Parliamentary Reform:

Making Sense of Our Successes and Failures

M Jashim Ali Chowdhury

Assistant Professor, Department of Law, University of Chittagong

Published in the Daily Star, law and Our Rights, April 30, 2019

Available at: https://www.thedailystar.net/law-our-rights/news/parliamentary-reform-making-sense-our-successes-and-failures-1736635?fbclid=IwAR20kEi0zR5XOgw9KSw-E_gcCCr9ZjaWyjJaVxwID8RTNV8H-DxGhT4LtXw

Parliament of Bangladesh has been subject to a lot of historical, institutional and doctrinal analysis over the years. Authors invariably ended up in suggesting varieties of reforms in the form of a to-do check list on an immediate, short-term and long-term basis. Actual reforms undertaken so far also remain piecemeal, short-sighted, popularity tilted, theoretically flawed and procedurally misguided. Proposition of this write up is that meaningful reform in future would require a sound doctrinal approach suitable to a Westminster style parliament. In this regard, the rational choice and historical institutional approaches might prove better than our traditional evolutionary and revolutionary understanding of parliamentary reform. By taking a historical institutional approach, we travel beyond changes by mere chance and accident. We rather investigate why, when and how reforms are proposed, rejected or made.

Evolutionary account of political reform focuses on culture influenced changes emerging gradually over a long stretch of time. While evolutionary and historical accounts may serve a descriptive narration of events in a chronological fashion, it does not serve the explanatory and justificatory aspects of reform. Evolutionary theories thereby fail to explain why institutions are created on the first place, why those are maintained and why changes are resisted or even adopted nominally or significantly by the individuals and groups.

Big Bang or Revolutionary approaches on the other hand see institutions emerging suddenly, either by armed revolution or by specially called constitutional conventions or assemblies or by mix of the two. Speaking from a Westminster perspective, revolutionary approaches to reform appear defective for two reasons. Firstly, the revolutionary body or leadership reflects the “general will” of the people at the time of crisis who seeks to stabilize the situation as quickly as possible. Unless bound by exceptional amount of will force, the revolutionary regimes are more interested in achieving the stability the quickest. Changes brought are mostly crispy, populists, minimal and facial. Secondly, revolutionary attempts have not always resulted in liberal democratic reforms. Emergence of even more repressive regimes is not quite uncommon.

Given the inadequacy of evolutionary and revolutionary approaches, Professor Roger D. Congleton’s Constitutional Bargain Model might offer an incentive driven intermediate form of reforms. Incentive driven explanation of reform reflects a sort of rational choice institutionalism that attempts a trade-off between proposed reform and the price that needs be paid for that. Is the proposed reform profitable for both the reformers (who gain something) and incumbent power holders (who lose something)? Congleton argues that reforms will be bargained over and (occasionally) adopted only when the existing beneficiaries see that their immediate interest remains guarded, though the institution changes.

Historical institutional approach would acknowledge the role of the political context affecting the proposed reform and explain why and how institutional norms and values impact on reform in the way they do. Institutions have structures and procedures side by side with well-defined values, norms, interests, identities and beliefs. Like the constitutional bargain model, the institutional accounts of reforms recognise path dependence of reform initiatives. Acknowledging ‘path dependency’ of reform would help us understand why some attempts fail and others succeed. Reforms would be successful when the path is ready to be altered, under a surmountable amount of political pressure for change.

Therefore, a reform advocate would need to ask and answer three questions - Why reform? Why now? And why some of the reform proposals fail while others succeed? In that sense, reforms will be possible only when the following three conditions are fulfilled: First, there must be a window of opportunity for the reform to occur e.g., beginning of parliament or fortuitous circumstances brewing the climate for reform. Second, there must be coherent reform agenda to provide a package behind which the members of parliament may unite. Third, there must be leadership (political will) behind to take the reform package through the parliament (Alexandra Kelso, Parliamentary Reform at Westminster, Manchester University Press, 2013).

Within a Westminster parliamentary set up for example, parliamentary process is being drained into executive dominance. Ministerial responsibility convention is utilised to undermine the accountability and scrutiny of government instead. Partisanship operates to whip and discipline individual MPs. In presence of these institutional norms and values to the advantage of the government and party elites, it appears difficult that there will be enough “political will” to change the status quo. Question therefore is - how could we be hopeful of change in terms of enhancement of parliamentary authority in Bangladesh?

A cursory look over the history of reform initiatives in Bangladesh would reveal that in case of original revolutionary authority of 1972, conditions of favourable climate, coherent package and concrete political will were satisfied and hence the reform was swift and decisive. As indicated in Big Bang theories above, the ‘revolutionary’ changes attempted by military regimes of 70s and 80s ended in enhancing the executive’s authority instead. Climate of change might have been there, but not the coherent agenda or political good will towards the right direction. In case of the revolutionary impulse of early 1990s, climate of change and coherent agenda were there but not the sincerest of political wills to materialise the dream for a meaningful parliamentary system. Since then there have been several donor-led studies into the parliamentary process of Bangladesh. The most robust one was the Strengthening Parliamentary Democracy Project (SPD) funded by UNDP, World Bank etc. Starting in 1997, the project aimed at encouraging changes in the Rules of Procedure and capacity building for the committees and individual members. The project unfortunately ended in such a disarray that UNDP had to discontinue the funding in 2007. In this case we didn’t see the climate, agenda or political will necessary for meaningful reform.

As for the present, our long struggle with successive parliaments suggests that we already know what type of reforms we need. With the installation of a new parliament recently, the window of opportunity is also there. Only thing the advocacy and citizens’ groups now need to do is inducing some willingness in the political force in power. Now the only question boiled to be answered is - Who is to bell the cat?

The Current Brexit Deadlock

Implications for Westminster Parliamentary System

M Jashim Ali Chowdhury

PhD Researcher (Parliament Studies), King’s College London

Published in the Daily Observer, Law and Justice (April 20, 2019). Link: https://www.observerbd.com/details.php?id=194037

Brexit deadlock in the UK has put the Westminster parliamentary system at a very puzzling cross road. Admittedly the Westminster parliament is dominated by the government and hence believed to be increasingly declining vis a vis the executive. However, parliament in the UK is rising. Three successive defeats of British Prime Minister Theresa May’s Brexit plan in the parliament has shown that parliament still bites. Moving even one step further, the House of Commons has recently taken an unprecedented step to suspend government businesses on a given day and discuss and decide non-governmental motions instead. This development is revolutionary and has far reaching consequences for the constitutional norms in the UK and other Westminster styled parliaments.

Though the Westminster Parliament is theoretically sovereign, it gave way to executive dominance during the 1880s when William Gladstone’s minority government was facing extreme obstructionism from Irish MPs. Standing Orders (rules of procedure for UK parliament) were amended in such a way that gave strict control of the House agenda at government hands. Only a minister may move for changing those in future. Successive speakers also adhered to the rule. Minority and weakly tailored coalition governments throughout the nineteenth and twentieth century successfully maintained stability in governance by force of this rule.

The rule is codified in Standing Order 14 of the House of Commons which provides that governments will determine what will be in the Order Paper for a particular day. There are exceptions, of course. Thirteen Fridays of each session are scheduled for private member bills on which the Commons debate bills proposed by individual MPs. Opposition parties determine what will be discussed in 20 other opposition days. Additional 35 days are given to debates chosen by the Backbench Business Committee, which chooses from topics suggested by individual MPs. Government may even choose the dates when the 35 backbench and 20 opposition days are scheduled. Government thereby may delay the tabling of any embarrassing move by non-government or opposition MPs.

Of course, members of the UK’s “sovereign parliament” attempted several times to win the control over its own agenda back. In 2009, the Select Committee on the Reform of the House of Commons, known as Wright Committee, proposed that a ‘House Business Committee’ with cross-party participation would draft the agenda for an ensuing week by consensus. The House would then approve or reject the draft agenda. The proposal failed. Instead a Backbench Business Committee was established to control the agenda for 35 backbench days.

The recent Letwin Amendment passed on the wake of Brexit deadlock is the latest attempt in resurrecting parliament’s claim over its own agenda. Noting the successive defeats of Theresa May’s Brexit plan, Letwin Amendment of March 25, 2019 sought to take control of Parliamentary schedule on the next government business day (Wednesday the 26 March). Commons would then consider alternative options and see whether there is a clear majority for any alternative Brexit plans. Options may even include Britain going for a fresh referendum or rescinding the divorce process that already started. In short, on the day the parliament debates Brexit alternatives, Standing Order 14 would not apply. Described as the parliament taking control of the Brexit from the government’s hand, the Amendment is not free of controversy. It might apparently signal a brighter prospect for the parliament’s accountability role. Yet, it may put the whole governance system in chaos and anarchy. Parliament’s so called “taking control of the process” is not as simple as it is described. A Westminster Parliament’s overall mandate for this type of choice is clearly ambiguous.

Firstly, the Letwin Amendment would potentially shift the constitutional burden of foreign relations from the executive to the legislature. Apart from shaking the long-standing government control over House agenda, the amendment would create the future possibility of thwarting the legislative program of a government facing intra-party feud.

Secondly, Parliament may override government agendas for a day in the floor, discuss and support some alternative options but complex norms of parliamentary procedure would not allow it to decide the issue conclusively. Admittedly, Brexit would require a legislation. Legislation in the form of a private member bill will not satisfy an orderly Brexit. Brexit involves money and as per Standing Order 48, money bill must be a public bill initiated by the government. For the same reason, 35 backbench days on the floor may not be used for legislation.

Thirdly, 20 opposition days in the floor cannot be used to legislate because opposition days are exclusively for votes on motions and humble addresses. Humble addresses are binding petitions to the government to produce specified documents, such as when the attorney general was compelled to publish the cabinet’s Brexit legal advice earlier.

Fourthly, parliament’s only option to “discuss and indicate” its support for any alternative Brexit plan may create some pressure upon the government, loyal members of the government may even filibuster (talk out) the discussion. In such cases, back-benchers will be out of options even. As per the House standing order, only a minister can introduce a guillotine motion to close a filibustering debate. 

Given the context, the take-home implications of the parliament “taking control of Brexit” boil down to three points.

Firstly, Letwin Amendment was a private-member amendment to a government motion brought in “neutral terms”. A motion in neutral terms is meant to give the members a scope to debate an issue without requiring them to approve or reject the motion. In Letwin Amendment, the motion was plainly an offer of the government to discuss its Brexit plans. Though amendments are usually not allowed on neutral motions, Speaker John Bercow tabled the Letwin Amendment on the view that nothing would change if we don’t break precedents. Bercow has taken the Speaker’s discretion to a new height.

Secondly, parliament’s expressed will could persuade the government towards a particular direction of Brexit negotiation. Yet it is not without power to ignore the parliament in its extreme positions like no-Brexit or fresh referendum. Because Brexit is the outcome of a popular referendum that requires the government and legislature to deliver Brexit rather than thwart it. Brexit marks a conflict of a direct democracy with Westminster’s traditional system of representative democracy.

Thirdly, Westminster parliamentary system is titled towards a single party government formula. Under such a system, the electorates can apportion policy responsibility more accurately. If a cross-party majority of MPs with the same view on a single issue can cast the government aside and pursue their own agenda, then parliamentary process and party systems across the Westminster traditions face a revolutionary paradigm change.

Giving the Parliament its due: 

A Pluralist-Institutional View

M Jashim Ali Chowdhury

PhD Researcher (Parliament Studies), King’s College London.

Published in the Daily Star Law and Our Rights (April 9, 2019). Url: https://www.thedailystar.net/law-our-rights/news/giving-the-parliament-its-due-1726915 

The vibe that the Westminster type parliaments are declining was first aired by Lord Bryce in 1921. General conclusion of Bryce’s comparative study between the United Kingdom, United States, French and Italian parliament was plain - legislative bodies had declined in brilliance, acumen, importance and interest. This later took a name – The Decline of Parliament Thesis (DPT). Westminster type parliaments are particularly vulnerable to the powers of Cabinet so far as it relates to the law making, financial management and policy making. Cabinet dictatorship was further strengthened by the rise of polarized and cohesive party system in the nineteenth century. Situation is even worse in jurisdictions where the Prime Minister is placed far above his cohorts in the Cabinet. Today, parliament barely controls the legislative proposals that come to and passes through it. It has virtually no say over foreign affairs and security issues. Financial accountability mechanisms are increasingly falling upon non-parliamentary bodies like Comptroller and Auditors General, Anti-Corruption Commission, Multinational Donors and Lending Agencies. Parliament’s oversight tools like ministerial responsibility has fallen prey to cohesive and clientelist political parties and their predetermined agendas. Even parliament’s “mere deliberative” ordeal in state policy making is under challenge. Mass media has overtaken the bulk of agenda-setting and discourse setting function in political debate. Parliament merely follows the policy vibe created somewhere else. Rise of local government autonomy and community-based interest groups directly linked to the government have relieved the MPs from most of their representative functions. So now, the question is - what remains for parliament and what it stands for?

Fortunately, Anti-DPT scholars like Lord Norton and others believe that parliament still has potentials. DPT scholars over-emphasize the elitist and coercive aspect of legislatures, they argue. To them, a Pluralist-Institutional perspective would better justify parliament as an institution both of coercion and persuasion. Legislature may coerce by its voting power. If not possible, it may persuade by its debating power. Elitist and coercive perspectives highlight the larger hold of the cabinet over parliament. Instead, a Pluralist-Institutional view would explain why and how the structures (committees, speaker etc) and procedures (rules of procedure etc) of parliament may affect what is brought forward by the government. Institutional view has two dimensions – rational choice institutionalism and historical institutionalism.

True it is, government of a given time would seek to manipulate the parliamentary bodies and procedure towards its own advantage. But the rational-choice explanation of institutional change as expounded Douglas North suggest that such changes would be attempted only when the price for it is worth risking. For example, governments in Bangladesh would think thrice to reintroduce the fourth or fifth amendment like system again. This will be legally unsustainable and politically suicidal. The political price that might need be paid here constitutes a strong deterrent for such attempted change. Parliamentary system is therefore safe at least for the foreseeable future.

Again, could the rulers of the time attempt to reduce the authority of the Speaker, for example, substantially? From a historical institutional analysis, this is almost impossible to do. Parliamentary norms, ideas and etiquette developed over thousands of years of Westminster system militant against such retrogression. Same would be the situation had the rulers wanted to abolish the committee system, ministerial responsibility, parliamentary pre-approval of taxes and revenues, etc. Historical ideas and norms developed through institutional practice are impossible to amend unless a decisive wave of public support brings an inevitable “constitutional moment” for the ruling class. Constitutional moments are admittedly hard to come by.

The Institutional view of parliament calls for a Pluralist 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 eleven functions of legislatures and tabled those functions into three major-categories – first, legitimation (democratic legitimacy to the governance), second, recruitment, socialization and training (creation of future cabinet rank and file from the parliamentary backbenchers) and third, decisional and influence functions (law making and oversight). Prior to Peckenham, Walter Bagehot also outlined five functions: elective (choosing the government); expressive (public perception of current issues); teaching (letting the people know things that might otherwise left unknown); informing (raising the grievances of the people); and lastly, the law making – the most conspicuous one to us.

A combined reading of Peckenham and Bagehot suggests 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 modern parliaments’ position within the DPT v. 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 parliament a chance in the overall body politic.

The pluralist-institutional perspective is further substantiated by a recently articulated “Expectation Gap” analysis in the UK. Flinders and Kelso from United Kingdom argues that the declinist scholars unrealistically increase public expectations by posturing parliament as an arch rival of the executive. It fails to accept that parliamentary government was explicitly intended to deliver ‘strong government’. Again, while inflating public expectations, the declinist scholars fail to close the gap from below - parliament’s actual capability to deliver the expectation. Declinist scholars bypass the existence and capacity of ‘informal, but no less important,’ intra-party and inter-party avenues of legislative oversight through pre-legislative opinion building, cross party committee deliberation and post legislative scrutiny, etc. If the top bar of expectation is pulled down by accepting a comparatively limited role of parliament, and if the bottom bar of actual capacity is pulled up by acknowledging some less visible intra-party and inter-party control mechanisms, then the peoples’ ‘Expectations Gap’ would have been narrower and parliaments could get the attention and appreciation it deserves. Institutions thrive only when those are cared for and appreciated.

What ails our Parliament?

What ails our Parliament?

M Jashim Ali Chowdhury

Assistant Professor of Law, University of Chittagong & PhD Researcher (Parliament Studies), King’s College London.

Published in Law and Justice, The Observer 06 April 2019. 

Link: https://www.observerbd.com/details.php?id=191886&fbclid=IwAR0Bu-AOg6Q0yrfD5pXy2BZRNbqnpwkJIU7BNuH2q26omsXd0URphsCjYwM

Prospects of our Parliament are many. Problems are no less either. Some of the problems are structurally ingrained within a typical Westminster parliament. Some others are the unfortunate additions of our own political ecology. A brief survey of issues would reveal the following issues contributing to the below-the-bench performance of our parliament:

A Minimal Accountability Institution

Professor Anthony King’s seminal work on different party modes of behavior within a parliamentary set up may be utilized to assess the performance of Bangladesh parliament. Professor King tested the patterns of executive-legislator relations in Britain, France and West Germany. He set forth several modes of parliamentary interaction that occur within the political parties – intra-party, inter-party, opposition, non-party, and cross-party modes. Seen in this light, our parliament presents a total disarray. Intra-party, inter-party and cross-party modes of parliamentary activism have been halted by political, constitutional and institutional factors. Opposition mode is miserably misguided and hence unconstructive. Non-party party mode is totally unknown.

Intra-party mode of parliamentary scrutiny is affected by article 70 mostly. This clause has effectively tightened the tongue of the ruling and opposition party back benchers. Successive parliaments therefore invariably failed in criticizing the governmental policies and action, let alone making it accountable.

Like a Westminster parliament, the Parliament of Bangladesh is dominated by the executive branch i.e., the Cabinet. Legislative proposals are conceived, intuited and sponsored through the parliament at the sole discretion of the government. Ascendancy of the executive in the process here is however accompanied by a near abdication of meaningful debate in the floor and committee stages which is not a Westminster tradition by any means. This is a peculiar imprint of our own - article 70 and the clientelist party system. Government backbenchers take a strict party line in the floor and committees alike. Only 7 private member bills passed so far stands for the scarcity of individual initiatives and limited role of the MPs in discussing government proposals. Parliament totally lacks in mechanisms to review subordinate legislations passed by the executive branch. Also, unlike the UK, the executive enjoys a conditional law-making authority under article 93 of the constitution. Though the frequency of ordinances has been reduced in recent times, those placed for parliamentary approval usually escapes scrutiny in the floor and committee. Parliament has rarely travelled beyond simple approval of what is placed in the table.

Principle of collective ministerial responsibility is reflected in article 55(3) and 57(2) of the Constitution of Bangladesh. Prime Minister and his Cabinet would fall if it loses the confidence of the parliament. Though fall of the Cabinet as whole in house through a motion of no confidence is scarce in Westminster, backbencher revolt and leadership challenge to the prime minister is rather frequent. Except a few occasional symptoms in the early years of fifth parliament (1991-1995), backbench revolt is unheard of in our system. Leadership challenge is of course a day dream thanks again to article 70 and other politico-cultural issues.

On an individual ministerial level, there is no express provision in the Constitution nor is there any Ministerial Code of Conduct in the way the UK and other Westminster democracies have. Parliament cannot enforce a minister’s resignation until and unless the Prime Minister him/herself so wishes under article 58(2). Parliamentary contribution in individual responsibility process is severely hampered by procedural technicalities. True that parliamentary questions and call attention notices are moved. The lion’s share of questions asked by members however lacks accountability concern. MPs frequently seek benefits for their constituency and remedial actions over petty administrative concerns.

Inter-party and opposition mode of parliamentary opposition has been affected by traditional neglect and irresponsibility of political oppositions. Though the government and opposition benches has been exchanged between the two major political parties several times since 1990, the historical distrust and animosity between the leadership has haunted the development of bi-partisan parliamentary norms in Bangladesh. Oppositions in Bangladesh traditionally preferred the streets over the house of parliament as a stage of political agitation. Though the opposition parties in recent times have not boycotted sessions, they would rather take ministerial positions and “cooperate” the government.

Institutional weaknesses in a so far toothless committee system has affected the cross-party interaction largely. Though the parliamentary committee system has been consolidated to some extent recently, it has grown asymmetrically vis-à-vis the executive and bureaucratic apparatus of the state. Political governments have been invariably seen to hasten their legislative proposals through the floor and thereby effectively by-pass the committee stage. Research, secretarial and political support for the parliamentary committees remain a mirage till date.

Non-party mode of parliamentary behavior could have been symbolized by the office of the Speaker and other independent members. Unfortunately, Speakers of successive parliaments remained strictly loyal to their parties and showed reluctance to assert discretion beyond the party line. Independent members or political groups rarely got entrance in the parliament. A few of the “rebel candidates” winning election as independent members joined the ruling party almost immediately or even before the commencement of parliament. Again, an autonomous parliamentary officer known as Ombudsman could have been another source of inspiration for non-party aptitude in parliamentary works. Unfortunately, this also has not been activated by any of the parliaments so far.

A Non-Accountable Institution

In Westminster system, vertical accountability of parliament to the citizens is ensured through a two-track process - first, parliament members’ constant tie with and responsibility to their constituents and second, citizens’ access to and input in the parliamentary process. An evaluation of Bangladesh parliament in this regard shows a curiously asymmetrical dimension.

On the one hand, MPs excessive entanglement in the local governments, under the cloak of peoples’ representatives, has caused a serious set-back in the system of local governance and the quality of MPs’ legislative performances. On the other hand, citizens’ severely restricted access to the institutional process of parliament has substantially eroded the representative morale of parliament. The Rules of Procedure of Parliament (ROP) in Bangladesh allow it to meet mostly in public and occasionally in secret. Public can witness the house proceeding as visitors but not the committee sittings. Committees may invite public submission or public hearing on any issue under consideration. Committees can also seek expert opinion. Unfortunately, most committees don’t use, nor do they seem to be aware of their power of inviting submission from the public. There is a scope of petitioning parliament on any bill or matter of importance under consideration of the parliament. A petition must be counter signed by a MP and that again must be scrutinised by a Petition Committee. MPs show little or no interest in this public petitioning approach to parliamentary business. Public also are rarely informed of the opportunity. Hence the device remains grossly under utilized.

Concluding Note

Considering the issues raised above, parliamentary scholars in Bangladesh have categorised our parliament as an arena type parliament with little or no policy impact in the governance and policies of state. There is however a feeling that such a wholesale generalisation, though appealing, may be counter-productive for parliamentary studies in Bangladesh. Research and advocacy for parliamentary reform in Bangladesh would rather require a constructive pursuit exploring deeper institutional potentials that belie the structure and procedures of parliament and its organs.