CONSTITUTIONAL & PARLIAMENTARY · Web viewThird observation: The Parliamentary Services do not have...

CONSTITUTIONAL & PARLIAMENTARYINFORMATION

—62th year, No. 203

Kampala, April 1-5, 2012

CONTENTS

Impeachment of a Judge in the Indian Parliament — Dr Vivek K. AGNIHOTRI, Secretary General of the Rajya Sabha (India)...................................................... 3

Strategic plan of the parliamentary service of the Swiss Parliament for 2012–16 — Philippe SCHWAB, Secretary General of the Council of States and Deputy Secretary General of the Federal Assembly (Switzerland).............................................................. 20

How to optimally support a Parliament in times of cutbacks — Jacqueline BIESHEUVEL-VERMEIJDEN, Secretary General of the House of Representatives of the States General (Netherlands).............................................................. 33

Things that can’t be said: limits on freedom of expression in parliamentary proceedings — General debate moderated by Marc BOSC, Deputy Clerk of the House of Commons (Canada)..................................................... 39

The Knesset Visitors Centre - Transparency and Accessibility — Yardena MELER-HOROWITZ, Secretary General of the Knesset (Israel) .................. 51

Is it necessary to constrain debate in plenary sitting? — General debate moderated by Corinne LUQUIENS, Secretary general of the National Assembly (France)............................................... 55

2 Const.Parl.Inf. 62 (2012), 203

Recent developments in the Inter-Parliamentary Union — Presentation by Martin CHUNGONG and Greg POWER (Inter-Parliamentary Union). . 75

Who decides which Members get to speak in the plenary - the President of the Bundestag or the political groups — Dr Ulrich SCHÖLER, Vice-President of the ASGP, Deputy Secretary General of the Bundestag (Germany)............................... 78

Parliamentary modalities for managing a post-war situation – The case of Sudan — Ibrahim Mohamed IBRAHIM, Secretary General of the National Assembly (Sudan)................................. 85

Recent activities of the Global Centre for ICT in Parliament — Gherardo CASINI........................ 93

Raising matters of urgency or emergency in the Chamber — General debate moderated by Claressa SURTEES, Clerk Assistant (Table) of the House of Representatives (Australia)................. 94

The South African System of co-operative government and intergovernmental relations: an analysis – Eric PHINDELA, Secretary to the National Council of Provinces (South Africa). . . 111

The sub judice rule: parliament and the courts. Implications for the doctrine of the separation of powers – Austin ZVOMA, Secretary to the Parliament (Zimbabwe)..................................... 116

Structure and function of the Upper House: a brief introduction – Mohammad Kazim MALWAN, Secretary General of the Senate (Afghanistan) 125

Developing a new document production system for the Chamber secretariat – Phase one – Claressa SURTEES, Clerk Assistant (Table) of the House of Representatives (Australia)............................... 130

Lessons from the work of the House of Federation in celebrating Ethiopian Constitution Day

2 Const.Parl.Inf. 62 (2012), 203

2011 – Habtamu NINI ABINO, Head of the Secretariat of the House of Federation (Ethiopia) 135

Const.Parl.Inf. 62 (2012), 203

IMPEACHMENT OF A JUDGE IN THE INDIAN PARLIAMENT

—

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

INTRODUCTIONThe Indian judiciary is an important organ of our state and commands

considerable respect from the people of India for dispensing justice impartially. The independence and integrity of the members of the judiciary has always been a crucial element in the functioning and maturing of our democracy. However, sporadic allegations of corruption, sleaze, nepotism and misbehaviour involving the Judges of the higher judiciary have threatened to lower the prestige of the judiciary. In the recent past, the subject of impeachment of a Judge captured national attention in India and stirred a debate in the wake of the recommendation of the Chief Justice of India for removal of Justice Soumitra Sen, a sitting Judge of Calcutta High Court. Against this backdrop, it would be worthwhile to look into the constitutional provisions and the procedural developments that have taken place in the legislature in regard to the impeachment of Judges.

CONSTITUTIONAL PROVISIONSThe Constitution of India contains certain provisions for removal of a

Judge from his office and regulation of the procedures thereof. The Constitution provides that a Judge of the Supreme Court or of a High Court may, by writing under his hand addressed to the President, resign his office, but he cannot be removed from his office except by an order of the President passed after an address by each House of Parliament in the prescribed manner.

The Constitution further provides for a “method” and “grounds” on which a Judge of the higher judiciary is to be removed which is as under:

5


“A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.”

It can thus be inferred from this provision that the Constitution enjoins the following pre-conditions for the removal of Judge of the Supreme Court:

(i) a Judge of the Supreme Court shall be removed only by an order of the President;

(ii) it should be after presentation of an Address by each House of Parliament;

(iii) the Address should be supported by a special majority; (iv) the Address should be presented to the President in the same

session; and(v) removal has to be on the grounds of “proved” misbehaviour or

incapacity.Further, the Constitution stipulates that “the Parliament may by law

regulate the procedure for the presentation of an address and for the investigation and proof of the misbehaviour or incapacity of a Judge.

THE JUDGES (INQUIRY) ACT, 1968The Judges (Inquiry) Bill, 1964 was formulated, laying down the procedure

as contemplated by the above provision of the Constitution and the Bill was referred to a Joint Committee of the two Houses. After elaborate discussion before the Committee, in which eminent Members of Parliament and the then Attorney General and former Attorney General gave their evidence, the Joint Committee gave its report on 13 May 1966. The recommendations of the Committee were taken into account and The Judges (Inquiry) Act, 1968 was passed prescribing the procedure for the investigation and proof of misbehaviour and incapacity of Judges of the Supreme Court, including the Chief Justice of India, the Chief Justices and Judges of the High Courts.

Procedure laid down in the Act:Under the procedure laid down in the Act, a notice of a motion for

presenting an Address to the President for the removal of a Judge, if given in Rajya Sabha (Upper House of the Indian Parliament), is to be signed by not less than fifty members of the House and, if given in Lok Sabha (Lower House), by not less than one hundred members of that House. The Chairman or the Speaker, as the case may be, after due consideration and consultation, may admit or refuse to admit the motion.

Consequent on the admittance of the motion, the Chairman or the Speaker, as the case may be, will constitute a Committee of three members, one each from (i) the Chief Justice and other Judges of the Supreme Court; (ii) Chief Justices of the High Courts; and (iii) distinguished jurists. In case the notices of motion are given on the same day in both the Houses, the Committee will be constituted only if the motion has been admitted in both

6


the Houses and thereupon jointly by the Chairman and the Speaker. In case notices of motion are given in both the Houses on different dates, the notice which is given later shall stand rejected.

The Committee will frame definite charges against the Judge on the basis of which investigation is proposed to be held and will have the powers of a Civil Court in respect of summoning persons for examination on oath, production of documents, etc. In a case of alleged physical or mental incapacity and where such an allegation is denied, a Medical Board will be appointed for the medical examination of the Judge by the Chairman or the Speaker, as the case may be, or, where the Committee has been constituted jointly, by both of them.

At the conclusion of the investigation, the Committee will submit its report to the Chairman or, as the case may be, to the Speaker, stating therein its findings on each of the charges separately with such observations on the whole case as it thinks fit. The report will, thereafter, be laid before the respective House or the Houses, if the Committee has been appointed jointly by the Chairman or the Speaker.

If the Committee absolves the Judge of any misbehaviour or incapacity, the motion pending in the respective House or Houses, as the case may be, will not be proceeded with. If the report of the Committee contains a finding that the Judge is guilty of any misbehaviour or suffers from any incapacity, the motion will, together with the report of the Committee, be taken up for consideration by the House or the Houses in which it is pending.

In the event of the adoption of the motion in accordance with the constitutional provisions, the misbehaviour or incapacity of the Judge will be deemed to have been proved and an Address praying for the removal of the Judge will be presented in the prescribed manner by each House of Parliament in the same Session in which the motion has been adopted.

INSTANCES OF IMPEACHMENTAfter the passing of The Judges (Inquiry) Act, 1968 a notice of a motion

for presenting an address to the President for the removal of a Judge of the Supreme Court was given in Lok Sabha by 199 members on 15 May 1970. However, the Speaker did not consider it to be a fit case for action under The Judges (Inquiry) Act, 1968 and did not admit the notice.

So far judicial enquiry or impeachment motion has been initiated only against three Judges in India. The first such case involved the impeachment motion in Lok Sabha of Justice V. Ramaswami of the Supreme Court in May 1993 on charges relating to gross abuse of his financial and administrative powers as the Chief Justice of the Punjab and Haryana High Court and criminal misappropriation of property. However, the impeachment motion was defeated as it could not garner special majority in the House as required.

The second case involved Justice Soumitra Sen of the Calcutta High Court whose removal from office was sought on two grounds by the following motions: (i) misappropriation of large sums of money in his capacity as the

7


receiver appointed by the High Court of Calcutta; and (ii) misrepresentation of facts with regard to this misappropriation of money before the High Court of Calcutta. The Upper House voted in favour of his impeachment by 189 votes in favour and 16 votes against, first by a voice vote and then through division. The motion for his impeachment was to come up in the Lower House. However, Justice Soumitra Sen sent in his resignation as a Judge of the Calcutta High Court to the President of India, with a copy to the Speaker, Lok Sabha, before his impeachment proceedings could begin in the Lok Sabha. The message relating to the decision of the Lok Sabha not to proceed with the matter was reported in the Rajya Sabha on 6 September 2011. Thereafter, the impeachment motion lapsed.

The third case involved Justice P. D. Dinakaran, Chief Justice of the Karnataka High Court, against whom charges of corruption were made. The Chairman, Rajya Sabha, set up another Inquiry Committee on 15 January 2010, to investigate into the grounds on which his removal was sought for. However, before the Committee could complete its investigation and submit its Report, the concerned Judge submitted his resignation on 29 July 2011 by addressing a letter to the President of India. In view of this, the notice of motion praying for presenting an Address to the President became infructuous and the Chairman, Rajya Sabha, brought the work of the Inquiry Committee to a close. A Notification and a Parliament Bulletin Part-II were issued in this regard.

THE CASE OF JUSTICE SOUMITRA SENUnder article 124(4) of the Constitution, notice or notices of Motion with

supporting documents, and signed by not less than 50 Members of Rajya Sabha is/are submitted to the Chairman, Rajya Sabha, praying for removal of a Judge of High Court/Supreme Court. The file is put up for orders of the Chairman under section 3(1) of the Act, who after consultation and consideration either may admit the Motion or refuse to admit the same.

If the Chairman admits the motion, a para in Rajya Sabha Bulletin Part-II is published to this effect for information of Members. The process of constitution of a Committee under section 3(2) of The Judges (Inquiry) Act, 1968 is also initiated immediately. The Chairman may seek from the Chief Justice of India, a panel of the names of Judges of the Supreme Court and Chief Justices of High Court, from amongst whom he may choose one name each for the constitution of the Committee. The name of an eminent jurist, as the third Member of the Committee, is chosen by the Chairman, Rajya Sabha himself.

As and when the Committee is constituted, a notification in the Gazette of India, Extraordinary, Part-II and a Parliamentary Bulletin Part-II are issued to that effect (Annexures I & II). A note is sent to the Department of Justice for information about the constitution of the Committee and requesting that Department to issue Presidential Requests in respect of the serving Judges who are members of the Committee so as to enable them to work in the Committee (Annexure III). Another note is sent to the Department of Legal Affairs requesting them to make the necessary budgetary provisions to

8


meet the expenses of the Committee as laid down in Rules 14 and 15 of the Judges (Inquiry) Rules, 1969 (Annexure IV).

Once the Department of Justice obtains the Presidential Request and intimates the same (Annexure V), letters are issued to the Judge members of the Committee as also to the eminent Jurist, signed by the Secretary-General, informing them about the constitution of the Committee and their appointment to work as Members of the Committee (Annexure VI).

The Chairman, Rajya Sabha, on receipt of a Motion submitted by Members of Rajya Sabha, on 20 March 2009 and having found the Motion in order, had accordingly appointed a Committee to inquire into the allegations of misbehaviour/misconduct in respect of Mr. Justice Soumitra Sen of Calcutta High Court and the fact was communicated to its members.

Submission of Report to the Chairman, Rajya Sabha and laying the same on the Table of both Houses of Parliament:

In pursuance of proviso to Rule 9(2) (c) of the Judges (Inquiry) Rules, 1969, the Judges Inquiry Committee constituted in respect of Justice Soumitra Sen sought extension of time of two months for submission of Report on two occasions and the extension was granted by the Chairman, Rajya Sabha, on merits, in each case. The Report of the Committee, duly authenticated by the Presiding Officer, was presented to the Chairman, Rajya Sabha on 10 September 2010, in the presence of two other members of the Committee.

The Report of the Judges Inquiry Committee was laid on the Table of both Rajya Sabha and Lok Sabha on 10 November 2010 along with a copy of the evidence tendered before the Committee and documents marked as Exhibits by the Committee. Printed copies of the Report were also made available to Members of Lok Sabha and Rajya Sabha respectively.

Consideration of the motion for presenting an Address to the President praying for the removal of a Judge of High Court by the Council of States in Justice Soumitra Sen’s case:

After the laying of the Report, a copy of the Report was forwarded to Justice Soumitra Sen to file his reply. At his request, Justice Soumitra Sen was given approximately one month’s time to file a written reply on the findings of the Report. He gave his reply on 9 December 2011, copies of which were circulated to all the Members of Rajya Sabha. A para in the Parliamentary Bulletin Part-II was also issued.

After the laying of the Report, Members gave Notices of Motion for consideration of the Report. Notices of only those Members were entertained who were signatories to the original pending motion. It was also decided to broadly follow the Rules of Procedure and Conduct of Business in the Council of States, governing the ‘Motion on matters of public interest’ in respect of the subsequent notices of motion. These notices of motion for consideration of the Report of the Inquiry Committee were admitted by the Chairman and published in the Parliamentary Bulletin Part-II as ‘No-day-yet-named’ motion.

9


The Chairman, Rajya Sabha, in consultation with the Minister of Parliamentary Affairs and the Leader of Opposition, informally decided the date for consideration the motion in the Rajya Sabha. The Business Advisory Committee, in its meeting held on 11 August 2011, allotted four hours for discussion on the motion, excluding the time given to the Judge or his representative to present his arguments before the House. A Parliamentary Bulletin Part-II was issued in this regard and a copy forwarded to the Lok Sabha Secretariat for their information.

It was further decided that the motion would be discussed in the House on two days and an opportunity would be given to the concerned Judge to make his submission from the Bar of the House. In view of this, the Lobby Office was requested sufficiently in advance to erect a bar with raised lectern at the appropriate place. The Parliamentary Security Service, Rajya Sabha, was requested to allow the entry of the concerned Judge and his two counsels in the Parliament House, to escort them into the inner lobby and out of the precincts of the House immediately after the submission before the House.

Immediately after fixing of the date for taking up the motion in the Rajya Sabha, Secretary-General, informed Justice Sen about the same. Initially, he was given 90 minutes time and was advised to make only oral submission during his presentation in the House. On the day on which the Motions were to be taken up in the House, the original pending motion, along with subsequent motion for consideration of the Report of Inquiry Committee, were listed in the names of the movers of the subsequent motion (Annexure VII). On the motion being taken up in the House on 17 August 2011, at the outset, the Chairman made an announcement setting out the procedure to be followed for considering the motion.

Thereafter, one of the signatories of the original and subsequent motion, moved both the motions and spoke thereon. The Judge then presented his defence from the bar of the House and withdrew. After that the House proceeded to consider the motion and several Members spoke on it. The discussion on the motion continued for two days i.e. 17 and 18 August and, in the end, the mover of the motion replied to the debate.

After the end of the debate, the motion for presenting an Address under article 124, read with clause (4) of article 217 of the Constitution, along with the Address to the President was put to vote. Both were adopted by a majority of total membership of the House and a majority of two-thirds of Members present and voting.

On the day the motion was adopted, a message, enclosing a copy of the Address to the President, was communicated to the Lok Sabha. The message was reported in that House which listed its own motion for discussion on 5 September 2011 and included an item in the List of Business for that day accordingly. The concerned Judge, however, resigned from office before the motion could be taken up in the Lok Sabha. The resignation letter being in order, was accepted by the President of India and the Ministry of Law and Justice issued a notification in this regard. Before the Motion could be taken up in Lok Sabha, the fact of resignation of the Judge was

10


reported by the Union Law Minister in the Lok Sabha. Thereafter, the Speaker, Lok Sabha, took the sense of House and decided not to proceed with the Motion and address for removal of Justice Sen. Secretary-General, Lok Sabha communicated the fact through a message, which was reported in the Rajya Sabha. The concerned file was, thereafter, placed before Hon’ble Chairman, Rajya Sabha to treat the matter as closed.

11


CONCLUSIONThe primary role of Parliament is to legislate. However, it has a judicial

function too. To deal with the issue of a Judge’s misconduct or proven misbehaviour, within the meaning of Article 124 and 217 of the Constitution, is the prerogative of the Parliament. The removal proceedings against a judge of a High Court or the Supreme Court are no doubt a serious matter. For the first time in the history of the Indian Parliament, the Upper House adopted a Motion for removal of a judge. Justice Soumitra Sen's impeachment proceedings in August 2011 were also the first to be televised live. Speaking on the occasion, the Leader of Opposition in Rajya Sabha termed it as “both historic and sad ”. But by invoking the legitimate constitutional provisions, Rajya Sabha had sought to ensure that the sanctity of our Constitution is maintained and the sovereignty of the people is established through the Parliament. The misbehaviour of an individual Judge could not be allowed to tarnish the integrity of the Judiciary. While an upright and transparent higher judiciary in the country would enhance its image, a disciplined judiciary is an essential condition for strengthening the fabric of democracy. The process of removal of a judge is quite laborious and lengthy and the Parliament exercises this responsibility as a punitive or deterrent measure in the rarest of rare cases.

The constitutional and statutory safeguards ensure that judges discharge their duties without fear or favour in the pursuit of delivery of justice. It is, therefore, essential that the principles of transparency and accountability in the functioning of the judiciary are put in place to address such issues. With this objective, the Judicial Standards and Accountability Bill, 2010 has been introduced in the Parliament to lay down judicial standards and provide for accountability of judges. It seeks to repeal the Judges (Inquiry) Act, 1968 while retaining its basic features. It aims to create a statutory mechanism for enquiring into individual complaints against judges of the High Court and the Supreme Court and recommending appropriate action, enabling declaration of assets and liabilities of judges etc.”

References:1.The Constitution of India2.The Judges (Inquiry) Act, 19683.The Judge (Inquiry) Rules, 19694.Note on Procedures No._: Judges Inquiry Committee- Part-I, Rajya Sabha

Secretariat: Official Bulletin, New Delhi, December, 2010.5.Note on Procedures No._: Judges Inquiry Committee- Part-II (Procedure

after laying of Report), Rajya Sabha Secretariat: Official Bulletin, New Delhi, October, 2011.

6.M. N. Kaul and S. L. Shakdher, Practice and Procedure of Parliament, 6th Edition, 2009, New Delhi

7.Rajya Sabha Debates, dated 17 August 2011 and 18 August 2011.8.Resume of the Business transacted by the Rajya Sabha, 223rd Session

(1 August to 8 September 2011), Rajya Sabha Secretariat, New Delhi.

12

Const.Parl.Inf. 62 (2012), 203 13

ANNEXURE I


RAJYA SABHA

Parliamentary Bulletin Part-II

No. 45915 Monday, March 23, 2009

Legislative Section

Constitution of a Committee by the Chairman, Rajya Sabha under theJudges (Inquiry) Act, 1968

Attention is invited to the Rajya Sabha Parliamentary Bulletin Part II No. 45898 dated the 27th February, 2009 regarding the Motion admitted by the Chairman, Rajya Sabha under article 217 read with article 124 (4) of the Constitution for removal from office of Justice Soumitra Sen of the Calcutta High Court. A Notification dated the 20 th

March, 2009 has been issued regarding constitution of a Committee under sub-section (2) of Section 3 of the Judges (Inquiry) Act, 1968 by the Chairman, Rajya Sabha for the purpose of making an investigation into the grounds on which the removal of Justice Soumitra Sen of the Calcutta High Court is prayed for, which is reproduced below for information of Members:-

“ NOTIFICATION

No. RS 8/2/2009-L - Under sub-section (2) of Section 3 of the Judges (Inquiry) Act, 1968, the Chairman, Rajya Sabha, has constituted, for the purpose of making an investigation into the grounds on which the removal of Justice Soumitra Sen of the Calcutta High Court is prayed for, a Committee consisting of the following three Members:-

1. Hon’ble Justice D.K. Jain, Supreme Court of India;

2. Hon’ble Justice T.S. Thakur, Chief Justice of the Punjab and Haryana High Court; and

3. Shri Fali S. Nariman, Senior Advocate, Supreme Court of India.

Sd/-V.K. AGNIHOTRI,Secretary-General.”

V.K. AGNIHOTRI,

Secretary-General.

14

ANNEXURE II


ANNEXURE III

Most ImmediateCONFIDENTIAL

RAJYA SABHA SECRETARIAT(Legislative Section)

Sub: Committee for the purpose of making an investigation into the grounds on which the removal of Justice Soumitra Sen of the Calcutta High Court is prayed for – issue of Presidential requests – regarding.

Attention of the Ministry of Law & Justice (Department of Justice) is invited to the Notification dated 20th March, 2009 issued in the Gazette of India regarding appointment of aforesaid Committee (copy enclosed for ready reference). 2. Hon’ble Justice D.K. Jain, Supreme Court of India and Hon’ble Justice T.S. Thakur, Chief Justice of Punjab & Haryana High Court shall discharge their functions as members of the Committee in addition to the duties assigned to them. 3. The Ministry of Law & Justice (Department of Justice) may please issue the necessary orders in this regard, after obtaining the concurrence of the Chief Justice of India, for the issue of presidential request enabling the Committee to commence its work. A copy of the order may please be endorsed to Hon’ble Justice D.K. Jain and Hon’ble Justice T.S. Thakur as well as to this Secretariat. A photocopy of the letter dated the 6th March, 2009, which Hon’ble Chief Justice of India had written to the Hon’ble Vice-President of India and Chairman, Rajya Sabha, is enclosed for kind reference.

Sd/-

(N.C. JOSHI)

SECRETARY

Ministry of Law and Justice (Department of Justice){Kind Attn. Shri Madhukar Gupta, Secretary.}

RSS I.D. No. 8/2/2009-L dated the 23rd March, 2009

15


ANNEXURE IV

Most ImmediateCONFIDENTIAL

RAJYA SABHA SECRETARIAT(Legislative Section)

Sub: Committee for the purpose of making an investigation into the grounds on which the removal of Justice Soumitra Sen of the Calcutta High Court prayed for – Budget provision – regarding.

***Pursuant to sub-section (2) of Section 3 of Judges (Inquiry) Act, 1968, the Chairman,

Rajya Sabha has constituted a Committee consisting of the following three Members:-

1. Hon’ble Justice D.K. Jain,

Supreme Court of India;

2. Hon’ble Justice T.S. Thakur, Chief Justice of the Punjab and Haryana High Court; and

3. Shri Fali S. Nariman,

Senior Advocate, Supreme Court of India

for the purpose of making an investigation into the grounds on which the removal of Justice Soumitra Sen of Calcutta High Court is prayed for. A copy of the Notification dated the 20 th

March, 2009 issued in this regard is enclosed.

2. Attention is drawn, in this connection, to Rule 14 of the Judges (Inquiry) Rules, 1969 framed under the Judges (Inquiry) Act, 1968, which provides that traveling and other expenses of the Members of the Committee and witnesses, etc., shall be borne by the Central Government.

3. The Ministry of Law and Justice is, accordingly, requested to make necessary provision in their Budget to meet the expenses of the Committee.

Sd/-

(N.C. JOSHI)

SECRETARY

Ministry of Law and Justice (Department of Legal Affairs){Kind Attn. Shri T.K. Vishwanathan, Secretary.}

RSS I.D. No. 8/2/2009-L dated the 23rd March, 2009

Copy to Shri Madhukar Gupta, Secretary, Department of Justice, Ministry of Law and Justice, Shastri Bhawan, New Delhi.

Sd/-

(N.C. JOSHI) SECRETARY

16


ANNEXURE V

Government of IndiaMinistry of Law and Justice

(Department of Justice)*****

Jaisalmer House, Man Singh Road

Subject:- Committee for the purpose of making an investigation into the grounds on which

the removal of Justice Soumitra Sen of Calcutta High Court prayed for – Issue of Presidential request – regarding.

Reference is invited to the Rajya Sabha Secretariat’s I.D. No. 8/2/2009 dated 23rd

March, 2009, intimating about the constitution of a Committee under sub-section (2) of Section 3 of the Judges (Inquiry) Act, 1968 with Shri Justice D.K. Jain, Judge, Supreme Court of India and Shri Justice T.S. Thakur, Chief Justice, Punjab and Haryana High Court as its members, after consultation with the Hon’ble Chief Justice of India for the purpose of making an investigation into the grounds on which the removal of Justice Soumitra Sen of Calcutta High Court is prayed for. 2. The President is pleased to request the aforesaid Judges to function as members of the aforesaid Committee in terms of the Supreme Court Judges (Salaries and Conditions of Service) Act, 1958/ High Court Judges (Salaries and Conditions of Service) Act, 1954 respectively. 3. The time spent by Shri Justice D.K. Jain, Judge, Supreme Court and Shri Justice T.S. Thakur, Chief Justice, Punjab and Haryana High Court, in the performance of the above functions will count as ‘Actual Service’ within the meaning of para 11(b)(i) of Part-D of the Second Schedule to the Constitution of India read with Section 2(b)(i)/2(1)(c)(i) of the Supreme Court Judges (Salaries and Conditions of Service) Act, 1958/ High Court Judges (Salaries and Conditions of Service) Act, 1954 respectively. They will not be entitled to any extra remuneration for the above work except travelling allowance and daily allowance as admissible under the Supreme Court Judges (Travelling Allowance) Rules, 1959/ High Court Judges (Travelling Allowance) Rules, 1956.

Sd/-(Anurag Bhalla)

Under Secretary to the Govt. of India Tel. No.23073178

Rajya Sabha Secretariat, Legislative Section (Shri N. C. Joshi, Secretary), Parliament House, New Delhi._________________________________________________________________ Department of Justice I.D. No.L-11025/5/2009-Jus. dated 13.4.2009 Copy to:- 1. The Chief Secretary, Government of Punjab, Chandigarh. 2. The Chief Secretary, Government of Chandigarh, Chandigarh. 3. Shri Justice D. K. Jain, Judge, Supreme Court of India, New Delhi. 4. Shri Justice T. S. Thakur, Chief Justice, Punjab and Haryana High Court, Chandigarh.

17


ANNEXURE VI

No. RS. 8/2/2009-L Dated the 13th April, 2009

FromV. K. Agnihotri,Secretary General

ToShri Justice D.K. Jain, Judge, Supreme Court of India,New Delhi

Subject: Constitution of the Committee for the purpose of making an investigation into the grounds on which the removal of Justice Soumitra Sen of the Calcutta High Court is prayed for.

Sir,I am to inform you that Chairman, Rajya Sabha has under Section 3 of Judges (Inquiry) Act,

1968 admitted the following Motion received from Shri Sitaram Yechury and other members (total 57) under article 217 read with article 124 (4) of the Constitution of India regarding removal from office of Justice Soumitra Sen of the Calcutta High Court:

“This House resolves that an address be presented to the President for removal from office of Justice Soumitra Sen of the Calcutta High Court on the following two grounds of misconduct:-

(i) Misappropriation of large sums of money, which he received in his capacity as receiver appointed by the High Court of Calcutta; and

(ii) Misrepresented facts with regard to the misappropriation of money before the High Court of Calcutta.”

2. Consequent upon the admission of the said Motion, Chairman, Rajya Sabha, under sub-section (2) of Section 3 of the Judges (Inquiry) Act, 1968, has now constituted, for the purpose of making an investigation into the grounds on which the removal of Justice Soumitra Sen of the Calcutta High Court is prayed for, a Committee consisting of the following:-

1. Hon’ble Justice D.K. Jain, Judge of the Supreme of India;2. Hon’ble Justice T.S. Thakur, Chief Justice of the Punjab and Haryana High Court; and3. Shri Fali S. Nariman, Senior Advocate, Supreme Court of India.

A copy of the Notification dated March 20, 2009 issued in this regard, is enclosed.3. The Presidential request for your goodself to function as a Member of the above Committee

has been communicated vide Ministry of Law & Justice (Department of Justice) ID No.11025/5/2009-Jus. dated the 13th April, 2009 (copy enclosed).

Yours faithfully,

Sd/-(V. K. AGNIHOTRI)

Encls: As above.

18


RAJYA SABHA——

LIST OF BUSINESSWednesday, August 17, 2011

11 A.M.———

QUESTIONS

QUESTIONS entered in separate lists to be asked and answers given.————

MOTIONS*A Motion for presenting an Address under article 217 read with clause (4)

of article 124 of the Constitution

SHRI SITARAM YECHURYSHRI PRASANTA CHATTERJEESHRI ARUN JAITLEY to move the following motion:—

“This House resolves that an address be presented to the President for removal from office of Justice Soumitra Sen of the Calcutta High Court on the following two grounds of misconduct:—(1) Misappropriation of large sums of money, which he received in his capacity as receiver appointed by the High Court of Calcutta; and(2) Misrepresented facts with regard to the misappropriation of money before the High Court of Calcutta."

* B. Motion for considering the Report of the Inquiry Committee constituted to investigate into the grounds on which removal of Shri Soumitra Sen, Judge, Calcutta High Court was prayed for

SHRI SITARAM YECHURYSHRI PRASANTA CHATTERJEESHRI ARUN JAITLEY to move the following motion:—

"This House do consider the Report of the Inquiry Committee in regard to investigation and proof of the misbehaviour alleged against Shri Soumitra Sen, Judge, High Court of Calcutta which was laid on the Table of the House on the 10th November, 2010.”

% C. ADDRESS TO THE PRESIDENT UNDER CLAUSE (4) OF ARTICLE 124 OF THE CONSTITUTION

"WHEREAS a notice was given of a motion for presenting an address to the President praying for the removal of Shri Soumitra Sen, from his office as a Judge of the High Court at Calcutta by fifty-seven members of the Council of States (as specified in the Annexure 'A' attached herewith#);

________________________________________________________* Items at A and B to be taken up together.% Item at C to be put to the vote together with Motion at Item A.# See Item A above.

19

ANNEXURE VII


AND WHEREAS the said motion was admitted by the Chairman of theCouncil of States;

AND WHEREAS an Inquiry Committee consisting of —

(a) Shri B. Sudershan Reddy, a Judge of the Supreme Court of India;

(b) Shri Mukul Mudgal, Chief Justice of the High Court of Punjab and Haryana at Chandigarh; and

(c) Shri Fali S. Nariman, a distinguished jurist, was appointed by the Chairman of the Council of States for the purpose of making an investigation into the grounds on which the removal of the said Shri Soumitra Sen from his office as a Judge of the High Court at Calcutta has been prayed for;

AND WHEREAS the said Inquiry Committee has, after an investigation made by it, submitted a report containing a finding to the effect that Shri Soumitra Sen is guilty of the misbehaviour specified in such report ( a copy of which is enclosed and marked as Annexure 'B')@;

AND WHEREAS the motion afore-mentioned, having been adopted by the Council of States in accordance with the provisions of clause (4) of article 124 of the Constitution of India, the misbehaviour of the said Shri Soumitra Sen is deemed, under sub-section (3) of Section 6 of the Judges (Inquiry) Act, 1968, to have been proved;

NOW, THEREFORE, the Council of States requests the President to pass an order for the removal of the said Shri Soumitra Sen from his office as a Judge of the High Court at Calcutta."

————

CONSIDERATION of any business entered in the List of Business for Tuesday, August 16, 2011 and not concluded on that day.

————LEGISLATIVE BUSINESS

Bill for consideration and passing

The NationalCouncil forTeacherEducation(Amendment)Bill, 2010.

SHRI KAPIL SIBAL to move that the Bill to amend the National Council for Teacher Education Act, 1993, be taken into consideration.

ALSO to move that the Bill be passed.

NEW DELHI; V.K. AGNIHOTRI,August 12, 2011. Secretary-General.

___________________________________________

@ The Report of the Inquiry Committee was laid on the Table of the House on the 10th November, 2010

20


Mr Geert HAMILTON (Netherlands) thanked Dr AGNIHOTRI for his interesting presentation. He thought the procedure described was very unusual. The Dutch House of Representatives had a role in the nomination of Supreme Court judges but Parliament could never remove a judge from office. He asked if this kind of procedure existed in other countries, and if it was really useful and effective.

Dr Ulrich SCHÖLER (Germany) congratulated Dr AGNIHOTRI and said that the German system was similar to the Dutch. He asked if the Indian Constitution provided for the independence of the judiciary, and if this procedure had never been abused in the past. Finally, he asked how the roll call vote worked.

Mr Hans BRATTESTÅ (Norway) explained that such an impeachment procedure existed in Norway, where judges, Ministers, and MPs could be judged by a special criminal court made up of parliamentarians and Supreme Court judges. Parliament could launch this procedure, as could a specialised committee, if the proposal was supported by a third of its members.

Mrs Doris Katai Katebe MWINGA (Zambia) said that the impeachment of judges was possible in Zambia on the request of a judicial committee. A tribunal was created, bringing together serving magistrates and a legal expert. This tribunal came up with a proposal once its work was completed, while the accused judge was able to defend himself. Other than through this procedure, judges could not be removed from office, and in no case would a judge have to defend himself before Parliament. Only one judge had been brought before this tribunal, and he had resigned before it had completed its work.

Mr David BEAMISH (United Kingdom) said that there was a similar procedure in the United Kingdom, but it had not been used for a very long time. He asked Dr AGNIHOTRI what he thought of the procedure and how it had been received by public opinion.

Mr Henry NJOLOMOLE (Malawi) asked if Parliament’s decision needed to be ratified by another authority.

Ms Corinne LUQUIENS (France) said that there was no equivalent in France, as cases against judges were brought by an independent authority, not by Parliament. She asked if this procedure did not suffer the risk of looking like a political move, and if it could not be proceeded with under the criminal law, as the case in point concerned a question of corruption.

Mr Somsak MANUNPICHU (Thailand) explained that a similar case had arisen in Thailand, concerning the commissioner responsible for the fight against corruption. It eventually emerged that the defendant had little

21


to be ashamed of. In Thailand, the procedure could be brought against high officials, Ministers or judges.

Dr Vivek K. AGNIHOTRI replied that this procedure was certainly political, albeit supported by a judicial process. The Commission of Inquiry could be thought of as a criminal court, Parliament had to trust its report and could not take a decision going against its conclusions. If the report found that there were no grounds to charge the judge, the procedure would come to an end. Otherwise it would continue, with Parliament playing the role of the jury, more or less. Two of the three judges accused in recent years had resigned before the process could come to a conclusion. The roll-call vote took place simply by calling out yes or no; otherwise an electronic vote would take place. The judge did not have to appear before the Commission of inquiry or before Parliament, and could send his lawyer instead. In this case, the judge had chosen to make his own defence. This story had been much talked about in India, during a period when the subject of corruption was high on the news agenda. The decision reached was not final, and could be appealed to the other House, and then to the Supreme Court. It was, however, unlikely that the Supreme Court would overturn Parliament’s decision, which was why one of the judges under investigation had decided, after being found guilty by both Houses, to resign without making a further appeal. Finally, a magistrate acting in the pursuit of his functions could not be prosecuted in the ordinary courts.

22


STRATEGIC PLAN OF THE PARLIAMENTARY SERVICE OF THE SWISS PARLIAMENT

FOR 2012–16

—

Philippe SCHWABSecretary General of the Council of States and

Deputy Secretary General of the Federal Assembly (Switzerland)

“Our plans miscarry because they have no aim. When a man does not know what harbour he is making for, no wind is the right wind” 1

Seneca The Younger1. Why the need for a strategy?

For many years, parliament’s administration, following the example of other public administrations in Switzerland, never felt any particular urge to question how things were done. In fact, the lasting nature of the structures and staff in place was long considered essential. It was deemed indispensable to have a permanent and solid organisation to assure the proper functioning of a parliament whose composition was fundamentally instable and which varied with each election. The principle applied in structuring the organisation was: ‘members of parliament come and go, the administration remains’.The organisation of the Parliamentary Services is the fruit of a long and constant evolution which began in 1848. Driven by a form of ‘institutional Darwinism’, they have constantly adapted to the needs of the moment and their environment, often by leaps, but with no general plan or long term vision.

Parliamentary Services, guarantor of continuity

1 Moral Letters to Lucilius LXXI, in: « Œuvres complètes de Sénèque le philosophe », tome 6, C.-L.-F. Panckoucke, Paris, 1834, p. 149.

23


Matters changed after 2000 with the crisis in public finances and the subsequent austerity measures. At the time, parliament on several occasions examined proposals aimed at reducing public sector staff on budget grounds. These proposals, supported by the largest parliamentary group, concerned both government and parliamentary administration staff. The reduction in staff levels at the Parliamentary Services was motivated by the idea of shared sacrifice. One could not expect efforts on the part of government without also demanding efforts on the part of those elected. In other words, it was not that parliament and its services were deemed to be too costly2, but instead that an example should be shown at a time of crisis in public sector finances.

Budgetary uncertainty as a driver of strategic reflection

Parliament ultimately abandoned the idea with regard to its own staff, but the threat has not been lifted definitively and indeed looms over upcoming budgetary debates.At the beginning of 2011 this situation of uncertainty led the Parliamentary Services to begin a strategic reflection for the period 2012-2016. The aim of this process is to identify priority activities – existing and forecast – and to do away with outdated habits and practices. In more general terms, this reflection is to take a fresh look at the definition of the Parliamentary Services’ mission, in other words at its corporate strategy. Indeed, in a constantly changing environment, it is vital to define clearly for the benefit of members of parliament, but also its staff, where the Parliamentary Services stand, its profile, core competences and the range of services it offers along with its priorities. This strategy should allow those concerned to have the same view of the current situation as well as of the priorities and future developments. 2. Initial situation and general characteristics of the Swiss

parliamentary administration2.1. The Parliamentary Services…Article 64 of the Parliament Act states that “the Parliamentary Services assist the Federal Assembly in the exercise of its duties”. To this end they provide the services needed by parliament, the committees and members in order to fulfil their tasks.The Parliamentary Services are an organisation shared by both chambers and they are headed by a Secretary General. An Administration Delegation, composed of the presidents and vice presidents of the chambers, exercise overall control and supervision. It is the supreme administrative body of the

Organisation shared by both Chambers

2 With a budget of EUR 85 million, the Swiss parliament is relatively good value for money: according to a comparative study conducted on behalf of the Parliamentary Services among twenty OECD states, the Swiss parliament is the one with the lowest operating costs; it is second from last in the list of MPs’ basic remuneration (H. Z'graggen, « Die Professionalisierung von Parlamenten im historischen und internationalen Vergleich », Haupt Verlag, Bern/Stuttgart/Wien, Berner Studien zur Politikwissenschaft, Nr. 19, 2009, p. 100).

24


Parliamentary Services and sets the responsibilities and framework for the services it provides in the form of an internal regulation. The Administration Delegation is also responsible for managing the budget for parliament and its administration. The budget is presented to parliament for adoption. In terms of its staff, parliament is free to apply public sector legislation or to establish its own rules.The Parliamentary Services were created in 1920, however, they remained attached to the government until 1999 when their independence was enshrined in the revised Federal Constitution (Art. 155 of the Constitution). Since then the Parliamentary Services have enjoyed autonomy from the executive branch, which is compatible with the principle of the separation of powers and corresponds to parliament’s function as the ‘supreme authority of the Confederation’ (Art. 148 § 1 of the Federal Constitution).

System of complete autonomy

Under the constitution, the rules governing the Parliamentary Services, its organisation and budget are matters for the chambers. As a sign of this independence, the Secretary General is appointed by the Offices of the Councils and the nomination is then confirmed by the National Council and the Council of States in a joint session. The Secretary General cannot be removed for the period of office which lasts four years. He may step down at the end of this period but is otherwise reappointed automatically. The Secretary General and his deputy are accountable to the presidents for the proper functioning of the Parliamentary Services.Schematically, the Parliamentary Services have four broad areas of activity:

- The Scientific Services Division is responsible for all council activities and documentation related to the chambers and the committees in terms of legislation, oversight and budget.

- The International Relations Division is responsible for parliament’s bilateral and multilateral activities, visits, protocol, and interpretation and translation services.

- The Information and Communications Division manages relations with the media, electronic information platforms, public relations and institutional communication.

- Finally, the Resources, Security and Logistics Division deals with financial matters, IT systems, project management, personnel, security and infrastructure.

Areas of activity

The staff of the Parliamentary Services are bound by an obligation to be politically neutral. They are servants of parliament as an institution and as such must refuse any instructions or tasks of a partisan nature. They are at the service of the parliamentary bodies and its members regardless of political orientation. Tensions with the political authorities are extremely rare as they too seek to respect the services’ strict neutrality. This is the case across the whole of the Swiss administration where there is a clear separation between the public administration and political actors.

Political neutrality

25


The Parliamentary Services have evolved significantly to keep pace with the reinforcement of parliament’s powers and responsibilities. In 1970, the Parliamentary Services had a staff of around 30; forty years on and staff levels have increased tenfold. At present, the Parliamentary Services employ around 300 staff who work full or part time, not including the large number of service providers active in the fields of security, IT, translation, logistics and catering.The Parliamentary Services is a multilingual organisation reflecting our four national languages. Staff are employed following open competitions. In contrast to other countries with a system of parliamentary staff with specific competitions, all Parliamentary Services staff are recruited to fulfil a specific function in which they will remain for as long as they continue to work in the administration. There is no statutory obligation to offer mobility, whether within or outside the Parliamentary Services. With the exception of senior management positions, all other staff are appointed by the Secretary General.

300 staff recruited from the labour market

The Parliamentary Services carry out a large number of tasks ranging from advising members of parliament to IT support as well as administration and security. All staff identify strongly with the institution of parliament of which they are a part. It is quite rare for staff to move from parliament to the federal administration or government departments. There is therefore strong staff loyalty and a high degree of organisational stability. The last major reorganisation of the Parliamentary Services dates back over twenty years.2.2. … for a part-time Parliament

The Parliamentary Services play a key role in the functioning of the two chambers due to the fact that deputies are not full time politicians. The Swiss parliament is what is known as a ‘militia parliament’ where the majority of members exercise a professional occupation alongside their parliamentary mandates. Depending on the individual and the chamber to which they belong, parliamentary duties will take up between 50 and 70 per cent of a deputy’s time1. It is also worth noting that many parliamentary roles are not carried out on a permanent basis; Council presidents are elected for a one year term and committee presidents for a two year term (they cannot stand for re-election).

Part-time members of parliament

The militia principle has a long tradition in Switzerland’s system of direct democracy and proximity between the authorities and citizens. It can be observed at local and cantonal level as well as in the armed forces. It is 1 A recent survey carried out among members of parliament showed that over half of National

Council members considered themselves to be semi-professional MPs and that over half of Council of States members considered themselves to be professional MPs (S. Bütikofer / S. Hug, “Auf dem Weg zum Berufsparlament”, Neue Zürcher Zeitung, 4.5.2010). According to the same authors, “Switzerland’s militia parliament has become a chimera” (S. Bütikofer / S. Hug, “Le parlement de milice cher aux Suisses a de fait disparu”, Le Temps, 5.5.2010).

26


also facilitated by Switzerland’s small size which allows the majority of deputies to dedicate part of their day to their profession and the rest to their political activities. The ‘militia system’ is firmly anchored in the Swiss psyche. It forms part of the notion of the ‘active citizen’ as hailed by Jean-Jacques Rousseau2 250 years ago. The militia system has the advantage that deputies remain in direct touch with social realities as doctors, lawyers, farmers, business men and women, teachers or union employees. This allows them to retain a foothold in the economy outside their political mandate which in turn guarantees their freedom of opinion and independence with respect to their parties (Art. 161 § 1 of the Federal Constitution impose that “no member of the Federal Assembly may vote on the instructions of another person”). This system also has the merit of allowing the deputy to re-enter professional life more easily at the end of his or her mandate.

Advantages

The limitations of the militia principle become apparent in the capacity of deputies to dedicate sufficient time to their mandate, and this at a time when issues are becoming increasingly technical and complex, time pressures more demanding and ever greater demands on the part of the media. Not many deputies have full control over their agenda and an overview of all political issues and procedures.

Limitations

Under such circumstances, it is understandable that most deputies find it difficult to juggle their professional and political careers. Confronted with the professionalism and durability of the government and the federal administration, it is not a level playing field. The Parliamentary Services help to even out this imbalance by providing deputies with the resources, information and expertise they need, while ensuring that proper procedures are followed. They effectively form the backbone of parliament and serve as its memory.3. Approach and outlineThe management board of the Parliamentary Services launched its strategic process in May 2011 and informed all of its senior staff and employees.First of all, the management board decided that the strategic process would be conducted on the basis of the current organisation and existing

2 « Les hommes droits et simples sont difficiles à tromper […]. Quand on voit chez le plus heureux peuple du monde des troupes de paysans régler les affaires de l’Etat sous un chêne et se conduire toujours sagement, peut-on s’empêcher de mépriser les raffinements des autres nations qui se rendent illustres et misérables avec tant d’art et de mystères ? » [« Simple straightforward men are hard to deceive […]. When among the world’s happiest people we see a group of peasants gathered under an oak to regulate the state’s affairs, and always acting wisely, can we help scorning the sophistication of other nations, which put so much skill and so much mystery into making make themselves illustrious and wretched?” (Jean-Jacques Rousseau, “Du contrat social, ou Principes du droit politique”, Amsterdam, Marc Michel Rey, Amsterdam, 1762, p. 233).

27


resources. The process involves three successive and staggered stages:- an analysis phase (May to September 2011) ;- a concept phase, followed by a consultation and validation phase

(October 2011 to April 2012) ;- an implementation phase (from May 2012).At present, the process is on-going and the results are still at the project stage: the analysis phase has been completed and the concept phase and validation is in progress. The implementation phase will commence in the second half of the year as soon as the strategy has been adopted by the Administration Delegation, which is expected at the end of April.The focus in the rest of the document is on the analysis phase as this is currently the most advanced phase of the project.

3.1. Analysis phase3.1.1. Procedure and methodologyThe analysis phase began in May 2011 over a period of five months. Analysis

phaseIn an initial period, the management board updated its corporate charter which defines the mandates and philosophy of the Parliamentary Services. The charter is a general document which sets out the values by which the administration of parliament acts. It determines the long term vocation of the organisation and aims to guide the actions of the Parliamentary Services in a common direction shared by all of its employees. It is based on the basic idea that in order to work together it is necessary to share common values and aims. It is particularly important for an organisation such as ours which consists of a large number of services with extremely diverse tasks.

1st stage: Updating the corporate charter

In a second period, the management board conducted an analysis of the organisation. This focussed on the services processes and structures across all areas of activity in the Parliamentary Services. This led us to ask the following type of questions:- What services do we currently offer?- What new services need to be offered in the future and what

services could we forgo or transfer?- Does the effectiveness of our processes meet expectations? Do they

enable us to offer good quality and timely services?- How is collaboration between the various internal services and with

other third parties?- Do we have sufficient resources and the necessary skills to meet

these needs? In order to ensure a systematic approach we applied a SWOT analysis

2nd stage: Organisational analysis (services, processes, structures)

28


(Strengths, Weaknesses, Opportunities, Threats).The analysis grid takes two different angles (appendix 1):- a structural angle which highlights the strengths and weaknesses of

the organisation using an internal diagnostic tool taking into account the positioning, activities and current organisation of the Parliamentary Services;

Internal diagnostics

- a cyclical angle describing the environmental opportunities and threats using an external analysis taking into account foreseeable evolutions in supply, demand and influences.

External analysis

This analysis was conducted by the management board in close collaboration with all of the senior staff (approx. 40 people). They were invited to respond anonymously to an electronic questionnaire. In order to avoid any interference, the catalogue of questions was prepared by an external agent who then evaluated the responses received. In their responses, some senior staff expressed their personal views in which they offered remarks and suggestions.This analysis was conducted via a staff satisfaction survey. This was also conducted anonymously.

Staff satisfaction

surveyFinally, the analysis also addressed the needs on the part of members of parliament. Some deputies were therefore asked about the strengths and weaknesses of the organisation, as well as their level of satisfaction with the services provided by the Parliamentary Services and their needs and expectations. The interviews were conducted by an agent from outside the administration of parliament in order to guarantee confidentiality.

Service satisfaction survey among

deputies3.1.2. ResultsThe results of the analyses provided the management board with a good overall view of the situation. Without going into detail, here are some of the observations that can be revealed:First observation: At a structural level, the internal diagnostic tool showed that the main strength of the Parliamentary Services is its staff. Employees are competent and motivated and that is reflected in the quality of the work performed. The working atmosphere is judged to be pleasant and working conditions and remuneration are above average. The organisational structure, with a shallow hierarchy and the independence of the Parliamentary Services guarantees swift decision-making; that it works is a model of ‘pragmatic’ administration. The work of the employees and the processes are focussed on services and the needs of the parliamentary bodies and its deputies. The services provided by the Parliamentary Services meet the needs of deputies in terms of both quality and quantity. Generally speaking, employees are devoted; they display a very strong attachment to the institution of parliament and to the values of autonomy and public service. This attachment is

Motivated and

competent staff

29


manifested by a low staff turnover which also benefits their specialisation. Second observation: In terms of processes, the analyses showed that collaboration between the different internal services is not optimal. The result is loss of synergies and a certain compartmentalisation of thoughts actions1. Openness for change and innovation is weak: in general terms, employees are attached to the processes they are familiar with. In some services this leads to a kind of ‘wait-and-see’ attitude and a tendency to maintain the status quo. The Parliamentary Services have too great a tendency to provide services ‘on demand’ when they could take a more pro-active role incorporating new problems and challenges.

Attitude favourable

to maintainin

g status quo

Third observation: The Parliamentary Services do not have sufficient resources to deal with an ever increasing workload and satisfy ever greater demands. The upshot is a situation of overload which risks leading to a drop in the quality of services provided and unmotivated staff. Moreover, the structure of the Parliamentary Services is ambivalent as the majority of staff primarily take their instructions from the parliamentary bodies for which they work, rather than from their administrative hierarchy. This lack of clarity in terms of who reports to who makes effective staff management difficult. Employees do not really know who they answer to and are often exposed to pressures over which they have little influence. The first criteria of management is often not one of effectiveness or return, but of complying to the wills, whether real or supposed, expressed by the deputies.

Lack of resources

and leadership

Fourth observation: The environment in which parliament exists has undergone great changes in recent years. On a political level, the problems that parliament is expected to resolve are becoming ever more numerous, complex and interdependent. The boundaries between foreign and domestic policy have blurred. An increasing number of sectoral policies have an international reach and vice versa. Furthermore, a shift in relations between the executive and the legislature can be observed, with the latter seeking to counter the growing influence of the government. In recent years, parliament has gradually emancipated itself from government. Today, over one in four bills originates from parliament, at times against the advice of government. Parliament has also strengthened the instruments at its disposal to oversee government and evaluate public policy. On a general level, it is noticeable that the bills submitted are increasingly controversial and that the behaviour of various actors has a polarising effect: relations between the executive and the legislature are more strained as they are between the political parties. This situation makes it more difficult to reach a compromise. Meeting the demands of expectation means that swift responses and urgent

Political climate

ever more uncertain

1 As an anecdote: for a large number of staff, the possessive is a standard part of their language as they never cease to refer to ‘their’ committee, ‘their’ president, etc. reflecting a form of appropriation of the parliamentary bodies for which they work.

30


procedures are becoming the norm. Political debate is becoming more intense in nature, but also more unpredictable and more superficial. The result is that the Parliamentary Services, by the sheer weight of momentum, finds itself dealing increasingly with short term problems instead of looking to the medium term.Fifth observation: The current political environment is marked by growing media interest and presence, often characterised by immediacy, spectacle and a glut of information and images. The complexity of the issues at hand is often reduced to the lowest common denominator and it is not unusual for the images and evocative headlines on an issue to be handled according to the adage that it is easier to show than explain. The advent of multimedia and the formidable evolution of the Internet, which operates in real time and which never sleeps, has set a new pace in terms of news and information which is instantaneous, urgent, ubiquitous, at the same time reducing the opportunity for analysis and reflection. The short term approach and speed have become the basis of media power and parliament, which needs detachment, time for contemplation and consultation, finds it difficult to respond. This hiatus between media time and parliamentary time has an impact on the way in which parliament and its administration functions.

Large media

exposure

Sixth observation: The onset of new information and communications technologies has fundamentally altered the style of interaction between deputies, the administration and citizens. Today deputies are directly and permanently connected to the social body that they represent. Managing communication and information has become an essential part of political work. From now on, it is simply not possible to imagine performing parliamentary work without efficient IT and telematics resources. On a technical level there are growing demands in terms of availability, quality and systems security.

Spread of informatio

n tools

Seventh and final observation: The resources allotted to parliament will remain limited in the years ahead. An increase in financial resources is not to be expected in the current legislative period.

Zero growth

These political, media and technological developments have significantly transformed the work of the deputies and pose many challenges which have to be met. The dynamics of parliamentary activity therefore require the Parliamentary Services to be even more flexible and responsive, and to have the capacity to develop innovative solutions, while at the same time respecting the need to be economical and satisfy the needs of deputies. It is also necessary to establish a scale of priorities with regard to the range of services offered: That way the needs of the parliamentary bodies must take precedence over the request of individual deputies.The aim is to offer the parliamentary bodies and deputies the best possible solutions, and at the same time to respond in a professional

Doing more with the same resources or the art

of reconcilin

g opposing demands

31


manner to the growing and changing demands while keeping costs low. It is also necessary to exploit existing synergies and to place emphasis on encouraging greater versatility among staff.3.2. Concept and validation phase

The concept phase was staggered over a period of seven months between October 2011 – April 2012 (appendix 2).Based on the general analysis, the management board first drew up a strategic vision looking to 2016. This vision sets out a number of specific characteristics regarding the situation in which the Parliamentary Services would like to be in looking towards 2016. The text was deliberately kept short and easily understandable, and is intended for the senior staff of all the services.

Concept phase

The vision consists of five main principles which are interrelated and complement each other:First principle: The Parliamentary Services are independent and uphold the interests of parliament. They contribute to the strengthening of parliament as an institution.

1st stage: Preparingthe Vision

2016Second principle: The Parliamentary Services actively assist parliament, its bodies and members in the fulfilment of their tasks.Third principle: The Parliamentary Services operate to a greater extent as an entity in its own right. They demonstrate forward planning and show a high level of professionalism, provide the best service possible, are attentive to the needs of ‘clients’, and to the economic efficiency of their work and think globally.Fourth principle: The Parliamentary Services continually improve Parliament’s information and communications services on behalf of the public.Fifth principle: The Parliamentary Services foster openness and respect. They encourage continuing education and training and improvement. The employer and its employees demonstrate flexibility in terms of responsibilities and social competences.In a second stage, the management board transposed these five principles into a number of strategic goals which are linked to fields of action.Schematically, the management board identified ten priority fields of action:- Role and positioning of the Parliamentary Services- Cost transparency- Range and scope of services- Innovation in terms of services- Service guarantees- New technologies

2nd stage: Identifying fields of

action

32


- Harmonisation of processes- Culture of change- Staff development- Staff and team managementFinally, the strategic vision, the goals and the fields of action were laid open for consultation, in the form of projects, from senior staff and the personnel commission. The commission was invited to make its views known and to propose modifications. The statements were then discussed by the members of the management board. This in turn resulted in a project which was turned into a workshop involving all senior staff after which there was final validation.The management board will present its project to its supervisory body, the Administration Delegation, at the end of April.

3rd stage: Validation

with senior staff

3.3. Implementation phase

The implementation phase, which is by far the most delicate, should start in May of this year.This will involve - setting plans of action and detailing the measures for each priority

field of action, - determining responsibilities, timeframes and relevant indicators,- and to monitor implementation.The plan is for the heads of service to draw up plans of action under the supervision of the management board. For the time being, there are no plans to conduct restructuring. However it cannot be ruled out that implementing the strategy requires a simplification of structures and a reallocation of resources.4. A few observations in the shape of a conclusionIt is still too early to draw firm conclusions about the approach taken by the Parliamentary Services.At this stage, it is possible to make a few observations:One of the factors of success in drawing up a strategy lies in the essential place given to participation by senior staff, employees and employee associations. Throughout the process the management board was at pains to put in place a transparent procedure and to make time for discussion and communicating information. Senior staff were involved at all stages of the procedure (analysis, vision and implementation). The iterative process chosen allowed the management board and senior staff to return to the different stages of the process on numerous occasions in order to complete and subsequently validate them. The approach also focussed on the recognising the qualities of senior staff in their field and the pride of staff in working for parliament. With very few exceptions, the approach has well accepted and those involved demonstrated a responsible and constructive attitude.

Participative and

transparent

approach

The preparation, formulation, followed by the implementation of a

33


strategy requires a great deal of involvement on the part of management. Right from the outset the management board took the decision not to call on the services of an external consultant to do the job in its place; in order to make the strategy its own, the management board took the view that it had to do the work itself. This demanded a great deal of time: the management board held a large number of working meetings in order to define the right approach to take and to monitor the process. This was not without problems. Change management is rather a foreign concept to the culture of the Parliamentary Services. In order to convince people of the sound reasoning behind the approach the management board had to dispel numerous fears and overcome certain obstacles. On several occasions the management board had to remind people that the preparation of a strategy was not intended to resolve past difficulties, but to respond to future needs and issues. A strategic process imposes a subtle dose of speed and restraint, of coercion and dialogue. One needs to proceed swiftly to benefit from a certain momentum, but too hastily; one has to be firm on certain set principles, but demonstrate great flexibility with regard to their application in operational reality; the skill lies in fostering dialogue with those concerned.

Strong involvement on the part of

management

The notion of dialogue is essential. In the present case, dialogue took place between the management board and senior staff, but also among senior staff. These exchanges were beneficial in the fact that they allowed the services to get to know and understand each other better.

Importance of

dialogueIt is clear from what has been said that a strategic process is above all a learning process in itself and opportunity for introspection. The chosen approach had the advantage that it allowed the parliamentary administration to question its own practices and habits, to question its own organisation and raison d’être. By taking a critical look at themselves, the services demonstrated that they were capable of questioning their way of doing things in order to grow. This awareness created the beginnings of a new culture based on change.

Critical introspect

ion

We are aware that we are at the start of a lengthy process and that the outcome four years from now will be vastly different from what we imagined. Nevertheless, creating a strategy is just as much an aim in itself as an approach. The aim is to improve service and strengthen the activity of parliament and the quality of democracy. The approach is to be constantly critical of the way in which it functions and to seek ways of improving it.

34


The conclusion is self evident: however good a strategy may be, it can never satisfy all expectations or cover all eventualities, but that is no justification for not having one.

Mrs Danièle RIVAILLE (France) asked why the idea of conducting an external audit had in the end been rejected, whether there were financial or other reasons, given that reports by external auditors were often thought to be more impartial. She also asked how the consultation with the trades unions had gone.

Mr Mohamed Kamal MANSURA (South Africa) explained that a review of good governance policies had been launched in South Africa, and that parliamentarians themselves had guided this reform by establishing a strategy, which had set out concrete objectives for individual Departments. He cited in particular the passing of the law on the financial reform of Parliament, which provided that it was necessary to justify the financial need and to account for the results of the spending. Mr Mansura thought that this was part of a worldwide evolution in the administration and management of Parliaments, that of accounting on the one hand to parliamentarians, and on the other, to the public.

Mr Gherardo CASINI (Global Centre for IT in Parliament; Observer) said that the Global Centre had worked with many Parliaments on strategic planning. He asked if civil society representatives had been consulted, and if the AFOM strategy had been accompanied by targeted strategies for technical Departments.

Ms Jane LUBOWA KIBIRIGE asked how Swiss MPs managed having another professional activity, and if they therefore received two salaries.

Mrs Doris MWINGA (Zambia) asked if an internal audit was sufficient, how MPs had been involved in this strategic initiative, and if they had also looked at the way they divided their time between their work as an MP and their professional activities.

Mr Alexis WINTONIAK (Austria) noted the similarities of the challenges faced in all countries. He asked who in the end – politicians or administration – had defined the strategic objectives.

M. Geert HAMILTON (Netherlands) stressed the specificity of the Swiss system, and its shared administration for the two Houses. He asked how this had been taken into account in the context of the reform, to the extent that the interests of the two Houses are necessarily and happily different. He asked if there had been differences in the way the reform had been viewed between the two Houses.

35


Dr Vivek K. AGNIHOTRI (India) asked if the implementation of the strategic plan had led to savings or increased expense.

Mr. Austin ZVOMA (Zimbabwe) said that in his country, the system was also bicameral with a shared parliamentary administration, and explained that two strategic plans had been launched, one for the administration, the other for the institution itself, concerning parliamentarians more directly. These strategies had been implemented with the help of an external facilitator. He thought that the party that had been the most resistant to the change was not necessarily the civil servants, but rather the parliamentarians themselves.

Mr Philippe SCHWAB explained that the decision to use internal auditors was not linked to financial constraints, but to a desire to involve staff as much as possible in the implementation of the strategy. The parliamentary administration was very specific, and could not be compared with a private business or other branches of the public service. A comparative methodology, borrowing from good practice used in neighbouring countries, had been adopted. Quantitative and qualitative indicators had also been developed internally. From the beginning, it had been stated clearly that it was not a question of saving money or restructuring, but of seeing if it was possible to reorganise things to offer a better service with the same resources. The reform thus had to be carried out to a constant budget. Parliamentarians had also been asked to be able to determine priorities, as they were not always aware of the implications of the requests they made. As the search for consensus and compromise was very present in Switzerland, the two Houses had been brought to agreement without great difficulty; this had to be the case in any event, as no one could overrule the other. The Speakers and Deputy Speakers, as well as the top officials, had determined the strategic objectives. The public had not been consulted, the views of the public being in any case identifiable through e-mails, letters etc. For now, only an overall strategy had been defined, but the idea of developing this into local strategies had not been ruled out. Finally, Mr Schwab explained that more and more parliamentarians were full-time or almost full-time in their parliamentary duties : this was the case for around 50-60% of the members of the upper House and 80% of those of the lower House. If they had another job, parliamentarians were paid only pro rata for the time they dedicated to Parliament. Some jobs were incompatible with being a Member of Parliament.

36


HOW TO OPTIMALLY SUPPORT A PARLIAMENT IN TIMES OF CUTBACKS

—

Jacqueline BIESHEUVEL-VERMEIJDENSecretary General of the House of Representatives

of the States General (Netherlands)

“Today I would like to discuss with you the following question: How can we optimally support our parliaments in times of cutbacks?

I will describe in broad outline the relationship between the Dutch Cabinet and the House of Representatives of the Netherlands as far as the budget of the House is concerned. I will also describe the outline of a new pilot project “the new Way of Working”. After that I would like to hear from you about your experiences with the choices and dilemmas I am about to share with you.

In the Netherlands, the Minister of the Interior and Kingdom Relations is constitutionally responsible, on behalf of the Government, for drawing up the budget of both chambers of the States-General - as the Dutch Parliament is called - and the other so-called High Councils of State. This is laid down in our Constitution and in the Government Accounts Act.

The responsibility of the Minister of the Interior and Kingdom Relations involves that the Government can exercise influence on the size of the budget as well as on the allocation of the money; for the House of Representatives' expenditure is part of the overall national budget. However, without discrimination to the responsibility attributed by the Government Accounts Act to the Minister of the Interior and Kingdom Relations, the House of Representatives controls its own budget.

The way in which the budget of the House of Representatives is prepared, differs from the way in which the annual budgets of the Government departments are drawn up. This is due to the complex relation between the

37


Minister of the Interior and Kingdom Relations and the House of Representatives.

Every year in May or June, prior to the next budget year, the House of Representatives draws up its own budget, called the Estimates. It contains provisions for MPs (compensation and the cost of travel and other expenses), former MPs, (transitional allowances and pensions), allowances for the costs of parliamentary groups and the House's operating costs (staff and equipment).

In its capacity as co-legislator, Parliament also plays a formal role in drawing up its own budget. Moreover, Parliament can exercise influence on the contents of its budget. Both chambers of Parliament adopt their own Estimates in separate public sittings, without the Government being involved. Subsequently, the Estimates of both chambers are submitted to the Ministry of the Interior and Kingdom Relations for inclusion in the national budget. The Estimates form the basis of what will eventually be the national budget chapter IIA on the States-General.

The House of Representatives is not only co-legislator, but - being the body formally representing the people - also has the duty to scrutinize the work of the Government. This leads to the situation that the Government, whose work is scrutinized by the House of Representatives, has some control over the budget of the body whose job it is to scrutinize the Government's work. In the past many disagreements occurred between the Government and the House of Representatives about the size of the budget (the Estimates) drawn up by the House of Representatives.

Early in the 1990s, a management arrangement was concluded with the Minister of the Interior and Kingdom Relations. In brief, this arrangement comes down to the Government taking note of the Estimates before incorporating them into the national budget. Subsequently, the Government comments on the draft Estimates. The House of Representatives is free to incorporate the comments made by the Government, or not. So, in principle, the Estimates are incorporated unaltered into the national budget, if the House of Representatives so desires. If necessary, the House can enforce this through the right of amendment.

In the event of national retrenchment targets being set by the Government, the House of Representatives has always contributed, of its own will, to the cutbacks required. As a rule, it does so by accepting a best efforts obligation, meaning that it follows a policy of restraint spending, rather than reducing the budget in advance.

The management arrangement has come under pressure as a result of the current recession. The Minister of the Interior and Kingdom Relations expects the House of Representatives to contribute to meeting the cutback target set by the national Government. In the draft 2012 budget, the Minister of the Interior and Kingdom Relations introduced a reduction of the budget of the States-General, which factually constitutes a violation of the management arrangement. Subsequently, the House of Representatives once again expressed its readiness to take on a best efforts obligation with regard to those budget sections covering the House's administration and the political organization that can be influenced.

38


The Government has calculated the amount of the cutback target over the entire budget of the House, including for instance budget items such as MPs' compensation, transitional allowances and pensions. There is an ongoing discussion with the Minister of the Interior and Kingdom Relations about the impossibility of incorporating these budget items in the best efforts obligation. This budget item cannot be affected without changing the law, which would require a two-third majority of the House. On the contrary allowances for the costs of parliamentary groups, the Parliamentary inquiry budget, printing and travel expenses of working visits of MP’s, are explicitly included in the cutback operation. The House takes the position that the best efforts obligation may not exceed 6%. As a result the House and the minister of the Interior and Kingdom Relations are in disagreement.

This is all the more pressing as the political groups in Parliament see the storm building and take up arms. They now look with Argus' eyes at the House's administration: is the human resources department perhaps too big? What does the information department actually do and should the communications department work more efficiently? Warding off such questions from politicians requires razor-sharp insight in all the statistics, figures, services and products.

On the one hand, the House of Representatives is prepared to contribute to the national target. On the other hand, due to best efforts obligations from the past, there is little flexibility left in the budget of the House of Representatives. Therefore, almost any cutback will lead to a reduction in services and inevitably also to staff reduction. Implementing these budget cuts will curtail the possibilities of the House to fulfil its duties as co-legislator and to scrutinize the work of the Government. It is inevitable that the politicians will experience the consequences of the reduced and poorer services. This is particularly poignant because at the same time, the demand from society of services provided by the House is increasing rather than decreasing. The number of activities carried out by and on behalf of MPs has grown considerably over the past years. Moreover, the number of visitors to the House of Representatives is growing, which also leads to a greater appeal being made to some departments of the House's administration. A sustainable solution for these developments has to be found first of all within the existing Estimates of the House. The solution has to be found from reallocations within the overall budget, because claims to increase the budget are out of the question.

That is why, in 2011, the Management Board of the House of Representatives set up the Best Efforts Obligation Steering Committee. The assignment given to the steering committee was to analyse the current services, to map the savings options and to lay them down in a catalogue.

Partly thanks to the efforts of the Steering Committee, a list of 23 savings suggestions was drawn up. The sum of the savings involved is slightly higher than the best efforts obligation, which leaves room, within the savings options, for (limited) setbacks. In June 2012, the proposals to meet the cutback target will be submitted to the House as part of the 2013 Estimates.

Meanwhile, the House's administration does not stand still. A working group focusing on "smarter" working methods, set up by the Best Efforts

39


Obligation Steering Committee, is considering possibilities of working more efficiently in a structural way. Personal printers in offices can be done away with, subscriptions to paper magazines can be cancelled and the telephone switchboard can be relocated to the control room. It was also found that is appropriate in these times to limit the internal and external physical mail delivery services.

In the meantime, the Committee Support Units have started a pilot project: "the New Way of Working". This is a means of promoting being a good employee and promoting good employment practices, in line with social and technical developments. Both are spearheads of the human resources policy of the House of Representatives. The New Way of Working can lead to a more effective, more efficient and more pleasant way of working. Staff members are given the opportunity to make the most of themselves, by giving them more freedom as to how, where and with whom the job is done. Characteristic features are: the work can be done regardless of time and location, management is result-oriented, everyone has free access to knowledge and experience, working relationships are flexible. Moreover, the pilot project works both ways: in due course, this way of working will have positive financial effects as well, as travel expenses and extraordinary running costs will go down.

Thank you very much for your attention. Now that I have outlined the dilemma we are caught in, I am of course very interested in your experiences in this time of budget cuts. I am looking forward to your response.

Mrs Philippa HELME (United Kingdom; substitute member) explained that the House of Commons Administration had been asked to reduce its outgoings by 17% over the next three years. It had been decided to reduce printing, to look at outsourcing some services, and to try to generate income from some activities, for example by charging tourists to go up Big Ben. But this last idea had been rejected by the House, and others would also perhaps not be accepted. It was also proposed to reduce the number of senior posts by 10-15%: MPs approved of this idea, but it could pose organisational issues and create a shortage of promotion opportunities.

Dr Ulrich SCHÖLER (Germany) said that the same debate had taken place in the Bundestag, which was currently free to visit, something that MPs did not want to change. Dr SCHOLER wanted to know where the savings had been found in the Dutch Parliament, saying that reducing staff numbers could increase others’ workload considerably and create health problems at work, which had been identified in the Bundestag.

Mrs Jacqueline BIESHEUVEL-VERMEIJDEN explained that the savings plan had been devised in collaboration with staff from the political groups and parliamentary staff. Around one hundred suggestions had been made,

40


23 had been taken on board, among them the closure of certain restaurants, and limits on the numbers of written questions that could be asked of committee secretariats – although demand continued to increase. At the same time, it was essential to avoid hours and working conditions becoming such that many staff, especially young staff with children, left the administration. This would be a serious loss, especially in terms of institutional memory.

Mr Mohammad Kazim MALWAN (Afghanistan) asked what exactly the Parliament’s budget covered, and whether this included the costs of the parliamentary groups.

Mrs Jacqueline BIESHEUVEL-VERMEIJDEN replied that the money went to the parliamentary groups and not to the political parties. This money, which was part of the parliamentary budget, could never be used to finance the parties.

Mr Paul GAMUSI WABWIRE (Uganda) said that the Ugandan Parliament was also trying to reduce its costs, by limiting the number of foreign trips, reducing the size of delegations, but also through a recruitment freeze, withdrawal from some international organisations, a reduction in the number of seminars organised for MPs and their staff etc.

Mrs Jacqueline BIESHEUVEL-VERMEIJDEN explained that in the Netherlands, the parties themselves decided on the participation of their members in foreign trips.

Mr Alexis WINTONIAK (Austria) said that his Parliament had identified 19 savings measures, and that it had proved difficult to define intelligent savings measures. It was often said in the United States that you had to take advantage of a crisis to restructure, but it was for all that necessary not to forget your long-term objectives to avoid too sharp a deterioration in the service provided.

Mrs Jacqueline BIESHEUVEL-VERMEIJDEN replied that some priorities on which there was no question of scrimping had been defined. A working group had been put in place to improve the efficiency of the parliamentary administration and take long-term objectives into account.

Mr Hans BRATTESTÅ (Norway) explained that in Norway, the Secretary General prepared the budget, which was put to the Presidium, then sent to the Finance Minister for incorporation into the state budget. Last year, for the first time, the Government had reduced Parliament’s budget. When the parliamentary budget was being increased, this could not be to a greater extent than any increase to the state budget. This could cause problems when the state of the parliamentary buildings required remedial work.

Mrs Jacqueline BIESHEUVEL-VERMEIJDEN explained that the Presidium had accepted the Government’s request to cut its budget by 6%, but had done so without reducing the pensions and allowances for parliamentarians nor the budget for the upkeep of buildings.

Ms Corinne LUQUIENS (France) explained that the National Assembly’s budget had been frozen since 2007, and reduced by 3% in 2012,

41


an election year. The normal staff complement of the National Assembly was 1,350 posts, but only 1,200 were currently filled. Printing costs had been reduced, and cuts had been made in every area. She had the impression that limits were now starting to be reached.

Ms Juliet MUPURUA (Namibia; non-member) thought that it was a medium-term challenge to reduce costs through the use of new technologies. Initially, it was important to invest in infrastructure and in the training of parliamentarians, which was a significant cost.

Mrs Jacqueline BIESHEUVEL-VERMEIJDEN said that all inter-continental travel by Dutch parliamentarians was in economy class. She agreed with Ms Mupurua, noting that many technological innovations had been implemented in the Netherlands : these did indeed have a high start-up cost and created needs on the part of parliamentarians.

Mr Manuel CAVERO GOMEZ (Spain) explained that the budget of the Spanish Senate had been cut by 12% in recent years. Pay for parliamentarians and civil servants had been reduced. Public opinion had still not been calmed by these steps and demanded more. He asked if the climate was similar in the Netherlands.

Mrs Jacqueline BIESHEUVEL-VERMEIJDEN thought that when citizens generally were suffering the consequences of budgetary cuts, it was essential to maintain a strong Parliament, which scrutinised these cuts and the good use of public money. This contradiction was part of the interest of the Secretary General’s job.

Mr Heiki SIBUL (Estonia) noted that three austerity plans had been implemented, leading to a 30% reduction in expenses, through cuts in allowances, an 8% cut in staffing, salary cuts, cancellation of subscriptions to many magazines and newspapers, etc. At the end of 2011, further structural reforms were nonetheless demanded, albeit of less significant extent.

Mr Modibedi Eric PHINDELA (South Africa) said that he was struck to see how many Parliaments were subject to budgetary constraints, even though it was their role to approve budgets.

Dr Vivek K. AGNIHOTRI (India) said that in India, in contrast, parliamentarians’ pay had been increased on four occasions over recent years. Moreover, new people had been recruited, a residence was being built for parliamentarians, they had been distributed with iPads, a fund had been created allowing them to fund certain public interest works in their constituencies, and finally, a new parliamentary annex had been built and a new Department providing assistance to parliamentarians had been created.

Mr Austin ZVOMA (Zimbabwe) judged that in his part of the world, it was very difficult to reduce expenses, as these were already very low. Salaries were very slight, and therefore could not be reduced. This meant that the situation was a little different. However, working methods could be improved in the search for greater efficiency.

42


Mrs Jacqueline BIESHEUVEL-VERMEIJDEN thought that Parliament, being financed by taxpayers, needed to manage its own budget in an exemplary manner. However, today it was between a rock and a hard place, public opinion and the media on the one hand, and the essential needs of the institution on the other.

43


THINGS THAT CAN’T BE SAID: LIMITS ON FREEDOM OF EXPRESSION

IN PARLIAMENTARY PROCEEDINGS

—

General debate moderated by Marc BOSCPresident of the ASGP,

Deputy Clerk of the House of Commons (Canada)

“Freedom of speech while engaged in the business of Parliament is perhaps pre-eminent among the individual privileges enjoyed by Members of Parliament. Essentially, this privilege permits Members to deliberate freely in the Chamber or in committee while enjoying complete immunity from civil or criminal prosecution for any comment which might be made. This privilege has important historical roots in Britain, most notably in the Bill of Rights of 1689, which saw freedom of speech formally entrenched in its fullest form in English constitutional law. The Bill of Rights (article IX) states that “the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.” Thereafter, the only limitations of the freedom of speech of Members of the British Commons were those they imposed upon themselves.

In Canada, parliamentary privilege in relation to freedom of speech is enshrined in the Constitution Act, 1867 and the Parliament of Canada Act. Section 4 of the Parliament of Canada Act affirms that the House of Common has, essentially, all of the privileges enjoyed by the British House of Commons. This includes the parliamentary freedom of speech first fully guaranteed by Article IX of the Bill of Rights of 1689. Canadian jurisprudence has established that this freedom of speech is enjoyed both by individual Members and by the House collectively. It is understood as a fundamental right without which Members would be impeded in the

44


performance of their duties. This right to speak during proceedings of Parliament is and must be exercised without hindrance or inhibition.

It is worthy of note that at the opening of each new Parliament, when the Members are assembled in the Senate Chamber to hear the Speech from the Throne, the Speaker, on behalf of the House, addresses the Governor General to “humbly claim[s] all their undoubted rights and privileges, especially that they may have freedom of speech in their debates...” This ritual serves as a powerful reminder that freedom of speech and indeed other privileges enjoyed by Members of Parliament, while now uncontested, were hard won.

How then can we speak in the parliamentary context of things that cannot be said? What are the limitations which apply to the exercise of this vital freedom of speech? In Canadian parliamentary tradition, there are four primary limitations on the freedom of speech enjoyed by Members of Parliament:

First, the protection afforded by parliamentary privilege does not extend to statements made outside of proceedings of Parliament;

Second, Speakers have frequently cautioned Members against the misuse of their freedom of speech to attack persons who lack the means to defend themselves against defamatory remarks made by Members in the House and in committee;

Third, it is generally accepted that Members will refrain from comment on matters which are before the courts (sub judice); and finally,

The Standing Orders— the written rules for debate—confer upon the Speaker the authority to preserve order and decorum in the Chamber. Members are subject to this authority and may be required by the Chair to limit their remarks in submission to it.

With respect to the first limitation, while Members may express themselves with relative impunity in the Chamber or in committee, they are subject to the same legal limitations on freedom of speech which apply to other Canadians when they make statements or publish material in other contexts. These limitations also apply to printed or e-mailed material publicly distributed by a Member of Parliament. It does happen from time to time that Members forget this and get themselves into legal difficulty over things said outside the House. In the same vein, Members taking exception to remarks made by other Members on “Twitter”, and indeed, on other online fora, have risen on points of order, asking the Speaker to intervene on their behalf. The Chair has ruled that postings to Twitter are considered to be outside the House and not within the jurisdiction of the Speaker.

The second category of limitations are not always in the nature of binding obligations. If a Member of Parliament chooses to make critical comments about a member of the public, for example, he or she may well be cautioned by the Speaker, but it is custom only that dictates restraint in such matters.

This does not mean that such actions are taken lightly. Successive Speakers of the House have made authoritative statements warning Members to refrain from remarks about persons who are not in a position to defend themselves. Noteworthy among these statements is that of Speaker

45


Fraser, delivered in 1987. Speaking to the question of freedom of speech in general and of the harm which misuse of this privilege may occasion, Speaker Fraser told the House:

Such a privilege confers grave responsibilities on those who are protected by it. By that I mean specifically the Hon. Members of this place. The consequences of its abuse can be terrible. Innocent people could be slandered with no redress available to them. Reputations could be destroyed on the basis of false rumour. All Hon. Members are conscious of the care they must exercise in availing themselves of their absolute privilege of freedom of speech. That is why there are long-standing practices and traditions observed in this House to counter the potential for abuse.

The sub judice convention, the prohibition against speaking of matters before the courts, is intended to ensure civil litigants and defendants in criminal proceedings get a fair trial and to prevent any undue influence prejudicing a judicial decision or a report of a tribunal of inquiry. The purpose of the convention is actually twofold: to protect interested parties and to maintain a separation and mutual respect between the legislative and judicial branches of government. The convention applies only with respect to courts of record and to matters actually at trial. Speakers have tended to take a cautious approach to the application of this convention, interfering only in those circumstances in which there is a tendency to influence or prejudice. Members have generally heeded warnings and respected rulings from the Chair with respect to matters sub judice.

Parliaments in Australia, New Zealand and elsewhere have adopted practices which specifically recognize the principles of natural justice and apply these to legislative and committee proceedings. Put simply, natural justice is fairness of procedure – more specifically it encompasses the rule against bias and the right to a fair hearing. The New Zealand Bill of Rights Act (1990), for example, provides for every person to have the right to the observance of the principles of natural justice by any public authority. This is reflected in the Standing Orders of the House of Representatives where the principles of natural justice have been applied to select committee procedure by providing opportunities for people to respond to allegations made about them at a committee and for a fair process to be followed when evidence is given. Provision has also been made for the disqualification of a Member for a particular item of business if that Member has displayed clear bias against a person in respect of criminal activity under investigation by the committee. Canada’s House of Commons has not formally recognized the principles of natural justice as justification for limitations on the freedom of speech of Members of Parliament.

In the House of Commons, the limitations on freedom of speech which arise from the authority granted to the Speaker by the Standing Orders are the most amenable to enforcement by the Chair. This is because the Standing Orders impose limitations agreed to by a majority of the Members themselves—the House has decided collectively to accept certain limitations on the freedom of expression of its Members. Thus indecorous, inappropriate or unparliamentary language can lead to direct intervention from the Chair and to an order to withdraw the offending remarks followed

46


by specific sanctions if the order is not complied with. The Chair can also intervene to prevent repetition or irrelevance in the course of debate, although Speakers have tended to allow Members considerable latitude in this regard.

It is a basic principle of parliamentary procedure that proceedings in the House of Commons are conducted in terms of a free and civil discourse, a discourse that is polite, and not rude or offensive, and Speakers work to ensure that reasonable standards of civility are maintained. This framework is designed to ensure that debate conforms to the rules and practices that the House has adopted in order to protect itself from excesses, vesting in the Speaker the necessary authority to enforce those rules and practices.

Having due regard to the importance of the Speaker’s exercise of this authority, it may be appropriate to refer to certain specific categories of “things that cannot be said” that have been established by rule, custom and precedent.

At one end of the spectrum are traditional restrictions obliging Members not to refer to one another by name, but rather by title, position or constituency name. This is intended to guard against the tendency to personalize debate. For the same reason Members are not allowed to address one another directly in the House, but must instead address all of their remarks to the Speaker, and can refer to one another only through the Speaker in the third person.

In addition to these restrictions, the Standing Orders specify that: No Member shall speak disrespectfully of the Sovereign, nor of any of the

Royal Family, nor of the Governor General or the person administering the Government of Canada; nor use offensive words against either House, or against any Member thereof. No Member may reflect upon any vote of the House, except for the purpose of moving that such vote be rescinded.

The prohibition against disrespectful reflections on the persons, institutions or actions listed has traditionally been extended to members of the judiciary.

Initially, it may seem odd that the Standing Orders provide no further restrictions of Members` language. This has in part to do with the importance and weight attached to the various traditions and conventions of the House in this regard. It has as well to do with the fact that the determination of what is and is not acceptable in debate must take place on a case-by-case basis and involve the exercise of the Speaker’s discretion.

By far the most frequent instance of things that cannot not be said is what falls under the general heading of “unparliamentary language”. This includes personal attacks, insults, and obscene, provocative or otherwise offensive language. Speakers must judge on a case-by-case basis whether or not language is unparliamentary, governed by the general rule that any language which may provoke disorder in the House is to be avoided. This is because the offensiveness of particular expressions is closely related to the context within which they are used, to the tone, manner and intention of the Member who utters them and to the degree to which they provoke disorder. A word that in one context might be acceptable might well be deemed unparliamentary in another.

47


The Speaker must therefore subjectively decide what does and does not constitute unparliamentary language in any given situation. The Standing Orders give the Speaker indisputable jurisdiction over the proceedings of the House and most limits on language are left to the Speaker’s discretion, providing a flexible procedural framework. Thus, while some procedural texts have attempted to list forbidden words and phrases, our practice in Canada has drifted away from attempts at this kind of codification.

Adjudicating language sometimes leads to a process of parsing. To give an example, on a number of occasions, former Speaker Peter Milliken emphasized the important distinction between accusing a Member of misleading the House and accusing him or her of doing so “deliberately”. Misleading the House is something that any Member might do unintentionally, but to suggest that he or she has done so deliberately has consistently been held to be unparliamentary.

Similarly, Speakers have ruled that what would be held to be unparliamentary if attributed to a particular Member, can, basically with impunity, be attributed to the Government or to a political party.

Should the Speaker find the utterances of a particular Member to be offensive or inappropriate, he or she will ask that the Member unequivocally withdraw the unparliamentary word(s) or phrase(s). The Member’s apology is accepted in good faith and the matter is considered closed. Failure to withdraw the offending word(s) may result in the Speaker’s refusing to “see” the offending Member if he or she rises to be recognized until the objectionable words have been withdrawn. In extreme cases, the Speaker may elect to “name” the Member, who is then required to withdraw from the Chamber for the remainder of the sitting.

The use of unparliamentary language in the House of Commons tends most often to occur during the daily Question Period, a forty-five minute exchange wherein opposition Members may address questions to any Minister, the Prime Minister included. While the Speaker will sometimes intervene on the spot, Members often rise on points of order immediately after Question Period to draw the attention of the Speaker to remarks which they found insulting or otherwise offensive.

Our Standing Orders also make provision for a fifteen-minute period each day during which Members of Parliament who are not Ministers may make brief statements (one minute or less) to the House. Since other Members have no right of reply to these statements, Speakers have intervened more readily on occasions in the past in which Members have used these statements as an opportunity to mount personal attacks.

In this regard, former Speaker Milliken stressed that, as with most rights, the right to freedom of speech in the House was never intended to be an absolute right to unbridled oratory. With freedom of speech, he underlined, comes a responsibility for all Members to respect the rules that prevent abuses.

In summary, Members of Parliament are free to speak on any subject in the Chamber and in committees of the House without fear of any legal responsibility for what they say. While this freedom is in theory absolute, the House has, of its own accord, imposed certain limitations on it,

48


endowing its Speaker with the authority and discretion necessary to serve as arbiter of those limitations. The result, if all things function as they should, is a civil and substantive discourse, enhanced and not limited by the absence of the ‘things that can’t be said.’”

Dr Vivek K. AGNIHOTRI (India) presented a written contribution, as follows:

49


Introduction1. Freedom of speech and expression constitutes the breath of life of

democracy. In democratic constitutions, the freedom of speech and expression is the fundamental right of the citizens. This freedom, however, is not absolute and is governed by the norms of decent conduct in a civilised society. Members of Parliament enjoy the freedom of speech while participating in the debates and discussions in the House so that they can discharge their responsibilities without any let or hindrance. Undoubtedly, the Members have to remain sensitive and responsive to the public interests and opinions. They are also expected to adhere to the parliamentary etiquette and high standards of behaviour while conducting themselves inside as well as outside the legislature.

Constitutional provisions and Rules of Procedure as limits on freedom of expression

2. Article 105 of the Constitution of India inter alia provides the powers, privileges, etc. including the freedom of speech and vote of the Members inside the Parliament without subjecting them to the scrutiny of the courts. However, these are subject to the provisions of the Constitution, rules and standing orders regulating the procedure of Parliament. The Constitution, under Article 121, has also placed restrictions on deliberations in Parliament by prohibiting discussions with respect to the conduct of a Judge of the Supreme Court or of a High Court in the discharge of his duties, except upon a motion for presenting an address to the President praying for the removal of the Judge.

3. The business of the House is governed not only by the Rules of Procedure and Conduct of Business in the Council of States (Rajya Sabha), but also the rulings as well as the directions from the Chair and conventions of the House. The Presiding Officer, who is entrusted with the task of preserving order and enforcing the rules, has to strike a delicate balance in protecting the rights of the Members and, at the same time, upholding the dignity and decorum of the House. The Rules of Procedure and Conduct of Business in the Council of States provides for penal provisions in case of disorderly conduct by Members. For example, Rule 255 states:

The Chairman may direct any member whose conduct in his opinion grossly disorderly to withdraw immediately from the Council and any member so ordered to withdraw shall do so forthwith and shall absent himself during the remainder of the day’s meeting.

Rule 256 provides:(1) The Chairman may, if he deems it necessary, name a member who

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

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

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

50


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

Rules to be observed while speaking4. Rules of Procedure and Conduct of Business in the Council of States,

contain specific rules which govern the conduct of Members while speaking. Rule 238 states that a Member while speaking shall not: (i) refer to any matter of fact on which a judicial decision is pending; (ii) make a personal charge against a Member; (iii) use offensive expressions about the conduct or proceedings of the Houses or any State Legislature; (iv) reflect on any determination of the Council except on a motion for rescinding it; (v) reflect upon the conduct of persons in high authority unless the discussion is based on a substantive motion drawn in proper terms (The words “persons in high authority” mean persons whose conduct can only be discussed on a substantive motion drawn in proper terms under the Constitution or such other persons whose conduct, in the opinion of the Chairman, should be discussed on a substantive motion drawn in terms to be approved by him); (vi) use the President’s name for the purpose of influencing the debate; (vii) utter treasonable, seditious or defamatory words; (viii) use his right of speech for the purpose of obstructing the business of the Council.

Allegations against Members5. Similarly, Rule 238A of the Rules of Procedure lays down that no

allegation of a defamatory or incriminatory nature shall be made by a Member unless the Member has given adequate advance notice to the Chairman and also to the Minister concerned so that the Minister may be able to make an investigation into the matter for the purpose of a reply. It further provides that a Member may be prohibited from making any such allegation if the Chairman is of opinion that it is derogatory to the dignity of the House or that no public interest is served by making such allegation.

Questions to be asked through Chairman6. Rule 239 provides that if a Member desires to make an observation on

a matter before the House or to ask a question of another Member, either to obtain clarification or for the purpose of any elucidation or explanation about a matter which is under consideration of the House, he has to do so through the Chair. As per the convention of the House, he must not address individual Members of the House while speaking, but should always address the Chair and make all remarks to other Members through the Chair. It is desirable that, as far as practicable, a Member should not be referred to by name but in some other suitable way e.g. ‘the Member who has last spoken’, ‘the Member representing such and such State’, ‘the Member from …’ etc. If necessary, full name may be used. Similarly, Ministers should be referred to by their specific designation and not by name.

Irrelevance or repetition7. Under Rule 240, the Chairman has the power to direct a Member to

discontinue his speech, after having called the attention of the Council to the conduct of the Member, who persists in irrelevance or in tedious repetition either of his own arguments or of the arguments used by other Members in debate.

51


Order of speeches and right of reply8. Under Rule 242, a Member has to follow the order of speeches and

right of reply as follows: (1) After the member who moves a motion has spoken, other members

may speak in such order as the Chairman may call upon them. If any member who is so called upon does not speak, he shall not be entitled, except with the permission of the Chairman, to speak to the motion at any later stage of the debate.

(2) Except in the exercise of a right of reply or as otherwise provided by these rules, no member shall speak more than once to any motion, except with the permission of the Chairman.

(3) A member who has moved a motion may speak again by way of reply, and if the motion is moved by a private member, the Minister concerned may, with the permission of the Chairman, speak (whether he has previously spoken in the debate or not) after the mover has replied:

Provided that nothing in this sub-rule shall be deemed to give any right of reply to the mover of an amendment to a Bill or a resolution save with the permission of the Chairman.

When Chairman rises9. Rule 243(1) provides that whenever the Chairman rises, he shall be

heard in silence and any Member who is then speaking or offering to speak shall immediately sit down.

Expunction of words from proceedings10. Rule 261 of the Rules of Procedure provides that if the Chairman is of

opinion that a word or words has or have been used in debate which is or are defamatory or indecent or unparliamentary or undignified, he may in his discretion, order that such word or words be expunged from the proceedings of the Council. In practice, the scope of this power has been enlarged and in some cases, the Chairman has ordered, in his discretion, the expunction of words which he considered: prejudicial to national interest or to the maintenance of friendly relations with a foreign State; derogatory to high dignitary including heads of friendly foreign States; offending national sentiments or the religious susceptibilities of a section of the community; likely to discredit the Army; not in good taste; or otherwise objectionable and likely to bring the House into disrepute.

11. An expunction from the proceedings may be ordered: (i) by the Chairman suo motu if he holds certain words as defamatory, indecent, unparliamentary or undignified; (ii) when the Chairman's attention is drawn by a Member or a Minister to objectionable words at the time they are uttered or subsequently and if the Chairman agrees; (iii) when the Chairman's attention is drawn by an officer of the Secretariat or otherwise to the objectionable words and if the Chairman agrees; (iv) where a Member himself requests that words from his speech may be expunged and if the Chairman agrees; and (v) if derogatory remarks are used by Members against each other.

12. When a Member speaks without being called upon to speak, or despite being asked to resume his seat continues to speak, or speaks

52


without the permission of the Chair, the Chair may direct that remarks of such a Member may not form part of the record. Likewise, if a Member continues to interrupt the speech of another Member or Minister, the Chair may direct that interruptions be not recorded.

Declaration of Interests13. The right to information has enabled citizens to secure information

under the control of the public authorities and it serves the larger cause of promoting transparency and accountability in the functioning of public authorities and institutions. In this context, the issue of conflict of interests has assumed greater significance as the perception that private interests can influence parliamentary activity and participation of Members of Parliament would be influenced by their private interests. Regulating conflict of interests has, therefore, become a means to control misuse of public office for personal gains in many democracies. Rajya Sabha has also put in place a robust and practical regime for regulating the conflict of interests in a fair, reasonable and harmonious manner. Rule 294(1) states that whenever a Member has a personal or specific pecuniary interest (direct or indirect) in a matter being considered by the Council or a Committee thereof, he shall declare the nature of such interest notwithstanding any registration of his interest in the Register, and shall not participate in any debate taking place in the Council or its Committees before making such a declaration. Sub-rule (2) of Rule 294 provides that on a division in the Council, if the vote of a Member is challenged on the ground of personal, pecuniary or direct interest in the matter to be decided, the Chairman may, if he considers necessary, call upon the Member making the challenge to state precisely the grounds of his objection, and the Member whose vote has been challenged shall state his case, and the Chairman shall then decide whether the vote of the Member should be disallowed or not and his decision shall be final.

Conclusion14. The freedom of speech and expression enjoyed by the Members is

limited by certain constitutional provisions, rules of procedures and established Parliamentary customs, conventions and etiquette which they need to observe both inside the House as well as outside it. The various customs and conventions are listed in the ‘Handbook for Members’ issued by the Secretariat from time to time. These are more in the nature of Do’s and Don’ts to guide the Members in their parliamentary behaviour. There is also a Code of Conduct, which contains certain do’s and don’ts for Members, and inter alia states that Members must not do anything that brings disrepute to the Parliament and affects its credibility. Today, when the parliamentary institutions face a critical challenge of declining public trust and confidence, Members need to observe high standards of conduct while participating in the proceedings of the House. This also demands observance of rules and showing respect to the Chair, who is entrusted with the task of managing the time of the House in an efficient and effective manner.”

53


Ms Corinne LUQUIENS (France) explained that the rules in France were very similar to those in Canada, the general rule being freedom of expression guaranteed by legal immunity. In counterbalance, there were a certain number of rules to respect, the breach of which could be sanctioned. These sanctions went from a simple call to order to expulsion from the precincts of the Assembly. They could be accompanied by financial sanctions, which seemed moreover the most effective. She asked what sanctions were provided for in the Canadian Parliament.

Mr Hans BRATTESTÅ (Norway) explained that the Norwegian constitution was greatly inspired by the French, but that Norwegian practice was closer to the British. A similar system of immunities existed in Norway, with inappropriate behaviour or offensive language being forbidden. The Speaker could in such a case cut off a speaker mid-flow, or even exclude him from the Chamber for the day. The rules on speaking demanded that MPs addressed themselves to the Speaker. Discipline was very strong, which could sometimes make the business rather boring. The rules were almost never broken.

Mr Alphonse K. NOMBRÉ (Burkina Faso) asked who it was that claimed that parliamentarians were abusing their freedom of expression, and whether their immunities extended beyond the Chamber.

Mr Vladimir SVINAREV (Russian Federation) explained that the main limits on freedom of expression for MPs in Russia consisted in not inciting acts of violence and not making ungrounded accusations. In such cases, the Speaker could deprive an MP of the floor without warning. Criminal sanctions were also envisaged where false information was presented.

Mr Ibrahim MOHAMED IBRAHIM (Soudan) noted the existence of a Code of Conduct in Sudan. First of all, MPs could only read their speeches when they were quoting another person. They could not talk about any matter being considered as part of an inquiry or before the courts. They could not make accusations against individuals, or particular faiths or organisations. They also could not speak in a disrespectful manner to the Speaker or Deputy Speakers. It was the Speaker who decided if these limits had been breached.

Mrs Doris Katai Katebe MWINGA (Zambia) explained that parliamentarians regularly complained when they were called to order for having criticised absent colleagues. Complaints from members that others had made defamatory remarks about them in public session were no less uncommon. As in Norway and India, there was a little book of ‘unparliamentary’ words. For example, reciting poetry was not allowed. Nor was pointing at someone with your finger.

Mr Manuel CAVERO GOMEZ (Spain) asked if it was possible in Canada to impose a fine, and if this kind of sanction was not more judicious than expulsion, given that the right to sit in Parliament was fundamental to Members.

Mrs Jacqueline BIESHEUVEL-VERMEIJDEN (Netherlands) noted a great similarity between the Canadian and Dutch systems. She thought that

54


the hardest rules to apply in the Netherlands concerned behaviour: gestures, tone of voice, intentions, were sometimes complex to interpret. As parliamentarians were representatives of the people, it was sometimes impossible to enforce a certain register or to insist repeatedly that they address others in the third person.

Ms Claressa SURTEES (Australia) also noted the many similarities with the Canadian system. She explained that parliamentary debates had evolved greatly since they had been broadcast on radio and television, as shocking soundbites could be repeated many times on the airwaves, an opportunity that MPs well knew how to exploit. Outside elements could influence not only the content, but also the form of parliamentary discourse. She noted that MPs used Twitter a great deal : comments made on Twitter were not covered by parliamentary immunity.

Mr Henry H. NJOLOMOLE (Malawi) asked if a Canadian MP who attacked another physically following disobliging remarks would be proceeded against in the courts, or if this matter would be dealt with internally by Parliament.

Mr Edwin BELLEN (Philippines) explained that the rules of the Philippine Senate stated simply that words that could offend a senator or public institution should not be spoken, but there was no exhaustive list of ‘unparliamentary’ remarks. Offending remarks could be struck from the record. The ethics committee could determine sanctions, the most severe of which was expulsion for a maximum of two months.

Mr Mohammad Kazim MALWAN (Afghanistan) asked if the sanctions imposed on MPs could be appealed against, and if there was a system for making apologies.

Mrs Philippa HELME (United Kingdom; substitute member) said that the British system was also very similar to the Canadian one. She thought it could be useful to think of a system incorporating a right of reply. Remarks about individual citizens could have caused problems in recent years, but it had not yet been thought appropriate to regulate them.

Mr Modibedi Eric PHINDELA (South Africa) asked if, as in South Africa, there existed in Canada a system of right of reply in the Journal. He also wanted to know if the immunities and privileges extended to places outside the precincts where the House or some of its bodies might meet. Finally, he asked if parliamentarians were protected in respect of their remarks made at public meetings or in their constituencies.

Mr Philippe SCHWAB (Switzerland) asked if the measures taken by the Speaker could be contested in the Bureau or Chamber. Were ‘unparliamentary’ remarks nonetheless published in the transcript of debates? As Commonwealth systems seemed very strict, was this a result of abuses or excesses, or was it a part of Canadian culture?

Mr Claes MARTENSSON (Sweden) said that he came from an extremely consensual country, so consensual in fact that people sometimes wondered if there was really any debate to be had in Parliament. It was rare

55


for remarks to be made that were judged inappropriate, and Speakers were hesitant to sanction them, as they were themselves little inclined to conflict.

Mr. Marc BOSC (Canada) explained that Canada no longer had a list of ‘unparliamentary’ remarks, and situations tended to be managed on a case by case basis. He explained that it was extremely rare for a Speaker to expel a Member, because this tended to create a media circus that was more to his advantage than the sanction was to his disadvantage. Suspensions by the Speaker were for only a day. The Chamber could theoretically decide on a longer term, following a more complex procedure, with an accompanying fine, but there were no precedents for this. Immunity applied only to remarks made within the precincts of Parliament. Mr Bosc thought that the distinction between criticism and defamation was sometimes fine. Remarks made outside Parliament had to be taken up before the ordinary courts. The public perception of MPs was often very negative, as attested to by the quantity of mail received from those watching Parliament on television or from class groups come to visit the Chamber. Cases of physical violence in the Chamber could be dealt with in the Chamber, however, if this violence was serious, it would be possible to call in the police and immunity would not apply. The decisions of the Speaker could not be challenged. Offensive words were reproduced in the official record, because in any case debates were recorded. A rule allowed for words to be struck from the record, but this procedure had never been used because it would be of very little effect. These strict rules were the product of a tradition particular to Canadian culture.

56


THE KNESSET VISITORS CENTRE - TRANSPARENCY AND ACCESSIBILITY

—

Yardena MELER-HOROWITZSecretary General of the Knesset (Israeli)

“Today I am going to talk to you about a new initiative that we have undertaken at the Knesset. A Visitors Center whose whole idea or aim is to open the Knesset or parliament to the people.

The word Knesset in Hebrew means “gather” and as such it is a gathering of voices in order to voice the needs of the people. The Knesset has always been open to the public to a certain extent, with a public gallery and organized tours. However, in this age of instantaneous information and media coverage, we saw the need to go one step farther.

In the past we had three types of tours, which were mainly frontal lectures in the two official languages of Israel, Hebrew and Arabic, and we offered special tours in other European languages on demand.

In addition, The Ministry of Education’s department for democracy brought high school students to the Knesset and Supreme Court, as part of the national key stage 2 civics curriculum, In order to give them the chance to see democracy in action.

However, this was also not enough. It didn’t reach everyone. For it was untenable that a high school student would have never visited the Knesset during his studies

Not only that, the existing Knesset TV channel and internet coverage, both of which broadcast real-time to the public, was also not enough, we wanted to make the entire Knesset accessible to every sector of the community.

57


So this is what we have done:On inaugurating the new wings and adding archaeological parks,

connected to the building, we added an archaeological and architectural tour, but this was still not enough.

We added hours and days for visits.And you can now visit the Knesset every working day and as we doubled

the size of the Knesset campus, we can triple the number of visitors.But this was still not enough.The tours used to be stilted and even esoteric – they did not reach out to

the people and did not allow all sections and levels of our society to relate to and understand the Knesset.

We wanted to ensure that the most important underlying theme of our new tours is to make certain that visitors would come away from the Knesset with a working knowledge of the processes involved, that they would feel more confident in their elected representatives, that there would be more transparency and accessibility through which the public builds its trust and confidence in their elected representatives and the electoral process.

Therefore, the next step was to update all of our tours to incorporate all ages from 3-93, all communities from all walks of life. With that in mind, we crafted tailor-made tours to suit pensioners, kindergarten children, teenagers, tourists, students, and new immigrants.

Adult tours are of course easier to build, but the challenge was to make the Knesset and the ideas of democracy accessible to little children, for our future is in their hands. The challenge was: How to teach democratic values and freedom of speech, expression and thought to a four year old!

We devised a tour for kindergarten children, which includes a combination of classic children’s and well-loved literature, dealing with democratic values and free speech.

The children get to visit the plenum itself where they vote, bang the gavel and talk about how they would run the country, at the same time discussing the story that they have read in the context of problem solving. ‘Who is going to be responsible for the mess in the sandpit!’ Bringing the values we mentioned before into a context that they can understand and take home with them.

For older school children who have studied the topic in advance just like the kindergarten children, we have devised a model parliament where they have the chance to pick political parties, build their own manifesto, convince their voters and hold an election. (Purple Party, Red Party, etc.)

We work together with the Education Ministry for all ages, and for high school students we deal with the actual legislative process and how a law is formed, passed through the committee stage, preliminary readings and then is finally voted upon. Students are given the opportunity to see things in action - it becomes real to them and they can “latch on”, they can “get it”.

58


We are all aware of comparative research which has shown that the public’s lack of confidence and trust in their parliaments is gaining momentum. The sad reality being that we chose our representatives and the minute they cross the threshold of the building, the very same public who chose them now decides to criticize them!

And so, this type of activity where students are actually involved in the process allows them to identify with the Knesset and everything that goes on inside that “ivory tower”, in real time. They get to sit in the actual committee rooms, talk through the mikes, go and watch the Knesset channel in action and even get to talk to an actual live MP! It’s real, it’s accessible and it’s tangible.

The Knesset is brought to them and they understand that it is their Knesset and their lives which are being discussed in the plenum.

And we have devised a series of special interest groups for different language populations who may have cultural or religious preferences. This way we have adjusted our tours to be culturally diverse and of interest to any visitor whatever his community or belief system.

And finally, we have incorporated a visit to the Knesset as part of every soldier’s and security forces, educational field trip, either during his national service, or as part of annual in-service training. Here notions of democracy and problem solving are incorporated in the security forces' brief, in order to help citizens who are active in security matters to retain the importance of democratic values.

Just two months ago, we celebrated “Arbor Day” where we traditionally plant trees and talk about ecological matters, but this is also the Knesset’s official birthday. As such, this year, for the first time, the Visitors Center took it upon itself to open the doors of the Knesset and organized an enormous public event where everyone could come to the Knesset and take part in a variety of cultural and educational events. It was a wonderful jamboree.

4000 children, students, soldiers, and pensioners came to hear a variety of lectures by MPs and the Knesset Speaker and myself, and we gave a series of lectures about democracy in action and how the plenum works.

There were MPs who read stories and gave craft workshops to little children. There were MPs who talked about their original professions or even gave a flower arranging demonstration. There were events to suit all tastes and interests. And the whole day was interlaced with musical interludes in corridors and a jazz band made up of music students in the cafeteria. Visitors were even welcomed in the forecourt by the police marching brass band. It was a party for democracy!

The Visitors Center has been open since December and we are delighted with the response we have had from the public.

We feel that the activities that we have developed in the Visitors Center have not only given the public the opportunity to interact favourably with the workings of the Knesset, but they have become intimately involved with the Knesset. They have walked the same corridors they see on TV. They can

59


meet the MPs and they can truly understand that this is their house, these are their representatives

Transparency is not looking through, it's looking in – the public can look in to the workings of the Knesset, look in to debates not just look AT debates. We have created the opportunity for our community to feel connected to the Knesset and after all, we, at the Knesset are part of the community as well.”

Mr Mohamed Kamal MANSURA (South Africa) congratulated Mrs MELER-HOROWITZ on her enthusiasm. He underlined the importance of involving citizens in Parliament’s activities, through visits. Cape Town was situated at the southern tip of South Africa, and was not easy for all citizens to access. A virtual tour, leaflets for children and many other initiatives had therefore been designed to bring Parliament to the citizen.

Mr David BEAMISH (United Kingdom) made clear that these issues were also a central subject for thought in the United Kingdom. A report had been published some time before showing that Parliament was in reality not very accessible, especially for people living far from London. A programme had been put in place in the Lords called “Peers in schools”. Debating competitions in the House of Lords Chamber had also been organised. As the parliamentary buildings were of the highest heritage value, it was also necessary to prevent an influx of too many tourists.

Mr Johannes JACOBS (Namibia) explained that he had visited the Knesset not long before, and participated in a seminar on this issue.

Mr Emmanuel ANYIMADU (Ghana) thought that this type of initiative was a model and asked Mrs MELER-HOROWITZ to send him more information about the content of the visits.

Mrs Jacqueline BIESHEUVEL-VERMEIJDEN (Netherlands) mentioned the House of Democracy, opened the previous year in the Netherlands. 182,000 people had visited it in a year. She hoped to visit the Knesset to see its Visitor Centre for herself.

Mrs Yardena MELER-HOROWITZ added that the Visitor Centre had not been very expensive, with other savings having been made elsewhere as well. The visit programmes were devised in collaboration with staff of the Ministry of Education. The reaction from the public had been very enthusiastic, with around 16,000 visitors a month. Currently, the Knesset was thinking of devising a programme for disabled people.

60


IS IT NECESSARY TO CONSTRAIN DEBATE IN PLENARY SITTING?

—

Corinne LUQUIENSSecretary General of the National Assembly (France)

“In representative democracies, citizens are represented in assemblies. It is thus perfectly natural that the various opinions which coexist within society should be expressed within such assemblies. It is clearly preferable that such a confrontation between ideas should take place in Parliament rather than in the streets.

However Parliament is also the place where laws are passed. In order for it to be able to carry out this task, there must be a governing majority which allows the political policies which have obtained the largest number of votes to be implemented. It is essential that Parliament not be reduced to impotence on account of the lack of a governing majority or of the excessive extension of debates.

The way debates in Parliament are organized must lead to these two objectives being reconciled. The consideration of bills must allow all the different political opinions represented in the assemblies to be expressed. However if the debates are not kept within certain boundaries, they can become bogged down through obstruction tactics and it can thus become impossible, or at least excessively long, to have laws passed.

Faced with the increasingly imaginative development of such obstruction tactics, the French National Assembly has, since the latest constitutional reform, instituted a relatively detailed procedure for constraining debates which, of course, has met with criticism from the opposition.

This paper will first of all look at the methods of obstruction which have been developed in the French National Assembly and will then describe the new procedure for constraining debates which has been implemented since

61


2009. The ensuing discussion should enable us to assess this new procedure in the context of the experience of other parliamentary systems.

I – THE DEVELOPMENT OF OBSTRUCTION PROCEDURES The term parliamentary obstruction refers to the extensive use of all the

possibilities provided by the Constitution and the Rules of Procedure of the assemblies to have a parliamentary debate last longer and, if possible prevent, or at least considerably delay, the passing of a bill.

It is a practice which is known, in one form or another, in many Parliaments (the term “filibuster” was invented in the United States and is translated as “filibuste” in Belgium) and which is, of course, used by the opposition.

In concrete terms in France, during the Fifth Republic, obstruction, used by both the left and the right, is a set of tactics designed to delay, as much as possible, the passing of a bill.

The term “obstruction” is, of course, not mentioned in either the Constitution or the Rules of Procedure of the National Assembly. However it is hinted at in several articles of these documents which make provision for mechanisms to accelerate debate. The Rules of Procedure of the National Assembly even explicitly mention the case of an M.P. who “attempts to obstruct freedom of debate or of voting”.

Despite M.P.s having various limits placed on their total freedom of speech and action, they still have many means of obstruction at their disposal.

The continuing development of obstruction tactics over the last thirty years has led to a search for new ways to deal with what is considered by some to be a deadly disease and by others as a necessary evil.

1. Despite the regulation of debates the possibilities for obstruction remain

1.1 An organization of debates which places strict limits on initiatives and on how M.P.s take the floor

This paper only deals with debates in plenary sitting as obstruction no longer takes place in standing committees. In the past, it was possible to use delaying tactics in a standing committee, especially through the proposing of procedural motions, but this is now impossible because such motions can no longer be proposed. It was also possible to obstruct by means of the tabling of a very large number of amendments. The aim of such tactics was to delay or stop the adoption of the report by the committee as this was, according to the Rules of Procedure, the necessary condition for the bill to be considered in plenary sitting. However, in 1984, the French Constitutional Council ruled that ignorance of the provisions of the Rules of Procedure, which do not in themselves have a constitutional value, concerning the content and the form of the reports would not in itself have the effect of rendering the legislative procedure contrary to the Constitution as the latter only requires a bill to be referred to one of the standing committees of the assembly before which said bill has been tabled.

62


Since this time, the practice of obstructing at a committee level has had much less impact and has practically disappeared altogether.

1.1.1 The Rules of Procedure of the Assemblies avoid anarchyUnruly behaviour which goes against the Rules of Procedure is punished

by disciplinary action:- The type of physical obstruction which occurs in certain Parliaments

has never happened in France and would be dealt with by the police powers falling within the remit of the chairman of the sitting who can actually have recourse to the use of force.

- No one can take the floor unless he/she has been permitted to do so by the chairman of the sitting. Any M.P. who so speaks without such permission is liable to disciplinary action.

- In a similar way, all forms of disturbance of the debates can be punished by disciplinary action which can lead as far as ejection from the entire Palais Bourbon (the Lower House of Parliament).

1.1.2 Freedom of speech has quite strict rulesThe main aim of obstruction is to extend the debates in plenary sitting.

The means used to attempt to do this usually concern the lengthening of the time given over to speaking.Procedural motions

The first weapon in the arsenal of obstruction is the proposing of procedural motions.

Originally there were three such motions: the ‘objection of admissibility’ whose goal is to prove that a bill would be contrary to the Constitution, the ‘preliminary question’ which is based on the fact that a bill would be useless or untimely and the ‘motion of referral back to committee’ which attempts to underline the insufficient nature of the work of the committee. If either of the first two motions were adopted then the bill was rejected whilst the adoption of the third led to the bill being re-examined in committee.

At the outset, the time given over to the proposing of such motions was not limited. The absolute record was reached during the proposal of an objection of admissibility which was defended for 5 hours and 25 minutes. After this ‘exploit’, the Rules of Procedure were modified for the first time in this field and a time limit of one and a half hours was imposed. Since that time, this limit has been reduced to 30 minutes during first reading and 15 minutes for subsequent readings.

In addition, the first two types of motion have been gathered together in a single one now called a ‘preliminary rejection motion’. Thus, along with the motion of referral back to committee, this is now only one of two possible procedural motions which can be proposed on each bill. It should be added that these motions, which are always proposed by the Opposition, have no chance of being adopted, except by accident in the case of the ruling majority being temporarily outnumbered numerically. This case has only occurred twice in the history of the Fifth Republic. It is thus primarily a way for the Opposition to gain extra speaking time at the beginning of a debate.

63


The General DiscussionAt the French National Assembly, the speeches made during the general

discussion, which, after the procedural motions, constitutes the first phase in the consideration of a bill, have never been marked by obstruction tactics. The reason for this is because these debates are organized by the ‘Conference of Presidents’ which lays down an overall timing that is distributed between the political groups and the non-enrolled M.P.s. The discussion of articles

All of the speeches made by M.P.s during the discussion of the articles phase have maximum time limits imposed:

Speeches on articles were originally limited to 5 minutes but this has been reduced to 2 minutes. Their number however is not limited except through a closing procedure which allows the chairman of the sitting to interrupt the discussion once two speakers of opposing opinions have taken the floor.

For each amendment the following make take the floor: the author of the amendment, a speaker of an opposing opinion, the committee and the Government as well as a speaker to reply to the committee and to the Government, if the chairman of the sitting deems such speeches useful. In practice, the chairman systematically gives the floor to a speaker if he/she requests it and often allows several speakers to take the floor. These various speeches have also been reduced from 5 to 2 minutes.

Explanations of vote are of 2 minutes and have also been reduced from 5 minutes. These are allowed on the procedural motions and on the articles. However when they deal with an overall text, they remain of a 5-minute duration.

1.2 These rules do not create an obstacle to the development of obstruction tactics 1.2.1 Procedural incidents can take many forms

Points of OrderM.P.s who feel that the rules concerning the legislative procedure have

not been applied, have the right to call the attention of the chairman of the sitting to what they believe to be the non-respect of such rules and may ask him to intervene.

This notion means that there is no restriction on the use of this right as long as the very legality of the deliberations is challenged. Thus: “Points of order and requests relating to the running of the sitting shall always take precedence over the main question; they suspend discussion of the question. Leave to speak shall be given to any M.P. seeking it for this purpose, either immediately or, if another M.P. has the floor, when he has finished speaking”.

The priority which is given to points of order explains why they are often diverted from their original purpose and are used to raise issues which have no real link with the agenda or with the Rules of Procedure.

64


A classic theme of points of order concerns the absence of a minister considered essential or the presence of a minister who is considered not to be ‘competent’ to deal with the issue. M.P.s also sometimes request the committee to interview a particular person whose view on the subject they consider necessary in order for the Assembly to be properly informed. Such points of order are easily dismissed by the chairman of the sitting who reminds the Assembly that, in the first case, it is the prerogative of the Government to decide by whom it is represented and in the second case, the committees are in control of their own proceedings. In addition, it is also quite frequent that M.P.s make reference, for as long a time as the chairman of the sitting permits, to events external to the work of the Assembly. This might be the case, for example, during the discussion of a bill dealing with social issues, when M.P.s could refer to social conflicts taking place in a company or demonstrations occurring in the country. Naturally, these points of order have no other influence on the debate than to slow it down, especially when there are a great number of them.

Suspensions of sittingSuch suspensions can be obtained automatically when they are

requested by the chair of a political group or by the M.P. who has been appointed to represent the chairman of the group and their aim is to have the group meet. Nonetheless they are often requested with the goal, or on the pretext, of obtaining the communication of documents or of suggesting a new meeting of the committee for example.

If the suspension of sitting is used in a systematic way, it can represent an important factor in disorganizing parliamentary proceedings. If the chairman of the sitting is faced with several successive such requests, he/she may be led to disallow them by arguing in particular that they do not have the goal of leading to a meeting of the group. In all cases, it is accepted that it is the prerogative of the chairman of the sitting to set the length of the suspension and this period is often shorter than that which is requested.

Request for the checking of the quorumIn the French National Assembly, the Rules of Procedure state that “the

House may deliberate and determine its agenda whatever the number of M.P.s present” and that “votes taken by the House shall be valid whatever the number of M.P.s present”. Nonetheless, a chairman of a political group may personally request the checking of the quorum before the beginning of a ballot. The quorum refers to the presence, in the precincts of the National Assembly, of an absolute majority of M.P.s calculated according to the number of seats actually filled. When the quorum is not reached the sitting is suspended.

Originally the ballot could not take place less than three hours afterwards. This procedure was thus often used to delay debate because it happens that in the National Assembly the quorum is never reached especially during sittings which take place in the evening. The length of the suspension was thus reduced to one hour and then, during the last reform of the Rules of Procedure, to 15 minutes. In addition, from now on, the majority of the political group which makes the request must be present in the Chamber.

65


As, at the end of the suspension, the vote is valid whatever the number of M.P.s present, the request for the checking of the quorum has lost much of its interest as a means of obstruction and has thus ceased to be used.

Repeated requests for public ballotsRepeated requests for public ballots hold the debate up: when such a

request is made to the chairman of the sitting, the latter announces it in plenary sitting and the vote may not take place in less than 5 minutes after such an announcement. The opposition thus takes every advantage of using this procedure. The record was broken in a debate which took place in July 2004 when 126 public ballots were requested during the 141 hours which the Assembly gave over to the consideration of a bill.

66


1.2.2 In order to maximize the speaking time in plenary sitting the main weapon is the tabling of a huge number of amendments

Since the speaking time on amendments is limited yet guaranteed, a most efficient means of obstruction in the National Assembly was developed using the tabling and the stout defence of a huge number of amendments (this is called the ‘flood of amendments’). Thus obstruction is fundamentally linked to the right to amendment.

To gain some idea of the extent of such a phenomenon one must look at some statistics on the records which have been broken concerning certain bills. The five bills which have seen the greatest number of amendments tabled during the Fifth Republic are the following:

03.10.2006

Bill concerning the energy sector 137 665

20.01.2005

Bill on the regulation of postal activities 14 888

15.02.2003

Bill on the election of regional councillors 12 805

03.07.2003

Bill reforming the retirement regime 11 153

20.07.2004

Bill concerning the health insurance scheme 8 495

If one observes the same statistics for equally controversial bills in the 1980s, one may obtain some idea of the development of this phenomenon:

13.02.1984 Bill on the freedom of the press 2 59810.06.1983 Bill concerning the reform of higher

education2 204

26.10.1981 Bill on nationalization 143811.09.1981 Bill on decentralization 923

These figures can, of course, be seen as quite surprising and might even engender a certain admiration for the imagination of the authors of such amendments! However it is necessary to provide certain details which can help to clarify the original surprise. First of all, the right to table amendments is an individual right and the tabling of identical amendments is not prohibited. Thus the first strategy used to multiply the number of amendments consisted in visiting the photocopy machine! It is not infrequent that a same amendment be tabled by all the members of a political group and this, in the case of the main opposition group could amount to more than 200 amendments. After the photocopy strategy came the data processing strategy: it has become fashionable in recent years to table “serial” amendments. Such amendments have an identical main body but with a different date, or a modified interest rate or threshold and this means that the same amendment can be presented in a whole series of different versions.

67


It was precisely by bringing these two methods together that the record of 137,000 amendments was reached. The bill in question reduced the state share in the capital of a public company from 70 to 30 per cent. By modifying this percentage decimal by decimal and by tabling all such motions in the name of each of the members of the opposition, it was not so difficult to reach such a figure.

Consider that every one of the authors of such amendments has, in theory, the right to defend those he has personally tabled. On the basis of a discussion of 5 minutes per amendment, the calculation was made that it would take 11,500 hours, i.e. 475 days of debate to consider them all. In fact, after two weeks of sitting, without all the amendments being defended, there were still 94,000 in discussion. Weariness won the day and an agreement was reached between the ruling majority and the opposition which led to the end of the discussion after 122 hours.

There are, of course, certain weapons which can be used to reduce the number of amendments in discussion.

First of all, the Constitution allows the Government to declare the inadmissibility of amendments which trespass into the regulatory field. Thus in the case of the bill on the regulation of postal activities, 14,730 amendments were tabled which had exactly the same text but which concerned, for each one, a different post office. Upon the Government’s initiative, they were all declared inadmissible by the President of the National Assembly and this led to the discussion being completed in 23 hours.

Another provision allows the Government to oppose the discussion of amendments which have not been tabled in committee beforehand. However this is only useful in the case of late amendments and this scenario is rarer and rarer as there is now a time limit for the tabling of amendments.

It is also sometimes possible to have a large number of amendments struck off by tabling an amendment which provides an overall wording for an article. However, in this case, the authors of amendments have the possibility of transforming their amendments into sub-amendments.

In addition, the Constitutional Council has accepted, for quite some time, that the assemblies may use means which might normally be considered as excessive, in attempting to fight against obstruction tactics. In a 1994 decision, it judged that the restrictions on the right to table amendments had to be considered in the light of the content of the amendments and of the general conditions of the debate in question.

2. The continuing development of obstruction tactics has led to a search for a radical remedy for what is considered by some to be a deadly disease and by others as a necessary evil. 2.1. Obstruction has been continuously developing since the beginning of the 1980s

The increase in the number of amendments has already been referred to but it should be underlined that this phenomenon must be linked to a

68


change in its objective. Although it is supposed to be a source for legislation, it has become a simple means of obstruction. On account of this fact, the adoption rate for amendments has plummeted.

In 1970, for 2,260 amendments tabled, the adoption rate was 51%.In 1994, for 11,569 amendments, the adoption rate was 21%.In 2002-2003 for 32,475 amendments, the adoption rate was 10%.Through these figures we can see the clear evolution of the character of

debates since the National Assembly now gives over more and more of its time to the consideration of amendments whose real purpose is not to modify the bill in discussion but to delay its being passed.

In any case, it is certain that the legislative process is thus slowed down. To illustrate this, the following table enumerates the time necessary for

the consideration of the bills at the National Assembly which have raised the most controversy.

THE LONGEST DEBATED BILLS

Name of Bill Dates : beginning/end Number of days of sitting Length

Bill on the Freedom of the Press 15 December 1983 to 13 February 1984 20 166 hours 50Retirement Reform Bill 10 June to 3 July 2003 19 157 hours

Bill on Health Insurance 29 June to 20 July 2004 17 142 hours 31

Bill on Higher Education 24 May to 10 June 1983 17 133 hours 15

Bill on the Energy Sector 7 September to 3 October 2006 16 121 hours 46

Bill on Nationalization 13 to 26 October 1981 13 118 hours 45

Bill on Audiovisual Communication 26 April to 15 May 1982 14 101 hours 50

Bill on the Entry and Stays of Foreigners 4 to 17 December 1997 9 90 hours

Bill on Decentralization 27 July to 2 August 1981 8 to 11 September 1981

10 86 hours *

It must, of course, be stated that the above figures only refer to the first reading of each bill before the National Assembly and that, in the framework of the normal legislative procedure, bills must, in France, have two readings before each assembly before the holding of a joint committee between the two assemblies. If the joint committee reaches agreement on a joint text, then that text is put once more to the two assemblies. If the joint committee fails to reach agreement, then a new reading is required before the two assemblies and only then may the Government ask the National Assembly to make a definitive decision.

2.2 This situation has led to the search for a radical weapon against obstruction

69


Until the most recent constitutional reform, the only radical weapon that the Government possessed to deal with obstruction was the use of a procedure provided for by the Constitution whose original aim was completely different.

Article 49, paragraph 3, of the Constitution in fact allows the Prime Minister, after deliberation of the Council of Ministers, to make the passing of a bill an issue of a vote of confidence. In this case, the debate is interrupted. A motion of no-confidence may be tabled within 24 hours. If it is adopted, the bill is rejected and the Government overturned. However, if no vote of no-confidence is tabled or if one is rejected, then the bill is automatically considered as passed.

This procedure was included in the Constitution to allow the Government to have a rebellious ruling majority face its responsibilities. The idea was that such a ruling majority, if it refused to grant the Government its support for the passing of the legislation which the Government felt essential to its policies, would have to draw the proper conclusions by overturning the said Government. The procedure has, in fact, been used to these ends in circumstances where the Government had only a narrow and heterogeneous majority.

However, as of the middle of the 1980s, the procedure was also used not just to rein in the ruling majority but also to interrupt a debate when the opposition was determined to have it last as long as possible. This practice, which was certainly not that imagined by the framers of the Constitution, led to many criticisms based on the fact that it represented a disproportionate use of force by comparison with the obstructive tactic. Among other cases, this procedure was used to speed up the passing of a bill which introduced a type of unstable employment for young people and which finally had to be withdrawn by the Government after demonstrations by high school and university students.

All of this led, through the last constitutional reform, to a stricter limiting of the procedure. From now on, it can no longer be used except in the case of finance bills and social security financing bills and this only once per session.

However, at the same time, a new weapon against obstruction tactics was introduced into the National Assembly. This is a totally new procedure and is named the “set time limit debate procedure”.

II – THE IMPEMENTATION OF THE “SET TIME LIMIT DEBATE PROCEDURE”

Article 44 of the Constitution, modified by the constitutional reform of July 23, 2008, lays down that the right to amendment “may be used in plenary sitting or in committee under the conditions set down by the Rules of Procedure of the Houses, according to the framework determined by an Institutional Act”.

The Institutional Act of April 15, 2009, passed in application of this provision, permitted the assemblies to provide themselves “with a procedure which would lay down time limits for the consideration of a bill in plenary sitting”.

70


The National Assembly made use of this provision by introducing the “set time limit debate procedure” (TLP in French). These terms do not actually figure in the Rules of Procedure but have been commonly used ever since. This procedure is provided for in articles 49 and 55 of the new Rules of Procedure which were introduced on June 26, 2009.

The Conference of Presidents may now not only set the length of the general discussion but also that of the whole period of consideration of the bill, including the examination of the articles.

Since the coming into force of this reform, 32 legislative debates have been carried out using the procedure.

71


1. The Rules of the “set time limit debate procedure” 1.1 The rules laid down by the Rules of Procedure 1.1.1 The use of the “set time limit debate procedure” In compliance with article 49, paragraph 5, of the Rules of Procedure, the

Conference of Presidents may set the maximum time limit for the consideration of a Government or Member’s bill as a whole. However the “set time limit debate procedure” is not applicable to finance bills or to social security finance bills or to constitutional reform bills.

In concrete terms, it is upon a proposal by the President of the National Assembly that the Conference of Presidents, within which one political group (the UMP Group) has a majority, decides upon using this procedure and sets the length, taking into account the rights which the opposition groups have to either oppose its use or to gain a different length from that which was originally proposed. In particular, when the consideration of a bill on first reading occurs less than six weeks after its tabling or less than four weeks after its transmission if it has been first examined by the Senate, the chairman of a political group may oppose the implementation of the “set time limit debate procedure”.

1.1.2 How the decision on the overall time limit is reached The Conference of Presidents sets the time allotted to political groups and

to non-enrolled M.P.s. The speaking time for the committees and for Government is not limited and will thus be added to the time allowed for the groups.

If the speaking time allotted to groups is less than a limit set by the Conference of Presidents, each chairman of a political group may obtain the right to have it increased to the level of this limit (“extended set time limit debate procedure”).

Each chairman of a political group may, once per ordinary or extraordinary session, obtain an exceptional extension of the allotted time (“extraordinary set time limit debate procedure”).

1.1.3 How the speaking time is shared out Speaking time is shared out according to the following rules:

Each group must be allotted a minimum time (this period is longer for the groups which have declared that they belong to the opposition than for the others) ;

60% of the extra time is allotted to the opposition groups and is divided amongst them proportionally according to the number of their members. The remaining 40% is divided between the groups of the ruling majority proportionally according to the number of their members.

The time allotted to non-enrolled M.P.s is fixed.1.1.4 How debates are organized during set time limit procedure The set time limit is overall. Thus most speeches, with the notable

exceptions of explanations of vote, points of order and replies to personal attacks, are not subject to any time limit.

72


1.1.5 How time is counted during set time limit procedurea) The counting of time for speechesAll the speeches made by M.P.s are deducted from the overall time of the

group except: those made by the chairman and the rapporteur of the lead

committee and, if the case applies, of the rapporteurs of the consultative committees

those made by the chairman of political groups who have one hour per chairman when the overall time limit set by the Conference of Presidents is 40 hours or less and who have two hours beyond that limit.

b) The tabling of amendments outside the time limitsWhen the Government or the lead committee table one or several

amendments after the time limit for tabling applicable to M.P.s has expired, an extra time period is allotted to each group, upon the request of the chairman of the group or of his delegate, for the discussion of the article on which the amendment has been tabled or, if the case applies, the additional article.

c) Suspensions of sittings and points of order The time given over to suspensions of sittings requested by the chairman

of the group or of his delegate is deducted from the time granted to the group concerned without it being able to exceed the length of the suspension which was requested. In other words, if a suspension of sitting is requested for ten minutes and it actually lasts fifteen minutes, then ten minutes will be deducted; if the suspension is requested for ten minutes and only lasts five, then five minutes will be deducted.

The time given over to points of order may be deducted when the chairman of the sitting considers that they clearly have no connection with the Rules of Procedure or the running of the sitting.

d) Exceeding the set time limitWhen a political group has used up the time which has been allotted to it,

its members will be refused leave to speak. An amendment tabled by an M.P. from this group is voted upon without a debate. The chairman of the group may no longer request a public ballot, except on the overall bill.

Nonetheless, the chairman of the sitting does ask the opinion of the committee and of the Government on the amendments tabled by members of this group so as to provide the Assembly with guidance for its vote.

e) Personal explanations of voteEvery M.P. may take the floor at the end of the vote on the last article of

the bill under consideration or of the last amendment. He/she may provide a personal explanation of vote for five minutes. The time given over to these explanations of vote is not deducted from the overall time allotted between the groups.

73


The means of application of the rules set down by the Rules of Procedure were determined by the Conference of Presidents. They are “conventions” which are liable to be changed at any moment by the same Conference.

1.2 The conventions of the Conference of Presidents1.2.1 How overall time is determined and shared outa) The time limitsThe Conference of Presidents set the length of the “extended set time

limit debate procedure” at 30 hours and that of the “extraordinary set time limit debate procedure” at 50 hours, in accordance with the discussions held during the preparatory work for the reform of the Rules of Procedure.

b) The scaleThe same Conference decided on the general scale for the “set time limit

debate procedure” and the time for non-enrolled M.P.s. In particular, the fixed part of the time for each group was set at 2 hours for each opposition group and 1 hour for each group belonging to the ruling majority when the overall time is between 6 and 10 hours and at 3 hours and 2 hours respectively when the overall time is between 10 and 20 hours etc.

As for the time allotted to non-enrolled M.P.s, which must according to the Rules of Procedure, be proportional to their number, it was set in a pragmatic way at 30 minutes (for an overall time of 15 hours). At that time there were 8 non-enrolled members out of a total of 577 in the National Assembly. The Conference, in addition, set at ten minutes per group the additional time in the case of late tabling of amendments.

1.2.2 How debates are organized during set time limit procedurea) Details concerning the general discussion So as to maintain a certain order in the different stages of the discussion,

the Conference of Presidents took the following decisions concerning the general discussion:

On the eve of the discussion at 5pm, the political groups must transmit to the Table Office, an approximate list of their speakers and the length of time they will speak, including for motions. This information allows the Table Office to draw up a document setting out the approximate running order of the sitting;

The order of speech of the speakers is decided by the chair in such a way as to ensure the alternation of political groups (later changes between members of the same group will be allowed as well as new enrolments to speak).

An M.P. may only enrol to speak once in the general debate and may not re-enrol to speak if he/she does not answer the call to speak of the chairman of the sitting;

A non-enrolled M.P. may not speak for more than 10 minutes in order to maintain the rights of the other non-enrolled M.P.s

b) Details concerning the discussion of articles and amendments The speaking time for M.P.s who wish to take the floor on an article is not

limited, except in the case of non-enrolled M.P.s whose speeches cannot

74


exceed 10 minutes. The closing procedure, which provides for the possibility of no longer accepting enrolments for speeches when two speakers of opposite opinions have spoken, is not applicable.

The length of speeches on amendments is not limited. Only one speech in defence of the amendment and one against it are allowed. However, after the opinions of the committee and of the Government have been expressed on each amendment, the number and the length of speeches are no longer limited.

When amendments have been tabled after the time limit by the Government or by the committee, the extra time allotted to political groups, upon the request of the chairman of a group or of his delegate, is set at 10 minutes per amendment and per political group. This extra time may only be used for the discussion of the amendment concerned.

c) Details concerning personal explanations of votesM.P.s who wish to avail of this possibility must enrol with the Table Office

before the end of the discussion of the articles, at the latest.1.3 Taking into account the reservations expressed by the

Constitutional Council In its decision of June 25, 2009, the Constitutional Council stated that

“even if the setting of time limits for the consideration of a bill in plenary sitting enable the deduction of the time given over, in particular, to requests for the suspension of the sitting and to points of order, M.P.s must not be deprived of the possibility of calling on the provisions of the Rules of Procedure so as to request the application of constitutional provisions”.

As a consequence, when a group’s speaking time has been exhausted, it is still possible for one of its members to make a point of order for two minutes as long as he makes it clear which article, in his opinion, has been infringed. If the point has no link with the Rules of Procedure, the chairman of the sitting can order the speaker to stop talking. No other point of order on the same subject can be made by another member of this group.

2. Observations on the practical aspects of the set time limit procedure: the choice of actors

2.1 The choices of the Conference of Presidents: frequent use is made of the “set time limit procedure”

Use of the “set time limit procedure” is a choice of the Conference of Presidents and it has had recourse to it quite often. Out of around one hundred Government bills considered by the National Assembly since July 1, 2009, 26 have used the “set time limit procedure” as well as one Member’s bill on the question of Sunday work.

With very few exceptions, all important bills and, in any case, all non-consensual ones have been discussed using this procedure.

The “set time limit procedure” is mainly used during first reading but it is more and more often employed during second reading since the Conference of Presidents decided that the time allotted to political groups would be divided in two by comparison with during first reading.

2.2 The choices of political groups and of M.P.s

75


One of the basic principles of the “set time limit procedure” is that the time allotted to a group can be freely assigned between its members. In reality the groups cannot or do not wish to carry out an authoritarian and a detailed distribution of the time credits which they have available. The M.P.s who are members of groups thus have relatively free use of the time available. The secretariats of each group communicate the names of their speakers for the motions and the general discussion but every speaker can comfortably exceed the time suggested by the group. In the discussion on articles, M.P.s express themselves freely and are not influenced by any intervention from the group.

2.2.1 The use f the right to request extraordinary or extended time During the debate of the first bill which was considered using the “set

time limit procedure” (a Member’s bill on Sunday work which gave rise to sturdy opposition) the chairman of the main opposition group obtained the right to an extraordinary extension of the maximum time set by the Conference of Presidents (from 30 hours to 50 hours).

Since the implementation of this procedure, extraordinary time extensions have been requested three times.

13 bills have been debated for a period of 30 hours (“extended set time limit procedure”), upon the request of a political group chairman. This is the most frequent overall time period.

However this overall period, which is granted automatically, is not systematically requested and several bills have been considered, by consensus, in a shorter period.

2.2.2 The use of the time requestedIt must, first of all, be underlined that for the discussion of bills which

have used the “set time limit procedure”, the overall total of the debate, including Government and committee speaking time, has never reached the length of time set for the groups. This apparent paradox can be explained by the fact that only the opposition groups use a substantial, sometimes complete, share of the time they have available.

a) The behaviour of opposition groups It is, of course, the opposition groups which use the largest amount of the

time which is allotted to them. This is hardly surprising, firstly because it is they who table the largest number of amendments and secondly because the opposition wishes to use the time it has available to display its hostility to the bill in discussion and, in certain cases, present counter proposals.

Nonetheless, the opposition groups, or at least one of them, have only used all of the time at their disposal in eight cases. On each of these occasions, they expressed strong protest concerning the impossibility for them to express their opinions further. However it does appear that it was precisely to reach such a result that they used all of their time with the objective of showing that they had been “gagged”. In fact, it does seem that the implementation of the “set time limit procedure” has the effect of taking away some of the interest in extending debates since the end of the

76


discussion is, in any case, set. It could be said that time no longer becomes an issue.

b) The behaviour of the ruling majority groupsThe majority group (UMP) never uses more than 50% of its allotted time

and often less than 30%. This is the same for the minority group within the ruling majority (NC). This could appear surprising since the distribution of speaking time in the “set time limit procedure” favours the opposition. However it must, first of all, be observed that since the last constitutional revision, it is the bill coming from committee which serves as the basis for the discussion in plenary sitting. Thus a number of amendments tabled by the ruling majority (or at least by the rapporteur) are already included in the bill. In addition, the ruling majority, supporting, as it does, the Government clearly wants the bills to be passed as quickly as possible. It therefore does nothing which could slow down their examination.

2.2.3 The use of specific proceduresa) The personal right to speak for group chairmenThe extra speaking time which may be granted to group chairmen has

only rarely been used and always for less time than that available. b) Personal explanations of voteThis procedure has also been little used, although this is not surprising

since individual explanations of vote take place at the end of a long debate and often at a late hour and at the end of the week. It has been used in the rare cases where a group has exhausted its speaking time.

It should, in addition, be stated that the procedure has been strictly overseen by the President of the National Assembly following two incidents in the Chamber, one of which was quite violent.

The first incident took place when M.P.s requested to speak not at the end of the discussion stage on articles which had finished on a Thursday evening, but on the following Tuesday before the National Assembly moved to group explanations of vote and the vote on the overall bill (the practice at the Assembly being that the Conference of Presidents usually times this final stage in the discussion of a bill for a moment when the largest number of M.P.s are present). The President of the National Assembly considered that this request was contrary to the decision of the Conference of Presidents and thus opposed it. The Constitutional Council, upon a referral of the Opposition, judged that this decision was not contrary to the Constitution based on the principle often invoked according to which the Rules of Procedure of the assemblies do not have, in themselves, a constitutional value.

The second incident brought about a much stronger reaction from the Opposition. In this case, the debate, which dealt with the very controversial issue of retirement pensions, had continued all night long prior to the moment set for the explanations of vote and the vote on the overall bill which were due to take place at 4pm. After the end of the discussion on the articles around 7am, several dozen opposition M.P.s requested to be enrolled for an individual explanation of vote. The President accepted more

77


than twenty such speeches and then, as the time set for the end of the sitting, fixed at 9.30 am, had come, he indicated that he would accept no more and called an end to the sitting. This decision led to an incident which almost turned violent as the President was pursued through the corridors of the Palais Bourbon by the M.P.s of the Opposition. In addition, for several weeks afterwards, the latter refused to stand when the President entered the Chamber and they boycotted the meetings of the Bureau and of the Conference of Presidents. Nonetheless, in this case also, the Constitutional Council validated the decision of the President.

Since these two incidents, which introduced a precedent prohibiting the use of explanations of vote when they would lead to the postponement of the vote on the overall bill set by the Conference of Presidents, this procedure has lost much of its interest for the M.P.s of the Opposition.

2.3 The Impact on Parliamentary Debate 2.3.3 The impact on the structure of debatesa) Procedural motionsDuring the “set time limit procedure”, the tabling of procedural motions

(preliminary rejection motions and motions of referral back to a committee) remains one of the most important moments in the debates even though the record-breaking speeches of certain past orators are no longer common.

The length of preliminary rejection motions remains, in most cases, approximately the same (around 30 minutes) as before the implementation of the “set time limit procedure”. In two cases however, the length of the defence of such motions neared or went slightly beyond the one-hour mark. This also holds for the length of motions of referral back to committee which are usually around thirty minutes long, except in very rare cases.

b) The distribution of time between the general discussion and the discussion of articles

The distribution of the length of debates between the general discussion and the discussion of articles has changed. The main factor is the significant increase in the length of the general discussion in comparison with the length of the discussion of the articles. Thus, the length of the discussion on articles represented, before the implementation of the “set time limit procedure”, systematically 70% of the total length of debates. Now with the “set time limit procedure”, the general discussion has expanded and may even take up more than half the total length of the debates. It even went as far as representing 89% of one debate.

There is now, on this particular point, a clear difference between a bill which uses the “set time limit procedure” and one which does not. Since the political groups can no longer carry out obstruction by drawing the debate out endlessly with amendments, they now tend to stress this first stage by increasing the number of speakers enrolled and leaving more speaking time to their speakers. The general discussion is now “unrestrained”.

2.3.4 The impact on the character of the debates

78


The aim of the “set time limit procedure” was to render obstruction useless whether it be in its form of massive tabling of amendments or in the shape of repeated procedural incidents.

a) The “set time limit procedure” and amendmentsGenerally speaking, the number of amendments tabled and then

discussed is quite moderate (for example 343 amendments on the very controversial Member’s bill on Sunday work). The setting of a maximum length for debate and then of a deadline for the end of the examination of a bill means that obstruction can no longer have as its aim the delaying of a vote through the use of a massive tabling of amendments. One of the goals of the reform, i.e. putting an end to the floods of amendments on controversial bills, thus seems to be in the process of being reached. Two bills however did witness a large number of amendments (1,500 for the first and 5,000 for the second) but it must be said that they concerned the drawing-up of electoral boundaries which clearly interests many M.P.s. In addition, in these two cases, the amendments were tabled in the framework of the old, classic procedure before the Conference of Presidents decided to switch to the “set time limit procedure”.

b) The “set time limit procedure” and procedural incidentsThe application of the “set time limit procedure” has not only

substantially reduced the number of incidents (points of order and suspensions of sittings) but also their length. Thus suspensions rarely exceed two hours whatever the bill concerned is. In addition, incidents are now usually dealt with during the general discussion and no longer during the discussion of articles.

* * *To conclude, it must be underlined that the question of constraining

legislative discussions continues to be at the centre of a strong debate in France. The legitimacy of obstruction has always raised questions but has never been totally condemned by public opinion.

There is no systematic assessment available to measure the impact of obstruction on public opinion. However, parliamentarians are at pains to justify their obstruction tactics in the press by underlining the importance and the harm caused by the bills they oppose as well as the imbalance between the means available for the Government and the ruling majority and those the Opposition can call upon. On the other hand, the ruling majority never misses an opportunity to denounce such obstruction tactics by the Opposition, highlighting its refusal to calmly participate in parliamentary debate, its inability to make true propositions and its recourse to the use of procedural tricks.

Since its appearance at the beginning of the 1980s, obstruction has always been used, at one time or another, by the Opposition at a particular moment, to display its refusal of a specific bill which it considers symbolic of governmental policy. However, these parliamentary “battles” have never led to the complete blocking of the legislative process nor have they led to a real calling into question of the democratic legitimacy of the ruling majority.

One of the arguments developed by the M.P.s of the Opposition to justify their use of obstruction tactics is based on the fact that by lengthening the

79


debate, they can call on public opinion and mobilize it against a bill proposed by the Government, with the aim of forcing the latter to abandon or modify it.

However, the fact of considering that the National Assembly should be a sounding board which allows the notions of political confrontation and decision-making to be decided by forces outside of its walls is contrary to the principle of representation declared in the Constitution of 1791: “Sovereignty…belongs to the Nation, from which alone come all Powers. It may only exercise them through delegation. The French Constitution is representative: the representatives are the legislature”. This principle is taken up and completed by article 3 of the 1958 Constitution: “National sovereignty shall vest in the people, who shall exercise it through their representatives and by means of referendum.”

Dr Vivek K. AGNIHOTRI (India) congratulated Ms LUQUIENS for her presentation. He explained that, in India, a consultative committee, on which all of the political parties are represented, determined the time that should be devoted to each debate. This procedure has existed for a very long time, but many parliamentarians refused to stop talking at the end of their speaking time. An electronic sign showing the time had therefore been installed in the Chamber, showing the amount of time used by each political party. When a party exceeded its allocation, the sign showed a negative number. The Speaker could then cut the microphones and interrupt whoever had the floor. The tabling of a large number of amendments was a trend that had developed only recently. Amendments had to be tabled before the beginning of the debate. Recalling the number of 138,000 mentioned by Ms Luquiens, he asked her how it was possible to have such a large number of amendments.

Mr David BEAMISH (United Kingdom) said that this was a very sensitive subject in the House of Lords, which tended to think that the House should regulate itself. Time limits had been used, but not for debates on legislation. However, in recent years, it had been provided for that sittings would finish around 10 pm every day, and some parts of Bills were now debated only in Committee. He thought that the bill that would shortly be debated on reform of the House of Lords would raise these questions again, and lead to calls for new forms of restriction.

Mr Mohamed Kamal MANSURA (South Africa) noted that since 1994, all debates had been time-limited in the South African Parliament. That had been linked especially to the increase in the number of female parliamentarians who did not want debates to last late into the night, an opinion that was of course shared by many men, and by all of the parliamentary staff. These limits had never posed any problems. On the other hand, bills could take hours, weeks or months in committee. In the plenary, only amendments that had not already been rejected in committee

80


could be examined. Some Members therefore held back their amendments for this last stage, but for now that had not led to any major difficulties.

Mr Emmanuel ANYIMADU (Ghana) said that debates were not all time-limited in Ghana. When a debate was important and the Speaker thought that it would take some time, a structure was organised, meeting the needs of individual Members as much as political parties. Lists of those wishing to speak were given in advance to the Speaker, and the Speaker would not call to speak anyone who was not on the list before the sitting.

Mr Marc BOSC, President, asked how the very large number of amendments had been put to a vote and how they had been able to be dealt with by the administration.

Mr Geert HAMILTON (Netherlands) said that he came from a very pluralist country where chaos would reign without strict limits. The college bringing together the heads of the twelve political groups met each week and decided on the rules that would apply to each debate. The lists of speakers with their exact speaking times needed to be provided to the administration before the debates. In the Lower House the situation was more complex because there was also a large number of political groups and perhaps less discipline, meaning that regulation was equally necessary. The Speaker always asked at the end of a debate if anyone else wanted to speak, but no-one ever dared take this opportunity. He asked why the division of speaking time in the new framework in France described by Ms Luquiens was 60% for the Opposition and 40% for the majority.

Ms Claressa SURTEES (Australia) noted that in Australia, the Minister spoke for 30 minutes at the beginning of a debate, followed by the Opposition for 30 minutes as well. Other members could then speak for 15 minutes. For debates on amendments, there was no time limit: each intervention should in principle not exceed five minutes, but one could make as many interventions as one liked. Bills were also read more than once. As the Government in Australia was in a minority, it could not rely on the majority to achieve a closure of a debate. Motions could be adopted in the Chamber limiting the time for a debate, but that required a majority, and so it was that sittings lasted into the early hours of the morning.

Mr Claes MARTENSSON (Sweden) said that there were no time limits in the Swedish Parliament, and MPs could indicate at any moment even up to the eve of a debate that they wished to talk and for how long. After this point, they could speak for no more than four minutes. He was astonished that debates could last 70 hours, and said that no debate in Sweden could exceed three or four hours.

Mr Claus DETHLEFSEN (Denmark) thought that if debates were televised, they would probably be shorter, because no-one watching would be able to bear debates that long.

Mrs Corinne LUQUIENS said that she was reassured to see that other countries had seen debates obstructed. She clarified that the texts of bills in France could be very long and provided material for debate, and that on some texts, to have 100 or even several hundred amendments was not

81


necessarily excessive. She explained how parliamentarians tabled lots of different versions of amendments, to reach these large numbers, and noted that luckily not every one of these amendments was pressed, and rather went to show a very strong level of opposition to the text in question. She explained that the Speaker could also cut off the microphone of a parliamentarian who was speaking, but that more often than not led to incidents in the plenary that served to lose rather than to gain time. She noted that the French Constitution did not allow amendments that had been rejected in Committee to be refused in the plenary. So far, there had been very strong hostility, as much from the majority as the Opposition, to limiting debate on amendments being examined in Committee. The Speaker could in theory refuse to let Members speak, for example by closing debate after two Members had spoken, one in favour and one against, but this led to incidents that meant that the procedure was rarely used. She noted that in other Parliaments, self-discipline played an important role, but she thought that this was not a French quality. Before the procedure for programmed legislative time had been implemented, there had already been informal discussions with the Opposition to know at what point the group or groups expected to finish speaking, but at the same time this remained a great diary constraint for those deputies working on the following text, and for the Government, and it could lead to serious delays in the bill becoming law. A law on press ownership, judged to be damaging to liberties by the Opposition, had thus been debated for 167 hours in the Chamber. Televising proceedings would change nothing and had changed nothing, because the Opposition was not seeking to interest viewers but to show that it was fighting to safeguard citizens’ rights and liberties on symbolic issues such as retirement. It was vital to give the Opposition more time than the majority, otherwise this measure would have been judged unacceptable. It was normal for the Opposition to table more amendments and to speak for longer, especially now that the discussion in plenary was focussed on the text as amended in Committee.

82


RECENT DEVELOPMENTS IN THE INTER-PARLIAMENTARY UNION

—

Presentation by Martin CHUNGONG and Greg POWER(Inter-Parliamentary Union)

Mr Greg POWER, lead author of the Global Parliamentary Report 2012, explained that his report aimed, in 50,000 words, to describe the state of parliaments across the world. 63 Parliaments had provided written contributions. In addition, there had been oral interviews.

The purpose was to evaluate the evolution of relations between parliaments and people. There were increasing numbers of Parliaments today: 190, in 193 countries. It therefore seemed indispensable to states to have a Parliament, and yet these and the extent of their real power were often subject to some scepticism. Parliaments responded by seeking to involve the public more broadly, by providing more information, televising debates, having extensive websites, etc.

Consulting the general public through communications, questionnaires and new technologies – especially in Latin America – was increasingly used. But these consultations often resulted in a certain disappointment, and pessimism as to their usefulness. Very few Parliaments had a sense of the real impact of these strategies. Increased pressure from the public pushed Members to act in a more transparent and responsible way, but that limited at the same time their room for manoeuvre. This pressure seemed to apply equally to Members elected on a list basis. The very nature of their mandate was changed by this to some extent.

The report looked also at the actions of Members at a local level: in some cases, voters expected somehow, in exchange for what they saw as sponsorship, to receive services in return, for example assistance in

83


accessing state services; and this could create an excess of work. At the same time, Members looked at this as an interest and of course an electoral advantage.

Mr Mohamad Kamal MANSURA (South Africa) noted that South Africa had put such a consultation in place. He explained that it had targeted young people, including those under voting age. He asked if the report took into account this kind of consultation. He also asked if the study had revealed much duplication of work between the activities of Parliaments and those of other public figures at national, regional or local level, if some powerful interest groups intervening aggressively in these consultations could have been able to falsify the results intentionally, and if some of the recommendations in the report could be applied to all countries.

Mr David BEAMISH (United Kingdom) asked if social networks were not in a certain way also rivals to Parliament, which could find itself marginalised in national debate.

Ms Juliet MUPURUA (Namibia) asked how Parliament and the Executive could manage the demands expressed by voters after having collected them.

Mr Austin ZVOMA (Zimbabwe) thought that the perception of Parliaments and parliamentarians was always subjective. However, he judged it essential that bodies of this kind could carry out evaluations, and asked how these could be made more objective.

Mr Greg POWER said that only national parliaments had been studies, not local bodies. There had been no notable malicious participation. The report showed that Parliament or representative mechanisms could not be replaced, but provided channels or introducing forms of participation, for example through social media. Parliaments had, however, as institutions, difficulty in introducing these forms of participation, although for example, the House of Commons in the United Kingdom had put in place very interesting mechanisms in this area. It was certainly necessary to avoid over-consultation, or launching a consultation if there was no real intention to follow it up.

Mrs Doris Katai Katebe MWINGA (Zambia) thought that parliamentary monitoring organisations were often considered as rivals by parliamentarians, and sometimes rightly so, because some members of these organisations had stood for election and been successful. There was therefore a problem of credibility, and sometimes of objectivity, of these organisations, which sometimes targeted a party or Member. International organisations seemed to emerge with more credit. Finally, she asked if it had been proved that greater public participation ensured better legislative work, or higher quality in the laws that were passed.

84


Dr Vivek K. AGNIHOTRI (India) thanked Mr Power for this report and for the optimism of his conclusions. He noted that Indian parliamentarians could now launch local development projects in their constituencies, at a value of up to 1 million dollars each year. He asked if there were other examples of this kind.

Ms Claressa SURTEES (Australia) asked if and how it was possible to measure and evaluate the successes or failures of different impact and communication strategies, judging that if this evaluation was carried out by parliamentarians themselves, it risked not being very objective.

Mrs Philippa HELME (United Kingdom; substitute member) asked if it was a good idea to involve political parties and/or the Executive in the results of these consultations, as Members were often interested in consulting, but rarely in the consequences of consulting.

Mr Greg POWER thought that some organisations monitoring parliamentary work did positive things, although some tended to fall back on a certain populism. Initiatives at a constituency level were an increasing occurrence in many countries. They could however introduce a certain confusion between Executive and legislative responsibility. As for managing local development funds, it was essential to provide for safeguards in their management. There was a tension between the legislative function and representing voters. Some parliaments had put in place precise indicators for evaluating the effectiveness of consultations. It was important to invite parliamentarians genuinely to take on board the results of consultations.

Mr Martin CHUNGONG thanked Mr Power and indicated that this report had been at the heart of the IPU’s work during the previous year. He congratulated Marc BOSC for his election as the ASGP’s President. He noted that the IPU had been extremely active during recent months in those countries affected by the “Arab Spring”, especially Tunisia and Egypt, so as to be able to give birth to solid Parliaments as key pillars of democracy. The IPU had worked particularly extensively with constituent assemblies. In Libya, the IPU had also been consulted on the creation of a new Parliament. Work would also no doubt be carried out when the situation had stabilised in Yemen and Syria. The IPU had also been involved in the crisis that had recently shaken the Maldives. He thanked all Secretaries General for their support and for the substantial resource they provided to the IPU.

.

85


WHO DECIDES WHICH MEMBERS GET TO SPEAK IN THE PLENARY - THE PRESIDENT OF

THE BUNDESTAG OR THE POLITICAL GROUPS?

—

Dr Ulrich SCHÖLERVice-President of the ASGP,

Deputy Secretary General of the Bundestag (Germany)

“Following the debate on the euro rescue package in the plenary chamber of the German Bundestag in September 2011, the President of the Bundestag, Professor Norbert Lammert, came in for fierce criticism from all of the parliamentary groups represented in the Bundestag. There was talk of an “alarming development in parliamentary routine”, a breach of “democratic custom” and an “autocratic decision”; the President of the Bundestag was even accused of high-handedness.

What had happened?In the debate on the euro rescue package, the President of the

Bundestag, invoking the constitutionally guaranteed right to address Parliament, had called two Members from the parliamentary groups of the governing coalition, the CDU/CSU and the FDP, to speak for five minutes each. These two speakers, however, had not been allocated any speaking time by their groups because of their dissenting positions. They were therefore additional speakers. Their speaking times were not included in their groups’ respective quotas. Their speeches were not deferred until the end of the scheduled two-hour debate; instead, they were integrated into the sequence of the nominated group speakers.

Outside Parliament, that is to say among the general public and much of the media, the decision was well received. The President of the Bundestag was dubbed the “watchman of democracy” who had acted “for the good of

86


democracy” and strengthened the rights of individual Members by foiling a “censorship bid”.

The debate took place in Germany in a political climate which may be described as extremely stormy and which was marked by a sharp polarisation: in Parliament, there was broad approval within almost every group for reform of the EFSF – the European Financial Stability Facility. The general public, by contrast, were showing deep concern at the development of the euro. Many people had serious doubts about the suitability of the planned measures for the stabilisation of the common currency. Opinion polls were showing that some two thirds of respondents opposed an extension of the rescue package. In short, denying the two Members the right to speak would have created a curious situation in which the majority of the interested public did not have their reservations and doubts represented in the debate.

Before dealing any further with this specific case and outlining the constitutional provisions that prompted the President of the Bundestag to take his decision, I would like to describe the normal course of events, in other words the standard Bundestag procedure for planning and structuring plenary debates and speakers’ interventions.

The first important point to note is that the Bundestag alone, acting independently, determines its agenda, which means that the Government cannot dictate to Parliament when and within what period it must discuss particular proposals. In Parliament itself, responsibility for preparing plenary sessions lies almost exclusively with the parliamentary groups. These groups are alliances of at least 5% of the Members, all of whom must belong to the same political party. The Federal Constitutional Court, to which a powerful role is assigned in our constitutional structure, has always emphasised the eminent importance of these groups in our parliamentary democracy. In the eyes of the Court, the foremost tasks of the parliamentary groups are to guide and facilitate the technical execution of the parliamentary process.

The Rules of Procedure provide for a Council of Elders to guide the work of the Bundestag. Besides the President of the Bundestag and his deputies, the Council of Elders comprises the Parliamentary Secretaries of the groups plus a quota of additional group representatives proportionate to the relative strength of the groups. A representative of the Federal Government also takes part in meetings of the Council of Elders.

In the Council of Elders, the parliamentary groups reach agreement on the bills, motions and other business to be discussed in plenary in the course of a sitting week and on the order in which these deliberations are to take place. The Council also determines whether particular agenda items are to involve a debate, how long the debate is to last and how it is to be conducted. The consensus principle applies; in other words, a proposal cannot be adopted unless it is approved by all parliamentary groups. This means that the Council of Elders never decides on agenda issues by majority vote.

In formal terms, agreements reached by the Council of Elders are only proposals to be put to the House. Because of the prior consensus that has

87


been reached by the Council of Elders, however, the House will, as a rule, accept its proposals. In the event of the Council of Elders being divided on an agenda matter, the final decision is not taken by the Council but by the House, and in this case the issue may be decided by a majority vote. These, then, are the only cases – and they are extremely rare in practice – in which debates on points of order and votes on the agenda occur at plenary sittings.

The distribution of the agreed speaking time on a particular agenda item is determined by means of an established formula, which is essentially determined by the relative strengths of the parliamentary groups. The time allocations are simply based on the minutes in an hour. The hour is currently divided into 23 minutes’ speaking time for the CDU/CSU group, 14 minutes for the SPD, nine minutes for the FDP and seven minutes each for the groups of The Left Party and Alliance 90/The Greens. Where debates are shorter or longer than an hour, the total speaking time is distributed in the same proportions.

Within their allotted time frame, the groups themselves determine which speakers are to present their position in the chamber and for how long each speaker may address the House. The names of individual speakers and their allotted speaking times are first communicated to the President or his presiding deputy during the plenary sitting.

The President alone is empowered to call individual speakers. Under the Rules of Procedure, the sequence of speakers in a debate is also his decision. Such decisions are not entirely at the President’s discretion, however. On the one hand, the Rules of Procedure require the President to conduct parliamentary proceedings fairly and impartially. On the other hand, in determining the order of speakers he must adhere to certain criteria. For example, the President must endeavour to ensure that debates are conducted properly and efficiently. He must also have due regard for the various views of the political parties, give a hearing to the arguments for and against the tabled proposal in turn and take account of the relative strengths of the parliamentary groups.

At first, this sounds as if the groups played no part in determining the actual sequence of speakers. In fact, for a long time, general inter-group agreements determining the order of speakers were not standard parliamentary practice, unlike agreements on the distribution of speaking time. This changed in 2005, at the start of the previous 16th electoral term of the Bundestag.

Since then the parliamentary groups, taking care to observe the aforementioned requirements prescribed by the Rules of Procedure, such as consideration of relative group strengths and the principle of alternating speeches for and against the tabled proposal, have reached agreement at the start of the electoral term on a detailed framework from which the sequence of speakers can be abstracted for almost every form of debate. It contains diverse sequence models for normal debates, for government policy statements followed by debates and for other special forms of debate. Among the factors it uses to determine the order of speakers is the identity of the initiator of the tabled proposal. Another factor is whether the House is

88


dealing with the matter for the first time or whether it is due to make its final decision.

Strictly speaking, as an inter-group agreement, this framework is not legally binding on the President or his presiding deputy but rather serves to support the President and guide him in exercising his discretion. Nevertheless, in practice the presiding officer will adhere to the framework as a matter of principle, not least for the purpose of guaranteeing uniformity and continuity in the conduct of proceedings by all members of the Presidium. In the rare cases in which a President intends to deviate from the framework, he normally consults the parliamentary secretaries of the groups beforehand.

Before moving on, I would like to refer to one special case in this context, namely Members who do not belong to a parliamentary group. Certain guidelines apply to them too. For example, they are normally given leave to speak towards the end of a debate. Their speaking time is measured against the total agreed duration of the debate on the agenda item in question. In concrete terms, they receive three minutes in debates lasting up to one hour, five minutes in debates lasting more than one but not more than three hours, and so on.

Admittedly, the whole thing sounds complex and impenetrable, not to mention bureaucratic. The described practice does, however, foster the substantive work of the Bundestag, in which five parliamentary groups are currently represented. It spares the plenary chamber from debates on points of order, helps to ensure that the abundance of proposals and issues on the agenda receive due attention and generally guarantees that Members of all political persuasions – including those from the opposition side – are able to speak.

Let me now return to the controversy I described at the start.From what I have explained, you will see that points of principle were

involved last September when two Members from the government groups sought leave to speak in the debate on the euro rescue package in order to air their divergent views in the public forum. The two Members invoked their constitutionally guaranteed right to speak. The parliamentary groups, on the other hand, felt that it would undermine their own effectiveness and efficiency and impair the functioning of Parliament as a whole if the groups were denied an exclusive right to nominate plenary speakers.

The legitimate interests of the group leaders are plain to see: The groups regard themselves as the primary coordinators of technical

processes in the Bundestag, a parliament in which the division of labour is writ large. The chronological sequence of proceedings at plenary sittings must not, in their view, become incalculable.

The groups want to decide how and by whom the already tight ration of speaking time can be used to best effect to set out and justify the groups’ positions publicly. This includes the decision as to whether only the view of the majority within the group should be voiced in order to convey the impression of political unity to the outside world or whether ‘group dissenters’ should be given the opportunity to present their divergent positions, albeit within a duly small proportion of the speaking time allotted

89


to the proponents of the majority view, in order to avoid an imbalanced public portrayal of the group’s stance.

Lastly, the groups were concerned that a precedent would be created which other Members might invoke in future.

So what about the individual rights of Members, particularly their speaking rights?

At a very early stage, back in 1959, the Federal Constitutional Court ruled that the right of a Member to speak in the Bundestag was consistent with the constitutional status of Members of the Bundestag guaranteed by the second sentence of Article 38(1) of the Basic Law. At the same time, it stressed that this right was not unlimited. Since the groups guide and organise parliamentary proceedings, individual Members necessarily owe a certain allegiance to their parliamentary group. Members benefit from their group affiliation but must also accept restrictions on their Members’ rights in return. These restrictions are constitutionally permissible, provided that they

1. do not go beyond what is needed to safeguard the conduct of parliamentary proceedings, and

2. ensure that Members remain able to exercise the necessary degree of autonomy in their decision-making and personal responsibility.

Against this backdrop it is generally recognised that measures which are designed to guarantee the effectiveness of Parliament and which affect all Members equally in principle are justified by Parliament’s right to adopt its own rules of procedure, as enshrined in Article 40(1), second sentence, of the Basic Law. Measures of this kind include the closure of a debate, the specification of the length of a debate, the allocation of fixed quotas of speaking time to the parliamentary groups on the basis of their numerical strength and restrictions on the speaking time of individual Members, as well as measures which serve to ensure adherence to the rules governing plenary speeches and observance of parliamentary order. It is therefore essentially a matter for the Bundestag to determine precisely how its Members participate in the parliamentary decision-making process and what powers are to be accorded to the parliamentary groups to help shape that process. The Bundestag has wide discretion in these matters, which the Federal Constitutional Court is required to respect.

It is also clearly enunciated by the case law of the Federal Constitutional Court, however, that this important and necessary influence of parliamentary groups on the conduct of parliamentary business does not make the groups themselves holders of the right to speak. The right to speak is not at the unrestricted disposal of the groups, let alone their executives. On the contrary, the Basic Law formulates the right to speak as an individual right of each Member and as part of his or her autonomous status in Parliament. Accordingly, in the words of the Federal Constitutional Court, it “is also possible that an individual Member may, if necessary, request and be granted leave to speak against the will of his parliamentary group in order to express what his conscience dictates”.

Such a situation certainly obtains when a Member holds an opinion diverging from that of the majority of his or her parliamentary group and

90


wishes to present that opinion to the public in a debate. In such a scenario – which certainly existed in the debate on the euro rescue package – the group’s nominated speakers simply do not represent the dissident. The dissenting Member is then in the same position as a non-attached Member. In the case in point, therefore, the President of the Bundestag was not only entitled, by virtue of his presidential powers, to let the two Members speak but also had a duty to do so and to assign them speaking time based on the agreed allocation for non-attached Members.

In these circumstances it would not have been appropriate to refer the dissenting Members to other permissible instruments under the Rules of Procedure either, such as an explanation of vote, a question to the speaker in the course of a speech, remarks on the subject under discussion or a brief intervention after a speech. These options differ sharply in essence from a distinct contribution to a debate and are consequently not an adequate substitute for which a Member should have to settle.

However unequivocal the final verdict might sound, uncertainties remain with regard to both fundamentals and details.

How far, for example, does the individual Member’s independent speaking right go? Does it only come into play if he or she seeks to present an opinion that diverges from the view of the group? Does this mean that Members cannot assert their right to speak if their purpose is ‘only’ to repeat the position of their group which has already been presented by other speakers?

In the relevant literature we find commentators who see no constitutionally tenable grounds for such a restriction of speaking rights and who cite the entirely practical problem that it is scarcely possible to anticipate reliably the probable content of a speaker’s contribution. On the other hand, the danger that debates might then get out of control cannot be dismissed.

What is to be done if several ‘dissidents’ from a parliamentary group wish to speak? Can they reasonably be represented by a single speaker from their ranks? One argument for this solution might be that, at least when they hold parallel political views, such ‘consolidation’ ensures that they are not subject to any restrictions other than those which apply to their colleagues who agree with the majority of their group and who must therefore accept that particular speakers from the group address the House on their behalf.

As you can see, some matters certainly still need clarification. For this reason the Committee on the Scrutiny of Elections, Immunity and the Rules of Procedure, which is responsible for interpreting and amending the Rules of Procedure and devises solutions to any conflicts that arise in the chamber and in the committees, is currently dealing with this case. We still await the final outcome, but it can at least be said that the initial fierce criticism levelled by the groups has tended to give way to a more objective, constructive and indeed even self-critical attitude.

ConclusionThe President of the Bundestag acted properly by granting the two

Members leave to speak. The President is duty-bound to ensure that each

91


individual Member retains the necessary personal responsibility and autonomy in their decision-making, particularly if the parliamentary groups are unwilling to grant their members this latitude. Their attempt to stifle divergent opinions has tended to reinforce rather than dispel doubts about the role of Parliament as the forum of the nation. Since the primary purpose of contributions to debates by the representatives of the people is not to convince each other but to enable the people to assure themselves that their Members of Parliament represent them in all their diversity, pluralism is imperative.

Ms Corinne LUQUIENS (France) noted that in France, Members did not have to belong to a party group, and that when Members no longer shared the majority position of their group, it was up to them to leave this group.

Mr Geert HAMILTON (Netherlands) thought that it was logical that each group should be able to identify a spokesperson, as groups were meant to be based on a certain unity. However, the Speaker, at the end of a debate, always asked if someone else wished to speak. That would certainly be the appropriate moment for a dissident Member to speak in the Dutch Senate.

Ms Jane LUBOWA KIBIRIGE (Uganda) indicated that in Uganda, speaking was free. Every parliamentarian wishing to speak could do so, for three minutes.

Mr Ulrich SCHÖLER thanked his colleagues, noting that he had learnt during the afternoon’s debates, that the way of managing the conduct and organisation of debates was very different from one country to another, depending on the culture of the country concerned, the number of political groups, the Members, etc.

92


PARLIAMENTARY MODALITIES FOR MANAGING A POST-WAR SITUATION – THE CASE OF SUDAN

—

Ibrahim Mohamed IBRAHIM, Secretary General of the National Assembly (Sudan)

Introduction The aim of this communication is to define the role played by Parliament

as a legislative institution to promote and enforce peace agreements achieved through dialogue and negotiation between conflicting parties. The idea of this paper emanates from the importance of defining the role played by the Sudanese parliament in the implementation of the Comprehensive Peace Agreement (CPA), signed by the conflicting parties: the government of Sudan, and the Sudan People’s Liberation Movement/Army (SPLM/A), the then the rebel movement. This role of Parliament has effectively contributed to confidence-building between the parties.

The parliament carried out this role by transforming the text of the CPA into a number of constitutional and legislative provisions to ensure the full implementation of the Agreement. This introduction is necessary as the many aspects of failure in confidence-building efforts are attributed either to the lack of political will from either side in the process of implementation of agreements, which increases the gap between the parties, or to deficiencies in the work that must be played by Parliament as a legislative body responsible for enacting constitutional and legal provisions to ensure for the proper implementation.

History of the war and peace in Sudan:Sudan was the largest country in the African Continent before the south

has chosen to secede and to create an independent state. Its geographic location is in the heart of the Continent and the Arab world. It is one of the most diverse countries in the Continent diverse with regard to geographic,

93


population, social and cultural structure. This diversity, which has characterized every region and all parts of Sudan, is not limited to South Sudan alone. It hence made Sudan north and south a microcosm of the African continent, in the diversity of its populations, their cultures and their interacting relations between the Arab and African worlds.

The first movement of rebellion in southern Sudan began just days before the Declaration of Independence in 1st January 1956. The war continued until 1972, when a peace agreement called the "The Addis Ababa Agreement" was signed. This agreement stipulated that South Sudan enjoys self-autonomous rule and that the Agreement be entirely enshrined in the Constitution as an integral part of it with the intention of ensuring legalization of the accord and to guarantee proper implementation. Sudan did not enjoy stability except for a period of eleven years where the war broke again in 1983 to extend until 2005 due to lack of confidence between the two parties and to the incompletion of the constitutional and legal arrangements necessary to enforce the agreement. The second war came to an end with the signing of the Comprehensive Peace Agreement (CPA), concluded on 9th January 2005 in Nairobi – Kenya, thanks to the will and determination of the parties and to regional and international efforts. These wars resulted in heavy human losses and a significant change in the social, economic, political and environmental areas, leaving negative impacts on all aspects of life, where it damaged the economy, political life and the overall sector development and services, in addition to the social and psychological impacts resulting in displacement of citizens and refugees who migrated from their places of origin.

The most important root causes of the civil war that lasted for a number of years in the Sudan were as follows:

The failure of newly independent state in Sudan in constituting a nation with a united fabric and the limited capacity of the state to achieve national unity, economic and social development, like a number of African countries who gained political independence before having the concept of the nation deeply rooted,

Immature policies, and the poor performance of national governments, which resulted in the administrative and political errors, whether in the decision-making or in poor participation in the government to bring about fairness and justice,

Failure to adopt objective and scientific approaches to address conflicts through clear and comprehensive methodologies to deal with various issues such as issues of identity, fair distribution of power and wealth and the achievement of equitable development in all parts of the country,

Lack of communication between the Northern and Southern parts of Sudan to which the accumulation of the legacy of the colonial period in the South has contributed, as well as the colonial policy which tried to divide the country by creating distinction between the two parts blocking the south from the north for more than fifty years. This policy has left the South in a state of primitiveness as

94


the colonial power did neither disseminate education nor provide services or construct few development projects,

External pressures and foreign interventions in different forms.General features of the CPAThe CPA is considered as an important national achievement which put

an end to the longest war in Africa. It was essentially based on the concepts of power and wealth sharing in, resolving the Abyei dispute and conflict in South Kordofan and Blue Nile States, laying down security arrangements and means of implementation. The CPA emphasized the right to self-determination to the South after six years, giving the South the choice between staying within the framework of one country with the North or separation to create an independent state. The Parliament passed the Southern Sudan Referendum Law for the year 2009.

Power-sharing agreement is located in the heart of other provisions contained in the CPA, as it contained the details of the powers granted to the territory of the South, where the southern region retained exclusive powers in the political, economic, and security areas in addition to a valuable share of power in the national government and in the three regions, namely Southern Kordofan and Blue Nile and Abyei. The power-sharing agreement reshaped the form of the State of Sudan and the nature of the relationships between the different organs of the state and between the leaders of the transitional period which precedes the referendum. It also redefined the nature of the relationship between the two main entities, the North and the South.

Without going into details and focusing on important aspects, it was under the CPA that the general principles dealing with the structures of the authorities and institutions at the national level, human rights and fundamental freedoms, comprehensive national reconciliation as part of peace-building process, the census, elections and representation was agreed.

Authorities and institutions at the national levelLegislative Power: the CPA stipulated that the Parliament be composed of

two chambers. Membership in each shall be by appointment comprising all political parties. The first chamber is called the National Assembly and the second is called the Council of States together constituting “The National Legislature” (Parliament). The task of the Parliament is to involve itself in enacting legislations until the time of elections and the establishment of an elected parliament.

The National Assembly: Seats in the National Assembly will be allocated as follows:

1. The National Congress Party (the ruling party) 52%2. The Sudan People's Liberation Movement (SPLM) 28%3. Other political parties from the north 24%4. Other political parties from the south 6%The Council of States: The Council of States, which was specifically

created under the CPA to care for the interests of the States and to protect

95


these interests against the predominance of the centre, was decided to consist of fifty members elected by the States’ Legislative Councils in the twenty five States. i.e. two members from each State elected by the State’s Legislative Council, in addition to two members representing the north-and-south- disputed area of Abyei, as observers and are selected by the Presidency of the Republic (The President and the two Vic-Presidents). The prime task of the Council of States is to guard the rights of the States and to avoid any prejudice from the centre. The Council of States participates with the National Assembly in matters relating to issues of sovereignty and passes laws that directly affect the States, like the law of allocation of resources between the States and the centre.

The Council of States has also the powers to review laws passed by the National Assembly to make sure that the interests of the States are intact.

The Executive: The CPA stipulated that the executive power comprises the Presidency and the Council of Ministers. The Presidency is to be composed of the President and his two deputies. Decision-making shall be made in the spirit of partnership and fellowship until the date of elections. The current President is the Head of State and Supreme Commander of the armed forces. The current chairman of the SPLM will be the First Vice-President of the Republic, the President of the Government of Southern Sudan and the Supreme Commander of the SPLA. The CPA stipulated specific cases where the President shall make decisions with the consent of the First Vice-President, those are: the declaration and ending the state of emergency, declaration of war, appointments to be made by the President in accordance with the peace agreement, calling the legislature to convene, adjourn or indefinitely postpone its sessions. The CPA also stipulated that if the post of President falls vacant, the functions of the Presidency shall be vested in a Presidential Council comprising the Speaker of the National Assembly, the First Vice-President and the Vice-President. The Presidential Council shall be presided by the First Vice-President, who shall be the Supreme Commander of the Sudanese Armed Forces. The Council takes decisions by consensus.

The Judiciary: In accordance with the CPA, the Judiciary consists of four levels, namely the Constitutional Court, the Supreme Court and the National Court of Appeal and any other courts to be established. In South Sudan, the CPA indicated, in the section relating to this subject, the establishment of a Supreme Court in South Sudan, courts of appeal and any other courts to be established in accordance with the Constitution of South Sudan. This part included detailed items on the competence of these courts, as well as on the National Commission on Judicial Service.

National Commissions: In spite of the fact that the CPA stipulated that the authorities at the national level are the three powers known, namely: Legislative, Executive and Judicial, yet it added a forth form of institutions called the "National Commissions". This is in order to bridge the confidence gap between the parties signatories to the CPA, and to ensure its implementation in a serious and a professional manner. These Commissions, competent and independent, specialize in different areas so as to carry out different tasks and functions. One can say that, according to the powers of the National Commissions, they represent organs above the executive

96


branch, which means that they have overriding powers than those of the competent ministries. The National Commissions decide on standards and principles according to which ministries act on issues that fall under the competence of these National Commissions. The National Assembly passed all the laws pertaining to the establishment of the National Commissions, as it was decided that the establishment of these independent commissions is important to tackle questions of paramount importance. The National Assembly succeeded in the difficult task of approving the appointment of the persons nominated by the Presidency as presidents and members of the National Commissions.

Details of National Commissions: These Commissions are as follows:1. The Constitutional Commission: specializes in leading and sponsoring

nation-wide political dialogue on the new constitution that governs the transitional period. The draft constitution shall be endorsed by the National Assembly without amendment.

2. The Electoral Commission: is concerned with the task of conducting elections in different levels, as well as conducting the referendums, with the exception of the Southern Sudan referendum for self-determination which is scheduled to be carried out by a special commission which has its own law.

3. The Judiciary National Commission: is concerned with the affairs of the judiciary with regard to appointment, promotion and allowances of personnel.

4. The Commission on Human Rights: deals with all matters relating to human rights.

5. The Commission on allocation of resources: concerned with the distribution of national revenue between the Centre and the States as well as the Government of Southern Sudan in accordance with agreed standards.

6. The Commission on Civil Service: primarily concerned with bringing about justice in appointment of qualified persons in the civil service from different parts of Sudan as well as ensuring that the people of South Sudan take the 30% percentage specified in the agreement allocated to the South in different grades of the civil service.

7. The Council of Political Parties: is entrusted to tackle issues relating to political parties with regard to formation, registration, conduct and practice in accordance with the legal provisions.

8. Southern Sudan Referendum Commission: this Commission is especially created to carry out the task of conducting the referendum of Southern Sudan, according to the result of which the Southern Sudan shall continue to be part of Sudan or chooses to establish an independent state. The will of the people of the south whether in the north or I the south or outside Sudan shall determine the future of the south as stated in the agreement. This Commission accomplished its mission which resulted in the choice of the people of south Sudan the option of establishing their independent state, the Republic of South Sudan, officially declared on 9th July 2011.

97


National Reconciliation: the parties agreed to start a process of national reconciliation as part of a comprehensive peace-building course of action.

Jobs allocation and languages: It was agreed that between 20% to 30% of the public service jobs be allocated to qualified people of South Sudan. It was also agreed that the languages used in the Sudan shall be Arabic as the main language, and English as official language in the bureaucracy. In addition, all local languages are considered national languages that should be respected, further developed and promoted.

In the beginning, the Parliament passed the CPA without introducing amendments thereto, so as to move to the other multiple implementation stages of the CPA. The first stage is the implementation of the security arrangements by passing the Law on the Joint and Combined Forces for the year 2005. A political agreement was reached to dissolve the Parliament and to form a new Parliament whose membership is appointed comprising all the parties signatories of the CPA in addition to other parties, in accordance with the percentages of representation, in order to ensure the widest national participation possible in the framework of the legislature, so as to transform the CPA into constitutional and legal provisions.

In the Constitutional framework, the Parliament passed the Law establishing the National Commission on the Constitution entrusted with drafting the new constitution to guide the transitional period taking into account at the same time the texts that agreed upon in the CPA. A political agreement between all parties involved was reached with a view to authorizing the Parliament to endorse the draft constitution drafted by the National Commission on the Constitution without introducing amendments thereon. This political deal embarked from commitment to seek consensus on the draft constitution, which is considered a cornerstone and a main pillar to take off towards the enactment of laws that establish other commissions and define their terms of reference, powers and composition, as well as the enactment of other laws capable of implementing the CPA. The parties concerned committed themselves to seek consensus in Parliament, in accordance with the spirit of the CPA and to the benefit of its implementation, expressing the desire to promote peace and national unity to attain peace, in spite of the fact that the CPA provisions did not state that decisions must be taken unanimously.

Legislative Business related to the CPAThe Parliament passed legislations, whether new laws or amended

existing laws, in those areas relating to the implementation of the CPA. During the year 2005, the year in which the CPA was signed, the

Parliament passed the Interim Constitution, the Constitutional Court Act, the Judicial Service Commission Act, the Bank of Sudan Act, the Allocation of Resources Act, the Joint and Combined Forces Act.

During Year 2006 the Parliament passed the Work of Voluntary and Humanitarian Action Act, and during Year 2007, it passed the Armed Forces Act, the National Civil Service Act, the Office of the National Civil Service Act, the political parties Act, the Repeal of the Development Fund for the

98


South Act, the Mineral Resources Development and Mining Act, the National General Audit Bureau Act, the Financial Procedures and Accounting Act.

During the year 2008, the Parliament passed the National Elections Act, the Police of Sudan Act, the University for Peace Act, the Council for Promotion and Development of National Languages Act, the Tourism Act, the Foreign Trade Regulation Act, and during the year 2009, the Parliament passed the Southern Sudan Referendum Act, the National Commission on Human Rights Act. The Parliament has also amended laws relating to the Code of Civil Procedure, Criminal Procedure, Criminal Law, Press and Press Publications, the National Security, the Trade Unions, and the law of popular consultations for Southern Kordofan and Blue Nile. During the year 2011, Parliament passed the Law establishing the University of John Garang, the Sudanese Nationality Act and the Civil Registry Act.

Control by the Parliament in the implementation of the CPAThe Parliament followed closely the work of the Executive to follow up the

implementation of legislations enacted pertaining to the implementation of the CPA through speeches, statements and reports made by the Presidency of the Republic on the status of the implementation of the CPA, and all its components. These reports were the subject of in-depth studies and evaluation by the Parliament. Seminars and workshops on the peacekeeping role of the United Nations in Sudan, on disarmament, demobilization and reintegration and on the status of humanitarian affairs in the country were also held in the framework of parliamentary activities. Training course for members of parliament on human rights and peace-building measure were also organized. Field visits to South Sudan were conducted by both Houses of Parliament, where MP's met with several members of the Southern Sudan Government and members of the Legislative Councils in the South to discuss and evaluate efforts relating to the status of implementation of the CPA.

ConclusionThis communication reveals that the Comprehensive Peace Agreement

brought about tremendous political change in the political and economic structure of Sudan and produced many developments in the performance of the national Parliament, putting on his shoulders enormous amounts of responsibilities to play its role in transforming the provisions of the CPA into constitutional and legal provisions. This is in addition to the responsibility established by the CPA on the shoulders of the two legislatures in each of the States of Southern Kordofan and Blue Nile for the implementation of the popular consultation included in the Comprehensive Peace Agreement.

Mr Alphonse K. NOMBRÉ (Burkina Faso) asked how this agreement and its implementation had worked out following the independence of South Sudan.

99


Mr Mahamat HASSAN BRÉMÉ (Chad) thanked and congratulated Mr IBRAHIM. He asked about the situation in South Sudan at the moment the agreement had been signed. He thought that some bodies had been pointlessly duplicated and that the separation of powers appeared biased, and he asked for clarification on these subjects.

Mr Shah Sultan AKIFI (Afghanistan) asked Mr IBRAHIM about the constitutional court and its competences.

Mr Socrates SOCRATOUS (Cyprus) recalled the management of the crisis in Cyprus after the Turkish invasion in 1984, and asked if Parliament had been involved in the management of humanitarian situations.

Mrs Jacqueline BIESHEUVEL-VERMEIJDEN (Netherlands) asked what the relations were between the Council of States and the different national commissions and who took the final decisions.

Mr Md. Mahfuzur RAHMAN (Bangladesh) asked how the competences of the Supreme Court and Constitutional Court were defined.

Mr Manuel CAVERO GOMEZ (Spain) asked about the way in which the national commissions had been established and tasks had been allocated to them.

Mr Habtamu NINI ABINO (Ethiopia) asked if the Council of States had a genuine legislative competence.

Dr Ulrich SCHÖLER (Germany) asked about current relations between the authorities in Sudan and South Sudan.

Mr Said MOKADEM (Mahgreb Consultative Council; Associate Member) noted that the Parliaments were currently nominated “until the establishment of an elected Parliament”, and asked if a date had been determined for legislative elections.

Mr Ibrahim Mohamed IBRAHIM replied that the initial agreement provided for a future referendum on the self-determination of South Sudan, but this country had wished to have its independence immediately. The two countries were currently distinct, with normalised diplomatic relations. The President of Sudan was still in place and the former Vice-President was currently President of South Sudan. The Supreme Court was at the head of the traditional judicial system, while the constitutional court determined the constitutionality of certain decisions, and managed relations between Parliament and Government. The Council of States was the guardian of the interests of the States in order to ensure that equitable treatment. It carried out other tasks jointly with the National Assembly, notably to reject texts judged by a majority of members to be unconstitutional. Its powers were all the same limited in practice. Elections had already taken place, and the current Parliament was elected.

100


RECENT ACTIVITIES OF THE GLOBAL CENTRE FOR ICT IN PARLIAMENT

—

Gherardo CASINIObserver (ICT)

Mr CASINI reminded the Association of the role and principles of activity of the Global Centre, created in 2005, and explained that, of the 267 national Chambers in the world, 244 had participated since in one or more activities of the Centre, as had international parliamentary assemblies. These activities ranged from advice and the provision of expertise, to the implementation of projects and assistance in the use of new technologies. Mr Casini drew members’ attention to the need to complete the questionnaires sent to Parliaments, so that the 2012 World e-Parliament report would be representative and of high quality.

101


RAISING MATTERS OF URGENCY OR EMERGENCY IN THE CHAMBER

—

General debate moderated by Claressa SURTEESClerk Assistant (Table) of the House of Representatives (Australia)

IntroductionMinisters who are Members of the Australian House of Representatives

have privileged access to initiate and conduct business in the Chamber. Although leave of the House is required, a Minister may make a statement to the House at any time that other formal business in not being considered. The procedure is used to announce government policy or other actions or decisions of the Government, or to inform the House of other urgent matters. Leave is rarely refused to a Minister seeking to make a statement, however the same level of accommodation would be unlikely to be extended to a private, or backbench Member.

There are several opportunities available to private Members to enable them to raise a topical or urgent matter in the Chamber. The standing orders of the House provide two measures which would enable a Member to subject a wide range of executive government activity to scrutiny or critical analysis during specific periods in the order of business. A Member may ask a Minister a question without notice, or a Member may propose the discussion of a definite matter of public importance. The standing orders also provide for two further measures to enable a Member to move and debate motions which could relate to urgent matters – one is for censure of or want of confidence in the Government, and the other is for a suspension of standing orders without notice to raise a matter.

Which measure a Member chooses might depend on the level of urgency with which he or she views a particular matter. Each of these four distinct measures is discussed below, and the relevant standing orders are stated.

102


Question TimeStanding orders provide that for each sitting there is a period, from 2 to

3.10 pm, during which a Member may ask the Prime Minister, or any Minister who is a Member of the House, a question without notice about a matter within the Minister’s official responsibilities. The Minister’s answer is required to be directly relevant to the question.

The particular advantage this measure has is certainty, as Question Time occurs every sitting at the same time. The limitations of this measure are that there is not enough time for each Member to ask a question every day, there are a maximum of 20 questions, and usually ‘tactics’ groups within the parties determine the terms of the questions and how the questions are shared amongst the Members within the respective party groupings.

The standing orders (so 1) provide maximum speaking times for questions and answers, and the Speaker has used his discretion to permit up to five supplementary questions with shorter speaking times:

[extract from Standing Order 1 as at 8 February 2012]Question 30 secondsAnswer 3 minutes

[Speaker’s determination with effect from 8 February 2012]supplementary question 20 secondsanswer 1½ minutes

[extract from Standing Orders as at 8 February 2012]Chapter 9. Questions seeking informationOral and written questions97 Daily Question Time

(a) Question Time shall begin at 2 pm on each sitting day, at which time the Speaker shall interrupt any business before the House and call on questions without notice. (b) The business interrupted shall be dealt with in the following manner:

(i) if a division is in progress at the time, the division shall be completed and the result announced; or (ii) the Speaker shall set the time for resumption of debate.

98 Questions to Ministers (a) A Member may ask a question in writing of a Minister (but not a Parliamentary Secretary), to be placed on the Notice Paper for written reply. (b) During Question Time, a Member may orally ask a question of a Minister (but not a Parliamentary Secretary), without notice and for immediate response. (c) A Minister can only be questioned on the following matters, for which he or she is responsible or officially connected:

(i) public affairs;

103


(ii) administration; or (iii) proceedings pending in the House.

(d) Questioners must not ask Ministers: (i) for an expression of opinion, including a legal opinion; or(ii) to announce government policy, but may seek an explanation about the policy and its application, and may ask the Prime Minister whether a Minister’s statement in the House represents government policy.

100 Rules for questions The following general rules apply to all questions:

(a) Questions must not be debated. (b) A question fully answered must not be asked again. (c) For questions regarding persons:

(i) questions must not reflect on or be critical of the character or conduct of a Member, a Senator, the Queen, the Governor-General, a State Governor, or a member of the judiciary: their conduct may only be challenged on a substantive motion; and (ii) questions critical of the character or conduct of other persons must be in writing.

(d) Questions must not contain: (i) statements of facts or names of persons, unless they can be authenticated and are strictly necessary to make the question intelligible; (ii) arguments; (iii) inferences; (iv) imputations; (v) insults; (vi) ironical expressions; or (vii) hypothetical matter.

(e) Questions must not refer to debates in the current session, or to proceedings of a committee not reported to the House. (f) The duration of each question is limited to 30 seconds.

101 Speaker’s discretion about questionsThe Speaker may:

(a) direct a Member to change the language of a question asked during Question Time if the language is inappropriate or does not otherwise conform with the standing orders;(b) allow supplementary questions to be asked to clarify an answer to a question asked during Question Time; and (c) change the language of a question in writing if the language is inappropriate or does not otherwise conform with the standing orders.

104


103 Questions to Speaker At the conclusion of Question Time, Members may ask questions orally of

the Speaker about any matter of administration for which he or she is responsible.

Replies to questions 104 Answers

(a) An answer must be directly relevant to the question. (b) A point of order regarding relevance may be taken only once in respect of each answer. (c) The duration of each answer is limited to 3 minutes.

------------------------Procedures for the other three measures that provide a private Member

with an opportunity to raise matters at short notice, all appear in the same section of the standing orders, namely ‘Other business’.

Discussion of a definite matter of public importanceShortly after Question Time on each Tuesday, Wednesday and Thursday,

a definite matter of public importance proposed by a Member, may be discussed in the House. Typically, a matter proposed for discussion would be topical or urgent, reflecting contemporary events or concerns. Should more than one Member propose a matter for discussion, the Speaker has discretion to select the preferred matter for that day. The terms of the discussion are in the form of a statement rather than proposed as a question, and the statement does not have to be expressed as directly relating to the Government, but it frequently is. Some recent examples are:

The urgent need for the Government to abandon the carbon tax. The threat to Australia posed by the Government’s budget cuts to

Customs and Border Protection.Motion of censure of or no confidence in the GovernmentA motion, or an amendment of a motion, which expresses censure of or

no confidence in the Government is considered to be a very serious matter and would not occur very often. A notice may be proposed at any time the House sits or a Member may ask a Minister to accept such a motion at any time, and once proposed it would have priority of all other business until the motion was conclusively dealt with by the House. The seriousness with which such a debate is viewed is reflected in the speaking times stated in the standing orders:

[extract from Standing Order 1 as at 8 February 2012]Whole debate no limitMover 30 minutesPrime Minister or Minister first speaking 30 minutesAny other Member 20 minutes

Suspension of standing or other orders without noticeA motion to suspend orders may be moved with or without notice and,

with limitations, such a motion may be moved at any time. The limitation is

105


that, if a motion to suspend orders is moved when business is under discussion, then the motion must relate to that specific business. Otherwise, a motion to suspend orders may be moved at any time between items of business. This is quite a versatile measure and permits of a wide range of matters potentially being introduced for debate. At the very least, in moving a suspension of standing orders, a Member is able to state, in broad terms, the concerns that have led to the Member attempting to initiate a specific debate.

[extract from Standing Order 1 as at 8 February 2012]Whole debate 25 minutesMover 10 minutesSeconder, if any 5 minutesFirst Member against the motion 10 minutesAny other Member 5 minutes

____________________[extract from Standing Orders as at 8 February 2012]

Other business46 Discussion of definite matter of public importance

(a) On Tuesdays, Wednesdays and Thursdays a Member may propose a definite matter of public importance be put to the House for discussion. (b) The Member must give a written statement of the matter to be discussed to the Speaker by 12 noon. If the Speaker decides that it is in order, the Speaker shall read the statement to the House at the time provided in standing order 34 (order of business). (c) The proposed discussion must be supported by eight Members, including the proposer, standing in their places. The Speaker shall then call on the Member who proposed the matter to speak first. (d) If more than one matter is received for the same day, the Speaker shall select the matter to be read to the House that day. (e) At any time during the discussion, any Member may move—

That the business of the day be called on. This question shall be put immediately and decided without amendment

or debate. If agreed to, the business of the day shall be proceeded with immediately.

(f) A motion to adjourn the discussion or to move a closure of the question is not in order.

47 Motions for suspension of orders (a) A Member may move, with or without notice, the suspension of any standing or other order of the House. (b) If a suspension motion is moved on notice, it shall appear on the Notice Paper and may be carried by a majority of votes. (c) If a suspension motion is moved without notice it:

(i) must be relevant to any business under discussion and seconded; and (ii) can be carried only by an absolute majority of Members.

106


(d) Any suspension of orders shall be limited to the particular purpose of the suspension.

48 Censure of or no confidence in the Government A motion on notice or an amendment of a motion which expresses

censure of or no confidence in the Government shall have priority of all other business until it is disposed of by the House, if it is accepted by a Minister as a motion or amendment of censure or no confidence.

ObservationsHistorically, it was considered that oral questions without notice to

Ministers should be on important or urgent matters that required immediate attention. The alternative form of questions being placed on the notice paper was, and still is, regarded as suitable for more routine queries. The characterisation of matters as urgent or important is subject to individual interpretation.

In the past, the suspension of standing and other orders was used principally by the Government to facilitate the progress of business through the House. Since the 1960s, the procedure has been used increasingly by the Opposition as a tactical measure to propose matters it considers to be deserving of immediate debate. During this current Parliament there have been very frequent motions to suspend standing orders proposed by opposition Members.

In relation to ongoing or longer term issues, as compared with matters of urgency or ones arising at short notice, specific procedures for private Members to propose motions and bills to be considered by the House were introduced in the 1980s. Since then, opportunities for private Members have been extended, most noticeably during the current term of minority government.

Dr Vivek K. AGNIHOTRI (India) presented a written contribution, as follows:

INTRODUCTIONThe vibrancy of democracy lies in how well it ventilates voice of the

people in its legislature. Accountability of the executive to the legislature, which is central to good governance, calls for timely attention being paid to the urgent needs of the society. As representatives of the people, Members of Parliament and State Legislatures are duty bound to raise matters of public importance in the House; ventilate people’s grievances and seek their redressal; elicit information from the Government and enforce the executive accountability to the legislature. In a large country like India, which faces the formidable challenges of development and governance, issues of serious and emergent nature arise almost daily and need to be immediately taken up in the House. When such matters arise and agitate the minds of the Members, they feel that they must raise those matters, at the first available opportunity, in the House.

107


2. The Council of States (Rajya Sabha), the upper House of Indian Parliament, has provided in its rule book several procedural devices for raising and discussing issues of public importance, including matters of urgency or emergency. Besides the procedural devices such as the Calling Attention and Short Duration Discussion for raising matters of urgency in the House in a structured way, ‘Zero Hour’ submissions (Matters raised with permission of the Chair) are also made by the Members, which do not find place in the rule book but are regulated by the Chairman so that the Members may raise matters which agitate their minds, without detailed procedural requirements.

CALLING ATTENTION3. One of the procedures available to the Members to raise matters of

urgency or emergency in the Chamber is Calling Attention. Rule 180 of the Rules of Procedure and Conduct of Business in the Council of States enables a Member to call the attention of a Minister to any matter of urgent public importance with the previous permission of the Chairman. The Minister may respond to it by making a brief statement or may ask for time to do so at a later date or time. No debate takes place on such a statement when it is made. As per the limit set by the Rule, not more than one such matter is raised at the same sitting. In case there are more than one matter for the same day, the Chairman decides priority on the basis of the urgency and importance of the matter. Normally, Calling Attention is taken up after the completion of the Question Hour and laying of papers on the Table of the House and before any other item in the List of Business is taken up. No other time during the sitting of the Council is preferred for taking up Calling Attention.

4. The Chairman alone decides the admissibility of Calling Attention notices, which are subject to the rules and his judgment about whether the matter sought to be raised calls for an early statement from the Minister. Urgency and public importance of the subject matter are, therefore, two basic criteria for admission of notices of calling attention. The Chairman decides on merit depending on these two criteria and selects for admission one subject from amongst several ones, notices of which are given by Members for every sitting of the House. There is no requirement under the rules to consult the Leader of the House or the Minister concerned in this regard. Normally, a Calling Attention is admitted two or three days before the day on which the attention of the concerned Minister is to be called, so that the Minister may prepare himself for making a statement.

5. With a view to streamlining the procedure in regard to Calling Attention, the Chairman has issued directions from time to time which inter alia state that a Member may give a maximum number of two notices for Calling Attention for any one sitting. A member who initiates a Calling Attention should not take more than 7 minutes. Other members who are called by the Chairman should not take more than 5 minutes each and should restrict themselves strictly to seeking clarifications on the Calling Attention and avoid making long speeches. Not more than one hour should be spent on a Calling Attention and when there is Question Hour, the Calling Attention should conclude sharply at 1.00 p.m. Where a Calling Attention Notice stands in the name of a number of Members, in choosing members

108


who desire to seek clarifications, the first principle will be party/group. After exhausting the parties/groups whose members have given the notice by calling one Member from each party/group, the Chairman may call Members belonging to parties/groups not in the list.

6. In a number of rulings from the Chair, it has been made clear that to admit or reject a Calling Attention notice is the discretion of the Chair. Admission or non-admission of a Calling Attention notice is not to be questioned and the Chairman is also not bound to give any reasons for his decision in the matter. If a Calling Attention notice is disallowed, Members cannot raise the question in the House but can discuss it with the Chairman in his Chamber.

STATEMENTS BY MINISTERS7. Rule 251 of the Rules of Procedure and Conduct of Business in the

Council of States prescribes that ‘A statement may be made by a Minister on a matter of public importance with the consent of the Chairman but no question shall be asked at the time the statement is made’. In fact, the statements made by the Ministers on the floor of the House enable the Government of the day to share information with Parliament on major policy issues or on important developments and incidents. It also provides an opportunity to the Members to appreciate the stand of the Government on issues of urgent public importance. As per the Rules of Procedure, a Minister may make a statement suo motu on a matter of public importance, and, in response to a Calling Attention, on matters of urgent importance. For example, the Prime Minister made a statement regarding setting up of Joint Parliamentary Committee on 2G spectrum allocation on 22 February 2011. Again on 27th August, 2011, the Minister of Finance made a statement on the issues relating to setting up of a Lokpal, which was discussed at length in the House and the House unanimously adopted a resolution for a strong Lokpal Bill. When a suo motu statement is made by a Minister, no questions are asked at the time the statement is made. However, as per the current practice in Rajya Sabha, Members can seek clarifications to which the Minister responds.

8. If the Chairman admits a Calling Attention on a subject matter in response of which the Minister has already made a statement suo motu, generally the Minister concerned does not make a statement again. However, there have been occasions when despite a previous suo motu statement on a subject matter, the Minister made a statement again in response to a Calling Attention on that subject.

SHORT DURATION DISCUSSION 9. Another important parliamentary device available to Members to draw

the attention of the Government to matters of urgent public importance is to raise a discussion of short duration without a formal motion or vote thereon. Rule 176 of the Rules of Procedure and Conduct of Business in the Council of States empowers a Member to give notice of Short Duration Discussion for raising discussion on a matter of urgent public importance. The notice may be given to the Secretary-General specifying clearly and precisely the matter to be raised. Notice may be given at any time after the issuance of summons to Members and should be supported by the signatures of at least

109


two other members. The Notice is required to be accompanied by an explanatory note stating reasons for raising discussion on the matter in question.

10. The Chairman decides the admissibility of the notice. If an early opportunity is otherwise available for discussion of the matter, the Chairman may refuse to admit the notice. Under Rule 177, the Chairman satisfies himself that the matter is urgent and is of sufficient public importance after obtaining such information from both the Members, who have given the notice, and the Minister, who is concerned with that issue. He then takes the decision to admit the notice and, in consultation with the Leader of the Council, fixes the date on which that matter may be taken up for discussion within a time frame not exceeding two and a half hours. After a notice is admitted and a date fixed for its discussion, the item is included in the List of Business for that date.

11. As per Rule 178, the discussion takes place without any formal motion and is not subjected to voting. The Member, who has given notice, may make a short statement and, thereafter, any Member who has previously intimated to the Chairman may be permitted to take part in the discussion. At the end, the Minister gives a short reply. The Member who initiates the discussion has no right of reply. Under Rule 179, the Chairman may, if he thinks fit, prescribes time limit for the speeches of the participants in the Short Duration Discussion. As per practice and precedents, ordinarily in the meeting of the Business Advisory Committee, the Chairman identifies the subject to be taken up for Short Duration Discussion and the date on which it is to be scheduled. The concerned Minister/Ministry and the Ministry of Parliamentary Affairs are also informed about the admission and the scheduled date for discussion in the House.

12. The total time of two and a half hours is allocated among various political parties, nominated/independent Members in proportion to their strength/numbers in the Council. There have been numerous instances when the discussion has far exceeded the time of two and a half hours allotted for the purpose in view of the importance of the subject, duly authorised by the Business Advisory Committee and/or the Chairman. The names of Members are arranged in the List of Business according to the point of time of receipt of their notices. The names also include those of supporting Members. Generally, the Member, whose name appears first in the List of Business, initiates the discussion. Sometimes, the party to which such Member belongs gives the name of another Member to initiate the discussion, irrespective of the fact whether or not that Member had given a notice on the subject under discussion.

13. There have been instances when notices of motions given by Members under Rule 168 read with rule 167, to discuss a matter of general public interest, were converted into Short Duration Discussion (Rule 176) on the basis of a decision taken either in leaders’ meeting or in the meeting of Business Advisory Committee. Thereafter, the Motion was dispensed with and the subject was discussed in the form of a Short Duration Discussion.

14. Whether a matter should be discussed by way of a motion under rule 167 or a short duration discussion under rule 176, sometimes becomes crucial and controversial. The Rajya Sabha does not have a procedure for

110


moving of an adjournment motion, censure motion or no-confidence motion against the Government. Apart from a private member's resolution, moving of a motion under rule 167 is the only procedure where the House can record its opinion and members can move amendments to such a motion, which may be put to the vote of the House and even adopted. While the opposition may have its own reasons to employ the device under rule 167 (to embarrass or criticise the Government), the Government may view it as a sort of adverse vote. Notwithstanding the controversies, there is a growing trend to discuss important matters by way of short duration discussion. For example, During the Monsoon Session in 2011 (223rd Session of Rajya Sabha), four issues were discussed at length in the form of Short Duration Discussion, namely, Growing incidents of terrorism in the country with special reference to recent blasts in Mumbai on the 13th July 2011; Commonwealth Games, 2010 and the developments that have taken place thereafter; Growing incidents of corruption in the country; and Problems being faced by Sri Lankan Tamils. Again, during the Winter Session (224th Session), two issues were discussed at length in the form of Short Duration Discussion namely, ‘situation arising out of unprecedented rise in prices of food and other essential commodities and its effect on common man’ and ‘situation arising out of the present agrarian crisis resulting in suicides by the farmers of the country’.

SUSPENSION OF THE QUESTION HOUR TO RAISE URGENT MATTERS

15. Though there is no specific provision in the Rules of Procedure and Conduct of Business in the Council of States for the suspension of the Question Hour, it may, however, be dispensed with to take up some other urgent matter. Member may give notice under Rule 267 for the suspension of the Question Hour. Under this rule, application of any rule may be suspended, provided there is no specific provision to do away with that particular rule. The notice shall contain the text of the motion to be moved for suspension of the question hour with specific reference to rule 267 and rule 38.

16. The Chairman has absolute discretion in deciding whether a notice for suspension of the question hour should be admitted or not. The primacy of the Question Hour as an instrument of enforcing the accountability of the executive has to be taken into consideration in deciding the issue. The Member whose motion has been admitted by the Chairman, when called upon, shall move the motion. While moving the motion, he may be allowed to speak briefly in favour of the motion. The motion shall thereafter be put to vote of the House. The House may reject or adopt the motion by voice vote or by division.

17. There are several instances when the Chairman has given consent to move a motion to suspend the Question Hour and the motion was adopted. There have been also several occasions when there was consensus in the House to dispense with the Question Hour for making available more time to other business or to take up an urgent issue of public importance. For instance, on 11 December 2008, the Question Hour was dispensed with to take up the issue of terrorist attacks in Mumbai in view of the gravity of the matter. Again on 25th February 2010, the Question Hour was dispensed with

111


to take up Short Duration Discussion on the price rise situation in view of the consensus arrived at in the House on this matter. On 17 August 2011, the Question Hour could not be held as the Prime Minister made a statement on the situation arising out of the agitation launched by Shri Anna Hazare.

18. There are also numerous instances when the Chairman disagreed with the Members to suspend the Question Hour or refuse to give his consent for moving a motion for this purpose. There have been quite a few occasions when no question could be taken up for oral answer even though the Question Hour was not formally suspended. Members, agitated over some issue and rigid in their demand to dispense with the Question Hour, frequently disturbed the proceedings and created uproarious scenes. In such situations, the Chairman had no option but to adjourn the House during the Question Hour. On many occasions, the House witnessed frequent adjournments going beyond the Question Hour.

112


ZERO HOUR SUBMISSIONS (MATTERS RAISED WITH PERMISSION OF THE CHAIRMAN)

19. Though not provided in the Rules of Procedure, raising of these matters has gained much popularity over a period of time. These matters are allowed to be raised by the Chairman immediately after Question Hour and should normally conclude by 12.30 p.m. Members may give notices by 10.00 a.m. on the day when they wish to raise a matter and these notices remain valid for that day only. Not more than one submission per member per week is allowed and normally a maximum of ten such matters are allowed by the Chairman on a day. Matter sought to be raised should be of sufficient public importance, which needs to be raised urgently. The priority of the notices is decided according to the time of the receipt. Member, whose notice is admitted, is given three minutes to speak, while others intending to raise the same matter may only associate with it.

Mr Claes MÅRTENSSON (Sweden) presented a written contribution, as follows:

Opportunities to introduce initiatives and matters in the Chamber of an urgent or important nature

IntroductionThere are a number of opportunities at the Swedish Parliament available

for a member, a group or a party to raise an issue or a matter of an urgent or important nature in the Chamber.

Some of these are part of the Riksdag's supervisory role, also known as parliamentary control over the Government and ministers, which is exercised by individual members. A group of members or a party can also initiate a debate on a topical or urgent subject or have a certain matter raised for which a rapid decision by the Riksdag is required.

Supervision of the Government and ministers in accordance with the Instrument of Government

Interpellations A member may submit an interpellation to a minister regarding the

performance of his or her duties. In other words, the interpellation must not refer to measures of other authorities and their decisions on specific matters.

The minister in question then answers the interpellation at a debate in the Chamber within 14 days. However, there is no obligation for a minister to answer an interpellation. The Committee on the Constitution has however stated as its firm opinion that a minister should only be able to refrain from answering an interpellation in exceptional circumstances and when exceptional grounds exist.

If the answer is delayed or if there is no answer, the minister in question must inform the Chamber of the reasons for this.

113


Members other than the member putting the interpellation may also sign up to participate in the interpellation debate. There are special rules for speaking time for contributions to the debate. The debate does not result in any decision by the Chamber, but the individual contributions are reported in the record of meetings in the Chamber.

Interpellation debates are quite common in Sweden and amount to approximately 500 per year.

QuestionsThere are two types of questions that a member may put to a minister. Firstly, a member may submit a question for a written reply. The question

has to be submitted within five days. Questions and answers are reported every week in an annex to the record of meetings in the Chamber.

However, there is no obligation for a minister to answer a written question. If the answer is delayed or if there is no answer, the minister in question must inform the Chamber of the reasons for this.

Questions for a written reply may be submitted 365 days a year. During periods when there are no regular meetings of the Chamber, they are answered within 14 days. The number of questions amounts to almost 1,000 every year.

The other possibility is to put an oral question to a minister during question time in the Chamber every Thursday. Five ministers come to the Chamber to answer questions from the members for one hour. Both the questions and the answers must be short.

Every fourth question time is the Prime Minister's question time. This is when the Prime Minister alone has to answer oral questions from the members. Party leaders or other prominent representatives of the opposition parties have priority when it comes to asking questions.

Question time does not lead to any decision by the Chamber, but the contributions from ministers and members are reported in the record of meetings in the Chamber.

Both questions for written answers and questions asked during question time should concern the performance of the duties of a minister or of the Prime Minister.

Current affairs debate A party may submit a request via its party leader or group leader to the

Speaker that a debate on a topical subject be held. The Speaker decides whether the debate may be held following consultations with the party group leaders.

There are a number of criteria determining whether a current affairs debate is to be held. It should deal with an important recent issue that has suddenly been brought to the fore, concern an issue of national or international character and there must be no plans for it to be considered in any other way by the Riksdag in the near future.

The relevant minister takes part in the debate together with one representative from each of the other parties that wish to participate. The debate follows special rules as regards speaking time. No decision is taken

114


by the Chamber as a result of the debate. The individual contributions are reported in the record of meetings in the Chamber.

Private member's motion resulting from an event of major importance

A member of parliament has the right to present alternative proposals to, for example, a proposal from the Government. Such a proposal from a member is known as a private member's motion. There is also a general private members’ motions period in the autumn when the members have the opportunity to submit motions on any subject provided they concern an issue that the Riksdag may decide on.

There is another opportunity for the submission of motions, and that is as a result of an event of major importance.

Such a motion may be submitted jointly by at least ten members provided the event in question could not be foreseen or considered during the general private members’ motions period or a private members’ motions period resulting from, for example, a proposal from the Government. The purpose of this is to enable the parliamentary opposition to put forward proposals as a result of events that are of major significance and that could not reasonably be foreseen or considered earlier.

The Speaker examines whether the motion in question may be instituted. There are substantial practical routines for assessing whether the pre-conditions for instituting a motion resulting from an event of major significance are met. If the Speaker finds that the pre-conditions have been met, the motion is circulated for comment to the relevant committee for preparation of the proposals contained in the motion. The committee’s consideration results in a committee report, which is then debated and decided on in the Chamber.

An example from recent years of a motion resulting from an event of major significance that could be instituted is a motion by the Green Party on advance safety levels at Swedish nuclear reactors as a result of the events caused by the natural disaster in Japan at the nuclear power station Fukushima Daiichi.

Committee initiativesA committee also has the opportunity to take the initiative to raise a

matter. This may for example concern proposed legislation which is urgent and for which there is no time to await a proposal from the Government. The committee’s consideration results in a committee report, which is then debated and decided on in the Chamber.

However, it should be noted that this possibility is only open to a majority in the committee. A minority cannot in this way bring about consideration of a matter in the Chamber.

Mr Vladimir SVINAREV (Russian Federation) presented a written contribution, as follows:

115


1. In the Council of the Federation the procedure for raising matters of urgency or emergency is regulated by the provisions of the Chamber Regulation.

Certain non-scheduled issues may be discussed by the Chamber Council that is a permanent body of the Council of the Federation. Its main task is preparation and consideration of issues related to activity of the Council of the Federation including urgent and operational ones. In accordance with the Council of the Federation Regulation the Chamber Council, in particular, discusses the extent of readiness of issues submitted for consideration of the session of the Council of the Federation, makes statements and appeals related to general political and social-economic matters.

2. Another important form of consideration by the Council of the Federation of procedure for raising matters of urgency or emergency is extraordinary sessions of the Chamber. During its parliamentary history the Council of the Federation repeatedly convened such sessions for urgent consideration of important issues of the state policy of the country and their implementation. On the one hand, for the Council of the Federation as a chamber of Russian parliament, this demonstrates prompt and timely influence on the federal legislative process. On the other hand, as for a chamber that represents the interests of the Russian Federation subjects, this provides with the right to decide on issues that affect various aspects of public life: social-economic sphere, major social-political events.

In accordance with the Council of the Federation Regulation an extraordinary session of our Chamber may be convened at the suggestion of the President of the Russian Federation, the Chairman of the Council of the Federation, the Chamber Council, the Council of the Federation Committee on issues within its competence, or at the suggestion of at least one third of total members of the Council of the Federation. At this the Chamber Committee proposal shall be supported by at least one fifth of the total number of the Council of the Federation members.

An extraordinary Council of the Federation session may also be convened if it is necessary to urgently decide on the possibility of using the Armed Forces of the Russian Federation outside the territory of our country.

Besides that the Chamber Regulation stipulates the possibility of extraordinary session of the Council of the Federation for consideration of a federal law that the Council of the Federation committees have comments on. In that case the Chamber Council may request the Chairman of the Council of the Federation to convene such a session.

An extraordinary Chamber session may also be convened for consideration of certain personnel issues. 1

1 For example, if necessary, the Chairman of the Council of the Federation convenes an extraordinary session to consider assignment of judges of the Constitution Court of the Russian Federation, the Chairman of the Supreme Court of the Russian Federation or the Deputy Chairman of the Supreme Court of the Russian Federation, the Chairman of the Supreme Arbitration Court of the Russian Federation or the Deputy Chairman of the Supreme Arbitration Court of the Russian Federation.

116


3. Analyzing the dynamics of extraordinary session it can be noted that they were usually held during the difficult periods in life of our country. For example, in 2008, in conditions of complicated domestic and foreign situation, 3 sessions were convened. In total, from 2008 till present 8 extraordinary sessions of the Council of the Federation were held.

While considering an issue at such sessions the Council of the Federation adopted resolutions, appeals, including those to the President of the Russian Federation, in which it stated its principal position on important public issues and suggested the most appropriate ways to address them. Representatives of state power bodies and key ministers were frequently invited to such sessions to directly deal with issues.

For example, in August of 2008 the Council of the Federation adopted an appeal to the President of the Russian Federation on recognition of independence of the South Ossetia and Abkhazia. 1 In 2009 the Deputy Prime Minister of the Russian Federation, the Minister of Finance and Deputy Minister of Finance of the Russian Federation were invited to discuss an issue on introduction of necessary amendments to the budget.

The Council of the Federation has made a great contribution to solving of problems on mitigating the consequences of the global financial crisis. In October 2008 the Chamber gathered for an extraordinary session to promptly approve of very important anti-crisis measures to support domestic financial markets and banking system of the Russian Federation.2

These measures allowed increasing Russian citizens’ trust in banks and protecting interests of socially vulnerable population as much as possible.

During extraordinary Chamber sessions a whole range of important laws was adopted, the delay of which could adversely influence economic and social situation as well as other important aspects of public life.

For example, last March the Council of the Federation members gathered for an extraordinary Chamber session to promptly adopt a vitally important law on indexation of social benefits.3

Thus, the practice of convening extraordinary sessions of the Council of the Federation shows their importance in achieving goals of state policy and providing of prompt response to arising politically and socially significant events.

Thank you for your attention.”

1 This issue was considered during the 228th session of the Council of the Federation. 2 The Federal Law of October 13, 2008, No. 173-FZ “On Additional Measures to Support Financial System of the Russian Federation”, the Federal Law of October 13, 2008, No. 174-FZ “On Amendments to Article 11 of the Federal Law “On Insurance of Deposits of Physical Persons with Banks of the Russian Federation” and some other legislative acts of the Russian Federation”. These laws were adopted at the 231st session of the Council of the Federation. 3 The Federal Law of March 28, 2011, No. 43-FZ “On Amendments to Article 25 of the Federal Law “On State Pension Provision in the Russian Federation” was adopted at the 292nd session of the Council of the Federation.

117


Mr Hans BRATTESTÅ (Norway) thought that parliamentary minorities needed, in accordance with recommendations from the Council of Europe, to have an ability to influence the parliamentary agenda. He noted that in Norway, parliamentarians could not be ministers, and were replaced by the next person on the electoral list if appointed to government office. He described the different ways of scrutinising the Government, especially through questions, with one sitting dedicated to spontaneous current questions, and another dedicated to questions submitted several days in advance. Parliamentarians could also table written questions to the Government. Debates and votes on urgent issues could be organised flexibly. When the agenda for a day was exhausted, and question was very urgent, it was also possible to ask a minister to come at the end of the day to reply to parliamentary questions. Finally, the permanent committee on the Constitution had extraordinary powers, and could decide, by a majority of a third of its members, to place a text on the agenda. The Opposition and minority groups thus had numerous levers for holding the Government to account and place matters on the agenda. He even wondered if Norway had not gone too far in its provisions for Parliament holding the Government to account.

Mrs Philippa HELME (United Kingdom; substitute member) Noted that in the British House of Commons, the last fifteen minutes of Question Time, which occupied the first hour of almost every sitting, were dedicated to topical questions to Government Ministers, asked without notice. There was also a procedure for asking urgent questions, which could be put to any Government Department, with the Speaker’s permission, at any sitting.

Mr Hossein SHEIKHOLESLAM (Iran) noted that the Iranian system was rather different to the Australian system, as there was a strict separation of powers in Iran. On one occasion in thirty years, an urgent question had led to the censuring of a Minister. But scrutiny activity did sometimes lead to Ministers being cross-questioned. Bills were divided into three categories depending on whether or not they were urgent, and the quorum required to adopt them varied according to the greater or lesser degree of urgency that had been accorded to them. The most urgent questions needed to be debated less than 72 hours after their entry onto the agenda, and for bills, debate could begin at once. For these sittings, members of the Council of Elders were invited to verify immediately that there were no problems of unconstitutionality or incompatibility with the principles of Islam in respect of the provision. The minutes of the sitting were not distributed until after the urgent situation had been resolved.

Mr Mohamed Kamal MANSURA (South Africa) explained that in his country, an urgent question could not be added to the agenda without the agreement of the Speaker, who examined if the question really was urgent and specific, and appropriate to be asked. If the question was extremely urgent, it could be entered on the agenda for the same day.

Mrs Jacqueline BIESHEUVEL-VERMEIJDEN (Netherlands) noted that urgent questions could be asked in different ways in the Netherlands: questioning of a Minister, if at least thirty Members called for it (no more than five times a year), written questions, the number of which continued to

118


increase, questions to the Government, for which the Speaker selected the questions to be asked and the order in which they were to be taken (six questions being taken in an hour), and genuinely urgent debates, which could only be added to the agenda with the support of thirty Members.

Mrs Doris Katai Katebe MWINGA (Zambia) noted the points of similarity between the different Parliaments of the Commonwealth. Various possibilities existed in Zambia: urgent questions with the possibility of postponing other work for 45 minutes on a Thursday, a procedure little appreciated by Members, questions to the Government for 30 minutes a week, and finally the putting together of related questions, which often became a debate.

Mr Philippe SCHWAB (Switzerland) mentioned the links between urgency procedures and the media, especially televised broadcasting. The media tended very much to echo these urgent debates, probably in a more lively manner, something that pushed certain Members to choose subjects with the simple goal of obtaining media coverage. He asked Ms SURTEES if she had encountered situations of this kind.

Ms Claressa SURTEES noted that indeed, there was no strict separation of powers in Australia, and almost all Ministers also sat in the national Parliament. She noted that there was a television channel which transmitted all of the debates in the Chamber, whether urgent or not, but that this did not seem to date to have affected the work of the Chamber. It could happen that some Ministers refused to reply to questions that they thought to be unjustified. The Speaker then had the role of arbitrator, and if he judged the question to be legitimate, the Minister was ordered to reply. She said that the Standing Orders did not provide any specific procedure for bring charges against or censuring a Minister, as the usual procedures could also be used in this kind of situation. No more than twenty questions, distributed between the parliamentary parties, could be asked during a parliamentary day.

119


THE SOUTH AFRICAN SYSTEM OF CO-OPERATIVE GOVERNMENT AND

INTERGOVERNMENTAL RELATIONS: AN ANALYSIS

—

Eric PHINDELASecretary to the National Council of Provinces (South Africa)

“The nature of the spheres of governmentSection 40 of the Constitution constitutes government in the Republic as

national, provincial and local spheres. These spheres, although distinct, are interdependent and interrelated. The Constitution does not specifically define these phrases. Their meaning may however be gleaned from the constitutional scheme.

The spheres are distinct in the sense that they are assigned different powers, interdependent because, national sphere is required to assist the provincial sphere in the event that the latter, due to lack of capacity and resources, is unable to carry out its own obligation. The provincial sphere is in the same manner required to assist the local sphere. Lastly, they are interrelated in the sense that they must co-exist.

To reinforce the distinct nature of the three spheres, the Constitution assigns to them (spheres) functions peculiar to each. These are referred to in Schedule 5 as functional areas of exclusive legislative competence. On the other hand, to ensure the interdependence of the spheres, the Constitution in Schedule 4 provides for what is referred to as functional areas of concurrent legislative competence. Co-operation rather than competition is a golden thread that runs through the constitutional scheme that underlies the spheres of government.

120


The Constitutional Court had an opportunity to define the distinctive nature of the spheres of government in The City of Johannesburg Metropolitan Municipality v Gauteng Development Tribunal and Others. There Jafta J said at para 55:

“It is, however, true that the functional areas allocated to the various spheres of government are not contained in hermetically sealed compartments. But that notwithstanding, they remain distinct from one another. This is the position even in respect of functional areas that share the same wording like roads, planning, sport and others. Distinctiveness lies in the level at which a particular power is exercised. For example, the provinces exercise powers relating to “provincial roads” whereas municipalities have authority over “municipal roads”. The prefix attached to each functional area identifies the sphere to which it belongs and distinguishes it from the functional areas allocated to the other sphere. [T]he functional area of “provincial roads” does not include “municipal roads”. “[P]rovincial planning” and “regional planning” do not include “municipal planning”.”

The difference between co-operative government and intergovernmental relations (the principles)

To give effect to the provisions of section 40, the Constitution in section 41 outlines the principles of co-operative government and intergovernmental relations.

Whereas the Constitution compels the spheres of government to maintain their distinctive nature in the exercise of their powers, it at the same time enjoins them to co-operate (rather than to compete) in their operations.

Although the Constitution does not define these concepts it is clear that it is within the distinct, interdependent and interrelated nature of the spheres of government that the principles of co-operative government and intergovernmental relations find expression.

The fact that these two different concepts are used in a single sentence results in them, in most instances, being conflated and sometimes used interchangeably as if one means the other.

That the two are different appears clearly from the wording of the Constitution. A simple reading of section 41(1) transports one to the destination that principles (a) – (d) re-emphasise the indivisibility of the Republic; principles (e) – (g) apply to intergovernmental relations; and (h) to co-operative government.

Dispute resolution between the spheresAn intergovernmental dispute arises where an organ in one sphere

alleges that the other has usurped the powers of the other in a different sphere, e.g. where an organ in a national sphere alleges that an organ in a provincial sphere has legislated on a matter of national competence. The case of City of Johannesburg Metropolitan Municipality referred to above clearly demonstrates this point. Section 41(3) discourages the organs to approach the courts before attempting to resolve the dispute first. It compels organs of state to take all reasonable steps and to exhaust all other

121


remedies before approaching a court to resolve the dispute. Failure to do so will result in a court referring the dispute back to the organs concerned.

Application of the principlesThe case of City of Johannesburg Metropolitan Municipality clearly

demonstrates the application of the principles of co-operative government and intergovernmental relations. The facts were briefly as follows. The City of Johannesburg Metropolitan Municipality (the Municipality) challenged the constitutional validity of section 33 of the Development Facilitation Act 67 of 1995 (the Act). The Act authorised the Gauteng Development Tribunal (the Tribunal), established in terms of the Act, to determine applications for the rezoning of land and establishment of townships. The Tribunals is an organ of provincial government.

The Municipality’s case was that the power to approve the rezoning of land and establishment of townships constitutes local government affairs over which municipalities have exclusive authority. Alternatively, that the said powers fell within the functional area of “municipal planning” which is the competence of local government within the meaning of section 156(1) of the Constitution read with Part B of Schedule 4. [at para.14] This contention is predicated on the principles of intergovernmental relations.

The Municipality further sought to have the decision of the Tribunal to rezone certain properties and establish townships reviewed. According to the Municipality the Tribunal had no power to determine the applications for rezoning and establishment of the townships. The Tribunal argued that whereas it had powers to rezone land and to establish townships arrogated to it by the Act, in doing so, it was not bound to consider the integrated plan and associated planning instruments of the Municipality.

Having failed to resolve the dispute, pursuant to section 41(3) of the Constitution the parties approached the High Court.

Proceedings in the High CourtIn the High Court the Municipality’s challenge failed. The High Court held

that the powers to rezone land and to approve the establishment of townships fell outside the functional area of municipal planning. Further, that those powers formed part of “urban and rural development”, which fell outside the functional area of municipalities’ executive authority. Consequently these powers could not be exercised by the Municipality.

The High Court further found that the Tribunal might have erred in holding that in determining the applications for rezoning and establishing the townships it was not bound by the Municipality’s integrated plan and associated planning instruments.

Proceedings in the Supreme Court of AppealAggrieved by the finding of the High Court, the Municipality appealed to

the Supreme Court of Appeal. The Supreme Court of Appeal overturned the decision of the High Court. It held that “municipal planning” falls within the functional area of competence of the local sphere of government and may not be assigned by an Act of Parliament to another sphere of government. To the extent that it conferred this competence on the Tribunal, a provincial organ, the Act was inconsistent with the principles of intergovernmental

122


relations and therefore Constitution. Simply put, the provincial sphere had usurped the powers of the local sphere of government.

Because the Supreme Court of Appeal had declared the provisions of the provincial Act constitutionally invalid, it referred its order to the Constitutional Court (the Court) for confirmation. In terms of section 172(2)(a) of the Constitution an order of constitutional invalidity has no force and effect unless it is confirmed by the Constitutional Court.

Proceeding in the Constitutional CourtJafta J, writing for a unanimous Court, couched the question to be decided

in the following terms:“The question that needs consideration is whether, by conferring powers concerned on development tribunals, these chapters [V and VI of the Act] are consistent with the provisions of the Constitution regulating the allocation of powers and functions to municipalities.”

Contextualising the circumstance under which one sphere of government may exercise powers arrogated to another, Jafta J said at para 44:

“The scope of intervention by one sphere in the affairs of another is highly circumscribed. The national and provincial spheres are permitted by sections 100 and 139 [respectively] of the Constitution to undertake interventions to assume control over the affairs of another sphere or to perform the functions of another sphere under certain well-defined circumstances, . . . Suffice it now to say that the national and provincial spheres are not entitled to usurp the functions of municipal sphere except in exceptional circumstances, but only temporarily and in compliance with strict procedures. This is the constitutional scheme in the context of which powers conferred on each sphere must be construed.”

According to Jafta J the fact that the Constitution allocates to municipalities original powers clearly indicates that they are not a sphere subordinate to either national or provincial sphere. Their by-laws, although required to be consistent with the Constitution, can no longer be regarded as subordinate legislation in a classical sense.

The purpose of Schedules 4 and 5 of the Constitution is to itemise the powers and functions allocated to each sphere of government. Accordingly this autonomy cannot be achieved if the functional areas itemised are construed in a manner that fails to give effect to the constitutional vision of distinct spheres of government.

Jafta J concluded that barring functional areas of concurrent competence (Schedule 4), each sphere is allocated separate and distinct powers which it alone is entitled to exercise. Sections 100 and 139 interventions constitute an exception to the principles of relative and limited autonomy of spheres of government.

ConclusionIt is clear from the aforegoing that although distinctive, interdependent

and interrelated, the spheres of government are not autonomous. Each exercises powers to the extent conferred by the Constitution. The Constitution enjoins co-operation rather than competition. The spheres are

123


required to co-operate with each other on matters of common interest. This entails planning together on matters of concurrent competence referred to in Schedule 4 of the Constitution. At the same time the spheres are prohibited from intervening in each other’s affairs except in circumstances referred to in sections 100 and 139 of the Constitution which authorise national government and provincial government to intervene in provincial and local governments affairs respectively.

To ensure that the courts are not necessary drawn into matters of governance and policy-making , the Constitution contains what one may refer to as a dispute resolution mechanism which compels the spheres involved in a dispute to take all reasonable measures to resolve the dispute before approaching the courts. A court is compelled to refer the matter back if it is not persuaded that the warring spheres exhausted internal remedies before seeking assistance from other arms of the state.

Despite the constitution of government in the manner referred to above, South Africa is often defined as a unitary state with federal characteristics. The principles of co-operative government and intergovernmental relations forcefully bring this point home.

Mr David BEAMISH (United Kingdom) explained that the United Kingdom had for its part taken steps to move towards a unitary state while conserving federalist tendencies.

Mr Marc BOSC (Canada) explained that in Canada, there had always been a tension between municipalities and local government, especially those in large towns, which felt that they were insufficiently represented.

Ms Claressa SURTEES (Australia) explained that there was a current attempt to formalise relations between the three levels of government in Australia. However, as the Constitution was very hard to amend, the reforms proposed to date had not been successful.

Mr Eric PHINDELA explained that in South Africa, until 1994, local government was not really considered as a fully functioning part of the State, and that since 1994, a division of responsibility had been undertaken giving more power to local government. The South African Constitution applied to all laws. It had been inspired greatly by the Canadian Constitution, and the Supreme Court sometimes drew from decisions of the Canadian Supreme Court in its interpretation.

124


THE SUB JUDICE RULE: PARLIAMENT AND THE COURTS. IMPLICATIONS FOR THE DOCTRINE

OF THE SEPARATION OF POWERS

—

Austin ZVOMASecretary to the Parliament (Zimbabwe)

1.0 Objective1.1 This paper critically analyzes the sub judice rule and its application at

the Parliament of Zimbabwe. It also reviews practice from other jurisdictions. Finally, it articulates the implications of the rule more specifically on the relationship between the Legislature and the Judiciary and to a lesser extent between the Legislature and the Executive.

2.0 What is the Sub Judice Rule?2.1 Sub judice is a Latin term which when loosely translated means

“under a judge”. In practice and in simple terms, it refers to matters that are pending before the courts of law. In view of the operation of the doctrine of separation of powers which takes cognizance of separate but coordinate roles that the three arms of state, i.e. the Judiciary, the Executive and the Legislature, play in the governance matrix, the question which arises is to what extent can the Executive and Parliament refer to or deal with matters that are pending before the courts without the Legislature encroaching into the sphere of the Judiciary? This paper makes an attempt to provide answers to this question.

3.0 Problem Statement3.1 The extent to which Parliament, an arm of the state, and its

committees may refer to matters that are pending before the courts had remained largely not clear, therefore, unsettled, before the courts had the occasion of pronouncing themselves on this matter. he clearest attempt by

125


the courts to do so finally came in the case of Austin Zvoma v. Lovemore Moyo & Ors, HC 12497, a case that this paper deals with below.

4.0 Interpretation of the Sub Judice Rule4.1 It is instructive to note from the onset that two distinct

interpretations, completely unrelated and diametrically opposed to each other, dominated debate on how the Parliament of Zimbabwe should conduct its business without violating the sub judice rule. The first interpretation, popularized by the Executive, viewed the sub judice rule as an all encompassing rule of thumb, cast in stone, which barred Parliament from referring to any aspect of a matter that is pending court, even if the aspect under consideration by Parliament is not the one to be determined by the court. The argument was that Parliament is completely barred from referring to or debating such a matter even if it is completely divorced from a matter awaiting determination by the courts.

4.2 There are two precedents within Parliament of Zimbabwe that clearly demonstrate this understanding. One relates to the inquiry into diamond mining by the Portfolio Committee on Mines and Energy Development. In February 2010, the Secretary for Mines and Mining Development and Chief Executive Officers (CEOs) of two mining companies (Mbada and Canadile) were invited but communicated that they would not to appear before the committee to give oral evidence. They cited the sub judice rule arguing that the committee’s inquiry concerned ‘matters that the Committee and its members were precluded from hearing or putting questions on or debating …by reason of the fact that these are matters on which a judicial decision is pending.’ This was in reference to the potential prejudice or compromise a ventilation of an ownership suit of the diamond field that was before the courts was likely to cause. They only appeared before the committee after Parliament advised them that the matter was not sub judice as it was within the privileges of Parliament. Quoting sources on parliamentary law and practice, Parliament informed the two mining companies and the Ministry of Mines that the argument that a matter was pending before the courts was not a defence and that refusal or failure to appear before the committee constituted contempt of Parliament.

4.3 When the parties maintained their stance, the Clerk of Parliament served summons on the directors who duly appeared before the committee to escape contempt of Parliament charges. It must be noted, however, that there was indeed a case at the High Court involving the same company directors. Parliament made it clear that it was aware that ownership of the diamond fields was being disputed in the courts of the land, but it merely intended to establish other issues that had nothing to do with ownership. Thus, in essence, and according to this interpretation, it is permissible for Parliament to investigate a matter pending before the courts to the extent that parliamentary investigations are limited to aspects that are not for determination by the courts. Aspects of a matter that are not for determination by the courts are not sub judice, since they are not in issue.

4.4 The second case involved the same portfolio committee’s invitation to the administrator of an asbestos mine and the responsible Minister to testify

126


before it. The Minister unsuccessfully tried to invoke the sub judice rule arguing that related matters were pending at courts of law.

5.0 Application of the Sub Judice Rule5.1 The second interpretation that dominated the debate on the sub

judice rule was an argument once a debate on a matter which is subsequently taken to court is before Parliament, the doctrine of separation of powers permitted Parliament to continue with the matter notwithstanding the court process. The circumstances that led to the Zvoma v. Lovemore Moyo case clearly demonstrate this erroneous interpretation. These circumstances are summarized below.

5.2 On 14 November 2011, the Acting Speaker of the House of Assembly accepted a motion that sought to dismiss the Clerk of Parliament from the service of Parliament without following due process. Accordingly, the Clerk made an urgent application to have the House interdicted from proceeding with the motion in violation of Standing Orders and the Constitution of Zimbabwe. The decision of the Speaker to allow debate to proceed notwithstanding the court application attracted a record number of points of order from some members. They argued that the motion was motion unconstitutional and that debate on it, therefore, violated the sub judice rule envisaged by the House of Assembly Standing Order 62(d) which states:

“No member shall, while speaking to a question - use derogatory, disrespectful, offensive or unbecoming words against the Head of State, Parliament or its members, the Speaker;…..nor shall a member refer to any matter on which a judicial decision is pending”. (emphasis is ours)

The Senate has an identical Standing Order.5.3 Those who were in favour of the motion argued that provisions of

Standing Order 62(d) not apply to the motion as the High Court application had been made a after the notice of motion had been given. Thus, at the time of its introduction, no matter was pending before the court.

5.4 Dismissing the points of order, the Speaker of the House of Assembly explained that the motion to dismiss the Clerk had been procedurally introduced and was in conformity with parliamentary practice. His interpretation was that a matter on which a judiciary decision was pending was ‘one where pleadings have been closed and all the parties to the case have submitted their arguments to the courts and await a judge’s decision’. He argued that the mere filing of a court application was not sufficient to warrant the invocation of the sub judice rule, adding that the motion related to ‘… procedures of the legislative arm of government and unwarranted interference in these internal processes seriously undermine the authority and integrity of the legislative arm of government and compromises the doctrine of the separation of powers.’ As shall be illustrated, the court found this flawed interpretation ‘strange’ and consequently quashed it.

6.0 Parliamentary Sub Judice Rule6.1 It is important to first establish the legal status of parliamentary rules

before examining how the courts have interpreted this Standing Order. Subject to the provisions of the Constitution and any other law, Section 57

127


of the Constitution gives powers to the Senate and the House of Assembly, jointly or severally as may be appropriate, to make Standing Orders with respect to:

“(a) the passing of Bills;(b) presiding in the Senate or the House of Assembly;(c) any matter in connection with which Standing Orders are required to be made by this Constitution; and(d) generally with respect to the regulation and orderly conduct of proceedings and business in and between the Senate and the House of Assembly.”

6.2 The courts have made it clear that Standing Orders have the status and force of law and must be complied with. Retired Judge of Appeal, Ebrahim J.A., in the case of Biti & Another v. Minister of Justice, Legal and Parliamentary Affairs and Another, 2002 (1) ZLR 177(S), aptly put it thus:

“There is, therefore, merit in the submission that, having made such a law (Standing Orders), Parliament cannot ignore that law. Parliament is bound by the law as much as any other person or institution in Zimbabwe. Because Standing Orders arise out of the Constitution, and because the Constitution mandates Parliament to act in accordance with Standing Orders, they cannot be regarded merely as “rules of a club”. Standing orders constitute legislation, which must be obeyed and followed.” (words in brackets ours)

6.3 In view of the foregoing and in light of long established doctrine of separation of powers, the question that arises is under what circumstances can courts intervene in the interpretation of Standing Orders? The basis upon which the Judiciary can intervene in the internal process of Parliament depends on whether the country is a parliamentary or constitutional democracy.

6.4 Parliamentary democracy is found in the United Kingdom and existed in former Apartheid South Africa. The essence of such a democracy is the supremacy of Parliament above the constitution or any other law. Thus Parliament cannot be taken to court for the purpose of determining whether it has complied with Standing Orders, the Constitution or any other law.

6.5 On the other hand, constitutional democracies like Zimbabwe and modern day South Africa have a “supremacy of the constitution” provision. Section 3 of the Constitution of Zimbabwe provides:

“3 Supreme Law This Constitution is the supreme law of Zimbabwe and if any other law is inconsistent with this Constitution that other law shall, to the extent of the inconsistency, be void.”

6.6 Accordingly, the Executive, the Legislature and the Judiciary must act within the limits imposed by the provisions of the Constitution. In this regard, the late Dumbutshena CJ had this to say in the case of Smith v. Mutasa and Anor, 1989 (3) ZLR 183:

“The Constitution is the supreme law of the land. It is true that Parliament is supreme in the legislative field assigned to it by the Constitution, but even then, Parliament cannot step outside the bounds

128


of authority prescribed to it by the Constitution… the difference between the power of the House of Commons and our House of Assembly is that the Constitution of the United Kingdom does not permit the Judicature to strike out laws enacted by Parliament. [That] Parliament in the field of legislation is sovereign and supreme. That is not the position in Zimbabwe, where the supremacy of the Constitution is protected by the authority of an independent Judiciary, which acts as the interpreter of the Constitution and all legislation. In Zimbabwe the Judiciary is the guardian of the Constitution and the rights of the citizens.”

6.7 Similarly in the case of Chairman, Public Service Commission and Ors v. Zimbabwe Teachers’ Association and Ors, 1996 (1) ZLR 637 (S), the court by a majority decision ruled that:

“We consider that this argument fails to take into account the fact that Zimbabwe, unlike Great Britain, is not a parliamentary democracy. It is a constitutional democracy. The centrepiece of our democracy is not a sovereign parliament but a supreme law (the Constitution).”

6.8 Thus, in a constitutional democracy, it is the courts, not Parliament, that determine the lawfulness of Parliament’s and other bodies’ actions. In the Biti case, (2002 (1) ZLR 177(S)), referred to above the court held that:

“It is essential to understand that all the three branches of government, the Executive, the Legislature and the Judiciary, are bound by and work within the confines of the Constitution. For instance, the House of Assembly cannot, in the name of Parliamentary Privileges, Immunities and Powers, disregard the fundamental rights enshrined in the Constitution. If it does that, it invites the intervention of the Judiciary.”

6.9 Likewise, in South Africa and India, all branches of government are subject to scrutiny by the courts. Even the President is subject to the provisions of the Constitution

6.10 The learned Hlope J, in the case of De Lille & Anor v. Speaker of the National Assembly & Ors 1995 (4) SA 877 (CC) ruled:

“The National Assembly is subject to the supremacy of the Constitution. It is an organ of state and therefore it is bound by the Bill of Rights. All its decisions and acts are subject to the Constitution and the Bill of Rights. Parliament can no longer claim supreme power subject to limitations imposed by the Constitution. It has only those powers vested in it by the Constitution expressly or by necessary implication or by other statutes, which are not in conflict with the Constitution. It follows, therefore, that Parliament may not confer on itself or on any of its constituent parts, including the National Assembly, any powers not conferred on them by the Constitution expressly or by necessary implication.”

6.11 In a constitutional democracy, there is, therefore, no doubt that authority to interpret the law as well as Parliament’s rules vests in the Judiciary. Thus, the sub judice rule applies by virtue of the operation of the law once a matter is before the courts. Parliament’s violation of the sub

129


judice rule is a disregard the Judiciary, the only arm of the state vested with constitutional supremacy in interpreting the law in terms of the constitution. Such violation is likely to prejudice the justice delivery process.

6.12 During delivery of his opening remarks during the Official Opening of the 2011 Legal Calendar, Chief Justice Chidyausiku stated that:

“…it is inappropriate for members of the Executive to communicate to the Judiciary their legal opinions on matters that are pending before the courts. It is equally inappropriate for Parliament, in plenary or committee, to deliberate on matters that are pending before the courts and are yet to be determined.”

6.13 The statement, while not legally binding as it was expressed as an opinion, is very persuasive as it was made by an individual whose appreciation of the law is not questionable.

6.14 A defining interpretation of the sub judice rule was recently made by Justice Bere in the case of Austin Zvoma v. Lovemore Moyo & Ors, HC 12497. The learned judge observed that Standing Order 62(d) of the House of Assembly is clear in that when a matter is pending before the Courts, ‘…House members are obliged to respect the Court process until a determination has been made’.

6.15 The learned Judge stressed that despite the fact that the Speaker and other respondents had been duly served with the case number, debate on the motion continued in complete defiance or violation of the Standing Order in question. Such disregard by the House of Assembly of its own rules resulted in the nullification of the motion that it had adopted. The nullification effectively quashed the interpretation of the sub judice rule the Speaker had made on 5 December 2011. Justice Bere expressed the strong view that courts would not want to assist ‘the House in assaulting its own rules…’

7.0 Practices from other Parliaments7.1 It is import to examine interpretation of the sub judice rule in other

jurisdictions.7.2 The Northern Ireland and Welsh Assemblies have Standing Orders

with similar sub judice rules. Northern Ireland Assembly Standing Order 68 provides that:

“… Subject always to the discretion of the Chair ……., matters awaiting or under adjudication in all courts exercising a criminal jurisdiction and in courts martial should not be referred to”

This includes any question to a Minister and a supplementary question from the time that a matter has been set down for trial or otherwise brought before the court, as for example ‘by notice of motion for an injunction’. The Speaker may allow reference to such matters before the set down unless he/she is of the view there is a real and substantial danger of prejudice to the trial of the case. Rule 7.13 of the Welsh Assembly Standing Orders provide that:

130


“…., a Member shall not raise or pursue in any proceedings of the Assembly any matter where ‘court proceedings have been initiated’ (emphasis ours), or where notice of appeal has been given, until the time when judgment has been…”

7.3 The House of Commons (UK) resolution of 15 November 2001 states that:

‘…subject to the discretion of the Chair, and to the right of the House to legislate on any matter or to discuss any delegated legislation, the House in all its proceedings (including proceedings of committees of the House) shall apply the following rules on matters sub judice

[Richard Kelly (2007), ‘The sub judice rule’, Standard Note SN/PC/1141 House of Commons Library]

These include:i) cases in which proceedings are active in United Kingdom courts;ii) active criminal or civil proceedings;iii) any application made in or for the purposes of any civil proceedings

(our emphasis);iv) active appellate criminal or civil proceedings. 8.0 Conclusion8.1 The few country specific practices clearly demonstrate that the sub

judice rule obliges Parliament to fully comply with its own rules and similar constitutional provisions. In some cases, any violation not only calls the integrity of Parliament into question but will inevitably invite intervention by the court resulting in the nullification of its resolution (s).

8.2 A functioning constitutional democracy is premised on sound principles enshrining the separation of powers and a state of comity between and among the three arms of the state. Thus, as long as all the arms are operating within the confines of powers allocated to them, conflict between the arms is limited. As observed by Chief Justice Chidyausiku:

‘…the tenets of the doctrine of the separation of powers are not only meant to stop the Executive and the Legislature from interfering with the Judiciary and vice versa, but to keep each of the three arms of State separate from each other’.

8.3 The doctrine demands that each of the three arms of state must respect the constitutional sovereignty of the other two.

8.4 The foregoing makes it imperative for Parliament, in plenary or in committees, to satisfy itself that the matter to be debated or inquired into is not sub judice. The language of Standing Orders relating to a sub judice matter is peremptory, thus demanding absolute compliance. Standing Order 62(d) of the House of Assembly unequivocally states that:

‘No member shall, while speaking to a question shall-(d)‘… refer to any matter on which a judicial decision is pending…’

The language is directive and admits no discretion. The learned South African Judge Van Den Heever, JA, as quoted with approval by Justice Bere in

131


the case of Austin Zvoma v. Lovemore Moyo & Ors (supra) remarked on the use of term ‘shall’ as follows:

“If a statutory command is couched in such peremptory terms, it is a strong indication, in the absence of considerations pointing to another conclusion, that the issuer of the command intended disobedience to be visited with a nullity.”

8.5 In the particular instance, the command on compliance with the Standing Order was issued by Parliament itself and any deviation nullifies all consequential developments including, but not limited to, the adoption of a motion. As the apex representative institution of the land, Parliament ought to comply with its own commands and procedures as that is the epitome of governance and accountability. The rule of law requires that all actions be justifiable at law.

8.6 It is evident that parliamentary convention and practice dictates and demands that Parliament respects its own procedures to avoid intervention by the courts. Compliance with the sub judice rule does not in any way compromise the independence of Parliament as a separate arm of the state. Instead, it is guarantees that no arm of the state encroaches into the jurisdiction of other arms. Therefore, the rule has no negative ramifications on the doctrine of the separation of powers.”

Mr David BEAMISH (United Kingdom) mentioned the important differences between countries with parliamentary systems and those countries where the Constitution was all-powerful. He thought that judicial independence was important enough that it should not be influenced by events in Parliament.

Ms Corinne LUQUIENS (France) explained that the separation of powers was strong in France, but that there was a kind of hierarchy of powers. Thus the judiciary’s role was limited to deciding issues which were not clearly expressed in the law. The law could change, and thus influence the business of the courts, but without being able to influence decisions that had already been taken. A small exception to this principle was what were called validating laws, which sometimes emerged when judicial decisions had very inconvenient practical consequences: for example, annulling a competition for civil service posts or a planning permission many years afterwards. Thus, for compelling reasons of public interest, and for as long as a judicial decision is not final, Parliament could pass a law effectively invalidating this decision. Following the separation of powers, commissions of inquiry in Parliament could not draw on facts which had given rise to court cases, for as long as these cases were active.

Mr Eric PHINDELA (South Africa) noted that in South Africa, the Clerk obeyed the Chamber, never the other way round. Every decision or law judged unconstitutional was quashed. The practice was in fact very close to

132


that described by Mr ZVOMA in Zimbabwe. He asked if the courts in Zimbabwe tended to have recourse to the sub judice rule to head off debates in the Chamber, and if so, how the Speaker managed this kind of situation.

Dr Vivek AGNIHOTRI (India) said that the sub judice rule applied equally in the Indian Parliament, which had in the past decided not to pay heed to court injunctions, and not to reply to their summons, in order to affirm its independence. Parliament thus had to be defended by the Executive. Members never appeared before the Courts.

Mr Geert HAMILTON (Netherlands) explained that in the Netherlands it was impossible to go against the sub judice rule. He thought, in a country without a written rule, that it would be appropriate to respect the rule, while ensuring the independence of the legislature.

Mr Austin ZVOMA explained that in some situations, Parliament had won through. The Speaker had to be the first to speak in the Chamber’s defence in this kind of situation. It could also happen that Parliament passed laws to sort out connected issues, such as poor organisation of justice, violating the rights of the accused. For sure, the Clerk had to follow the Speaker, but when there were procedures for removing the Clerk, he had the right, like anyone, to a fair process and to a defence. It had been mentioned that the sub judice rule applied in the Chamber and not in Committee; however, any breach, in any parliamentary body, would be inappropriate, if its intention was to influence the outcome of a court case. Just as in the Netherlands, the sub judice rule could not be waived, but some judges could be overcome and submit to the pressure of certain Members.

133


STRUCTURE AND FUNCTION OF THE UPPER HOUSE: A BRIEF INTRODUCTION

—

Mohammad Kazim MALWANSecretary General of the Senate (Afghanistan)

The National Assembly of Afghanistan is composed of two Houses:• Meshrano Jerga (Upper House)• Wolosi Jerga (House of the People) (Article 82 of the Constitution)The NA of IRA holds two regular sessions annually. The term of both

regular sessions is nine months. (Art. 107, constitution) Meshrano Jerga (Upper House) has 102 members. 28 (27.45%) are

women. Members of MJ are elected and appointed as follows:• One third (34 members) are elected by provincial Councils for four

years. • One third (34 members) are elected from District Councils for 3 years.• Remaining one third (34 members) are appointed by the President of

the Country from amongst experts, knowledgeable and experienced personalities including two impaired/handicapped and two from nomads.

• Fifty percent of the appointees are women.

134


4

0

20

40

60

80

Men Women

74

28

Gender Composition of Meshrano Jerga (Upper House)

Leading bodies of MJA) Administration Board:The Admin Board of MJ is comprised of 5 members:• The president (Speaker) of MJ, elected by members for 5 years• First Deputy Speaker elected for one year• Second Deputy Speaker elected for one year• Secretary, elected for one year• Deputy secretary elected for one yearB) Committee of the Chairs:19 members: comprised of Admin Board members (5), chair persons of

Commissions (12) and leaders of Parliamentary Groups (2)The Committee meets once in a WeekMain duties of the Committee: Preparing/deciding on agenda of plenary

sessions and commissions meetings for short, medium and long termsC) Standing Commissions of MJ:In MJ there are 12 Commissions. Each commission has 7 to 11 members.Chairman, deputy and secretary of each commission are elected for a

term of one year. Each Commission holds its meetings three days in a week. D) Parliamentary GroupsTwo Parliamentary Groups: Reform & Justice” PG (34 members)“Law Protection & National Unity” PG (58 members)

135


Meetings of Meshrano JergaA) Plenary sessions:Based on Rules of Procedure, MJ holds two plenary sessions in a Week.From Dec 2005 to Dec 2010 (15th term of Afghan NA) MJ has held (388)

plenary sessions.From February 2011 to March 2012 (part of term 16th) 96 plenary

sessions have been organized.

136


B) Commissions Meetings In accordance to the Rules of procedure each Commission of MJ organizes

3 meetings in a week. From Dec 2005 to Dec 2010 (15th term of NA), all commissions of MJ

have held more than (4,900) meetingsFrom Feb 2011 to March 2012 (part of 16th term of NA) MJ Commissions

held (1060) meetings.Main functions of MJMeshrano Jerga like any other chamber of a parliament conducts the

following 3 main duties:Legislation1) The Upper House of IRA through its commissions’ meetings and

plenary sessions, during 5 years of Afghan NA’s 15th term (2005 to 2010) approved/certified 115 laws and agreements.

2) From Feb. 2011 to March 2012, (27) laws and agreements have been approved/certified by Meshrano Jerga.

Oversight of the governmentOversight of executive branch and its activities is the second important

duty of MJ. Questioning of government bodies in MJ committees and in some cases in plenary sessions is a vital tool for making government accountable. During 5 years of 15th and more than one year of 16th term of Afghan NA, the Afghan Upper House has questioned different high ranking officials for more than (2646) times.

RepresentationMJ raises the voice of the public and highlights the needs and expectation

of the people in national and local levels at plenary and commission meetings (particularly in open debate of plenary sessions).

MJ considers complaint and petitions of real and legal persons (individually or by a group of people) in commissions and takes needed decisions.

Since 2005 to date the MJ commissions have received a total of 4,400 group/individual petitions and complaints. Majority of the complaints have been solved as a result of cooperation/coordination between related commissions and relevant government departments.”

Mrs Danielle RIVAILLE (France) asked why the length of the terms of different kinds of Members, elected and nominated, was different.

Mr Mohammad Kazim MALWAN replied that the powers of elected and nominated Members were not the same, and that the different length of their terms of office ensured a degree of continuity in the Chamber. But it raised technical problems, especially during the election of a Speaker, who could hardly be a representative of district councils, as these only had a mandate of three years. This gave the advantage to nominated Members, who had five-year mandates, which was not democratic and was the subject

137


of current debate. To change these arrangements would require a change to the Constitution.

Dr Ulrich SCHÖLER (Germany) expressed his admiration at the efforts made to ensure an equitable representation of men and women in the Afghan Senate. However, the photographs showing the governing bodies did not appear to include any women.

Mr Mohammad Kazim MALWAN replied that as of today, one woman had been elected secretary of the Bureau, and moreover, six women chaired committees. It was noticeable that women were often more active than men within Parliament. Work had been begun on subjects such as the education of women or the fight against violence against them.

Mr Alphonse K. NOMBRÉ (Burkina Faso) asked if the committee on the rights of women was made up entirely of women, and if hearings could also involve civil servants.

Mr Mohammad Kazim MALWAN explained that the committee on the rights of women had previously been made up of men and women. It was currently composed only of women, but this was not the result of a decision. He noted that hearings almost always involved Ministers, although sometimes they sent their deputy ministers or experts from within their ministries.

Mrs Jacqueline BIESHEUVEL-VERMEIJDEN (Netherlands) asked two questions, one relating to violence against women, and the other to the security of female Afghan Members of Parliament, quoting the example of one who had written a book explaining that she feared for her life.

Mr Mohammad Kazim MALWAN replied that a law had been passed by the two Chambers to fight against violence against women. Nonetheless, the challenge in Afghanistan remained to ensure security across its whole territory. Government and Parliament tried to make progress on women’s rights and democracy, while bearing in mind the special nature of Afghan society, which remained in many respects a very traditional one.

M. David BEAMISH (United Kingdom) thought that the interest of an upper House was to be found in the special nature of its contribution to legislative work, and he asked Mr MALWAN what this special nature was in relation to the Afghan Senate, and what exactly the role of a committee secretary was.

Mr Mohammad Kazim MALWAN explained how laws were passed between the two Chambers, noting that the upper House had less time than the lower House to examine bills. The lower House had more powers, especially that of censuring Ministers. The secretary and assistant secretary of committees were both elected, and had a very different role from the administrative staff.

Mr Somsak MANUNPICHU (Thailand) explained how the Thai system functioned, and asked about the constitutional role of the Speaker of the Upper House. He also asked about the role of the administrative council described by Mr MALWAN.

138


Mr Mohammad Kazim MALWAN explained that for joint meetings, the Speaker’s Chair was occupied by the Speaker of the lower House, but that the Speaker of the Senate was the fourth highest-ranking person in the State.

139


DEVELOPING A NEW DOCUMENT PRODUCTION SYSTEM FOR THE CHAMBER SECRETARIAT –

PHASE ONE

—

Claressa SURTEESClerk Assistant (Table) of the House of Representatives (Australia)

IntroductionAt the Parliament of Australia, a project has commenced to develop a

replacement for the current computer based document production system of the Table Offices of the House of Representatives and the Senate. The Parliament is support by three separate parliamentary departments – House of Representatives, Senate and common Parliamentary Services – and all three are involved in this project. This communication records the rationale for the system redevelopment process and its progress.

The current document production systemA common document production system (DPS) is currently in use by both

Table Offices and it is critical to the conduct of proceedings of Parliament. The system was purpose-built for the House of Representatives in 1995 as a document production system that interfaces with other systems to enable document creation for the chamber. The DPS was later adopted by the Senate Table Office and over the years, other functionality, such as electronic publishing and document management, has been added. The DPS, and its modifications, have created efficiencies in managing documents and information. However, some functionality is not well suited to Senate processes leading to some inefficiencies, and the piecemeal nature of development from the original system means that functions are not fully integrated. These weaknesses are compounded by the DPS undergoing only limited upgrades due to associated complications and risks to system integrity.

140


The DPS most likely will be incompatible with software used in future upgrades to the global parliamentary computing environment. Given the critical function of the DPS, it was seen as desirable to redevelop it, before further global upgrades occur, to ensure support systems remain compatible with the overall operating environment. It is anticipated that redeveloping the DPS also will provide an opportunity to considerably enhance the operations supporting the chambers.

External review of business applications used by the Table Offices In late 2007, the Clerks Assistant (Table) of the House and Senate

commissioned an investigation by an external business analyst into options for the future of the DPS. The timing of this review was driven by the need to change over to new software, MS Office 2007, and uncertainty as to whether the DPS could operate in the new environment.

In March 2008, the review found that: the DPS could be reconfigured easily to work with MS Office 2007 the DPS was becoming increasingly technically unpredictable and

unsupportable, and unforeseen failures were difficult for technical personnel to repair in

a timely manner because the DPS had evolved without full supporting explanatory documentation.

The review therefore recommended full redevelopment of the DPS and databases, at an estimated cost of between $A2.8 m and $A3.2 m.

Internal working groupIn April 2009, a working group of House of Representatives’ staff, having

operational experience with the DPS, was established to determine whether there was a business case for redeveloping the DPS. The terms of reference for the working group were to:

1. outline the architecture and functionality of the DPS;2. ascertain the common use of the DPS between the House and Senate Table Offices, Hansard and other areas of the three parliamentary departments (and beyond);3. obtain the plan for intended future information technology upgrades to the global parliamentary computing environment, including the current redevelopment of Hansard’s document production system, and assess the impact the changes might have on the DPS;4. identify aspects of the current redevelopment of Hansard’s document production system that could be applied to redevelopment of the DPS;5. identify desired outcomes of the project, in particular, benefits from redevelopment including opportunities for improving efficiency and effectiveness;6. determine whether there is a business case for redevelopment, and if so, draft a customer request for redeveloping the DPS;7. estimate a feasible timeframe and indicate the preferred approach for releasing the redeveloped DPS, with particular focus on paragraph 3 and the parliamentary cycle; and8. propose suitable support arrangements for the DPS.

141


The working group met with representatives of the Senate Table Office and the Department of Parliamentary Services (which is responsible for the global parliamentary computing environment and Hansard services). From these discussions a preference for redevelopment rather than upgrade became apparent, as well as identifying areas which a new system could improve.

Developing a business case and scope of requirementsPreparation of the business case for redeveloping the DPS commenced in

late 2009. The business case proposed that the two chamber departments jointly

fund and manage the project and follow a three stage process:Stage 1 – analysis of requirements,Stage 2 – procurement of a solution, andStage 3 – development and implementation of the solution.

The business case also considered three options for the future of the DPS:Option 1 – full redevelopment,Option 2 – integration of ‘off-the-shelf’ products, andOption 3 – continuation of the current system.

In March 2010, the two Table Offices reached general agreement on the need for a major project to replace the DPS and Table Office databases (e.g. questions, papers, divisions, Senate petitions) and to move to a new system, and there was a preference for using customised off-the-shelf software. Importantly, the chief financial officers of the two departments advised that funding for the project would be available.

Staff developed a ‘wish list’ of features for a new system, and each of the Table Offices conducted separate brainstorming workshops to inform the scope of requirements for the new system and appointed their own project liaison officers.

Governance for the projectA project board was appointed in August 2010, with senior executive

representatives from each of the three parliamentary departments. The board considered, and finally approved the initiation document for the Table Offices Document Production System (TOPS).

Procurement processIn relation to significant expenditure of public funds, the parliamentary

departments are required to follow the same rules and processes which apply to the Australian public sector more broadly. These rules and processes are intended to ensure departments achieve the best value for money and that funds management and administration follows best practice and is suitably prudent.

Departmental staff initially drafted a statement of requirements for the project and this statement was completed with the help of an external business analyst. The project board formally approved the statement of requirements, a request for tender and a draft contract in mid 2011. The request for tender was issued to the public for a period of six weeks in September and October, and five tenders were received.

142


A tender evaluation plan was developed and a tender evaluation panel was established, with staff from each of the three parliamentary departments supported by technical assistance from the external business analyst who had assisted earlier in preparing the project documents. The tender evaluation took two weeks to complete with a preferred vendor identified, and subsequently endorsed by the project board in December 2011.

Contract negotiations continued with the vendor until the end of January 2012. The project board approved the draft contract and it was signed on 13 February 2012.

Conclusions and observationsAll major contributors to the work of the House of Representatives and

Senate Table Offices have been involved in the development of the project. It is not easy to envisage solutions for operational requirements especially when they deal with technical matters. Sometimes external technical expertise must be obtained in order to build the best systems for current and future needs.

It has taken four years since the proposition that a new DPS might be needed, until the commencement of a contract to deliver a new system. The relatively long lead time is due in part to the reality that the project has developed while the principal work of the responsible parliamentary staff continues to be supporting an active Parliament, and notably, during a period distinguished by a change of government in 2007 and a further change to minority government in 2010.

The outlook is that under the terms of the contract, system development is to be completed within 18 months from commencement of the contract. Current project timing would enable changeover to, and full implementation of, the new system during a relatively inactive period for the Table Offices, at the time of the next general election, estimated to be at the end of 2013.”

Mr Geert HAMILTON (Netherlands) asked what the advantages for Members were of the new system compared with the old.

Ms Claressa SURTEES replied that Members had already been able to find a lot of information on the website, but that, as the system was old and incoherent following numerous additions and modifications, a new system had been necessary, which allowed documents to be more reliable and complete.

Mr Claus DETHLEFSEN (Denmark) explained that a new system had been implemented in Denmark three years before, as the same time as a reform of the Standing Orders had made the electronic publication of all documents compulsory. Members were becoming increasingly familiar with electronic means of communication; this was also facilitating the reduction in paper consumption.

143


Ms Nomonde KESWA (South Africa; non-member) indicated that in her country, the administration was trying to put in place an electronic minuting system, but paper consumption remained very high.

Mrs Danièle RIVAILLE (France) asked if the solution identified was standard or bespoke, and if the latter, how much the adaptations had cost.

Mr Heiki SIBUL (Estonia) asked if the database was connected to Government databases, and if Members could look at their financial information online.

Mr Md Mahfuzur RAHMAN (Bangladesh) explained that the implementation of a digital system sometimes caused difficulties for Members’ staff, who required training.

Ms Claressa SURTEES (Australia) thought that digitisation and developments such as the provision of tablet computers were inevitable and only a matter of time. She replied that the solution was not standardised but had been developed in line with the special nature of Parliament. The contract provided for training courses. Access to documents used by the Executive was provided for. However, Members could not currently access their data as regards allowances online.

144


LESSONS FROM THE WORK OF THE HOUSE OF FEDERATION IN CELEBRATING ETHIOPIAN

CONSTITUTION DAY 2011

—

Habtamu NINI ABINOHead of the Secretariat of the House of Federation (Ethiopia)

Ethiopia has throughout its long history endeavoured to develop a system of governance that embraces its diversity- one that helps it to transform its extraordinary diversity from an existential threat to a deep well of strength and dynamism with little success. Indeed the management of its diversity has for centuries constituted a primary challenge- a challenge that has massively contributed to its century’s long journey backwards from the frontline of world civilization to one of the poorest countries on earth.

Our experiment with Democratic Federalism over the past two decades must thus be seen as one in a line of attempts to achieve unity in Diversity. All indications so far suggest that this is at last a successful experiment. Our federal system has allowed us to introduce a democratic system of governance that is fast maturing and consolidating.

It has enabled all the peoples of Ethiopia to maintain and celebrate their individual identities while at the same time constituting the bigger family of Ethiopians. It has empowered all the peoples of Ethiopia to manage their local affairs autonomy and to mobilize all their local affairs autonomously and to mobilize all their resources to improve their livelihoods and develop their communities while at the same time becoming active participants in common national affairs. It has allowed us to design our governance system to fit the circumstances of each locality and thus serve the people better while consolidating our common democratic governance.

Democratic Federalism has enabled us to forge a common Ethiopian identity- one that is not separated and above our diverse identities but one

145


that is constituted by the magnificence of such diversity. It has become the bedrock upon which a stable and peaceful nation is being constituted. It has become the solid basis upon which we are building a young and dynamic nation out of one of the oldest states on earth.

The House of Federation is Ethiopia’s Second Chamber of the federal Parliament, representing Ethiopia’s 75 ethnic groups, the Nations, Nationalities and Peoples of Ethiopia. While the ethnic, cultural and religious diversity of our country has been suppressed during previous regimes, the Nations, Nationalities and Peoples became the founders of the new, federal and democratic Ethiopia in 1994. The Ethiopian Constitution is based on the principle of self-determination and focuses strongly both on group as well as individual rights.

The constitution strongly promotes equality, democracy and social justice and binds governments to the development of the country. The Nations, Nationalities and Peoples are granted an unconditional right to self-determination up to secession. For this reason, the Second Chamber of Parliament, the House of Federation is representing the Nations, Nationalities and Peoples and not the regional states.

While many second chambers have strong legislative mandates, the House of Federation’s mandates are different. The House of Federation resolves conflicts between regional states and between regional governments and the federal government, it designs and decides the larger part of the fiscal transfer system, it promotes the unity of the country through equitable development and last but not least, it interprets the constitution and promotes democracy and constitutionalism.

The House of Federation has embarked on immense and intense activities promoting constitutionalism and democracy throughout the last six years. Huge efforts have been undertaken in popularizing the democratic principles of the constitution. Among many others we have designed radio and TV programs which are both entertaining and educational. Most of them are quiz-shows, participating the audience. We have designed a series of animated cartoons for children, explaining democratic principles through short stories around the life of school-children. This includes equal rights of men and women, children’s rights, fair elections and the like. The resonance from children and adults towards this program but also to other is immense.

In 2006, the House of Federation has initiated the commemoration of the signing of the constitution by representatives of the Nations, Nationalities and Peoples on December 8, 1994.

Since then the House in cooperation with at least one regional government has organized the federal celebration of this day. The federal celebration has been organized since in a number of regional capitals – the cruising being similar to Germany’s National day celebration.

While the commemoration has been focusing on a relatively small number of participants at the beginning, the celebration consisting of discussions and cultural shows have been enlarged significantly over time.

This year, target-group oriented conferences have been organized across the country in order to reach are far larger number of people. This included a symposium for women (Addis Ababa), media and artists (Addis Ababa),

146


civil servants (various conferences across sectors and regions), students (31 workshops, one in each university). The final symposium in Meqelle drew participants from all sectors. All in all, we managed to participate 5382 people in seven different events/ conferences. The details of the conferences and number of participants were: in private sector 470, in women 521, in Youth 1112, in Media and art professionals 500, in the Civil Service at Federal Level and with Video conference to Regional States 500 and National Conference at Meqelle 1800. The events and the number of participants are excluding participants of Defence and Justice Sector conference, 31 Universities, 28,000 schools, Civil Service institutions’, Women and Youth at Regional and grass roots level including Addis Ababa and Dire Dawa.

All symposia and workshops discussed the question "Why do we need a constitution and constitutionalism?" The discussions have been induced through target-group specific presentations towards this question and through a common booklet explaining the principles of the constitution.

The lessons we can learn from our continuous efforts are manifold. First of all, we were drawing attention towards the constitution and its objectives and principles in a more general manner. Through linking all constitutional awareness creation activities, we have been able to engage a large number of people from all layers of society in a dialogue with both, political leaders and intellectuals. Alongside with a fast growing literacy rate, we also obtain stronger feedback regarding constitutional awareness, so to say an increasing constitutional literacy rate.

While these activities are very budget-intensive, we have also learned that people are getting more confident in democratic institutions through these efforts. For example, requests for constitutional review and interpretation have risen by 100 percent between 2006 and 2011.

The change we observe is not only remarkable in terms of quantity but also in terms of quality. While 2011’s celebration of the Constitution Day has attracted by far more people than in any previous year, the level of discussion has also reached a quality we have not been observing previously. The questions and comments raised and made by participants showed a strongly increased level of information and an increasing level of identification with democracy and constitutionalism.

Summarizing, we can note that we went a long way in a relatively short period of less than 20 years. We have learned that learning and teaching democratic rights takes time but we have also learned the lesson that it can be accomplished provided a strong political will and the commitment to participate citizens in this endeavour. The commemoration of Ethiopia’s Constitution Day is one good example for this.

Thank you very much.

147


Mr Ibrahim MOHAMED IBRAHIM (Sudan) thought that the example provided was very useful, especially for many African countries, where the idea of nationhood was not yet solid enough. To consolidate this idea and involve all citizens in doing so was an excellent initiative.

Ms Claressa SURTEES (Australia) asked how knowledge of the Constitution and State institutions was usually conveyed to children and young people in Ethiopia.

Mr Hassan MUSA SHAIKH EL SAFI (Sudan) thought that Ethiopia was a good model of contemporary democracy.

Mr Habtamu NINI ABINO explained that a steering committee had been established, bringing together regional and local leaders, to organise this day. Sub-committees had been set up by ministries, especially the Education Ministry, which had been responsible for raising awareness in schools. The committee had prepared publications and brochures, and training was also proposed, to allow members to convey their knowledge into the provinces. The House of Federation was responsible for supervising the organisation of school programmes, and for ensuring that they were in keeping with constitutional principles.

148


INTER-PARLIAMENTARY UNION

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

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

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

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

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

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

Inter-Parliamentary Union5, chemin du Pommier

Case postale 330CH-1218 Le Grand Saconnex

Genève (Suisse)

Official Publication

149


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

ASSOCIATION OF SECRETARIES GENERALOF PARLIAMENTS

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

Executive Committee (Kampala 2012)President: Marc Bosc (Canada).Vice-Presidents: Ulrich Schöler (Germany)Elected Members: Alain Delcamp (France), Vivek K. Agnihotri (India), Alphonse K. Nombre (Burkina Faso), Vladimir Svinarev (Russia), Austin Zvoma (Zimbabwe), Geert Jan A. Hamilton (Netherlands), Mrs Marie-Françoise Pucetti (Gabon).Former Presidents and honorary members: Hafnaoui Amrani (Algeria), Anders Forsberg (Sweden), Ian Harris (Australia), Adelina Sà Carvalho (Portugal), Sir Michael Davies (United Kingdom), Doudou Ndiaye (Senegal), Helge Hjortdal (Denmark), Jacques Ollé-Laprune (France)

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

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

150


Orders for subscription may be sent to:Mme Joëlle Blot

Assemblée nationale. 126, rue de l’Université. F-75355 Paris Cedex 07 SPCourriel : [email protected]

151

CONSTITUTIONAL & PARLIAMENTARY · Web viewThird observation: The Parliamentary Services do not have...

Documents

Transcript of CONSTITUTIONAL & PARLIAMENTARY · Web viewThird observation: The Parliamentary Services do not have...