share their
experiences and exchange different methods and working procedures in
order to reach an efficient management of parliamentary institutions.
II- MEMBERS COUNTRIES AND ORGANISATION
The RAPP is a pan-African organization whose head office is in Abidjan
(Côte d’Ivoire). Its different members are:
- The National Assembly of Benin;
- The National Assembly of Burkina Faso;
- The National Assembly and the Senate of Burundi;
- The National Assembly and the Senate of Congo;
- The National Assembly of Democratic Republic of Congo;
- The National Assembly of Côte d’lvoire;
- The National Assembly of Djibouti;
- The National Assembly and the Senate of Gabon;
- The National Assembly of Guinea;
- The National Assembly and the Senate of Madagascar;
- The National Assembly of Mali;
- The Chamber of Councillors and the Chamber of Representatives of
Morocco;
- The National Assembly of Niger,
- The Chamber of Deputies and the Senate of Rwanda,
- The National Assembly of Senegal;
- The National Assembly of Chad;
- The National Assembly of Togo.
At this time, 24 Parliaments from 17 countries are members of the
RAPP, which is definitively, organized like this:
The General Assembly is the head organ of the RAPP which holds once a
year (in July or August), a meeting in one of the member countries.
General Assemblies provide opportunities to organize round tables,
training workshops and exchange platforms on various subjects relating
to the network and to the parliamentary staff missions.
The Executive Committee which includes secretaries general of the
member parliaments is the managing organ of the RAPP. Its mission
consists in preparing the next general assembly, by making a first
partial assessment of the annual activities and identify the topic of
other issues for communications to be presented to the General
Assembly.
The Bureau is elected within the executive committee for a two-year
mandate. It is formed by eight (8) members:
*
A president;
*
Four vice-presidents;
*
Two secretaries;
*
A treasurer and his assistant.
The choice of vice-presidents is made according to the regional
configuration of the continent in order to ensure a real, regular and
permanent presence of the RAPP. This configuration includes the
following regions: Southern Africa, Central Africa, Northern Africa
(Maghreb), Western Africa. The bureau ensures the implementation of
both decisions of the General Assembly and Executive Committee. It
also represents the network wherever necessary.
Working committees:
For an efficient management of the network activities, five (5)
committees have been created:
*
Finance and budget committee
*
Legal texts committee
*
Communication and development committee
*
Study and training committee
*
Information and Communication Technologies Committee.
At each general assembly, these committees present their comments and
suggestions for best management of the network; so as to reach its
mains purposes.
III- PURPOSES AND MEANS
As statutes emerge, the objectives assigned to the network are:
- Strengthening capacities of parliamentary institutions
- Contributing to the professional training of parliaments’ staff.
- Forward constitution of data bank and parliamentary experiences
- Creating a point of convergence for inter parliamentary cooperation
To reach these objectives, the network has been equipped with various
means:
- The Website
The RAPP is equipped with a website available for consultation at the
following address: www.rappafrik.org. Through this website, the
Network certainly wanted to open in to its members but also to offer
itself as an interface on the whole world and in the direction of all
potential partners. This site has a drive door on the “CHAT”, being a
discussion forum through which the parliaments’ staff can exchange
their work, make consultations, seek notices and submit points of
view, in an immediate and interactive way.
- The Iistserv
The Iistserv is another data processing instrument available for
parliamentary staff. It is a common email box for all RAPP members’
staff. By sending one message through this email box, all RAPP
members’ staff can receive it. The email address to join the listserv
is “[email protected]”.
- The RAPP newspaper “RAPP INFO”
Through its newspaper the RAPP aims to be an open showcase on the
word. This newspaper relates RAPP’s activities and other events which
can have an interest for the RAPP and contribute to its expansion. It
also relates the contributions of parliament’s staffs in terms of
training, information and assistance for the upgrade of the staff.
General assemblies
They are also a channel of dissemination of parliamentary practices
and a tool of parliament staff training. General assemblies have this
interesting particularity to be occasions of gathering parliament
staff; who at these moments move on to meet their brothers and
colleagues from other countries. The RAPP uses these opportunities and
turns them to good account to introduce training and information
sessions on diverse subjects, concerning parliamentary practice and
general knowledge on the world.
Besides the training shutter, General Assemblies are also a real
channel of communication, conviviality and linkage for the
parliaments’ staff. Furthermore, they are used as opportunities for
informal exchanges between participants and weaving of bonds of
friendship, quite as they are also an occasion of discoveries, because
General Assemblies’ programs always try to foresee excursions on
places of interest.
Training sessions
In its expansion program, the RAPP plans to introduce and to undertake
an ambitious training program for its members. Regional training
sessions have been planned. This program is soon going to start, for
it is important to allow the RAPP to perform its purposes, which
consist in the upgrade of the parliaments’ staff and the improvement
of their skills.
IV- EXHORTATION
Today, the RAPP includes 24 member Parliaments from 17 countries,
essentially francophone States. The other States, English-speaking,
Portuguese-speaking, Spanish-speaking, Arabic-speaking, are awaited.
That is why, I have the pleasure to invite the Secretaries General of
African Parliaments here present and who do not yet subscribe to the
RAPP, to join their brothers.
Subscription to the RAPP is not subjected to payment of a right. Only
the payment of an annual contribution of about 1000 Euros per
Parliament is required, in addition to the participation in the
activities organized. The RAPP’s bank account has taken up residence
in a bank of Abidjan, where the head office is located.
We, Parliaments’ staff have a common purpose and work for an ultimate
goal, that of being active, efficient and devoted assistants for
political actors of the institutions. Only training can enable us to
perform our role in the parliaments. We thus have the duty to be
constantly informed and aware about drafting techniques and
parliamentary practices and procedures. Parliamentary work is a work
of accuracy, a real vocational work which cannot afford any kind of
amateurism, Parliaments’ staff must be thus trained at the
responsibility they have to perform for the best of a modern and
democratic Africa; an Africa with strong institutions, aware of their
role in the establishment of good governance.
Furthermore, as it addresses to parliaments ‘staff, the RAPP is also
avid to establish cooperation relations with similar organizations or
with others which have the same purposes.
The Executive Committee will meet in Dakar, Senegal from 28 to 30
April 2008 and I would like to invite you to take part in it.
gh
Mrs Claressa SURTEES (Australia) wanted to know if, when a parliament
needed a response to a specific question, it could form a network with
other parliaments and ask this question of a contact in one of these
parliaments.
Mr Moussa MOUTARI (Niger) said that the RAPP consisted only of
Francophone parliaments, but that it was open to all African
parliaments, whether Anglophone, Lusophone etc.
Dr Ulrich SCHÖLER (Germany) said that he found the RAPP initiative, of
which he had not known, particularly interesting, and that it could
promote training activities for African parliamentary staff, or even
rationalize them. Currently, many African staff went to Germany to
follow training courses, when it would be more effective and less
costly for German staff to go to Africa to work with African staff via
this network, being able in this way to adapt their training
activities to the needs and circumstances of the place.
Mrs Madeleine NIRERE (Rwanda) asked about the prospects for developing
the RAPP and about ways of making it better known. She wanted to know
how the RAPP co-operated with member parliaments and, if need be, with
other organizations.
Ms Fatou Banel Sow GUEYE (Senegal) asked if the lack of human
resources available did not constitute a handicap to the operation of
the network and the realization of its objectives.
Mr Samson ENAME ENAME (Cameroon) suggested that other African
parliaments should join the RAPP. He himself, who had just learned of
its existence, intended to join. The RAPP office could with this in
mind contact its Anglophone equivalent, the Commonwealth Parliamentary
Association (CPA).
Mr Brissi Lucas GUEHI thought Dr Schöler’s proposal very interesting.
Such a kind of co-operation could allow for professional
capacity-building for parliamentary staff. He said that he would
mention the proposal at the next meeting of the RAPP in Dakar. On the
links between the RAPP and African parliaments, Mr Guehi said that
each member parliament had an RAPP office. At each general assembly of
the RAPP, the offices put together a report on their activities. The
lack of resources available, common to all African parliaments,
necessarily constrained their activities, and the RAPP tried to adapt
its policies to its means. In conclusion, the RAPP constituted a
dynamic structure, but one insufficiently well-known. It was so as to
make it better-known that it had been decided to create a
vice-president for each zone. Moreover, Francophone and Anglophone
parliaments had much to learn from each other.
Parliaments as peacebuilders in conflict-affected countries
—
General debate moderated by Mr Ian Harris
Clerk of the House of Representatives (Australia)
Mr Ian HARRIS (Australia) made the following contribution: “What is
the role of Parliament in addressing contentious issues and
relationships in conflict affected countries? Advancing Parliament’s
legislative function in conflict and social accountability1”
Westminster inheritance
Some legislatures under the Westminster parliamentary system have
needed rebellion or armed insurrection to achieve their independence.
Other legislatures have achieved their national parliamentary system
by more peaceful means such as discussions and decisions by the people
at the ballot box in plebiscites etc. While a united response external
threats (more perceived than real) was one of the motivating elements
in the formation of the nation, Australia is fortunate in being an
example of the attainment of legislative sovereignty by more peaceful
means. Australia basically chose to follow the Westminster system for
the new nation, but with some significant variations to accommodate
local proclivities.
However, whether or not formed by peaceful means, the procedures of
all legislatures following the Westminster system reflect elements of
a post-conflict scenario, the English Civil Wars of the 17th Century.
In some countries, the monuments to those who fought hard for their
parliamentary democracy are the bullet holes in the walls and trees.
The bullet holes of Parliaments under the Westminster system are in
the parliamentary procedures that those legislatures, in the main,
follow.
Importance of doctrine of separation of powers
The 18th Century enlightenment French philosopher Baron de Montesquieu
was responsible for the term describing the concept of the separation
of powers. There are many areas the discussion of the topic of the
legislature’s role in peace-keeping that are affected by the doctrine
of the separation of powers. For example, the following matters fall
within the province of government:
*
declarations of war and the conclusion of peace,
*
internal security,
*
the making of treaties,
*
poverty reduction and conflict management,
*
representation & electoral systems.
However, Parliaments are in a unique position to make a significant
contribution in the process, to provide a channel of expression to
elements in society below the Executive, and because of the system of
responsible parliamentary government that many jurisdictions follow,
to influence the Executive that is part of the legislature.
Internationally - Parliament’s role in war, peace, treaty-making
Similarly, declarations of war, entering into peace, and treaty-making
are all functions of the Executive. However, in some non-Westminster
systems there is a legal requirement for Congressional approval for
declaring war (or placing the country on a war footing). Moreover, is
some Westminster-style jurisdictions there has been an increasing
tendency for parliamentary endorsement of a government’s commitment to
go to war. The Executive must carry a parliamentary motion of
endorsement of this kind, and do so without significant defections.
The process gives voice to those who oppose a conflict, and perhaps
tempers a government’s actions.
Some legislatures have a Treaties Committee to pass comment after
treaties are concluded but before they come into effect. This may
extend to peace treaties, but in any context, it permits parliamentary
input into areas previously thought to be the sole province of the
government.
Three factors for Government and Parliament
There are three important factors for Government and Parliament to
successfully resolve conflict and build peace: These`are:
*
Timing: Recognition by all parties that force will not prevail;
*
Patience by all concerned to work towards the end despite
setbacks; and
*
Involvement by the media and civil society in the process.
The causes of conflicts
An effective response to conflict requires a agreement on
understanding of its causes. Some of the many reasons for conflicts
are:
*
Artificial boundaries
Boundaries established without due consideration to linguistic and
long standing traditional, social and cultural relationships are
usually essentially regarded as being artificial. The result could
lead to a nation finding most of its national resources based in the
regions bordering other countries, and these regions increasingly
becoming attractive centres for the initiation of rebel wars.
*
Natural resources wealth
Some countries accommodate two type of resources based conflict; wars
of resources scarcity relate to central grazing and water rights for
nomadic people, some countries whose economies are dependent on
natural resources such as oil and minerals, face very high risk of
conflict.
*
The abuse of ethnicity
Political leaders in some countries have made increasing use of ethnic
hatred. Such abuse prolongs conflict, and creates long term divisions
that reduce the effectiveness of peacebuilding efforts.
*
State collapse
The collapse of the state institution has caused many internal and
regional conflicts. Collapse is rarely sudden, but arises out of a
long degeneration process that is characterized by predatory
governments operating through coercion, corruption and personality
politics to secure political power and its benefits are monopolised by
one group.
*
Over centralised system
This occurs in highly centralised administrative systems that make the
centre very strong marginalising constituent regions and minority
groups and limiting access to opportunities, thus creating a critical
mass of disaffected members of the population particularly the youths.
*
Limited Enabling Environment
Many countries fail to provide rudimentary conditions for stability
and development, the rule of law, basic services, a predictable
commercial environment and personal security and well being. Warlords,
international criminal elements along with some key government
officials conspire to undermine the existence of the state through
pursuit of wealth under the guise of social revolutionary movements.
Parliament’s role in managing conflict and poverty
Parliament’s role in peacebuilding from below, and in influencing the
Executive in responsible parliamentary government environments, has
been mentioned under the section on separation of powers. Parliament
can be an important element in establishing, discussing and promoting
a national consensus around commonly-held values.
Parliament can put in place institutions needed to assist with
conflict resolution and peacebuilding, and then oversight them to make
sure they fulfil the intrended role.
However, there are more specific ways that Parliament can contribute
to peacebuilding:
*
Participation, representation & reconciliation
*
Representation so as to include minority groups – Electoral
systems to ensure that Parliament is as representative as
possible.
*
Involvement in international initiatives and processes, such as
the Poverty Reduction Strategy Process, and the Millenium
Development Goals.
*
Bridge-buiding between parties with conflicting interests.
*
Legislation & Oversight
*
Parliament needs resources for its oversight & accountability
function.
*
Best way to do this is strengthening the parliamentary
committee system.
*
Public Accounts Committee is essential (some jurisdictions
have an Opposition Chairman).
*
Oversight over security sector (military, police &
intelligence services)
*
Also, legislation to establish Office of Auditor-General
(possibly working closely with PAC), Ombudsman,
Anti-Corruption Commissions and Human Rights Commissions.
*
Establishment of special commissions, for example a Truth
Commission: The mechanism most closely associated with
transitional justice is the truth commission. Truth
commissions are temporary non-judicial fact-finding bodies,
and usually operate for periods of one year. Parliaments can
play many key roles in relation to truth commissions. They can
enact legislation establishing the commission, participate in
the appointment of individual commissioners, provide financial
support during the commission’s operational phase, and
implement the recommendations contained in its final report.
*
Dialoguing with Civil Society & Free Media
*
Civil society’s links with the public. A two-way flow of
information needed.
*
Media is often the legislature’s principal or sole means of
communicating with the public.
*
A diverse media sector is much preferable to a State-dominated
media.
*
Need to ensure media’s access to information.
*
Role of political parties & The Opposition
*
The Role of the Opposition - The opposition can play an important
role when the relationship between the executive and sectors of
the community has become acrimonious. Opposition parliamentarians
can act as a bridge between the conflicting groups and the
executive. This is particularly the case in parliamentary systems
where the executive is drawn directly from the party that commands
a majority in parliament; thereby the opposition party is the only
democratically elected group not directly involved in the dispute.
Opposition parliamentarians can act as third party intermediaries
and instigate confidence-building measures, which are essential
preconditions to fostering negotiation among conflicting groups.
In such a situation a peaceful solution to an escalating conflict
should override other considerations, therefore both the executive
and opposition parliamentarians should be willing to put politics
aside and work across party lines to resolve the conflict.
Citizens have a right to expect a Government that can govern, and
an Opposition regarded as the loyal Opposition as an alternative
government, with teeth.
*
Promoting Socio-Economic Equality
*
Conflict can arise out of competition for scarce resources.
Conflict and poverty go hand-in-hand. Parliaments should ensure
equality of opportunity and take affirmative action in favour of
disadvantaged groups.
*
Parliaments can mitigate conflict over resources by promoting
dialogue and promoting third-party mediated talks.
*
Where demand for resources exceeds supply, parliamentarians can
promote dialogues with constituencies explaining reasons behind
allocation of resources.
*
Rule of law
*
Strengthening the rule of law has a positive impact on economic
development, which assists in creating an enabling environment
conducive to peace. The rule of law is able to contribute to
peacebuilding not only by building a framework of laws, based on
social norms, which the community will voluntarily adhere to, but
also by providing stability through justice.
*
The judicial system should be viewed as a whole, with good laws
interpreted by a skilled judiciary. The judiciary is one of the
primary institutions responsible for state enforcement of the rule
of law and also happens to be a key player in managing conflict
between different groups in society. Parliament should interact
with their constituents and civil society so as to ensure the
legislation it passes is a true reflection of social norms,
thereby aiding economic development. Furthermore, parliament is in
a fortunate position in that it can facilitate the effectiveness
and impartiality of the judiciary through their oversight and
budgetary processes.
*
Decentralisation
*
Need to commence with clear, well-defined reasons, which should be
kept in mind in developing a decentralisation stategy.
*
Whether federalism, devolution or adminstrative decentralisation,
it can contribute to promoting particpation, accountabiltiy and
responsiveness as well as conflict resolution.
*
Decentralizing power and resources can contribute to conflict
management, as it increases the chances that local citizens, who
were previously disenfranchised, can participate more directly in
decision making and therefore have more ‘buy-in’ to the decisions
made. Parliament should use its legislative and oversight
functions to ensure that any decentralization scheme succeeds in
overcoming a number of reoccurring obstacles that hamper such
schemes, as a failure to address pre-existing power relationships;
countering elite capture of the process; properly defining fiscal
relations between the central authority and decentralized
decision-makers; and providing for the accountability of localized
decision makers.
*
Regional Parliamentary Peace-building
*
Legislator-to-legislator contact is one of the most effective
forms of communication, and helps when governments find it
politically necessary to maintain an arms’ length relationship
with another country. Parliamentarians face similar challenges in
different jurisdictions.
*
Associations such as the CPA and/or, for national legislatures,
the IPU, the East African Legislative Assembly, ECOWAS or SADC
Parliamentary Forum may assist. Others may be formed.
*
Often scarce resources act as a hurdle to developing regional
parliamentary relationships. However, parliamentarians, to the
extent that they are able, should seek to build regional
relationships, whether through informal networks, professional
associations or formal regional institutions. Such networks
promote regional dialogue, build confidence and facilitate
learning about conflict management, whilst helping mediate
regional disputes. There are some strategies parliaments and
parliamentarians can adopt in order to manage emerging conflicts;
whether that is via developing better relationships within their
communities, supporting institutional reforms that take into
account the interests of all stakeholders in an inclusive fashion
or by creating an enabling environment, through poverty reduction
initiatives, which are conducive to peace rather than conflict. It
is hoped that by developing a fuller understanding of the nexus
between parliament, poverty and conflict, parliamentarians will be
better able to take on the mantle of peacebuilders and guide their
communities.
*
Often, an international negotiator or facilitator can assist where
lack of trust internally makes it difficult or impossible.
*
This has worked in the South Pacific with the Regional Assistance
Mission to the Solomon Islands (RAMSI). It is also supported at
officer level, with the first parliamentary srtengthening offcier
being from the Australian House of Representatives, and the
current officer from the NSW Legislative Council.
Contribution of staff
*
The immediatley preceding point raises the question of what staff
can do in playing a part in the peacebuilding exercise. There is a
whole industry of parliamentary strengthening, particularly as
previously conflict-affected countries come to realise that a move
to economic strength invloves the development of the rule of law,
where investors are confident to place their funds. Many
participants in this industry have an academic awareness of what
is required, and have made a career telling others what to do, but
have never actually done anything practical themselves.
*
Parliamentary staff are ideally place to fill this void.

Discussion points:
*
To what extent can successful or unsuccessful attempts to resolve
conflict situations provide lessons for the future. Any examples?
*
What positive role can international organisations play in
conflict resolution and peace-building exercises?
*
Of the identified specific roles that parliaments can play in the
conflict resolution/ peacebuilding process, which is the most
important? The most impractical?
*
What role can staff play in the conflict resolution/peacebuilding
process?
*
Particular issues that participants would like to pursue?

Mr João Rui AMARAL (Timor-Leste) presented the following written
contribution:
Timor-Leste’s Parliament has been in the centre of all major national
initiatives to promote peace and reconciliation. I will report on a
few cases that illustrate the role and the contribution of the
Parliament
CAVR - Commission for Reception, Truth and Reconciliation
First, I would like to mention the most important peace and
reconciliation initiative in the country that is the CAVR - Commission
for Reception, Truth and Reconciliation. This Commission was created
during the UN Transitional Administration and after the restoration of
independence the Parliament took over the responsibility related to
work of this Commission, which includes: (a) set up the legal
framework; (b) define the terms of reference; (c) determine the
extension of its mandate. This power to redefine the functions,
mandate and objectives of the Commission was given by the Constitution
itself, that has a section dedicated to reconciliation.
Most important is that Parliament has assumed the responsibility of
becoming the depositary of the Commission’s report and taking the lead
of the implementation of its recommendations. The report was concluded
in October 2005 and it is currently under consideration by the
standing committee which has the portfolio for justice and human
rights.
National Liberation’s Veterans Act
Another example of Parliament’s contribution to peace and stability
was the approval of the Veterans Act. With an estimate of more than
70,000 National Liberation Veterans, Timor-Leste has learnt other
countries experience about the importance of fair treatment of war
veterans for peace maintenance.
The bill was a major and decisive contribution for the fulfilment of
the State’s responsibility under section 11 of the Constitution that
provides for the acknowledgment and valuing of the all national
liberation combatants. The act recognizes and values their
contribution, through condecoration and other honours, and ensures for
the provision of material assistance for the vulnerable ones. The bill
is a very comprehensive one and was drawn upon comparative
international experiences and an extensive assessment work and broad
public consultation. Before that two Commissions created by the
President of the Republic had worked intensively, for more than two
years compiling data, assessing the situation and organizing the
veterans census. The two Commission’s report was then delivered to the
Parliament.
Commission for International Independent Inquiry on the 2006 Events
In May 2006, more than two weeks of demonstration by more than 600
military soldiers and their supporters, who have petitioned before the
Government complaining against discriminatory treatment, have ended in
violent confrontation between demonstrator and security forces that
degenerated in deadly fights throughout the capital between military
and police forces, and involving armed civilians.
After these violent events, Timor-Leste decided to request to the UN
to conduct an international independent inquiry, to identify
responsibilities, both individual and institutional, and recommend for
prosecution and institutional reforms, mainly for the security forces
and judicial institutions.
The report was delivered to the Parliament which set up a selected
committee (ad hoc committee), that has looked at the findings and
recommendations by the International Independent Inquiry Commission.
The selected committee has proposed and the Parliament has approved 17
different recommendations.
IDPs and Petitioners
As a consequence of the 2006 crisis, the capital Dili principally and
other towns were flooded by more than 120,000 IDPs (Internally
Displaced Persons). Dili alone had in its pick more than 70,000. Most
of them are currently still living in IDPs camps. The main reason for
not returning to their neighbourhoods and houses is the fear of attack
by hostile neighbours of different ethnic and/or regional origins.
There have been many programmes and initiatives to promote
reconciliation and the return of the IDPs. Many MPs have been very
actively participating in dialogue and reconciliation initiatives.
Parliament and its members share the same view with other state
institutions that the most immediate priority when we talk about peace
and stability is to solve the IDPs and Petitioners’ problem, and
because of that Parliament is increasing its contribution and
participation.
Challenges
To conclude, I would like to mention what I think are the two main
challenges for the Parliament:
1 – The need to increase our capacity to gather international
experiences and benefit from best practices in other Parliaments. We
think IPU and ASGP have a role to play;
2 – The need to envisage a process that could make parliament more
effective in following up and evaluating the progress in the
implementation of its decisions and recommendations.
gh
Mr Alain DELCAMP (France) emphasized that international relations were
a competence of the executive, but that parliaments still played a
role in this area, making ties with their counterparts, by means of
parliamentary co-operation. He then tackled the question of the
representation of society as a whole within Parliament. In this
context, bicameralism could allow the resolution of certain conflicts,
the reconciliation of legitimate differences and the representation of
contradictory interests.
Mr Douglas MILLAR (United Kingdom) discussed the role that parliaments
could play in international relations, opening up paths towards more
peaceful relations. For example, the British Parliament had played an
important calming role during the Cold War in the 1980s. When Mr
Gorbachev had still been a member of the Politburo, he had been
invited to London by the British Group of the IPU, allowing for
discussions as well as the creation of links between the two countries
at a level other than the intergovernmental. In a certain manner of
speaking, and not getting things out of proportion, Parliament had
taken on the role of Government. During the process of reconciliation
between the Republic of Ireland and the United Kingdom, links had been
established thanks to the creation of the British-Irish
Inter-Parliamentary Body. Such contacts had allowed the Parliaments to
better understand their respective positions, and had constituted an
important step in the advent of peace.
Mr R K SINGH (India) raised issues about the quality and credibility
of the leaders concerned, about informing public opinion within this
process, as well as the will of decision-makers to find solutions.
Mrs Doris Katai MWINGA (Zambia) said that the Constitution of Zambia
provided for the possibility that the Executive could declare a state
of emergency; since 1991, this declaration had had to be approved by
Parliament within fifteen days. This new provision was a great
advance. Up until 1991, Zambia had lived in a sort of permanent state
of emergency, and since that date, the Government had had to provide a
justification for the installation of this state, which brought with
it important consequences, and Parliament could bring it to an end.
Mrs Jacqueline BIESHEUVEL-VERMEIJDEN (Netherlands) added that article
100 of the Dutch constitution provided that before any Government
decision on peace-keeping operational matters, Parliament had to be
informed within the framework of a debate. Now, it was very important
for Government to have the support of Parliament on the matter. The
last debate conducted in Parliament had been about the peace-keeping
operation in Darfur.
Mr Hans BRATTESTÅ (Norway) said that the idea of “parliamentary
diplomacy” did not seem very satisfactory to him, and that it appeared
better to him to think of Parliament as a protagonist intervening in
the interests of peace. He judged, for example, that the peaceful
rebirth of the Baltic states had been made possible through the
efforts of Parliaments. When, in a tense situation, it was too early
for governments to work together, parliaments could play a role
upstream by sending parliamentary delegations. He ended by explaining
that, under the Norwegian constitution, the government could declare
war, without the agreement of Parliament, but parliamentary approval
was needed to sign a treaty.
Mr Ian HARRIS (Australia) said that the diversity of representation
allowed by bicameralism constituted a significant force. Thanks to the
existence of two chambers, all opinions could be represented.
Moreover, the Senate created a channel between local and central
authorities. He emphasized that, although declarations of war came
from the Government in the British political system, it seemed clear
that the involvement of the United Kingdom in the Iraq war would not
have been possible without the approval of the House of Commons. As
for the declaration of a state of emergency, he indicated that
Parliament’s agreement, representing civil society, seemed essential.
Mr Anders FORSBERG, President, noted that in the room colleagues were
present from countries which had known conflict. He asked about the
aid which could be provided to the parliaments of countries during and
after a conflict.
Mr Anildo DA CRUZ (Timor Leste) noted that his country was emerging
from a period of twenty-four years of conflict, and that at the end of
this phase, in 2002, it had gained its independence. At that time,
Parliament was confronted with a very difficult task, and played a
central role in promoting peace and reconciliation. A commission had
been established, along the same lines as the “Truth and
Reconciliation Commission” in South Africa, which subsequently
reported to Parliament. Parliament then put together a series of
recommendations to be implemented, in particular in the area of reform
of the judicial institutions. In 2006, there were violent incidents
between the army and the police, which led to the institution of an
international inquiry. Its report was likewise submitted to
Parliament, which subsequently adopted 17 resolutions, in particular
the strengthening of security forces. Nevertheless, the Timorese
Parliament continued to need external aid and expertise, especially in
order to implement more effectively the recommendations of the
commissions which studied the conflict, the measures recommended
having often proved difficult to apply.
Mr Oum SARITH (Cambodia) said that he shared Mr DELCAMP’s opinion on
the importance of bicameralism, which could contribute to the
establishment of peace and political stability. At the same time, as
Mr SINGH had emphasized, the role of political leaders was of the
essence. Parliament constituted a forum where politicians could hold
debates, and it played a central role in the establishment of peace
and national harmony, as the case of Cambodia illustrated, having
experienced a civil war of more than twenty years as well as a
genocidal government. He added that today, within Parliament, the
different political parties could hold debates, establish common
values on democracy, rule of law and transparency, and could
participate in the process of national reconciliation.
Mr Amjad Abdul HAMID (Iraq) noted that Iraq was still in a conflict
situation. The state of emergency was still in force, despite a
resolution of the Parliament and the Government’s will to end it. He
said that he wanted to draw on the experience of countries which had
been through similar testing situations, and he proposed that a
meeting should be organized among these countries, in order to work
together in the search for solutions and proposals. Many countries had
sent forces to Iraq, but had failed to re-establish peace. Currently,
two million Iraqis were refugees abroad, a further two million were
internally displaced, a million children were no longer in school, and
a further million were orphans. He said that he hoped to count on the
help of countries which had overcome their difficulties, and to be
able to continue to work with the ASGP.
IMPEACHMENT: still a relevant institution ? Recent changes in Norway
—
Hans Brattesta
Secretary General of the Parliament (Norway)
It is a great pleasure for me to have the opportunity to address you
all on the issue of impeachment. An institution that may be of more
theoretical than practical interest to many of us, but which is
nevertheless an interesting feature of the political and judicial
systems in many of our countries. In my communication I will give a
brief introduction to the amendments to the impeachment procedures
that we have lately carried out in Norway. I would also like to convey
some personal thoughts on the question asked in the heading of my
speech – is impeachment still a relevant institution? Couldn’t these
cases preferably be brought under the competence of the regular
courts?
I would like to start by giving you an overview of the main elements
of the Norwegian impeachment system including the recent amendments,
before addressing a couple of important issues the institution of
impeachment raises: Firstly; what – if anything – can an impeachment
system add to the parliamentary sanctions and the regular judicial
system? And secondly – what basic conditions should be met if such a
system is in fact going to work satisfactorily.
In spite of the fact that the Court of Impeachment in Norway has been
idle since 1928, the issue of impeachment has provoked a relatively
animated debate in recent years. As a result, a new impeachment system
was introduced in February last year. Even though the Court of
Impeachment as such had not been in actual session for nearly a
hundred years, the process of impeachment has been initiated on some
occasions, though this has always resulted in the charges being
dropped. However, as the supervisory role of the Parliament became –
well if not more important, at least more visible during the 1990s,
proposals to initiate an impeachment process also became more
frequent. During the last 20 years, 6 proposals to initiate an
impeachment process have been put forward by different political
parties in the Parliament. This indicates that the institution, which
was first and foremost used as a weapon in the fight for power between
the Storting and the Norwegian-Swedish King during the nineteenth
century, might be in for a renaissance.
As the Parliament’s supervisory role developed, the means and aims of
supervision became the object of increasing debate. In the year 2000 a
parliamentary working committee was set up to discuss the issue of
impeachment as part of a larger term of reference concerning the
Parliament’s supervisory work. A majority of this committee –
consisting both of judicial experts and MPs, concluded that
impeachment as a separate system had outlived itself and should be
repealed. In the Norwegian system at the time, the lower legislative
chamber of the Parliament acted as prosecutor, and the upper
legislative chamber, along with the Supreme Court judges, constituted
the judges of the Court of Impeachment. The political element of the
court held the majority, and thereby had the final say. Only crimes
committed by Cabinet Ministers, MPs or Supreme Court judges in the
line of their official duties were subject to the jurisdiction of the
Court of Impeachment. At this time - the undeniably close relationship
between the prosecution and the court was criticised as well as the
vague nature of some of the statutes on constitutional responsibility
dating back to the 1930’s. Furthermore, the procedure was claimed to
be too comprehensive, inefficient and demanding on resources. In
short, a cabinet minister could risk being prosecuted and convicted by
the votes of a majority of the Parliament for breech of an ambiguous
constitutional duty, and the case could drag on for years occupying a
large part of both the Parliament’s - and eventually - the Supreme
Court’s resources. Clearly not an ideal situation. As I’ve just said -
the committee’s solution was basically to abolish the whole system and
refer offences committed by those concerned to the regular judicial
system as is the case for all other citizens. The special
constitutional responsibility laid down in the legislation (the Act
relating to the Legal Procedure of Offences Indicted before the Court
of Impeachment) was to be replaced by the statutes in the penal code –
although with a few additions concerning breeches of fundamental
governmental duties towards the Parliament. Furthermore, a concession
to the previous system was made in that prosecution for breech of
these fundamental duties would require the consent of the Storting.
In the debate that followed in the Storting, the role of prosecutor of
constitutional, criminal offences became an important issue. This
issue was one main reason why the committee’s proposal did not get the
necessary endorsement. It was obviously important for the Storting to
retain greater political control over the impeachment process.
Moreover, the Storting was inclined to uphold the legal statutes on
constitutional responsibility. As a consequence, the Presidium was
asked to set up a new committee to review the impeachment system. An
all-party proposal to amend the Constitution as well as the Act on
Constitutional Responsibility and the Storting’s Rules of Procedure
was submitted and adopted as a result of this work.
The system adopted by the Parliament in February 2007 preserves the
institution of impeachment, but introduces some new features to make
it more efficient and legally safeguarded – especially in the
investigative phase, - reduce ambiguity in the statutes on
responsibility and last but not least – make the Court of Impeachment
more independent of the present Parliament. The Parliament in plenary
now holds the position of prosecution, while the standing Committee on
Scrutiny and Constitutional Affairs prepares the matter. If a minority
of 1/3 of the Storting so decides, an external investigative body –
the Storting’s Accountability Select Committee (“The Accountability
Commission”) – may be asked to investigate the matter and give an
opinion on the question of responsibility. This permanent body is
elected by the Parliament, and consists of external experts on penal
law, parliamentary practice and crime investigation. The committee can
not be instructed by the Parliament as to their conclusion on a
specific matter. One hopes that this body, combined with the
minority’s right to initiate investigation, will lower the threshold
for looking into potential criminal matters. It remains to be seen
however, whether this procedure will be less time-consuming than the
previous one. The Accountability Select Committee will at any rate
replace the ad hoc inquiry committees that have been appointed on
several occasions during the last twenty years to clarify matters
where impeachment has been a possible – though perhaps not a likely -
outcome. The new system also rendered the internal ad hoc
Parliamentary Committee on Constitutional Responsibility superfluous.
Perhaps a more fundamental amendment is the new composition of the
Court of Impeachment. The Court still consists of a judicial and a
political element. The judicial element consists of 5 Supreme Court
judges, while the political element is a group of 6 lay-judges elected
by the Storting for a fixed term of 6 years. These can no longer be
active representatives of the Storting. The group of lay-judges is
composed on the basis of nominations by the different party groups in
the Storting, and most of its members are former MPs. Incidentally,
“Lay-judge” is not an altogether appropriate term; these judges
represent political expertise that is regarded as desirable to the
impeachment system as the professional judges’ expertise in law. The
new court aims to strengthen the judicial element of the system and
thereby secure a fair legal process more in compliance with the human
rights principles of a fair and impartial trial.
As I mentioned earlier - the Court of Impeachment has not been
summoned since 1928, and there are few that find it likely that this
will become more frequent in the future. So why bother to have this
comprehensive apparatus in readiness for the off-chance of it being
activated once every 100 years or so? Furthermore – as you will all be
aware – the main target group of the impeachment system must be said
to be government ministers. All previous cases dealt with by the Court
of Impeachment in Norway have concerned such ministers’
responsibilities. With the development of the parliamentary system,
another – and far more effective - sanction has been introduced as the
Parliament may force a minister or a government to step down by
expressing a vote of no confidence. Moreover, the constitutional
responsibility handled by the impeachment system has always been very
limited. It only concerns offences committed in the capacity of being
a minister, judge or MP. This has been further stressed in the new
regulations, which explicitly limit the responsibility to “a breech of
a constitutional duty”. There are in fact very few offences that may
lead to impeachment – most offences committed by an MP, a minister or
a Supreme Court judge will be dealt with in the regular courts.
So – why not just write off the impeachment institution as the
anachronism it seems to be? Well – the situation is not that simple.
An increased public expectation that authorities should be answerable
to the people for their actions creates a need for sanctions. With
great power follows great responsibility. Those trusted with the power
to make vital decisions on behalf of all of us, using our common
resources in the process, must be held responsible if they abuse this
power. Our democracy relies on these individuals to manage their power
with honesty, wisdom and without undue consideration of self-interest.
It would of course be perfectly possible to refer these cases to the
regular courts. But the value of a democratic foundation on which to
base a charge and a verdict in such a case should, I think, not be
underestimated. The Parliament is the actual democratic institution
among the three state powers. By representing the people, it is
perhaps the most legitimate body to follow up on possible criminal
exploitation of power in office. Furthermore, some of the offences
that are included in the impeachment jurisdiction are of a very
particular kind – caught in the intersection between politics and
penal law. A dispute between the government and the Parliament on the
fulfilment of the government’s obligations towards the Parliament
strikes the very roots of the democratic system, and the outcome may
have implications for the constitutional life as a whole. The
parliamentary principle was in fact introduced in Norway for the first
time through a verdict by the Court of Impeachment in 1884, and this
verdict has certainly had a lasting impact on the relationship between
the government and the Parliament.
The fact that impeachment is a rare phenomenon is not in itself a
valid counter-argument. The impeachment process is after all a
criminal procedure, and the frequency of ministers, MPs or Supreme
Court judges committing crimes when executing their powers is almost
inevitably low – at least that is what we must hope. I would also like
to point out that the possibility to call for a vote of no confidence
is first and foremost a political instrument designed to tackle
political differences and crises - not criminal matters.
By having a separate court and a separate process reserved for those
who lead the top constitutional institutions, one underlines the
particular responsibility these institutions have to uphold
constitutional principles in their daily work. It is a reminder that
decisions made by the members of these institutions are made in a
constitutional framework, and that an error of judgement in these
positions is regarded as more serious than errors made by other
citizens.
That being said; it is important to acknowledge that the Court of
Impeachment is a criminal court – not a constitutional court which may
settle legal disputes between the three state powers. Consequently,
the basic principles guiding the impeachment system must be based on
the rule of law and be in compliance with the same human rights
principles as any other criminal case. This implies a need to secure
the defendant equal legal rights as other defendants – such as the
right to a lawyer and a fair trial. In our case it also led to certain
amendments being made to clarify the regulations on constitutional
responsibility, which of course is especially important when
sanctioned by penal remedies.
The impeachment system in Norway establishes a set of rules and all
necessary bodies that are needed for clearing up a possibly criminal
matter should such a matter arise. The likelihood of being the object
of an investigation is far greater than the likelihood of actually
being prosecuted and convicted. Still – even an investigation that
does not lead to a charge will clearly be a burden, and is regarded as
highly undesirable by those involved. The mere possibility of such a
process may promote more caution and awareness among those
responsible, and by that also – perhaps –more solid and well founded
decisions for the benefit of all. A lack of an efficient procedure to
make MPs, ministers or Supreme Court judges responsible for criminal
acts –be that in the form of a separate impeachment procedure or
managed by the regular judicial system – would in fact mean that our
most powerful leaders were granted immunity for their offences. Now,
in my view that is clearly not an option. Our experience from the new
system is as yet very limited, but it may appear that the intention to
lower the threshold to initiate investigations, and thereby make the
impeachment process more usable, has been achieved.
gh
Mr Edwin BELLEN (Philippines) said that in the Philippines, the
impeachment process could apply to the President, the Vice-President,
the members of the constitutional council and the Supreme Court, but
also to civil servants. Subject to their own regulations,
parliamentarians could not be impeached, but they could be suspended
or expelled. According to the Philippine constitution, the impeachment
process could be used only on limited grounds, in particular treason
or corruption. The House of Representatives had exclusive power to
initiate the impeachment process, the Senate playing the role of court
of justice, whose rulings required a two-thirds majority.
Mrs Jacqueline BIESHEUVEL-VERMEIJDEN (Netherlands) wanted to know
which crimes and misdeeds could instigate the impeachment process.
Mr Alain DELCAMP (France) noted a tendency in France to take to the
courts proceedings against politicians, ministers especially.
Following a constitutional revision, the President of the Republic
could be subject to the ordinary courts, but could not be brought
before them for the duration of his mandate. It was nevertheless a
good idea to remain vigilant in respect of this development, to ensure
that it did not turn into a step backwards, with a system in which
criminal responsibility could become a substitute for the absence of
political responsibility.
Mr Hans BRATTESTÅ said that the revision which had occurred, linked to
the development of the oversight functions of Parliament, allowed for
the use of a mechanism to provide a sanction for misdeeds of which
ministers were guilty. Nonetheless, impeachment did not constitute an
adequate sanction, and it should not give the impression that it put
an end to accusations made against a minister. Among the acts which
could give rise to the impeachment process were the violation by the
people concerned – ministers, parliamentarians, judges of the Supreme
Court – of their constitutional obligations, for example a failure in
the duty to provide information to Parliament, or the refusal to
resign after a vote of confidence. When the impeachment process was
instigated, the permanent parliamentary committee for oversight and
constitutional affairs was called. If it judged that the acts
committed did not give rise to the impeachment process, it transferred
the case to the ordinary courts.
Parliamentary relations with the media : responses to a questionnaire
—
Xavier Roques
Secretary General of the Questure of the National Assembly (France)
I first wish to thank you for your many, compact contributions which
have given me a lot of work!... When you skim through them for the
first time, you are struck by how imaginative people can be: no
Parliament appears to have the same rules; of course many similar
provisions are to be found, but with a very high number of variations
underscoring many differences, whether of the context, resources,
history or mindsets.
In this respect I’d like to say straight away that I hope I haven’t
wrongly interpreted some of your documents: indeed, further to the
difficulties of translating from one language to another there are the
differences of conceptions and of customs that can sometimes lead to
inaccuracies of understanding. Therefore, rather than painting an
exhaustive picture, I intend to shed light on the various different
practices. This will also help avoid over long and tedious lists of
examples.
I’ll address 5 issues:
*
Media access to Parliament,
*
Attendance at proceedings,
*
Press work conditions,
*
Archives,
*
Existence of parliamentary channels.
I. – MEDIA ACCESS TO PARLIAMENT
A. – Accreditation
Contradicting my initial words on diversity, it is striking to note
that practically all Parliaments have adopted the accreditation
system, except Guinea, where the National Assembly can be accessed
freely by any journalist outside the session, and Luxembourg, given
the low number of journalists. Differences appear however concerning
the procedures for issuing this accreditation, its length and the
number of accredited journalists.
1) Issuing procedures
In all the cases where this point was addressed in detail, the media
for which the journalist works – or the journalist himself – must send
an application to the assembly whose proceedings he wishes to follow
and, in general, to its press service, but sometimes the application
is sent to another authority of the assembly (for instance: in Brazil,
to the executive secretary; in Korea, to the general secretariat; or
in a few Parliaments, to the security service), various documents
having to complete this application.
The definition of the term ‘journalist’ varies considerably from one
country to another. The United Kingdom does not base itself on any
definition to examine an application and issue accreditation.
Other countries have quite a broad definition: in Germany, the
Bundestag considers as a journalist he whose main occupation it is; in
Chili, he is a professional who officially represents a media; in
Belgium, a person who writes regularly on parliamentary proceedings
and belongs to a news organisation having a column or a programme of a
political nature. In Korea, a journalist is a person attached to a
newspaper, a press agency, a television channel or a news organisation
broadcast on the Internet, or a reporter attached to a national
institution or considered as such by the secretary general.
Other Parliaments take into account the existence of an official
document: in Germany, at the Bundesrat, in Portugal, in Morocco, at
the National Assembly and the Senate in France, the term journalist is
applied to anybody with a press card; in both chambers in Italy,
persons registered in the journalists’ association professional
register; in Brazil, any person proving he has a journalism diploma or
recognised experience on his work permit.
The population covered by the definition is also more or less broad:
in Thailand, like in France, press editors are added to journalists
strictly speaking; the Canadian House of Commons also takes into
account television programme producers, researchers, cameramen and
technical employees; the Spanish Senate, Slovenian National Assembly,
and Swedish Riksdag also include technicians among journalists. The
definition by some Parliaments also encompasses any persons
participating in the production of a Web portal (Korea, Poland).
The decision is taken, in most cases, by the administrative authority
(secretary general, press service, security service), but exceptions
can be observed and the intervention of other players, especially the
press itself. In effect, roughly half the Parliaments which answered
the questionnaire mentioned the existence of an association of
parliamentary journalists (with no financial or administrative ties to
the assembly), which, in most cases, participates in the accreditation
award process. At the National Assembly and Senate in France,
accreditations are issued by a committee made up either of deputies or
of senators and press representatives members of the parliamentary
press association; in Norway, the parliamentary journalists’
association proposes names to the security bureau which then issues
accreditation; in Brazil, accreditation is issued with a statement by
the press committee; in Canada, members of the press gallery meet to
examine accreditation applications; at the Italian Chamber of
Deputies, the parliamentary press association grants permanent
accreditations. Apparently, France and Morocco are the only countries
where parliamentarians intervene in the accreditation procedure.
2) Length of accreditation
The length of accreditations is relatively standard. All Parliaments
issue long or so-called permanent accreditations: for the session
(India, WEU, Romanian Chamber of Deputies), but above all annual
(German Bundesrat, Morocco, Poland, Norway, France, Portugal, Canada);
or for two years (Thailand, Brazil, Korea, Sweden); or even for the
length of the legislature (Bundesrat, Belgium, Spanish Senate). Almost
all parliaments also issue authorisations for specific events for a
day or for the length of the given event.
3) Number of accredited journalists
The number of accredited journalists also varies greatly. A number of
Parliaments issue accreditation to a few hundred journalists:
approximately 300 at the UK House of Commons and at the French
National Assembly; 200 in Morocco; nearly 100 at the French Senate and
at the Belgian Chamber of Representatives; 336 at the Brazilian
Chamber of Deputies; 425 at the Canadian House of Commons; 330 in
India; 270 in Norway; 400 approximately in each of the two Italian
chambers; 750 in Slovenia; but there are more than 11,000 at the
Japanese Diet; 3,800 approximately at the Spanish Senate; nearly 1,200
in Poland and as many in Sweden. Conversely, there are only thirty or
so in Chili, 35 in Portugal and 70 in Greece.
On the face of it, it may well appear surprising that these figures
are not always proportional to the population of a country; one of the
explanations resides in the fact that technicians are, we have seen,
accredited like journalists at some Parliaments, for instance in
Slovenia and Spain, but not at others.
The breakdown among media is not the same. At approximately half the
Parliaments, accreditations concern predominantly the written press
(Brazil, Italy, Canada, Switzerland, Ukraine, Korea, Morocco,
Portugal, France); at others, the television channel press dominates
(Spanish Senate, both Romanian chambers, Lithuania); lastly, at a
third group, no clear pre-eminence can be seen between the various
types of press – written, television, radio; this is the case in
particular in Poland, Portugal, Belgium Thailand and Chili. When the
television channel press is higher, this can be ascribed, once gain,
to the fact that technicians are counted among those accredited.
B – Access in practice
1) Access restrictions
There aren’t many Parliaments where journalists, even accredited, can
circulate freely in all the Parliament building: mention can be made
of Guinea, the Bundesrat, Lithuania, Morocco, Poland, the Romanian
Senate, PACE, Japan and Estonia. Yet it must be underscored that in
nearly all these countries, journalists cannot access the hemicycle
itself, but the press gallery or a precisely limited part of the
hemicycle. Other Parliaments are almost as ‘liberal’: in Korea, all
the building can be accessed, except committees sitting in camera; in
Monaco, access is unrestricted throughout sessions. Portugal alone
states that journalists can stay in the premises two hours after the
end of the sitting.
In the great majority of Parliaments, access to some areas is subject
to authorisation. Some Parliaments give a ‘positive’ definition of the
places where journalists are admitted, thereby indicating that all
other places are subject to authorisation: they can access places of a
public nature (for instance, in Belgium, the entrance hall, the
conference hall, the reading room, and corridors next to the sittings
hall); the places where parliamentary activity takes place (Romanian
Chamber of Deputies); and common areas (Norway). It appears that, in
these cases, they are approximately the same areas. Conversely, other
assemblies do not mention the authorised places but those that are the
subject of restrictions such as the offices and areas reserved for the
Speaker, parliamentarians, political groups and personnel (Belgium,
Brazil, Italian parliament, Portugal, Romanian Chamber of Deputies,
Sweden, France), or areas where services are provided to
parliamentarians and the administrative personnel, like restaurants
and cafeterias (Canada, Belgium).
Other places are forbidden to journalists (without any authorisation
possible) and we find the same classification: the offices (in Poland,
those of the Speaker and of committee chairmen; in Monaco, that of the
Speaker; at the Spanish Senate, those of the Bureau); the places of
services (in France, access to the bar and restaurants is forbidden,
while in Norway filming and taking photos in the cafeteria is banned);
places protected by a code card (Estonia). At the National Assembly,
in France, a large area is banned comprising various rooms around the
hemicycle, called in our jargon the ‘sacred perimeter’ in order to
preserve peace and quiet for the deputies who insist on this point. On
the contrary, at a few parliaments, no place is totally forbidden and
authorisation can always be applied for: Guinea, Chili, Japan,
Lithuania, Romanian Senate, PACE.
Other parliaments, lastly, have adopted very strict rules: in
Luxembourg, journalists can access only the press gallery and the
press bar.
2) Power to fix these restrictions
This power is held either by the political authority or by the
administration. In the first case, the political authority, it can be
the Speaker (Poland, Portugal, Belgium, France), the Bureau
(Luxembourg), the College of Quaestors (Italian Senate, France), the
Chairmen’s Conference (Belgium). At the UK House of Commons, the
decision is taken by the Administration Committee composed of MPs.
In the second case, the administration, the decision belongs to the
secretary general (Slovenia, Thailand, India), the bureau of directors
(Brazil), or the administrative departments (Monaco). Other
parliaments mention the existence of instruments: at the Bundestag
there are regulations for access to the buildings, and at the Swedish
Riksdag the administration has set directives.
II. – ATENDANCE AT PROCEEDINGS
A. – Plenary sitting
All journalists can attend the plenary sitting, at least as long as
they aren’t photographers.
A distinction should indeed be made between the rules applying to
written press journalists and those to audiovisual media and
photographers.
1) Written press journalists
Written press journalists attend the plenary sitting from the press
gallery reserved for them; in no case, apparently, can they enter the
hemicycle itself, apart from at the Brazilian Chamber of Deputies,
where however a special area in the hemicycle is reserved for them,
which amounts to the same in fact. It can be seen that, in some cases,
journalists not going to the hemicycle can watch the sitting on a
screen in the press room: this is the case at the WEU. In Iraq, the
situation is slightly different: journalists can follow the sitting
only on the screen in the press room. I also suppose that in many
Parliaments an internal television circuit allows the sitting to be
watched in many places, including the corridors, even if this was not
specified in the answers.
2) Television channel journalists
At some Parliaments, television channels do not as a rule film the
public sitting, as it is already filmed by a general secretariat
department (whereas in other countries the teams cohabit). In Canada,
at the House of Commons, the debates are televised via a parliamentary
television network (closed circuit) and the images are transmitted to
all television broadcasters whereas, at the Senate, channels can
access only by invitation some special events in the hemicycle, such
as the Speech from the Throne. In Portugal, TV channels are not
authorised to film the sitting itself, since they are fed by the
parliamentary channel. However, it appears that one camera per
operator can film its journalist or film briefly from the press
gallery. Similarly, in Slovenia and Luxembourg, the sittings are
filmed by an assembly department and the signal broadcast free of
charge to TV channels. In Italy, in both chambers, channels can film
sittings from the gallery after being authorised; on the other hand
the public television channel must do so on request by the Speaker; at
the Chamber of Deputies it must systematically film Question Time. In
Switzerland, the sitting is recorded exclusively by an external
operator, the Société suisse de radiodiffusion et de télévision. At
the Spanish Senate, channels may film only at the beginning of the
sitting.
It should also be mentioned that, at some Parliaments, the sitting may
be held in camera, which obviously excludes the presence of the press
(Korea, Lithuania, Poland).
When they are allowed to film the sitting, the usual place of TV
channels, at the great majority of Parliaments, is in the press
gallery, from where they can film (United Kingdom, Thailand,
Bundestag, Belgium, Estonia, Japan, Korea, India, Lithuania, Greece,
Portugal, Sweden…). However some cameramen can film in the sitting
hall itself: this is the case at the Bundestag (only cameramen with
equipment with a tripod); at the Senate in France (only for brief
filming); at the Romanian Chamber of Deputies; at the PACE; and in
Brazil.
Not all the answers specify whether all channels can access the public
sitting; the Brazilian Chamber of Deputies, like the Korean Assembly,
stated there was no limit on the number of television teams; as for
France (at the Assembly and the Senate) all channels can film the
sitting, except the questions to the government sitting, highly
prized, where there would be too much of a crowd, which led to the
decision that only one channel (public) could film, in addition to the
Assembly audiovisual department which, for its part, records all the
sittings; this department moreover broadcasts free of charge these
images, by fibre, to any TV channel asking for them. At the Bundesrat,
for security reasons, it can be decided that only one public channel
and one private channel can film and that they are to distribute their
filming to their colleagues. In India, the central government official
television channel can alone film the debates; private channel
correspondents can simply take notes in the press gallery. In Iraq,
only the Al-Iraqia TV channel records debates live; the other channels
are not admitted but can contact the assembly communications
department.
3) Photographers
The solutions differ even more for photographers for whom access to
the sitting is less generalised. In effect, in India, they are not
authorised to cover proceedings in the chamber; at the British House
of Commons, no photographer is admitted during the debates; in Norway,
they can take photos only before the sitting. In Canada, the number of
agencies is limited (only two) and they can operate only during the
questions to the House of Commons sitting and in very precise and
infrequent circumstances at the Senate (for instance, the Speech from
the Throne). Further examples: in Belgium, they are not accredited on
a permanent basis but on the occasion of a specific event; at the
Bundesrat, it can be decided that only three photographers shall
operate (the first, belonging to an agency; the second, a member of
the federal press conference; and the third, a freelance), it being
their responsibility to mutualise their work with their colleagues.
On the other hand, some Parliaments are far more ‘liberal’: at the
Spanish Senate, photographers have a certain freedom of movement at
the beginning of public sittings and, in Luxembourg, photographers can
access the hemicycle at the beginning of the sitting before returning
to the gallery from where they can take photos any time.
B. – Committee meetings
The attendance of journalists at committee meetings is far less
systematic. Sometimes it is not planned: they are never present at
these meetings in Chili, at the Bundesrat, in India, Monaco,
Switzerland, Iraq and at the WEU.
In some cases, their attendance is possible, whenever the meetings are
public: in the United Kingdom, Germany Belgium, Brazil, Canada in both
chambers, Korea, Lithuania, Poland, Romania in both chambers,
Slovenia, and in the Italian Chamber of Deputies (where, however,
journalists do not attend committee meetings but follow them on the
internal television circuit). Additional help is provided to the media
in Portugal where the instruments debated and the speeches pronounced
in committees are distributed to them.
The sittings appear even more accessible at the Spanish Senate where
their presence is always possible, and in Korea where journalists are
systematically present.
Lastly, in other countries, journalists can be present for some types
of meetings only: in Thailand, they must obtain an authorisation, and
the same applies in Estonia; at the Italian Senate, committee
proceedings are public only in the event of a drafting or debate
procedure and for hearings, which journalists can find out about
exclusively via the internal circuit.
The German Bundestag has adopted an original solution: journalists do
not attend meetings not open to the public, except for the newspaper
Das Parlament, published by the institution, which reports on
committee proceedings. This procedure appears quite close to that
which we follow in France, at the National Assembly, where press
service officials attend meetings not open to journalists and report
orally and immediately on them at the end of the press meeting. I have
learnt that the British House of Commons has also adopted this
approach, but with media specialists.
As is the case for the public sitting, some Parliaments do not accept
the presence of cameras even when meetings are public (in Italy and at
the Romanian Chamber of Deputies they are recorded only by the
internal circuit; they cannot be filmed in Portugal if the
parliamentary channel films them; in Slovenia, if the competent
assembly department does the filming).
C. – Occasional filming
As for occasional filming in the corridors or various rooms, it is
usually the subject of specific authorisations, except in Ukraine,
Switzerland and Chili. These authorisations are granted by the press
bureau (Bundesrat, Belgium, both Italian chambers…); by the secretary
general (Romanian Chamber of Deputies); or by the political
authorities (Belgium, Canada, France). Filming in offices must
generally be authorised by their occupant.
III. – JOURNALISTS’ WORK CONDITIONS
A. – Press rooms
In the very great majority of cases, journalists have press rooms to
work in. These are sometimes reserved for accredited ones alone
(Belgium, Italian Chamber of Deputies, Switzerland, PACE); in other
cases, separate places are assigned to accredited ones and to other
journalists (Brazil, Canada, Korea); but most answers do not specify
this.
A great number of Parliaments have provided them with the necessary
equipment for their work: office supplies, computers, telephones, fax
machines, Internet access, wifi: apart from a few variations, the
assemblies supplying such equipment provide the same services. In
Switzerland, moreover, journalists enjoy reductions on their phone
costs; in Luxembourg, studios are made available to radio stations and
the national television channel.
However, some Parliaments do not supply any equipment: the Bundesrat,
the Japanese Diet; the UK House of Commons provides only limited phone
facilities and systems broadcasting information on debates taking
place in both chambers; in all these cases, it lies with media to
bring their own equipment. The French National Assembly represents an
intermediary category, basic equipment being provided, as well as
radio booths, but not data processing equipment.
These rooms are sometimes used for press conferences (Thailand, Japan,
Poland, Ukraine, PACE, Slovenia). In these Parliaments, these
conferences can also take place in other rooms, such as committee or
meeting rooms and in areas near the hemicycle. In many Parliaments,
special rooms are provided for press conferences (in the United
Kingdom, Chili, both Canadian chambers and both Italian chambers,
Korea, Lithuania, Portugal, the Romanian Chamber of Deputies,
Sweden...). In still other cases, press conferences are not held in
the press room, and there is no specific room: any other solution is
then adopted; the sitting hall itself can be used (Luxembourg).
As for interviews, there is no general rule: they can take place
around the sitting hall, in the press room, in the offices of
parliamentarians, and in various other rooms. The solutions appear to
be pragmatic depending on available space and the layout of the
premises.
Ties with press agencies are of two types: a number of accredited
journalists work for agencies (Bundesrat, Thailand, Belgium, Canada,
Spain, Norway, Portugal, Romania, Sweden, Ukraine PACE, France….).
Also, journalists present in Parliament can consult press agency
dispatches: Italy, Switzerland, France....
B. – Press service and press attachés
1) Press service
Let’s begin by what’s most simple in this complicated subject: all
Parliaments have a press service (dubbed a variety of names), which is
part of the general secretariat. It would be too long to enter into
all the nuances of its role but I feel I can simplify as its tasks
appear so similar: it ensures good relations between Parliament and
the press; informs the latter by providing it with information on the
legislative procedure, on the institutional aspects of the assembly,
on the agendas, the ceremonies and specific visits; organises press
conferences, drafts institutional press communiqués and manages or
monitors the parliamentary channel when there is one. In some cases,
it also takes charge of parliamentary publications, of its Internet
site, and of exhibitions. However, this may not be the case, this
distinction simply showing a different sharing of tasks between
departments. The press bureau therefore generally has two remits:
building press awareness of the assembly and ensuring that the press
works in good conditions. As summarised well by the Bundesrat, it is
the door through which the Bundesrat communicates with the public and
conversely. It should also be recalled that most press services, as we
have seen, deal with accreditation applications.
2) Communication by parliamentary authorities
We have referred to institutional communication; the communication
methods of parliamentary authorities are far more disparate. While the
Speaker has, in some cases, his own press attaché (India, Korea,
Morocco, Portugal, Canada, Spain, Romanian Senate), or spokesperson
(Sweden, Ukraine, Italian Chamber of Deputies), in others, his
communication is taken care of by the press service, in addition to
the previously mentioned remits: Guinea, Belgium, Canada, PACE,
Bundesrat, Monaco, Switzerland, Greece, the various solutions not
necessarily excluding one another. The terminology employed does not
make it easy to determine, in some cases, the type of help the speaker
uses.
The solutions adopted are also quite varied regarding committees
which, in the same manner, may have their own logistics or call on the
assembly press service. In the first case, we find for instance
Thailand, Brazil, Italy, Lithuania, and the Romanian Senate; in the
second, mention can be made of the Canadian Senate, Luxembourg, PACE,
the Bundesrat, Greece and Sweden.
The situation adopted by Brazil is very clear: the chamber press
service is tasked only with institutional issues; each deputy, party
or committee can call on a press attaché. Conversely, the Canadian
Senate press service provides support at the same time to the speaker,
the various committees and the administration. In a number of other
Parliaments, the situation is not so clear-cut: the press service may
take charge of the communication of an authority but not of another,
and there may be duplication between the press service and the
attachés of the various authorities or bodies.
3) Existence of an assembly spokesperson
The answers are also varied regarding the existence of a spokesperson:
approximately half answered no, and the other half yes.
Among those which answered ‘no’ appear Guinea, Chili, Korea, Japan,
Monaco, India, Lithuania, Luxembourg, Morocco, Norway, Portugal, the
Romanian Chamber of Deputies, Slovenia, Sweden, Ukraine, PACE, Iraq,
and France for both chambers.
Those which answered ‘yes’ can be split into two groups. For some of
them, the spokesperson is an official or a member of the personnel: in
Thailand (a parliamentary executive appointed by the speaker); in both
German chambers; both Italian chambers (the press bureau director); in
Switzerland; as underscored by the Bundesrat, the spokesperson must be
politically neutral. For others, the spokesperson is a parliamentarian:
at the Canadian House of Commons, the Board of Internal Economy
(composed of parliamentarians) appoints two parliamentarians as
spokespersons, one for the party in power and the other for the
opposition; at the Senate of the same country, the chairman and
vice-chairman of the Board of Internal Economy act as spokespersons
for financial or administrative issues. At the Spanish Senate, the
first vice-president explains the Bureau’s decisions, parliamentary
procedure and any other issue of interest to the press; although he is
a parliamentarian, his position is always institutional. I will finish
these press service and parliamentary attaché matters with two remarks
that are far more standard: group communication and that of
parliamentarians (can we call them ‘grassroots’?).
4) Communication by groups and parliamentarians
In the very great majority of cases, or even in all cases, political
groups have their own press attachés.
As for communication by the parliamentarian, either he deals with it
himself (Chili, Belgium, Italian Chamber of Deputies, India,
Lithuania), or he turns to his group (both Spanish chambers, Norway,
Portugal, Romania), or to the press service (Canadian House of
Commons, Monaco, Sweden, Korea, Switzerland) which provides him with
material aid (rooms, computers, phones, fax machines), and some of
them even provide intellectual and logistic aid (drafting and
distribution of communiqués).
IV – ARCHIVES
Very few parliaments do not have audiovisual archives (Chili, India
where this matter is under study); as for the WEU, it has only sound
archives.
A. – Recording of archives
Archives are often recorded by a general secretariat department
(Bundesrat, Thailand, Brazil, Canadian Senate, Italian Chamber of
Deputies, Korea, Spanish Senate, Estonia, Japan, Lithuania, Greece,
both Romanian chambers, PACE...). A few assemblies call on an external
provider of services (in the United Kingdom and at the Italian Senate,
an independent production company; in Belgium, a private production
company under contract with the chamber; in Switzerland, the Société
suisse de radiodiffusion et télévision). Luxembourg has adopted a
mixed solution: recording is taken care of by a chamber official
assisted by a technician from an external company.
A few answers concerned the preservation of archives, most often taken
care of by the assembly, but sometimes by an external body: in Canada
by the Archives canadiennes; in Norway, by an external producer.
B. – Content of archives
Archives concern the public sitting in all cases, and sometimes, only
that (Guinea, Bundesrat, Belgium, Estonia, Luxembourg, Slovenia,
Switzerland, WEU).
Other countries extend them to committee sittings, or even to other
events. For instance, the Bundestag archives contain, in addition to
recordings of the public sitting, those of public committee meetings
and of hearings, the assemblies tasked with electing the Federal
President since 1949, and ceremonies and special events taking place
at the Bundestag; the archives of the Japanese Diet include recordings
of interparliamentary meetings; and those of Monaco, formal
receptions. Archives do not always contain all committee meetings, but
only some of them, for example hearings (Thailand, Italian Chamber of
Deputies, Norway, Sweden), or meetings recorded on request by the
committee (Portugal, Italian Senate, Lithuania...) or those open to
the press (France).
C. – Consultation of archives
The methods of consulting archives are also very varied. Archives are
sometimes very widely accessible; this is increasingly so as, in an
increasing number of cases, they can be consulted on the parliamentary
Internet site (at the Bundesrat, UK House of Commons, both Canadian
chambers, Korea, Spanish Senate, Japanese Diet, National Council of
Monaco, in Sweden, at the National Assembly in France, and in other
countries, I believe, although they have not mentioned the fact).
Archives are also available for all, without any justification, at the
archives department, at many Parliaments (in Thailand, Guinea, at the
Canadian Senate, Estonia, Lithuania, Portugal, Slovenia, PACE...); in
the United Kingdom, copies of cassettes are available for MPs and the
public in the most modern formats. Archives can sometimes be
consulted, not at the assembly, but at the national audiovisual centre
(Luxembourg).
At other assemblies, they are available only on request: in Brazil,
you merely have to bring along a CD and send a formal request to the
department. At the Bundestag, they must be ordered. At the Romanian
Chamber of Deputies, the approval of the secretary general is
required. At the Canadian Senate, justification should be produced.
There exists a variation in Germany, at the Bundesrat, where apart
from their consultation on the Internet, they can be made available on
a recording medium supplied free of charge, for anyone proving a
‘plausible interest’.
In still other cases, they are not available to the general public: at
the Italian Senate, groups and senators as well as information bodies
can ask for recordings; the archives of the Japanese Diet are reserved
for parliamentarians and members of the secretariat; at the Spanish
Senate, copies are made for senators, journalists and participants in
committee meetings; in Greece, copies are made on request by
parliamentarians, some interests groups and some sections of the
public.
Most often they can be consulted straight away: in Poland, however,
they can be consulted only 30 days after their production except for
an authorisation from the head of chancery.
Television channels also use archives: images are apparently given
free of charge to channels in all cases: in Japan, channels must have
concluded an agreement along these lines with the Diet.
Whatever the public, archives can be consulted or are given free of
charge in the majority of cases. However, the British House of Commons
charges a fee to all commercial users - the fee is minimal for
charities, MPs, and those requesting them for their personal use; in
France, a fee is charged to cover the costs of copying on to a DVD;
the same applies for any archives order at the Bundestag; in Poland
there is a fee for any copy, whereas consultation alone is free of
charge; any order is charged to Spanish senators; the Swedish Riksdag
sells them at a low cost to all sections of the public.
V. – PARLIAMENTARY CHANNEL
20 assemblies out of 32 stated they have a parliamentary channel;
these positive answers, in this field as in most of the others, cover
very differing actual situations.
A. – Legal status
In the great majority of cases (13 cases: Thailand, Bundestag, Brazil,
Canadian House of Commons, both Italian chambers, Korea, Spanish
Senate, Greece, Japanese Diet, Luxembourg, Portugal, Sweden), it is a
channel that is part of said assembly, without its own personality,
whereas in other cases (3 cases: Chili, Ukraine, France), it is an
independent external operator acting on behalf of the assembly.
Still one more category should be added - participation in an already
existing channel, according to a variety of procedures: in India, the
upper chamber has an exclusive channel on the national Indian channel
to broadcast its proceedings live, only during the session; in
Slovenia, assembly broadcasts also represent a national television
programme; the Lithuanian Seimas has a television programme prepared
by journalists working for it under contract; and a Canadian Senate
department films the debates which are then broadcast on CPAC, a
public affairs channel, yet a private broadcasting service without
adverts and not-for-profit, founded in 1992 by a consortium of
broadcasters and supplied by service distributors by cable and
satellite to 9.5 million households.
B. – Management bodies
Differences in legal status have a direct incidence on the management
bodies. A channel without its own personality generally comes under
the press service, and sometimes directly the secretary general. In
Thailand, the manager of the television station reports to the
parliamentarian in charge of public relations and to the secretary
general. In Brazil, he works under the orders of a director. At the
Italian Chamber of Deputies, the management post is held by the head
of the press bureau, pursuant to the guidelines laid down by the
committee for external communication and information, composed of
parliamentarians and the secretary general. In Luxembourg, the channel
is placed under the authority of the Bureau. In Portugal, there is a
board of directors composed of one parliamentarian per group which
takes the main decisions, the assembly Speaker supervising.
As for channels with a legal personality, the French parliamentary
channel is subdivided into two channels (one for the National Assembly
and the other for the Senate) which each has the status of a public
company of a specific type since its only shareholder is the Assembly
on the one hand and the Senate on the other – each chairman is
appointed by the Bureau of the corresponding assembly for three years
renewable and the channels have a board of directors comprising one
deputy per group and the chairman of the Bureau delegation for
communication. In Ukraine, the channel director is appointed by the
Speaker of the chamber.
Lastly, as for channels ‘taken in’ by another channel, at the Canadian
Senate, CPAC’s board of directors is made up of cable industry
representatives who guide the overall direction of the channel; its
day-to-day management is a matter for the channel’s personnel; in
Slovenia, the management bodies are those of the national channel.
C. – Resources
1) Personnel
The resources of parliamentary channels also differ very greatly.
Channels which do not have their own personality generally use the
resources made available to them by the assembly which they come
under. Some channels, like the Italian Senate’s, do not have their own
personnel. At the Italian Chamber of Deputy’s channel, coordination of
organisational activities is carried out by a parliamentary
councillor, the structures used are those of the internal television
department, while the press bureau takes care of administrative
matters; however three external consultants participate in technical
work. An original solution, the Spanish Senate, has signed an
agreement with university which contributes to producing the channel
by providing the human resources. On the other hand, in Brazil,
although the channel does not have its own personality, it employs 150
people in addition to the parliamentary personnel. It is to be
observed that, among the non autonomous channels, a few have their own
journalists (Thailand, Brazil).
Autonomous channels have their own personnel; in France, the situation
differs slightly from one chamber to another: no official is made
available to the National Assembly channel, whereas two Senate
officials are available to the channel belonging to it. These channels
also have their team of journalists (Chili, France, Ukraine).
2) Equipment
Another sign of the absence of autonomy, these channels also operate
most often with the assembly’s equipment. The latter makes available
to the channel, depending on the case, editing equipment, cameras, a
control room, a post production room, and a studio (Thailand,
Luxembourg, Portugal). The Slovenian parliamentary channel uses the
national television equipment. On the other hand, the French National
Assembly parliamentary channel operates with its own technical
resources, apart from the studio set up in the precincts of the
Assembly, which is aimed at recording interviews of deputies on their
way out of the hemicycle.
On the other hand, it is often a chamber department which records the
debates (Canadian and Spanish Senate, Italian Chamber of Deputies,
Slovenia, and French National Assembly, although, in the latter case,
the channel has it own personality).
3) Budgets
Their financial resources are also very disparate. The budget of non
autonomous channels is included in that of the assembly which they
come under; they apparently cost less, since their resources are
mutualised with those of the assembly, and their structures are more
modest. Among the figures I have gathered, mention can be made of 1.5
M€ for that of the Italian Chamber of Deputies, 0.5 M€ for that of
Luxembourg, 2.4 M€ for that of the Japanese Diet, 4.3 M€ for that of
the Brazilian Chamber of Deputies (without wages), and 5.4 M€ for that
of Korea; the cost of the French National Assembly’s channel, which is
autonomous, is on an entirely different scale, since its budget
amounts to 12.7M€; that of the Senate’s channel is similar.
D. – Programmes
What do these channels broadcast? All broadcast sitting debates, to
the exclusion of any other programme for the Italian and Spanish
Senates. Others also broadcast committee meetings but never or rarely
in full (Thailand, Korea, Canada, Portugal, Ukraine, France, Greece),
events taking place in Parliament (Thailand, Brazil, Korea, Portugal,
Ukraine, Italian Chamber of Deputies, Greece…), and educational or
information programmes, documentaries (Brazil, Korea, Luxembourg,
Portugal, Ukraine, France, Greece…). All in all, some channels
describe themselves as a parliamentary channel (both Italian channels,
the Spanish Senate, Luxembourg, Portugal, Slovenia), others as
parliamentary and civic (Ukraine, Korea), others as parliamentary and
political (Canadian Senate), and as an information channel (Brazil);
the Thai channel is at one and the same time parliamentary, civic and
political, like the French channel.
As for the number of broadcasting hours, I do not have figures for all
channels. Some broadcast all round the clock (Brazil, Canadian Senate,
France for both chambers); I also find it difficult to make
comparisons as the figures given are sometimes daily, weekly, or
annual: the majority broadcast a lot (2,500 hours per year in Japan,
1,100 at the Italian Chamber of Deputies, 112 hours per week in Korea,
105 hours per week in Greece, 14 hours per day in Ukraine); the
Slovenian channel broadcasts 3 or 4 hours per working day.
I wish to add that in the event of bicameralism, there is one channel
per chamber in Chili, Brazil, France (but they share the same
frequency), Italy, Spain, India (the lower chamber channel belongs to
it, whereas the upper chamber channel is part of the national
television company).
To finish, I wish to remark that the way of viewing the topic of
parliamentary channels will necessarily be profoundly changed in
future years by the technical evolutions already under way: Internet
and digital terrestrial television (DTT).
gh
Mr David BEAMISH (United Kingdom) stated that this presentation had a
particular currency in the United Kingdom, as the British Parliament
was seeking to improve its communications with the public, a subject
which had been the focus of a recent study published by the Hansard
Society. He asked about the possibility of having a parliamentary
spokesperson, who could, for example, react to criticism. More
generally, parliamentarians wanted their work to be the object of
greater publicity in the media, with balanced coverage, instead of
concentrating only on difficulties that could arise. He added that the
British Parliament had developed the broadcasting of its activities
both on the parliamentary channel, and also increasingly on the
internet, with live and archived broadcasts of debates in the Chamber
and in committee.
Mr Xavier ROQUES (France) said that the media were indeed interested
more in difficulties and conflict than in work that was going well.
This necessarily led to a false impression of debates, and was not
very healthy for parliamentarians. It was from this that the idea
arose that issues of communication promoted the development of an
anti-parliamentary attitude. He thought that the introduction of a
spokesperson for the National Assembly did not seem a good idea to
him, taking account of the differences that existed between each part
of the Assembly: it was for the political groups and parties to
provide communications activities. Having said that, it was often the
comments of the more heterodox parliamentarians that were taken up by
the media. Finally, he noted a discernible evolution in debates in
committee. Whereas, previously, Members had shown the desire to work
in private, they had recently been increasingly demanding that their
debates should be open to the media.
Promotion of exchanges between parliamentary secretariats in the
global era
—
Tae-Rang Kim
Secretary General of the National Assembly (Republic of Korea)
I. Introduction
It is a great privilege that I have this opportunity to give my
presentation for the fourth time at ASGP. As some of you remember, I
presented on the development and role of NATV in October 2006 and on
art and culture events for an open National Assembly in spring last
year. I still appreciate your interests and support for my previous
communications.
My latest communication, which was about service programs of the
Korean National Assembly Secretariat to the public, also spurred
lively discussions and I was pleased to share views on the evolving
role of parliament secretariats with my colleagues from ten or so
countries including Australia, the Netherlands, and Maldives.
The idea was based on my philosophy and belief that the
administration, legislation and justice should enhance the living
standard of the people through healthy competition and cooperation,
rather than rigidly sticking to the traditional concept of power
separation built on the principle of check and balance.
And today, I would like to introduce our efforts to increase exchanges
between parliamentary secretariats as a basis for parliamentary
diplomacy in this globalized world.
National diplomacy is important, however, it often exposes its limit
because of rigid formality in communication channels and procedures.
In contrast, parliamentarians can build flexible personal network on
various occasions and discuss issues in a more practical way.
A case in point is the ties between parliaments of Korea and South
Africa. I visited South Africa in May 2007 and had a chance to
exchange views on parliamentary cooperation with Hon. Butana Komphela,
the Chairman of Sports Committee of the South African parliament.
After I got back, I invited him and seven South African
parliamentarians to Seoul in August when Korea could share its
experiences of hosting the World Cup soccer games with South Africa,
which will host the international event in 2010 and discuss what we
can do for the future cooperation in the international community.
Exchanges between parliamentary secretariats get more significance in
parliamentary diplomacy. Secretariats have expertise in supporting
inter-parliamentary diplomacy and professionals working there don’t
change even when parliamentarians come and go after elections.
Therefore, they can provide a complement for areas possibly uncovered
by parliamentary diplomacy due to various reasons.
In this vein, the Korean National Assembly Secretariat considered the
ASGP as one of the best chance for inter-secretariat exchanges. We
took the advantage of this meeting by inviting secretary generals to
Korea, discussing mutual visits and concluding protocols on
cooperation. The systematic and consistent efforts played a role in
increasing cooperation between countries. It is very meaningful
because, if well supported, the cooperation could eventually lead to
peace and reconciliation of the international community.
II. ASGP, the best opportunity for exchanges
Now we are here at the ASGP to share our experiences and knowledge
about parliaments and our works as well as strengthen friendships.
Looking back my previous experiences at the ASGP, where my colleagues
from different cultures and histories communicated with each other
with an open mind, I’m convinced that this is the best place for
inter-secretariat exchanges. Yes. This gathering offers the best and
largest chance to promote inter-secretariat cooperation.
I’ll be honored if my communication today would, big or small,
contribute to facilitating effective inter-secretariat exchanges. The
Korean National Assembly Secretariat will be committed to such efforts
for a long time to come. This meeting isn’t just a gathering of
secretary generals. Bilateral and multilateral exchanges could be
discussed and arranged during this precious opportunity.
For example, I concluded the protocols on cooperation with secretary
general Martinenko of the Georgian parliament and secretary general
Carvalho of the Portuguese National Assembly during previous ASGP thus
building personal networks and laying the foundation for further
exchanges with CIS and Mediterranean countries.
III. Cooperation protocols and mutual exchanges with foreign
secretariats
The Korean National Assembly Secretariat has concluded protocols on
cooperation with many other countries and arranged mutual visits.
As I mentioned in my previous communication, I visited Poland in 2006,
Maxico in March 2007, Kenya in May, and Chile in earlier this year to
sign up Protocols on Cooperation for Information Exchanges which will
let us go along with the tide of globalization.
Cooperation Protocols provide frameworks for exchanges of personnel,
legislative know-how, and collaboration in international organizations
such as the IPU and the ASGP. In a nutshell, Cooperation Protocols are
about commitment to increase in bilateral cooperation.
To make the commitment a reality, I invited the secretary generals who
concluded the protocols with us to Korea to elevate
inter-parliamentary friendship and ties to another level.
For example, Ms. Fidelus Ninkiewicz, Secretary General of the Sejm of
Poland visited Korea in March 2007 while Mr. Ndindiri, Secretary
General of the Kenyan parliament came to Korea in September last year.
The visits offered an opportunity not only to share views on mutual
collaboration but also on Korea’s experience in incorporating ICT in
parliamentary procedures and developing parliamentary institution.
In the meantime, I visited Argentina and Uruguay in January 2008 to
have meetings on cooperation protocols with Mr. Cora, Deputy Secretary
General of the Chamber of Deputies of Argentina and Mr. Dalgalarrondo,
Secretary General of the Chamber of Deputies of Uruguay and agreed on
the need to conclude them. Also, I had a privilege to meet the Hon.
Alberto Perdomo, the Speaker of the lower house of Uruguay to discuss
bilateral issues which led to a new cooperation protocol with Uruguay
parliamentary secretariat we have signed yesterday in here.
So far, Korea inked cooperation protocols with Poland, Mexico, Kenya,
Portugal, Georgia, Chile and Cambodia. I’m also planning to fly to
Peru, Venezuela, and Colombia after this meeting in search for
opportunities of future cooperation. If any of the colleagues gathered
in this room is interested in cooperating with the Korean National
Assembly Secretariat, I’ll be very happy to discuss it anytime,
anywhere and be your true partner in this globalized world.
IV. Inter-secretariat exchanges as a facilitator for
inter-parliamentary diplomacy
As you might already know, inter-secretariat exchanges offer a basis
for comprehensive and systematic inter-parliamentary diplomacy.
When Ms. Fidelus Ninkiewicz of Poland visited Seoul in March 2007, we
worked together to arrange the visit of the Speaker of the Sejm of
Poland to Korea which in turn strengthened the foundation for
cooperation on national level.
Also, after signing the cooperation protocol with Portugal, I visited
the country in October 2007 and met the Hon. Jose Lello, the Chairman
of Portugal-Korea Parliamentary Friendship Group and the President of
the NATO Parliamentary Assembly.
Back then, Chairman Lello hoped to visit Korea and I provided every
possible support to let it happen. As a result, he visited Korea in
February this year and suggested that the Korean National Assembly
take part in the NATO Parliamentary Assembly as an observer. This is,
I believe, is a good example where inter-secretariat exchanges
facilitated inter-parliamentary and inter-government cooperation.
V. Build personal networks with foreign diplomatic channels
While strengthening international cooperation, the Korean National
Assembly Secretariat has also been committed to reinforcing its ties
with foreign ambassadors to Korea and expanding personal networks in
embassies.
In an effort, I suggested the Korean Embassy in the U.S. that we
invite U.S. congressional assistants to Korea. In response, the Korean
Ambassador to Washington recommended eight congressional assistants
who had never visited Seoul before and I supported their visit to
Korea.
They saw the progress of Korea’s democracy that has relatively short
history but never compromised with its quality, and developed common
understanding about bilateral issues such as ongoing FTA deals. It
extended the basis for parliamentary cooperation as well as future
diplomatic efforts toward the U.S. Congress by the Korean Ambassador
to the U.S.
VI. Inter-secretariat exchanges strengthening ties between countries
As I have mentioned, inter-secretariat exchanges can contribute to
diplomacy between governments.
Making the best use of the personal networks built through
inter-secretariat cooperation, we could contribute to Korea’s winning
in the bids to host 2011 IAAF World Championships in Athletics, 2012
World Expo, and 2014 Asian Games and the election of Hon. Ban Ki Moon
as the Secretary General of the United Nations. All the achievements
were not possible without your interest and support, which I’m truly
grateful for.
I believe that such collaboration could offer major groundwork to
tackle global issues like building peace in Northeast Asia and global
warming.
The ideal of inter-secretariat exchanges might be to facilitate
inter-parliamentary diplomacy, strengthen cooperation between
countries and be part of global efforts for peace. I think that a
small step was taken to realize the ideal of a peaceful coexistence of
the peoples.
VII. Future steps
As I consider that the ASGP plays a critical role in promoting
cooperation between parliamentary secretariats, I would like to make
two suggestions to you.
First, I would like to suggest that we get more specific by creating
sub-groups to discuss regional issues or major events of international
concern. Now the ASGP meetings are largely focused on sharing
experiences and best practices rather than seeking resolutions to
particular issues. If we could carry out in-depth discussions in
sub-groups, we could enhance common ground for and work together to
deal with international issues.
Second, I suggest that we hold another forum of parliamentary
secretary generals of the world. It would provide a chance to discuss
national and regional issues in a more detailed way thus paving the
way to contribute to sustainable development of the future generation.
If you support that idea, Korea is willing to host the inaugural forum
in Seoul.
VIII. Closing
Inter-secretariat exchanges are an uncharted territory in diplomacy,
which requires nothing but “doing” to make it work.
I have been committed to the works that I introduced in my previous
communications such as “The role of NATV”, “Toward an open National
Assembly”, and “Service programs for the public”.
In December last year, the worst oil-spill was occurred in off the
west coast of Korea, which all the Korean people felt terribly sorry
for. Right after the accident, more than one thousand secretariat
officials voluntarily went to there to clean up the scene and so far,
more than one million Korean people rushed to the coast to remove the
oil pollutants. Like this, doing, not talking, makes real differences.
It also applies to exchanges between parliamentary secretariats. I’m
convinced that such efforts could assist the promotion of relations
between parliaments, governments, and the peoples.
There’s an old saying in Korea that goes “A clap takes two hands”,
which emphasizes the importance of working together. Inter-secretariat
exchanges are just at the starting line. To plant seeds, watch them
grow, and bear fruit, we need you to join us in watering them. We need
your support and participation. I hope that my communication today
could contribute to taking a step forward.
gh
Mr Anders FORSBERG, President, said that in Europe, it was not the
convention to sign specific agreements or protocols, and that
inter-parliamentary co-operation was carried out more informally. At
the end of the day, it was the results of this co-operation which
counted for most. He wanted to know what concrete results there had
been from the different agreements and protocols signed by Mr KIM.
Mr Alain DELCAMP (France) said that he was impressed by the intensity
of the diplomatic activities carried out by Mr KIM and wondered
whether such activities would be possible in France, given that these
diplomatic initiatives were rather the responsibility of the Speaker
of the Assembly or Senate than of officials. No doubt the distribution
of roles was different in Korea. He found the approach by regional
group interesting. The President of the ASGP was moreover involved in
this approach, as the morning dedicated to African themes illustrated.
He asked about the nature of the themes that could be tackled in this
context, given that the ASGP’s subjects of choice were co-operation
between Parliaments and parliamentary ways of working, rather than
more general subjects such as sustainable development, which were
rather the role of the IPU.
Mr Tae-Rang KIM cited a protocol signed by the Korean Supreme Court
and by Parliament, intended to make the Court’s decisions and the
legislative proposals on which Parliament was working accessible to
the public. Advisers to Korean local assemblies as well as officials
of these assemblies had been invited by the Parliament to follow
training courses so as to strengthen the participation of each in the
democratic process. He then added that the ASGP constituted a place
for debate and exchanges of view, and not an assembly responsible for
resolving specific problems. Nevertheless, it was sometimes useful to
move beyond discussion and, if need be, to propose resolutions to
support parliamentarians. Among the concrete results achieved
following the conclusion of agreements could be cited the visit of
parliamentary colleagues from the US Congress or exchanges with the
South African Parliament in the context of preparations for the World
Cup. In a general sense, the work carried out in this way allowed the
staff of the Assembly to make their contribution. Parliamentary staff
were not subject to the vagaries of elections, and were sometimes in
post longer than parliamentarians. As possessors of skills and genuine
experts, they could contribute to the promotion of inter-parliamentary
exchanges. As an example, the Secretary General of the National
Assembly of Kenya, Mr Samuel Ndindiri, had worked for thirty years in
the service of his assembly, and had thus ensured great continuity in
the parliamentary administration.
Parliaments and privacy legislation
—
Jacqueline Biesheuvel-Vermeijden
Secretary General of the House of Representatives of the States
General (Netherlands)
Parliaments are, in a sense, information hubs. The sheer amount of
data that passes – in one way or another – through a people’s
representation is enormous. Parliaments are also institutions where
openness and transparency are especially great goods. There is one
particular area, however, in which this general tendency to
transparency must be very carefully scrutinized at all times, and that
is where the privacy of individual citizens is concerned. This is the
subject that I would like to put to you today for a hopefully
interesting subsequent discussion.
At the very core of the dilemma I have just outlined between
transparency on the one hand and protection of individual privacy on
the other are two general trends which have developed over the past
decennia. In parallel, but in fact contradictory to each other.
On the one hand, the past decennia have seen an increase in the legal
protection of individual citizen’s rights by way of treaties such as
the Convention for the Protection of Human Rights and Fundamental
Freedoms (ECHR) and the International Covenant on Civil and Political
Rights (ICCPR). On the other hand, international crime and terrorism
have led to a number of restrictions on individual privacy and,
additionally, developments in the technological field have led to an
increasingly vulnerable position of individual persons where
documentation in any sort or form of their private information is
concerned.
Of course, we have national privacy rules and regulations which
regulate flows of information about individual citizens’ data.
However, the information that reaches or is dealt with by parliament
sometimes proves to be a special case in point. First of all, and on a
daily basis, where letters from citizens to the President, committees
and individual members about a great variety of issues, both personal
and general, are concerned. Secondly, where information acquired by
individual members of parliament or by parliamentary staff on a
particular issue is considered. And finally, where more intensive
parliamentary research is done, as is the case, for example, when a
parliamentary inquiry is set out in a situation where a more
complicated fact is under scrutiny.
In all these cases, there is a dilemma between, on the one hand, the
right to information and immunity from prosecution for their
statements enjoyed by members of parliament, and the obligation to
respect individual privacy, on the other. Parliamentary immunity
contributes to ensuring that members of parliament can do just that
for which they were elected – control government – and individual
cases can be useful to illustrate examples where policy seems to have
failed. However, where privacy of individuals is concerned, the end
does not always necessarily justify the means.
In the Dutch House of Representatives, the subject of privacy
legislation has been discussed upon numerous occasions. Dilemma’s and
possible solutions have namely been discussed, if I limit myself to
recent years, in the framework of a number of parliamentary inquiries
but also, in a more practical light, as a part of the discussion about
a new digitalised information processing system. A number of examples
can illustrate my general points, though of course these cases are not
exhaustive.
1.
A fire in a detention complex at Schiphol airport in 2005 caused
the death of 11 detainees, illegal asylum seekers, and resulted in
a further 15 wounded, detainees and security officers. In one of
the plenary debates held in the House of Representatives about
this tragic event, an MP quoted one of the detainees’ name and
cited information about his case. Permission was given by the
individual concerned, but a discussion ensued in the House
nevertheless. Core issue of the debate was whether or not, even
when permission is given by an individual, MPs should in some
cases refrain from using information about that person anyway, to
protect them.
2.
A parliamentary inquiry from 1994-1996 resulted in a debate about
the status of documents prepared by third parties employed to
contribute to investigations. The incident in question concerned a
scientist who published a report for the inquiry committee in
which individuals were named who subsequently appealed to the
courts for protection and won. This, along with a number of other
experiences eventually resulted, this year, in the adoption of a
revised law on parliamentary inquiry, in which individuals who are
invited or obliged to participate in inquiries, in whatever form,
are better protected. Better protection is also offered, under the
revised law, to those who are subjects of inquiry. There is now a
legal protection against self incrimination, individuals may be
heard in private or at least without television camera’s, and
witnesses are entitled to legal counsel. In this respect, the
individual’s position vis à vis parliament has been strengthened.
3.
As I already mentioned, we are in the process of introducing a new
digitalised information processing system in the House. This
system will, amongst other things, be the portal for receiving,
storing and processing letters from individuals. The discussion we
had in the House on the very practical question of who will be
authorised to have access to these letters was a good example of
the dilemma I sketched at the start of my contribution. On the one
hand, one of the benefits of this new system was meant to be that
all users could, for example when searching for documents for a
committee meeting, immediately access the actual documents as
well. A transparent and user-friendly working method. On the other
hand, the storing of letters from individuals in this system would
mean that a possibly very large group of users could access what
is sometimes privacy-sensitive information. For this reason, we
recently decided to give only a small group of users access to the
letters from individuals stored in this system. This means that
they will not appear to unauthorised users when a meeting for
which they may be scheduled for discussion is looked up.
The examples I just mentioned sketch the risks involved in processing
and discussing, in parliaments, individual cases. In fact, there have
been five cases in which the European Court of Human Rights (ECHR) has
judged that individual privacy was violated by members of parliament
or by parliament as an institution. Parliamentary immunity and
transparency, in those cases, were of secondary importance to the
individuals’ right to protection of his or her privacy. These cases
underline, on the one hand, that the problem does not often arise, and
on the other hand, the special responsibility that lies with MPs in
this respect.
Incidents where individuals’ privacy is at stake have led, as the
examples illustrate, to discussions about working methods and
sometimes, changes in policy. Many possible risks and problems can be
addressed with practical arrangements, or by codifying additional
rights for individual citizens in particularly vulnerable situations.
There will always be grey areas, however, and it is impossible to lay
down formal rules for every eventuality. Again, this means that
members of parliament will often have to judge for themselves whether
or not it is necessary and justified to use private information in
public discourse.
Dear colleagues, I am sure you have been confronted with the same
dilemma, probably not on a daily basis but on some occasion surely. I
would be interested in hearing about your experiences.
gh
Mr Xavier ROQUES (France) raised a case similar to that mentioned by
Mrs BIESHEUVEL-VERMEIJDEN which had occurred in France, on the
occasion of a commission of inquiry into sects. Certain people cited
in the report of the commission had judged themselves to be defamed,
and had attempted to pursue the officials who had worked on the
commission through the courts. Then, after the judge had refused their
case, as the people had been witnesses before the commission of
inquiry, the judge subsequently accepted the admissibility of the
claim. So as to avoid a repeat of this case and to allow witnesses to
express themselves freely, the Speaker of the National Assembly
presented a bill which had been passed by the Assembly and sent to the
Senate, looking to give immunity to these witnesses.
Ms Heather LANK (Canada) stressed the importance of the freedom of
expression which parliamentarians and witnesses enjoyed in Canada. She
then asked to be given more details of the case in which the ECHR had
judged that the people’s right to a private life had been infringed.
What had the consequences been?
Mrs Stavroula VASSILOUNI (Greece) said that following a constitutional
revision in 2001, five independent administrative authorities had been
created: an Ombudsman, an authority over the media, another over the
recruitment of administrative staff, another on the protection of
communications, and another on the protection of personal data. The
heads of these authorities were appointed by the Conference of
Speakers of Parliament, by a qualified majority, requiring the support
of the majority and the opposition. In fact the heads appointed were
people of renown, respected and independent of the executive power.
These different authorities each sent an annual report to Parliament,
which gave rise to genuine debate. In this way, the work of these
authorities ensured better protection of personal information.
Mr David BEAMISH (United Kingdom) emphasized that in the United
Kingdom, the Act relating to the protection of personal data also
applied to Parliament. Because of this, the British Parliament had to
respect the data protection principles. For all that, like its
Canadian counterpart, the British Parliament was very attached to the
freedom of speech of its members. Some disagreeable remarks made by a
Member about a constituent had been taken up before the ECHR.
Nonetheless, parliamentarians exercised their rights to express
themselves freely.
Mrs Jacqueline BIESHEUVEL-VERMEIJDEN (Netherlands) replied that the
case mentioned by Mr ROQUES was indeed very similar to the one that
had been brought in the Netherlands. In consequence, as in France, a
law giving greater protection to witnesses and officials had been
passed in the Netherlands and would enter into force before the
summer. She said that the Netherlands shared the view of Canada and
the United Kingdom, and gave priority to freedom of expression. It
seemed that the five cases in which the ECHR had judged that the right
to a private life had been infringed by members of parliament
concerned the United Kingdom and Ireland, but it would be necessary to
check. In any case, there was only a single case in which the ECHR had
judged that the violation had been severe. Finally, she spoke of the
interest aroused by the independent administrative authorities created
in Greece, emphasizing that, at the end of the day, it was for each
parliamentarian to take care in the exercise of their freedom of
expression.
The revision of the institutions of the Fifth Republic
—
Xavier Roques
Secretary General of the Questure of the National Assembly (France)
Following the commitment given by the President of the Republic during
his election campaign, the French Government has just elaborated a
draft constitutional revision known as the ‘modernisation of the
institutions of the Vth Republic’ which, by modifying more than a
third of the articles of the 1958 Constitution, forms the biggest
revision it has undergone since its beginning.
This draft was elaborated following the proceedings by a committee
chaired by a former Prime Minister and composed of eminent jurists and
politicians belonging to the majority and also to the opposition.
The text has been sent by the Government to the Conseil d'Etat (State
Council), then, after the opinion of the latter has been examined by
the Government, it will be submitted to Parliament. As the Government
does not have the necessary number of votes to get this reform adopted
by its majority alone, it will therefore be obliged to confer with the
opposition to obtain the necessary number. The text I am going to
describe to you therefore does not necessarily form the definitive
future revision.
I will group the proposed provisions under two headings: that on the
powers of the President of the Republic and that on the legislative
procedure. I will therefore leave aside a certain number of provisions
which do not enter this framework, without their necessarily being
minor: this is the case for instance with the possibility of obtaining
representation in the National Assembly for French people not living
in France, or the creation of a committee tasked with giving an
opinion on the projects to cut up electoral constituencies, or the
modification of the composition of the Conseil supérieur de la
Magistrature (Judicial Service Commission), or the membership
conditions of the European Union, or the creation of a defender of
citizens’ rights, or the introduction into French law of the plea of
unconstitutionality brought before a court with referral, in this
event, to the Constitutional Council. This latter provision, which
brings France closer to the so-called European constitutional justice
system, breaks with the French tradition of the impossibility of
calling an Act into question once it has been promulgated, which has
been one of the foundations of French law since 1789. This reform will
therefore undoubtedly have considerable impact on the life of citizens
but the matter is hard to appreciate today.
I). To return to the above-mentioned two main topics, I will address
firstly the provisions affecting the powers or status of the President
of the Republic.
First, it is a matter of the ban on the holding of more than two
mandates. Until 1981, no President of the Republic had managed to
complete two mandates, which lasted seven years each at the time.
Since then, François MITTERRAND, then Jacques CHIRAC, have each held
two mandates. The new constitutional provision is therefore aimed at
avoiding the temptation of a third or possibly a fourth mandate.
The number of ministers which the President of the Republic can
appoint, and this is an innovation in French law, will see its maximum
number set by an institutional Act, so as no doubt to avoid an
evolution towards plethoric governments.
The power of the President of the Republic to appoint high officials
or members of the judiciary will be framed by the creation of a
committee made up of members of both parliamentary assemblies, which
will have to give its opinion on all these appointments. Similarly,
the Head of State’s right to grant pardon will not apply until after
the opinion of an ad hoc committee specially created for this purpose.
The French Constitution comprises a special provision, Article 16,
resulting from the experience lived by General de GAULLE in 1940,
which, in specific conditions, allows the Head of State to assume the
totality of State powers. This provision has fortunately had to be
applied only once, on the occasion of a military coup d’état in
Algeria aimed at overthrowing the government in France. At the time,
the implementation of Article 16 did not raise any difficulty, the
republican defence reflex having led all the political forces to
support General de GAULLE. But, while the attempted coup d’état
collapsed in three days, Article 16 remained in force for nearly six
months and the length of this application was highly disputed.
Undoubtedly because of this memory, the draft constitutional revision
provides that, after thirty days of application of this provision, the
Presidents of the assemblies, 60 deputies or 60 senators can refer the
matter to the Constitutional Council so that it can appreciate whether
the conditions for the implementation of Article 16 are still valid
and, in any case, after 60 days, even without being referred to, the
Constitutional Council must state its position on the maintenance of
these exceptional provisions.
Also, the possibility for the Government to pass a bill by raising a
motion of confidence is a quite unpopular provision among
parliamentarians: it indeed obliges them to vote a motion of censure
and therefore overthrow the Government if they do not want the bill to
be adopted for which the Government has sought confidence votes. In
order to meet the concerns of parliamentarians, the constitutional
revision sets forth that this procedure can concern only finance
bills, social security finance bills and only one Government bill per
year.
Also heading in the direction of a limitation of the powers of the
executive, the draft revision sets forth that any intervention of the
armed forces outside the territory of the Republic must be brought to
the knowledge of Parliament in the shortest period and, in the event
of a duration exceeding 6 months, the prolongation must be authorised
by both assemblies or, in the event of a divergence between them, by
the National Assembly.
Breaking with the strict separation between the duties of minister and
deputy which the Constituent of 1958 wanted to impose and which, in
actual fact, did not operate very well, the draft revision allows a
deputy who has become a minister to return as of right to his seat as
a deputy at the end of his ministerial duties without therefore being
forced to rely on a by-election, as was the case, to circumvent the
consequences of the constitutional rule.
Lastly, but this is one of the most controversial points of the
revision, the President of the French Republic could come personally
to read a message before the two assemblies together. It is necessary
to refer to the history of France to understand the reasons for this
controversy. During the period preceding the establishment of the
IIIrd Republic, the contemporary parliamentarians had forbidden the
President of the Republic of the time, who moreover was also Head of
Government, to come before the Assembly, so as to avoid, by his
presence and eloquence, his influencing the Assembly proceedings. Ever
since that time, the messages of the Head of State have been read by
the Prime Minister. The rule was constitutionalised in the
Constitution of 1875 and has been maintained ever since. With modern
means of information, it may appear paradoxical that the President of
the Republic can address all the French on the 8 o’clock television
news, but that he is forbidden from addressing the national parliament
whereas foreign Heads of State can do so, as evidenced by many
examples since President WILSON in 1919 and more recently the King of
Spain, King of Morocco, German Chancellor, British Prime Minister,
etc. It is this historic heritage – or archaism depending on the
viewpoint adopted – that the constitutional revision intends to
terminate. But it is no certainty that a consensus can be reached on
this point.
II). Regarding legislative procedure, which interests more directly
the operation of Parliament, there are major innovations. The first,
which has not been underscored by the media but which I feel is
capital, concerns the creation of a one month period between the
tabling of a bill and its consideration by the first assembly before
which it is brought, and of a 15 day period from its transmission to
the assembly before which it is brought in the second instance. Even
if this period does not apply to finance bills, social security
finance bills or if a matter is declared urgent, the creation of such
a period will necessarily lead to better planning of parliamentary
proceedings and aims at giving parliamentarians a minimum reflection
period, even if this goes against pressure from the media which
consider that as soon a bill is adopted at the Council of Ministers it
must be implemented.
Recourse to the declaration of urgency I have just mentioned is itself
moreover framed since the Conference of Presidents, in each of the
assemblies, can oppose said declaration whereas previously it was a
discretionary governmental power.
Members’ bills will be able to be submitted by the President of the
assembly concerned to the State Council, to which only Government
bills were previously referred.
The discussion of bills in the public sitting will henceforth concern,
as was the case before 1958, the bill adopted by the committee and not
the initial Government or member's bill, which means that the
Government would be obliged to table amendments if it wants to return
to its initial bill if it has been amended by the committee. Of
course, regarding finance Acts, social security finance Acts or a
draft constitutional revision, the rule does not apply and discussion
begins in the sitting, as previously, on the Government bill.
French parliamentary law draws a distinction between matters for
statute and matters for regulation, but previously only the Government
could oppose parliamentary amendments encroaching on the regulatory
field. Henceforth, by symmetry, the President of an assembly can also
raise, against any amendment and therefore governmental amendments,
this same opposition. In all cases, the Constitutional Council settles
the matter.
Breaking here again with the initial text of 1958, the revision
authorises the assemblies to vote resolutions ‘as provided in their
rules of procedure’. It will therefore be a matter for the rules of
procedure to define the scope of this power.
The number of committees, limited to 6 in the initial text of 1958, is
now brought to 8, which was also an old demand on the part of the
parliamentarians. Similarly, to satisfy the latter, the manner of
fixing the agenda is changed. Instead of being wholly fixed by the
Government, two weeks out of four are reserved for the Government and
two weeks for the decision of parliamentarians. Nevertheless, finance
bills and social security finance bills are placed by priority on the
agenda. Lastly, one sitting day per month is reserved by priority for
the agenda set by the opposition.
The rule according to which committee debates are public unless
committees decide otherwise is ditched; disclosure becomes the general
rule and closure to the public an exception which must be decided on a
case per case basis.
The reform also makes it possible to deal differently with
parliamentary groups depending on whether they belong to the majority
or the opposition, by constitutionalising the notion of majority and
opposition. Until now, for want of such a constitutionalisation, it
was forbidden to differentiate between each other's prerogatives. But
this of course goes against the desire of some politicians not to have
to choose between two blocs.
Lastly, even if it is paradoxical that it is no doubt in response to
the desires of parliamentarians, Article 44 of the Constitution, which
lays down exercise of the right of amendment, will state that the
latter will be exercised ‘according to the conditions and limits laid
down by the rules of procedure of each assembly’. There is a response
here to the request by the parliamentary authorities which wish to
limit the number of amendments which paralyse the conduct of normal
legislative proceedings, lead to filibustering and which, pursuant to
the saying that ‘bad money drives out good’, means that the discussion
of poor quality amendments ends up by stifling the consideration of
authentic amendments.
As has been seen, this is an ambitious revision of the Constitution
that aims to be balanced with a strengthening of the prerogatives of
Parliament, rationalisation of its action and better framing of the
prerogatives of the executive, without however weakening the latter's
capacity to act. It now remains to be seen what will come of this
ambitious reasoning and whether it will lead to a consensus allowing
its adoption by Parliament.
gh
Mr Douglas MILLAR (United Kingdom) said that at essence, this
constitutional revision aimed to limit the powers of the President and
to increase those of Parliament. He emphasized that the definition of
a minimum period between the laying of a text and its examination in
public session was of great importance: in fact, the rules in this
area were more rigorous in the House of Lords than in the House of
Commons. Because of this, the former was often in a better position to
examine texts than the latter, something that some Members regretted.
He asked about the changes made necessary by membership of the
European Union, a subject which was causing much controversy in the
United Kingdom. For example, every bill presented by the British
Government had to be accompanied by a certificate of conformity with
the provisions of the European Convention on Human Rights. Finally,
even with a limitation of two consecutive mandates, Presidents could
serve in office for fourteen years, a very long period in the United
Kingdom context.
Mr Sitor NDOUR (Senegal) stressed the revolutionary character of this
constitutional revision, which included some very important
developments. He raised the question of ministers wishing to regain
their parliamentary seat when they left the government, and he was
pleased with the limitation of the presidential mandate to two
consecutive terms. The use of a presidential mandate for life
presented many disadvantages, which Africa was well-placed to
appreciate. In fact, in many African countries, when a constitutional
provision provided for a limit to the number of presidential mandates,
once his last mandate was coming to a close, the President put
pressure on his majority in Parliament to change the Constitution:
this had been the case in Cameroon, for example. Finally, the limit on
the number of Government ministers was a very positive reform, not
only from a financial point of view but also to avoid overlapping
ministerial responsibilities. He finished his remarks by welcoming the
constitutional revision, which could be an inspiration for African
countries.
Mrs Claressa SURTEES (Australia) said that she was surprised to hear
that until now it had been impossible to reconsider a bill that had
passed into law, something that was counter to the ideas of the
Enlightenment. It also seemed surprising that the President could
speak to French citizens by means of a televised interview, for
example, but could not express himself before Parliament, while
foreign heads of state could. This very much deserved to be changed.
In any case, society underwent constant changes, and it was
appropriate to alter the constitutional system accordingly.
Mr Xavier ROQUES recalled that the 1958 Constitution had been
conceived at a time when French political life had fragmented into
many political groups, which led to wide-spread instability in
government. To cope with this, the functioning of Parliament had been
subject to great constraints. Nonetheless, the French political system
had progressively evolved in the direction of bipolarization, and the
constraints provided for no longer had any reason to exist. This was
why the Government wanted to strengthen the powers of Parliament,
within which it held a stable majority, and which therefore presented
no danger. The introduction of a minimum period between the
presentation of a text and its consideration in plenary was the result
of a strong request from the parliamentarians, who were often
infuriated by the shortness of the periods which they were expected to
accept – the Senate generally enjoying, like the House of Lords, a
more favourable position than the National Assembly. As for the
influence of European law, the Members were sometimes surprised to
hear that they could no longer decide certain matters. Faced with the
growing space filled by European law, working methods had had to be
altered. This had been the motivation behind the creation of a
European Union delegation in the French chambers.
Thanks to the reduction in the presidential mandate to five years,
decided in 2000, the limit of two consecutive mandates led to a total
length of ten years, which seemed amply sufficient. The limit in the
number of ministers put an end to a certain growth in this area, as
well as to a labyrinth of responsibilities.
Members of Parliament who became ministers generally kept their links
with their constituency. In general, when they lost their portfolio,
they made their alternate resign. In fact, instead of organizing
quasi-systematically a by-election, it seemed better to offer
ministers the possibility of resuming their seat. This reform,
previously envisaged, had not been brought about. As for the content
of this constitutional revision, the media tended to emphasise certain
elements, not necessarily the most important ones, what was more. The
reform to allow the President to speak to Parliament had been
particularly heavily covered. This was currently impossible, for
historical reasons, dating back to the 1870s.
Review of the constitutionality of laws had been introduced by the
Constitution of 1958, and developed by a constitutional revision of
1974, which had allowed sixty deputies or sixty senators to refer the
matter to the Constitutional Council. This change had seemed
revolutionary, in particular with regard to the principles of French
constitutional law.
1 House of Representatives Practice, 5th edition (2005) page 623
2http://www.asgp.info/Resources/Data/Documents/SETLTFCXMBSXLFACCVKJEVTDWFQKDI.doc;
http://www.asgp.info/fr/pastmeetings/
3 http://www.aph.gov.au/house/committee/20_anniversary/index.htm
1 S. Lim Hands on Parliament, Paper to Australasian Study of
Parliament Group July 2003 p2
1 Article XVI of the declaration of the Rights of Man and of the
Citizens (August 26th, 1789) of constitutional value in France, states
that “Every society in which the observance of the law is not assured,
nor the separation of powers defined, has no Constitution at all”.
1In the case of other Parliaments where reform processes were carried
out simultaneously, the diagnosis formulation and goal definition
processes were seen to converge. In the European Parliament, in
February 2007, President Hans-Gert Pottering presented a set of
proposals and said that the Conference of Speakers had embarked on an
ambitious parliamentary reform programme with the aim of improving the
public image of parliamentary work and to make it more efficient.
1 “The Portuguese Parliament: a necessary reform” by André Freire,
António de Araújo, Cristina Leston-Bandeira, Marina Costa Lobo and
Pedro Magalhães, ICS, 2002
1
1/10/2007 to 31/12/2007About parliamentAbout parliament and the
executive powerNews items in the press26582956News items on TV (news
bulletins)12791305News items on the radio (news bulletins)20882230Total60256491
1/10/2006 to 31/12/2006About parliamentAbout parliament and the
executive powerNews items in the press20032795News items on TV (news
bulletins)13751582News items on the radio (news bulletins)18091831Total51876208
1 We found that the aims of earlier reform processes, in Portugal,
were identical to those that governed this reform. In 1993, a
publication which brought together some thoughts and documents
relating to Parliamentary reform states:
“The concerns for bringing Parliament closer to citizens, favouring
the work of the Committees and recognising that the plenary sittings
are the place for solving political, legislative and social conflicts
must be stressed right from the start. These are the dominant concerns
of all the Parliaments of Western Europe, which are now having to
adjust their processes to the demands of a modern society where it has
become imperative to overcome the patent “democratic deficit” that
concerns all pluralist Democracies.”
2 The UK Parliament has had a Modernisation Committee up and running
since 1997, which is responsible not only for defining new measures
but also for monitoring those that have already been approved.
1 http://www.undp.org/governance/docs/Parl_Events_kenbudg_pdf
2 Introductory statement by The Hon. Colin W. Eglin at the Regional
Seminar for English-Speaking African Parliaments on Parliament and the
Budgetary Process, Including from a Gender Perspective, held in Kenya,
Nairobi from 22-24 May 2000
1 http://www.internationalbudget.org/resources/libray/parliament
2 Legislatures and the Budget Process: An International Survey:
National Democratic Institute for International Affairs: Washington,
United States of America: 2003: p. 37
1 http:en.wikipedia.org/wiki/English-Parliament
2 Morison S.E and et al: The Growth of the American Republic: Oxford
University Press: United Kingdom:1969.
3 Erskine May: Parliamentary Practice: Butterworths: London, United
Kingdom: 1983 p. 756-7
4 Hugh A. Finsten: Assisting Committees in the Canadian Parliament:
Library of Parliament: Canada: July 1996: p. 2
1 Final Report of The Parliamentary Reform Committee: Implementation
Proposals and Summary of Evidence: Parliament of Zimbabwe: Harare: May
1999: p. 58
2 Constitution of Zimbabwe: Revised Edition 1996: Government Printer:
Harare: 1996: p25
3 Note: See also Article 63 (1) of the Constitution of the Republic of
Namibia
1 Legislatures and the Budget Process: An International Survey:
National Democratic Institute for International Affairs: Washington,
United States of America: 2003: p 9
1 http://www.internationalbudget.org/resources/libray/parliament
2 Legislatures and the Budget Process: An International Survey:
National Democratic Institute for International Affairs: Washington,
United States of America: 2003: p 35
1 I acknowledge the contribution in the preparation of these
discussion points of the excellent publications on this topic by the
Commonwealth Parliamentary Association – particularly the 2004 study
group (http://www.parlcpr.undp.org/docs/StudyGrouponObs.pdf) and
theWorld Bank Institute –
http://web.worldbank.org/WBSITE/EXTERNAL/EXTABOUTUS/PARTNERS/EXTPARLIAMENTARIANS/0,,contentMDK:20298119~pagePK:64165880~piPK:64165858~theSitePK:464534,00.html
-particularly the work of Mitchell O’Brien.