Assistant
Professor, Department of Law, University of Chittagong
Published in SCLS Law Review Volume 2 Issue 1 (January, 2019), pp 1-6
Online: http://sclsbd.org/wp-content/uploads/2019/06/5.-Is-Parliament-Declining-For-Proof-Reading.pdf
Online: http://sclsbd.org/wp-content/uploads/2019/06/5.-Is-Parliament-Declining-For-Proof-Reading.pdf
Introduction
Legislative branch of Bangladesh is
admittedly a weakened institution of the Republic. While dominance of the
executive in Westminster parliamentary system is not quite unusual a norm,
Bangladesh’s problem is much more than concentration of power in the executive
branch. Excessive omnipotence of the political parties over the legislature and
serious concentration of power and authority in the hands of the party high-ups
have substantially suffocated the parliament in Bangladesh. Given the declinist
trend in Westminster system in general, it seems curious to investigate whether
Parliament is “declining” in Bangladesh or not. A commoner’s view would rather
tend to ask whether Parliament is “dying” here or not. Matter of relief is that
this paper does not attempt to answer the question straight. It rather attempts
to frame out the issues that might prove useful in answering the question.
Ultimate answer to the question forms the central focus of my ongoing PhD
research and requires a thorough investigation of the doctrines outlined below.
For now, I contend myself in mining of issues hanging over the “decline” question
itself.
Decline
of Parliament Thesis (DPT)
During the heydays of Parliamentary
Sovereignty, Walter Bagehot found the House of Commons as an ‘impressive’
institute needing its ‘efficient’ use within the British political system.[1] Though Bagehot’s idea was
questioned time and again, its ‘golden age of parliament’[2] relate to a time when the
House of Commons was considered central in governance of the UK. In 1921, Lord
Bryce forcefully questioned the centrality of House of Commons in British
Political System. Generalising the developments from United Kingdom, United
States, France and Italy, Bryce asserted that legislative bodies has declined
in brilliance, acumen, importance and interest.[3] Bryce’s work gave birth to
the celebrated Decline of Parliament Thesis (DPT) as the dominant
interpretation of executive–legislative relations in modern day legislative
studies. It has been widely understood that ‘legislatures have declined
particularly in powers in relation to the executive.’[4] DPT became particularly
relevant for the studies into Westminster style parliaments where executive dominance
over legislature is a marked feature.[5]
The decline thesis draws heavily on
the executive dominance over the parliament, increasingly ineffective parliamentary
oversight, emergence of party system, increasing cohesiveness among party
legislators, predominant media focus on executive at the expense of the
legislature, diversion of political lobbying towards the executive, etc. Head
of the Government pay close attention to ‘high politics’ – defence and foreign
affairs – rather than the ‘low politics’ in parliamentary agenda. Even in the
‘low politics’ arena, most of the legislative and administrative policy making
has increasingly fallen on the specialised knowledge of technocracy.[6] Parliament thereby has
become less appropriate forum to discuss and decide policies. Developments
contributing to the alleged decline are long term as well as recent.[7] Additionally, parliament
may abdicate some of its powers or be limited by judiciary and changes in
social circumstances.[8]
Parliament’s legislative functions declined for the volume, scope and complexity
of contemporary law making. Emergence of specialisation in legislative
drafting, involvement of large-scale bureaucracies, limitations of parliamentary
time-table, pre-dominance of party agenda and electoral manifesto in
legislative programs, constitutional and institutional restraints on private
member initiatives etc. Parliament’s legislative authority has been compromised
by the surge in domestic application of international law and European law.[9] Parliament’s financial
functions declined for the magnitude and intricacy of budgetary policies
well beyond the grasp of individual legislators and non-financial experts in
the committees. Non parliamentary agencies (such as Comptroller and Auditors
General), have asserted more claims in financial management and oversight. Parliament’s
control function declined by
the emergence of mass based and cohesive political parties and their agenda
predetermined in party caucuses. Party root of the government effectively
prevents parliament as an institution from using its controlling devices like
votes of confidence, motions of censure, impeachment, etc. Beyond the parties,
mass media has overtaken the bulk of agenda-setting and discourse setting
function in political debate.[10] Interest groups also
substantially relieved the MPs from their representative functions by establishing a direct link
between the government and public concerns.[11] Decline in representative
role of parliament is also marked by drift away from the concept of
representative government towards the idea of plebiscitary government. In
plebiscitary government decisions are taken, presented and shaped by a chosen
few political elites effectively by passing the peoples’ representatives in
parliament.[12]
Anti-Decline
of Parliament Thesis (Anti-DPT)
DPT, however, did not go
unchallenged. Seen from an institutional and structural point of view -
critiques of DPT argue - Bagehot’s ‘golden age’ of parliament is a myth.[13] Westminster type executive’s
dominance over legislature was no less a reality during the professed ‘golden
age’ either. Accepting the dominance, parliament retains at substantial
influence in the system. It is not absolutely marginalised. Its capacity to
influence the public policy - though ‘slipped back’ - has not collapsed
totally.[14]
Branding
DPT a too simplistic theory, Philip Norton calls for consideration of multiple
‘external and internal environment in which legislatures operate.’[15] Norton argues that
declinist theory over emphasize the elitist and coercive aspect of
legislatures. A comprehensive appreciation of the legislature in the policy
discourse must look beyond the coercive authority of parliament and bring the pluralist,
elitist and institutional perspectives together. Pluralist view of power
comprises coercion and persuasion alike. Legislature may coerce by its voting
power. It may persuade by its debating power. Elitist perspective might
highlight the larger hold of the cabinet over parliament. Yet an institutional
approach would show how structures (committees etc) and procedures (rules of
procedure etc) may affect what is brought forward by the government.[16] Legislative voting
behaviour is far more complex than it is usually explained in party lines.
Empirical works inspired by Anthony King’s ‘Modes of executive–legislative
relations’ in 1976 have shown that parliamentarians in Westminster-style
democracies have divided and conflicting loyalties - to their constituents, to
the legislature and to their party. Back-bench
MPs have become more likely to vote against their parties.[17]
Nicholas
Baldwin joins the discourse claiming:
[D]espite the fact that many legislatures may be
weaker in their capacity to influence policy today than previously, they have
been growing in importance in a variety of ways, namely, as the linchpin
joining the people to the polity of a nation, as intermediaries in transition
from one political order to another, as raisers of grievances, as agencies of
oversight and, above all, as forums for scrutiny of the executive.[18]
KC
Wheare, though not an Anti-DPT theorist comparable to Philip Norton, called for
a refined reading of the DPT thesis in terms of efficiency rather than power:
The fact is that the decline of legislatures may be an
interesting question to discuss in general terms, but it is difficult if not
impossible to decide. If we try to make the question more precise, we may
confine ourselves to a discussion of decline in efficiency. We must then ask
ourselves: What are legislatures for? What functions ought they' to perform?
The answer will not be the same in all cases. For one thing, the question of
size intrudes itself once more. There are some things a legislature of 100
members or less can do which a legislature of 600 or more cannot do. But one or
two assertions of general validity can be made. It is not the function of a
legislature to be the sole forum of debate or the sole committee of grievances
in its country’s political system; these functions must and should be shared
with other bodies. It is not the function of a legislature to govern. These are
truisms, yet it is the unwillingness of legislatures to give up the claim and
the attempt to be and to do all these things that has resulted, in many
countries, in a decline not in powers but in efficiency- To do less and,
perhaps thereby, to do it better, may often prove to be the best safeguard
against the decline of legislatures.[19]
Recent Anti-DPT thesis by Matthew Flinders and Alexandra Kelso hasadded a
“expectation gap” analysis in the discourse. Flinders and Kelso argue that
‘quasi-journalistic accounts’ of DPT generated ‘a simplistic and generally
misleading view of legislative capacity’.[20] They claim that 1)
“parliament was not designed, intended or resourced to play the kind of
proactive scrutiny role that contemporary expectations appear to demand” and 2)
“legislative control of the executive manifests itself in procedures and
processes that lie beneath the visible lithosphere of parliamentary activity.”[21]
Flinders and Kelso argue firstly that the simplistic approach of
PDT has increased public expectations. It failed to accept that parliamentary
government was explicitly intended to deliver ‘strong government’. A constant
and arduous role of scrutiny was not intended unless there was a serious and
gross case of error. Failure of PDT theorists to acknowledge this fact raised
the level of expectations and demands which parliament was not expected to meet.
Demand in terms of legislative deliverables should have been lesser than the
PDT propagated.[22]
Secondly, while inflating public
expectations scholars failed to close the gap from below (parliament’s
capability). PDT failed to acknowledge the existence and capacity of ‘informal,
but no less important,’ intra-party and inter-party avenues of legislative
oversight. Supply in terms of legislative capacity was greater than the PDT
acknowledged.
If the top bar is pulled down by
accepting the more limited constitutional role of parliament, and the bottom
bar is pulled up, by acknowledging the existence and importance of less visible
intra-party and inter party control mechanisms, then the ‘expectations gap’
would have been narrower and PDT might have been less substantiated.[23]
Scholarly onslaught on DPT has been
bolstered by calls for a more pragmatic appreciation of the role and place of
legislature in Westminster-style governments. To assert that the modern
parliaments are far from decline, Robert Packenham identified a total of 11
functions of legislatures and tabled those functions into three major-categories
– 1) legitimation (democratic legitimacy to the governance), 2) recruitment, socialisation
and training and 3) decisional and influence functions (law making and
oversight).[24]
Prior to Peckenham, Walter Bagehot outlined five functions: elective (choosing
the government); expressive (public perception of current issues);[25] teaching (letting the
people know things that might otherwise left unknown); informing (raising the grievances
of the people); and, law making – the most conspicuous one.
Peckenham and Bagehot combined
suggest that empirical study, appreciation and measurement of the Inform,
Training and Influence Roles of parliament side by side with its Legislative
and Elective Role might prove a practicable way to locate a parliament’s
position in the DPT and Anti-DPT discourse. If the parliament’s apparent
weaknesses in the legislative and oversight functions are recoverable at least
in some extent through its Inform, Training and Influence Role, we might be
able to make a case for giving a chance to the parliament as an institution of relevance
to the overall body politic. Any attempt to categorise the parliament of
Bangladesh within the modern parliamentary typologies would therefore require
us to look into the broader picture of parliamentary activities and mandate.
Modern
Typologies of Parliaments
Nelson Polsby proposed a transformative and arena type categorisation of legislatures. Transformative parliaments considers the governmental legislative proposals and capable of making substantial modification to the government proposal and thereby transform the laws. Arena type parliaments debate the governmental proposal in way things are debated in public arena but they do not possess a power to modify government laws. Polsby categorised the US Congress as a transformative parliament and the UK Parliament as an arena type parliament.[26] Polsby’s typology was however criticised as too simplistic. Compared to that Mezey’s typology[27] was more specific and it created a much broader details of typological criterion. Mezey took a negative way of questioning. Is parliament “strong” enough to constrain (reject or modify) a government’s legislative ambitions? Or is parliament a “moderate” (modify not reject)? Is parliament a “Little or no (can’t do either) policy-making” parliament? Mezey had a second criterion as well - Parliament’s support base in populace and its capability to deliver up to the expectation. Under this “support and capability to deliver” criteria, Mezey divided parliament into five categories – active (The US), Vulnerable (Philippines), Reactive (UK), Marginal (Pakistan) and Minimal (Soviet Union).
Mezey’s typology was refined by Philip Norton on the basis of legislature impact.[28] Philip Norton developed a trichotomy of influence factors:
Nelson Polsby proposed a transformative and arena type categorisation of legislatures. Transformative parliaments considers the governmental legislative proposals and capable of making substantial modification to the government proposal and thereby transform the laws. Arena type parliaments debate the governmental proposal in way things are debated in public arena but they do not possess a power to modify government laws. Polsby categorised the US Congress as a transformative parliament and the UK Parliament as an arena type parliament.[26] Polsby’s typology was however criticised as too simplistic. Compared to that Mezey’s typology[27] was more specific and it created a much broader details of typological criterion. Mezey took a negative way of questioning. Is parliament “strong” enough to constrain (reject or modify) a government’s legislative ambitions? Or is parliament a “moderate” (modify not reject)? Is parliament a “Little or no (can’t do either) policy-making” parliament? Mezey had a second criterion as well - Parliament’s support base in populace and its capability to deliver up to the expectation. Under this “support and capability to deliver” criteria, Mezey divided parliament into five categories – active (The US), Vulnerable (Philippines), Reactive (UK), Marginal (Pakistan) and Minimal (Soviet Union).
Mezey’s typology was refined by Philip Norton on the basis of legislature impact.[28] Philip Norton developed a trichotomy of influence factors:
·
Policy-making parliament – modify or reject measures of the
government, and formulate and substitute its own policies (e.g., through a
Member’s Bill).
·
Policy-influencing parliament - modify or reject governmental measures
but cannot formulate and substitute policies of its own.
·
Parliament with little or no policy
effect – neither
modify or reject the government policies nor formulate and substitute its own policies.
Norton’s typologiy is followed up
by Blondel’s theory of “parliamentary viscosity”.[29] Blondel focuses on the
likely responses the parliament may give to the government proposals. In that
sense parliament may be “free” from government control or “compliant” to
government demands. If government holds the majority of votes in parliament it
may be a compliant one. If the government commands a minority, the parliament
would be considered free. Legislation would pass comparatively easily in a
compliant parliament and it would be no doubt difficult in free parliaments.
To bring together all the typologies
within one spectrum we will see that Polsby’s “transformative” parliaments are “active”
and “strong policy-making” parliament of Mezey, “policy making” parliaments of Philip
Norton and “highly viscous” parliaments of Blondel. These parliaments would routinely
create and pass their own laws, routinely block or significantly change the
government proposals.
Again, Polsby’s “arena type parliaments”
might equal Mezey’s parliaments with “minimal or little/no policy-making
capacity”, Norton’s “little or no policy effect” parliaments and Blondels’ “low
viscous” parliaments. Here in this category we may place the parliaments that routinely
rubber-stamp laws and discusses with no discernible impact over that.
Locating the
Parliament of Bangladesh in DPT v. Anti-DPT Discourse
Typological analysis is warranted for
drawing an initial stature of the parliament of Bangladesh. Though several
authors in Bangladesh readily categorised the parliament of Bangladesh as an arena
type, minimal or nominal parliament, those conclusions are not justified
through specific mandate-performance analysis. An institutional
mandate-performance analysis of the parliament of Bangladesh would help its appropriate
placement within legislative typologies. Knowing typology of Bangladesh
Parliament in its turn would help us understand properly whether the
legislature is declining here or not. The preliminary question for
investigation therefore would be what the Parliament of Bangladesh is doing and
how it is doing those.
* This article
constitutes a part of the theoretical framework I propose for my PhD
dissertation at King’s College London. My current doctoral project at King’s is
titled as “A Doctrinal Analysis of the Westminster Parliamentary System in
Bangladesh” which seeks to analyse the parliamentary system of governance in
Bangladesh through a variety of theoretical lenses prevalent in the Westminster
parliamentary jurisprudence.
[1] Bagehot, Walter.,
(1968) The English Constitution (Oxford: Oxford University Press) quoted in
Norton, P. (ed.) (1992) Legislatures. Oxford: Oxford University Press, p. 36
[2] Richard Crossman’s
1964 Introduction to Bagehot’s The English Constitution, 1873
[3] Lord Bryce quoted
in Norton, P. (ed.) (1992) Legislatures. Oxford: Oxford University Press., p.
47
[4] Wheare, K.C. (1967),
Legislatures, Oxford University Press
, p. 148
[5] Thomas, G.P. (2004)
‘United Kingdom: The Prime Minister and Parliament’, Journal of Legislative
Studies, 10 (2–3), 4–37, p. 8; Baldwin, N. D. J. (2004) ‘Concluding
Observations: Legislative Weakness, Scrutinising Strength?’, Journal of
Legislative Studies, 10 (2–3), 295–302., p. 297
[6] Elgie, Robert and Stapleton, J (2006), Testing the Decline of Parliament Thesis:
Ireland, 1923–2002, Political Studies: 2006 Vol 54, 465–485 at p 466
[7] Norton, P., (2000)
Reforming parliament in the United Kingdom: The report of the commission to
strengthen parliament, The Journal of Legislative Studies, 6:3, 1-14; See also - Norton, P., & Olson, David M.
(1996) Parliaments in adolescence, The Journal of Legislative Studies, 2:1,
231-243,
[8] Goldsworthy, Jeffrey, Abdicating
and Limiting Parliament’s Sovereignty, (Arguing from an Australian perspective, Jeffrey
Goldsworthy claims that doctrine of parliamentary sovereignty has lost much of
its golden age glamour in modern day contexts); Available in:
https://www.tandfonline.com/doi/abs/10.1080/09615768.2006.11427651?journalCode=rklj20
[9] Snyder, Ann E. (1991),
Britain and the European Economic
Community: The Decline of Parliamentary Sovereignty in the International Legal
Arena, 18 Ohio N.U. L. Rev. 131 (1991) p 151-152
[10] Herman, Valentine
& Lodge, Juliet (1978), The European parliament and the “decline of
legislatures” thesis , Politics, 13:1, 10-25, at p 11-12
[11] Richardson, J., and
Jordan, A. G., Governing Under Pressure The Policy Process in a Post-Parliamentary
Democracy, p 122 (“It is not surprising that most writers on
pressure group tactics see attempts to influence Parliament as relatively low
in terms of the priorities adopted by groups. Good contacts with the
executive/bureaucracy come first, followed by good legislative contacts,
followed by ability to mobilise mass opinion.”)
[12] Macintosh, John P (1979),
‘Introduction: Attitude to the Representative Role of Parliament’ in People and Parliament, Saxon House, at p 1-10 (It appears that there is a
swing towards a plebiscitary approach to political decision-making which
undermines the parliamentary authority. In a plebiscitary approach to politics
and decision-making by negotiations with outside bodies (in additional to
governmental agencies and bodies) might indicate that Parliament's role in
British government has diminished. Three examples may illustrate the trend
towards plebiscitary approach: First, political leaders often prefer media and
TV outlets to pronounce important policy decisions over the parliament. Secondly,
parliament’s views are considered subordinate to that will of the people
expressed and endorsed through political manifestos and elections. Thirdly, growth
in the frequency of referendum means that majorities in the House of Commons
lack sufficient authority or legitimacy to a decision when it was of the utmost
importance. These decisions had to be made by the genuine sovereign power, the
people.) For details on lobbyist and pressure groups in
legislative business see, J.J. Richardson, A.G. Jordan, Governing Under Pressure: The Policy Process in a Post-Parliamentary
Democracy, Martin Robertson, 1979.
[13] Norton, P, (Report
of the Commission to Strengthen Parliament, 2000, p. 8), Mezey, M. L. (1995), (Mezey
argues “the theme of legislative decline was seldom supported by empirical data
and seemed to be based on the largely unsubstantiated premise that at some time
in the past a golden age of parliaments existed” See –n Mezey, ‘Parliament in
the New Europe’, in J. Hayward and E. Page (eds.), Governing the New Europe, Cambridge: Polity Press, 196-223 at p.
196).
[14] Norton, P. (1990)
‘Parliament in the United Kingdom: Balancing Effectiveness and Consent?’, West
European Politics, 13 (3), 10–31., p. 31
[15] Norton, P. (1998)
‘Introduction: The Institution of Parliaments’, in P. Norton (ed.), Parliaments
and Governments in Western Europe. London: Frank Cass, pp. 1–15, 1998
[16] Philip Norton, P,
(2013), Parliament in British Politics,
Second Edition, Palgrave, pp 5-7
[17] Norton, P. (1983)
‘The Norton view’, in D. Judge (ed.), The
Politics of Parliamentary Reform (London: Heinemann), 54–69 and Cowley, P.
(2002) Revolts and Rebellions
(London: Politico’s)
[18] Baldwin, N. D. J.
(2004) ‘Concluding Observations: Legislative Weakness, Scrutinising Strength?’,
Journal Of Legislative Studies, 10 (2–3), 295–302., p. 302
[19] Wheare, KC (1963),
Legislature, Second Edition, “Decline
of Parliament,” pp 147-157 at p 156-57
[21] Ibid, 261
[22] Ibid, 262
[23] Ibid, 263-264
[24] Packenham,
Robert (1970) “Legislatures and political development” in Allan Kornberg and
Lloyd Musolf (eds.) Legislatures in Developmental Perspective. Durham: Duke
University Press
[25]A year short of a
century after Bagehot’s work appeared, Samuel Beer identified another function -
that of support mobilization. It is helping to raise popular support for a particular
measure of public policy (Samuel Beer 1966, British
politics in the collectivist age, Knopf). It is a function that, to some
extent, marries Bagehot’s informing and teaching functions.
[26] Polsby, Nelson W. (1975),
“Legislatures” in Greenstein, Fred I. and Nelson W. Polsby, eds., Handbook of
Political Science, Vol. 5, Governmental Institutions and Processes.
[27] Mezey, Michael L (1979),
Comparative Legislatures, Duke
University Press
[28] Norton, Philip (1990),
“Parliaments: A framework for analysis,” West European Politics, 13:3, 1-9,
DOI: 10.1080/01402389008424803 To link to this article: https://doi.org/10.1080/01402389008424803
pp 4-5
[29] Blondel, Jean (1968),
“Party Systems and Patterns of Government in Western Democracies,” Canadian
Journal of Political Science, Vol 2 Issue 2
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