Strengthening the Legislature

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Strengthening the Legislature

• A menu of options for discussion
• Not a recipe!

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The Mother of Parliaments!
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New Zealand
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Australia
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Papua New Guinea
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Fiji Islands
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India
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US Congress
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Overview

• What is a legislature for?
• What is the role of its members?
• Is there reason to suppose that legislatures are
  less than fully effective?
  
• What can be done about it?
• How much of this can and ought to go into a
  constitution?

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Role of legislatures - General

• Represent the people
• Protect the Constitution
• Further human rights and other objectives
• Protect the public interest
• Build understanding and compromise

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Conservative party - UK

• Create and sustain government
• Ensure business of government is carried on
• Facilitate a credible opposition
• Ensure government is subject to scrutiny
• Ensure the voice of the citizens is heard

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Role of Legislatures - Specific

• Pass laws
• Approve taxes, expenditure, borrowing etc
• Hold the government accountable
• Investigate issues of public importance
• Approve Treaties?
• Approve certain appointments?
• ? not in all systems

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The functions of members

• Represent constituents (if they have them)
• NOT to represent only those who voted for them
• NOT to simply pass on what the majority wants
• Representatives not delegates
• Support the policies of the parties to which they
  belong

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What are the threats to effectiveness?

• Threat of dissolution
• Complexity of issues (especially budget)
• Growing legislative agendas
• Part time members
• Insufficiently committed members
• Ministers dont attend and may make
  announcements to press and not to Parliament!

• Executive control even of business of parliament
• Party control
• Too great or too weak
• Lack of resources
• Interference
• Corruption
• Lobbyists
• Inadequate links with community
• Privatisation

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Ideas and Issues Overview

• Dissolution
• Strengthening links between member and
  constituency
  
• Strengthening capacity of legislature as an
  institution
  
• Disciplining members
• Making legislature more effective in representing
  the public
  
• Improving public understanding

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Please Note

• These are points for discussion and many would be
  too detailed for a Constitution, even if they
  were in principle acceptable!

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Dissolution- some possible situations

• Only by Executive
• Classic Westminster
• Only by house
• PNG if the Parliament, by an absolute majority
  vote, so decides
  
• By separate Head of State
• If cant elect government, pass budget etc
• After consultation
• If vote of no confidence passed with no
  alternative government proposed (Germany)
  
• None other than by expiry of term
• Washington feature proposed for Kenya

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Needs careful consideration What are the
consequences for

• Stability of governments
• Accountability of governments

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Strengthening links between member and
constituency

• Facilities at constituency level
• Office
• Staff
• Regular visits
• Bolivia one week a month for home visits
• Improve links with constituencies
• Have advisory committees of constituents
• Visit schools
• Can even have community links for list members

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Constitution?

• In an unofficial draft for Kenya
• The responsibilities of an individual
  constituency member of the House of
  Representatives include
  
• representing all their constituents regardless of
  whether individuals voted for the member
  
• raising concerns of constituents with government
  departments
  
• assisting their constituents to present petitions
  to Parliament and
  
• visiting their constituencies regularly in order
  to keep in touch with the needs, views and
  concerns of their electorate.

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Strengthening capacity of individual members

• Training programmes
• E.g. Fiji 1998 on the new Constitution
• Facilities
• E-mail, information etc
• Staff
• Remove factors that limit participation
• Language
• Sitting hours (family friendly)

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Strengthening capacity of legislature as an
institution

• Opposition
• Legislative process
• Committee system
• Budget process
• Questions
• Auditor General
• Secretariat
• Legislatures budget
• More sittings
• Research and Resources

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Opposition and leader can be recognised

• Roles given
• 1990 Constitution LoO member Raj Parishad and
  Constitutional Council
  
• Fiji in various appointments, including to
  Senate
  
• Resources given
• 2006 Kenyan Draft

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Legislative process

• Strong committee system
• Time
• Should not be possible to rush legislation
  through
  
• Zambia the Standing Orders should indicate a
  specific and appropriate time period between the
  publication of a bill in the gazette and first
  reading to allow for timely notification and
  public consultation
• Make it easier for members to submit private
  members bills
  
• Drafting Capacity

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Legislative process contd

• More draft bills - discussion
• Proper Explanatory memoranda including fiscal and
  constitutional (including human rights) impact
  statements
  
• Do away with Ordinances

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Delegated legislation regulations made under
authority of laws

• Problem
• Little publicity
• Takes power away from elected members to
  bureaucrats and executive
  
• Sometimes even used to amend principal
  legislation
  
• Laws may not come into effect for years

• Possible steps
• Strengthen parliamentary scrutiny
• Restrict power to amend laws
• Prevent use to create offences/limit human
  rights
  
• Sunset clauses
• Provide that if law does not come into effect for
  x years it lapses
  

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Questions

• Formalise system
• Especially if Ministers are not MPs
• Could be done even in presidential/semi-presidenti
  al system
  
• Time limits (to ensure more questions can be
  asked and answered)

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Committee system

• Related to Ministries
• Fiji Constitution
• The House of Representatives must, under its
  rules and orders, establish not less than 5
  sector standing committees with the functions of
  scrutinising Government administration and
  examining Bills and subordinate legislation and
  such other functions as are specified

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Committee system contd.

• Control of membership by Parliament itself
• Formalise diversity
• Party
• Gender/ethnic etc PNG membership of the
  Permanent Parliamentary Committees should be
  spread as widely as practicable among the
  backbenchers
• Exclude Ministers
• Fiji Ministers are not eligible for election to
  sector standing committees of the House of
  Representatives. Also PNG
  
• Give them powers and resources
• Summon witnesses etc
• Research capacity
• Funds
• Permit sub-committees

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Human Rights

• Training of MPs
• Special committee on human rights?
• Explanatory memoranda for bills on human rights
  implications of laws
  
• Proposed for Kenya
• State must make a statement to both houses of
  Parliament concerning the states proposed
  response to recommendations of monitoring
  bodies.
• In South Africa
• MPs are part of delegation to monitoring body
  meetings

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More sittings etc

• Full time job
• Fixed schedule for sittings
• Minimum number of days sitting
• India whips proposed 100-130 days for Union
• Fiji President (generally ceremonial) can
  summon house
  
• Allow MPs to summon house regularly and
  exceptionally

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Budget - Introduction

• Budgets often responsive to powerful
• Parliamentary control of budget usually weak
  (better in presidential systems?)
  
• I used to salivate listening to the powers of
  US Congressional Committees where you get junior
  deputy assistant secretaries coming before the
  relevant appropriation sub committee to try and
  justify expenditure and how people at the
  committee had 20 years experience on the issue.

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Budget process

• Adequate notice of budget
• More information in budget
• Limit powers of Executive to make budgetary
  decisions without legislative approval
  
• Enhanced capacity
• Work with NGOs
• Enhanced powers
• Budget hearings in committees

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Notice and information

• Notice
• OECD The governments draft budget should be
  submitted to Parliament far enough in advance to
  allow Parliament to review it properly. In no
  case should this be less than three months prior
  to the start of the fiscal year

• Information
• Some countries have long budget statements
  including gender impact
  
• Requiring budget information in 3 year context

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Limit powers of Executive to make budgetary
decisions without legislative approval

• Vote on account allows advance of up to
  one-third of budget (better than some
  countries?)
  
• Vote of Credit - local or national emergency due
  to either natural causes, a threat of external
  aggression or internal disturbances or other
  reasons, and that it is impractical or
  inexpedient in view of the security or interest
  of the State to specify the details
• (India on account of the magnitude or the
  indefinite character of the service the demand
  cannot be stated with the details ordinarily
  given in an annual financial statement) Nepal
  better?

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Working with NGOs

• Many countries have experience with budget
  analysis
  
• Can supply MPs with information, training etc.

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Auditor General

• Independent
• IC appointment by PM on recommendation of
  Constitutional Council
  
• Should report direct to Legislature
• Public Accounts Committee should make use of
  report
  
• Problem lack of teeth?
• Audit implementation office in ministries?
• Requirement to report back on action taken
• Follow up Ghana Parliament has Committee on
  Government Assurances

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(No Transcript)
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Secretariat and Budget

• IC
• Must be one
• Details by law
• Staff to be provided by Government

• Changes possible
• Independent body
• Legislative service commission
• Control of own budget

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Research and Resources

• Library
• Research staff
• Computers

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Civil service

• Educate civil servants about role in regard to
  parliament
  
• Include duty to respond in Code of Practice

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Qualified members

• Now
• IC says must be citizen, 25, committed to the
  spirit of the peoples movement and not holding
  publicly funded post
  
• For CA not have been punished for any criminal
  offence involving moral turpitude
  
• a crime with an intent to steal or defraud a
  crime where physical harm is done or threatened
  a crimewhere serious physical harm is caused by
  reckless behavior or a crime of sexual
  misconduct.

• Possible
• Educational qualifications?
• Level?
• Makes it too elite?
• Moral standards
• Bar if convicted of certain offences (as for CA)
• Should it be for life?
• Should it be more precise?

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Accountability of members

• Automatic loss of position if dont attend
• IC (CA) if misses 10 consecutive sittings
  without notice
  
• Could be any 10 without good reason?
• Fiji 2 consecutive without permission of
  Speaker
  
• Recall
• Publicity about performance
• Democratic parties
• Voters can not nominate failures
• Code of Practice
• Declaration of assets (Ontario Integrity
  Commissioner)
  
• Removal for misbehaviour

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Recall

• Uganda Constitution
• British Columbia (Canada)
• Any voter may initiate
• Not for 18 months
• Must be signed by 40 of eligible voters
• Cant happen again before General Election

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Reducing party control

• surfeit of partisanship in which the vast
  majority of MPs perceive their first duty of
  loyalty is to party rather than Parliament
  
• Control on power to dismiss member?
• Must be possible to take judicial review
• Reconsider floor crossing rules
• They assume that voters vote only for parties
• Apply only to list members?
• Or apply only for first 18 months of Parliament?
• Should be no party control over human rights
  issues?

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Improving Legislature-public relations

• Requiring publication of record
• Petitions
• Scottish Parliament petitions committee and
  procedure
  
• NGOs links with
• Public hearings
• Popular initiatives etc
• Weaken legislature?

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Strengthening constructive criticism of Parliament

• Interim Constitution
• No comment shall be made about the good faith of
  any proceedings of the Legislature-Parliament,
  and no person shall make or disseminate anything
  about comments or suggestions made by any member,
  deliberately misinterpreting or distorting their
  meaning.
• Commonwealth Parliamentary Association
• (6.1) As the democratic embodiment of the
  publics political views, each Parliament must
  respect the right of individuals and particularly
  the media to criticize its role, integrity and
  performance. It must properly react to such
  criticism with argument and through its own
  conduct rather than with punishment.
• (6.3) Inaccurate reporting by the media should
  not be considered as a contempt of Parliament.

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Stating what the role of the legislature is in
the Constitution

• South Africa
• The National Assembly is elected to represent the
  people and to ensure government by the people
  under the Constitution. It does this by choosing
  the President, by providing a national forum for
  public consideration of issues, by passing
  legislation and by scrutinizing and overseeing
  executive action.

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Improving public understanding

• Public sittings
• Of house and committees
• Fiji ? of house must approve sitting in camera
• Public relations
• Visitors Centre?
• Newsletters
• Media
• Broadcasting of committees and house
• Public Education

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New roles?

• Approving appointments
• In US is check on power of executive
• Is being considered in UK
• But???
• Approving treaties
• Involvement could be earlier? To see national
  interest is served by negotiations
  
• Approving contracts?
• If affect national resources in major way?
• Ivory Coast proposed for Kenya

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Increasing appeal of parliamentary career

• Limit size of cabinet
• Give enhanced remuneration to committee chairs
• Status more like Ministers?

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Limiting what legislature can do?

• Prevent it fixing members salaries
• Fiji Parliamentary Emoluments Commission
• Prevent laws being passed that benefit sitting
  members
  
• Cannot come into effect until after next general
  election?

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Thank You!