Ministerial ‘Non-Responsibility’

Ministerial ‘Non-Responsibility’ 

M Jashim Ali Chowdhury 

Assistant Professor of Law, University of Chittagong & 

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

Published in the Daily New Age, Editorial, May 31, 2019

Link: http://www.newagebd.net/article/74004/ministerial-non-responsibility?fbclid=IwAR2gb4G-Ifz3ei2lVac0siBF3I94CWyMn0s4lrj57IuZQdoQtuZqlKIQWwk

Also published in the Daily Observer, Law and Justice, July 27, 2019 under the title:

Can our parliament enforce ministerial responsibility?

Ministerial Responsibility In The UK And Bangladesh

Ministerial Responsibility in its Westminster sense presents a curious blend of individual, departmental and institutional chain of accountability. Civil servants are responsible to the minister concerned. Minister in his turn accounts to the Prime Minister. Prime Minister and the Cabinet again collectively answers the people - the Parliament. Individual ministers are said to be answerable to parliament. We see them answering the parliament orally or in written for policies and actions of their department. What remains beyond the sight is how the individual ministers answer the Prime Minister. Prime Minister binds and shields them. 

Within this bondage of shield and sword, ministers owe their allegiance to the government and prime minister. Ministers would defend the government through their votes in parliament and speeches in public until the disagreement reaches to such a point that minister concerned decides to resign. In return, the Prime Minister and Cabinet would defend an individual minister facing a difficult charge in the floor of the House (A. W. Bradley and K. D. Ewing, Constitutional and Administrative Law, 2002, 13th ed., Longman). If this mutual give and take between a minister and his cabinet colleagues is the hallmark of a Westminster notion of Collective Ministerial Responsibility, it is more of a consolidating tool for the government rather than be a destabilising tool for the parliament. Government would collectively fail only when the Prime Minister loses confidence of the majority in the floor. Until the parliament reaches such an exceptionally odd with the government, individual ministers usually feel safe and hence ‘not-responsible’. 

An addition to the ministers’ advantages is the Westminster notion of ‘Next Step Agencies’. Next step agencies are the bodies entrusted and delegated with operational responsibilities accruing under the broader principles framed under the dictates of ministers. It has been held that ministers are responsible for broader principles and executive heads in the next step agencies are accountable for the failure of operational rules. The problem with this distinction is that ministers can rely on this to deflect responsibility entirely. 

Yet another advantage to the ministers is the emergence of so-called Osmotherly Rules in the UK. Named after E.B.C. Osmotherly, a civil servant who first drew up the rules in 1980, the rules would allow the executive heads answer questions asked by MPs to the minister. Should the member of parliament feel that the answer is insufficient, and the minister be required to answer the question, minister would step in. Agency heads would also answer the select committees ‘on behalf and with approval’ of the ministers. The UK Government Resource and Accounts Act 2000, Osmotherly Rules of 2009 and Ministerial Code of 2010 combined have secured parliamentary approval for this practice. It appears that the Osmotherly Rules would camouflage the actual role played and intervention done by the ministers in operational process. As a commentator argued, “it perpetuates the belief that the convention is simply a facade behind which the government can hide” (Diana Woodhouse, Ministerial Responsibility: Something Old, Something New, 1997, Public Law, p 262). Given the context, individual ministerial responsibility in the UK Parliament is now effectively limited to a minister’s responsibility not to mislead it by supplying inaccurate and untrue information (The UK Ministerial Code 2010, Para 1:2). A minister misleading the parliament should resign. 

Principle of collective ministerial responsibility is reflected in article 55(3) and 57(2) of the Constitution of Bangladesh. Prime Minister and Cabinet would fall if it loses the confidence of the parliament. Though the party discipline in Westminster system prevents fall of the Cabinet as whole through a motion of no confidence, history of the UK is not scarce in party backbenchers revolting and posing leadership challenge to the premier. In comparison, the floor crossing bar and polarised party system of ours would effectively preclude a leadership challenge from the backbench. 

We don’t have any express constitutional provision on individual ministerial responsibility either. Nor do we have any Ministerial Code of Conduct in the way the UK and other Westminster democracies have. Article 58(2) of the Constitution scantily talks about individual ministerial responsibility of a Minister to the Prime Minister. Parliament cannot enforce his resignation until and unless the Prime Minister him/herself so wishes or it passes a motion of non-confidence which shall mean the fall of the whole cabinet. 

Parliamentary involvement in the individual responsibility process is seriously weakened by procedural technicalities as well. Ministerial accountability tools at the disposal of parliament include parliamentary questions, scheduled and unscheduled debate and motion of no confidence. Of all these, parliamentary questions and call attention notices are more frequent. Unfortunately, the lion’s share of questions asked by members omits accountability issue. MPs frequently seek benefits for their constituency and remedial actions over administrative complexities. Questions are followed by call attention notices and adjournment motions. With the Speaker’s partisan tendencies, most of the adjournment and call attention motion raised by the opposition members are most likely not to be allowed (Nizam Ahmed, Development and working of parliaments in South Asia, 9:1 (2001) Asian Journal of Political Science, pp. 18-48 at p 29). 

Added to the procedural weaknesses is the emergence of the so-called ministers beyond the cabinet (M. Jashim Ali Chowdhury, 'Ministers' beyond the Cabinet: Accountability concerns, The Daily Star, Law and Our Rights, May 1, 2010). Known as Advisers to the Prime Minister, these ministers-in-fact do not sit in parliament nor do they answer the parliamentary committees. While even the technocrat ministers are offered seats in parliament and committees to ensure their accountability, the advisers in Bangladesh may simply ignore the parliament. 

While the Westminster parliament is concerned with its individual ministers’ responsibility, Bangladesh’s concerns appear more fundamental. Leadership challenge or no confidence in the Cabinet kept at bay, the burning question here is whether our parliament could enforce ministerial responsibility in its absolute minimum at least. May the parliament ask and enforce the publication of whole truth by the ministers in the floor? The answer is perhaps NO.

Our ‘Problematic’ Law Making Process 

M Jashim Ali Chwodhury 

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

Published in the Daily Star, Law and Our Rights, May 28, 2019

Link: https://www.thedailystar.net/law-our-rights/news/our-problematic-law-making-process-1750039

Legislative process in our parliament is claimed to be an upshot of the Westminster parliament. Like the Westminster, government businesses are prioritized over private member initiatives for law making. However, unlike the Westminster, opposition and backbencher voices in Bangladesh are effectively muted to advantage of the government’s right to have its laws passed. Whereas the mother of parliaments itself has evolved extensively in favour of the members’ right to reasonable debate, ours is trailing miles behind both institutionally and procedurally. A comprehensive reading into the Rules of Procedure (RoP) of our parliament seems to suggest that MPs’ right to reasonable debate in the floor, committee and elsewhere is given a mere cosmetic gloss by severely restricting the scope of opposition to government bills and resolutions. 

Unlike the British government, we don’t see any comprehensive legislative agenda from the government. Driven by a tendency of ad hoc-ism, most of the government’s legislative proposals reach the parliament as fait accompli which it simply approves. Scope of drafting exercise by individual members is very slim. The weekly private member business days are used up in MPs talking local problems and success stories of the government than critiquing or legislating. Though we don’t have significant opposition in parliament now, oppositions in the fifth, seventh and eight parliaments used most of the private member days in propagating the politically contentious issues rather than attempting to legislate and question

 the government’s policy preferences. Given the attitude, our history of private member legislation is demonstrably poor. Apart from the 13 Friday schedule for private member business, the House of Commons allows additional 20 days for opposition businesses and 35 more for backbencher debates. We have none of those but mass absenteeism from parliamentary duties. 

Unlike the “Usual Channel” procedure of the House of Commons, there is no intra or extra parliamentary consultation with the Opposition on how to time table different stages of a bill’s consideration in the floor or committee. “Usual Channel” is a desk consultation between ruling party Chief Whip’s private secretary and opposition party whips on timetabling the debate on a Bill. Compared to that, the all-party Business Advisory Committee (Rules 219-220 of RoP) of ours is subject to the hegemony of the Leader of the House. The Speaker has little to offer to the opposition and backbench expectations in scheduling a Bill’s parliamentary journey. 

Once in the floor, a government bill usually goes to the committees. While members are expected to contribute substantially in the committee stage and the subsequent floor debate, we rather see routine abdication of meaningful debate there. The infamous article 70 hunts the backbenchers in the floor. The passivity in the committee stage, however, is attributable to our deep-rooted culture of clientelist politics. Ruling party backbenchers are more likely to be proactive if they hold chairmanship or influence in the committee. That again won’t necessarily amend a governmental bill unless the committee is exceptionally lucky to be appreciated by the cabinet top notch. Amendments, if there be any, usually concern petty issues like date, punctuation and grammatical errors. 

Opposition members on the other hand are handicapped in the floor and committee alike. As mentioned earlier, they don’t have any UK styled “Usual Channel” to negotiate a legislative timetable. Nor do they have any protection against government invoked immediate Closure. Had those been permitted by the RoP, devices like guillotine motion (not immediate rather a time bound closure) or programming motion (fixing a strict time-limit for each stage of law making) could have offered some leverage for the opposition. Like the Speaker of the House of Commons, the Speaker of Bangladesh is vested with considerable power in allowing and ordering amendment proposals. Unfortunately, the demonstrable partisanship of successive Speakers contributed only in generalized suppression of opposition amendments. 

Unless the committees take a genuine cross-party or non-party approach to a bill, which is very rare in fact, the Opposition members’ scope to contribute in the committee stage also is limited to mere noting down of their dissent. Additionally, parliamentary committees’ power to take public evidence from representatives of special interest groups apart from the official oppositions is also rarely resorted to. 

Parliament’s power over the purse of state is affected by tools like Votes on Accounts and Votes of Credit. Votes of Accounts are the advanced grants made by the parliament pending the final approval of a budget. A Vote of Credit is a privilege to withdraw from the consolidated fund for as long as sixty days in case a parliament dares to reject the government’s budget (Article 92(3) of the Constitution). At the expiry of the sixty days, government may simply adjourn the session and continue to withdraw money by promulgating a presidential ordinance (Article 93(3)). For the same parliamentary mode described above, ordinances once placed in the floor would simply be approved. 

Travelling beyond the floor, the German Bundestag allows one-third of its members to challenge a highly controversial law before the constitutional court. We have judicial review and one instance of opposition MPs challenging a law (Abdus Samad Azad v. Bangladesh 44 DLR 354). Unfortunately, this trend was not given a serious consideration by the later day oppositions. Again, the Swiss parliament members may call for a post-legislative popular referendum against a law by gathering around 50000 signatures within 90 days of its passing. While the Bangladeshi RoP allows a motion to circulate a Bill to solicit public opinion during its legislative phase (Rules 78-80, 282), this is routinely voted down in the floor. 

Unlike the British House of Commons, we don’t have any post-legislative scrutiny of subordinate laws passed by the executive. That remains the sole privilege of the executive, i.e., the legislative drafting wing of the Ministry of Law. Despite all these, if we still find solace in calling ours a Westminster parliament, then yes – it is. But how could the doctrine of Westminster parliamentary system itself be blamed for the misery of ours?

A substantive parliamentary public petition system: Advocating the introduction of e-Petition

M Jashim Ali Chowdhury

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

Published in the Daily Observer, Law and Justice, May 18, 2019

Link: https://www.observerbd.com/details.php?id=198308 

Politics, political process and institutions are being increasingly alienated from the body politico – the people. People have trust, expectation and communication gap with their representative institutions and this is contributing to disengagement with and declining support for those institutions. Parliament is not an exception to the trend. Scope for citizens’ direct involvement in policy process, from proposal via deliberation to ratification has been suggested as an alternative. However, this type of direct democracy reforms – referendum say for example, may not be practicable in every day-to-day nitty gritty and complexities of modern-day governance. Instead, advocacy reforms like petitioning the parliament would influence the process rather than make the decisions outright.

Apart from addressing individual grievances in suitable cases, petition system constitutes an important tool of parliament’s vertical accountability to the electorate. A substantive public petition system has a ‘strong agenda-setting potential’ in political discourse. Like most of the parliaments in the world, Bangladesh Parliament also has a public petition system. Currently, a Petition Committee deals with public petitions on “any bill or matter of importance under its consideration or any other matter of public importance” (Rule 100, Rules of Procedure). A paper-based petition so submitted must be counter signed by a member of Parliament. The committee usually headed by the Speaker suggests remedial measure for consideration of the House.

Unfortunately, the system as established is not delivering the actual good it was intended to. MPs show little or no interest in the system. Public also are rarely aware of the opportunity and hence it is grossly underutilized. Petition Committee also has taken a lacklustre approach the matters referred to it. It rarely sits in meeting. Striking at the root of the concept, the committees traditionally referred petitions to the ministers concerned rather than to the House. There is no follow up process or time limit for responding to or acting on the petitions. Out of 248 petitions submitted to parliament between 1991 to July 2010, only 3 were accepted. All others were either rejected, withdrawn or lapsed (Nizam Ahmed, Parliament and Citizens in Asia: The Bangladesh Case, 2012). Also, the petitions submitted so far in Bangladesh primarily concerned personal issues rather than legislative policy and public concerns. Unlike the major parliamentary systems of the world, we don’t have any office of the Ombudsman in existence that could somehow recompense the fall backs of this age-old petition system. Given the context, introduction of an open access e-Petition system is likely to produce some tangible outcome.

E-Petition marks a move away from the traditional adversarial approach of the Westminster. As a reflection of progress in modern e-governance, e-petitions seek to bolster citizen interaction with parliament. e-Petitioning would also avoid the side-lining of people in policy discourse by the technocrats, pollsters and experts. e-Petition system has already been successfully implemented in the Scottish, Wales, German, Queensland, Tasmanian and British parliaments. The Scottish system however stands in marked contrast with others.

In 1998, operational rules of the new Scottish Parliament were shaped under the guiding principles of power sharing, accountability, access, participation and equal opportunities. No age limit is required for an individual filing an e-petition. Petitions may be submitted by any one, in any language and format. Only one signature is enough for an e-petition to be lodged with the parliament. Petitioners, however, cannot resubmit an e-petition on the same or “substantially similar” issue within a year after their petition was closed.

A nine-member committee of the Scottish Parliament deals with the petitions. A staff would assist the petitioners, give advice about the process and wording of the petition. The committee would first see whether parliament has power to deal with issues covering the petition. For instance, the Scottish Parliament has no power over foreign affairs which belongs to the UK House of Commons. The committee cannot rule out a petition on grounds that they find it not good or disagree with its contents. There is no uniform duration for an e-petition. While the petition committee is considering it, e-petition is kept open. Committee communicates with the petitioner during the process and updates on the progress. In suitable cases, committee invites the petitioners to provide evidence or argue on merits. Once a decision is reached, it stands closed and petitioner is notified of the reasons. From 1999 to 2011, a total of 385 e-petitions were filed with the Scottish Parliament. While 12.7% of the issues were implemented, 84.9% of the matters were reviewed by the government, outside organizations and entered the political discourse.

Under the UK system of e-petition, any citizen or resident may sing and lodge a petition. If a petition receives at 10,000 signatures, the government must respond to it. It will also be considered by the petitions committee for a debate in the floor of the house. After being launched in 2011, around 30 petitions were debated in Parliament over four years. In 2014 the Procedure Committee of the UK House of Commons proposed to establish the new Petitions Committee that considers petitions for debate in the House and scrutinises the government’s response.

While advocating the introduction of e-Petition, it must be noted that acceptance of outcome – positive or negative - of a petition, be it electronic or handwritten, would depend on the individuals’ assessment of how ‘fairly’ they were treated. Therefore, it is important that the petitioners are given a say in the consideration phase. It is also important that the government is required to respond to all petitions within a reasonable time. Interaction of the public with parliament (as in the case of Scotland) is no doubt important. But the system must also serve the reasonable expectation of petitioners to influence government policy. Not responding to petitions or addressing the matters raised within would undermine the very foundation of the system.

Also, in light of our inexperience with parliamentary interactions, lay petitions submitted must be given a touch of official feedback and support system. This would prevent rejections on mere formal and technical grounds. Again, there must be scope for public to sign an accepted and published petition and input into its contents through online discussion pane. Side by side, it must be ensured that access to internet has been recognised as part of peoples’ right to information. Without popularising the system, mere discussion among a few privileged internet users would not lead to the meaningful participation we are looking for.

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.