TheParliamentarian
Journal of the Parliaments of the Commonwealth 2016 | Volume 97 | Issue Two | Price £14 Separation of Powers The relationship between Parliament, the Judiciary and the Government
PLUS The Three Waves of the Building Parliamentary Parliamentarians’ Role Reflections on Women’s World Financial Crises Staff Capacity in Defending Human Empowerment by the Rights UK’s Lord Speaker
PAGE 140 PAGE 153 PAGE 156 PAGE 160 ŪŪ Network with young people from across the Commonwealth ŪŪ Opportunity to experience life in the parliamentary spotlight and experience the ‘real-life’ workings of Parliaments and Legislatures ŪŪ Gain first-hand knowledge of the Commonwealth Democratic Values from experienced Parliamentarians and Parliamentary Officials
Commonwealth Parliamentary Association (CPA) Email: [email protected] | Tel: +44 (0)20 7799 1460 | www.cpahq.org Twitter @CPA_Secretariat #CYP8 | Facebook.com/CPAHQ
Statement of Purpose The Commonwealth Parliamentary Association (CPA) exists to connect, develop, promote and support Parliamentarians and their staff to identify benchmarks of good governance, and implement the enduring values of the Commonwealth.
Calendar of Forthcoming Events Confirmed at 5 August 2016
2016
July
10 to 14 July 47th Presiding Officers’ and Clerks’ Conference - Nuku’alofa, Tonga
22 to 30 July 41st CPA Caribbean, Americas and the Atlantic Regional Conference - Nassau, The Bahamas
August
17 to 27 August 47th CPA Africa Regional Conference - Balaclava, Mauritius
21 to 25 August CPA Parliamentary Staff Development Workshop for the Caribbean, Americas and the Atlantic Region - St George’s, Grenada
November
6 to10 November 8th Commonwealth Youth Parliament - British Columbia, Canada
To be confirmed: The date and venue for the 62nd Commonwealth Parliamentary Conference will be published on the CPA website www.cpahq.org when confirmed.
The publication of a Calendar of Commonwealth Parliamentary Association (CPA) events is a service intended to foster the exchange of events and activities between Regions and Branches and the encouragement of new ideas and participation. Further information may be obtained from the Branches concerned or the CPA Secretariat. Branch Secretaries are requested to send notice of the main CPA events and conferences to [email protected] in advance of the publication deadline to ensure the Calendar is accurate.
Further information can also be found at www.cpahq.org or by emailing [email protected]. CONTENTS: THE PARLIAMENTARIAN 2016: ISSUE TWO
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The Parliamentarian: VIEWS, FEATURE Journal of the Parliaments of the Commonwealth COMMENT ARTicles Volume 97 & NEWS 2016: Issue Two The Parliamentarian ISSN 0031-2282 Editor’s Note Separation of Powers in Impeachment of a Issued and published by Page 92 the Commonwealth Judge of the Higher the Secretariat of the A Legal Perspective Commonwealth Parliamentary Judiciary Page 108 The Indian Praxis Association (CPA), CPA View from the Page 126 Secretariat, Suite 700, CPA Chairperson Westminster House, Speech at Women Legislators Doctrine of Sepration 7 Millbank, London Conference in India. of Powers The Separation of Powers SW1P 3JA, United Kingdom Page 94 Relationship between and the Relationship Tel: +44 (0)20 7799 1460 Parliament and Judiciary in India Fax: +44 (0)20 7222 6073 View from the Page 112 between Parliament and Email: [email protected] CWP Chairperson the Judiciary An Expert’s View www.cpahq.org Separation of Powers and Separation of Powers Page 130 the relationship between in Small Jurisdictions Mr Akbar Khan Parliament and the Judiciary Secretary-General Page 96 and beyond The Relationship A View from Guernsey between Parliament Mr Jeffrey Hyland Page 116 Editor, The Parliamentarian View from the CPA and the Judiciary [email protected] Secretary-General The Practicalities and View from Uttar Pradesh, India Page 134 Separation of Powers Challenges of the All images: CPA & Shutterstock. Page 98 Front cover image: Old Supreme Separation of Powers Challenges in the Court building in Singapore. CPA Photo Gallery Parliament and Judiciary in the Falkland Islands India Parliament Shutterstock image ref: Pages 99-103 Parliament and the Executive Page 119 45041263. Page 137 Commonwealth Day Preventing Political The Three Waves of 2016 Photo Gallery Interference with Pages 104-107 the World Financial Judicial Appointments The Tasmania Experience Crises Malta’s Experience Page 122 Page 140
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PARLIAMENTARY Annual subscription REPORT (four issues) UK: £44 inc. postage. Worldwide: £46 surface post £52 airmail
EvalAgenda 2020 in Reflections Parliamentary Price per issue Sustainable on Women’s Report UK: £14 Featuring parliamentary Worldwide: £15 surface post Development Empowerment £16 airmail Global Parliamentarians Forum The UK’s outgoing Lord Speaker legislative reports and third for Evaluation Page 160 readings from Canada, Disclaimer Page 143 Uganda, New Zealand, United Kingdom, Australia Opinions and comments Women Legislators: and India expressed in articles and Emergency From Empowerment Pages 173-191 reviews published in The Preparedness for to Nation Building Parliamentarian are those of Citizens and Parliaments The inaugural ‘Women Legislators: Commonwealth the individual contributors and The British Columbia Experience Building Resurgent India’ Parliamentary should not be attributed to the Secretariat of the Association. Page 146 Conference Association (CPA) Page 162 Organisational Contributors Canada’s View of CPA Thank you to all contributors The new Chair of CPA Canada Structure Women in Leadership for this issue. Page 150 Scottish Parliament’s Experience CPA Executive Committee Page 166 and Commonwealth Women Parliamentarians Printed in: United Kingdom by Building Parliamentary (CWP) Steering Committee Warners Midlands, PLC; Staff Capacity Positive action for Members, Regional New Delhi, India by Jainco Art 2016 Montreal Symposium of Women Parliamentarians Secretaries and the CPA India, and Singapore by Times Parliamentary Training Institutes in the Commonwealth Secretariat Printers Private Limited. Page 153 Page 168 Page 192
Parliamentarians’ Role Commonwealth Women in Defending Human Parliamentarians (CWP) Rights News and Regional The work of the All-Party Strengthening Activities Parliamentary Human Rights Group Page 171-172 Page 156
The Parliamentarian | 2016: Issue Two | 91 editor’s note
Separation of powers and the relationship between parliament, the judiciary and the executive
The Editor’s Note
From the Commonwealth Latimer House Principles Hon. Elise Archer MP, Speaker of the House on the Accountability of and the Relationship of Assembly (Tasmania) brings us an interesting between the Three Branches of Government experience from her jurisdiction regarding the through to the Commonwealth Charter, ensuring prevention of political interference in judicial the Separation of Powers between Parliament, the appointments. This issue also features an account Judiciary and the Executive has been an enduring by Vivek K. Agnihotri (Rajya Sabha, India) of the theme of the Commonwealth for many years. recent impeachment of several judges in the Indian The Commonwealth Latimer House Principles Judicial System. have proved to be an effective framework for In an examination of the relationship between upholding the Commonwealth’s fundamental values Parliament and the Executive, Shri Satya on the Separation of Powers, as set out in the 2013 Jeffrey Hyland, Editor Narayana Sahu (Rajya Sabha, India) looks at the Commonwealth Charter. The Parliamentarian, Rajya Sabha’s decision to amend the Motion of This issue of The Parliamentarian examines this Commonwealth Thanks on the President’s Address for a historic relationship between Parliament, the Judiciary and Parliamentary Association fifth time. the Executive and we have received an excellent This issue of The Parliamentarian also features response from our Members keen to share their a number of articles on gender and the work of the experiences of this key issue in their Parliaments and jurisdictions. Commonwealth Women Parliamentarians (CWP). This issue features articles by experts in the legal field about the The Chairperson of the CPA Executive Committee, Hon. Dr Separation of Powers. Mr Karim A. A. Khan, QC is a Barrister who Shirin Sharmin Chaudhury MP (Bangladesh) shares her speech has worked in many Commonwealth jurisdictions and Dr Karen given at the inaugural ‘Women Legislators: Building Resurgent India’ Brewer is the Secretary-General of the Commonwealth Magistrates’ Conference which took place in March 2016 in New Delhi, India. This and Judges’ Association (CMJA). issue also features a report of the conference on Women Legislators The Secretary-General of the Commonwealth Parliamentary by Dr D. Bhalla (Lok Sabha Secretariat, India). Association (CPA), Mr Akbar Khan shares his views on the Rt Hon. Rebecca Kadaga, MP (Uganda) in her ‘View’ for The Separation of Powers for this publication. Parliamentarian as Chairperson of the Commonwealth Women The Separation of Powers in one of the largest democracies in Parliamentarians, writes about the Separation of Powers and the the Commonwealth is examined by Shri P.P. Chaudhary MP (Lok work of the CWP globally for this issue. Sabha, India) from an India Federal point of view with another view The outgoing Lord Speaker of the UK Parliament’s Upper from the state level in India from Pradeep Kumar Dubey (Uttar House, the House of Lords, Baroness D’Souza (United Kingdom) Pradesh Legislative Assembly, India). shares her reflections on Women’s Empowerment and Dr Roberta This is contrasted with the Separation of Powers in some of the Blackman-Woods MP (United Kingdom) outlines the positive smallest states within the Commonwealth and the CPA. Lawyer actions for Women Parliamentarians in the Commonwealth. We also Simon Ross is the Deputy Greffier (Guernsey) and looks at the feature a report from Susan Duffy (Scottish Parliament) about the Separation of Powers in Small Jurisdictions and beyond. A joint article launch of the Women in Leadership Programme in Scotland. by Nick Arculus, Crown Counsel; Clare Faulds, Senior Magistrate; Amongst the many other topics featured in this issue: and Idah Lorato Motsamai, Legislative Drafter (Falkland Islands) Hon. Yasmin Ratansi MP (Canada) is the new Chair of the scrutinises the practicalities and challenges of the Separation of Commonwealth Parliamentary Association in Canada and gives us Powers in the Falkland Islands in the South Atlantic. her view of the CPA from Canada.
92 | The Parliamentarian | 2016: Issue Two Editor’s Note
Her Majesty Queen Elizabeth II, Head of the Commonwealth of Parliamentary Training Institutes where a Global Network of and Patron of the Commonwealth Parliamentary Association Parliamentary Training Institutes was formed to include the (CPA) attends the Commonwealth Day 2016 reception at Commonwealth Parliamentary Association. Marlborough House in March 2016 and meets former CPA Commonwealth Day 2016 took place on 14 March this year Chairperson, Rt Hon. Sir Alan Haselhurst MP amongst the and many CPA Branches and Members took part in events to many guests. image credit: Commonwealth Secretariat. mark this special day. This issue features many of the reports of CPA events and activities from Commonwealth Day including the events in London with Her Majesty Queen Elizabeth II, Head of the Commonwealth and Patron of the CPA. Hon. Tonio Fenech MP (Malta) writes about Malta’s experience The Parliamentary Report section in this issue includes in the three waves of the world financial crisis. parliamentary and legislative news from Canada (Federal and Kabir Hashim MP (Sri Lanka) reports on the work of the Global British Columbia), Uganda, India, New Zealand, United Kingdom and Parliamentarians Forum for Evaluation and its impact on the work of Australia. Parliamentarians around the world. As always, we look forward to hearing your feedback and Rt Hon. Ann Clwyd MP (United Kingdom) is the Chair of the comments on this issue of The Parliamentarian and the issues of All-Party Parliamentary Human Rights Group and gives readers an concern to Parliamentarians across the Commonwealth. interesting account of the work of an All-Party Parliamentary Group (APPG) in the UK Parliament. Jeffrey Hyland Parliamentary Clerk Craig James (British Columbia, Canada) Editor, The Parliamentarian discusses the strengthening and emergency preparedness for [email protected] citizens and Legislatures using the example of the CPA-World Bank’s Parliamentary Study Group on responses to National Crises. This issue also features a report of the 2016 Montreal Symposium
The Parliamentarian | 2016: Issue Two | 93 view from the CPA chairPERSON
WOMEN LEGISLATORS View from the Chairperson of the CPA Executive Committee
Speech by Hon. Dr Shirin Sharmin Women Members of Parliament are demonstrating Chaudhury, MP, Chairperson of the CPA their leadership in all spheres of social, economic and Executive Committee and Speaker of the political development. They are actively taking part in Bangladesh Parliament at the inaugural the decision-making process, in legislating laws, in Women Legislators: Building Resurgent speaking out for upholding women’s and children’s India Conference in New Delhi, India which rights and in the formulation of policies. took place in March 2016 Evidence shows women’s political leadership has contributed to development of social policy; helped “It is indeed a great honour for me to join the in solving problems through their special traits, National Women’s Legislators Conference in expertise and experience; enhanced delivery of social New Delhi, India, the first of its kind organized services; improved working conditions in the health to bring together Honourable women Members Hon. Dr Shirin Sharmin sector; in educating children, particularly girls; and in of Parliament and women Members of State Chaudhury, MP, Chairperson the prevention of violence etc. The fact that women Legislatures from all over India to celebrate their of the CPA Executive Parliamentarians have made huge differences through role in nation building. Women Legislators: Committee and Speaker of their role is apparent in many parts of the world. In Building Resurgent India aims to focus on the Bangladesh Parliament. Rwanda, women’s experience as mothers has been the potential of women legislators to effectuate central not just to their motivation, but also their positive strides in the socio-economic development of their nation as performance as Parliamentarians. agents of change. As a Member of Parliament in Rwanda states: “We are mothers It gives me a great deal of pride and a very special sense of ...and mothers are characterized by tenderness, love and care towards empowerment just to be able to be present in this hall and to take part their children. Women in Parliament act according to this nature and in this unique event with women Members of Parliament and women thus ‘the more women in Parliament, the better it is for children.’”2 Members of State Legislators of India. Motherhood prepared women Parliamentarians to better I would like to congratulate the Hon. Speaker of Lok Sabha, understand, analyse and act on the problems of children. Women Her Excellency Sumitra Mahajan, for organizing this conference in have a natural tendency to care for children and this is an asset for celebrating the upcoming International Women’s Day. I would like to legislators. Women Parliamentarians are role models to children and congratulate and extend my warm felicitation to the distinguished to girls. Women Parliamentarians in many parts of the globe have been panelists, Dr. Najma Heptullah and Sushma Swaraj who are icons of able to effectuate a major breakthrough in perception and mindset. women at the high echelons of the political arena and to everyone “There is a change in people’s thinking pattern. Women now play an present here this afternoon. active role in leadership as people are starting to accept them - Women The presence of women Members of Parliament demonstrates as capable.”3 ‘Women’s Power’ - their power as effective representatives of social Women legislators have also made an impact in policy outcomes change, echoing the voices of women in the corridors of power. We related to children. Women Parliamentarians have made significant gather here today in this unique platform at a time when “women hold achievements for children, women and family legislation, gender up half the sky.”1 sensitive budgeting etc. Each one of us stand here with our inner strength, dignity and What women legislators can do: courage inherent in every women that radiates a beacon of powerful • They can help other women develop their political skills. They light penetrating darkness. Women legislators can play a catalyst can help in removing the obstacles to facilitate more women role as change-makers in the development process within their to be elected directly through the election process. They can communities, societies and nations. help them raise funds for women candidates, broaden its South Asia always takes pride in women’s political leadership. This membership base, expand networks, and take joint initiatives to region has had the proud privilege to have women leaders as Heads of strengthen their capacity to teach and train candidates. Government, Heads of State and Speakers of Parliament. At present • They can help other women acquire the tools necessary for Bangladesh demonstrates women’s leadership with the Hon. Prime political participation to create their own space and firm base. Minister, Sheikh Hasina; the Leader of the Opposition, Rowshan • They can create opportunities for women around them from Ershad and the Speaker of Parliament. different backgrounds to converge and to achieve the common India has had women Prime Ministers including the late Indira goals that contribute to the well-being of their societies. Gandhi, a woman President and two female Speakers. At present, the • They can work together through women’s caucuses to improve Speaker in Nepal is a woman. Sri Lanka has had women as both Prime the overall living conditions of people, particularly of women, Minister and President. This reinforces our commitment to contribute to to give them better bargaining capacity to bring substantial nation building. changes in their lives and to transform their communities.
94 | The Parliamentarian | 2016: Issue Two VIEW FROM THE CPA CHAIRPERSON
Right: The President of India Shri Pranab Mukherjee (centre); Vice-President Shri Mohammad Hamid Ansari (second from left); Prime Minister Shri Narendra Modi (second from right); Lok Sabha Speaker Smt. Sumitra Mahajan (far left); and Speaker of Bangladesh Parliament and Chairperson of the CPA Executive Committee, Hon. Dr Shirin Sharmin Chaudhury MP (far right) at the Inaugural National Conference of Women Legislators on the theme of Women Legislators: Building Resurgent India on 5 March 2016, New Delhi, India.
• They must work to meet the critical challenges of being able to “If ever the world sees a time when women shall come together exert their authority, to be able to assume their position and to purely and simply for the benefit of mankind, it will be a power such as be fully recognised as political actors. the world has never known.”5 • They can find ways to bring about substantive changes in inherent power dynamics and patterns of inequality to bridge “The process of change has already begun. Let us all open our hearts the gap. and join in accelerating this process in creating a more equitable and • They must develop themselves, acquire skills and be equipped inclusive world.”6 with tools to economically empower them. • They can interact and share among themselves, share best References: practices, identify impediments and barriers to achieving the 1 Half the Sky, How to Change the World, Nicholas D. Kristof and Sheryl Wudunr. goals and find solutions. 2 Thacienne Dusabeyezu, Member of Parliament, Rwanda. Rwanda: The Impact • They can work to address feminisation of poverty, create of Women Legislators on Policy Outcomes Affecting Children and Families, opportunity to increase labour force participation of women; Elizabeth Powley. they can build skills development, income generating training, 3 Liberate Kayitesi, Member of Parliament, Interview Spring 2006. Rwanda: create access to finance and access to markets. The Impact of Women Legislators on Policy Outcomes Affecting Children and • They can set up institutions through appropriate law and policies Families, Elizabeth Powley. so that it does not breed inequality but eliminates discrimination. 4 The Natural Leadership Talents of Women, Helen E. Fisher, Chapter 8. Enlightened Power, How Women are Transforming the Practice of Leadership, Please let me conclude with a few quotations: Linda Coughlin, Ellen Wingard, Keith Hollihan, Editors, Page 133. “Women bring a different way of thinking, a cooperative spirit, 5 Quote by poet Mathew Arnold, The Natural Leadership Talents of Women, patience, a gift of reading people, empathy, networking, abilities, Helen E. Fisher, Chapter 8. Enlightened Power, How Women are Transforming negotiating skills, drive to nurture family, children, and caregiver.”4 the Practice of Leadership, Linda Coughlin, Ellen Wingard, Keith Hollihan, Editors, Page 140. 6 Ref. Footnote 2 Page xxiv.
Please turn to page 162 for a full report from the conference.
Left: The Chairperson of the CPA Executive Committee, Hon. Dr Shirin Sharmin Chaudhury, MP, Speaker of the Parliament of Bangladesh also attended the 44th Plenary Session of the Inter-Parliamentary Assembly of the CIS Member Nations in St Petersburg, Russia to discuss cooperation between the Commonwealth Parliamentary Association and the CIS nations. The CPA Chairperson is pictured meeting with Valentina Matviyenko, Chair of the Federation Council. Image: Ministry of Foreign Affairs, Russia.
The Parliamentarian | 2016: Issue Two | 95 VIEW FROM THE COMMONWEALTH WOMEN PARLIAMENTARIANS (CWP) CHAIRPERSON Separation of Powers and the relationship between Parliament and the Judiciary View from the Commonwealth Women Parliamentarians (CWP) Chairperson
Dear Readers of The Parliamentarian, people from all the regions of the CPA, some As I write this article and as I continue to wonderful women and women leaders; as well as share with you on the different global aspects of some truly wonderful colleagues. I am happy to report our time, I am engulfed with huge emotion and that the CWP family is expanding by the day and that reflection. This is so because of the timing of this our work continues to assist hundreds of women particular issue of The Parliamentarian. within the Commonwealth. At a personal level, the emotion comes We have also continued to advocate for increased with the realisation that the end of my current women representation in Parliaments, the Judiciary, term as CWP Chairperson is fast approaching. and in Cabinet and local governments within the As we prepare for the 62nd Commonwealth Commonwealth. However, I must concede that we Parliamentary Conference (CPC) this year, this are still grappling with some really low percentages article presents me the opportunity not only to Rt Hon. Rebecca Kadaga, MP particularly in the Pacific and Caribbean regions. engage with you on the theme of this issue of The Chairperson of the Fortunately, there are strategies in place to reverse Parliamentarian which is ‘Separation of Powers Commonwealth Women this trend. Lest I deviate too much, let me delve into and the relationship between Parliament and the Parliamentarians and Speaker the theme of the Journal. Judiciary’, but also to reflect on my time of my of the Parliament of Uganda I would like to thank the Editorial team of The stewardship of CWP and the massive, massive Parliamentarian who coined the theme; ‘Separation of inroads we have made together. powers and the relationship between Parliament and During the past three or so years of my term as Chairperson of the the Judiciary’ because as a Parliamentarian myself, this is a subject Commonwealth Women Parliamentarians (CWP), it has been a whirl- matter I find pertinent in true democratic governance. wind experience and this has been so because of the enormous task The term ‘trias politica’ or ‘separation of powers’ which was that we undertook and we continue to execute. At the 1989 plenary coined by Charles-Louis de Secondat, baron de La Brède et de CPA conference, our founders resolved to continue to discuss ways Montesquieu, an 18th century French social and political philosopher to increase female representation in Parliament and work towards has become one of the major pillars and doctrines of modern the mainstreaming of gender considerations in all CPA activities and democratic governance so much so that it should even be considered programmes. This is the core of our task and it is this undertaking sacred in my opinion. Quite simply, separation of powers entails the that has guided our activities during the last three years. We have division of government responsibilities into distinct branches to limit intensified advocacy for women rights and empowerment throughout any one branch from exercising the core functions of another. The all the branches of the CPA. In some areas like Seychelles, new intent is to prevent the concentration of power and provide for checks branches of the CWP have been opened during my term and we are and balances. These checks and balances are so vital in building our proud of this unique achievement. We were also able to formulate democracies and must therefore be observed. a strategic plan which is crucial cog for guiding our activities. In The traditional characterizations of the powers of the branches of so doing we have traversed most of the CPA regions organising government are: workshops, seminars, conferences and high level dialogues all in • The legislative branch is responsible for enacting the laws of the quest of inspiring women’s political emancipation. Obviously we the state and appropriating the money necessary to operate the would not have achieved so much without the invaluable support of government. the CPA Secretariat and the Executive Committee. I am grateful to • The executive branch is responsible for implementing and Rt Hon. Sir Alan Haselhurst MP and the current Chairperson, Hon. Dr administering the public policy enacted and funded by the Shirin Sharmin Chaudhury MP. legislative branch. I cannot give a full narrative of what has transpired during my term • The judicial branch is responsible for interpreting the constitution of office in this article. At an opportune time later in the year, I shall and laws and applying their interpretations to controversies surely produce a detailed report of the same. Our dear readers, all brought before it. I can say is that during my term so far, I have met some wonderful Today’s theme concentrates on the relationship between
96 | The Parliamentarian | 2016: Issue Two VIEW FROM THE COMMONWEALTH WOMEN PARLIAMENTARIANS (CWP) CHAIRPERSON
Parliament and the Judiciary and I intend to keep it within those limits. We must give due credence to this special relationship because one branch makes the laws and the other is responsible for interpreting them and passing judgments. There is therefore critical need for symbiosis and mutual respect between the Parliament and the Judiciary. Ultimately, this makes for a very delicate and volatile relationship. Constructive relationships between the two arms of government - the legislature and the judiciary - is essential to the effective maintenance of the constitution and the rule of law. In recent years, the character of this relationship has changed significantly, both because of changes in governance and because of wider societal change. The other constitutional principle of central importance in governing the relationship between the Judiciary and Parliament is that of the ‘independence of the Judiciary’ and the ‘independence of Parliament’. This does not and should not mean that the Judiciary and Parliament have to be isolated from each other or the other branches of the State. Nor does it mean that both organs - individually and collectively - need to be insulated from scrutiny, general accountability for their role or properly made public criticisms of conduct inside or outside the courtroom and the plenary. In my long experience as a Parliamentarian, the accountability of MPs is to those who Above: Equator sign in Uganda. Uganda is one of the few elected them i.e the citizenry. The Judiciary on the other hand must countries in the world where the imaginary line that divides bear accountability for decisions reached and judgments made. the Earth into two halves passes. In my opinion, the key to harmonious relations between the Parliament and the Judiciary is ensuring that both organs do not – the committee on Legal and Parliamentary Affairs whose cardinal violate the independence of either organ in the first place. To achieve mandate among others is to oversee the activities and programmes this, there is apparent need for either organ to fully understand the of some judicial institutions. In addition, there is need to provide parameters of its own mandate while at the same time recognizing support to build the capacity of parliamentary committees to carry out the interdependence nature of their work. this function. In the same vein, it is imperative that just as MPs ought to I have always argued that it is imperative to establish an demonstrate restraint in commenting on the Judiciary, so judges independent office of the Attorney-General who can give an should avoid becoming inappropriately involved in public debates opinion on issues of conflict and play an intermediary role between about legislative procedure, government policy, matters of political parliament and the courts. This is something I tried to initiate in my controversy or individual politicians. Parliament although it didn’t come to fruition. Suffice to say that I believe that it is possible to put in place measures of ensuring a the Attorney-General is not trusted as an independent player in all permanent harmonious relationship between these two organs of the countries. state. Effective channels of communication between the Parliament It is also vital that we avoid political interference in the and the Judiciary are vital to ensure that the impact of legislation appointment of judges, including from the executive branch of or legislative proposals upon the administration of justice is fully government. This would require therefore that we consider the understood at an early stage to avoid contradiction at a later stage. creation of Judicial Councils or Judicial Service Commissions, whose Furthermore, concerns amongst the Judiciary about particular members would be nominated by Parliament, the Judiciary and the legislative proposals can be conveyed through formal responses Executive, to oversee the administration and effective working of the to consultation between the two organs for purposes of achieving justice system while respecting the independence of judges. There is consensus. It is also important; especially for the countries within also a need develop a code or principles governing relations between the Commonwealth; to assign responsibility to a parliamentary Parliament and the courts as well as establishing a mediation body to committee to verify that bills are in conformity with the constitution, monitor and advise on the application of these principles. to reduce the risk of legislation being struck down by the courts at a Dear Readers, let me stop here and wish you a happy reading. later stage. In my Parliament (Uganda), we have one such committee
The Parliamentarian | 2016: Issue Two | 97 VIEW FROM THE SECRETARY-GENERAL
Separation of powers View from the 7th CPA Secretary-General
Commonwealth Charter 2013: Separation to uphold the notion that parliament is the only body of Powers – “We recognise the importance able to create laws, rather than another entity. That is of maintaining the integrity of the roles of the not to say that parliamentary privilege has not been Legislature, Executive and Judiciary. These are the challenged in some arenas. guarantors in their respective spheres of the rule of The Clerk of the Queensland Parliament, Mr law, the promotion and protection of fundamental Neil Laurie recently gave a defence of the principle human rights and adherence to good governance.” of parliamentary privilege in the Brisbane Times newspaper (01/06/2016): “Freedom of speech In 2003, the Commonwealth Heads of Government only protects members’ statements and documents recognized the work of the Commonwealth against places ‘outside of parliament’. That is, courts, Parliamentary Association together with three tribunals, etc. Members are subject to regulation under Commonwealth partner legal organisations - the Mr Akbar Khan parliamentary law by the Speaker and accountable to Commonwealth Legal Education Association, Secretary-General of the Parliament itself for the content of speeches. There the Commonwealth Lawyers Association and the Commonwealth are a vast array of impediments within parliamentary the Commonwealth Magistrates and Judges Parliamentary Association law and practice to statements made by members: sub Association – and the Commonwealth Secretariat in judice, that is the prohibition on mentioning matters developing guidelines on the separation of powers and the Heads of before the criminal courts (mentioned by Harrison); the rule prohibiting Government endorsed the Commonwealth Latimer House Principles un-parliamentary language; the prohibition on reflections upon the on the Accountability of and the Relationship between the Three judiciary and the Governor; and the rule allowing members who feel Branches of Government. (subjective test) that another member has personally reflected upon The Commonwealth Latimer House Principles have proved them to seek a withdrawal of the remarks. to be an effective framework for upholding the Commonwealth’s Furthermore, members who make statements or table documents fundamental values on the Separation of Powers, as set out in the that are deliberately misleading run the risk of a complaint by another 2013 Commonwealth Charter above. member and being referred to the Ethics Committee. A member found The application of the Commonwealth Latimer House Principles to at fault of such a charge risks a range of penalties. In practice, this has helped to uphold the rule of law, democracy and good process often leads to members making withdrawals and apologies for governance globally across the Commonwealth and beyond. inaccuracies or clarifying or qualifying previously made statements well For Parliamentarians, one of the key tenets of the Commonwealth before an Ethics investigation.” Latimer House Principles is on the Independence of Parliamentarians The Latimer House Principles also provide distinct guidelines on (Objective III): several areas including Parliament and the Judiciary; preserving judicial (a) Parliamentarians must be able to carry out their legislative and independence through judicial autonomy and funding; Women in constitutional functions in accordance with the Constitution, free from parliament; Judicial and parliamentary ethics; Executive accountability; unlawful interference. and the law-making process. (b) Criminal and defamation laws should not be used to restrict Judge Pierre Olivier, Supreme Court of Appeal: Bloemfontein legitimate criticism of Parliament; the offence of contempt of (Advocate, 2000) said: “The successful implementation of these parliament should be narrowly drawn and reporting of the proceedings Principles calls for a commitment, made in the utmost good faith, of parliament should not be unduly restricted by narrow application of of the relevant national institutions, in particular, the executive, the defence of qualified privilege. parliament and the judiciary, to the essential principles of good The rights of Parliamentarians to be independent, which has evolved governance, fundamental human rights and the rule of law, including into the modern day parliamentary privilege, derives from the UK the independence of the judiciary, so that the legitimate aspirations of Parliament’s Article 9 of the Bill of Rights 1688 which provides “That the all the peoples of the Commonwealth should be met. Each institution Freedome of Speech and Debates or Proceedings in Parlyement ought not must exercise responsibility and restraint in the exercise of power within to be impeached or questioned in any court or place out of Parlyement.” its own constitutional sphere so as not to encroach on the legitimate Outside of Parliament, Parliamentarians are bound by the same laws discharge of constitutional functions by the other institutions. that restrict certain speech that all citizens are bound by such as certain It is recognised that the special circumstances of small and/or under- hate speech, or speech that is defamatory. However, parliamentary resourced jurisdictions may require adaptation of these Guidelines. It is privilege in some Commonwealth jurisdictions protects Parliamentarians recognised that redress of gender imbalance is essential to accomplish from what is said in Parliament. The overarching reason for the creation full and equal rights in society and to achieve true human rights. Merit of the Bill of Rights 1688 was to allow politicians and the institution of and the capacity to perform public office regardless of disability should Parliament to operate without interference from outside forces, and be the criteria of eligibility for appointment or election.”
98 | The Parliamentarian | 2016: Issue Two The Commonwealth Parliamentary Association (CPA) Photo Gallery
Above, above right and right: The 27th Commonwealth Parliamentary Seminar was hosted by the CPA Queensland Branch at the Parliament of Queensland in Brisbane, Australia from 5 to 11 June 2016. The CPA Seminar was officially opened by His Excellency Hon. Paul de Jersey AC, the Governor of Queensland. The Speaker of the Legislative Assembly of Queensland. Hon. Peter Wellington MP and Mr Akbar Khan, Secretary-General of CPA both gave speeches of welcome at the opening ceremony which also featured an indigenous welcome to Australia. Ahead of the CPA Parliamentary Seminar, the Secretary- General visited the Parliament of Queensland at the invitation of the Speaker of the Legislative Assembly and together they visited three local schools in Brisbane as part of the CPA Roadshows tour with local Members of Parliament. The Secretary-General also met with the CPA Queensland Branch Executive Committee and delivered a lecture to the Queensland Branch of the United Nations Association. During his visit to Australia, the CPA Secretary-General, Mr Akbar Khan also visited Canberra to meet with the Speaker of the ACT Legislative Assembly, Vicki Dunne MLA (pictured left).
Above right: The CPA was represented at the Patron’s Lunch, a celebration of Her Majesty The Queen’s 90th birthday and her many patronages including as Patron of the CPA, by the Vice-Chairperson of the CPA Executive Committee, Hon. Shirley Osborne MLA, Speaker of the Legislative Assembly of Montserrat; HE Joyce Kikafunda, High Commissioner for Uganda in London (representing the CWP Chairperson); the CPA Secretary-General, Mr Akbar Khan and members of the CPA Secretariat.
For the Commonwealth Parliamentary Association, the Latimer Principles underpin and secure all the democratic values of the 2013 House Principles have helped to provide a framework for specific aspects Commonwealth Charter that as citizens in the Commonwealth we value of the Recommended Benchmarks for Democratic Legislatures and and cherish. There remains a lot of work to do for all of us concerned the Recommended Benchmarks for Codes of Conduct applying to with embedding a democratic culture across the Commonwealth. I am Parliamentarians in relation to the rule of law and the separation of powers and therefore delighted that this edition of The Parliamentarian focuses on the Latimer House Principles continue to be widely used in the development of this very important subject with contributions received from around the parliamentary and political systems in the Commonwealth today. Commonwealth. I encourage Members to read of the experiences of In recent years, there have been a number of examples in the different jurisdictions in the Separation of Powers in this issue of The Commonwealth where the careful balance in the relationship between Parliamentarian. the three branches of government that helps embed democracy has been put at risk through dominant or egregious executive action. Such Akbar Khan action poses a serious threat to democracy for all states, but especially 7th Secretary-General for fragile states where the small democratic gains risk falling back. Commonwealth Parliamentary Association (CPA) As Secretary General, the observance of the Latimer House
The Parliamentarian | 2016: Issue Two | 99 The Commonwealth Parliamentary Association (CPA) Photo Gallery
Left: The Secretary- General of the CPA, Mr Akbar Khan received Acting High Commissioner of Sri Lanka in London, Sugeeshwara Gunaratna at the CPA Secretariat.
Left and below left: The Secretary-General, Mr Akbar Khan welcomed the Speaker of the Parliament of Guyana, Hon. Dr Barton U.A. Scotland, C.C.H, MP and the Clerk of the Parliament of Guyana, Mr Sherlock Ewart Isaacs together with a delegation of parliamentary staff to the CPA Secretariat in London. Top right and above: The Executive Committee of the CPA Mid-Year Meetings were held from 27 to 29 April 2016 in London, United Kingdom. The CPA Chairperson, Hon. Dr Shirin Sharmin Chaudhury MP, Speaker of the Parliament of Bangladesh chaired the CPA Executive Committee meetings with the Executive Committee Members representing the nine regions of the CPA – Africa; Asia; Australia; British Islands & Mediterranean; Canada; Caribbean, Americas & Atlantic; India; Pacific; and South East Asia.
Below: The Secretary-General, Mr Akbar Khan received the Speaker of the House of Commons of the Canadian Federal Parliament, Hon. Geoff Regan Below: The Secretary-General of the CPA, Mr Akbar Khan PC MP at the CPA Secretariat in London. The Speaker was accompanied met with Hon. Don Harwin MLC, President of the Legislative by Hon. Andrew Leslie PC MP, Chief Government Whip (Whip of the Council from the New South Wales Parliament in Australia and Liberal Party); Mr Gordon Brown MP, Chief Opposition Whip (Whip of the Joint President of the New South Wales Branch of the CPA Conservative Party of Canada); Ms Marjolaine Boutin-Sweet MP (Whip of the during a visit to the CPA Secretariat in London. New Democratic Party).
100 | The Parliamentarian | 2016: Issue Two Above and above right: The CPA Secretary-General, Mr Akbar Khan visited the CPA Montserrat Branch from 27-29 March 2016. During the visit, the Secretary-General met a number of dignitaries including the Premier Donaldson Romeo (above right) and the Speaker of the Montserrat Legislative Assembly and Vice-Chairperson of the CPA Executive Committee, Hon. Shirley Osborne MLA. The Secretary-General’s visit included a CPA Roadshow held in Montserrat with students from Montserrat and Antigua.
Right: The Secretary-General of the Commonwealth Parliamentary Association (CPA), Mr Akbar Khan met with Ambassador Irwin LaRocque, Secretary-General of the Caribbean Community (CARICOM) during his visit to the Caribbean region.
Above, above right and below: The CPA Post-Election Seminar for the Parliament of Guyana took place in Georgetown from 30 March to 1 April 2016. The Seminar was opened by the First Vice President and Prime Minister of Guyana, Hon. Moses V. Nagamootoo, JP, MP; the Speaker of the Parliament of Guyana, Hon. Dr Barton U.A. Scotland, C.C.H, MP and Mr Akbar Khan, CPA Secretary-General. It was the first visit of the Secretary-General to the country of his birth since assuming the role. During his visit the CPA Secretary-General also delivered a CPA Roadshow to increase young people’s awareness of parliament and democracy at the University of Guyana together with two Ministers of State and two Members from the Opposition.
The Parliamentarian | 2016: Issue Two | 101 The Commonwealth Parliamentary Association (CPA) Photo Gallery
Left, below left and below: The CPA Parliamentary Staff Development Workshop for the Asia and South- East Asia Regions took place in Islamabad, Pakistan, hosted by the Parliament of Pakistan from 4 to 7 May 2016. The CPA Secretary- General Mr Akbar Khan attended the Workshop during a Branch visit to CPA Pakistan. During his visit, the CPA Secretary-General met HE Mamnoon Hussain, President of Pakistan; Senator Hon. Mian Raza Rabbani, Chairman of the Senate of Pakistan at Parliament House as well as other dignataries. The Secretary-General also delivered a CPA Roadshow for young people at the National University of Modern Languages (NUML) in Islamabad, Pakistan accompanied by Senator Mushahid Hussain Sayed, Chairman, Senate Standing Committee on Defence.
Left and below left: At the invitation of the Speaker of the People’s Majlis, Hon. Abdulla Maseeh Mohamed MP, the CPA Secretary- General, Mr Akbar Khan visited the CPA Maldives Branch. During the visit, the Below: The 4th CPA Parliamentary Staff Development Workshop Secretary-General for the Pacific Region took place in Fiji, hosted by the Parliament met with the Speaker as well of Fiji from 16 to 18 May 2016. The CPA Workshop was opened as H.E. Ms Dunya Maumoon, with an official welcome by the Speaker of the Fiji Parliament, Foreign Minister of the Maldives Hon. Dr Jiko Fatefehi Luveni. The CPA Pacific Regional Secretariat amongst many other dignitaries. was represented by Ms Suze Jones, Clerk Assistant (House), New Zealand and the CPA Australia Regional Secretariat was Below: The CPA Secretary- represented by Mr Ray Purdey, Clerk of the Legislative Assembly, General, Mr Akbar Khan Victoria, Australia. visited the CPA Mauritius Branch and delivered a CPA Roadshow on Parliament and the Commonwealth to the University of Technology Mauritius.
102 | The Parliamentarian | 2016: Issue Two Above and above right: The 46th British Islands and Mediterranean Regional Annual Conference was hosted by the States of Jersey and the CPA Jersey Branch from 15 to 18 May 2016. The Secretary- General of the CPA, Mr Akbar Khan attended the conference which was officially opened by the Bailiff of Jersey, Mr. William Bailhache, Presiding Officer of the States Assembly. During his visit to Jersey, the CPA Secretary-General also visited Jersey College for Girls to deliver a CPA Roadshow on Parliament and the Commonwealth accompanied by Jersey Education Minister Deputy Rod Bryans.
Right: The CPA Post-Election Seminar for the Parliament of Samoa took place in Apia, Samoa from 10 to 11 May 2016, hosted by the CPA Samoa Branch. The Seminar was opened by the Speaker of the Parliament of Samoa, Hon. Le’aupepe Toleafoa Fa’afisi. The Keynote Address was delivered by the Prime Minister of Samoa, Hon. Tuilaepa Auelua Fatialofa Lolofietele Lupesoliai Dr Sailele Malielegaoi.
Below right: The Secretary-General of the CPA, Mr Akbar Khan, together with the Vice-Chairperson of the CPA Executive Committee, Hon. Shirley M. Osborne, MLA, Speaker of the Montserrat Legislative Assembly welcomed a delegation from UKOTA (UK Overseas Territories Association) to the CPA Secretariat in London, UK. The delegation represented the Falkland Islands, British Virgin Islands, Bermuda, Cayman Islands, St Helena, Tristan da Cunha, Turks & Caicos Islands and Montserrat.
Right: The Secretary- General of the CPA, Mr Akbar Khan welcomed the Vice-Chairperson of the CPA Executive Committee, Hon. Shirley M. Osborne, MLA, Speaker of the Montserrat Legislative Assembly to the CPA Secretariat in London, UK.
Right: The CPA Africa Region and the Society of Clerks- at-the-Table (SOCATT) Africa Region held the 2016 SOCATT Africa Region Professional Development Seminar in Accra, Ghana, hosted by the Parliament of Ghana in May 2016. The seminar was officially opened by Rt Hon. Edward K. Doe Adjaho, Speaker of the Parliament of Ghana.
The Parliamentarian | 2016: Issue Two | 103 Commonwealth Day 2016 CPA Photo Gallery
Commonwealth Parliamentary Association (CPA) marks The CPA Youth Programme included the following: a tour of the Commonwealth Day 2016 UK Houses of Parliament; a presentation by Ms Peggy McLennan, The Commonwealth Parliamentary Association (CPA) marked Guyana Acting High Commissioner on ‘What does the work of a High Commonwealth Day 2016 both in London at the CPA Secretariat and Commissioner or UK Representative involve?’; a presentation by Dr across the CPA regions and branches. Roberta Blackman-Woods MP and Mr Ian Liddell-Grainger MP, two Her Majesty Queen Elizabeth II, Head of the Commonwealth and UK Members of Parliament on the work that they do in Parliament; Patron of the Commonwealth Parliamentary Association attended an address on ‘An Inclusive Commonwealth’ by Vijay Krishnarayan, celebrations in London to mark Commonwealth Day 2016 and went Director of the Commonwealth Foundation; and the presentation of to one of the largest multi-faith celebration services in Westminster their certificates by Mr Akbar Khan, Secretary-General of the CPA. Abbey along with Hon. Dr Shirin Sharmin Chaudhury, MP, Chairperson A number of CPA Branches marked Commonwealth Day in their of the CPA Executive Committee and Speaker of the Parliament of Parliaments and Commonwealth Parliamentarians attended a number Bangladesh accompanied by Mr Akbar Khan, Secretary-General of of events connected to the celebrations. the Commonwealth Parliamentary Association (CPA), Commonwealth During the evening of Commonwealth Day 2016, Her Majesty High Commissioners, the Commonwealth Secretary-General Queen Elizabeth II, Head of the Commonwealth and Patron of the and dignitaries from around the Commonwealth as well as senior Commonwealth Parliamentary Association met Hon. Dr Shirin Sharmin politicians and 1,000 school children. Chaudhury, MP, Chairperson of the CPA Executive Committee Also attending the service were 40 young people from across the and Speaker of the Parliament of Bangladesh and Mr Akbar Khan, Commonwealth who attended the CPA Commonwealth Day Youth Secretary-General of the CPA at the Commonwealth Secretary- Programme on the theme of ‘An Inclusive Commonwealth’. The General’s Commonwealth Day 2016 reception at Marlborough House, young people were representing the following CPA Branches: Ghana, London, UK (image credit: Commonwealth Secretariat). Nigeria, Zambia, Pakistan, Sri Lanka, New South Wales, Alderney, Commonwealth Day has been celebrated around the Commonwealth Falkland Islands, Isle of Man, Jersey, Malta, St Helena, UK, Wales, on the second Monday in March every year since the 1970s. Bermuda, Cayman Islands, Trinidad and Tobago, Turks and Caicos, New Zealand and Malaysia.
104 | The Parliamentarian | 2016: Issue Two what goes on when the actual Assembly is in session. Hon. Farrel Smithen said during the youth parliamentary sitting, the participants were allowed to deviate from the normal practice and posed questions in wide range of pertinent areas such as finance, water, public works, agriculture, health, community affairs, tourism, national security electricity, youth and sports, education and immigration. He explained that although it was not a normal occurrence in the Nevis Island Assembly, the strategy was used in the mock sitting, to get the participants to investigate the current situations in the political arena and exposing them to practical situations in Nevis. CPA Nevis Branch At the end of the sitting, some of the participants expressed The Nevis Island Branch of the Commonwealth Parliamentary satisfaction with being part of the Association. Ms. Sabrina Orr, who Association held a Youth Parliament event in Nevis on 14 March 2016 served as the President of the Assembly at the mock parliamentary to commemorate Commonwealth Day 2016. In keeping with this year’s sitting, said her participation has helped with developing her self-esteem theme of ‘An Inclusive Commonwealth’, the Youth Parliamentarians and public speaking skills. She also said she was impressed by the were engaged in a Mock Sitting where a new phase type debate was presentations made by both sides of the House given the limited time they introduced. President of the Nevis Island Assembly, Hon. Farrel Smithen, had to prepare. Delecia Burke, who served as Minister of Government, commended the members of the Nevis Branch Youth Parliamentary said her participation has provided her with a greater awareness. She Association for their performance at a mock sitting at the Nevis Island said she now has greater respect for those in authority particularly for her Assembly. He said it was important to stage mock youth parliamentary teachers and her school. She also expressed interest in participating in sittings which affords young people some exposure to parliament and future parliamentary activities.
CPA Jamaica Branch Inclusivity for In keeping with the theme of ‘An Inclusive Commonwealth’, the event held Persons with in observance of Commonwealth Day 2016 by the CPA Jamaica Branch Disabilities. In created a space in which guests could recognize the challenges faced by it she spoke persons with disabilities and the opportunities for their advancement, while about the link highlighting their achievements and fostering dialogue between persons between the with and without disabilities. Students and teachers from Hope Valley Commonwealth Experimental School, a primary school that has been established specifically core values and to create an integrated learning environment for students with disabilities, the advancement were specially invited to the event as well as students and teachers from of persons with secondary schools, Members of the Diplomatic Corps, Parliamentarians, disabilities and staff of the Houses of Parliament and members of the media. explained how Young people at the event actively participated in the formal the barriers faced by persons with disabilities could be overcome. components of the programme by saying the opening prayer and Senator Floyd Morris, former President of the Senate and Jamaica’s delivering the Commonwealth Day 2016 messages of Her Majesty first Parliamentarian who is blind, opened the Info-Rap Session by relating Queen Elizabeth II, the Prime Minister of Jamaica, Hon. Andrew his life story. He detailed the difficulties he faced as an adolescent with Holness MP and Hon. Portia Simpson Miller MP, Leader of the a disability in rural Jamaica in the last century. He explained how his Opposition. Miss Jasmin Deen from the Salvation Army School for the commitment to continuing his education put him on the path to achieving Blind delivered the Prime Minister’s Message using Job Access with his potential. Senator Morris’ presentation served as the catalyst for Speech (JAWS) software. The newly elected Speaker of the House of a lively discussion which explored the means of empowering people Representatives, Hon. Peamel Charles MP highlighted the core values with disabilities through legislation, policies and programmes. The of the Commonwealth Parliamentary Association and explained how young people present appeared to be particularly concerned with the the CPA contributed opportunities for higher education for persons with disabilities. to promoting greater The Jamaica Council for Persons with Disabilities mounted an parliamentary exhibit on opportunities for persons with disabilities. The Houses of democracy. Mrs Parliament’s display looked at the Commonwealth, the CPA and the Christine Hendricks, Jamaican Parliament. Material distributed was universally accessible Executive Director of being produced in print, Braille and digital formats. The Parliament’s the Jamaica Council exhibit was further enhanced by cultural material donated by the High for Persons with Commission for the Republic of South Africa. Guests were entertained Disabilities, made by the Salvation Army School for the Blind Choir, who did a lively an informative and performance of a medley of songs, and Ms. Antoinette Aiken, who did a uplifting presentation Jamaican Sign Language interpretation of the song ‘They Don’t Know’ on the Path to Greater by reggae artiste Chronixx.
The Parliamentarian | 2016: Issue Two | 105 Commonwealth Day 2016 CPA Photo Gallery
each school selected ten pupils to participate in the Commonwealth Day activities under the theme of ‘An Inclusive Commonwealth’. All of the seven constituencies were represented and a total of 70 pupils participated in the programme. Activities included a poetry competition for young people to prepare and present poems about Zambia’s Democracy and its involvement in the Commonwealth. The poetry competition was designed to inspire young people to acquire knowledge about Zambia’s democratisation process and to participate in those processes. Prizes were awarded for the best poetry and all participants received a pencil case, a 2016 Parliamentary diary and a certificate of participation. The President of the CPA Zambia Branch, Rt. CPA Zambia Branch Hon Justice Dr. Patrick Matibini, SC, MP and Speaker of the Parliament The CPA Zambia Branch commemorated Commonwealth Day 2016 on of Zambia, officially opened the Commonwealth Day 2016 programme at 31 March 2016 at the Parliament Buildings in Lusaka. The Branch was Parliament Buildings and those in attendance included Members of the not able to commemorate the official date itself due to other commitments Executive Committee, senior members of staff of the National Assembly on the Parliamentary calendar. The CPA Zambia Branch continues to and representatives from the Ministry of General Education, who helped promote youth participation in its legislative activities through the use to co-ordinate the event. The President of the CPA Zambia Branch gave of Commonwealth Day celebrations in order to expose young people the official opening speech to mark the beginning of the Commonwealth to the challenges that affect the country and also to provide a forum for Day 2016 celebrations. In the afternoon, the participants undertook an young people to discuss issues that affect them and the country as a educational tour of the Parliament Buildings where they were taken to the whole. To celebrate Commonwealth Day 2016, the CPA Zambia Branch main Chambers and a question and answer session about the history and invited one secondary school from each of Lusaka’s constituencies and operations of the Zambian Parliament was held.
CPA Rwanda democracy, rule of law and the freedoms of association, expression and Branch organization. Participants also engaged in a discussion led by Hon. Jean The CPA Rwanda Philbert Nsengimana, Minister of Youth and ICT on the role of young Branch held an event citizens in promoting regional integration with discussions centring on for young people how young people could be the core of development through creation on 16 March 2016 of opportunities and in the acquisition of skills in order to have a in celebration of competitive edge in the global economy. A number of guests attended Commonwealth Day the Commonwealth Day 2016 event including HE William Gelling, 2016 and recognising High Commissioner from the United Kingdom; HE John Mwangemi, this year’s theme High Commissioner from Kenya; HE G.N.Twala, High Commissioner of ‘An Inclusive from South Africa; Mr. Ali Siwa, Minister Counsellor, High Commission Commonwealth’. of Tanzania; Ms. Anna Kansiime, Deputy Chief of Mission, High The Commonwealth Commission of Uganda. Day event brought together young people from various higher learning institutions (public & private) across the country to the Parliamentary Buildings in Kigali, Rwanda. In her opening remarks, the Speaker of the Chamber of Deputies, Rt Hon. Mukabalisa Donatille reminded the young participants that as national parliaments and as individual representatives of the people, we are driven by our belief in democracy. She further added: “we understand democracy as both a set of values and as a system of institutions that puts those values into practice. We understand that there is no single model of democracy. A country’s institutions evolve from its particular history, culture and traditions. Equally, we unequivocally reaffirm that the principles of democracy are universal.” The one-day Commonwealth programme included a presentation by Ambassador Gideon Kayinamura on The Commonwealth and the Commonwealth Parliamentary Association and its role in enhancing
106 | The Parliamentarian | 2016: Issue Two CPA Falkland Speaker of the Legislative Assembly and HE the Governor of the Falkland Islands Islands answered questions from the students about the Commonwealth. Branch The school continued the theme throughout the day in their classes. The programme Later in the morning, the Falkland Islands Commonwealth Youth of events for Assembly sat in the Legislative Assembly chamber to debate the issue Commonwealth of same-sex marriage. The eight young members of the Youth Assembly Day 2016 for supported by Members of the House skilfully debated the issue. The the Falkland motion, proposed by Community School student Ezme Butler, was Islands began passed unanimously, voting in favour of amending marriage legislation with the to allow for same-sex marriage (something which is already on the ceremonial legislative drafting agenda for the Islands). In the afternoon, Her Majesty raising of the Queen Elizabeth II’s Commonwealth Day 2016 Message was broadcast Commonwealth Flag at both the Falkland Islands Community School and by local radio and TV media. In addition, Members of the Legislative also on Victory Green, a main area of open space in Stanley with local Assembly led a small group of young students around the partially media in attendance. The Commonwealth affirmation was also read to complete Commonwealth Walkway in the capital of the Falkland Islands, the infant school students who were present at the flag raising and the Stanley in partnership with the Outdoor Trust.
CPA Nigeria Branch The CPA Nigeria Branch observed the Annual Commonwealth Day celebration on 14 March 2016 at the School for Young Internally Displaced Persons located at the IDP Camp, Kuchingoro, Airport Road, Abuja. The Speaker of the House of Representatives, Rt. Hon. Yakubu Dogara was represented at the event by the Chairperson of the House of Representatives, Committee on Inter-Parliamentary Relations, Hon. Samuel Ikon. Five hundred pupils of two temporary Schools located in Area 1, Garki and Kuchingoro, Internally Displaced Persons Camps, participated in the celebration. The opening ceremony began with a welcome address, delivered by Dr. Rabi A. Audu, on behalf of the Clerk to the National Assembly, Alh. Salisu Abubakar Maikasuwa. Queen Elizabeth II’s Commonwealth Day charity as a way of reassuring the children that the society they live in is 2016 message was also delivered by Hon. Samuel Ikon, on behalf of the a responsive one and thus, keep alive their dreams of a better future. He Hon. Speaker of the House of Representatives. The 2016 Commonwealth also asked Members to assist in addressing some of the challenges facing Day celebration by the National Assembly was particularly unique as it the smooth running of the school including the provision of a permanent was celebrated for the first time, outside the premises of the National school structure; school uniforms, feeding and washroom facilities for Assembly. The Chairman of the Board of Trustees of the School, Pastor the children. The Nigeria CPA Branch recommended a follow-up visit to Emmanuel Bello thanked the National Assembly for the gesture and the school. The delegation from the National Assembly donated a large stated that the event would have a profound impact on the activities of number of items to the school including school sandals, school bags, his organization. He said that his organization is running the school on customized exercise books and food and drinks.
CPA Northern Ireland Branch McDonald. ArtsEkta, a local organisation which promotes education This year’s Commonwealth Day celebrations at the Northern Ireland and ethnic arts to promote integration and inclusion, provided a dazzling Assembly on 10 March, used the global theme of ‘An Inclusive dance display from India. Rounding off the performances was a choir from Commonwealth’ to highlight the importance of cultural inclusivity in Abercorn Primary School whose song Seek Ye First ended a colourful and Northern Ireland and the role that female leaders have to play. The event, successful evening. which takes place each year in the Parliament Buildings, is hosted by The event was greatly the Speaker of the Northern Ireland Assembly and President of the enjoyed by a receptive Commonwealth Parliamentary Association (CPA) Northern Ireland Branch. audience of Assembly This year, Commonwealth Day was part of a week of events on encouraging Members, representatives female participation and representation. Speakers at the event were women of Commonwealth from different parts of the Commonwealth, all sharing their own experiences countries, women’s groups of the importance of women in improving the lives of all citizens, both in and young people. As the Northern Ireland and around the globe. Music, dance, and culture from new Assembly mandate across the Commonwealth were also showcased with performers from begins, the CPA Northern Africa, Asian, the Caribbean, the Pacific and local schools. Ireland Branch is looking Highlights of the event were a haka by Anthony Levao and Eleazar forward to an enthusiastic Taufa, two Royal School Dungannon pupils who hail from New Zealand; a response from the performance on the drums by African native and Northern Ireland resident, Assembly members and a Wilson Magwere; and an Australian didgeridoo performance by Terry year of exciting events.
The Parliamentarian | 2016: Issue Two | 107 SEPARATION OF POWERS IN THE COMMONWEALTH: A LEGAL PERSPECTIVE SEPARATION OF POWERS IN THE COMMONWEALTH: A LEGAL PERSPECTIVE
The ‘separation of powers’ is the following three powers: Furthermore, the highest court a principle of constitutional “that of enacting laws, that of in the United Kingdom was law under which the three executing the public resolutions, a committee of the House of branches of government, the and of trying the causes of Lords, the second chamber of executive, legislature and individuals.”3 the UK Parliament.8 judiciary, are kept separate to Montesquieu warns that In other countries such as the prevent abuse of power. The “there is no liberty if the judiciary United States of America, where, concept is also known, more power be not separated from the unlike the United Kingdom, colloquially, as the system of legislative and executive. Were it there is a single written “checks and balances”, whereby joined with the legislative, the life constitutional document, a more each branch of government is and liberty of the subject would formal doctrine of separation Karim A. A. Khan, invested with certain powers and be exposed to arbitrary control; of powers is adhered to. The responsibilities which define not for the judge would be then legislature, i.e. the Senate and QC is a Barrister who only the work of each branch, the legislator. Were it joined to House of Representatives, is was called to the but circumscribe and limit the the executive power, the judge separate from the executive, i.e. English Bar in 1992 authority of other branches. might behave with violence and the President and members of and became a Queen’s Pursuant to the doctrine of oppression.”4 the Cabinet. the separation of powers, The purpose of the notion is There have, however, been Counsel in 2011. Karim each branch of government is that the several constituent parts two significant reforms in the is a member of Temple functionally independent from of the government may “by their United Kingdom in recent years Garden Chambers, the other and no individual mutual relations, be the means which have moved towards Temple, London and should possess powers that of keeping each other in their cementing a more formal span more than one branch of proper places”5 thus, operating separation of powers. specialises in all areas of government.1 as a system of ‘checks and First, the Supreme Court was public international law, As this article will show, balances’. established, which separates international criminal however, the practice is not The reality is that the the House of Lords hitherto and international human as clear cut as some theorists United Kingdom’s system of judicial function from Parliament. would contend. The necessities government does not conform Second, there has been a rights law where he of good government have strictly to a formal notion of modification of the powers of acts for States and resulted in certain lines being separation of powers. According the Lord Chancellor; he has individuals. He has blurred and certain flexibility to Walter Bagehot, there is a been removed from his triple- previously worked as a engineered into certain close union and nearly complete hatted function as head of constitutional models. This is fusion of the executive and the judiciary, member of the Senior Crown Prosecutor not to eviscerate the principle legislative powers. Indeed, he executive and, as speaker of the in London and at the of the separation of powers - famously applauded that system House of Lords and ‘Law Lord’, Law Commission of which is a central tenet of good as the “efficient secret” of the as a member of the legislature.9 England and Wales. governance - it is simply an British constitution.6 The previous position was acknowledgement that the spirit The members of the a quirk of British constitutional From 1997-2000 he was of the rule is more important executive are drawn from the history. Viewed as quaint a Legal Advisor in the than form alone. legislature. Until recent years, and harmless to some, it was Office of the Prosecutor Montesquieu, heralded there has also been a fusion anathema to others. The in the United Nations by some as the first theorist of sorts between the judicial symbolism of the change to urge a tripartite division of and the legislative branches of represented by updating the International Criminal power,2 surmised that in order government. Historically, judges constitutional position was Tribunals for the Former to safeguard political liberty, the could be elected as MPs and perhaps as important and the Yugoslavia (ICTY) and same person or the same body in certain circumstances, serve substantive changes the reforms Rwanda (ICTR). or institution should not exercise as members of the Cabinet.7 ushered in. At the very least, it
108 | The Parliamentarian | 2016: Issue Two SEPARATION OF POWERS IN THE COMMONWEALTH: A LEGAL PERSPECTIVE
can hardly be argued that the previous system headed by great Lord Chancellors of the recent past - like Lord Hailsham of Marylebone and Lord Mackay of Clashfern – and many others, resulted in significant iniquities or was devoid of certain advantages either.10 Similarly, the new Supreme Court seems “neater”, but one would hard pushed to argue that the Judicial Committee of the House of Lords had ever felt circumscribed in its deliberations or determinations because they were members of the House of Lords and could take part in debates and help inform discourse on important matters of legislation or during special committee deliberations. Be that as it may, change came in the form of the Constitutional Reform Act 2005. The Lord Chancellor’s office has been modified to the extent that he is no longer a judge and neither does he exercise any judicial functions.11 For example, the following previous functions of the Lord Chancellor have now been transferred to the Lord Chief Justice: ‘the authorisation and assignment of judges, allocation of work and the distribution of business within the same level of the court system’ and ‘the nomination of judges to deal with specific areas of business and to fill judicial leadership posts such as the Presiding Judges.’12 The 2005 Act ultimately imposes a duty on Ministers of the Crown and the Lord Chancellor to uphold the independence of the judiciary.13 The 2005 Act also created for so long as they hold full time Steels v Sirs, “it cannot be too Above: The Royal Courts of the Supreme Court of the United judicial office.15 Thus, Justices strongly emphasised that the Justice, London, United Kingdom. Kingdom and made provisions of the Supreme Court are not British constitution, though for the transfer of the appellate permitted to sit in the House of largely unwritten, is firmly based Commonwealth countries jurisdiction of the House of Lords. upon the separation of powers; below, the separation of powers Lords to the Supreme Court The United Kingdom system Parliament makes the laws, the is often not ‘strict’ in nature. and the devolution jurisdiction has nonetheless historically judiciary interpret them.”16 There remains a divergence of of the Judicial Committee of the placed value upon the core Despite the recent reforms approaches to how the doctrine Privy Council.14 The 2005 Act motivation behind the separation in the UK and, as is evident is applied in practice. Often, also restricted the right of the of powers doctrine. As stated from the select case law various overlaps and interactions House of Lords to sit and vote by Lord Diplock in Duport explored in relation to certain between the judicial and
The Parliamentarian | 2016: Issue Two | 109 SEPARATION OF POWERS IN THE COMMONWEALTH: A LEGAL PERSPECTIVE
legislative or executive branches African jurisprudence to hold by a maximum of one year in (No 2)24 concerned a petition of government remain features that the nature of a checks and ‘exceptional circumstances’. If by Treatment Action Campaign of various national constitutional balances system mandated Parliament does not act within that, contrary to a government arrangements. that there was an intrusion such time limits, subsection 5 policy, an anti-retro viral drug of one branch of government permits ‘any person’ to petition ‘nevirapine’ be made available Case studies: Seychelles into the domain of another in the High Court, and the Court at all state hospitals and clinics The division of powers between order to prevent the branches has the power under subsection under the right to ‘health care’ the legislature and judiciary of government from usurping 7 to ‘advise the President in article 27 and 28 of the has been explored in the power from one another. It is to dissolve Parliament’ and Constitution. The South African Seychelles in relation to matters thus a ‘partial’ rather than a consequently, ‘the President shall Constitutional Court held that of mandatory sentencing. The complete separation of powers.19 dissolve parliament.’ ‘when it is appropriate to do so, Supreme Court of the Seychelles The court cited cases from The Kenyan Parliament has courts may – and if need be held that the separation of Mauritius, the United Kingdom invoked Article 261(2) and (3) must – use their wide powers to powers is not strict in nature, and and Ireland to hold that the on a number of occasions and in make orders that affect policy the Attorney General, a senior separation of powers under relation to a variety of different as well as legislation’.25 These government official, did not the Seychelles constitution just legislative issues.20 Recently, powers included ‘mandatory infringe this concept by imposing like other liberal democratic on 18 August 2015, Parliament and structural interdicts.’ The mandatory minimum sentences societies is not strict, rather, “it invoked Article 261(2) for a court stressed that policy should for various crimes. embodies a system of checks period of 12 months from 27 be flexible and “court orders In Ponoo v Attorney and balances designed to prevent August 2015 for a number of concerning policy choices made General,17 Ponoo argued that an overconcentration of power legislative issues.21 by the executive should therefore certain mandatory sentencing in any one arm of government; The Kenyan courts have not be formulated in ways that rules breached the principle of it anticipates the necessary or not been reticent in relation preclude the executive from independence of the judiciary unavoidable intrusion of one to Chapter 18. The Kenyan making…legitimate choices.” The protected under Articles 1 and branch on the terrain of another; High Court has held that court considered the budgetary 119(2) of the Constitution. The this engenders interaction, but Article 261(5) and (6) implications of making the drug Supreme Court held that the does so in a way which avoids permit Parliament, as a State available on a wider basis and separation of powers “has never diffusing power so completely organ, to be sued in its own held that “with the additional and maybe will never be absolute, that government is unable to take name.22 Recently, the High funds that are now to be as practical considerations timely measures in the public Court held that the Attorney available, it should be possible to dictate that there must exist interest.” The court endorsed General (AG) in consultation address any problems of financial certain interdependence and jurisprudence from Mauritius with the Commission on incapacity that might previously interactions amongst the three which stated that mandatory the Implementation of the have existed.” Thus, the court arms of government for the sentencing is a ‘twilight zone’ Constitution (CIC) were under held that the government policy checks and balances envisaged within which the sovereignty of a constitutional duty to prepare on the provision of the drug in by this same principle to function.” both the legislature and judiciary legislation to effect the gender question was inconsistent with According to the Supreme Court, to act within their respective equity rule and ordered that they the Constitution. The Court made most political systems applied domain must be acknowledged must do so within 40 days of the a detailed order on the steps a ‘diluted form’ of this doctrine and respected. judgment.23 The Court further the government was to take rather than a strict interpretation. held that should Parliament fail henceforth in order to reverse The Seychelles Constitution Case study: Kenya to act, a citizen of Kenya could the government policy. thus did not mandate a system When it comes to Kenya, of invoke the provisions of Article of absolute non-interference by particular interest is the apparent 261(5)-(7). Conclusion the legislature in the affairs of power of the Kenyan Courts As is evident from the few the judiciary. Article 119(2) of to bring about a dissolution Case study: South Africa cases referenced above, the the Constitution provided for the of the Kenyan parliament in In South Africa, the Courts separation of powers is often not independence of the judiciary cases of a failure by parliament have shown themselves willing applied rigidly in Commonwealth with the caveat that the judiciary to enact certain specified to review government policy, countries. Rather, courts in was subject to the Constitution legislation. Section 261 of in particular, with regards various Commonwealth countries and other laws. The judiciary were chapter 18 of the 2010 Kenyan to budgetary matters. The often permit interactions thus subject to legally enacted Constitution provides that the Constitution of South Africa is between the different branches laws except where the laws Kenyan Parliament must enact particularly innovative, in that it of government in order to in question were themselves the legislation listed in the explicitly enumerates judicially ensure a full functioning of the unconstitutional and void. schedule thereto within certain enforceable socio-economic checks and balances system. Simeon v Attorney General18 time periods specified therein. rights. Indeed, ‘intrusions’ between the was another case dealing with Subsection 2 and 3 permit the The case of Minister of branches often serve to buttress mandatory minimum sentences. National Assembly by two-thirds Health and Others v Treatment accountability among the various The court relied upon the South majority to delay enactment Action Campaign and Others pillars of government and uphold
110 | The Parliamentarian | 2016: Issue Two SEPARATION OF POWERS IN THE COMMONWEALTH: A LEGAL PERSPECTIVE constitutionally protected rights, 7 , accessed on 4 May 2016. page 1 http://www.legislation. “Rather, courts as demonstrated by a growing 8 https://www.judiciary.gov.uk/ gov.uk/ukpga/2005/4/pdfs/ trend of heightened judicial about-the-judiciary/the-judiciary-the- ukpgaen_20050004_en.pdf in various scrutiny of legislative and government-and-the-constitution/ 12 Constitutional Reform Act Commonwealth executive actions or inactions. jud-acc-ind/justice-sys-and- 2005, Explanatory Notes, para 37. As noted by James Madison, constitution/ accessed on 26 April 13 Constitutional Reform Act countries an effective notion of the 2016. 2005, Explanatory Notes, para 401. often permit separation of powers does not http://www.parliament.uk/ 14 Constitutional Reform Act necessitate that the branches business/lords/lords-history/history- 2005, Explanatory Notes, para 58. interactions of government “ought to have of-the-lords/ accessed on 26 April 15 Constitutional Reform Act between the no partial agency in, or no 2016. 2005, Explanatory Notes, para 62. control over, the acts of each 9 Constitutional Reform 16 Duport Steels Ltd v Sirs [1980] different branches other.” Rather, the fundamental Act 2005, Explanatory Notes, 1 WLR 142. of government in principles of a free constitution http://www.legislation.gov. 17 (2010) SLR 361, 16 are subverted “where the whole uk/ukpga/2005/4/pdfs/ November 2010. order to ensure power of one department is ukpgaen_20050004_en.pdf 18 (2010) SLR 280, 28 a full functioning exercised by the same hands http://www.parliament.uk/ September 2010. which possess the whole power business/lords/lords-history/history- 19 Re Certification of the of the checks of another department.”26 of-the-lords/ accessed on 26 April Constitution of the Republic of South and balances From this vantage point, 2016. Africa (1996) ZACC 26, at para 109. the system of checks and 10 Lord Woolf, as Master of 20 For instance the National system. Indeed, balances is preserved where the Rolls (and shortly before his Land Commission Bill 2011 and the ‘intrusions’ the branches of government are appointment as Lord Chief Justice) Land Bill 2012, Commission for the ultimately obedient to a higher was categorical in the advantages Implementation of the Constitution, between the constitutional law. The spirit that he perceived as flowing from the Quarterly Report for the period branches often underlying this latter objective prevailing position: “As a member of January to March 2012. Both acts is, perhaps, more elusive than the cabinet, he (the Lord Chancellor) were subsequently enacted into law serve to buttress the formalities of structure can act as an advocate on behalf of in 2012. On 19 August 2014, the accountability chosen under various national the courts and the justice system. Kenyan Parliament invoked Article constitutional models. He can explain to his colleagues in 261(3)(b) in relation to a variety of among the the cabinet the proper significance legislative issues for a period of 9 various pillars References of a decision which they regard as months. 1 Richard Benwell and Oonagh being distasteful in consequence of 21 Eleventh Parliament, Third of government Gay, ‘The Separation of Powers’, an application for judicial review. He Session, No. 83, The National and uphold House of Commons Library Standard can, as a member of the Government, Assembly Votes and Proceedings, Note, SN/PC/06053, accessed ensure that the courts are properly 18 August 2015. constitutionally 4 May 2015. www.parliament.uk/ resourced. On the other hand, on 22 Commission for the protected briefing-papers/sn06053.pdf behalf of the Government he can Implementation of the Constitution 2 John F Manning, Separation of explain to the judiciary the realities v Parliament of Kenya & 5 others rights, as Powers as Ordinary Interpretation, of the political situation and the [2013] eKLR, Petition No. 454 of demonstrated by Harvard Law Review [Vol. 124:1939, constraints on the resources which 2012, 7 February 2013, para 40 2011], at 1995. they must inevitably accept. As long and 41. a growing trend 3 http://press-pubs.uchicago. as the Lord Chancellor is punctilious 23 Centre for Rights Education of heightened edu/founders/documents/ in keeping his separate roles distinct, & Awareness (CREAW) v Attorney v1ch17s9.html the separation of powers is not General & another [2015] eKLR, judicial scrutiny 4 http://press-pubs.uchicago. undermined and the justice system Petition No. 182 of 2015, 26 June of legislative and edu/founders/documents/ benefits immeasurably. The justice 2015, at para 113(c). v1ch17s9.html system is better served by having the 24 [2002] ZACC 15; 2002 (5) executive actions 5 Alexander Hamilton James head of the judiciary at the centre SA 721. or inactions.” Madison, ‘The Structure of the of government than it would be by 25 Ibid, para 113. Government Must Furnish the having its interests represented by 26 J Madison, The Particular Proper Checks and Balances a minister of justice who would lack Structure of the New Government Between the Different Departments’, these other roles. (H. Woolf, “Judicial and the Distribution of Power Among Federalist No. 51, 8 February 1988. Review – the tensions between the Its Different Parts, The Federalist http://www.foundingfathers.info/ executive an the judiciary” (1998) Papers: No. 47, 1 February 1788. federalistpapers/fed51.htm 114 Law Quarterly Review 579) 6 Walter Bagehot, The English 11 Constitutional Reform The views expressed in this article are Constitution, 2nd Ed. 1873, at 48. Act 2005, Explanatory Notes, the personal views of the author.
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DOCTRINE OF THE SEPARATION OF POWERS: RELATIONSHIP BETWEEN PARLIAMENT AND THE JUDICIARY IN INDIA
I. Introduction appoint its own office bearers representatives and answerable In contemporary times the idea save as stated in the nation’s to the legislature. Hence, of the democratic nation state Constitution which governs creating a holistic and cohesive has evolved into one based upon them and the laws thereto. system of checks and balances three main institutions - the for a functioning, effective and legislative or law-making arm, II. Separation of Powers – impartial democracy that has the Executive or Government Origin and Meaning stood the tests of time for close and the Judiciary; with a fourth India is not only the largest to 70 years now. being the media and press. working parliamentary This is enshrined in the These institutions interact democracy in the world but also Preamble which in turn in the processes of national has the distinction of having the ensures the achievement of Shri P.P. vision setting, direction, longest written Constitution that the objectives of justice, liberty Chaudhary MP implementation and growth. not only lays down the structure and equality to the citizens of While their interrelatedness and functions of various organs India and promotes fraternity, of the Lok Sabha, India is seen as different in each but clearly demarcates the unity and integrity of the nation. Parliament, is Senior nation, as a matter of practice role and functions of every The Preamble also highlights Advocate of Supreme or depending upon the level organ of the state thereby the kind of polity and society as and High Court of of development and depth of establishing the norms for envisaged by the Constitutional democracy, the lack of a vibrant their inter-relationship and framers of India. Profound India. He was elected arm of any of them makes smooth functioning within the analysis of parliamentary as an MP from the evident the failure of the nation democratic edifice. democracy underpins the fact Pali Constituency of as a whole in serving its people. While the Constitution of that the powers of the different Rajasthan. Currently, In a democratic set up, the India does not explicitly denote arms of democracy must be legitimacy of every constitutional the theory of separation of balanced in a way that none he is the Chair of the institution, be it the Legislature, powers in its text, there has should get credence over the Joint Parliamentary the Executive or the Judiciary, been created a manner wherein other. On the same principle, Committee of Offices of must be traced to the will and the theory in itself holds without none of the organs can derelict Profit and also Chair of consent of the people, directly or requiring its annotation. The any of the essential functions indirectly. This holds for all tiers debates in the Constituent endowed upon and to them Fellowship Committee, of the nation, be it at the Federal Assembly that deliberated the under the Constitution. The Lok Sabha. He is a Level, the State Level or at the post-independence setup for difficulties resulting from the Member of the CPA level of the local, urban and India and the framers of the divided powers are great but the Executive Committee other authorities. The bearers Constitution hence ensured that consequences of concentrating to public offices in all other the spirit of separation of powers power are disastrous as singular from the CPA India institutions in the country are was inherent in India, whereas power corrupts and leads to Region. Shri Chaudhary, appointed either by an executive the theory need not be written. authoritarianism. Therefore, it is also a Member of authority that is accountable to This is seen at the Federal seems of paramount importance Standing Committee the people or by a mechanism level and mirrored at the State that an effective system on the involving the Executive and levels through an independent basis of doctrine of ‘Separation on Personnel, Public Legislature by law. No institution judiciary, a bicameral or of Powers’ should continue Grievances, Law and in a democracy is entitled under unicameral legislature consisting to operate so as to meet the Justice and six other the constitutional provisions of the people’s direct and/or needs of democratic society in committees. nor should be allowed to indirect representatives and an the best possible manner, and abrogate to itself any power or executive formed out of such at the same time evolving with
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the times as the nation and its the balance between power there are three branches of Above: India’s national democratic construct changes. and responsibility and ruling the state machinery, namely Parliament building. Hence achieving the ideals out the possibility of abuse. legislative, executive and judicial of Aristotle as elucidated in his Montesquieu envisioned and that each branch must be legislature. Similarly, law making book ‘Politics’ and as furthered this ‘valour’ in the scheme of limited to its own sphere strictly is out of the purview of the by the writings of Baron de separation of powers amongst and should not be allowed to judiciary. If the judiciary assumes Montesquieu, that, “There the Legislature, Executive trespass upon the sphere allotted legislative or executive functions, are three elements in each and Judiciary when he first to any other branch. As neatly such an assumption would be constitution in respect of which enshrined the doctrine in his stated in the doctrine found in the void, not on any theoretical basis every serious lawgiver must look book De L‘ Espirit des Lois (The Massachusetts Declaration of but on the general principle that for what is advantageous to it; Spirit of Laws). He emphasized Rights, 1780: “In the Government a court cannot exercise powers if these are well arranged, the that when the power of these of this Commonwealth, the not conferred on it by law. constitution is bound to be well three organs is integrated in one legislative department shall never arranged, and the differences single body, it would amount to exercise the executive and judicial III. Three Organs of the State in constitution are bound to disorder and chaos and seize all powers, or either of them. The in India correspond to the differences liberties that may be exercised Executive shall never exercise the Adopting the federal structure between each of these three by them in their own right. legislative and judicial powers, with strong centralizing elements.” (Aristotle). Parliamentary democracy or either of them. The Judiciary tendency, the Constitution of This is further elaborated underpins the fact that the powers shall never exercise the legislative India distinctly provides the upon by Montesquieu wherein of the three pillars of a democracy and executive powers, or either broad framework of the three he states that, the ‘valour’ must be balanced in a way of them. To the end, it may be a organs of the state, namely, resides not in concentrating but that none should get credence Government of Laws and not of the legislature, the executive in renouncing and abandoning over the other and each should man.” and the judiciary both at the the absolute dominance act within the pre-determined Thus, drawing from the union level as well as the state and creating an unhindered framework under the Constitution. doctrine, it is rational to infer that level. Thus, the main task of the and balanced flow of power Thus, while examining the determination of disputes and legislature is to make laws, that bestowed by the supreme doctrine of Separation of Powers adjudication of questions of fact of the executive is to implement authority. It is an act of striking it is important to deduce that or law is beyond the sphere of the laws so made and lastly,
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the judiciary as the watchdog Gopalan v. State of Madras, it The judgment enunciated by the Executive and through of the fundamental rights of the was held that the constitution that: 1) The supremacy of the Constitutional amendments by people, is vested with the task does not recognize the absolute constitution; 2) A republican and the Legislature to tilt it in their of interpretation of the laws that supremacy of the judiciary over democratic form of government; favor. Hence, from the primacy has been extended to the role of the legislative authority in all 3) The secular character of the of the Parliament, the pendulum safeguarding the constitution as respects. Further, in the case Constitution; 4) Maintenance swung towards the judiciary. well. The role of the judiciary also of ‘Shankari Prasad v. Union of separation of powers; 5) The court reasserted the limits extends to seeing as to whether of India’, the Supreme Court The federal character of the of authority of the Parliament as the Parliament has legislative set aside the appeal against Constitution; 6) The mandate to formulated in the Keshwanand competence and whether due the First Amendment that build a welfare state contained Bharati and Minerva Mills cases procedure as laid down by the amended Fundamental Rights in the Directive Principles of and it upheld the limitations Constitution has been followed of the Citizens and abolished State Policy of the Constitution; on the Parliament’s power to while making the law. certain landholdings such as the 7) Maintenance of unity and amend the constitution subject Zamindar’s and held that there integrity of India; and that 8) The to the Basic Structure Doctrine. IV. Relationship between was a clear distinction between sovereignty of the country, were Moreover in Waman Rao’s case, Parliament and the Judiciary ordinary law made in the beyond parliamentary amendment the Court declared that any in India exercise of legislative power and through the constitutional amendment to the Constitution There are two contentious constitutional law made in the mechanism as they constituted after Keshavanand Bharati, which positions on this relation: the exercise of constituent power, as the basic structure and the included laws placed in the Ninth first upholds the primacy of the specified in Article 368 (Power essence of the Indian Constitution schedule (making them beyond Judiciary and the other, that of Parliament to amend any and the nation as envisioned by judicial scrutiny), would have to be of Parliament, charting a long provision of the Constitution and the framers of the Constitution. tested by reference to the doctrine drawn debate on the issue procedure therefor). In Golak This principle was used even of Basic Structure necessarily. of Separation of Powers and Nath’s case, the issues that had recently to hold unconstitutional Thereafter, in ‘I.R. Coelho v. State supremacy between the two. been smoldering in this relation the 100th amendment to the of Tamil Nadu’, the court reiterated The period between 1950 came to be heard for the first constitution that would have its stand and at present, the trend (the year that the Constitution time and the court held that changed the manner of judicial suggests the re-articulation of of India came into effect) Article 368 could not override appointments through the the relationship between the two and 1973 marks the period the specific provisions of Article ‘National Judicial Appointments with all three arms attempting to of the Parliament being the 13(2) and that the Parliament Commission’ in the nation rework and re-establish a working apex institution in India. In the could not take away or abridge by using it to ensure that the relationship between the judiciary Supreme Court case of A.K. the fundamental rights principle of separation of powers on one hand and the legislative mentioned therein through an between parliament, executive and executive branches on the “Thus, the Indian ordinary law; hence necessitating and the judiciary was maintained, other, through the instruments of a constitutional amendment to safeguarding against a loaded judgments, laws, constitutional Constitution while alter or void the fundamental judiciary appointed by the amendments and executive acts not recognizing rights that the citizenry of India executive as was attempted and policies endowed upon each are endowed with save under a during the period of emergency of them respectively. the doctrine of state of emergency provisions. in India in the 1970s. Similarly, in separation of Eventually the Keshwanand ‘Indira Gandhi v. Raj Narain’, the V. Conclusion Bharati case serves as a Supreme Court set aside the 39th Thus, the Indian Constitution powers in its watershed in the relationship amendment (placed the election while not recognizing the absolute rigidity but between the Parliament and the of the President, the Vice doctrine of separation of Judiciary wherein the Supreme President, the Prime Minister powers in its absolute rigidity in its functions in the Court upheld the power of and the Speaker of the Lok but in its functions in the different branches the Parliament to amend the Sabha beyond the scrutiny of different branches of India’s Constitution while announcing Indian courts) to the Constitution democracy has demarcated of India’s democracy the doctrine of ‘Basic Structure of India as it violated the basic and differentiated the organs of has demarcated of the Constitution’ and saving structure of the constitution, as state in the spirit of separation of its power to review those all citizens even those elected to powers, essential in a democracy. and differentiated amendments at the same time. govern and head government are It cannot be construed that the organs of The Court adjudicated that while equal before the law. the Parliament and Judiciary Parliament has ‘wide’ legislative Thus, it is to be noted that in India have always been in state in the spirit and Constitutional powers, it did the period from 1977-2007 is confrontation as the Parliament of separation of not have the power to destroy or the period of judicial activism enjoys the authority to amend the emasculate the basic elements, triggered in part by attempts to Constitution and the Judiciary powers, essential in structure or fundamental weaken the judiciary during the has the authority to measure a democracy.” features of the constitution. period of emergency prior to 1977 the amendments against the
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Right: The High Court in Mumbai is one of oldest High Courts of India.
Constitutional scheme and as the conscience keeper of the framers of the Constitution. Therefore, India’s three democratic arms and specifically the Parliament and Judiciary possess an excellent working relationship which has in turn, worked for the institutionalization of social, economic as well as political democracy and parity. While the Judiciary advanced the doctrine of basic structure of the constitution, it also rallied to protect the amending powers of the Parliament. Thus, the current position with respect to the relationship between the Parliament and the Judiciary in India is crystal clear that the Parliament has the power to amend “any provision” of the Constitution but while doing so the basic structure of the Constitution should remain unaffected. Hence, in India the judiciary assists the Parliament to pursue the social, economic and political goals as surmised in the Preamble of the Constitution thereby making it vibrant and ever responsive to the needs of the individuals and society at large. A living and breathing text that fosters the shouldering of different responsibilities as well as allows for the separation of powers, allowing for democratic values to continuously evolve. It is this uniqueness that allows for the Legislative, Executive and Judicial arms of the nation to work independently, in coordination and to constantly develop and evolve their relationships. Hence being seen as a role model for Constitutional framers and writers the world over, setting high benchmarks of quality, equality, responsiveness, foresightedness and flexibility to follow and incorporate in their existing texts or in new ones that follow.
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The idea that the major in a technical sense “What is a Mr McGonnell had wanted to institutions of the state should constitution for?” convert a flower packing shed be functionally independent and If a time-travelling delegation into residential accommodation that no individual should have from almost any of the Thirteen but was refused permission powers that span these offices, Colonies were to attend a to do so under Guernsey’s although conceived in the modern Commonwealth development plans. In 1995 Mr interests of good governance Parliamentary Conference McGonnell, who had taken up and constitutional tranquillity then it would be as sub- residence in the shed, appealed has been a potent force for sovereign attendees of the to the Guernsey courts where tension within parliaments Small Branches’ part of the his appeal was dismissed. is and legislatures ever since conference. It is often a feature The presiding judge was the Simon Ross Montesquieu first crystallised of Commonwealth and pre- Bailiff of Guernsey who five Deputy Greffier in its principles in De L’Espirit des Commonwealth constitutional years previously as Deputy Guernsey. Simon Ross Loix. development that important Bailiff and Deputy Presiding studied Art History at As far back as the American moments begin at the fringes Officer, had presided over the London University. He War of Independence, one of and work their way towards the Island’s parliament when the the chief complaints of the centre. development plans had been then spent three years American revolutionaries was The Channel Islands, debated. In Guernsey, as in in Peshawar, Pakistan that the United Kingdom’s in particular the Crown Jersey, the Chief Justice, called working as a teacher Act of Settlement of 1701 did Dependency of Guernsey, was the Bailiff, is also the Presiding before going on to St. not extend its attempts at the sixteen years ago at the heart Officer of the Assembly. separation of powers to the of one of these moments which Mr McGonnell took his case Stephen’s House, Oxford colonies and that while in the had important consequences to Strasbourg. On 8 February to train for the Anglican United Kingdom a judge held for the development of the 2000, the European Court of priesthood. He joined office under the Crown during separation of powers in the Human Rights gave judgment the States of Guernsey good behaviour and could only United Kingdom and beyond. and found there to be a breach be removed by joint address to The Channel Islands have of Article 6 of the European Assembly in 2000, was the Lords and Commons, judges a history of legislating for Convention on Human Rights, called to the Bar by the in the thirteen colonies were themselves and developing the article that protects the Middle Temple in 2007 appointed for limited terms by their own customary law that right to a fair trial. Bias was not and became the Clerk Colonial Governors acting on stretches back to the early alleged but the Court felt that behalf of the Crown and could middle ages. Until 2000, the Mr McGonnell had been given Assistant of the States be dismissed if they made Islands would, in legal terms, legitimate grounds for fearing in 2011. He has been decisions of which the Governor have been best known beyond that the Chief Justice may have closely associated with disapproved. their shores for their connection been influenced by his earlier the CPA for sixteen years The secession of the thirteen to the pre-revolutionary participation as Presiding Officer Colonies had a profound effect customary laws of Normandy in the Assembly’s adoption of and in February 2016 on how people since then have and their development of Trust the planning provisions. The went to Islamabad to thought about constitutional Law. Since that date Guernsey Court did not point to anything help deliver the CPA arrangements not least because is, in legal and parliamentary wrong with the dual roles vested Parliamentary Staff the American colonists, in terms, likely to be best known for in the single office of Bailiff but attempting to explain the the European Court of Human did require that when sitting in Development Workshop. decision to rebel against British Rights Ruling in McGonnell v the a judicial capacity, the Bailiff rule, were among the first to ask United Kingdom.1 should remind litigants where
116 | The Parliamentarian | 2016: Issue Two SEPARATION OF POWERS IN SMALL JURISDICTIONS AND BEYOND: A VIEW FROM GUERNSEY appropriate of the dual role. It would be too much to say that the case of McGonnell from the small jurisdiction of Guernsey was exclusively responsible for bringing to an end the 1400 year old great office of state that was the position of the United Kingdom’s Lord Chancellor but it was certainly powerfully influential and Lord Irvine of Lairg’s reply to a parliamentary question shortly after the decision that “The position of the Lord Chancellor is unaffected by this case”2 was somewhat wide of the mark. Lord Irvine’s subsequent clarification in the light of McGonnell that “the Lord Chancellor would never sit (as a judge) in any case concerning legislation in the passage of which he has been concerned”3 was more prophetic. It is certainly the case that McGonnell acted as one of the the Lord Chief Justice took on both Guernsey and Jersey, for Above: The Royal Court in spurs to the Blair government’s the role as Head of the Judiciary the time being at least, the role Guernsey has existed on its reforms of the UK constitution and the House of Lords elected of the Bailiff goes on much as present site in St Peter Port in the early 2000s. Until 2005 its own Speaker. before. The McGonnell ruling since the early 1800s and today the office of Lord Chancellor In 2009, as a development itself said that the European caters for a very wide range rose far above the principles of arising naturally out of the Convention did not require of activity, including criminal separation of powers. As head post McGonnell landscape the member states to comply “with and civil court proceedings, of the judiciary in England and legal function of the House any theoretical constitutional meetings of Guernsey’s Wales, Speaker of the House of Lords was separated from concepts.” parliament, civic receptions and of Lords, Cabinet Minister and the legislative function and the The Chief Justice and his ceremonial occasions, marriage Law Lord, the Lord Chancellor’s Supreme Court was created but Deputy in both Islands continue ceremonies, archiving and responsibilities branched into not before Lord McCluskey QC to preside in the assembly and research and the registration of functions of the executive, had commented “a good deal of to sit in court whilst at the same births, deaths, marriages and judiciary and parliament. nonsense is spoken about the time taking care not to sit in property conveyances. After 2005 and the coming separation of powers…for a 135 cases in respect of which they onto the statute books of the years or so serving judges have had a role during the legislative Constitutional Reform Act 2005, always played an important part process. (At the time of writing parliament, the executive and in the deliberations of this House. there is a proposition however the judiciary in democratic They seldom vote.”4 pending before the Jersey societies and set out in some “Parliamentarians It is one of the interesting States seeking the replacement detail the consensus arrived at from small features of the McGonnell of the Bailiff with a Speaker by representatives of the three case that whilst the Channel elected by the Assembly.) branches of government in the jurisdictions will Islands can have been said The Latimer House Commonwealth on how each of be familiar with to be instrumental through Principles, which the CPA their national institutions should it in reshaping the British played such an important part interrelate when exercising their the flexibility and Constitution, the Islands in developing, are a yardstick institutional responsibilities. degree of ‘multi- themselves were less affected. against which assemblies They are there to enable Parliamentarians from small and legislatures can measure legislatures to ask themselves tasking’ that are jurisdictions will be familiar with themselves. These principles the questions; how well do required of officials the flexibility and degree of launched in 2004 are an we observe the separation of ‘multi-tasking’ that are required attempt to establish basic rules powers? Does our executive in a mini state.” of officials in a mini state. In for the interaction between respect the freedom of the
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found in the Channel partnership and restraint on the Islands, the executive, part of the parties. judiciary and legislature Does the Separation of are closely entwined, Powers work in practice and are so closely entwined the Latimer House Principles still that in Guernsey the relevant today? The separation of legislature is also powers is an evolving, interlinked the executive. In the constitutional issue. Decisions United Kingdom in one small jurisdiction on ninety five salaried the separation of powers ministers sit in the can affect the entrenched House of Commons. constitutional arrangements It might appear at first of another much larger one as glance that both these McGonnell demonstrates. In fact, systems are a long way it demonstrates the assemblies from the separation of the Commonwealth, in spite of powers envisioned of their diversity and different by the principles of origins are constituent parts of Latimer House but in a single living organism. Used both Guernsey and properly the Latimer House the UK the presence Principles can operate as a of the executive frame work accommodating within the legislature that diversity, allowing for the can also allow for flourishing of the separation rigorous scrutiny of that of powers and at the same executive. Integration time enabling assemblies, of the executive and both small sub sovereign ones legislature in this way and large national and federal can provide stability ones, to develop in sometimes and efficiency in subtle and complex ways, the the operation of practical arrangements needed government, balancing to keep judiciary, legislature and abstract concerns executive distinct but also fair, about an over mighty efficient and accountable. executive with a pragmatic desire to References make the constitution 1 McGonnell -v- The United work. Kingdom; ECHR 8 Feb 2000. “The separation Above: The Royal Court in Similarly the advent of the 2 Lords Hansard; Written of powers is Guernsey. Human Rights Act, which Answers 23rd February 2000: has changed the relationship Column WA31. an evolving, between the judiciary and 3 HL Deb vol 610, col 33WA, 23 interlinked the legislature, has brought February 2000. legislature and the judiciary to about a situation which at first 4 HL Deb col 1030 8 March 2004 constitutional issue. discharge their responsibilities? glance does not sit comfortably 5 Commonwealth(Latimer Decisions in one The great strength of the Latimer with a pure interpretation of House) Principles; Commonwealth House Principles, however, lies the separation of powers. Secretariat; Foreward, Kamalesh small jurisdiction on in their ability to go beyond the Since the advent of the Act, Sharma, July 2008. the separation of pure doctrine of the separation judges can declare a statute of powers and in the words of the to be incompatible with the powers can affect then Commonwealth Secretary- Convention on Human Rights the entrenched General Kamalesh Sharma to and the Government is required “recognise the complex and to rectify the situation. However constitutional interlocking network of relations the system works and it works arrangements between the legislature, the in much the same way as the executive and the judiciary.”5 system of judges in the Channel of another much In ancient customary law, Islands both sitting and presiding larger one.” jurisdictions such as those does, by the exercise of
118 | The Parliamentarian | 2016: Issue Two THE SEPARATION OF POWERS IN THE FALKLAND ISLANDS
THE PRACTICALITIES AND CHALLENGES OF SEPARATION OF POWERS BETWEEN PARLIAMENT AND THE JUDICIARY IN THE FALKLAND ISLANDS
Nick Arculus is The doctrine of the separation and dance masters. Within Legislative Assembly may be the Crown Counsel for of powers is observed in the the public service the range of blocked by the executive, by the the Government of the Falkland Islands along the lines officers’ responsibilities rests British Government or by the of the Westminster model but upon the broad shoulders of courts of either jurisdiction if Falkland Islands and with a number of augmentations, the pioneer. In this environment deemed to be contrary to good provides legal advice exceptions and with additional of function and role-sharing governance or ‘repugnant’ to any and counsel to all safeguards resulting from one might expect to find Westminster statute. Similarly, departments. the constitutional settlement constitutional separation of the Governor may propose inherent to British Overseas powers compromised through legislation and enact it with Territory status. resource shortage. In fact, and or without the approval of the Clare Faulds is the The doctrine is a especially given this context, Legislative Assembly (subject to sole resident Judge in constitutive feature of most the strength of the doctrine is reporting obligations).4 the Falkland Islands and democracies and provides, arguably more in evidence in the In practice the Legislative along Montesquieu’s model, that Falkland Islands than in many Assembly make the laws of the as Senior Magistrate, Mrs government is divided into three larger countries. Overseas Territory subject to the Faulds also acts as Acting branches: the executive, the following checks: Judge in the Supreme legislature and the judicature. The Legislature • the Governor has reserved Court and holds office Each, notionally separate from An authority, the Legislative power to assent or refrain the other, must carry out its Assembly, is established under from assenting to the as Senior Magistrate for functions free from interference. the Constitution. The power laws - in addition to his South Georgia and South In the Falkland Islands to make the laws, commonly power under section 55 Sandwich Islands and Constitution1 resides the detail conferred on the legislature in to propose that any Bill British Antartic Territory. that supports the doctrine and other jurisdictions is, however, be deemed to have been emulates the UK’s settlement. conferred on the Governor.2 passed by the Legislative The main offices in which the Further powers are reserved to Assembly; and, Idah Lorato distinct authorities are vested the Westminster Parliament to • the Secretary of State is and the powers which may be make law for the peace, order having the power of Motsamai exercised (and not exercised) by and good government of the disallowance. Legislative Drafter in the office holders are prescribed Falkland Islands on behalf of the Attorney General’s by the Constitution. Her Majesty The Queen. There To accept the strength of Chambers of the are practical limitations on the criticism of the efficacy of Falkland Islands having Context the power of the Legislative these legacy colonial powers In general one must bear in mind Assembly and in this sense is to mistake the venom of the previously worked for the societal context in which role the assembly is not supreme. shaft for the vigour of the bow the Attorney General’s fusion is more prevalent in micro Parliamentary supremacy for these powers have been Chambers of the polities than larger systems. is displaced by 7,000 miles. deliberately retained by the Botswana Government. Hairdresser may be travel The Westminster Parliament UK and have been exercised agents; legal secretaries may may, but seldom does, impose in other Overseas Territories be customs officers; planning legislation directly to the in recent memory. From a officers as soldiers; housing Falkland Islands.3 governance perspective, far from officers, auxiliary policemen Legislation passed by the disturbing traditional separation
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more than compensate for a lack of a stricter practical separation of the executive and legislature in the Falkland Islands. Thus, the legislature and executive are legally and constitutionally separate but in convention and practice are fused.
The Independent Judicial Arm and the Transnational Approach The defining characteristic of the Constitution, like that of the British model, is the rule of law. The separation of powers doctrine requires an accountable relationship between the judiciary and the legislature. Relations between these limbs should be governed by respect for the legislature’s primacy in law- Above: Gilbert House is the Council with whom the Governor acceptance of the role to be making and for the judiciary’s building in Stanley, Falkland is obliged to consult. The played by Executive Council responsibility for the interpretation Islands, where the Legislative Executive Council under the in the exercise of executive and application of legislature- Assembly of the Falkland Islands Constitution is an advisory power upsets the operation of made laws. Both limbs should fulfil meets. Images copyright: body to the Governor whose the doctrine of the separation their respective but critical roles in Falkland Islands Government. executive authority is limited de of powers and in practice leads the promotion of the rule of law in jure only by the Westminster to a fusion of the legislature a complementary and constructive Parliament. The Governor may, (from whom Executive Council manner. if he or she chooses, dispense membership is comprised) with Micro-polities sometimes of power theory, they may be with or ignore the advice of the notionally discrete executive struggle to find an effective seen as additional constitutional Executive Council in accordance control vested in the Governor. balance between these limbs. safeguards against the abuse with the Constitution. De facto, It is beyond the scope of Attempts to ensure laws of power by the legislature or Governors appear to have this article to consider the are accessible to citizens executive. accepted significant constraints broader relationship of Overseas often generate codes and by the Executive Council in the Territories and their (qualified) administrative tests, sentencing The Controls on Executive exercise of executive power. constitutional autonomy from guidelines and cross-limb Power This convention is, however, the British State. Any powers committees aimed at interpreting, The executive function is also just that. It is presumed by the which are reserved to Britain democratising and applying law conferred on the Governor under authors that the democratically are effectively the result of the in a way which threatens an Chapter V of the Constitution. elected members of the choice of the people of the erosion of the judicial function. The legal power of the Governor Westminster Parliament having, Falkland Islands to consent Similarly, delegation to the as executive is also nuanced. In as a body, fought for control to this continuing relationship Courts to set their own fees and administering powers directly of executive government with Britain. From the Statute prescribe rules (in the absence applied from Westminster, the are opposed to allowing of Westminster onwards of legislation) are outside the Governor exercises his powers even themselves to exercise successive British Governments traditional role of the judicial limb. in accordance with the internal untrammeled executive control have been reluctant to legislate Leaving aside some regime of each statute and of over the Falkland Islands. It for Overseas Territories or to administrative minutiæ, it has the UK Executive (for it cannot would be understandable for exercise direct control over to be recognised that in the be overlooked that the Governor, them to feel that, in the face territories with local Assemblies Falkland Islands, the judicial while head of the Falkland of the democratic mandate of and appear to regard doing so as power is not (as elsewhere) the Islands Government, is also a the Falkland Islanders’ elected a nuclear option to be used only weakest of the three limbs of member of the UK diplomatic representatives, such control as a last resort. It is sufficient in government power. Whereas the service and subject to policy is a bill of rights, a civil war, a the context of an analysis of the UK courts accept the superiority direction of the UK Executive).5 European Convention Human Constitution to state that the of the Westminster parliament The Constitution also Rights and a Constitutional reserved federative powers of and the supremacy of the perpetuated an Executive Order too late. This de facto the British state are benign and legislative limb, in the Falkland
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Islands the balance is inverted. be challenged in the local or electing so to be are subject lawyers on the Islands - lack of There is an apparent conflict UK courts although Orders to the jurisdiction of the Privy legal certainty being the most to this in Chapter VIII of the in Council can be reviewed Council and all lower courts obvious and unsettling with Constitution which prescribes that judicially (Bancoult (No1) [2000] are subject to its jurisprudence. references in certain statutes all judicial appointments are made EWHC. Privy Council case law (Hinds v purporting to give judicial powers by the Governor and in the reliance At present the Falkland R (1977), Liyange v R (1967)) to the executive to the exclusion on the local courts on funding Islands judiciary enjoys those shows an absolute faith in the of the courts being another - the from an appropriation vote from constituent parts of full judicial certainties of the separation of practical and theoretical state is the legislature administered by independence: secure tenure judicial power from legislative or happily one of absolute judicial the public servants of the Falkland and secure remuneration, executive control. So the doctrine independence both under the Islands Government. However, on both issues being reserved is entrenched in the Falkland Constitution and in the political account of the federative reserved to the Governor’s discretion Islands. realm beyond. powers of the UK, any action by (free from the control of the The product of having a truly the legislature or executive to Legislative Assembly). There independent uppermost court References interfere with the administration are numerous uncomfortable (the Privy Council not being 1 Falkland Islands Constitution of justice or oust the power of instances where local legislation subject to the supremacy of the Order, UKSI (SI 2008/2846) the courts, if not blocked by the prescribes judicial functions Westminster Parliament in the 2 section 37 provides or the Governor, would almost certainly to the executive or public same way as the Supreme Court Legislature to advise on and consent lead to censure from the UK officers but all of these (even of England and Wales) is that to the laws made by the Governor. and the imposition of corrective where the Ordinance suggests there are simply no mechanisms 3 article 11 of the Constitution measures as necessary. otherwise) are justiciable available to the Falkland Islands Order. The authors refrain from under the Constitution. Even Government (short of acceded 4 Section 55 examining the question of an independence constitution UDI) to enable it to over-reach 5 Alternative constructions of whether the Falkland Island’s would be unlikely to alter the the jurisdiction of the Privy this relationship are advanced by the judicial branch is in this way status enjoyed at present Council. Foreign Office and the Privy Council subject to the Westminster by the Judicial Committee which though practically effective in executive or legislature in a of the Privy Council as the Conclusion: A partially fused application secure their foundation manner inimitable to the doctrine ultimate appellate court. British Executive and Legislature on a carousel of feathery hats. of the separation of powers. Overseas Territories and many and an independent Judiciary Certainly, directly implemented independent countries formerly For all the manifest practical Westminster legislation cannot of colony or dominion status difficulties facing domestic
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In many Commonwealth wrong. This was certainly true of mind of those selected for countries there has been in Tasmania, where although appointment at all levels of the concern regarding the there have been disagreements judiciary.”4 independence of judicial over the person appointed, the The preferred approach appointments and the impact process was not usually a matter espoused in this document is on perceptions (or actuality) of controversy. the third model of appointment of political interference on the Tasmania used the first outlined above. separation of powers central to model for many years but, However, the overarching our system of government. following a discussion paper guiding principle is that the Three models for judicial released in 19992, guidelines appointment must be free from appointments that are commonly for judicial appointments were interference by other sectors used in such jurisdictions are released in 2002.3 However, of government, transparent and Hon. Elise Archer generally agreed. as will be illustrated in the case trusted by the community. MP is the Speaker of study to follow, either these Events that occurred in the House of Assembly Models for judicial selection guidelines were ineffective Tasmania in 2007-08 provide at the Parliament of In most major common law or were not adequately a useful case study of the countries, judges are appointed implemented. consequences of interfering Tasmania, Australia. by the Executive. However, the The Commonwealth has also with a proper process for judicial She was elected to the selection process varies across focussed on the issue of judicial appointment. Tasmanian House of jurisdictions, and even within appointments with the Latimer On 22 August 2007, it Assembly in March 2010. jurisdictions. In broad terms, the House Principles having a section was announced that Glenn models include: dedicated to the best practice in Hay would be appointed as a After the March 2014 • Executive makes a the appointment of judges. magistrate to the Tasmanian State election, Hon. selection after conducting a 1. Judicial appointments Magistrates Court to replace Elise Archer was named consultation process, which Jurisdictions should have Magistrate Roger Willee.5 as the Government may be formal or informal; an appropriate independent This began a series of events • Executive makes a selection process in place for judicial Nominee for the after receiving advice from appointments. Where no “The Commonwealth Speaker of the House an advisory panel convened independent system already of Assembly, and was by the Executive; exists, appointments should has also focussed on formally elected by the • Executive makes a be made by a judicial services the issue of judicial selection after receiving commission (established by the House on 6 May 2014. recommendations from an Constitution or by statute) or by appointments with independent appointments an appropriate officer of state the Latimer House commission.”1 acting on the recommendation of such a commission.…The Principles having a The majority of Australian appointment process, whether section dedicated to jurisdictions use one of the first or not involving an appropriately two models. Generally there is constituted and representative the best practice in little focus on the process used judicial services commission, the appointment of for judicial appointment in a should be designed to guarantee jurisdiction until something goes the quality and independence judges.”
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surrounding this appointment reassembled it, Mr Kons Magistrates position, I was getting Above: The Parliament building that resulted eventually in the suggested the change was the clear message from the in Tasmania, Australia. resignation of the Attorney- entirely his choice: Premier’s Office that Mr Cooper General and Deputy Premier “On examining the relevant was to be the nominee...” 8 Steven Kons MP and played a qualifications, I concluded that The Secretary to the The political imperatives part in the later resignation of Mr Hay’s experience of serving Department of Premier and driving the change have never the then Premier Paul Lennon. as a temporary magistrate, along Cabinet later instructed Mr been completely teased out, These events clearly chronicle with his significant experience as Kons to replace Mr Cooper however Mr Kons gave the an example of inappropriate a legal practitioner, made him the with Mr Hay as the person to be following commentary in his political interference in best person to become the next appointed to the vacant position: evidence to a Parliamentary the process of a judicial magistrate. Having made this “On the morning of Committee: appointment. decision, I communicated it to Wednesday 8th August 2007, “Although I cannot confirm Key to these events was a the Secretary of the Department I was advised that the person the reason why he [Mr Cooper] whistleblower in Mr Kons office of Justice.”7 who was to be appointed as was preferred as the nominee, I providing shredded documents There is not sufficient a Magistrate had changed can only speculate on the matter. from that office to a Member space in this paper to cover all from Simon Cooper to Glenn My belief is that Mr Cooper of Parliament. These showed the events that followed the Hay. I cannot recall how this made some comments in his that the appointment of Mr disclosure that there had been information was communicated capacity as Acting Executive Simon Cooper had been agreed political interference in the to me. ... based on the advice Commissioner of the RPDC and appointment documents judicial appointment, so only I was provided, I changed the that placed the government in prepared but these were the most relevant events are name from Simon Cooper to a potentially difficult position. shredded and another person included. Glenn Hay and also changed the For example, I was aware that was appointed as a magistrate.6 The events began with the work history summary. Although he sent a letter to the Premier Initially Mr Kons denied the Premier’s office insisting that Mr the original document for the over concerns about the existence of an appointment Cooper be the nominee for the nomination of Mr Simon Cooper deficiencies in the Gunns Pulp document, but when the vacant magistrate’s position: had been originally saved, I did Mill application.” P. 51, (Kons, shredded document was “I do not recall the date, but not retain that saved document.” Statutory Declaration 2008, 3)10 produced in Parliament by when it was time to nominate P. 47, (Hutton, Statutory Mr Kons then shredded the Kim Booth MP, who had a person to Cabinet for the Declaration 1 2008, 5)9 original document appointing
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“Independent Mr Cooper as described in his protocols have been subject to Above: Launceston on the evidence: scrutiny by the profession and Tamar River, Tasmania, Commissions are “After the phone conversation other stakeholders, including the Australia. part of the UK and was terminated, I took the opposition parties.11 Cabinet Minute relating to Mr The outcome of this process general support but a model Canadian judicial Cooper to the office shredder was the ‘Protocol for Judicial more closely resembling that appointment and shredded it. The reason I did Appointments’ released in 2009. recommended in the Latimer this was because I was told to “Supreme Court Vacancy House Principles is worth using process. They are and I knew a new one would be • A representative of a as a benchmark for judicial often proposed prepared.” p. 47, (Kons, Statutory professional legal body appointments in Tasmania. Declaration 2008, 5) chosen by the Attorney Independent Commissions as a solution to The events above so shocked General. are part of the UK and Canadian political interference the Tasmanian community • Secretary of the Department judicial appointment process. that trust in the government of Justice or their nominee. They are often proposed as a in the process. evaporated. When Paul Lennon • Attorney-General’s nominee. solution to political interference However, they resigned as Premier, his Magistrates Court Vacancy in the process. However, they replacement, David Bartlett, felt • Chief Magistrate or their are also viewed as providing are also viewed as compelled to act in an attempt nominee. potential different biases to the providing potential to re-earn the trust of the • Secretary of the Department appointment process that can Tasmanian people. He quickly of Justice or their nominee. lead to other issues in relation different biases to released his ‘Ten Point Plan to • Attorney-General’s to the objectives of providing the appointment Strengthen Trust’ which laid out nominee”12 a judiciary that reflects the a series of reforms designed In addition, expressions of diversity of the State or Country. process that can to strengthen democratic interest are called for and the “Another, more major lead to other institutions and trust in our vacancy must be advertised. reform, would be to establish democracy. The third point In 2015, the protocol was an independent Judicial issues in relation in the plan was a promise to reviewed and a few minor Appointments Commission, to the objectives of develop an independent and alterations made. The 2015 along the lines of the effective protocol for judicial protocol are the current commissions or committees providing a judiciary appointments. arrangements governing judicial that have been set up in the that reflects the 3. Approved Protocols and appointments in Tasmania. United Kingdom and Canada. Rules for Judicial Appointments There has not yet been Several commentators in diversity of the to be released soon by the any indication that the current Australia have supported this State or Country.” Attorney-General. The new protocols are not working or lack option although there has also
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been some opposition to this the presence of a clear and open 3/2012, NSW Parliamentary Library Committee Public Sector Executive proposal on grounds, including: protocol does provide a degree Research Service Appointments, Interim Report 14 of the costs involved; the argument of comfort in the process of 2 Department of Justice 2009 that well-informed politicians judicial appointments. and Industrial Relations, 1999, 9 Legislative Council Select are much more likely to make Whether the current protocol Discussion paper on judicial Committee Public Sector Executive better decisions than a group of would be enhanced or the appointments in Tasmania Appointments, Interim Report 14 of lawyers; and also on the basis establishment of an independent 3 Patmore, Peter, 2002, House 2009 of criticisms of the performance commission as envisaged in of Assembly Hansard, Thursday 18 10 Legislative Council Select of UK Judicial Appointments the Latimer House Principles April 2002 - Part 1 - Pages 1 - 40 Committee Public Sector Executive Commission.”13 would enhance the process of 4 CPA, 2004, Commonwealth Appointments, Interim Report 14 of Since 2009 and the political judicial appointment in Tasmania (Latimer House) Principles on the 2009 fall-out from ‘shredder gate’, is unclear. These concerns are Three Branches of Government 11 Bartlett, David, 2008. Ten there have been appointments particularly relevant in a smaller 5 The Examiner, 22 August point plan to strengthen trust, Press to the Supreme Court and the jurisdiction such as Tasmania 2007, p. 16 Release, 19 August 2008 Magistrates Courts without where resourcing of such a body 6 Legislative Council Select 12 Protocol for Judicial any controversy. Whether this may be problematic in the light Committee Public Sector Executive Appointments, April 2009 is due to the presence of the of other demands on limited Appointments, Interim Report 14 of 13 Roth, Lenny. 2012, Judicial protocol or fear of the political resources. 2009 Appointments Briefing Paper No consequences of interfering with 7 House of Assembly Hansard, 3/2012, NSW Parliamentary Library judicial appointment engendered References Tuesday8 April 2008 – Part 2 Pages Research Service by the fallout from ‘shredder gate’ 1 Roth, Lenny. 2012, Judicial 26-96 is difficult to establish. However, Appointments Briefing Paper No 8 Legislative Council Select
The Commonwealth Parliamentary Association (CPA) produces a number of toolkits and booklets for Parliamentarians and Parliamentary staff including the Recommended Benchmarks for Codes of Conduct for Members of Parliament and the Handbook on Constituency Development Funds (CDFs): Principles and Tools for Parliamentarians.
Please contact [email protected] to request a copy or visit www.cpahq.org/cpahq/resources to download an e-version.
The Parliamentarian | 2016: Issue Two | 125 IMPEACHMENT OF A JUDGE OF THE HIGHER JUDICIARY: THE INDIAN PRAXIS IMPEACHMENT OF A JUDGE OF THE HIGHER JUDICIARY: THE INDIAN PRAXIS
The impeachment of a judge of District and Sessions Judge.” of India, which lays down the a High Court of India is in the Thereafter, on 15 April 2015, procedure for removal of the news. According to a Bulletin another Bulletin was put out judges of the Supreme Court issued by the Rajya Sabha informing that a notification and the High Courts, does not Secretariat on 17 March 2015, had been issued regarding the mention the word ‘impeachment’ the Chairman of Rajya Sabha constitution of a Committee anywhere. admitted the following motion by the Chairman, Rajya Sabha In the case of Justice V. received from Ms. Wansuk for the purpose of making an Ramaswami, the motion moved Syiem and 57 other MPs of the investigation into the grounds in the Lok Sabha (Lower House Rajya Sabha relating to a judge on which the removal of Shri of Indian Parliament) failed in of the High Court of the State of Justice S.K. Gangele had been 1993, since it did not get the Vivek K. Madhya Pradesh State, India: sought. The Committee consists requisite majority of two-thirds “This House resolves that an of three Members – all of them of a majority of members of that Agnihotri is is address be presented to the senior judges in India. The House present and voting. In a former Secretary- President for removal from office Report of the Inquiry Committee the case of Justice Soumitra General, Rajya Sabha, of Justice S.K. Gangele of the is awaited. Sen, the judge submitted his Parliament of India. High Court of Madhya Pradesh Impeachment of a judge is resignation to the President on on the following three grounds of not a singularity, but is still a 1 September 2011, after the misconduct: rarity in India. However, in recent motion for his removal had been The article reflects the personal (i). Sexual harassment of a times, it has happened three adopted by the Rajya Sabha but views of the author. woman Additional District and times in fairly quick succession before it could be taken up for Sessions Judge of Gwalior (2009, 2010 and 2015). consideration in the Lok Sabha. while being a sitting judge of the Justice V. Ramaswami, Justice As far as Justice P. D. Dinakaran Gwalior bench of the High Court of the Supreme Court of India is concerned, he resigned in of Madhya Pradesh; was the first judge, since coming July 2011, before the Inquiry (ii). Victimisation of the said into force of the Constitution Committee constituted to look Additional District and Sessions of independent India, into the allegations levelled Judge for not submitting to his against whom impeachment against him could complete its illegal and immoral demands, proceedings were initiated in work. including, but not limited to, 1991. The other two judges to What then is the procedure transferring her from Gwalior to face impeachment proceedings for the removal of a judge of the Sidhi; and were Justice Soumitra Sen of Supreme Court or a High Court (iii). Misusing his position as Calcutta High Court (2009), in India? the Administrative Judge of the and Justice P. D. Dinakaran, the Article 124 of the High Court of Madhya Pradesh Chief Justice of the Karnataka Constitution of India inter alia to use the subordinate judiciary High Court (2010). But it needs provides as follows: to victimize the said Additional to be noted that the Constitution Clause (4): “A Judge of the
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Supreme Court shall not be followed up with the Judges (3) The Committee Above: Karnataka High Court in removed from his office except (Inquiry) Rules, 1969 by the prepares the draft charges, Bangalore, India. by an order of the President Government. a draft statement of grounds passed after an address by In consonance with the (imputations) and communicates each House of Parliament statutory provisions mentioned them to the impugned judge. secretariat regarding admittance supported by a majority of the above, in simple terms, the (4) The Committee issues a of motion for consideration total membership of that House procedure for removal of a statutory notice to the impugned of the Report of the Enquiry and by a majority of not less than judge, either of the Supreme judge to appear before it Committee. two-thirds of the members of that Court or the High Court, either in person or through an (11) The motion is included House present and voting has normally comprises the following advocate. in the List of Business of the been presented to the President steps: (5) After giving the impugned House. in the same session for such (1) A notice of motion for judge an opportunity to present (12) The House considers removal on the ground of proved removal the judge is given by his / her case, the Committee the motion and the Address misbehaviour or incapacity.” Members of Parliament (at least prepares and presents its Inquiry to the President prepared in Clause (5): “Parliament may 50 in case of the Rajya Sabha Report, along with copies of the pursuance of Clause (4) of by law regulate the procedure for and 100 in case of the Lok evidence tendered before it, to Article 124 of the Constitution the presentation of an address Sabha). the concerned Presiding Officer. of India. and for the investigation and (2) If the Motion is admitted (6) Copy of the Report is laid (13) The motion and the proof of the misbehaviour or by the Presiding Officer on the table of the two Houses, Address is either adopted or incapacity of a Judge under (Chairman / Speaker) of the simultaneously. rejected by the House. clause (4).” concerned House, a three (7) A copy of the Report, (14) If the motion and the As regards the Judges of the member Inquiry Committee is along with all other documents, Address are carried in the High Courts, Article 217 (1) (b) constituted in consultation with is forwarded to the impugned first House, they are mutatis provides: the Chief Justice of India (in judge seeking his reply thereon. mutandis considered for “A Judge may be removed respect of the serving members (8) A reply is received from adoption by the other House. from his office by the President of the Higher Judiciary), the impugned judge. (15) The removal of the in the manner provided in clause comprising a judge of the (9) The impugned judge is judge, in the form of the (4) of Article 124 for the removal Supreme Court and a Chief invited to appear first before the Address, is recommended to the of a Judge of the Supreme Justice of High Court and an House, the Members of which President of India, if it is adopted Court.” eminent jurist nominated by the had given the motion for his by both the Houses with the Further, in pursuance of Presiding Officer (the Chairman removal. requisite majority of the total clause (5) of article 124, the of Rajya Sabha or the Speaker (10) With the approval of the membership of the House and Parliament passed the Judges of the Lok Sabha, as the case concerned Presiding Officer, by a majority of not less than (Inquiry) Act, 1968, which was may be). a Bulletin is issued by the two thirds of the members of
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that House present and voting. referred for The procedure is similar to the further inquiry adoption of an amendment to the to the Oversight Constitution of India. Committee. At present, there is no specific • Complaints law to govern investigation of and inquiries complaints of misconduct and against incapacity against the judges judges would of the Supreme Court and have been the High Courts, except for confidential the Constitutional provisions and frivolous aforementioned as well as complaints the Act and the Rules framed were to be thereunder. Complaints penalised. received by the government • The Oversight against the higher judiciary Committee are simply forwarded to the could issue Chief Justice of the Supreme advisories or Court for appropriate action. In warnings to 2010, however, the previous the impugned government had proposed judges, and also recommend India, 1993; and (3) In re Special Above: Andhra Pradesh High a Judicial Standards and their removal to the Reference 1 of 1998. The Third Court, India. Accountability Bill, which was President. Judges Case of 1998 was not passed by the Lok Sabha in actually a case but an opinion 2012. In the Rajya Sabha The new government that rendered by the Supreme Constitution of India or in its some amendments to it were has assumed office in 2014 Court of India responding to subsequent amendments. proposed; but the Bill lapsed on proposes to revive the Bill, but a question of law regarding Although the creation of the dissolution of the Lok Sabha on is treading cautiously in view the Collegium System, raised Collegium System was viewed completion of its term in 2014. of the controversy created in by the then President of India as controversial by legal scholars The salient features of the Bill respect of the National Judicial K. R. Narayanan, in July 1998 and jurists outside India, her were: Appointments Commission under his constitutional power citizens, the Parliament and the • It required the judges (NJAC for short) Act, 2014. to consult the Supreme Court Executive did little to replace to declare their assets, A spate of cases of so-called (Article 143). The Collegium it. The Union Government has prescribed judicial impeachment of judges in recent System has been in use since since criticised it saying that standards, and attempted times has led to doubts being the judgment in the Second it has created an imperium in to establish processes for raised against the robustness of Judges Case was delivered in imperio (empire within an empire) removal of judges of the the existing system of selection 1993. Over the course of the within the Supreme Court. Supreme Court and High and appointment of justices of three cases, the court evolved Several considerations, Courts. the High Court and the Supreme and further refined the principle buttressed no doubt by • Judges were required to Court, popularly known as the of judicial independence to mean a succession of cases of declare their assets and ‘Collegium System’, which that no other branch of the state misdemeanor on the part of liabilities, and also that of appoints judges to the nation’s - including the legislature and certain judges perhaps, led to their spouse and children. constitutional courts, under the executive - would have any amendment of the Constitution • The Bill sought to establish which the Chief Justice of India say in the appointment of judges. of India through the ninety-ninth the National Judicial and a forum of four senior-most Further, in January 2013, the constitutional amendment, Oversight Committee, judges of the Supreme Court court dismissed as without locus namely the Constitution the Complaints Scrutiny recommend appointments and standi, public interest litigation (Ninety-Ninth Amendment) Panel and an Investigation transfers of judges. filed by an NGO (Suraz India Act, 2014 and passage of the Committee. Any person This System had its genesis in Trust) that sought to challenge National Judicial Appointments could make a complaint three judgments of the Supreme the Collegium System of Commission (NJAC) Act, against a judge to the Court which are collectively appointment of superior judiciary. 2014 to regulate the functions Oversight Committee on known as the ‘Three Judges In July 2013, the then Chief of the National Judicial grounds of ‘misbehaviour’. Cases’, viz. (1) S. P. Gupta Justice of India spoke against Appointments Commission, • A motion for removal of versus Union of India - 1981 any attempts to change the and on their ratification by a judge on grounds of (also known as the Judges’ Collegium System. 16 of the state legislatures in misbehaviour could also be Transfer case); (2) Supreme However, it must be noted India, and subsequent assent moved in Parliament. Such Court Advocates-on Record that there is no mention of the by the President of India on 31 a motion would have been Association versus Union of Collegium either in the original December 2014. The NJAC
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Act and the Constitutional lacking in transparency and elaborate procedures prescribed “The Constitution Amendment Act came into credibility, which requires by the Constitution, the Judges force with effect from 13 April rectification / improvement by (Inquiry) Act, 1968 and the Rules of India upholds 2015. The NJAC consists of six the Judiciary. framed thereunder. Moreover, the independence members — the Chief Justice On 3 November, 2015 the the Parliament is not empowered of India, the two senior most Supreme Court pronounced that to discuss the conduct of any of the judiciary judges of the Supreme Court, the it is open to bringing greater judge of the Supreme Court or by ensuring a Law Minister, and two ‘eminent transparency in the Collegium the High Court in the discharge persons’. These eminent System within the following of his duties except in terms of security of tenure. persons are to be nominated for existing four parameters: the procedure prescribed for his That is why, a three-year term by a committee • How the Collegium can be removal. The higher judiciary consisting of the Chief Justice, made more transparent? has adequately protected as mentioned the Prime Minister, and the • The fixing of the eligibility not only against the vagaries above, a judge Leader of the Opposition in the criteria for a person to be of Parliament but also of the Lok Sabha, and are not eligible considered suitable for executive through a system of of the Supreme for re-nomination. The judiciary appointment as a judge. appointment of the judges by a Court or the High representatives in the NJAC - • A process to receive and committee of their own brethren. the Chief Justice and two senior- deal with complaints But it does not provide for their Court cannot most judges – can veto any against judges without accountability as is the case in be removed name proposed for appointment compromising on judicial several Western democracies. to a judicial post if they do not independence. There is no mechanism at from office approve of it. Once a proposal is • Debate on whether a present to make judges except through vetoed, it cannot be revived. At separate secretariat is accountable or to evaluate their the same time, the judges require required, and if so, it’s performance. While judicial an elaborate the support of other members of functioning, composition independence is indeed a part procedures the Commission to get a name and powers. of the basic structure of the through. The NJAC would have Constitution, it cannot be the prescribed by the replaced the Collegium System Following an invitation ultimate goal of the judicial Constitution, the for the appointment of judges. from the Supreme Court of system per se. However, on 16 October India to the general public to Judges (Inquiry) 2015 the Supreme Court send proposals to improve the References Act, 1968 and upheld the Collegium System ‘opaque’ Collegium System, a Publications and struck down the NJAC as large number of suggestions • Government of India (2014) the Rules framed unconstitutional after hearing the were received for reforming The Constitution of India. thereunder.” petitions filed by several persons the system. Taking note of New Delhi: Ministry of Law and bodies, with Supreme the suggestions received from and Justice (Department of Articles Court Advocates on Record various quarters, a five Judge Legislative Affairs). • Krishnadas Rajgopal (2015) Association being the first and Bench of the Supreme Court • Government of India (1968) ‘Suggestions galore for lead petitioner. By a majority directed the Government of India, The Judges (Inquiry) Act, 1968. reforming system: exam for opinion of 4:1, the Supreme through the Attorney General, New Delhi: Ministry of Law judges proposed’. The Hindu, 6 Court of India struck down the to prepare the draft of a revised and Justice (Department of November 2015. constitutional amendment and Memorandum of Procedure Legislative Affairs). • Mahapatra, Dhananjay (2015a) the NJAC Act, thereby restoring (MoP), which would prescribe • Government of India (1969) ‘Dinakaran case exposed the two-decade old Collegium the guidelines for the Supreme The Judges (Inquiry) Rules, collegium’. Times of India, 04 System of ‘judges appointing Court Collegium in appointment 1969. New Delhi: Ministry of November 2015. judges’ to higher judiciary. of judges to the High Courts Law and Justice (Department of • Mahapatra, Dhananjay (2015b) The Supreme Court declared and the Supreme Court. The Legislative Affairs). ‘SC collegiums cleared 2 men that NJAC is tantamount to Government has prepared • Rajya Sabha Secretariat (2012) of ‘doubtful integrity’ as HC encroachment on the autonomy the draft MoP which under Notes on Procedure: Judges judges’. Times of India, 19 June of the judiciary by the executive, consideration of the judiciary. Inquiry Committee. New Delhi: 2015. which amounts to tampering with The Constitution of India Rajya Sabha Secretariat. • Mahapatra, Dhananjay (2015c) the Constitution of India under upholds the independence • Rajya Sabha Secretariat (2011) ‘My Performance was not under which the Parliament of India is of the judiciary by ensuring a Motion for Removal of Mr. par: Judge’. Times of India, 19 not empowered to change its security of tenure. That is why, Justice Soumitra Sen, Judge, June 2015. Basic Structure. However, the as mentioned above, a judge Calcutta High Court. New • Mustafa, Faizan (2015) Supreme Court acknowledged of the Supreme Court or the Delhi: Rajya Sabha Secretariat. ‘Allowing judges to be judged’. that the Collegium System of High Court cannot be removed The Hindu, 20 June 2015. judges appointing judges is from office except through an
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THE SEPARATION OF POWERS AND THE RELATIONSHIP BETWEEN PARLIAMENT AND THE JUDICIARY: AN EXPERT’S VIEW
Introduction judiciary’s responsibility for the the executive. Commonwealth Heads of interpretation and application of Parliamentary sovereignty Government have committed the law on the other hand. means that “Parliament has, their countries to the protection (b) Judiciaries and under the English constitution, and promotion of democracy, parliaments should fulfill their the right to make any law democratic processes and respective but critical roles in the whatever; and further, that no institutions which reflect national promotion of the rule of law in a person or body is recognised circumstances, the rule of law, complementary and constructive by the law of England as having judicial independence and just manner. a right to override or set aside and honest government.1 The restraint with which legislation of Parliament.”4 These commitments these powers are exercised is This principle, put forward in Dr Karen Brewer refined in the Commonwealth often the key to harmonious the 18th century, was exported is the Secretary-General (Latimer House) Principles relations between Parliament across the Commonwealth. of the Commonwealth (“CLHP”)2 were re-iterated in and the Judiciary. Problems, However, the principle has come the Commonwealth Charter however, do arise in the under some scrutiny when it is Magistrates’ and Judges’ of 2013 which recognises the Commonwealth. These usually powerless to protect the people Association (CMJA) importance of maintaining the manifest themselves in two if Parliaments are used to rubber since 1998, having integrity of the roles of the ways: stamp unjust laws put forward previously worked as Legislature, Executive and • when the Judiciary seems by an oppressive Executive. Judiciary as the guarantors in to engage in areas which Parliaments have also come International Relations their respective spheres of the are seen to come under under criticism recently for Officer at the Law rule of law. This is a pre-requisite parliamentary sovereignty passing legislation in reaction to Society of England and for the effective separation or privilege, popular or social pressure. Wales. She has written of powers. Thus Parliament • when Parliamentarians try Written constitutions in is expected to make laws, the to impose authority over the the Commonwealth generally and spoken on the Executive to enforce the laws Judiciary and compromise confer on judges the power to separation of powers, and the Judiciary to adjudicate judicial independence. strike down legislation which is judicial independence on conflicts that might arise deemed incompatible with the and women’s rights. when the laws are deemed to Parliamentary Sovereignty constitution as the supreme law have been transgressed. and Parliamentary Privilege and to ensure that Parliaments She is the Secretary of The shared legacy of the The Legislature is the do not abuse their rights. This the Commonwealth common law emphasises the democratically elected forum for has led to criticism of judges Latimer House Working rule of law and procedural political debate and formulation becoming law-makers and the Group (1998-present) safeguards secured through of political policies which are rise of judicial activism has an independent judiciary3 and then converted into legislation. been blamed for impacting too which advances the an Executive accountable to The judiciary is responsible for much on the delicate balance of implementation of the Parliament. impartial reasoned findings powers. Critics say that courts Commonwealth (Latimer The CLHP provide that: in relation to specific facts do not have the right to alter House) Principles. (a) Relations between and taking into account public policy as judges are not parliament and the judiciary constitutional provisions and the representatives of the will of The following article expresses the views should be governed by respect common law. However, both the people but parliamentary of the author and does not necessarily reflect the views of the Commonwealth for parliament’s primary parliament and the judiciary sovereignty is not an absolute, Magistrates’ and Judges’ Association. responsibility for law making share a common responsibility especially with written on the one hand and for the to ensure the accountability of constitutions setting out the
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duties and limits on the role of parliament. Some Parliamentarians have called for judges to appear before them to be held in contempt of parliament. The Speaker of the Bahamas recently reminded the House of Assembly that judges of the Supreme Court enjoyed immunity in the execution of their duties as well: “I believe this would be a gross violation of the doctrine of separation of powers for a judge to be called before Parliament to explain their actions in the execution of their duties.”5 The CLHP states that “Criminal and Defamation laws should not be used to restrict legitimate criticism of Parliament; the offence of contempt of parliament should be narrowly drawn and reporting of the proceedings of parliament should not be unduly restricted by Parliament for floor-crossing Maintaining Judicial are not free to do what they narrow application of the defence and the judiciary have had to Independence and Integrity wish. They are subject to the of qualified privilege.”6 deal with such issues. Some “The rule of law is the bedrock of laws as enacted by Parliament. The concept of parliamentary Parliamentarians have also been a democratic society…... And if ….. The independence of the privilege grants Parliamentarians arrested for corruption, bribery the rule of law is to be upheld it is judiciary is thus… not a privilege certain immunities so that or abuse of expenses, criminal essential that there should be an of the judges themselves….It they can exercise their duties charges which do not fall under independent judiciary.”7 is necessary for the public in a and responsibilities without parliamentary privilege and the The rule of law requires democratic state. It is necessary interference from outside the judiciary has had to deal with judicial officers8 to decide to ensure that people are able Legislature. It includes the right such cases. matters before them in to live securely, and that their to freedom of speech and the The CPA’s Benchmarks for accordance with their liberty is safeguarded and only right of Parliament to regulate Democratic Legislatures state in assessment of the facts and interfered with when the law its own affairs and that of its Article 10 that: their understanding of the permits it. It is necessary for all of Members without interference, “10.1.1 Legislators should law, free from any improper us, but perhaps particularly so for especially from the Courts. It maintain high standards of influences, inducements or those who espouse unpopular was enshrined in England in the accountability, transparency and pressures, direct or indirect, causes or upset the powerful.”9 Bill of Rights of 1689 and the responsibility in the conduct of all from any quarter or for whatever right has been exported to other public and parliamentary matters. reason. Accountability Commonwealth jurisdictions. 10.1.2 The Legislature shall Lord Phillips deplored In her report to the UN Human It does not however include approve and enforce a code the increasing tendency to Rights Council of April 2014, the right to unduly criticize a of conduct, including rules on challenge the mandate of the the former Special Rapporteur judge in the exercise of his/her conflicts of interest and the judge. “Some say that our on the Independence of Judges judicial functions. The judiciary acceptance of gifts. decisions are not legitimate, and Lawyers, Mrs Gabriella has however, been called on 10.1.3 Legislatures shall because we have not been Knaul, states that “Judges increasingly to deal with issues require legislators to fully and elected. It is claimed that judges must… be accountable for their which relate to procedures in publicly disclose their financial are not accountable for their actions and conduct, so that the Parliament. Commonwealth assets and business interests.” decisions. Such comments public can have full confidence in politicians often seize the courts The implementation of such are not helpful and stem from a the ability of the judiciary to carry through election petitions principles in the Commonwealth misunderstanding of the role of out its functions independently when they are unhappy with is paramount to ensuring that judges.” and impartially.”10 election results or when they the rule of law prevails. As Sir Jack Beatson QC, Judges are, in fact, have been excluded from FBA pointed out: “The judges accountable in a number of
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and this only against a set of detailed criteria. The historic role of parliament in this process has been a source of tension between the two branches of government. It is unfortunate that there are increasingly too many examples in the Commonwealth where a compliant Legislature, or a ruling-party majority in Parliament, has led to undue pressure being exerted on the judiciary and to the removal of judicial officers without due process being followed. Legislatures have amended constitutional or legislative instruments which remove the right of the Head of the Judiciary to investigate (or appoint a tribunal to investigate) cases of misconduct or incapacity, Above: The Royal Courts of to on appointment. Appointments Commission. though such provisions are still Justice, London, United Kingdom. Finally, if Parliaments are The report provides a guide as subject to judicial scrutiny. There really unhappy with decisions in to the composition of such a have been examples too of court, they are free to legislate body which would ensure that impeachment processes against ways. Parties or litigants have a and reverse the effect of there was no judicial or political judicial officers which were right of appeal of decisions made decisions. However, this has led majority to avoid the politicization deemed to be in the interest of by judicial officers if they are to calls in some countries for of judicial officers or criticism the ruling party and in which the unhappy with a judgement. They parliaments to be more involved of nepotism. If the rule of law judge being impeached has been can even appeal now, in some in the appointment and removal is really to prevail, the individual deprived of his/her right to a fair instances to regional courts or, of judges. citizen must be confident that the trial through the denial of legal for some still, to the Judicial judge will apply the law to them representation, the introduction Committee of the Privy Council. Appointments and Removals without fear or favour, affection of trumped up charges or the In addition, judges in most The CLHP calls for an or ill-will. denial of a right of appeal against Commonwealth countries which independent and transparent Parliament does however the findings of the investigative follow the common law have to appointments process. The have a role in ensuring that tribunal. Judicial officers are produce reasoned arguments Commonwealth has seen an any legislation that implements human beings and have the for any decisions. Sir John increase in the establishment the constitutional provisions same rights as every citizen to a Beatson argues that “the duty of independence judicial relating to the judiciary is clear fair hearing. to give reasons for decisions is appointments mechanisms and concise and does not lead a clear example of “explanatory” in the last 16 years. Many to confusion as to who has the Resources accountability which assists Commonwealth constitutions authority to appoint or remove Like any other institution, the transparency and scrutiny by the contain clauses relating to judicial officers and to ensure judiciary must be accountable other branches of the state and the establishment of such that the security of tenure of for its spending. The allocation the public.” commissions, however, judicial officers is guaranteed so of resources however, has Judicial officers have to constitutional provisions are that they can fulfil their functions traditionally been undertaken comply with ethical guidelines/ not always sufficiently detailed with integrity and independence. through ministerial departments codes for their conduct within to ensure the independence of Whilst constitutional (Ministries of Justice or Finance). and outside of court. Since such commissions. In 2013, the provisions provide that Thus the judiciary has not had 1998, the CMJA has been the CLA, CLEA and CMJA published the Legislature in many control of its own budgets and repository of these guidelines/ a report entitled ‘Judicial Commonwealth countries has in many instances this has led codes which are refined and Appointments Commissions: A the right to remove judicial to a power play between the amended on a regular basis. Clause for Constitutions’.11 officers, especially those at the three organs of state and the Judicial officers are also are This report put forward higher level, judicial officers misconception that the judiciary guided by the principles of suggestions as to good practice should only be removed from is just a ministerial department independence and impartiality of in the establishment, composition office for gross misconduct or subject to the government’s their Oaths of Office they swear and running of a Judicial incapacity to fulfil their functions, direction or the will of parliament
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rather than the equal third pillar outside influences. Secretariat to roll out this of Action on the Development, of democracy. At its Triennial Conference in toolkit in order to promote Promotion and Implementation of the The CLHP - as well as the Wellington, the CMJA General better respect between the Latimer House Principles, 2008 subsequent Plans of Action12 Assembly noted with concern, three organs of the state in 13 Article 7 UN Basic Principles - call on Commonwealth the continued lack of sufficient order to ensure that “Each on the Independence of Judges, governments and parliaments resources provided to the Commonwealth country’s 1985 to ensure that the judiciary has courts in many Commonwealth Parliaments, Executives and 14 Principle II (b) adequate resources and set out countries and recorded its Judiciaries are the guarantors in 15 Note (4) of the Edinburgh a number of practical steps to disappointment pointing out their respective spheres of the Plan of Action for the Development, be taken by government. “It is that the provision of sufficient rule of law, the promotion and Promotion and Implementation of the duty of each Member State resources to the courts is a protection of fundamental human the Commonwealth (Latimer House) to provide adequate resources to fundamental constitutional rights and the entrenchment of Principles, 2008 enable the judiciary to properly obligation of the Executive good governance based on the perform its functions.”13 branch of government. highest standards of honesty, Suitable and sustainable probity and accountability.” funding has to be provided Conclusion to enable the judiciary to The Commonwealth (Latimer References perform it functions to the House) Principles called for 1 Harare Declaration of 1991 “Most problems highest of standards. Chronic judiciaries and parliaments to 2 Commonwealth (Latimer which arise in the underfunding can lead to delays “fulfill their respective but critical House) Principles on the and inefficiencies and in some roles in the promotion of the rule Accountability of and Relationship Commonwealth cases strikes. Access to justice of law in a complementary and between the three Branches of derive from a has suffered in a number of constructive manner.”14 Government - 2003 countries as a direct result. In The Edinburgh Plan of Action 3 Judiciary means any judicial continued lack of 2000, the Chief Justices of the noted that “each new generation officer at any level (including judicial understanding Commonwealth meeting at the of government officers, officers with limited jurisdiction). CMJA’s Triennial Conference parliamentarians, lawyers, 4 “Introduction to the Study of of each in Edinburgh called for the judicial officers and members Law and the Constitution”, Prof A. V institution’s role Judiciaries to be given control of civil society has to be alert to Dicey of their own budgets. 16 years the imperatives of, and balance 5 http://www.tribune242.com/ in the governance on, only a few Commonwealth between, the independence and news/2016/may/10/speaker- process. The jurisdictions have allowed the accountability of the judiciary, judges-should-not-be-called- judiciary to take responsibility parliament and the executive…”15 parliament/ Edinburgh Plan for their own budget and even Most problems which arise in 6 Chapter III (b) – Independence of Action called then, access to justice can still be the Commonwealth derive from a of Parliamentarians. compromised if the other organs continued lack of understanding 7 Speech given at the for more regular of power limit the allocation of of each institution’s role in Commonwealth Law Conference in awareness structural (use of court houses), the governance process. The 2007 by former Lord Chief Justice of operational (use of IT or even Edinburgh Plan of Action called England and Wales, Lord Phillips of training, on basic provision of materials) or for more regular awareness Worth Matravers appointment human resources (for example training, on appointment or 8 i.e.: judges and magistrates in not providing a living wage for election, of Parliamentarians, 9 Speech given to Nottingham or election, of the lower judiciary and judicial judicial officers and public Trent University in September Parliamentarians, administrative staff). servants on basic constitutional 2008 on “Judicial Independence However, in most, control principles and the primary roles and Accountability, Pressures and judicial officers over finances remains in the of each pillar of democracy in the Opportunities” and public hands of the Executive and constitutional process. 10 Promotion and protection this can severely impact on the In 2013, the Commonwealth of all human rights, civil, political, servants on basic good administration of justice. Secretariat commissioned economic, social and cultural rights, constitutional In addition, unless there is an the CLA, CLEA, CMJA and including the right to development. independent mechanism for the CPA to develop a Latimer A/HRC/26/32. principles and establishment of public sector House Toolkit to enhance 11 http://cmja.org/ the primary roles salaries and benefits (including the dialogue between the downloads/latimerhouse/ those of judges and magistrates), three pillars of democracy Judicial%20Appointments%20 of each pillar of there is a continued risk that whilst not compromising their Commissions-%20CLA-CLEA- democracy in the the control of the judiciary over independence. Published in CMJA%20Report.pdf its budget may be curtailed and 2015, the four associations hope 12 Nairobi Plan of Action for constitutional open it up to corruption from to assist the Commonwealth Africa, 2005 and Edinburgh Plan process.”
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The Parliament, the Executive arbiter in all matters involving the Supreme Court, is only within what and the Judiciary are the three interpretation of the Constitution. is in its power but what is within its main pillars of our democratic Thus, as per the Constitutional power and what is not, when any edifice. The Constitution of scheme, both Parliament and specific Act is challenged, it is for India defines powers, delimits Judiciary are supreme in their the Courts to say. jurisdictions and demarcates respective spheres. Various All legislations, whether Union, responsibilities of each organ. As constitutional provisions do not State or delegated, are subject regards the relationship between leave any scope for confrontation to the doctrine of ultra vires and the Parliament and the Judiciary, between the two organs of State. liable to judicial review. The both are under constitutional Indeed, the harmonization of scope of review is limited to see Pradeep Kumar obligation not to encroach upon the principles of Parliamentary whether the legislation impugned each other’s jurisdiction. Sovereignty and Judicial Review falls within the periphery of the Dubey is Principal Under the scheme of our is a unique feature of India’s power conferred and whether Secretary at the Uttar Constitution, Parliament being Constitution. it is in contravention of the Pradesh Legislative the Supreme legislative body has While the Constitution has Fundamental Rights guaranteed Assembly in India. Mr been accorded the pre-eminent not recognised the doctrine by the Constitution or of any position in our polity. Several of separation of powers in its other mandatory provision of Dubey was educated constitutional provisions amply absolute rigidity, the functions of the Constitution. The Courts are at Allahabad and Delhi demonstrate this. Reflecting the three organs of State - viz a concerned only with interpreting Universities before the hopes and aspirations of viz the Legislature, the Judiciary the law and are not to enter upon joining the Judicial the people, the Parliament, over and the Executive - have been a discussion as to what the law the years, has truly become sufficiently demarcated. should be. The Legislature can Service and working as a people’s institution par As observed by Raghava Rao J. : amend laws to meet the lacunae or a Judicial Magistrate and excellence. Being the supreme ’The powers of each one defects pointed out therein by the Munsif Magistrate/Civil law-making body in the country, of the three organs have to be Courts, or legislate afresh to give Judge at Lucknow, Civil Parliament discusses, scrutinizes exercised as fundamentally effect to their original intentions and amends the drafts of various subject to the provisions of the and such amendments are Courts. He was Legal legislations if necessary, and Constitution relating to that accepted by the Court as valid law. Advisor to the Governor thereafter it puts the seal of organ individually as well as to Some of the related articles of Uttar Predesh and approval, thereby legitimizing the the provisions relating to other in the Constitution of India are Principal Secretary, legislative proposals formulated organs. It is the respect that is as follows:- by the Executive. accorded by one organ of the Article 121 - Restriction Parliamentary Affairs The Constitution also State to the others that ensures on discussion in Parliament: before taking up his accords an important place to that healthy working of the No discussion shall take place current position. Mr the Judiciary, with the Supreme Constitution which is the acid in Parliament with respect to Dubey has organised Court at the apex of the judicial test of its merits whatever the the conduct of any Judge of system. The Supreme Court, in paper value of its provisions.’’ the Supreme Court or of a High many CPA and Presiding addition to being the final court of Both Parliament and State Court in the discharge of his Officers and Secretaries appeals - civil and criminal - has Legislatures are sovereign within duties except upon a motion Conferences in India. exclusive original jurisdiction in the limits assigned to them by the for presenting an address disputes between the Union and Constitution. The supremacy of to the President praying for the States and between two or the Legislature under a written the removal of the Judge as more States and is the ultimate Constitution, as observed by the hereinafter provided.
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Article 122 - Courts not to the Legislature: Supreme Court and no Judiciary Above: The port city of Varanasi, inquire into proceedings of (1) The validity of any can stand in Judgment over Uttar Pradesh, India. Parliament: proceedings in the Legislature the sovereign will of Parliament (1) The validity of any of a State shall not be called into representing the will of the entire public can have confidence that proceedings in Parliament question on the grounds of any community. If we go wrong here their cases will be decided fairly shall not be called in question alleged irregularity of procedure. and there, it can point out.” and in accordance with the law. on the ground of any alleged (2) No officer or member of However, it goes to the When carrying out their judicial irregularity of procedure. the Legislature of a State in whom credit of Pt. Nehru that he firmly function they must be free of (2) No officer or Member powers are vested by or under believed in the independence any improper influence. Such of Parliament in whom powers this Constitution for regulating of the Judiciary. Intervening in influence could come from any are vested by or under this procedure or the conduct of the debates of the Constituent number of sources. It could arise Constitution for regulating business, or for maintaining order, Assembly on the appointment of from improper pressure by the procedure or the conduct of in the Legislature shall be subject Judges, he said: “It is important Executive or the Legislature, business, or for maintaining to the jurisdiction of any court in that these judges should not by individual litigants, particular order, in Parliament shall be respect of the exercise by him of only be first rate, but should pressure groups, the media, subject to the jurisdiction of any those powers. be acknowledged to be first in self-interest or other judges, in court in respect of the exercise Pt. Nehru, the first Prime the country and of the highest particular more senior judges. by him of those powers. Minister of India, intended that the integrity, if necessary, people It is vital that each judge is Article 211 - Restriction on Parliament of India should serve who can stand up against the able to decide cases solely on discussion in the Legislature: as a vehicle of social change and Executive and whoever may the evidence presented in court No discussion shall take place expected that the Judiciary would come in their way.’’ by the parties and in accordance in the Legislature of a State with not create obstacles in this task. It is vitally important in a with the law. Only relevant facts respect to the conduct of any During the course of his speech in democracy that individual judges and law should from the basis of Judge of the Supreme Court or the Constituent Assembly on 10 and the Judiciary as a whole are a judge’s decision. Only in this of a High Court in the discharge September 1949, he said: “We impartial and independent of all way can judges discharge their of his duties. will honour our pledge within limits. external pressures and of each constitutional responsibility to Article 212 - Court not to No Judge, no Supreme Court can other so that those who appear provide fair and impartial justice. inquire into proceedings of make itself a third chamber. No before them and the wider Judicial independence does,
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“Parliament is however, mean that judges must defamation by litigants about Above: Arch in Ayodhya, Uttar be free to exercise their judicial whom the judge is required in the Pradesh, India. the master of its powers without interference from course of proceedings or judgment own functions litigants, the State, the media or to make adverse comment. This powerful individuals or entities, requirement that judges be free Committees. Justices of the Court and enjoys certain such as large companies. This is an from any improper influence also are not the architects of policy. They privileges so that important principle because judges underpins the duty placed on them can nullify policies of the Executive often decide matters between the to declare personal interests in any if they are arbitrary and contrary to it can discharge citizen and the state and between case before it starts, to ensure that public interest. In a nation’s life, vital its parliamentary citizens and powerful entities. For there is neither any bias or partiality, domestic issues arise which need example, it is clearly inappropriate or any appearance of such. adjudication, which is the exclusive functions for the judge in charge of a criminal In conclusion, it may be domain of the courts. No other limb independently trial against an individual citizen to stated that in a democratic of the State can surpass or usurp be influenced by the state. It would society, the Parliament is the this power of the Judiciary. In order and without fear. be unacceptable for the judge to supreme law making body of the to maintain the independence of It has powers come under pressure to admit or country. The Parliament of India the Judiciary, the Parliament does not admit certain evidence, how to is the nerve centre of our polity. not discuss the conduct of judges to punish for its direct the jury or to pass a particular During the last sixty years, it has during its proceedings. In the final own contempt. sentence. Decisions must be made been witness to many ups and analysis, it may be said that the on the basis of the facts of the case downs in the nation’s life, but as Parliament and the Judiciary both No judicial and the law alone. an institution, it has sustained have followed the principle that proceedings Judicial independence is democracy in its purest form. neither of the three constitutionally important whether the judge is Parliament is the master of its separate organs of State can, exist for any dealing with a civil or a criminal own functions and enjoys certain according to the basic scheme speech made case. Individuals involved in any privileges so that it can discharge of our Constitution today, leap kind of case before the courts its parliamentary functions outside the boundaries assigned, or vote given in need to be sure that the judge independently and without fear. It sphere or orbit of authority into that the Parliament dealing with their case cannot be has powers to punish for its own of others. This is the logical and influenced by an outside party or by contempt. No judicial proceedings natural meaning of the principle of or any of its the judge’s own personal interests, exist for any speech made or vote supremacy of the Constitution. Committees.” such as a fear of being sued for given in the Parliament or any of its
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PARLIAMENT AND THE EXECUTIVE Challenges in the India Parliament: Rajya Sabha takes historical decision to amend the Motion of Thanks on President’s Address for the fifth time
Yet again history was created the said motion. Therefore, the Parliament on 18 May 1949, in the Rajya Sabha (Council of adoption of the amendment stated that the adequate States), the Upper House of to the Motion of Thanks on research on it led him to Indian Parliament, on 9 March President’s Address is of vital Campion’s book which provided 2016 when an amendment importance for the credibility of the vital information and of the Leader of Opposition, the Government. procedure for the President’s Mr. Ghulam Nabi Azad to the Address to Parliament. Motion of Thanks on President’s Constitutional Provisions on While clause (1) of article 87 Address was adopted by the the President’s Address deals with the Special Address House. It is unusual in that It is well known that Article 87 by the President, clause (2) for two consecutive years the of the Constitution of India deals prescribes that “Provision shall Shri Satya Motion of Thanks for President’s with the Special Address by the be made by the rules regulating Narayana Sahu Address has been amended. President to both the Houses of the procedure of either House is Joint Secretary In 2015, the Motion of Thanks Parliament assembled together for the allotment of time for in the Rajya Sabha was amended on the issue of for the purpose of informing discussion of the matters referred ‘black money’. It is not a usual Parliament of the causes of its to in such address.” Article Secretariat. He served happening in the annals of summons at the commencement 71 of the draft Constitution, as an Officer on parliamentary democracy of of the first session after each corresponds to article 87 of Special Duty to the late our country. If the Motion of General Election to the Lok the original Constitution. While President of India, Shri Thanks on President’s Address Sabha (House of the People) Article 71 was being debated is amended in the Lok Sabha and at the commencement in the Constituent Assembly on K.R. Narayanan and as (House of the People), the of the first session of each 18 May 1949, one distinguished a Director in the Prime Lower House of the Indian year. Such an Address of member Dr. P.S. Deshmukh Minister’s Office. Parliament, the Government the President constitutes the participated in the discussion would fall. policies and programmes of and stated that “There is no One may recall that the Prime the Government and, therefore, necessity for a provision in the The views expressed are personal Minister, Mr. Chandrashekhar it can be described as the Constitution by which time for views of author and are not of the resigned from office in March manifesto of the Government. discussion of the President’s Rajya Sabha Secretariat. 1991 when he apprehended This provision concerning Speech would have compulsorily that the Motion of Thanks on the Address by the President to be allotted.” President’s Address would be to Parliament, as per Article The intent of the framers of amended in the Lok Sabha. 87 and informing Parliament the Constitution of India was The late Mr. R. Venkataraman, of the causes of its summons, that the matter concerning former President of India, in was incorporated into the the span of time required to his memoirs “My Presidential Constitution of India following discuss the President’s Address Years” wrote that Prime Minister the Campion’s book on the rules in Parliament should not be Chandrasekhar met him on 6 of the House of Commons. explicitly mentioned in the March 1991 when the Motion A peep into the debates of Constitution itself. Therefore, the of Thanks on the President’s the Constituent Assembly Constitution does not allot time address was being discussed reveals that Dr B. R. Ambedkar, for the discussion on President’s in the Lok Sabha (House of the Chairman of the Drafting Address in both the Houses of People) and was told that he did Committee of the Constituent Parliament and it allows both the not want his Government to be Assembly of India, while replying Houses to make rules for this defeated in the House following to the debate concerning purpose. the failure of the adoption of the President’s Address to
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Rules concerning Discussion Government replies to the Other Amendments to the ensure the right to work as a on the Motion of Thanks on discussion of the Motion of Motion of Thanks on the fundamental right. The fourth the President’s Address Thanks on the President’s President’s Address amendment was dealing Accordingly, Rules 14 to 19 Address in the Rajya Sabha. In the history of parliamentary with the failure of the Union of the Rules of Procedure democracy, the Motion of Government not to mention and Conduct of Business of First Amendment to the Thanks on the President’s Indo-Sri Lanka accord and Rajya Sabha deal with, among Motion of Thanks on the Address was amended for take measures for the safety others, the President’s Address, President’s Address the second time in 1989 and securities of Tamils in Sri the scope of discussion on The Parliament of India started when six amendments were Lanka and the devolution of the Motion of Thanks on the functioning on 13 May 1952. adopted by the House. The first powers to the North-Eastern President’s Address and the From that year till 1979, the amendment referred to the provinces. The fifth amendment amendments to be moved Motion of Thanks on the failure on the part of the Union was about the failure of the to such a motion. Once the President’s Address was Government to mention Ram Union Government to outline its President delivers such an never amended in the Council Janam Bhumi-Babri Masjid stand on the Anandpur Saheb Address, it is discussed in both of States (Rajya Sabha). It dispute in the President’s Resolution which threatened the Houses of Parliament and, happened for the first time Address and the measures unity and integrity of the country. as per Rule 18 of the Rules in 1980 when Mr. Bhupesh proposed by the Government And the sixth amendment was of Procedure and Conduct Gupta’s amendment concerning to resolve it. The second about the abject surrender of of Business in the Council attempts to engineer defections amendment was about the the Union Government to the of States, the Prime Minister in some State Assemblies and failure of the Union Government demands of the anti-national or any other Minister of the the arbitrary dissolutions of such to avert destabilisation of secessionist forces in Jammu Assemblies was adopted on 30 State Governments. The third and Kashmir by releasing some Below: The procession of the January 1980. amendment was about the terrorists in December 1989. President of India before the failure of the Union Government The Motion of Thanks on address to Parliament. to amend the Constitution to the President’s Address was
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amended by Rajya Sabha for the Those two State Governments “Now, prima facie, there is no by the Rajya Sabha under the third time on 12 March 2001 had passed legislation requiring mention of any State or any State caption ‘Heeding the Spirit of the when the House adopted the that their citizens would be Legislature in the amendment. Amendment’ on 12 March 2016 amendment on the issue of the eligible to contest elections in It is only the concern of the and stated: decision of the Government to Panchayat bodies who would Member who has moved the “The President’s Address sell a profit making public sector fulfill prescribed educational Motion. If there was a direct sets out a government’s policies undertaking BALCO (Bharat qualifications and have toilet mention of any Legislature in the and programmes, and is first Aluminum Company) to a private facilities in their homes. Such amendment, then, we could have approved by the Union Cabinet. sector company whose track kind of legislations were considered it in a different way. Should an amendment to the record of managing and running considered by many as measures It is a concern of a Member that Address be carried through in an aluminum manufacturing which effectively made the certain things are not there in the the Lok Sabha, the government company was doubtful. underprivileged sections of President’s Address. Of course, would have to resign. There is, of It is significant that almost society ineligible to contest or there is a valid explanation for course, no such obligation in the 14 years later on 3 March stand for elections. Therefore, why those things have not been Rajya Sabha, but it is still seen 2015, the Motion of Thanks the Leader of the Opposition included and why those things to undermine the government’s on the President’s Address Mr. Ghulam Nabi Azad moved should not be there. There is a ability at consensus-building. was amended by the Rajya the following amendment to the valid explanation. But that would For the members of the Rajya Sabha when it adopted two President’s Address: be relevant when that issue is Sabha, it is a way to give notice amendments concerning “That at the end of the considered. It does not however that they cannot be taken for ‘black money’. It signified the motion, the following may be prevent the Member, who moved granted. It is therefore not just an importance and relevance of added: ‘But regret that the the amendment, from expressing embarrassment for the BJP-led Rajya Sabha in our body polity Address does not mention that his views or putting it to vote. That National Democratic Alliance and its meaningful role in holding the Government is committed is what my common sense tells government to have faced this the Government to account. to securing the fundamental me. Therefore, there is no harm in situation twice less than halfway right of all citizens to contest putting it to vote.” through its five-year term. It also Amendment of the Motion elections at all levels, including to Effectively the Deputy hints at the ruling party’s failure of Thanks on the President’s Panchayats, to further strengthen Chairman stated that in the to reach out to the Opposition Address in 2016 the foundations of democracy amendment moved by the and forge a working consensus Exactly a year and six days which also forms part of the basic Leader of the Opposition on the legislative agenda... The later, on 9 March 2016, the Rajya structure of the Constitution there was no reference to a BJP could plead helplessness Sabha amended the Motion and is consistent with the spirit particular State and, therefore, over its lack of numbers in the of Thanks on the President’s of the 73rd Amendment to the no objections against it could Rajya Sabha, and instead cite Address by regretting that the Constitution, intended to expand be sustained. Eventually the the passage in the House of the address did not contain issues and encourage democratic motion of amendment was Real Estate Bill this week as concerning the elections to participation of the poor and put to vote and it received 94 proof that it is getting on with its the Panchayatiraj (Grassroots marginalized without imposing votes in its favour and 61 votes legislative workload. Or it could representative institutions) educational or any other limitation against. The adoption of the heed the spirit of the institutional bodies. It may be mentioned that on the right to contest election.’” said amendment constituted a mechanism of the amendment the governments in the States The Leader of the House landmark event in the annals of to a Motion of Thanks, and take of Haryana and Rajasthan of the Mr. Arun Jaitley, who is also India’s parliamentary democracy. up the subject highlighted for a Indian Union are run by the same Minister for Finance, raised a It was undertaken in two follow-up debate in Parliament.” ruling party, Bharatiya Janata point of order saying that the successive years (2015 and Party (BJP) which also runs amendment could not be taken 2016) and, therefore, underlined Conclusion the government at the centre. up in the House as it referred the significance of the Council of All such developments testify to to a matter concerning State States in the evolving democratic the importance of the Council “It signified the Legislatures and as per the tradition of India. It also clearly of States, the Upper House of importance and rules for such matters dealing brings out the dynamics of Indian Parliament particularly with State Subjects cannot our parliamentary democracy in the context of multi-party relevance of Rajya be discussed in Parliament. which is dependent on the democracy which often creates Sabha in our body Therefore, he argued that the balance of strength of political a situation wherein one or more Council of States (Rajya Sabha) parties and the composition of groups of political parties obtain polity and its has no jurisdiction on the subject the House. It unambiguously the majority in the Lower House meaningful role matter of the States which is testifies to the importance of the (House of the People) and in the covered under the scope of the Rajya Sabha in our body polity Upper House, the Opposition has in holding the said amendment. However, the and democracy. ‘The Hindu’ a a dominant position on account Government to Deputy Chairman disallowed the leading English daily newspaper of its better numerical strength. objections by giving the following of India commented on the account.” ruling. adoption of the amendment
The Parliamentarian | 2016: Issue Two | 139 THE WORLD FINANCIAL AND ECONOMIC CRISES: MALTA’S EXPERIENCE THE THREE WAVES OF THE WORLD FINANCIAL CRISES: MALTA’S EXPERIENCE
A lot of water has passed from of that magnitude. Economic the collapse of so many financial under the bridge since the indicators may make us feel that institutions world-wide. In the Lehman Brothers collapse in we have come out of it, but I am wake of the crisis, a Ministry was September 2009. Malta had not certain whether the methods set up to form, together with just joined the Euro on the being used to keep these waters the Central Bank and the Malta 1st of January 2008 and our calm, particularly the negative Financial Services Authority, a Government had won its third interest rate environment and task force to review all our banks term in office. I would easily say the extensive quantitative easing and to make sure that they had that the first two terms were the tools adopted by the European no significant exposures that glory years: in the first term, we Central Bank (ECB) today, are could expose the entire banking Hon. Tonio successfully managed to join the sustainable in the long run. We system. There were some European Union after a very hard are simply building bigger and recommendations that were Fenech MP is fought referendum campaign. bigger mountains of debt by issued to one or two banks to a Maltese Member I was appointed Parliamentary printing money. This cannot be divest in some positions that we of Parliament and Secretary for Finance in the sustained for much longer and then thought could be impacted is Foreign Affairs second term of that Government we are only getting closer and through second round effects - and was given the task to closer to another tsunami. particularly as bailouts and ailing spokesman for the prepare Malta to adopt the Euro I will leave my comments banks started being bought out Nationalist Party in as our national currency. there, possibly to be debated by other banks because of their Opposition, Chair of In my second term of office, by the powers, institutions and holding of so many then termed the Public Accounts I was appointed as Minister Parliaments looking at such ‘bad assets’. for Finance for the Economy policies, and rather focus on how The second wave, the economic Committee and Chair of and Investment, a very large Malta, the smallest member of the crisis, was, however, where our the Executive Committee portfolio. In the crises that European Union, an island in the intervention as a Government of the Commonwealth followed, however, this proved south of Europe and in the middle was much more needed. Global Association for Public an important decision as it gave of the Mediterranean, managed to demand fell drastically in 2010 the Government the flexibility it withstand this perfect storm. as an aftermath of the financial Accounts Committee required to withstand the crises The first wave, the banking crisis. Economies literally stopped (CAPAC). He was and to act swiftly and coherently crisis, had little impact on Malta, and global institutions like the Minister of Finance and across the economic sectors. but this was not by coincidence. IMF heavily advocated the need before that served as That way the impact of the The foundations of our banking for stimulus packages that would crises on the Maltese financial system and also our public restart the economies that had Parliamentary Secretary and economic sectors could be debt were strong. Malta always soared in unemployment as closure in the Office of the Prime adequately addressed. ranked very high in terms of and downsizing of manufacturing Minister responsible for The financial crisis that the soundness of our banking factories became the order of the Finance. Before entering started in 2009 came in three system whenever reviewed day. It was estimated that 16 million waves; I am not sure whether by international institutions jobs were lost in the EU alone. Parliament, he was we are not in the fourth and like the IMF and the Global A lot of governments came Mayor of Birkirkara for 6 whether a fifth one might arise. Competitiveness report of the out with stimulus packages years and an Observer to While the banking crises were World Economic Forum. The that sought to increase the European Parliament the first wave, the second were basis for this soundness was that consumer spending through the economic crisis and, lastly, Maltese banks where highly liquid, measures such as VAT one-off until his appointment as the sovereign debt crisis that with a very strong local deposit reductions, scrappage schemes Parliamentary Secretary. followed was the third. base. Being ‘conservative’ by to encourage consumers to I am not sure whether Europe nature, they were not exposing buy new cars, which seemed is really out of the third wave or themselves to the investments to be the industry most hit, and whether this was the last wave instruments that we know brought other similar measures. Malta
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“Malta is a small is a small country with limited considering layoffs. This would the recession but also the first resources, as a Government have had a devastating impact to exit, being in recession for country with we were not intent to resort to on a sector which already had only six months. We managed limited resources, increase our debt significantly to been facing a lot of challenges, not to lose one job in the crisis generate the cash necessary to and for a country like Malta, and could even report a slight as a Government have a huge stimulus package. it was very easy to lose these employment increase, keeping we were not I believe that the higher debts factories. It would have taken the unemployment rate stable countries entered into to finance years to rebuild what we lost and during the worst times. We also intent to resort to so called stimulus packages, the we could not afford this. invested heavily in attracting increase our debt more devastating the situation Consequently, we offered more tourists to Malta, which became, a situation which these factories a number of would have an immediate significantly to ultimately led to the third wave schemes aimed at growing positive impact on the economy generate the cash of the crises. rather than divesting. To that end, by encouraging more airlines Being an economy of 450,000 we either encouraged them to to fly to Malta and therefore necessary to have people, we decided to focus our invest in newer technologies or widening our tourism base. a huge stimulus efforts on the industries that animated them to take advantage had jobs at risk. By investing in of Malta’s investment scheme The Third Wave package. I believe infrastructure, we created an when restructuring. That way, the The third wave was a result of that the higher economic multiplier effect that cost of the investment in the new the second. As governments was much bigger than sending machinery and investment would sought to aggressively address debts countries cheques to people in uncertain be partly financed by the scheme. the crisis, the implemented entered into to times, when they would simply For a number of months, we stimulus packages stretched tend to deposit these in banks in also shared the costs of the debt levels beyond what finance so called anticipation of worse to come. days the employees were on Governments could reasonably stimulus packages, As an alternative, we sat forced leave, by paying a day afford; markets started to down with all our factories and or two a week ourselves while become agitated. Greece the more offered them a scheme that taking them through a training caused a contagion of devastating the encouraged them to invest programme to upgrade their unprecedented proportion. rather than to downsize during skills and prepare them for the At 160% of GDP, rising fast situation became, the crises. Due to the heavy new technologies or, in the markets pulled the plug and a situation which drops in order books, factories worst case scenario, be more Greece could not but default. had to shift to a production skilled to find alternative work The IMF and the EU sought to ultimately led to schedule of a four day or even a should they lose their jobs. This run to their rescue, but frankly the third wave of 3-day week, when a few months approach worked; what we saw before they were running at was that Malta was not only Below: Malta’s new the crises.” shifts of 24/7. Some were also the last EU country to enter Parliament chamber.
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the Eurozone had no tools created concerning situations for which recouped back a significant some international commentators at its disposal then and was Italy and France. From creating portion in taxation. Paying a lower were saying that Malta was next. trying to manage a huge crisis stimulus packages, countries interest rate to outside creditors Living in Malta, they could see and with very limited agility as loan could not do much more than would have made us lose all this feel that we were just fine, not agreements had to be agreed implementing austerity packages and expose us to international in recession, that we had good through inter-governmental as money for new debt was risks that then, to be fair, seemed employment rates and a sound arrangements. The slowness of simply not available. only theoretical. When Cyprus banking system. our response caused even more Malta was the only country defaulted, the international Looking back, these were concern in the markets as the in the southern region of media’s focus was on Malta, as difficult and interesting times, but once old belief that government Europe that did not follow suit. many perceive our economies to they were not the only challenges debt is safe (as governments Fundamentally, this was for two be very similar. Commentators we were facing as being in the can always resort to taxes to pay reasons: firstly, in the wake of the were saying that Malta was next to centre of the Mediterranean: off excesses) was proving not second wave, the economic crisis, default. In fact, we did not. Why? Challenges did not only arise to be possible any more in an we did not overstretch ourselves Because defaults are caused from our southern European economic crisis that could not in the stimulus package we by market speculators, who are neighbours, but also from the afford increased taxation. sought to achieve by increasing market manipulators, making Arab Spring revolution which In reality, governments had our debt levels. Secondly, our gains or losses from agitating took place within the borders of no money to create the stimulus; debt was with the Maltese. In the stocks and equities. These players our Northern African neighbours, the economic downturn put run up to joining the Euro, many had no access to our debts which included Tunisia and more pressure on the public international financial players because although listed on the Libya with whom Malta had a lot debts of some large countries, came to Malta to encourage us local stock exchange, they had no of economic links. It was a time some defaulting after Greece, to ‘internationalise’ our debts real access to them. Our debt is I augur the world will not pass namely Portugal, Ireland, Spain under the guise that this would 98% held by Maltese investors, through again, but deep down I and Cyprus which needed to be give us cheaper interest rates. mostly the retail investors who buy know this is wishful thinking as bailed out by third parties and I used to argue with them the and hold the stock for the coupon man tends to rarely really learn benefit of this, as the interest we they earn until these are repaid. from past mistakes and, as we Below: Malta’s new were paying was going into our There was no interest in rushing say, history repeats itself. Parliament building. economy and re-spent there, to the market to sell because
142 | The Parliamentarian | 2016: Issue Two PROMOTING EVALAGENDA2020 IN THE CONTEXT OF SUSTAINABLE DEVELOPMENT PROMOTING EVALAGENDA2020 IN THE CONTEXT OF SUSTAINABLE DEVELOPMENT A report from the Global Parliamentarians Forum for Evaluation
Introduction to Evaluation (APNODE) General Assembly passed Parliamentarians’ was initiated at the African Declaration A/RES/69/237, movement for evaluation Evaluation Association (AfrEA) ‘Evaluation Capacity Building for The Parliamentarians’ movement conference held in Yaoundé, the Achievement of Development for evaluation has rapidly Cameroon in March 2014, Results at Country Level’.4 grown in the past few years. a year after the initiation of Many additional stakeholders, Particularly during 2014-2015, PFDE. APNODE is hosted including the United Nations regional Parliamentarians’ fora and supported by the African Evaluation Group (UNEG) and were created in Africa, East Development Bank and it is the the OECD/DAC EvalNet, joined Asia1 , Latin America2 and most formal group among all the movement. The adoption of Hon. Kabir MENA regions. The first ever the Parliamentarians’ forums the Sustainable Development Hashim MP is Parliamentarians forum; The currently active. In 2015, Goals (SDGs), also called the Parliamentarians Forum for regional Parliamentarians in Global Goals, crafted through the Minister of Public Development Evaluation (PFDE) other regions were initiated. the largest consultation process Enterprise Development was established in South Asia in More importantly, the first ever documented by the in Sri Lanka and Chair of early 2013.3 ever national Parliamentarians’ United Nations. The outcome Global Parliamentarians This was a historical forum for evaluation was document ‘Transforming Our milestone as the first time in initiated in Nepal by a group of World: The 2030 Agenda for Forum for Evaluation. history Parliamentarians had Parliamentarians representing Sustainable Development’ He has been an MP in raised their voices to advocate all political parties. In Kenya, published in September 2015, Sri Lanka since 1994. In for national evaluation policies a Parliamentarians caucus and its focus on country-led 2001 for the first time he and to commit to put evaluation for evaluation was initiated evaluation in line with identified at the core of the agenda at to advocate to the Kenya priorities for SDG targets became a minister and the country level. Thereafter, parliament on evaluation. In this that are most relevant to the in 2015 he became the Parliamentarians were featured context, Global Parliamentarians national and local context, have Secretary-General of the in many international evaluation Forum for Evaluation (GPFE) also emphasized the need United National Party events for promoting national was launched on the occasion of for countries to strengthen evaluation capacities. In this celebrating International Year of their data collection, analysis in Sri Lanka, the largest vein, one of the key milestones Evaluation 2015. and review processes. The single political party is the study on ‘Mapping Status importance of evaluation was in the country. He was of National Evaluation Policies’ Why it is important for highlighted in the context of instrumental in initiating which was conducted by PFDE Parliamentarians to promote the SDGs, which state that with support from EvalPartners, use of evaluation? the review of the SDGs will Parliamentarians the global movement to Developing and strengthening be “rigorous and based on forums for evaluation strengthen national evaluation evaluation policies in countries is evidence, informed by country- in South Asia and capacities. This helped to important for good governance led evaluations”; and it also calls globally. He initiated a promote national evaluation and effective development. In for the “strengthening of national policies including through 2013, EvalPartners declared data systems and evaluation campaign to emphasize regional consultations. 2015 as the International Year programs”. ‘Political Participation in The African Parliamentarians of Evaluation (EvalYear). This One of the key principles of Evaluation’ in early 2000s. Network on Development was reinforced when the UN the SDGs, that of “No one left
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Above: The culmination of over behind”, points to the importance planning to further advance the methods and approaches are 86 global, regional and national of achieving equity focused and important work on NEP and most appropriate to the situation EvalYear events was celebrated sustainable development. It is systems. to generate high quality, ethical at the Global Evaluation Forum a challenge in many countries information pertinent to the held in Kathmandu, Nepal in that disadvantaged communities The Global Evaluation issues at hand. November 2015. sometimes do not get the Agenda 2016-2020 At the same time, we benefits of development. That The Global Evaluation Agenda envisage that evaluation will The Forum brought together is why equitable development 2016-2020 (also called help to amplify the voice of all key stakeholders to finalize needs to be emphasized with EvalAgenda2020)5 was stakeholders, particularly the EvalAgenda 2020 and to equity focused and gender formally launched at the marginalized and disadvantaged. develop action plans to responsive evaluation. Parliament of Nepal on 25 We know from experience implement it. More over EvalPartners November 2015. It is clear the difference that evaluation in collaboration with other that evaluation as a tool can make in illuminating the During the Forum, members of stakeholders developed and for effective governance realities of specific contexts EvalGender and EvalYouth met launched the Global Evaluation is increasingly becoming by unpacking the complexity to prioritize activities, identify Agenda 2016-2020 according respected and implemented. that peoples, organizations and challenges to implementation to which national evaluation Our vision is that evaluation communities face in struggling and brainstorm solutions. The policies and systems play has become so embedded in to address economic, social and Global Parliamentarians Forum an important role at country good governance that no policy environmental issues. We have was launched in Nepal with level. According to the study maker or manager will imagine seen the beneficial impact that government representatives and on ‘Mapping status of national excluding evaluation from the principled evaluation can have parliamentarians supporting the evaluation policies’, only 20 decision making toolbox, dare in democratic settings when initiative. countries have established hold an important meeting or evaluators work in a neutral national evaluation policies. reach an important decision way with all stakeholders to Image courtesy: http://ioce.net/ It shows how far the journey without having reviewed relevant contribute data, analysis and evalyear ahead is and where we evaluation information. Equally insights to assess results, stand now. The Global evaluators, whether internal identify innovations and Parliamentarians Forum is or external, will use whatever synthesize learning towards
144 | The Parliamentarian | 2016: Issue Two PROMOTING EVALAGENDA2020 IN THE CONTEXT OF SUSTAINABLE DEVELOPMENT
improved outcomes. • These institutions are • Evaluators have integrated Role of Parliamentarians in In our vision, four essential capable of appreciating the values discussed above promoting evaluation dimensions of the evaluation and facilitating quality and are culturally sensitive It is our collective hope and system make up the core of evaluations • Evaluators continually intention that by advocating EvalAgenda2020. These are: • These institutions are learn and improve their for the many initiatives and (1) the enabling environment skilled at collaborating with capabilities activities outlined in the Global for evaluation, (2) institutional other relevant and involved Evaluation Agenda that the capacities, (3) individual institutions Vision of strong inter-linkages global evaluation community capacities for evaluation, and (4) • These institutions are among these first three will be able to make significant inter-linkages among these first able to resource quality dimensions is that: contributions to attaining three dimensions. data generation and • Governments, EvalVision2020, and the evaluations as required, Parliamentarians, VOPEs, attainment of all the SDGs, Vision of a strong enabling make information readily the United Nations, for the benefit of humankind. environment is that: accessible and are foundations, civil society, Each partner in the global • All sectors of society ready to follow-up on private sector and community, including but not understand and appreciate evaluation findings and other interested groups limited to Parliamentarians, the value of evaluation recommendations dedicate resources to joint donors, governments, VOPEs, • Evaluation is explicitly • These institutions are able ventures in the conduct of Civil Society Organisations, required or encouraged in to continually evolve and evaluations, in innovation in media, private sector, will each national evaluation policies develop as the evaluation the field of evaluation and have their roles to play. All the and other governance and field advances evaluation capacity building stakeholders are willing to work regulatory instruments • Academic institutions have • A common set of terms with Parliamentarians to promote • Sufficient resources are the capacity to carry out exists in all languages to evaluation. allocated for evaluation, at evaluation research and disseminate and share Parliamentarians can play all levels run professional courses in evaluation knowledge their role by demanding high • Credible, accessible data evaluation • Multiple partners in quality evaluations to ensure systems and repositories evaluation regularly attend accountability in all aspects. for evaluation findings are Vision of strong individual national and international Parliamentarians can take readily available capabilities for evaluation is that: learning opportunities the lead in promoting national • Stakeholders are eager to • Developing individual • The “No one left behind” evaluation policies and systems. receive and utilize evaluation capacity for evaluation principle stated in the SDGs We invite all Parliamentarians information will be relevant not only is embedded as a key value and parliaments to join hands • Evaluation receives due to evaluators, but also to that goes across three with us. ‘Together we can!’ recognition as a profession commissioners and users of building blocks of evaluation • The ownership of public evaluation system – enabling Further information: sector evaluations rests • Commissioners and users of environment, institutional Website https:// with national governments evaluation will have a sound capacities and individual globalparliamentarianforum. based on their distinctive understanding of the value capacities for evaluation. wordpress.com/ or email aocampo@ needs and priorities and of evaluation, processes unicef.org with full participation of the for conducting high quality, The four dimensions do civil society and the private impartial evaluations; and not operate in isolation but are References sector more commitment to using connected in diverse ways in 1 www.pfeea.org evaluation findings and different countries, sectors and 2 https://foropelac.wordpress. Vision of strong institutional recommendations situations. The relationships com/ capacities is that: • Sufficient numbers of are dynamic, with overlapping 3 www.pfde.net • A sufficient number of qualified evaluators, drawn influences, partners and 4 http://www.unevaluation. relevant institutions, from a diversity of relevant drivers; yet at the same time, org/mediacenter/newscenter/ including but not limited to disciplines, are available all dimensions are working newsdetail/105 Voluntary Organizations to conduct high quality like a vortex pulling the various 5 http://mymande.org/evalyear/ for Professional Evaluation evaluations in all countries dimensions ever closer towards shaping_the_2016_2020_global_ (VOPEs); government and all subject areas better outcomes. Each partner evaluation_agenda agencies, Civil Society • These evaluators have (institutions, individuals and organizations (CSOs), the knowledge, skills evaluation users) contributes a academia and institutions and dispositions to make distinct part to the whole through that generate and share appropriate use of generally the mutually supportive and relevant data exist to accepted evaluation interconnected dimensions of develop and support principles, theories, methods the Agenda. evaluators and evaluation and approaches
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The Inter-Parliamentary into the roles of Parliaments, of government; and mitigation, Union’s 2010 report, Disaster parliamentary committees response and recovery plans be Risk Reduction: An Instrument and Parliamentarians in developed to manage a range of for Achieving the Millennium strengthening emergency potential earthquake scenarios. Development Goals – Advocacy preparedness for citizens and British Columbia’s Auditor- Kit for Parliamentarians, states democratic institutions. General has maintained a that, “elected representatives keen interest in the state of of the people … oversee Independent Assessments by earthquake preparedness in the government action and play a Auditors-General province in view of the gaps in crucial role in mobilizing national Federal and provincial Auditors- government performance and resources for reconstruction and General across Canada have a high level of public interest. Craig James is the development in disaster-affected conducted performance audits Follow-up reviews issued in Clerk of the Legislative areas.” on emergency preparedness 2002 and 2005 found that Assembly of British The report notes in recent decades, which have improvements had been that, as political leaders, focused attention by the public, made by government in the Columbia. Craig has Parliamentarians have unique the media and Parliamentarians implementation of the 1997 worked in Parliament roles in influencing national on gaps in preparedness and audit recommendations, but since 1978. In 2010, he policies and spending through areas for change. significant additional work was was appointed Chief their budget oversight, In British Columbia, the required. An audit of planning consideration of legislation, Auditor-General, an officer for school seismic safety was Electoral Officer for parliamentary committee of the Legislative Assembly, issued in 2008, pointing to the the Province of British scrutiny and the ability to tap into issued a landmark audit report need for attention to upgrading Columbia and served in active expert networks, which on the province’s earthquake school buildings as part of long- this position temporarily can serve to improve public preparedness in 1997. The term capital planning. knowledge and government Auditor-General concluded In 2014, almost two decades during a very tumultuous policy and procedures.1 that, “governments in British after the 1997 audit report, period in the Province. Like other jurisdictions, Columbia are not adequately the Auditor-General published Upon his return to the British Columbia faces risks prepared for a major earthquake,” an evaluation of catastrophic Legislative Assembly, from natural disasters, industrial and recommended strategic and earthquake preparedness in the accidents and terrorism. In operational changes to enhance province. The Auditor-General he was appointed as particular, the south western preparedness. The audit found found that government’s Clerk – the 12th person region of the province is situated that, while readiness for a major emergency management office, to hold this position in over an active earthquake zone or catastrophic earthquake can “appears to have taken the report British Columbia. Craig stretching along the Pacific never be absolute, preparedness quite seriously and is working coast from the Americas to Asia “can reduce the scale of impacts, to develop and implement is Executive Director of and New Zealand. The provincial help return life to normal sooner strategies to address the the Canadian Council government has an overall than would otherwise occur, and deficiencies noted in this report.” of Public Accounts leadership and coordination role reduce the cost of recovery.” The report recommended Committees (CCPAC) and in emergency management, The audit report “specific improvements to risk working with federal and local recommended that: emergency analysis, plans and procedures, an active member of the governments. In fact, the British preparedness be a higher integration of stakeholders, Association of Clerks- Columbia Provincial Government priority for government; training and public education” at-the-Table in Canada has established the first Ministry arrangements be established to adequately prepare for and in Commonwealth on emergency management in to ensure the integration and earthquakes and other Canada.2 coordination of emergency emergencies. Parliaments. British Columbia’s services among provincial experience provides insight organisations and other levels
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“British Columbia’s Scrutiny by Public Accounts earthquakes in the Pasadena earthquake preparedness. Committees and Oakland, California areas. In 2010 and 2014, the experience Public Accounts Committees The Committee’s meetings also Committee considered audit provides insight are given a central role in provided a forum for increasing reports on school seismic safety Westminster Parliaments for public awareness and for and catastrophic earthquake into the roles public sector financial and fostering citizen engagement preparedness, respectively. of Parliaments, administrative oversight, through with legislators on the status Committee Members the consideration of audit of earthquake preparedness, considered best practices in parliamentary findings put forward by Auditors- and the need for actions by other jurisdictions, supported committees and General. governments to strengthen greater collaboration across In British Columbia, the readiness. all levels of government and Parliamentarians Auditor-General’s reports on The Committee endorsed the increased public reporting on in strengthening earthquake preparedness have findings and recommendations preparedness by government in been a significant focus of the in the 1997 audit. They order to provide accountability emergency Select Standing Committee on recommended that the to citizens on actions on preparedness Public Accounts since 1997. government implement them earthquake and emergency After the 1997 audit report “with dispatch” and report to the planning efforts. for citizens and on earthquake preparedness, Committee by the end of 1999 democratic the Committee established a on progress in implementation. Emergency Preparedness work plan of public hearings The Committee subsequently and Business Continuity for institutions.” and field visits to enable reviewed the Auditor-General’s Parliaments Committee Members to discuss assessments of follow-up Parliaments must be prepared earthquake readiness through on these recommendations, and resilient to respond to meetings with the Auditor- requested that continued annual emergencies in order to General, senior government evaluations be prepared for protect Parliamentarians, staff officials and experts, and to hear the Committee and endorsed and visitors as well as the first-hand from local officials a framework for increased parliamentary environment, who had experienced recent government reporting on minimise short-term disruption
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to parliamentary business, and, contracted KPMG, a leading Assembly Management Above: The CPA-World over the longer-term, recover and global professional services Committee, the Assembly’s Bank Parliamentary Study return to normality as quickly as company with expertise on parliamentary management Group considers effective possible. disaster preparedness and board and are available upon rsponses by Public Accounts Canadian Auditors-General best practices, to carry out a request. Committees (PACs) to have recommended robust review of business continuity The fact-finding visits National Crises at a recent public sector business continuity planning. KPMG’s 2013 report emphasized that: meeting in Nepal. plans as a demonstration that concluded that, overall, the • Business continuity for government organisations take Assembly was well prepared to parliamentary institutions of parliamentary emergency their responsibilities seriously respond to emergencies, with an during times of crisis preparedness and business and follow recognized best experienced incident command is distinct from that of continuity plans. Many practices – which also applies team, leading-class equipment, governments, who are Parliament Buildings are to parliamentary institutions. and regular exercises. KPMG responsible for managing architectural icons with British Columbia’s Auditor- suggested that planning should and responding to heritage status, which has General issued a 2007 audit continue to strengthen disaster emergencies. During important physical and of the Legislative Assembly’s preparedness and business emergencies, Parliaments financial consequences for financial and administrative continuity readiness. The play a central role in emergency management operations. The audit identified company also confirmed that establishing, continuing decision-making and gaps in the Assembly’s an important part of a robust and revoking a state of planning, as do political emergency preparedness plan emergency management and emergency; legislating dynamics, traditions and and recommended clearer business continuity program additional response practices. contingency arrangements involves learning from the and recovery powers, • Notwithstanding these to ensure that parliamentary experiences of other jurisdictions programmes and funding; challenges, the evidence operating and financial services that have experienced holding government to from jurisdictions which remain available during an disruptions. account for the exercise have experienced crises emergency and have regular of emergency powers demonstrates that effective testing. A 2012 audit report Lessons Learned from Other and responding to the processes and structured on the Assembly’s financial Jurisdictions emergency; and providing and tested continuity plans records noted that business To follow up on the KPMG Parliamentarians with increase the capability and continuity and disaster plan report, fact-finding visits were the ability to speak about agility of Parliaments to work was proceeding with a undertaken in 2013 to New the emergency from their respond to and manage view to completing the plan and Zealand and U.S. western coastal perspective and that of their emergencies. undertaking regular testing. state Legislatures. The results constituents. • Preparedness can To assist with advancing this of the findings of the visits were • Parliaments face unique assist Parliaments and work, the Legislative Assembly submitted to the Legislative challenges with the design Parliamentarians in
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becoming well-positioned to ensure a strong level of prepare plans for the continuity attention by the province’s to thrive in times of readiness, and to identify of Parliaments in the event of a Auditor-General have been crisis, by being able to additional areas for follow-up. disaster and is expected to have valuable for holding government meet and be seen to be Work is advancing on robust a life span of four years after to account for action on meeting when needed. business continuity, emergency which, the working group will emergency and earthquake Effective preparedness preparedness and a disaster meet on an as needed basis. The readiness. The Public Accounts also demonstrates a clear recovery plan consistent with working group was formed last Committee’s two decades of commitment to broader government business continuity year and held its first meeting at work on the Auditor-General’s public sector responsibilities plans, supported by work carried the Ontario Legislative Assembly. performance audits on to citizens and government, out by a specialized professional The World Bank, in key aspects of earthquake and alignment with industry services company, Risk Masters, collaboration with the preparedness have provided standards and best Inc. The Assembly participates Commonwealth Parliamentary a long-term forum for hearing practices. in an annual province-wide Association, has been active from senior government ‘ShakeOut’ earthquake drill, in sponsoring meetings on the officials and experts on how Since the KPMG report and which is part of a global oversight of business continuity government is meeting its fact-finding visits, the Assembly ShakeOut event with over 5.6 plans. During the past year, responsibilities to citizens for has worked with government’s million participants world-wide the Clerk of the Legislative earthquake preparedness. The emergency management and has developed personal Assembly of British Columbia Legislative Assembly’s attention office on the enhancement and safety and emergency training has been privileged to participate to emergency and earthquake testing of business continuity programs for Parliamentarians in two meetings - both in preparedness has also increased and emergency preparedness. and staff that work at the Kathmandu, Nepal - on the issue awareness by the Assembly’s Business continuity plan test Assembly. of earthquake preparedness, Members and staff of the exercises have been undertaken After the tragic October business continuity and disaster importance of disaster readiness 2014 attack at the Canadian recovery. The work of the small and business continuity plans for “While House of Commons in Ottawa, group is ongoing. the Assembly itself. The Auditor- parliamentary jurisdictions General has helped to identify Parliaments across the country examined Conclusions from British gaps and recommend areas have a shared their security frameworks Columbia’s Experience for enhancing the Assembly’s and readiness. In British British Columbia’s experience disaster and business continuity obligation with Columbia, the Legislative indicates that strengthening plans. governments Assembly Management emergency preparedness is a While Parliaments have Committee concluded that a long-term process for national a shared obligation with for emergency principled approach to security and sub-national jurisdictions. governments for emergency preparedness, and accessibility should be Progress depends on making preparedness, the Legislative continued, with flexible, seamless preparedness an ongoing Assembly’s experience the Legislative and up-to-date arrangements priority, and on sustaining gains demonstrates that Parliaments Assembly’s to effectively manage security through continued incremental also require their own dedicated risks. The Committee’s 2015-16 actions. disaster and business continuity experience Accountability Report also made The Legislative Assembly’s plans, staff and resources to demonstrates the completion by 2016-17 work on emergency meet their unique challenges and of a comprehensive business preparedness over the past responsibilities in times of crisis. that Parliaments continuity plan a key strategic two decades and fact-finding Lessons learned from other also require their priority. visits to other jurisdictions parliamentary jurisdictions have indicate that Parliaments, reinforced this conclusion and own dedicated Other Efforts their committees and assisted with the development of disaster and The Clerk and the Sergeant- Parliamentarians have key roles best practices for the Legislative at-Arms are members of an to play in strengthening overall Assembly’s preparedness. business international committee titled emergency preparedness for continuity Legislative Assemblies Business citizens. Parliamentary oversight References Continuity Working Group of budgets and funding, law- 1 Available at: http://www.ipu. plans, staff and (LABCoN) consisting of the making and citizen engagement org/PDF/publications/drr-e.pdf resources to meet Parliaments of Scotland, United provide opportunities to make 2 For more information, Kingdom (House of Commons), preparedness a priority and please see: http://www2.gov. their unique Canada (House of Commons to government’s response in bc.ca/gov/content/safety/ challenges and and Senate), New Zealand and the event of an emergency. emergency-preparedness- the Legislatures of Ontario and In particular, the Legislative response-recovery/emergency- responsibilities in British Columbia. One purpose Assembly’s Public Accounts management-bc times of crisis.” of the working group is to Committee and continuing
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A VIEW OF THE CPA FROM CANADA
As a founding member of meet its mandate; a robust bilateral relations and promote the Empire Parliamentary governance structure should be democratic values. Through this Association, established in in place. initiative the parliaments agree to 1911, Canada continues to As a newly elected chair of actively work together towards play a significant role and is the CPA Canada, I would like to say the exchange of information second largest contributor to that Canada is back to re-engage on matters of common interest, the organization in its current with our Commonwealth participate in training activities form of the Commonwealth colleagues in support of these to promote parliamentary Parliamentary Association important objectives. I have had development, organize exchange (CPA). The current membership the opportunity to meet with Mr visits between parliaments of the CPA is made up of over Akbar Khan, the new Secretary- to create links between 180 Parliaments or Legislatures General of the Commonwealth Parliamentarians, and meet with Hon. Yasmin of the 53 Commonwealth Parliamentary Association (CPA) representatives of the parliaments Ratansi MP is a member countries and includes and with the Chairperson of the at conferences or seminars. Canadian MP for the Branches from both national and CPA Executive Committee, Hon. Parliamentarians of the Liberal Party. She is Chair regional/provincial levels. Dr Shirin Sharmin Chaudhury Canadian branch of the The CPA is an association MP, Speaker of the Parliament of CPA recently met with their of the Canadian Branch united as a community of Bangladesh during a Canadian counterparts in Turks and Caicos of the Commonwealth interest with respect for the delegation visit to London, UK. and Guyana to lay the groundwork Parliamentary rule of law, individual rights and The Canadian delegation had for twinning; Prince Edward Association, Vice- freedoms, and parliamentary the opportunity to hold exclusive Island with Turks and Caicos and democracy and carries out discussions on new initiatives British Columbia with Guyana. Chair of the Standing its mandate irrespective of and goals for the future. I also Other provinces and Caribbean Committee on gender, race, religion, or culture. met the new Secretary-General countries are looking to establish Government Operations At its core, the CPA brings of the Commonwealth of Nations, their twinning initiatives. These and Estimates and a together Parliamentarians from Baroness Patricia Scotland. inter-parliamentary initiatives are Commonwealth nations to One significant development a natural extension of the strong Director of the Canada- promote democratic governance is the Caribbean Twinning linkages Canada has maintained Africa Parliamentary and to support greater mutual Initiative (CTI) currently being with Caribbean countries for many Association. She understanding and the sharing developed between Canadian decades. was the first female of best practices recognising provinces and territories and CPA Canada has a long history of both the commonalities and branches in the Caribbean, which accountability, democracy and Muslim elected to the the uniqueness of each of our will further enhance synergies pluralism that we hope to share House of Commons parliamentary systems. across the Commonwealth while with the CPA by fostering strong and is continuously Through its wide-ranging creating additional avenues relationships through activities working to engage activities, such as annual for collaboration. Similar to the that encourage the transfer conferences, numerous inter- twinning program Australia of knowledge. As part of CPA multi-faith groups parliamentary visits, informative initiated with Pacific Island Canada’s mandate to encourage in promoting peace, seminars and workshops, as well countries of the Commonwealth, the values of pluralism and harmony and respect as publications and research, our adaptation aims to ‘twin’ synergy, three women legislators for each other. She is the CPA fosters respect for each of the 14 provincial and from Jamaica, Guyana, and good parliamentary practice and territorial legislatures with those Turks and Caicos have been also a Fellow of the facilitates consultation among of 18 Commonwealth Caribbean invited to participate in the Chartered Professional its members on a regular basis. countries. This twinning initiative 54th Regional Commonwealth Accountants of Canada, The mandate of the CPA is to received unanimous consent Women’s Parliamentarian and a Certified Management develop and share benchmarks from all Canadian legislatures in Commonwealth Parliamentary of good governance and July 2012. Association meetings to be held Consultant, and Vice- to implement the enduring Our goal is simple. The CTI in St. John’s, Newfoundland in Chair of the GOPAC. values of the Commonwealth. provides a strong framework to July 2016. Their participation is It is important for the CPA to share best practices, enhance beneficial in enhancing ties and
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“To further allowing for the sharing of best Entitled Strengthening Above: The 13th CPA Canadian practices and accountability. Democracy and the Role of Parliamentary Seminar took support the To further support the CPA’s Parliamentarians: Challenges place in Ottawa, Canada from CPA’s mandate, mandate, the annual Canadian and Solutions, the May 2016 29 May to 4 June 2016. Parliamentary Seminar in seminar included working the annual Ottawa allows Parliamentarians sessions on the Commonwealth In March 2016, the Canadian Canadian from across several regions of and the role of the CPA, the Branch of the CPA travelled the Commonwealth to join in operations of the Canadian to London, United Kingdom Parliamentary the promotion of democratic Parliament, parliamentary and Valetta, Malta for bilateral Seminar in governance and support of committees, financing elections, meetings. In addition to learning a greater understanding of the role of political parties about the operations of the Ottawa allows Commonwealth parliamentary and how to engage citizens, respective legislatures, the Parliamentarians systems. Many participants among other issues. Moreover, delegation gained significant travel great distances to the seminar gives Canadian insight into the major issues of from across participate in the seminar Parliamentarians the chance the day. One significant challenge several in the spirit of cooperation to learn about developments the delegation heard about is how and knowledge sharing as a in other Commonwealth the Commonwealth is coping regions of the means of strengthening the parliaments and hear from the with increased levels of migration Commonwealth foundations of our democratic varying perspectives of our as a result of climate change. institutions. Over the course of counterparts. The issue of climate change is to join in the the seminar, we examine many As representatives of our of major concern to the CPA promotion of important topics that underpin citizens, it is vital that we take and was a priority topic during parliamentary democracy and advantage of the forums that the Commonwealth Heads of democratic the fundamental principles bring together decision-makers Government Meeting (CHOGM) governance enshrined in the Commonwealth to take stock of the difficulties we in 2015. Leaders and Ministers Charter. For 13 years, the annual face, engage with one another to had constructive discussions and support CPA seminar has proven to identify common solutions, and as on key issues such as climate of a greater be a forum that encourages a result, ensure public confidence change, sustainable development, collaboration. In working in our democratic process and our human rights, migration, and understanding of together to build an informed parliaments. By meeting together the rising levels of global Commonwealth parliamentary community, we in this way, we come to see that displacement and refugee flows. are, at the same time, building although we may live in different To further strengthen our parliamentary goodwill among our countries parts of the globe, our challenges commitment to address climate systems.” and enhancing our democratic are not so different and common change, Canada has signed on institutions. solutions are possible. to the Paris Agreement and is
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committed to working with CPA friendships and alliances that will Another example to help only through such collective members, especially the small allow us to confront any challenge, Parliamentarians exercise due action, through the building of states, who understand the political, economic, environmental, diligence on the public purse friendships and partnerships, that immediate risks of a warming or of any sort – together. is to engage with the public we can meet whatever global planet and rising sea levels in Canada’s newly elected accounts committee. One challenges may come. To this an effort to support resilience Liberal government has such organization has been end, Canada’s ethos of pluralism building. committed to placing renewed developed by Malta, called the and engagement serves as It is clear that the challenges emphasis on our multilateral Commonwealth Association of a model for Commonwealth that confront us are many, relationships. As such, the Public Accounts Committees nations to tackle the great demanding our attention, our Canadian Branch of the CPA (CAPAC). I propose that the challenges they face. deliberation, and our action. The will explore how best we can CPA partner with CAPAC to As we look ahead to the 62nd CPA has a special role to play address such issues of global leverage their expertise in anti- Commonwealth Parliamentary in bringing together law-makers consequence while recognizing corruption issues in order to Conference, let us embrace to deliberate novel solutions to that our resources are finite. maximize our shared efforts. the values we share, focus the evolving challenges facing CPA activities focus on the As we carry out our mandate on the hurdles before us, and Commonwealth citizens. To meet Commonwealth’s commitment to promote the values of the commit to a cohesive vision for these global challenges, we to its fundamental political CPA, there is room to synergize parliamentary cooperation. must first ensure that we create values, including just and honest with other organisations when the institutional and personal government. I believe it would it makes sense from a resource connections – the friendships and be beneficial to capitalize on perspective. Below: The CPA Canada partnerships – that allow us to the expertise developed within Canadian Parliamentarians Delegation meet the Chairperson learn from each other, to support other organizations with similar firmly believe that robust of the CPA Executive Committee, each other, and to assist each objectives. relationships are complemented Hon. Dr Shirin Sharmin other when overcoming adversity. For example, the Global and sustained by multi-faceted Chaudhury MP and Mr Akbar When we harness our collective Organization of Parliamentarians cooperation across a broad Khan, CPA Secretary-General strength from the great diversity Against Corruption (GOPAC) is range of areas, and the Canadian in London in March 2016. The of the Commonwealth nations, we the only international network Branch of the CPA is using delegation was led by Yasmin can institute long term changes to comprised of Parliamentarians this belief to fully support the Ratansi MP, Chair of CPA improve the lives of our citizens. that focuses exclusively on mandate of the CPA. Canada and included Kelly Commonwealth members are combatting corruption. Many Parliamentarians individually McCauley MP, Hon. Senator not immune to the challenges of the organization’s goals and parliaments institutionally David Smith PC QC, Hon. brought on by a changing overlap with the values that the must find new ways to work Senator Claude Carignan climate. The strength and value CPA strives towards: integrity, together to build on our accompanied by Elizabeth of the Commonwealth lies in accountability, collaboration and shared past and to construct Kingston, CPA Canada Federal working together, and forging the diversity. our common future. For it is Branch Secretary.
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BUILDING PARLIAMENTARY STAFF CAPACITY At the 2016 Montreal Symposium of Parliamentary Training Institutes, a Global Network of Parliamentary Training Institutes is formed
Thomas Cedric It is now commonly accepted essentially through their home- than longer programmes? What that parliaments have an country non-governmental format of courses keeps learners Eboutou is a important impact on good organizations, such as the engaged and motivated? Should Research Assistant governance and development. In Parliamentary Centre in Canada programmes be delivered for Rick Stapenhurst, the mind of many, however, that and the National Democratic online, in-class or both? Should Principal Investigator impact comes only as a result of Institute for International Affairs coaching and/or mentoring be MPs’ actions undertaken while in the United States. Lately, we part of such programmes? for Canada’s Social fulfilling their lawmaking and have seen many developing To help answer these questions Sciences and Humanities oversight functions. The role of countries establish their own and to facilitate the exchange of Research Council (SSHRC) parliamentary staff has often parliamentary institutes and knowledge among developers and project to establish been overlooked. With high many others are in the process deliverers of parliamentary staff MPs turnover rates observed of creating theirs. For the newly capacity-building programmes, a PTI Community of in recent elections, several established institutes or the McGill University in partnership Practice and for the analysts have come to realize institutes in the making, the with the World Bank, the British Academy-DFID that the influence of parliaments challenges ahead will be pretty Commonwealth Parliamentary project on The Role of on countries’ political and much the same. Association (CPA), and with economic life cannot be Firstly, challenges related the generous support of the Parliaments in Curbing materialized effectively without to the suitable institutional Canada’s Social Sciences and Corruption. a stable, well-trained and design model for those Humanities Research Council professional parliamentary staff training institutes: how (SSHRC) convened the first global acting as the “corporate memory should parliamentary training Symposium of Parliamentary of parliamentary institutions.” institutes be funded to insure Training Institutes. The symposium The burgeoning of parliamentary their autonomy and their was held in Montreal, Canada on staff capacity development effectiveness? Should training 13-14 May 2016 and brought programmes that we are institutes be part of parliamentary together a group of scholars, witnessing now is a response institutions or academic practitioners and executives of to the need of a well-trained institutions? What type of parliamentary institutes across the parliamentary staff. However, we relations should training institutes globe (Ghana, UK, Canada, Kenya, can regret the little chaos that have with the Parliament as an and Cambodia). Presentations and exists in the world of parliamentary institution? With its members? discussions were articulated into staff training programmes: With the staff serving those three distinct but connected blocks. unnecessary duplication of members? With institutions The first block was themed curricula, little collaboration or related to the Executive? ‘Parliamentary staff - a critical at worst, competition among Secondly, issues related component of good governance’. existing programmes. It seems like to identification of needs and The block was designed to every time a parliamentary staff desired outcomes: what are draw a framework within which training programme is to be set up, the relevant training needs for the upcoming core discussions developers, deliverers and sponsors parliamentary staff? Do courses were to take place. Presenters want to reinvent the wheel, have to be created from scratch? were tasked to identify some thus ignoring the accumulated Furthermore, how to ensure that of the channels whereby knowledge and experience of recently trained staff actually parliamentary staff could impact already existing programmes. apply the acquired skills and good governance. Following the The earliest parliamentary knowledge? Thirdly, challenges welcome and introductory remarks staff capacity-building related to the delivery of capacity- from Dr. Carmen Sicilia, Associate programmes were often funded building programmes: are shorter Dean of the School of Continuing and designed by bilateral programmes/certificates more Studies at McGill University, Dr aid agencies and delivered suitable for parliamentary staff Rick Stapenhurst, Professor of
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professional development. Ms Bussette ended her presentation with an overview of tools, initiatives and programmes developed by the CPA to enhance the capacity of parliamentary staff in the Commonwealth. For example, the CPA offers: • Professional development seminars and workshops, including Regional workshops; • Regional Staff Development workshops for the Africa, Asia, South-East Asia, Pacific and the Caribbean, Americas and Atlantic regions. • Support for participation of parliamentary staff to the McGill/World Bank International Professional Abovet: Delegates at the Parliament to impact the indicators and state agencies (ministerial Development Programme 2016 Montreal Symposium of just mentioned is determined departments, state auditors, for Parliamentary Staff. Parliamentary Training Institutes. equally by Members of Parliament statistical offices, etc.) provides The topic of the afternoon themselves on one side and on the MPs with indispensable sources session was: “What does Practice at the McGill Desautels other side, by parliamentary staff: of information to improve contemporary research tell us about Faculty of Management, set out their number and their training. the quality of lawmaking and parliamentary staff development?” It to answer the thought-provoking Mr Dirk Toornstra, former oversight activities. featured the following presenters: question, “Does parliament Director of the Office of the The last presenter of the Mr Paul Belisle, former Clerk of matter?”— a question inspired by Programme for Parliamentary morning session was Ms Arlene the Canadian Senate; Dr Louis Lord Philip Norton, a Member of Democracy at the European Union Bussette, Assistant Director of Imbeau, Director of the Centre the UK Parliament, who warned Parliament explained that the Programmes at the CPA. Like for the Analysis of Public Policy twenty years ago that the ability role of parliamentary staff is even her predecessors, she made (CAPP) at Laval University in of parliaments to influence the more important today than before. the audience realise the vital Quebec; Mr Mitchell O’Brien, direction and values of political and In this new era of ‘instant politics’ role of parliamentary staff in a Governance Programme Leader at economic life is never guaranteed. characterized by the omnipresence democracy. The CPA published the World Bank; and Dr Rasheed Using a set of recent data, of social media, politicians tend to in 2006 a set of Recommended Draman, Executive Director of the Dr Stapenhurst made the point favor actions with ‘instant returns’. Benchmarks for Democratic African Centre for Parliamentary that Parliament does matter. As a result, the battle for attention, Legislatures. These benchmarks Affairs (ACEPA) based in Ghana. He showed that parliamentary development of public image and are “a framework that sets out what Mr Belisle’s presentation oversight is strongly correlated debates on the hottest topical constitutes effective democratic offered a good overview of to several key political, social issues are favored at the expense practice in contemporary contemporary research on and economic indicators. In the of long-term and more impactful parliaments […] aimed at making parliamentary staff development. same vein, countries with high actions. This context coupled parliaments more effective and Particular attention was given to parliamentary oversight were often with the high turnover of MPs democratic institutions.” Ten of a seminal study conducted by the found to also have higher GDP has created parliaments where these benchmarks stressed the World Bank in conjunction with the per capita and lower perceived MPs have weaker knowledge importance of a professional and CPA and La Francophonie. corruption. Dr Stapenhurst and experience of parliamentary well-trained staff. The study used survey went further and showed that processes. While there are virtually no questionnaires and interviews in countries where Parliament’s The role of parliamentary staff prescribed academic programmes to assess and specifically Public Accounts Committee is critical to the good functioning preparing people to assume identify the training needs to be (PAC) had been more productive of our democracy because a parliamentary staff role, addressed by the parliamentary (productivity being measured parliamentary staff assist MPs parliamentary staff are expected capacity-building programmes here by the number of reports in the accomplishment of their to perform at the highest level in the making. The analysis produced), corruption tended to main duties: representation, right after hiring. This situation of the answers collected be better controlled and the Gross lawmaking and oversight. For makes parliamentary training during those surveys yielded a National Income per capita tended example, staff within its fact- programmes even more relevant series of principles that could to be higher on average. According based research services and its because they offer opportunities guide those developing their to Dr Stapenhurst, the ability of contacts with other institutions for continuing education and own parliamentary training
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programmes. Some of these capacity of individual MP quite recently established (2011), to address issues like gender principles are as follows: the and parliamentary staff. the PIC has many attributes of inequalities and marginalization. primary audience of parliamentary • The institutional approach a model parliamentary institute. Furthermore, a countrywide capacity training programmes should where the programme seeks It is demand-driven: created at needs assessment is underway to be parliamentary staff from all to strengthen the Parliament the request of the members inform the CPST’s work after the sectors of the Secretariat and as an institution or a of Cambodian Parliament 2017 general elections. similar programmes should also selected institution under and parliamentary Secretary- Its successes notwithstanding, be developed for Members in the umbrella of Parliaments Generals. Mr Yeat explained the CPST deals with some the future. Furthermore, the like oversight committees. that the PIC follows a systemic challenges that Dr Kamau shared programmes should strike a • The practitioner exchange approach to capacity building: with the audience. One of these good balance between theory approach where like-minded it assists in capacity building at challenges is related to the financial and practice; the programmes professionals or MPs are all the stages of the activities autonomy of the Centre as many should be unique and should not brought together to learn from related to parliamentary functions trainings provided are still donor- compete with existing efforts; each other’s experiences. (representation, lawmaking and funded. Also, even four years after the course content should Mr O’Brien’s presentation oversight). Besides its more its establishment, the Centre is still be designed to concentrate was followed by the last block traditional services, the PIC searching for the best model for its on ‘how’ parliaments work of the symposium themed: “The also offers general professional structure and its staffing. with a focus on the students’ Practitioner’s Perspective”, which and skills development classes The Q&A session that followed local parliaments. E-learning was led by Dr Rasheed Draman. like English language classes. was dedicated to discussions emerged as a good alternative to Dr Draman presented to the When asked how he saw the on questions coming from the residency programmes because audience his perspectives on development of the PIC, Mr. presentations held since the of the travel cost they entail; parliamentary staff training. Dr Yeat stated his vision which beginning of the symposium. however, clerks surveyed have Draman has been working with includes extensive ‘South-South’ While it would be naïve to believe expressed concerns related to African parliaments for more than cooperation. The PIC intends that the Montreal symposium e-learning availability in some 10 years. His presentation first to increase knowledge sharing provided answers to every single countries and its effectiveness. highlighted the main issues faced and capacity building with the question related to parliamentary Finally, the surveys indicated by parliamentary administrations parliaments of neighbouring capacity building, it definitely met that parliamentary programmes in Africa and re-enforced the countries: Laos, Myanmar and one of the needs expressed by should have clear learning idea that a strong, dynamic and Thailand. participants, namely the need to objectives and practical exercises. effective Parliaments cannot The last presentation of the have a forum to share experiences Dr Imbeau presented exist without a parliamentary Symposium was given by Dr best practices and to learn from an example of a typical administration of equal quality. Nyokabi Kamau, Director of the each other. Participants agreed to parliamentary staff training Parliamentary staff training can Center for Parliamentary Studies establish a ‘community of practice’ programme at Laval University. be, according to him, a way to and Training (CPST) of Kenya. Her to allow the discussions that His presentation focused on how strengthen African parliaments. exposé detailed the functioning and started in Montreal to continue and the programme is offered today. Dr Draman argued challenges of one the earliest and deepen. The Global Network of The Laval University partners that parliamentary training avant-garde parliamentary training Parliamentary Training Institutes with the Québec National programmes be demand-driven institutes in sub-Saharan Africa. The (GNPTI) was thus born, with Assembly and the International instead of being supply-driven: CPST was created by the Kenyan McGill University offering to host a Organization of Francophonie this will ensure that they provide Parliament to serve a broad base of web platform for such exchanges. and targets parliamentary staff services that are considered a clients including not only the Kenyan Dr Kamau offered to host the from French-speaking countries. priority by the targeted recipients. MPs and staff, but also the members next symposium of the GNPTI in Mr Mitchell O’Brien made He further explained that training and staff of county legislatures, Nairobi, Kenya in 2017. a presentation on how his needs should be aligned to more as well as other stakeholders and organization (the World Bank) strategic needs. Also, he stressed individuals interested in parliamentary For further details on the Global views parliamentary development. the importance of communication administration. Many participants to Network of Parliamentary Training According to Mr. O’Brien, a and coordination, which he the symposium found the CPST’s Institutes, please email: Frederick. parliamentary capacity support believes would help achieve some initiative to train and serve members [email protected]. project should be designed synergies. Lastly, he pointed out and staff of the parliaments in the in order to be: a) scalable; b) the need for training programmes region to be innovative. For details of McGill University- sustainable; c) results-focused; to be sustainable and ensure Also very interesting is the CPA International Professional d) integrated; and e) capacity knowledge transfer in the long run. eclectic and ever evolving nature Development Programme for building focused. Mr. O’Brien On its second day, the of curricula at the CPST. In addition parliamentary staff, please email presented three broad capacity symposium started off with a to traditional trainings in legislative [email protected]. building approaches: presentation from Mr Dararith and procedural matters, in public • Individual approach where Kim Yeat, Executive Director of finance, in human resources and the training programme the Parliamentary Institute of parliamentary administration, etc., would seek to enhance the Cambodia (PIC). Despite being the CPST has also made sure
The Parliamentarian | 2016: Issue Two | 155 PARLIAMENTARIANS’ ROLE IN DEFENDING HUMAN RIGHTS PARLIAMENTARIANS’ ROLE IN DEFENDING HUMAN RIGHTS The work of the All-Party Parliamentary Human Rights Group in the UK Parliament
As a UK Member of Parliament, and stable societies. We note recognised as the human rights and like many Parliamentarians that these rights are universal, champion in the House of Lords. throughout the Commonwealth indivisible, interdependent and The UK Parliament and the wider world, my interrelated and cannot be has recognised All-Party priorities have been the effective implemented selectively. We are Parliamentary Groups (APPGs) representation of my constituents implacably opposed to all forms for decades now. APPGs are and the scrutiny of domestic of discrimination, whether rooted informal cross-party groups Government policy, programmes in gender, race, colour, creed, run by and for Members of the and spending. But in addition I political belief or other grounds.” House of Commons and the have also felt compelled to use The Communiqué of the House of Lords (usually from the the Parliamentary platform and Commonwealth Heads of back-benches), and can involve Rt Hon. Ann mandate to promote respect Government Meeting in Malta individuals and organisations Clwyd MP is a UK for fundamental political and in 2015 similarly stated that “all from outside Parliament Member of Parliament civil rights in the UK and further human rights are equal, indivisible, in their administration and and has represented the afield – to ensure that those who interdependent, interrelated and activities. Registered APPGs Cynon Valley, a former govern serve, and are answerable universal” and went on to urge must conform with rules about to, those who are governed. Members “to promote and protect cross-party membership and mining community Political and civil rights have, all human rights and fundamental transparency about their in the South Wales particularly since the Second freedoms.” activities and funding. Valleys since 1984, after World War, largely become Having committed to I have noted that Parliaments a career in journalism international obligations – respecting those rights, in other Commonwealth countries to which all, or at least the countries need to be held to have similar informal cross- and broadcasting. She overwhelming majority of, account for their actions and for party groups, although with the is a member of the Commonwealth states have how they promote compliance exception of those in Canada Foreign Affairs Select signed up. with those rights in their foreign and Australia, it would seem most Committee, of the Indeed Commonwealth policies - in reality. Parliaments in the Commonwealth member states have recently As a Parliamentarian in have groups focused on Inter-Parliamentary reaffirmed their commitment to the UK, there are certain strengthening relations with other Union’s Committee on Commonwealth core values and tools I have found particularly specified countries (or groups of the Human Rights of principles, including international helpful in holding both the countries), as opposed to working Parliamentarians and human rights obligations, UK Government and other on thematic issues. These groups through the Commonwealth Governments to account – are often referred to as “Friendship has been the Special Charter 2013, which states: one of which is the All-Party Groups”. Of course, if there are Envoy to the UK Prime “We are committed to the Parliamentary Human Rights groups focused on thematic issues Minister on Human Universal Declaration of Human Group (PHRG), which I have in other Parliaments, I would be Rights in Iraq from 2003 Rights and other relevant chaired since 1997. delighted to know more from my human rights covenants and The PHRG is one of the Commonwealth Parliamentary to 2010 under the Labour international instruments. We many All-Party Parliamentary colleagues. Government. She has are committed to equality and Groups (APPGs) in the UK Though APPGs have been also chaired the All-Party respect for the protection and Parliament – though I am proud maligned to a certain extent Parliamentary Human promotion of civil, political, to be able to say that this is one in recent years in the UK, economic, social and cultural of the most long-standing, having particularly as regards the extent Rights Group (PHRG) rights, including the right to been founded in 1976 by my to which some outside bodies since 1997. development, for all without distinguished Parliamentary and companies are able to discrimination on any grounds as colleague, Lord Avebury – who exert what is felt by some to be the foundations of peaceful, just sadly died recently and was widely undue influence in Parliament
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and among Parliamentarians, I across the political spectrum, civil rights; it also entails the miscarriages of justice. believe that the PHRG – along together for the greater good. safeguarding of the rights of Promotion and protection with a number of other APPGs - More generally, I believe that our constituents and the wider of fundamental rights also is an example of how an APPG the most successful APPGs fill electorate, and requires us to contribute to longer-term can bring Parliamentarians, in gaps in the existing and more hold Government to account security and prosperity from both our Houses and from formalised Parliamentary system; as regards their international throughout the world, by offer equal opportunities for all human rights commitments. providing vital outlets and “As a Parliamentarians to get involved; We, as Parliamentarians, no mechanisms for people to allow Parliamentary members to matter which party we belong resolve conflict and mediate Parliamentarian in receive and exchange relevant to, should therefore recognise differences non-violently, and for the UK, there are information from a wide range our special responsibility to be business to be conducted with of sources, as well as develop pro-active in the defence of greater confidence. certain tools I have and deepen areas of expertise; rights and support for victims of The PHRG works therefore to found particularly facilitate networking between violations. In addition, so much keep human rights – and the voice Parliamentary colleagues, more can be done to promote, of victims throughout the world helpful in holding Government officials and other project and protect these - on our Government’s and the both the UK stakeholders; and enable more rights when Parliamentarians international community’s agenda. inclusive policy coalitions to be work together to reinforce the Many UK Parliamentarians have Government and built. message that these rights apply seen the PHRG as a meaningful other Governments I believe there are some to everyone – regardless of way to plug what many of us subject areas which naturally political affiliation, race, ethnicity, consider to be a gap in our to account – one lend themselves to a more non- religion or sexual orientation. Parliamentary system. of which is the All- partisan approach, one of which Every government gets it Our Parliament, like many is Human Rights. wrong sometimes – and tries others in the Commonwealth Party Parliamentary As elected Parliamentarians, to overreach itself. Within and around the world, has a Human Rights we are to a large extent a every society there are number of formal Committees product and protector of the engrained prejudices which made up of members of Group (PHRG), international human rights serve to marginalise particular different parties which consider which I have regime. Carrying out our groups and can result in policy issues, scrutinise the mandate depends on the ability abuse, persecution, systemic work and expenditure of the chaired since 1997.” to exercise our political and discrimination - or even Government, and examine
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proposals for primary and conduct of thematic inquiries on European Union. human rights are usually one of secondary legislation. topics of its choice. The FAC also chooses its many other issues covered, such One of the Joint Committees Our Parliament also has own inquiries, and calls for as trade, security and counter- is the Human Rights Committee, a Foreign Affairs Select evidence from a wide range of terrorism, and conclusions and made up of Members of both Committee (FAC), of which I sources. The usual culmination recommendations are directed at Houses, which has a mandate am currently also a member, of an inquiry is a report in which the UK Government. to examine matters relating whose remit is to examine the conclusions are reached and In contrast, the PHRG is to human rights within the expenditure, administration recommendations made to the able to take a more focused UK, including the scrutiny of and policy of the Foreign and UK Government, who then have approach to international human every Government Bill for its Commonwealth Office (FCO), to give a detailed response. The rights matters, with a view to compatibility with human rights, other bodies associated with reports are also often debated. both trying to hold the British the scrutiny of the Government’s the FCO and the way in which Although human rights Government to account on an response to court judgments the FCO is discharging its matters can be the sole subject on-going basis in its foreign concerning human rights, and responsibility for UK participation matter of a report, particularly policy as regards its international the UK’s compliance with in international and regional in connection with the review of human rights obligations, as its human rights obligations multilateral organisations such the FCO’s annual human rights well as engaging with the contained in a range of as the United Nations, the report, or can feature in reports wider international community international treaties, as well the Commonwealth, NATO and the on more wide-ranging topics, to generate momentum to
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end serious and systematic participation and space; and, raise are key, as many situations In this regard, I have been violations wherever they may serious concerns with appropriate are complex and concern very interested to see that occur. It aims to mobilise UK international organisations, entrenched vested interests Parliamentarians from different Parliamentarians, from across such as UN agencies and the resistant to change. regions in the Commonwealth the political spectrum, to use International Committee of the Achieving redress and reform have been meeting in the last few the Parliamentary platform and Red Cross (ICRC). can involve identifying specific years and issued Declarations, mandate, for these ends. We can also ask to meet problems with capacity or lack such as those from Mahé, Pipitea More specifically, as PHRG Ambassadors and officials of training, and/or helping and Kotté, which acknowledge members, we can call on the from other countries – and are to generate the necessary the critical role Parliaments and Foreign and Commonwealth often able to meet with our awareness, understanding and Parliamentarians have to play and Office (FCO) – Ministers and Parliamentary counterparts – political will. Sometimes judicial commit them to act to promote officials – to meet with us; ask the including through organisations proceedings may be the most and protect human rights. UK Government to raise and lobby such as the Commonwealth appropriate and effective method I look forward to seeing how on related issues with relevant Parliamentary Association and of redress, and to stop further this initiative evolves and to counterparts; support and assist the Inter-Parliamentary Union – to abuses being committed, so exploring whether and how the with grassroots efforts in countries exchange information and discuss support for victims in their quest to PHRG could support and learn to strengthen good governance challenges and issues of concern. access formal justice mechanisms from future follow-up activities, and protect civil society Almost every week when may be called for too. which will hopefully draw on the the UK Parliament is sitting, Recognising good practice, expertise of the Commonwealth the PHRG organises meetings, progress and meaningful Parliamentary Association, open to all Parliamentarians, and efforts to address long-standing under the leadership of its otherwise communicates – by human rights problems is also new Secretary-General, Akbar letter, email and on the phone constructive. Giving credit where Khan who is also introducing - with the above. The PHRG credit is due - to encourage a number of interesting new “Recognising also informs its members on a those, whether in Government, activities and programmes, weekly basis about the relevant Parliament or civil society, to CPA branches, Commonwealth good practice, business in Parliament relating continue doing what is necessary Women Parliamentarians and progress and to international human rights but sometimes unpopular, other Commonwealth bodies matters for the coming week expensive and/or time-consuming working in this area, including the meaningful efforts – to encourage greater use of to right serious wrongs. Commonwealth Secretariat, the to address long- the Parliamentary platform and Collective cross-party Commonwealth Human Rights processes, such as scheduled action is the way the PHRG – Initiative and the Commonwealth standing human sessions involving specific and the APPG system more Journalists Association. rights problems is departmental Ministers, debates generally - works, so efforts I would like to conclude and motions, on behalf of human are constantly being made to by thanking the many also constructive. rights victims. engage with country and other Parliamentarians in the Giving credit The PHRG is not tied thematic APPGs where there is Commonwealth who act in either to any particular NGO, an overlapping interest to bring defence of international human where credit is institution or think tank. This relevant issues and stakeholders rights and on behalf of victims. due - to encourage allows our members to be to the attention of as many I have attempted to provide exposed to different views, Parliamentarians as possible. information – and possibly those, whether analyses and approaches, to Work with Parliamentarians some inspiration – about how in Government, develop constructive working in other countries, including in Parliamentarians are able to relationships with many different Commonwealth countries, is work together to achieve these Parliament or stakeholders, to build bridges also something the PHRG would ends, including through informal civil society, to between decision-makers and like to develop further. I think it cross-party Parliamentary human rights victims, and to deal would be very useful to do more groups, such as the All-Party continue doing with serious human rights issues to promote the exchange of Parliamentary Human Rights what is necessary and related humanitarian crises information and share what has Group. My hope is that this that might otherwise be ignored. worked and what hasn’t in each article will kick-start further but sometimes The development of of our respective Parliaments, dialogue and interchange among unpopular, in-depth expertise and with a view to innovating and Commonwealth Parliamentarians, longer-term engagement, building on good practice, to enable us to identify innovative expensive and/or with decision-makers, civil as well as generating further ideas, best practice and further time-consuming society representatives and Parliamentary solidarity in opportunities – which would victims, and the harnessing connection with this work, and benefit our constituents, our wider to right serious of Parliamentarians wealth in defence of each other’s rights electorates and human rights wrongs.” of experience and networks when they are threatened. victims throughout the world.
The Parliamentarian | 2016: Issue Two | 159 REFLECTIONS ON WOMEN’S EMPOWERMENT
REFLECTIONS ON WOMEN’S EMPOWERMENT BY THE UK’S OUTGOING LORD SPEAKER
We all know that as we get The focus of my concern was together to achieve more older time moves faster! I have initially to understand better the equality for women generally but come now to the end of my five role of international assistance, in political life in particular. CPA years as the Lord Speaker and it particularly humanitarian relief, UK’s initial foray into working seems only yesterday that I first in improving life for the most with women Parliamentarians entered my office and donned disadvantaged. In later years in South Asia had come a year my robes in preparation for the it became clear that while the earlier. CPA UK hosted MPs Chamber. I arrived with few provision of aid was in most from Pakistan and Afghanistan tangible goals in part because cases useful, the real issue was and focussed on how best to I believed that I had to feel my the degree to which people in enhance the empowerment way. My predecessor as the first the underdeveloped parts of of women Parliamentarians. Baroness D’Souza Lord Speaker had the huge job the world had the opportunity It was a full programme of was elected as the of creating the job – my task was to be involved in decisions exchanges, briefings and visits second Lord Speaker in to provide a degree of continuity which affected their lives and on issues of women and politics, and gradually see where I could livelihoods. This is a question of governance and justice, the July 2011, taking office in make a contribution. Matters individual rights and my concern relationship between gender September. She entered to do with reform at this end of therefore became how to enable and development and gender the House in 2004 and Parliament move very slowly such freedoms. Not an easy task! based violence. was Convenor of the and the notion of bringing about I made myself a life member This had laid the foundations anything but the most gentle of the CPA the week I was for my 2013 visit to Pakistan, Crossbench Peers from step forward would be doomed appointed a peer and in the next where I was joined by a delegation 2007 to 2011. Baroness at the outset. few years joined delegations to of senior women Parliamentarians D’Souza has a special However I did have modest Swaziland, Pakistan, Rwanda, from the UK Parliament. interest in human rights aims - to try to make our relations Mozambique (all countries in The theme was economic with the House of Commons which I had worked before) and empowerment: did women and development issues. more cordial, to protect and Namibia. The access to ministers especially at the rural levels have She lived and worked promote the reputation of the and the opportunities to access to credit and how far in southern Europe, House of Lords and to continue question officials in some detail can female entrepreneurs act Africa, Asia and Oceania. and even expand the House of was a privilege. But I shared with as agents of change? During Lords outreach programme. It is other members of our various the course of the meeting, we She was director of an the latter goal that I would like to delegations and with the staff heard of microloans targeted at independent research look at in more detail – because of CPA UK a nagging concern women entrepreneurs, whose group focusing on it is largely in partnership with the that we were not able to follow output might otherwise not development and CPA UK Branch at the Houses up our visits by, for example, contribute to GDP. We also of Parliament that such outreach building more permanent and heard of the example in Sindh emergency aid. has been possible overseas. focussed institutional relations where surplus land is granted Baroness D’Souza Let me say briefly that my with our fellow Parliamentarians. to women by the Provincial studied Anthropology career in the past decades before This changed when I visited Government as a gift which at UCL and studied for I joined the House of Lords had Pakistan as Lord Speaker in can be transferred only to their been predominantly concerned 2013 and met with the Pakistan daughters. Meanwhile the her Doctor of Philosophy with overseas work both in Women’s Parliamentary Pakistan Parliament has passed at Lady Margaret Hall, development and human rights Caucus (WPC). In a country laws to protect a woman’s right University of Oxford. She contexts. I have lived and worked where perhaps one has reason to inheritance and to criminalise taught anthropology at in many different countries in to question the treatment of any attempt to bar women from sub-Saharan Africa, Europe, women in society, we found their inheritance. both the LSE and Oxford the Middle East, South and a vibrant group of women Research in Pakistan Brookes University. South East Asia and Oceania. who were determined to work shows a significant decrease
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in domestic violence within active members households where women are of the respective economically independent. We parliamentary learnt too that while educating caucuses and girls is the magic bullet of brainstorm how development, a specific kind we can continue to of education encompassing promote women in financial management had a parliament. particularly marked effect on The outcome changing women’s cultural for me has been mind sets, and encouraging constructive and entrepreneurs. the principles we In subsequent years, a third have established are gathering in Islamabad (Education instructive. Meeting and Maternal Health) and a fourth so many dedicated in London became occasions women, often to meet old friends and to working in truly report on progress. By this time adverse contexts, women Parliamentarians from moved me to adopt six countries across South Asia a further aim as Lord Speaker women as board members Above: The House of Lords is attended and the theme was what – to use whatever influence I see an increase in profits. So situated at the Victoria Tower role women can play in promoting might have to promote women there is more than lip service end of the UK Houses of women’s rights both in parliament as leaders in the political and paid to the increasing move Parliament. and in their constituencies. economic fields. towards gender equality – the Detailed attention to the Let me share with you some contribution of women is being restricted but constantly opened shape of the meetings was of the reasoning behind this carefully documented and and expanded so that all can beginning to take place. It was decision. One might for example recorded throughout the world. have a slice, women and men. agreed that rather than a series question in a world of so many The results are always weighted As Parliamentarians, we are of hugely worthy but essentially pressing problems why single in favour of a greater role for not just law makers but crucially non-interactive addresses the out the under representation of women in every aspect of life. we are also public opinion shapers. focus should be on workshops. women? Is it a pressing issue? Those who feel threatened My journey as Lord Speaker The aim here was to not An obvious answer to this is by women’s economic or indeed has been enormously enriching only engage each and every that women make up 50% of political empowerment will – this example of embracing member of the delegations but the world population and it is continue to say that this is not women’s economic and political to share personal experiences therefore simply undemocratic to a pressing issue – or that it will engagement is but one outcome of of what had worked and what have less than half represented happen anyway and thus there a very full five years. hadn’t in each of the countries in the political, parliamentary and is no need for such strenuous I will continue with those represented. Delegates would economic fraternity. efforts, such as those the CPA themes I have been lucky then bring this knowledge back “Women are a driving force undertakes along with many, enough to embrace beyond to their own countries, helping of our economies, formally and many other organisations when I step down as Lord to share best practice. Visits informally. Solutions to the current throughout the world. Violence Speaker. I believe we as to a closed women’s training crisis must therefore involve against women (including Parliamentarians have a clear prison, an organisation dealing women as key actors – building the shocking growth of anti- responsibility to join forces with with tackling violence against on their potential, recognising women acts of terrorism that other women’s groups around women, a women’s refuge and a their contributions and have made world headlines in the world and to create a critical foodbank were included. pronouncing gender equality.” the last couple of years), they mass insisting on equality. The It is always difficult to know This quote is taken from assert, is a far more important strands of my own professional exactly what impact such a the conclusions of the fifth issue. Of course this is a vitally journey from international series of meetings has. There Meeting of Women Speakers important matter but that does development, through human are difficulties in keeping alive of Parliament held in Vienna not negate the importance rights to political influence a transnational network of at the time of the economic of empowering women more have been fruitfully brought extremely busy women and crisis affecting some Eurozone generally. Perhaps more thought together. With a continued close ensuring that experience is countries and subsequent global could be given to countering the association with the CPA, I plan usefully shared on a regular recession and austerity. view that empowering women to make my contribution to a basis. But we are in the process More recent research in disempowers men? Women’s better world by promoting the of cracking the nut! I think the America and elsewhere has rights in whatever sphere are political education, participation time has come to sit around a recently revealed that those everyone’s rights. The economic and contribution of women. table with some of the more corporations that employ pie is not and should never be
The Parliamentarian | 2016: Issue Two | 161 WOMEN LEGISLATORS: FROM EMPOWERMENT TO NATION BUILDING WOMEN LEGISLATORS: FROM EMPOWERMENT TO NATION BUILDING The inaugural ‘Women Legislators: Building Resurgent India’ Conference took place from 5-6 March 2016 in New Delhi, India
Globally women have made years. India, being a federal Indian Parliament and of the remarkable gains – politically polity, has Legislatures in 30 State Legislatures was held they are proactive; socially States/Union Territories with in New Delhi from 5-6 March they are much better placed; 9% of the seats occupied by 2016 on the initiative of the Lok economically they are well women members. The country Sabha Speaker, Smt. Sumitra settled and they are aware of is undergoing a silent revolution Mahajan. The conference, the their human rights. Women’s in villages and towns where first of its kind, was attended by empowerment is a key tenet 1.27 million women have been 350 women members as well as of gender equality. In fact, elected as representatives of women Ministers, women Chief gender empowerment has the people thereby bringing a Ministers and other dignitaries three dimensions: political humane touch to the various thereby giving them a platform Dr D. Bhalla is an participation, political welfare issues. With such an to share their experiences, IAS officer serving as representation and political unprecedented large base of to draw strength from each the Secretary in the leadership. Over the years, elected women representatives other, to celebrate their role as Lok Sabha Secretariat, the realization that women’s across the country, India is today legislators and to build bonds of political participation and their talking not about gender equality friendship and understanding. Parliament of India, representation in the decision- or about under-representation. It was a unique conference of New Delhi, India. making process helps in There has been a paradigm shift women members, by women Dr. D. Bhalla has shaping the socio-economic in the approach from women’s members and for women held key positions development of the country, is welfare to development to members. The vision of the gaining momentum worldwide. empowerment. conference was translated into a in the Government India has a vibrant and Rather, the focus today is mission with the adoption of the of Nagaland as well mature democracy, represented how women legislators in India Resolution on the concluding as the Government by different sections of society. could contribute in the national day. of India. He has And the role of women members development. As members, The conference, with its in this journey of democratic they are already empowered theme ‘Women Legislators: participated in many governance is indeed and what is required is that they Building Resurgent India’, national as well as unquestionable. Presently, there should move beyond the frontier assumed greater significance international seminars, are 62 women members in the of self-empowerment to find with the august presence of the conferences and House of People, that is Lok innovative ways to empower the President of India, Shri Pranab Sabha, from a total strength people, society and the nation. Mukherjee; the Vice-President, training programmes of 543 members. Though Since the development of the Shri Mohammad Hamid in India and in different they constitute only 12%, the nation largely depends on the Ansari; the Prime Minister, countries. He has interesting fact is that there development of the States, Shri Narendra Modi; the Lok written many books are 40 new women members it is all the more important Sabha Speaker, Smt. Sumitra who have been elected for the that members of Parliament Mahajan; and the Speaker of the but the most popular first time to this House. The and State Legislatures work Bangladesh Parliament and the scholarly work has Council of States has 31 women together, think together and Chairperson of the Executive been on sustainable members out of a total strength act together to bring positive Committee of the CPA, Hon. tourism strategies. of 245 members. change in the lives of people. Dr Shirin Sharmin Chaudhary The percentage of women With this vision, a two day MP, as well as women members representatives at the national National Conference exclusively of Parliament and State level has improved over the of women members of the Legislatures at the conference’s
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inaugural function. National Conference of Women imperative. Women’s leadership Above: The President of India Inaugurating the conference, Legislators was a step in the and conflict resolution styles Shri Pranab Mukherjee (centre); the President of India, Shri right direction. The President embody democratic ideals Vice-President Shri Mohammad Pranab Mukherjee stated urged delegates that the and they tend to work in a less Hamid Ansari (second from left); that political representation conference agenda should be hierarchical, more participatory Prime Minister Shri Narendra of women in Parliament carried forward and there should and collaborative manner than Modi (second from right); Lok had not increased beyond be sustained efforts to take the their male colleagues. Thus, Sabha Speaker, Smt. Sumitra 12% since independence necessary follow up action. women’s contribution is crucial Mahajan (far left); and the reflecting an unfortunate Addressing the distinguished to building a strong and vibrant Speaker of the Bangladesh dimension of women’s gathering, the Vice-President nation, he added. Parliament and Chairperson of representation. He made of India, Shri Mohammad Welcoming the delegates, the CPA Executive Committee, the suggestion for improving Hamid Ansari underlined the Lok Sabha Speaker, Smt. Hon. Dr Shirin Sharmin women’s representation that women are catalysts for Sumitra Mahajan said that Chaudhury MP at the inaugural through reservation by making development; they are also the conference would find National Conference of Women necessary amendments to the the strongest voices for peace ways to channel the power Legislators on the theme of Constitution. In this regard, he and non-violence. Thus, their and responsibility of women ‘Women Legislators: Building urged all the parties across the political participation results in legislators so that they could Resurgent India’ held in March political spectrum to ensure tangible gains for democratic proactively and productively 2016, New Delhi, India. sufficient representation of governance, including greater contribute towards national women in the legislative bodies responsiveness to citizens’ welfare and development. a 27% increase in GDP which to enable them to play their due needs. He said that women in She observed that growth would result in a quantum jump role. He also made reference politics has two perspectives - rate or per capita income is in terms of economic and social to the United Nations’ theme women’s political representation not the only criteria for holistic development. of the 2016 International and women’s performance in the national development - it In the Plenary Session, Women’s Day as ‘Planet Legislatures. Though women’s should be commensurate with which deliberated on the theme 50-50 by 2030: Step It Up for political representation at the social development and good of the conference, eminent Gender Equality’. The global local bodies stood at 43.56% of governance as well. Referring dignitaries shared their valued community has to rededicate the total elected representatives, to a study of IMF, she said and rich experiences as women themselves to gender equality a commensurate increase in that if the women’s workforce in politics. The Union Minister, and women’s empowerment the Legislatures, both at the becomes equal to its male Dr. Najma Heptulla lauded the and the organization of the Centre and the States, is equally counterpart, then there would be importance accorded to women
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in the sub-continent, both at being. It political and social levels during promotes the last several decades, unlike social in Europe and the West, wherein inclusion women were still struggling even of the poor today to carve a political space and the for themselves. Sharing her vulnerable experiences, the Union Minister, by Smt. Sushma Swaraj urged empowering women members to focus on the people, higher goal of empowering the building nation which would empower cohesive them automatically. Women and resilient members make significant societies changes at the ground level and making in the lives of the public at institutions large and women, in particular. accessible Unlike their male counterparts, and women had an advantage while accountable interacting with the ordinary to citizens. inclusive growth and equitable Above: The conference heard citizens by thinking and acting The delegates pointed out that development; the need to from a wide range of speakers as a mother, as a sister and as a there were adequate policies but identify and respect the qualities both in person and via video link. daughter and could emotionally the evaluation and assessment of women and dignity of women; feel and relate to their pain and of policies and programmes and education for all and health their economic hardships and sufferings. need to be regularly monitored for all were the key issues day-to-day developmental issues. Placing the theme of the for effective implementation. discussed in this Session. The delegates agreed that apart conference in its perspective, The conference urged all the India’s economic growth story from ensuring that Government Hon. Dr Shirin Sharmin women members to particularly has caught the imagination of grants were properly utilised, it Chaudhury MP, Speaker of involve themselves with the the world. The Indian economy was also imperative to monitor the Bangladesh Parliament, monitoring of the Mid-Day Meal has fared reasonably well in the implementation of various observed that women have Scheme in the schools in their coping with global economic schemes and to forward the the potential to act as agents respective constituencies. challenges, and especially feedback to the Government. of social change in society The conference reaffirmed in the context of gargantuan India, demographically, is one and politics. As public that women can successfully challenges that it has had to of the youngest nations of the representatives, they play a handle multifarious confront. It has emerged as world with an average age of 29 pivotal role in improving the responsibilities, whether at a key player on the global years. By 2020, India would have working conditions of women home or in the workplace, more economic landscape. The 28% of the world’s workforce. and reducing gender-based so because of their inherent Second Business Session The conference observed discrimination in every field. quality of multitasking. The on ‘Contributing to Economic that this potential should be The women legislators could delegates were unanimous Development’ threw some light fully utilised and channeled to also help in creating space and that ‘women always give, they on the challenges in making create a skilled workforce to opportunities to their brethren never take’; women by nature development endeavours more take India to a higher economic to move forward and excel. She strive for social development in inclusive and people-centric. plane. The conference also summed up her address with whatever capacity they might Sharing her experiences, the advocated bringing in women an inspiring quote that ‘the hand be working and this very quality Chief Minister of Gujarat, Smt. into the mainstream of economic which rocks the cradle, can rule should be utilized to the hilt Anandiben Patel explained the activities and in promoting and the world’. for the betterment of society. importance of women-specific strengthening the base of micro, The conference had three They admitted that women have budgets aimed at implementing small and medium enterprises. Business Sessions on subjects proved themselves more credible women-only schemes. In that The session concluded with inter-twined with the main and effective in sustainable use direction, she mentioned that the a note that the country which theme of the conference. In of natural resources and also State of Gujarat had earmarked ensures gender equity brings the first Business Session investments made in them would a separate budget for the overall economic prosperity to the on ‘Contributing to Social yield better returns to society as development of women. The nation. Development’, the delegates compared to men. voters expect their legislators to An inclusive and participatory underscored that social The challenges of address their problems regularly governance reflects the views development is concerned with bringing under-privileged and in this context, she asked the and interests of the society from processes of change that lead and marginalized people members to frequently visit their which it draws its sustenance. to improvements in human well- into the mainstream for the constituencies to understand That being so, it needs to
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focus on how stakeholders can household matters including ages. Illustrating the resilience Panchayat levels regularly together take society forward finances, the conference of women as compared with as bridges of constructive in the right direction. More so, observed that good governance men, he recalled the experience dialogue between and when legislators, who are opinion comes naturally to women as it of Rwandan women when they among the people, the makers and policy planners, is ingrained in the very nature of shouldered the responsibility States and the Union; are involved, it will certainly women. At the national level, the of governance after the mass • Promote increased role of lead to transparent and good tenets of good governance are: extermination of Rwandan women in financial decision governance. The Third Business Rule of law, protection of human men following the genocide. making and fostering Session on ‘Good Governance rights, prevention of violence, Rwanda today has 64% women financial literacy among the and Legislation’ considered inclusiveness, responsiveness, representation in the Parliament, masses; the delivery mechanisms of transparency, independent and which is the highest in the world. • Proactively engage in the administration. Appreciating impartial judiciary. The delegates The conference concluded formulation, implementation the multi-dimensional role agreed that good governance with the unanimous adoption of and monitoring of that women play in managing should be participatory and the historic resolution whereby Sustainable Development families, relationships and aimed at fulfilling the aspirations women members resolved to: Schemes, and in particular of the people. Legislators, • Work for transparent, in meeting specified targets; “The Prime therefore, should be innovative accountable and inclusive • Engender all legislative and responsive, right from the governance and to and development plans for Minister called stage of framing of laws to contribute to the task of integrating gender concerns upon women creating their awareness among building a resurgent India; into the processes and citizens. • Strive for social and procedures; legislators to The Prime Minister, Shri financial inclusion with • Contribute to robust recognise their Narendra Modi, had all along a view to ensuring equal legislation and policy supported the conference and opportunities to all; making through study and strength as agents was present at the inaugural • Inform, communicate research and to coordinate of change and function as well as at the and educate citizens with the Administration at all valedictory session. Earlier, about the developmental levels for their efficacious to share their on the floor of the House, he programmes, proactively implementation; and experiences with had applauded the Lok Sabha monitor implementation • Engage with young people, Speaker for taking this initiative of schemes, effective who are the harbingers of their counterparts of convening the Women utilization of allocations and change and innovation; in local bodies. Legislators’ Conference. efficient service delivery encourage women to be Sharing his thoughts at the mechanisms; part of the developmental Women legislators valedictory session, the Prime • Work to ensure accessible, processes and procedures; should use and Minister observed that women inclusive and quality motivate communities and are inherently empowered, education with focus on citizens to engage with adopt technology they only need to be aware outcomes; governance issues; and for better of their inner strength which • Undertake to strengthen ensure follow-up action could not be realised unless accessible, affordable and towards inclusive and citizen- communication they face challenges. He equitable public healthcare centric governance and with their called upon women legislators infrastructure with effective building a truly empowered to recognise their strength as delivery at its core; and resurgent nation. constituents, agents of change and to share • Emphasize the need performance their experiences with their for greater synergy The conference gave many counterparts in local bodies. between the people and new learning experiences to and to gain Women legislators should the administrative/law the legislators to connect, to knowledge. use and adopt technology for enforcement agencies to synergize and to build new better communication with their ensure their welfare, safety bridges among themselves He expressed constituents, performance and to and security, especially and with their constituents. optimism about gain knowledge. He expressed safety and security of The message of the New optimism about ‘women-led women and the girl child; Delhi Conference was that ‘women-led development’, rather than the • Promote grassroots true empowerment of women development’, ‘development of women’. entrepreneurship, and legislators in all manifestations The Prime Minister stated improve the skill levels of means to deliver in social and rather than the that although multi-tasking is a the workforce; economic development and ‘development of modern managerial concept, it • Engage with Elected to carry forward the principles comes naturally to women who Women Representatives of good governance to build a women’.” have been practicing it since at the Municipal and resurgent India.
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One of the key principles record to be proud of and we from September 2015 until underpinning the establishment have put in place a number March 2016 and involved of the Scottish Parliament was of policies and procedures to a series of workshops that the Parliament should, in its ensure we operate fairly and supplemented by one to one operation and its appointments, equally. However, even with all coaching sessions. It was very recognise the need to promote of those policies and procedures important to us that all women equal opportunities for all. and with almost a 50:50 gender had an opportunity to put This is a principle that the balance in the organisation, we themselves forward for this and institution has always held dear found that women were still therefore, we agreed that any and the Scottish Parliamentary under-represented in senior woman could apply, regardless Corporate Body has, from the and decision-making roles. We of their grade or their role. We Susan Duffy is beginning, set out to be an decided it was important to look set out to look for women who Head of Committees exemplar as an employer. at why that was the case and had the potential to be leaders; and Outreach Services at Not only has the organisation to do something to make sure who had the ability to motivate always been committed to we were creating a truly level and inspire others; wanted to the Scottish Parliament. equality, it also recognises playing field. learn and were open to new Susan has worked for the there is compelling evidence Ensuring we have equality is ideas; embraced change and Parliament since 2002, that having greater diversity not just about having the right wanted to make the most of beginning her career as of thinking and talent in policies and procedures in place, their career in the Parliament decision-making leads to better it is about examining all aspects and fulfil their potential. a Senior Assistant Clerk performance. We have always of the way an organisation As we could only offer 15 for the Education, Culture monitored our activities to make operates to ensure there are no places on this pilot course, and Sport Committee. sure that we were complying hidden barriers. We wanted to we needed to undertake a She went on to become with equalities legislation, but highlight the importance of this degree of sifting and selection. we wanted to move beyond issue by establishing a leadership However, we were careful clerk to the Finance compliance and take a more programme for women. This was to avoid the perception that Committee, then Local strategic look at how we could the first leadership programme this was akin to a recruitment Government Committee ensure diversity and inclusion. to be established under the process for a job within the and she was head of the Therefore, when the Scottish Organisational Development organisation. Therefore, we Parliamentary Corporate Body banner. didn’t ask for applications. Parliament’s Business set up what we are calling our The Clerk/Chief Executive Instead, we asked women Team which organises Organisational Development and the Parliament’s senior to provide a short statement all of the business in the programme, we wanted to Leadership Group (of which I am setting out why they wanted to Parliamentary chamber ensure that equality was at the a member) were very happy to participate in the programme. heart of it. This overarching endorse this programme. That We asked women to cover and provides advice to programme has many strands, endorsement was extremely issues such as what motivated the Presiding Officer. but essentially it is designed to important as it signalled to all them, what they wanted to get help our staff to develop their staff this was something that was out of the programme, what potential and we want to do important to the organisation. We inspired them to do well in their this in an inclusive way. The were also extremely grateful to career and describe where they programme seeks to enhance have the support of the Presiding saw themselves in the future. leadership capability across the Officer at that time, Rt Hon. Tricia We were overwhelmed by the organisation and we are setting Marwick MSP. response we got – with around up a variety of initiatives that we The pilot programme which 60 women applying to take part hope will bear fruit. we ran in conjunction with an in the programme. However, this We know that as an external provider, was for 15 also made it an incredibly difficult employer, we have a track women. The programme ran job for me and the five other
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women who had to whittle this number down to 15. We were all very experienced in sifting applications and interviewing people but we knew we had to approach this exercise very differently. We were not looking for the ‘best person for the job’ but for the people who would benefit most from this programme and for a good blend of women who would work well together. From the initial number of women who sent in their statements, we chatted to 30 and this was one of the most rewarding experiences I have had working in the Parliament. It gave us an opportunity to talk frankly about our hopes, our fears, what might be holding us back and what we wanted to do about it. My colleagues and I who were having these chats organisation. Women who felt to progress that we need to Above: The launch of the are all women who hold senior they did not have the confidence tackle. As stated previously, Women in Leadership positions in the organisation to speak up, gained a greater the Scottish Parliament has Programme at the Scottish and it was incredibly important insight into how to increase a range of excellent policies Parliament. that we took an active part in their self-belief and to realise which promote fairness and these conversations, so that that their voice mattered. It also diversity. Therefore, we need equality across the Parliament. these women could see that we provided an opportunity to look to see if there are barriers Looking at things differently understood their aspirations and at different leadership styles and that are not so obvious. For requires everyone to recognise recognised the challenges they to show the importance of being example, the Parliament has where there might be issues to sometimes faced. an authentic leader. established a number of boards address and to be bought into So often, one of the barriers to As we were not able to have to oversee significant projects what is being done to further equality is a lack of role models. more women on this programme for the organisation. When we promote equality. If people do not see themselves and as we want this initiative to looked at the membership of As I mentioned earlier, this reflected in leadership and be something that is sustainable, those boards, we realised that Programme is part of a larger decision making roles, then we also established a Women’s women were under-represented Organisational Development it becomes more difficult for Network. The Network will be in this crucial area. This has Programme and we want them to imagine that they can run by a group from the Network two disadvantages – firstly, the inclusion and diversity to be ever succeed in these roles. itself and the plan is that we organisation is not benefitting integral to everything we do Therefore, it is very important will facilitate training sessions, from improved decision making within that Programme. We that I and my colleagues and discussions with guest speakers that diversity brings and intend to use the work we have the women who take part in and other events. secondly, women are not gaining done in relation to women as the Women in Leadership It is very important to the type of experience they need a template for policies and programme are prepared to act recognise that under- to help them gain promotion. programmes we devise for other as role models and to encourage representation in senior These are the kind of issues that groups within the organisation. and support other women across and decision-making roles we want and need to address as This programme and the the organisation. will not be resolved solely an organisation. establishment of a women’s This initial programme by women gaining more We intend to open up certain network underlines our has now concluded and confidence through a leadership Network events and discussions commitment to set an example the feedback has been programme. That would to everyone in the organisation. in empowering women to overwhelmingly positive. One somehow imply that if only While it is very important for the achieve their goals. participant said to me that it was women pushed themselves Network to have its own identity incredibly important for her to forward more, things would and to be responsible for the have a ‘safe space’ to be able change. As an organisation, programme that is devised, to discuss how she felt both we also have to look at it is also important to have a about herself and about the whether there are any barriers conversation about issues of
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When we celebrate we have some way to go too. have been actively promoting Commonwealth Day, we look Partly as a result of these low the importance of increasing at how we work together as a figures across the world, only 11 the participation of women family of nations and what we women currently serve as Head in the parliamentary activity can learn from one another. of State and 13 serve as Head of the Commonwealth with The theme of Commonwealth of Government. the Commonwealth Women Day this year was ‘An Inclusive However, I am pleased to say Parliamentarians (CWP) being a Commonwealth’ and I think this that amongst Commonwealth strong voice for the greater role was particularly apt following countries there have been some for women in our national and on from a fantastic International positive moves in the past year local legislatures. Women’s Day the week before. for women’s representation. Women need to be at the Dr Roberta Although we are seeing In Saint Kitts, 2015 saw the table in key domestic and some positive progress for first woman to succeed in an international institutions. It’s Blackman-Woods women’s representation in election; Trinidad and Tobago to be welcomed a woman, MP is a British Labour the public and political sphere reached the 30% target in their Christine Lagarde, is leading the Party politician who has across the Commonwealth, lower house - 31% to be precise IMF and, of course, we now have been the Member of there is still work to be done and - with the election of 13 women. Baroness Patricia Scotland as mechanisms that we can use Namibian female Secretary-General of the Parliament for the City to translate the huge potential Parliamentarians made Commonwealth and Hon. Dr of Durham since 2005. of women into equal political fantastic steps up with Saara Shirin Sharmin Chaudhury MP She has held several representation and greater Kuugongelwa-Amadhila as Chair of the Commonwealth roles in the Shadow economic independence. becoming Namibia’s first female Parliamentary Association but Prime Minister alongside Deputy there needs to be more women Cabinet including Current participation rates Speaker Margaret Mensah- leading the way in national and Shadow Minister for amongst women in political Williams being promoted to international bodies globally. Business, Shadow life Speaker. Minister in Communities Unfortunately, in 2015, women’s We also saw Canada taking The role of Commonwealth parliamentary representation significant steps last year Women Parliamentarians and Local Government seemed to plateau, increasing when the newly-elected Prime (CWP) and Shadow Housing by only 0.5 percentage points Minister Justin Trudeau chose The work of the CPA, and in Minister. Dr Roberta from the previous year. The to make half of the members of particular the CWP, is vital Blackman-Woods more significant gains achieved his cabinet women “because it’s to developing a network in 2013 that saw an increase 2015!” that female Commonwealth has been involved in of 1.5 percentage points in And of course, Rwanda Parliamentarians can use the Commonwealth the global average were not continues to be a world leader to share best practice and Parliamentary repeated. with more than 60% of its experiences and to support and Association and As of August 2015, Parliamentarians being female. push one another to maximise only 22% of all national But what’s becoming clear is their voices in their home state. Commonwealth Women parliamentarians were female; that without specific measures Both the CPA and Parliamentarians for a globally, there are 37 States in to bring more women into CWP’s influence have number of years and has which women account for less political leadership and public contributed significantly to held various positions than 10% of Parliamentarians in life, female representation positive developments for single or lower houses, including struggles to reach levels of up to women’s participation in the in both organisations at six chambers with no women at or beyond 30%. Commonwealth, as alluded a UK and International all. In the United Kingdom, the The Commonwealth to in the Harare Declaration level. House of Commons is just 29% Parliamentary Association and (1991). The CPA contributed of members who are women so the Commonwealth Secretariat to the Commonwealth Plan of
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Action 2005-2015, in which the Harare declaration is enshrined. The Plan draws on international commitments for the realization of women’s rights and integral to this is the 30% female representation goal. I recently attended a workshop with a group South Asian women Parliamentarians, arranged by the CPA, and “Both the CPA and CWP’s influence have contributed significantly to positive developments for women’s participation in the Commonwealth, as alluded to although those represented society level and parliamentary Above: On International in the Harare there were from a diverse range level to increase female Women’s Day 2016, Dr Declaration of countries, with a wide variety representation in Parliament Roberta Blackman-Woods MP of democratic and parliamentary across the Commonwealth. (second from left) represented (1991). The CPA practices, there was definitely a This is something that the the Commonwealth Women contributed to the sense of commonality amongst CWP is going to be tackling Parliamentarians (CWP) us. head on when it looks at political at an event held at the Commonwealth The event was titled ‘Building violence against women and Commonwealth Secretariat Plan of Action a Community for Change’ what limits their access to where she spoke about the work and I thought that was a very participating in public life at of the Commonwealth Women 2005-2015, in suitable name as it has become our next triannual conference Parliamentarians (CWP) which the Harare more and more apparent that which will be taking place in and participated in the panel if we want to see more female Bangladesh in September 2016. discussion. declaration is Parliamentarians and heads of enshrined. The state, and Secretary-Generals, Mechanisms we need to create a community Whilst there may be those who have a role to play in this. Across Plan draws on that supports that agenda. would suggest that we should the world, many election results international There is clearly value to be had be able to increase female in 2015 have shown that in strengthening the ties both representation through merely women make the most gains commitments for within the CWP and working promoting equality and equality where they were preselected by the realization of more closely with international rhetoric, there is evidence that political parties, both in sufficient partner organisations so that we points to equality guarantees numbers and in winnable women’s rights can develop strong resources resulting in women faring positions. and integral and support systems for women significantly better in elections. The recent history of Parliamentarians, and would-be In 2015, in elections where women’s representation in the to this is the Parliamentarians, all across the some form of quotas were UK shows that there has been a 30% female Commonwealth. legislated, women took almost clear and positive impact of All The CWP is committed to a quarter of the parliamentary Women Shortlists (AWS). representation a comprehensive agenda to seats available. In 1983, just 4% of MPs goal.” work both at a constituency, civil Political parties absolutely were women; in 1987 it was 6%;
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1992 it was 9%; and then, as a equality and the empowerment Converting education into childcare, elderly care and result of bringing in All Women of women and girls, access to quality employment and maternity rights must be tackled Shortlists, after the 1997 education is vital. We simply will economic independence if we are to facilitate conditions General Election that doubled to not see the full participation of Hand in hand with enhancing where women do not feel 18% - from 60 to 120 women women in public life if we do women and girls’ access to that professions are off limits Members. not see girls being given the education, and making that because of their gender. Hard mechanisms are same educational opportunities education of the best quality, Unless we approach necessary to promoting gender globally as their male is the need to ensure that it gender equality and female equality and it is apparent counterparts. is converted into employment leadership in all walks of life that the soft message of the More than 63 million girls are opportunities and economic with an understanding of the link importance of equality just simply out of school and data suggests independence for women on all between education, employment does not have the same impact. that the number is rising. levels. and equality, we are going to According to a new report from Women’s university enrolment struggle to make meaningful Barriers to full participation UNESCO, almost 16 million girls ratios are exceeding those of headway in ensuring women’s But more than just giving making between the ages of about 6 and men - even in locations where full participation in public and sure women are not being 11 will never get the chance to you might not expect it. Although economic life. pushed out of participation in learn to read or write in primary men continue to outnumber politics, we need to look at the school compared to about 8 women in university enrolment Conclusion barriers that prevent women million boys if trends continue as in some developing countries, So overall, women’s participation even getting on the starting they are. in many others, including Iran, in politics is getting better but blocks in wider public life. But action also needs to Nigeria and Saudi Arabia, mechanisms are needed to I do not think it’s a touch not just primary and women constitute the majority of ensure that progress does not coincidence that in the secondary learning but also university students. slow and we do not rest on Sustainable Development higher and further education. Among the world’s two largest our laurels when it comes to Goals, the goals of ‘Ensuring We need to encourage populations, China and India, continuing to prioritise equal inclusive and equitable quality the best universities globally women are also moving toward representation. education and promote lifelong to put more funds aside for parity with men in university The new SDGs are prioritising opportunities for all’ and scholarships for women, participation. women’s right to access ‘Achieving gender equality and especially women from the And yet this is simply not education and achieving gender empowering all women and girls’ developing world, so that reflected in economic and parity is important but this must are placed next to one another they have access to the best employment opportunities - translate into a wider range of - as Goals 4 and 5 respectively education which can enable although things are getting opportunities for women for - as these goals have a very them to become the future better. economic participation and symbiotic relationship. leaders both in their home On average across OECD independence. Education is one of the countries and on the global countries, the gender gap in Of course every society most powerful instruments for stage. labour force participation for has its own cultural and social reducing poverty and inequality the working-age population roadblocks that women must and so we know that to achieve narrowed from 23% in 1990 face, but it is very important that, real and meaningful gender to 13% in 2012. Nevertheless, if meaningful progress is to be gender employment made, women face these barriers gaps remain larger strongly and collectively. There is than 10 percentage a real role for the Commonwealth points in 15 of the and Commonwealth Women in G20 countries. this - joining with partners in the So the gaps that UN and IPU - to ensure barriers we see in women’s to women’s political participation participation comes are identified and removed. down to more than We need a new Harare-style just educational agreement that is not satisfied opportunities. with a 30% target - we need It is how those 50%. Diversity and inclusion opportunities are strengthen democracy and any translated into excuses for lack of equality have employment and we to stop. must consider what Women come forward when barriers exist there. a space is made for them and we Issues must be proactive in making that surrounding space.
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Commonwealth Women Parliamentarians (CWP) attend global network of female Parliamentarians, held in the Middle East for the first time
The Commonwealth Women The Commonwealth Women Parliamentarians (CWP) have Parliamentarians, as an integral joined more than 400 female part of the Commonwealth Members of Parliaments and Parliamentary Association, works Governments from around for the better representation of 80 countries at the Women in women in legislatures and for the Parliaments Global Forum (WIP) furtherance of gender equality Summit 2016 which took place in across the Commonwealth and the Plenary Hall of the Parliament held its first Commonwealth of Jordan. Women Parliamentarians Under the title ‘Women Working Group at the WIP in Politics: Fast Forward’ the Summit on the subject of ‘Political WIP 2016 Summit focused Violence Against Women’. the Commonwealth Parliamentary (WIP) is to increase the on the importance of parity The CWP Working Group Association; and Ms Clare Doube, number and influence of female of power, and address urgent was led by: Hon. Catherine Chairperson, Commonwealth Parliamentarians across the globe. matters such as peace, security, Cusack MLC (New South Human Rights Initiative. After bringing this forum to different migration and integration. This Wales, Australia), CWP Australia Many Commonwealth Women countries and continents to identify Summit, co-hosted by WIP and Region Steering Committee Parliamentarians were also in and share best practices, WIP is the Parliament of Jordan, and Member (representing the attendance at the summit: Hon. delighted to celebrate its annual the Organisation for Economic CWP Chairperson); Hon. Munokoa Poto Williams MP, CWP summit in the Middle East for the Cooperation and Development Shirley Osborne MLA, Speaker Steering Committee Member first time. We are honoured and (OECD), was the first of its kind of the Legislative Assembly for the Pacific Region (New thrilled that so many female leaders to be held in a country of the of Montserrat, CWP Steering Zealand); Hon. Asma Rasheed coming from different countries Middle East and North Africa Committee Member for the MP (Maldives) CWP Steering and political families will be sharing (MENA) region. Caribbean, Atlantic and Americas Committee Member for the Asia ideas and strategies to boost Region and Vice-Chairperson of Region; Baroness Armstrong women’s participation in politics, (United Kingdom), Representing regionally and globally”. – Silvana the CWP Steering Committee Koch-Mehrin, Founder of WIP. Member for the British Islands and Mediterranean Region; Left: The CWP Working Group Hon. Patricia Arab MP (Canada), on ‘Political Violence Against Representing the CWP Steering Women’ takes place at the Committee Member for the WIP Summit. Canada Region; CPA Executive Committee Member, Hon. Emilia Below left: Commonwealth Monjowa Lifaka MP (Cameroon). Women Parliamentarians “The mission of Women meeting Hanna Birna in Parliaments Global Forum Kristjansdottir MP from Iceland.
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Commonwealth Women Parliamentarians (CWP) News and Regional Strengthening Activities
Commonwealth Women organisation and also assured Parliamentarians them that her stewardship will Rwanda Branch Steering leave no stone unturned on Committee inaugurated how best to empower women in The Commonwealth Women Rwanda and Africa as a continent. Parliamentarians (CWP) Rwanda has inaugurated and has CWP Australia rolls out elected a number of Members ‘Stepping Up’ Campaign to of Parliament (both Senators encourage young women and Deputies) to its Steering into politics Committee to promote the The ‘Stepping Up’ Programme views and concerns of women is an initiative launched the Parliamentarians throughout the Commonwealth Women country. Parliamentarians (CWP) Australia The CWP Rwanda Steering Region to encourage young Committee is also responsible women to consider a career in for developing programmes to parliament. sector panel discussing their Above: The new CWP Rwanda further the aims of the CWP A number of events have been influence on the political process Steering Committee is headed within the country, in the Africa held in Australia Region Branches with Jordan Lim of YWCA, Jenni by Chairperson, Senator Hon. Region and across the world. following the launch event for the Gough of the Women’s Centre Mukobwa Justine . The CWP Rwanda Steering programme in New South Wales. for Health Matters and Rebecca Committee is headed by a The Australia Capital Territory Cuzzillo of the Youth Coalition of Chairperson – Senator Hon. (ACT) Representative of CWP the ACT; a ‘Communicating with Mukobwa Justine - deputized by Australia Region, Nicole Lawder influence’ workshop by Katrina two members, one in charge of MLA held a recent ‘Stepping Howard; and a media coaching policy, mobilization and strategy Up’ event for young women to session with renowned journalist – Senator Hon. Mukasine Marie consider a career in politics in Ginger Gorman. Below right: The CWP Chair Claire - and the other in charge of Australia’s capital city. The event The event was also attended for the Australia Capital Territory, finances – Senator Hon. Kazarwa was a great success including a by the Speaker of the ACT Nicole Lawder MLA with young Gertrude – with a further five Tri-partisan panel of three female Legislative Assembly, Mrs Vicki women participants in the Members. Upon her election as politicians - Meegan Fitzharris Dunne MLA, CPA Executive ‘Stepping Up’ Programme. the Chairperson of the CWP MLA, Minister for Transport Committee Member and Regional Rwanda, Hon. Mukobwa Justine and Municipal Services, Giulia Representative for the Australia Below left: Speaker of the informed the House that she Jones MLA, Shadow Minister for Region, who also spoke at the Australia Capital Territory (ACT) was ready to work with other Women and Amanda Bresnan event and hosted a lunch for Legislative Assembly, Vicki Members for the good of the (former MLA); a community participants. Dunne MLA speaks at the event.
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THIRD READINGS
British Columbia, Canada Page 176
Australia Page 180
New Zealand Page 184
India Page 190
UNITED KINGDOM UGANDA PARLIAMENT Secondary legislation, the Queen’s Speech and a new OPENS UP TO ELECTRONIC Lord Speaker elected With thanks to Parliamentary Page 186 Report and Third Reading BROADCASTING contributors: Stephen Boyd (Parliament of Australia); Page 182 Ravindra Garimella (Parliament of India); Dr. Jayadev Sahu (Parliament of India); Michael Dewing (Parliament of Canada); Luke CANADA AUSTRALIA INDIA Harris (Parliament of New Canadian Federal Parliament Australia Budget and double President‘s Address to Parliament Zealand); Susan Sourial (Legislative Assembly of British Budget and Legislation dissolution election and celebrating International Columbia);Talitha Rowland Page 174 Page 177 Women’s Day in Parliament (UK Parliament); Mohammed Katamba (Parliament of Page 188 Uganda).
The Parliamentarian | 2016: Issue Two | 173 PARLIAMENTARY REPORT CANADA CANADIAN FEDERAL PARLIAMENT BUDGET AND LEGISLATION
The Budget On 14 April 2016, the Conservative whip Gordon Committee, but on 2 June, the In a marked departure from government tabled its Brown MP to his seat in government accepted an NDP the previous government, on legislative response to the order for the vote to proceed. proposal that the Committee 22 March 2016, the Minister Supreme Court’s February During the altercation, the be made up of five members of Finance, Hon. William 2015 ruling that prohibiting Prime Minister inadvertently of the Liberal Party, three Morneau MP tabled a budget physician-assisted dying is elbowed NDP member Ruth from the Conservative Party, that projected a deficit. The unconstitutional. Bill C-14 Ellen Brosseau MP. Though two from the NDP, one from budget made investments in would restrict physician- he apologized, this led to the Bloc Québécois and one infrastructure, post-secondary assisted death to mentally debate over a question of from the Green Party. institutions and clean competent adults who privilege, and the matter technologies. It also provided are Canadian residents. was referred to the Standing The Senate for important investments in The bill did not include, Committee on Procedure In the Senate, the First Nations, Inuit Peoples however, some of the and House Affairs. The increase in the number of and the Métis Nation. recommendations of the government also withdrew independent senators led Special Joint Committee on Motion 6. to much discussion over New Democratic Party Physician-Assisted Dying, On 31 May, the Committee their role. In addition to Leadership Vote such as permitting mature heard a statement from a number of Liberal and At the New Democratic minors and the mentally ill to Ms Brosseau saying she Conservative senators Party (NDP) Convention on access physician-assisted accepted the Prime Minister’s leaving their caucuses to 10 April 2016, leader Hon. death and allowing those with apology and voted to sit as independents, seven Thomas Mulcair MP lost the degenerative disorders to consider the matter resolved. new independent senators confidence of party delegates give advance consent. On 20 April 2016, the were appointed. These were when 52% of them voted to On 17 May 2016, the government introduced the first senators thatPrime hold a leadership race. Mr Standing Senate Committee Budget Implementation Act, Minister Trudeau appointed Mulcair, who was elected on Legal and Constitutional 2016, No. 1, which, among based on the advice of the leader in 2012 after the Affairs tabled a report on many other things, imposed Independent Advisory Board death of former leader Jack the subject matter of the restrictions on cabinet’s on Senate Appointments. Layton, served as leader of Bill. Among other things, it ability to authorize the The new senators, who the Official Opposition until recommended permitting borrowing of money without were sworn in on 10 April October 2015. In last year’s advance consent in certain Parliament’s approval. 2016, are: General Election, the NDP circumstances. The House • Hon. Raymonde Gagné, went from 95 seats to 44 and adopted the Bill on 31 May Committee on Electoral an educator; became once again the third 2016 and it was referred to Reform • Hon. Murray Sinclair, party in the House. Mr Mulcair the Senate. On 11 May 2016, the an Aboriginal judge said he will stay on as interim Meanwhile, in an attempt government introduced who served as Chief leader until a new leader is to pass Bill C-14 by the a motion to establish a Commissioner of the chosen in two years’ time. Supreme Court’s 6 June special all-party committee Truth and Reconciliation deadline, the government on electoral reform. The Commission; Legislation introduced Motion 6, Committee will study • Hon. Peter Harder, To implement certain aspects which would have given different voting systems a former senior of its election platform, the the executive power over to replace the first-past- public servant, who government tabled legislation proceedings in the House. the-post system, including was appointed as that aims to, among other The opposition parties preferential ballots and the government’s things, reduce the income criticized the Motion, and on proportional representation, representative in the tax rate for middle-class 18 May 2016, during a vote and will look into mandatory Senate; taxpayers, increase it for for time allocation on the voting and online voting. • Hon. Frances Lankin, the richest and reverse Bill, there was an altercation The Committee will table its a former provincial some changes the previous in the House when the report by December 2016. legislator and minister; government had made to the Prime Minister, Rt Hon. Liberal Party members • Hon. Ratna Omidvar, an Citizenship Act. Justin Trudeau MP crossed were initially going to expert on diversity who the floor and tried to pull form the majority on the has long been active in
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the fields of immigration reinstated with full salary and Nations and Inuit youth are MP passed away suddenly. and multi-culturalism; office resources. between 10 and 35 times He was first elected in 2011. • Hon. Chantal Petitclerc, In May, the Royal higher than the Canadian a former Paralympic Canadian Mounted Police average. Noting that the More money for members’ athlete and advocate for announced that, following its budget includes investments offices the disabled; and investigations into Senate for addressing health gaps As of 1 April 2016, the office • Hon. André Pratte, a expenses, it would not be in indigenous communities, budgets for Members of long-time journalist. laying criminal charges she also said that long-term the House of Commons against Senator Hon. measures are needed to increased 20%. The budgets On 3 May, Senator Harder Pamela Wallin or former address the situation. had been frozen since fiscal announced that Senator Senator Mac Harb. year 2010-11. Hon. Grant Mitchell, who left Honorary Speaker the Liberal caucus the day Changes to the Ministry On 9 March 2016, Hon. Mauril Supreme Court Ruling before, would serve as whip On 31 May 2016, Hon. Bélanger MP a long-serving On 14 April 2016, the for independent Senators. Hunter Tootoo MP resigned member whose diagnosis of Supreme Court of Canada Senator Hon. Diane as Minister of Fisheries, amyotrophic lateral sclerosis ruled that hundreds of Bellemare, who in March left Oceans and the Canadian (Lou Gehrig’s Disease) forced thousands of Métis (people the Conservative Party caucus Coast Guard in order to him to withdraw his candidacy with mixed Aboriginal and to sit as an independent, was seek treatment for addiction for Speaker last year, served non-Aboriginal ancestry) named deputy government issues. He was replaced by as Honorary Chair Occupant and non-status Indians (First representative. Hon. Dominic LeBlanc MP, for the day. Amid scenes of Nations people who do not Meanwhile, on 22 April, who is also the Government great emotion, he took part have registered Indian status) Quebec Senator Hon. Céline House Leader. in the daily Speaker’s Parade fall under federal government Hervieux-Payette retired. and presided over Members’ jurisdiction. Prior to the She served as a Member Mission against the Islamic Statements and the beginning ruling, these communities of the House of Commons State of Iraq and the Levant of Question Period. were in what the Court called from 1979 to 1984 and was On 8 March 2016, the House “a jurisdictional wasteland” appointed to the Senate in of Commons adopted a Death of a Member with neither the federal nor 1995. On 16 May, Ontario government motion redefining All Parliamentarians were the provincial governments Senator Hon. David Smith Canada’s mission against saddened when Jim Hillyer accepting legislative authority retired. He had served as the so-called Islamic State of for them. a Member of the House of Iraq and the Levant (ISIL). Air Commons from 1980 to 1984 strikes ceased in February. and was appointed to the The new mission comprises Senate in 2002. On 3 June, an advisory mission in Iraq, the Senate comprised 42 humanitarian assistance, Conservatives, 23 Liberals engagement with political and 21 independents; there leaders throughout the region were 19 vacancies. and the welcoming of tens of thousands of Syrian refugees Charges against Senators to Canada. On 21 April 2016, Senator Hon. Mike Duffy was Emergency Debate on the acquitted of all 31 charges Situation in Indigenous of fraud, breach of trust and Communities bribery related to expenses On 12 April 2016, the he claimed. In his decision, House of Commons held the judge criticised the an emergency debate on actions of former Prime the situation in indigenous Minister Stephen Harper’s communities. The debate was one-time chief of staff. These sparked by a rash of suicide revolved around a $90,000 attempts on the Attawapiskat cheque he gave to Senator First Nation, a remote Duffy in 2013 to cover some community on the James Bay expenses that the Senator coast. During the debate, the had repaid. Senator Duffy Minister of Health, Hon. Jane was suspended in 2013, and Philpott MP remarked that with his acquittal, he was suicide rates among First
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THIRD READING: BRITISH COLUMBIA, CANADA
Budget Measures Implementation Act, 2016 reading debate that the legislation “is part of government’s ongoing The Budget Measures Implementation Act, 2016 gives effect to social implementation of the 26 recommendations” of an independent review of and economic development policy initiatives in the government’s February the Mount Polley tailings storage failure. The Minister indicated that the new 2016 budget which require statutory amendments. provisions will enhance the “quite limited” compliance and enforcement During second reading debate, Hon. Michael de Jong, Minister of tools, which will modernize British Columbia’s mining regulatory regime and Finance, explained the tax and programme measures in the legislation and position the province as a leader in this area. These changes will also serve to highlighted the creation of a new B.C. Prosperity Fund to receive a portion restore public and First Nations confidence in the mining industry, which is a of the revenues anticipated from liquefied natural gas development. The key sector for job creation and economic development. Minister explained that the fund will “serve as an endowment for future The Opposition critic for Energy and Mines, Norm Macdonald, MLA, generations” to pay down provincial debt, fund government programs, and stated that the Opposition supported the legislation’s stronger administrative support tax reductions. The Minister also drew attention to initiatives to penalties to support the public interest in having safe mine operations and enhance the affordability of housing. minimizing negative impacts on the environment. However, noting that similar In this regard, the legislation provides that the purchase of a qualifying penalties in effect in the forest sector since 2003 had “never been applied newly constructed home valued at up to $750,000 will be exempt from the in that way at all” he suggested that government’s record meant that “British property transfer tax. At the same time, the legislation requires the collection Columbians will remain … highly skeptical that the tools created in this bill will of citizenship information on foreign purchasers of property in British ever be used.” He urged the government to allocate additional resources to Columbia, which “will be used to compile statistical information on real estate monitor and enforce the legislation’s provisions and to commit to apply the purchases … and for the enforcement and administration of tax statutes.” penalties to ensure the protection of workers and the environment. The Opposition Finance critic, Carole James, MLA, expressed concern The Mines Amendment Act, 2016 received Third Reading on 15 March 2016. about “what’s not in the bill” and urged greater support for workers, more resources for education and training, a reorientation of tax relief to assist low Local Elections Campaign Financing (Election Expenses) and middle income levels and comprehensive measures to reduce poverty. Amendment Act, 2016 While commending the legislation’s property transfer tax exemption and The Local Elections Campaign Financing (Election Expenses) Amendment measures to collect information on foreign purchases of housing, she called Act, 2016 establishes a framework for implementing expense limits for for stronger measures to address “the affordability crisis in housing” including local government elections in British Columbia. The legislation follows the support for renters and the construction of rental housing units. She also government’s October 2015 introduction of an exposure bill outlining an noted that difficulties and delays in securing the construction of liquefied approach for setting expense limits by regulation for local government natural gas projects had resulted in significant adverse consequences for candidates, school board trustees and third-party advertising in advance actual revenues available for the B.C. Prosperity Fund. of the next local government elections in British Columbia in 2018. The The Budget Measures Implementation Act, 2016 received Third exposure bill followed the recommendations of the Special Committee on Reading on 10 March 2016. Local Elections Expense Limits, as outlined in its June 2015 report. Hon. Peter Fassbender, Minister of Community, Sport and Cultural Mines Amendment Act, 2016 Development, told the Legislative Assembly that the legislation was based The Mines Amendment Act, 2016 strengthens regulatory oversight of the on consultations on the exposure bill and honoured the principles of fairness, mining industry and provides additional compliance and enforcement tools. neutrality, transparency and accountability and the overall expense limits In particular, the legislation authorises administrative monetary penalties model recommended by the Special Committee. The legislation includes flat for contraventions which do not involve the courts and raises penalties rates for election areas with less than 10,000 people and per capita formulas available for court prosecution from $100,000 and/or up to one year for areas with more than 10,000 people. The framework also provides for imprisonment to $1 million and/or up to three years imprisonment. higher expense limits for mayors than other candidates “to reflect the fact that Hon. Bill Bennett, Minister of Energy and Mines, advised in second it is usually more expensive to run a campaign for mayor. This is consistent with the approach in other provinces that have expense limits.” Selena Robinson, MLA, Opposition critic for Local Government, supported the legislation’s provisions, while expressing concern that the legislation did not deal with local election campaign contribution limits. She noted that this issue had been raised during the Special Committee’s public consultations on local election expense limits and stated that “while this is the beginning of a direction that suggests that we can and must bring in rules that limit what people can spend, we have missed the mark with this bill … We need to have addressed contribution limits …” The Local Elections Campaign Financing (Election Expenses) Amendment Act, 2016 received Third Reading on 11 April 2016.
176 | The Parliamentarian | 2016: Issue Two AUSTRALIA AUSTRALIA BUDGET AND DOUBLE DISSOLUTION ELECTION Australian Federal Budget In relation to company Another focus of the of boosting our defence 2016 income tax, Mr Morrison budget was combating tax capability, but they will also On 3 May 2016, the Treasurer, advised that the “small avoidance particularly by drive jobs and growth in the Hon. Scott Morrison MP business tax rate will be multinational companies. new economy we are building delivered the Coalition lowered to 27.5% and the Mr Morrison advised that —not just in the shipyards in Government’s ‘jobs and turnover threshold for small Australia’s ‘world leading’ Adelaide and Perth, but right growth’ budget. This budget businesses able to access multinational tax avoidance across the supply chain of has particular significance it will be increased from $2 laws “will be backed up by a our defence industry in the as it sets the government’s million to $10 million.” new operational taskforce of national economy.” economic agenda shortly Going forward, Mr Morrison more than 1,000 specialist Mr Morrison noted that before the federal election stated that “phase 2 of our staff in the ATO to police “this budget is a practical, was announced on 8 May. 10-year enterprise tax plan and prosecute companies, targeted and responsible Mr Morrison commented will extend the lower tax rate multinationals and high- economic plan that meets that “Australians know that of 27½% to all businesses, wealth individuals not paying these challenges by clearing our future depends on how by continuing to step up the the tax that they should.” the way for jobs and growth, well we continue to grow threshold each year until In relation to in a stronger, more diversified and shape our economy 2023-24, before reducing the superannuation, Mr Morrison new economy.” as we transition from the 27½% rate for all businesses noted that “we need to ensure The Leader of the unprecedented mining to 25% at the end of 10 years that our superannuation Opposition, Hon. Bill investment boom to a in 2026-27.” system is focused on Shorten MP in his budget stronger, more diverse, new The cost to the budget sustainably supporting reply speech commented economy.” over ten years of reducing those most at risk of being that “after seven months Mr Morrison outlined the the company tax rate to 25% dependent on an age pension of waiting, after months of economic forecasts of the was the subject of ongoing in their retirement, which ruling in and ruling out, after budget noting that the deficit questioning of the Prime is the purpose of these all of that on and off the is expected to reduce from Minister and the Treasurer concessions.” table, after apprehension $39.9 billion in 2015-16 to who were initially reticent to He advised that while and great expectations this $6.0 billion or just 0.3% of provide an answer. Finally, the tax free status of budget has fallen apart in 48 GDP over the next four years after ongoing pressure, the retirement accounts will be hours. This budget was meant to 2019-20. Payments as a Treasurer authorised the retained, the government to be Malcolm Turnbull’s share of the economy are Treasury Secretary, Mr John will reduce access to justification for rolling Tony expected to fall from 25.8% in Fraser, to inform the Senate generous superannuation Abbott. After Tuesday night, 2015-16 to 25.2% in 2019-20. Economics Committee, during tax concessions for the most Australians are left to wonder The theme of ‘jobs and an estimates hearing on 6 wealthy. Mr Morrison noted why he bothered. The same growth’ underpinned the May, how much the measure that “ninety-six per cent $80 billion of cuts to schools budget with the Treasurer would cost. of Australians with super and hospitals are still in the announcing “a growth friendly, Mr Fraser advised that will be unaffected by or be budget. The same cuts to 10-year enterprise tax plan to “Treasury’s standard practice better off as a result of the working and middle-class boost new investment, create is not to release costings superannuation changes we families are still in this and support jobs and increase beyond the forward estimates have announced tonight.” budget. The same cuts to real wages, starting with tax or for the medium term. On The net impact of changes to Medicare, child care, aged cuts and incentives for small this occasion, the Treasurer superannuation announced in care, paid parental leave, and medium-sized business.” has authorised me to provide these measures will be a net pensioners and carers are In particular, Mr Morrison to the committee the medium- gain of $2.9 billion over the still in this budget. The same announced a new initiative term estimate of the cost to next four years. wrong priorities for Australia. “to help more than 100,000 the budget, of lifting the small In relation to defence Was this really the point of vulnerable young people into business entity threshold and spending and capability, Mr the Turnbull experiment? jobs, to be part of our growing reducing the company tax rate Morrison commented that Tax cuts for high-income economy by giving them real to 25% by 2026-27. The cost “the nine future frigates, 12 earners and nothing for work experience with real of these measures to 2026-27 offshore patrol vessels and families - not one cent for employers that lead to real is $48.2 billion in cash terms.” 12 new regionally superior ordinary working families and jobs.” submarines will do the job working Australians. From
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Tony’s tradies to Malcolm’s for a massive tax cut to big bill and the Senate again Mr Turnbull commented that millionaires, this is a budget multinationals, and especially rejects or fails to pass it then “we are providing tax relief for for big business over the when the government is the Governor-General can Australian businesses with our battlers.” refusing to tell us the 10-year dissolve the Senate and the enterprise tax plan, beginning Mr Shorten, in response to cost of their 10-year plan.” House of Representatives with smaller businesses with a claims that he is waging class The Leader of the simultaneously. Three bills turnover of $10 million or less war, responded that “class war Australian Greens, Senator satisfied these requirements and then working up so that is cutting money from families Richard Di Natale and the Prime Minister after 10 years all Australian on $50,000 and $60,000 a year commented that “this Budget considered them vital companies will be paying in order to give millionaires a is a massive let-down, just like enough to recommend to 25% corporate tax rather than tax break. Class war is cutting Malcolm Turnbull has turned the Governor-General that a 30, making our tax rate more $80 billion from schools and out to be.” Senator Di Natale double dissolution election competitive, providing the hospitals but spending billions stated that “the government be called. If after the election, incentives for investment and on tax cuts for big business. It is is pretending it can afford the House of Representatives for jobs.” not class war for Labor to speak unsustainable and unfair tax passes the same laws and Mr Turnbull explained that up on behalf of everyone that cuts for the big end of town the Senate again rejects the double dissolution has this government has forgotten by claiming fanciful levels them, then the Governor- been “brought about because and betrayed - women, young of economic growth. While General may convene a joint the Senate has twice refused people, pensioners, carers, champagne will be flowing sitting of the members of to pass legislation relating to veterans. Labor will never in board rooms across the the Senate and the House the accountability of unions apologise for standing up for country, these irresponsible of Representatives to and employer organisations, Australians who go to work cuts come at the expense deliberate and vote together and most critically, has every day and want to come of long-term funding for on the proposed laws. If the twice refused to pass home safe, who rely on penalty schools, hospitals and public legislation is confirmed by legislation to re-establish rates to make ends meet, who services. Rather than reducing an absolute majority of the the Australian Building and do not want to be forced to work inequality the government total number of the members Construction Commission. until they are 70.” has chosen to make it worse of the Senate and the House The re-establishment of that In relation to company tax by cutting social support, of Representatives, it shall commission, in particular, cuts, Mr Shorten confirmed university funding and health be taken to have been duly which will be the consequence that Labor would support a services.” passed by both Houses of the of us winning this election, tax cut for small businesses Parliament. Since Federation if the Australian people so with a turnover of less than Double Dissolution Election there has been only one joint decide, that will restore the $2 million a year “because called for 2 July 2016 sitting following a double rule of law to the construction that’s what a small business On 9 May 2016, the dissolution and this was in sector, which employs a is.” Mr Shorten, however, Governor-General HE 1974. million Australians. It is a vital commented that “billion- General the Honourable The Prime Minister, in economic reform and critical dollar businesses are not Sir Peter Cosgrove AK MC announcing the election, to our continued success.” small businesses - never have (Retd), on the advice of the stated that “at this election The Prime Minister been, never will be. Coles Prime Minister, Hon. Malcolm Australians will have a concluded that “these is not a small business. The Turnbull MP, dissolved both very clear choice; to keep are exciting times for Commonwealth Bank is not Houses of Parliament with an the course, maintain the Australia. These are times a small business. Goldman election scheduled for 2 July commitment to our national for confidence, for optimism, Sachs is not a small business. 2016. This will be the seventh economic plan for growth for a clear plan and we will As important as they are to double dissolution since and jobs, or go back to be seeking a mandate from our economy, they do not Federation in 1901. The most Labor, with its higher taxing, the Australian people on the need a taxpayer subsidy recent double dissolution was higher spending, debt and 2nd of July. I will be seeking a which Australia cannot afford held in July 1987. deficit agenda, which will mandate from the Australian to pay, especially when our Section 57 of the stop our nation’s transition people, as the Prime Minister imputation system means a Australian Constitution sets to the new economy dead of this country, to carry out cut in the corporate tax rate out procedures to resolve in its tracks.” Mr Turnbull this plan because we know delivers no meaningful benefit deadlocks between the noted a range of policies that that it will lay the way, clear for mum and dad investors. House of Representatives were important including the the way for us to have the The only shareholders who will and the Senate. If the House Coalition’s Innovation and greatest years in our history.” win out of this live overseas. passes a bill which the Science agenda, the Defence The Leader of the Labor will support a tax cut Senate rejects or fails to Industry Investment Plan and Opposition, Hon. Bill Shorten for small business but, unlike pass and, after an interval measures to promote youth MP commented that the the Prime Minister, we will of three months, the House training and employment. In election is “a choice between not use this as a camouflage again passes the same relation to the tax system, Labor’s positive plans for the
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future, and three more years has also budgeted for a $1 that “it is important to to Senator Sinodinos’ non- of dysfunction, of dithering billion cut to the Australian note, Senator Sinodinos’ compliance including motions: and of disappointment.” Renewable Energy Agency, attendance was not requested requiring Senator Sinodinos Mr Shorten said that “this for the continuation of by the committee: it was to attend the Senate chamber election is most definitely offshore detention and for the directed by the Senate.” in order to explain the reasons about what I stand for and destruction of precious places The Coalition Senators’ for his non-compliance to what my opponent stands for. like the Great Barrier Reef Dissenting Interim Report the Senate; directing Senator What my party stands for, and in favour of propping up the commented that “never before Sinodinos to attend a further what the Liberals stand for. dying coal industry.” has the Senate directed any hearing of the committee; My opponent has openly said of its Ministers to appear referring the non-compliance that he wants to give States Cabinet Secretary refuses before one of its Committees. with a senate order to the the right to raise separate to appear before Senate Ministers are accountable Senate Standing Committee income taxes. That he thinks Committee through questions with and of Privileges, consistent that in a perfect world the On 19 April 2016, the Senate without notice, and through with Parliamentary Privilege Commonwealth taxes should referred to the Senate Finance the Estimates process. Resolution 6(8); to censure not be used for government and Public Administration The motion establishing Senator Sinodinos; to schools, just to fund private References Committee an this inquiry stands without consider whether a contempt schools. For six months he’s inquiry into the oversight precedent and violates well- has been committed, under toyed with Australians with the of electoral funding and established Senate practice.” Standing Order 82; and to prospect of an increase of the disclosure regimes and The dissenting report further pursue other remedies which GST by 50% and a GST to be particularly of associated stated that “in conclusion, the may be available under the put on everything. And in his entities of political parties. What establishment of this inquiry, Parliamentary Privileges Act Budget this week just past he is notable about this inquiry is the conduct of the Chair 1987. has launched retrospective paragraph 2 of the reference and Senator Wong at its one On 4 May the Senate changes to the tax treatment which states that “the Senate hearing and the content of considered and referred the of people’s superannuation directed Senator Sinodinos to the majority report, has been matter of Senator Sinodinos’ undermining confidence in appear before the committee to a partisan political exercise, non-compliance to the Senate the whole superannuation answer questions.” unworthy of a Senate Privileges Committee for system. And the centrepiece The usual practice, outlined Committee and unworthy of inquiry. However, with the of his Budget this week in Senate Standing Order further consideration by the dissolution of the Senate on was to reward millionaires 177(2) and discussed in a Senate.” 9 May, the inquiry lapsed but with a $17,000 tax cut, to recent Senate Procedural The Committee’s interim it could be re-referred in the provide $50 billion of tax Information Bulletin (SPIB), is report outlined possible 45th Parliament. breaks to Australia’s largest for the committee to request responses by the Senate companies.” the attendance of a Senator The Leader of the as a witness and, in the event Australian Greens, Senator that the Senator refuses, the Richard Di Natale committee shall report the commented that “both the matter to the Senate. Standing Liberals and Labor support Order 177(3) provides for the new coal mines. They both Senate to order a Senator to support detaining innocent attend a Senate committee people in hellish camps and to give evidence to offshore. They both lack the committee. The SPIB the courage to clean up our notes that this path is taken democracy. They’re a double because a committee has no disappointment and this disciplinary powers of its own double dissolution election and “in any case, it would not is an opportunity for voters be appropriate for a subsidiary to demand better.” Senator body such as a committee, to Di Natale noted that “the have any coercive powers over Budget put forward by Scott members of the plenary body.” Morrison is a four year plan to In this case, the Senate do nothing on global warming, has made the direction, at the on creating safer pathways outset, for Senator Sinodinos for people seeking asylum, to appear before the or really cracking down on committee. The Committee’s unfair tax breaks. Labor Interim Report commented
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THIRD READING: AUSTRALIA
Northern Australia Infrastructure infrastructure will provide a basis for the another transparency mechanism to ensure Facility Act 2016 longer term expansion of the economy and that the loans given are there for maximum The legislation establishes the Northern population in northern Australia. The facility benefit and are subject to scrutiny of how Australia Infrastructure Facility which will will provide an innovative approach to the those loans work out in the longer term. The address gaps in the infrastructure finance funding of infrastructure projects by offering criteria for investment, all those related issues market for northern Australia. The Minister for up to $5 billion in financial assistance to and the outcomes of those investments need Resources, Energy and Northern Australia, encourage and complement private sector to be considered as well.” Hon. Josh Frydenberg MP commented investment. This encouragement of the private that “the Australian government recognises sector will ensure that economic infrastructure Road Safety Remuneration Repeal Act the enormous economic potential of northern that otherwise would not be built, or would not 2016 Australia and is committed to its development.” be built for some time, will be delivered.” The legislation repeals the Road Safety The Minister noted that “Northern Australia The Minister concluded that “the Remuneration Act 2012 and, in particular, has just 5.6% of Australia’s population but objectives of the facility reflect the abolishes the Road Safety Remuneration contributes over 11% of Australia’s GDP government’s priorities for the development Tribunal (RSRT) and the orders that it has and covers over 40% of our landmass with of northern Australia and the importance of made. The Minister for Industry and Innovation significant agricultural, energy and resource ensuring public funds are invested responsibly and Science, Hon. Chris Pyne MP assets. Its proximity to Asia provides an and for the benefit of the wider economy.” commented that the government is introducing opportunity to service the burgeoning middle During debate in the Senate, Senator the legislation “because this government stands class in Asia. According to Ernst and Young, Nova Peris (Australian Labor Party) indicated by owner drivers and mum-and-dad small the Chinese middle class is expected to her support for the legislation noting that “the businesses who just want to earn an honest reach one billion people by 2030, with India’s development of northern Australia should be living.” Mr Pyne stated that “it has been clear for middle class reaching 475 million people by made an absolute priority for Australia.” Senator some time that the Road Safety Remuneration 2030. Northern Australia has great potential Peris stated that “the Northern Territory is System, established in 2012 by the former for economic and population growth, but in desperate need of meaningful economic Labor government, has demonstrated no it needs the right backbone economic infrastructure. We need infrastructure that tangible safety outcomes for the road transport infrastructure to drive that growth.” can be harnessed to benefit the whole of the industry. Two separate, comprehensive, The government has already committed Territory. What does this look like? It means evidence based reviews have supported this in nearly $5billion to transport infrastructure quarantine facilities for our fruit and vegetable the strongest of terms.” in Northern Australia. Mr Frydenberg noted, exporters. It means cold storage at our ports. It The Minister noted that “there is however, that “despite this investment by the means sealed and safe roads for our live cattle nothing fair or safe about the Road Safety Commonwealth Government, infrastructure transport to improve access to the remote parts Remuneration System and that is why in northern Australia continues to face of the Northern Territory. It means upgrading our the coalition government has listened to particular cost and service challenges, regional and remote airstrips and our ports. We thousands of owner drivers across the including accessing private sector financing.” need to ensure that we can move goods and country and put this very urgent bill before the The Minister explained that “at a national people around in a way that is cost-effective and House today. The refusal of the Road Safety level, financing of debt markets has become easy. It means adequate biosecurity measures. Remuneration Tribunal to listen to reason more dependent on bank lending, rather than All of this, of course, means Australian jobs.” and delay the commencement of the 2016 longer term bonds. Infrastructure Australia has Independent Senator for South Australia, Payments Order in the face of widespread estimated that, since the 2008 global financial Senator Nick Xenophon unambiguously confusion and misunderstanding is the last crisis, the capacity of the Australian financial welcomed the legislation. Senator Xenophon straw. Around 800 submissions were made market to fund infrastructure has halved due stated that “it is an important step towards to the tribunal. Almost all of these called for to the withdrawal of international finance giving industries in northern Australia, a delay to the Payments Order, with many providers. Also, constraints in the finance particularly the agricultural sector, access indicating that the order will negatively impact sector have resulted in longer tenor loans in to finance to invest in viable infrastructure their business and, in a number of cases, put excess of seven years becoming increasingly projects for which they may otherwise have them out of business altogether. Even in the difficult to access for infrastructure projects.” been unable to attract sufficient investment face of this evidence, the tribunal refused to The Northern Australian Infrastructure to get off the ground. To reflect on Senator delay the start date of the Payments Order Facility will seek to address these concerns. Lazarus’s speech: of course we need to make to allow these small businesses time to try to The Minister noted that “through the facility, sure that the money is spent wisely and that comply.” the government, working with the states there is accountability for that. I know that Mr Pyne commented that “the way owner- and territories, will support the private Senator Whish-Wilson in his contribution driver trucks are financed means the family sector to construct transformative economic made mention of that as well in terms of home is often at risk if the family business infrastructure for northern Australia. This having either a cost-benefit analysis or goes under. The tribunal is not just putting
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people out of business; they are also putting During debate in the Senate, the Deputy charge higher freight rates, which is pricing them out of their home if their business fails.” Leader of the Opposition, Senator Hon. them out of the market and sending them Mr Pyne argued against the proposition Stephen Conroy indicated that Labor did not broke.” Senator Lazarus commented that that the RSRT payment order will help improve support the legislation. Senator Conroy stated “I believe that truck drivers—owner truck road safety. Mr Pyne commented that “there that “this bill seeks to abolish the Road Safety drivers, in particular—are the very fabric of this is no tangible link between paying drivers more Remuneration Tribunal, a tribunal established by country. If they stop this country stops. I am and improved road safety. As one owner-driver Labor in 2012 to make Australian roads safer by absolutely horrified about what this tribunal explained to me, if you pay the cowboy drivers reducing the number of fatal crashes involving has handed down, in the way of an order. It, more, because they are cowboys, they will just trucks on our roads. By abolishing the Road quite clearly, is not a level playing field. All drive more—more hours, longer distances, to Safety Remuneration Tribunal, the following will this does is benefit the big end of town and get that money. This creates increased risk to be wiped out: maximum 30-day payment terms the Transport Workers’ Union (TWU). Owner road users, not safer roads.” In addition, Mr for owner-drivers; the right for both employee- truck drivers will get so desperate that they Pyne pointed out that the payments order only drivers and owner-drivers to have a written will have to sell their trucks at a minimal price. applies to owner-drivers. Mr Pyne stated that contract setting out the terms and conditions Then, they will have to sell their houses, “road accidents involving trucks involve both of engagement; safe driving plans for both because they will have to pay off their debts owner-drivers and employee-drivers and in employee-drivers and owner-drivers so that the and, then, they will be looking for work. The 84 per cent of cases are caused by the other work is planned to be performed both safely and first place they will go—because all they vehicle involved, not the truck. To single one legally before the driver gets behind the wheel; know is driving trucks—is to the big transport group out, effectively branding them as unsafe, a prohibition on deducting money from owner- companies. If you want to become a truck is not only unfair, but it’s also wrong, and drivers without express authorisation; adverse driver for one of those big companies you enormously insulting.” action against protection for drivers raising have to be a member of the TWU.” Mr Pyne concluded that “the uncertainty is the hand about safety issues, including their Independent Senator for South Australia, almost as crippling as the order itself, and some pay; client accountability to ensure contracts Senator Nick Xenophon commented that drivers have indicated they are parked up and will conform with this order; and a requirement “John Maynard-Keynes once said, ‘when the be broke within weeks. This order has nothing that transport operators have drug and alcohol facts change, I change my mind’ .… Clearly, this to do with safety and everything to do with policies in place.” tribunal, which I supported in good faith back in pricing small businesses out of a market. Small Senator Conroy noted that “fatality rates for 2012, has turned into an unmitigated disaster. businesses whose workers do not typically choose the trucking industry are 12 times the national The payment order that was made a number of to be a member of a union—which when it boils average. This makes the road transport industry weeks ago is one that is completely unsustainable down to it, is what the Road Safety Remuneration the most deadly industry in Australia. Just last for this sector.” Senator Xenophon stated that System has always really been about.” month, 25 people died on Australian roads as “the Contractor Driver Minimum Payments Road The Minister commented that the RSRT is a result of heavy vehicle accidents. Yet, despite Safety Remuneration Order of 2016 shows you “is clearly not the body to tackle road safety.” all of the evidence, those opposite continue that this tribunal cannot be trusted in this sector. He stated that “this is why we will ensure to peddle the lie that there is no link between It is a tribunal that does not understand what that the proper regulator, solely focused on rates of pay and safety.” happens in the real world with owner-operator safety issues, will be properly funded. We Senator Glenn Lazarus, Leader of the drivers. Interestingly, two independent reports will redirect all the resources from the Road Glenn Lazarus Team, indicated that he would commissioned by the coalition government have Safety Remuneration System—$4 million support the legislation and the abolition of shown that the RSRT is expensive and ineffective each year—to the National Heavy Vehicle the RSRT because “owner-drivers need the in achieving its aim—road safety.” Regulator to ensure the tangible safety right to run their businesses their own way; The legislation passed the Senate 36 measures the industry want are given priority.” secondly, owner-drivers are being forced to votes to 32.
The Parliamentarian | 2016: Issue Two | 181 PARLIAMENTARY REPORT JURISDICTIONUGANDA NAME UGANDA PARLIAMENT OPENS UP TO ELECTRONIC BROADCASTING For much of independent Awori, then a Member of proceedings may be the House for amendment Uganda (apart from a few Parliament from Samia broadcast by electronic as it (Committee) considers years serving expulsion), the Bugwe South, a constituency media; that is, television necessary, for the satisfactory legislative arm of government in Busia district in Eastern and radio, live or relayed, in functioning and efficient has followed the tradition, Uganda, initiated an attempt part or whole, subject to the transaction of business in practices and precedents to further open up Parliament Speaker’s permission and both plenary and committees. of the Commonwealth – on to allow for electronic media having due regard to the Because much of the debate which sections on Parliament coverage. Awori, a former dignity of the august House.” had been held before the in the Constitution and in national athlete, photo- He added that “the primary motion was sent to the the Rules of Procedure journalist and head of the purpose of allowing media Committee for consideration, were based. Even before national broadcaster, would coverage of parliamentary the Committee Report and her independence, Uganda later become government proceedings is to inform and proposed amendment were followed the traditions of Minister for ICT. (He would educate the general public quickly passed and the new the British, who through the also later stand for President on how Parliament works and rule inserted. Imperial British East African of the country). its role in governance.” This Subsequently, Company (IBEA), set up Noting the importance was before providing terms considering that radio the first form of legislative of electronic media in the under which the coverage of and TV were widespread, administration in the country. dissemination of information, broadcasts would be done. the Clerk to Parliament Uganda obtained her Awori argued that Parliament The Motion was committed signed a Memorandum of independence from the proceedings are a matter of to the Committee on Rules, Understanding with Uganda British in October 1962. public interest that should be Privileges and Discipline, Television and Radio Uganda At independence Uganda disseminated as widely as with the mandate to examine formed its First Parliament – possible. He proposed that and advise the House on based on multi-party politics. the Rules of Procedure of the amendments proposed. For the past 50 years (apart Parliament be amended by The same committee can Below: The Parliament from 1971–1978 and 1985– inserting a new Rule 193, to also review the rules and building in Uganda. 1986), Uganda has had a provide that “Parliamentary make recommendations to legislative arm of government. Although, as stated above, Parliament had copied much from the British and the Commonwealth systems, and although it allowed print media coverage, it did not open up its proceedings to electronic media coverage until the late 1990s. From Independence until the 1990s, coverage of the proceedings of Parliament was only done by the print media – newspapers and magazines. Limitations of this form of media amongst the population – low literacy levels and poor newspaper circulation – meant that only a few Ugandans could follow the activities of Parliament. This situation was bound to change. In 2001, Aggrey
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(now Uganda Broadcasting of Parliament, that included Currently, the national/ to cover proceedings at Corporation), the national the creation of new Standing public broadcaster, Uganda Parliament of Uganda. broadcaster, to televise live Committees and Leadership Broadcasting Corporation However, with all House proceedings. The arrangements on House is joined by a number of these developments, two Memorandum was signed on Committees, the Committee private broadcasters to air committees of Parliament 12 April 2005. on Rules, Privileges and Parliamentary proceedings remain closed to any form of With facilitation from both Discipline recommended both live and in news media coverage, even with government and the United that the prohibition of use segments. Parliament’s persistent calls to open up Nations Department of of electronic devices in the major days of the opening one of them - the Committee Economic and Social Affairs, Chamber/gallery be scrapped. of a new Session (held on on Appointments. This Parliament sanctioned the “Due to advancement in first Thursday of June) when Committee, which is chaired live television and radio technology, telephones the President, according to by the Speaker of Parliament, coverage of its proceedings and devices like iPads and the Constitution, delivers the is charged with approving but said that there was need iPods provide substantial State of the Nation Address; the appointment of persons for the live broadcast “to information that may aid a and the Budget Day (held on nominated for appointments be executed responsibly member in contributing to the the second Thursday of June) by the President under the and in a manner which debates in the House. They are broadcast live on several Constitution or any other preserves the dignity” of the also constitute useful research television stations. Similarly, appointment required to institution. It was agreed tools,” read the Committee the swearing in of Members be approved by Parliament that the live broadcasts Report. of a new Parliament (after under any law. The be only for the purpose of It was further argued that the election held every five Committee, through its enabling the population to it may not be necessary for years) is also broadcast live Chair, is tasked to report its follow the proceedings of legislators to carry large on TV. In addition, selected approval of appointments the House and enhancement volumes of printed materials TV and radio stations will to the House. The Rules of its understanding of to the House, yet the cover sittings when visiting bar any debate on such the operations of the information could easily be Presidents or Heads of State a report. In addition, the institution of Parliament. retrieved from the electronic address Parliament. Speaker communicates The MOU prohibited the gadgets. The Committee the Committee decision to use of extracts or entire recommended changes to Current situation the President within three proceedings of the House the Rules to admit media Journalists covering working days after the in satire, advertisement or personnel into the press proceedings of Parliament decision has been made. entertainment; as well as gallery with electronic/ have formed themselves Similarly, the Business any commentary intended recording and transmitting into an Association – the Committee, which arranges to expound or criticize any devices and allow them Uganda Parliamentary Press the business for each aspect of the House. Through access to functional feed for Association (UPPA), through Meeting and the order in the Memorandum, other live broadcasts. which they get assistance which it shall be taken, is broadcasters were free to In February 2012, the from Parliament and also also closed the public and relay House proceedings, limitation on carrying make presentations to media. In addition, electronic but with the consent of electronics into the gallery committees of the House coverage will not be Radio Uganda and Uganda was lifted, permitting “a on issues relating to the permitted in cases where the Television. However, even member of the press or media media. In some cases, Speaker orders for members with the amendment to accredited to Parliament to the Association has made of the public to withdraw the Rules and the signed be admitted into the press presentations to push from the gallery. Memorandum with the gallery with an electronic for further opening up of Learning from the national broadcaster, Rule device for recording and the House. Further the Parliament of Zambia, the 202 (5) remained in place, coverage purposes.” This was Parliamentary Commission Parliament of Uganda has preventing people from intended to “enable the press has made it a requirement initiated plans for setting carrying cameras, tape in Parliament to comply with that journalists need up Parliament radio and recorders, transistor radios or technological advances and to possess university television stations in order any electronic devices to the modern reporting practices.” degrees in order for them to enhance information gallery. It was also argued that to be accredited to cover dissemination to the public. In 2011, at the start of the since the UK’s House of Parliament. The requirement The Parliament station 9th Parliament, a decade Commons, had only lifted a takes effect in May 2016 is expected to broadcast after the original attempts, similar restriction in October when the new (10th) parliamentary debates, the House Rules came up 2010, Uganda by following Parliament commences. committee proceedings and for amendments yet again. suit, would be a leader in Forty nine (49) broadcast other programmes explaining In wide ranging proposals innovation and democratic media houses out of 71 government policies. to the Rules of Procedure practice in our region. media houses are accredited
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Employment Standards Legislation Bill: Broad support for process had shown “the great response of the select committee process changes to employment law that works in this Parliament.” The legislation arising from the Employment Standards Legislation Bill Mr Iain Lees-Galloway MP (Labour) discussed amendments unanimously passed its Third Reading on 10 March 2016. The Bill, first proposed by him, as an Opposition member, which had been adopted by introduced in August 2015, was divided into five separate Bills in the the House. He said that the amendments “took this legislation from a Bill Committee of the whole House: the Parental Leave and Employment that entrenched zero-hour contracts and turned it into a Bill that eliminates Protection Amendment Bill, the Employment Relations Amendment Bill zero-hour contracts … It also means that people are going to be able to (No 3), the Holidays Amendment Bill, the Minimum Wage Amendment live a decent life, because they are going to be able to know when they can Bill, and the Wages Protection Amendment Bill. have a life outside of work.” Speaking in support of the changes, Minister for Workplace Relations In addition to zero-hour contracts, the other major focus of the and Safety Hon. Michael Woodhouse MP (National) said “The real legislation was the expansion of paid parental leave. Ms Jacinda Ardern winners are New Zealand employees, who, when these Bills are passed, MP (Labour) referenced Ms Sue Moroney’s Member’s Bill to expand will have a materially improved parental leave entitlement, strengthened paid parental leave, which was narrowly defeated in its Third Reading requirements on their employers for record-keeping and other obligations, in February 2015. Ms Ardern said “I think it is widely acknowledged that and the end of pernicious conditions known as zero hours.” the huge amount of debate and discussion on paid parental leave that we The passing of the legislation with support from across the House are, rightly, having in this Parliament has in a large part been driven by Sue was described by Mr Andrew Little MP (Leader, Labour) as “a most Moroney.” unusual—in fact, I would say, unprecedented—occasion.” Ms Jan Logie MP (Green) emphasised the public engagement Greater Christchurch Regeneration Bill: Rebuilding after disaster with the contents of the legislation, noting that “There were 12,000 The Greater Christchurch Regeneration Bill passed its Third Reading submissions on the original Bill. People care, people fought for this, and on 31 March 2016, establishing a new body, Regenerate Christchurch, it is a wonderful moment to see this House listening to the people.” The to carry out the functions and exercise the powers provided for in the legislation was considered by the Transport and Industrial Relations legislation. The Bill repeals the Canterbury Earthquake Recovery Act Committee, and its chair, Mr Jonathan Young MP (National), said the 2011 and aims to support the regeneration of greater Christchurch
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THIRD READING: NEW ZEALAND following the damage caused by the 2010 and 2011 earthquakes. Ururoa Flavell MP (Leader, Māori Party) said “The introduction of In a media release, Minister for Canterbury Earthquake Recovery this Bill in 2014 was a response to the view that the Māori Language Hon. Gerry Brownlee MP (National) stated “When we passed Act 1987 had become less effective in fulfilling aspirations for Māori the CER Act in 2011 we were responding to a national disaster, with language revitalisation.” The review found that re-establishing Te significant loss of life and massive damage to houses, commercial Reo Māori in homes was the key requirement for Māori language buildings and infrastructure … almost five years on, it is time for this form revitalisation. of extraordinary legislation to be replaced, so that we can continue to Te Pire mō Te Reo Māori replaces and updates a range of legislation progress in a new way.” relating to Te Reo Māori. It affirms Te Reo Māori as an official language This “new way” means a transition to a more locally led arrangement of New Zealand and a taonga (treasure) guaranteed to iwi (tribes) and for the rebuild and recovery of Christchurch, a move widely supported Māori by the Treaty of Waitangi. It strengthens provisions guaranteeing across all parties. Dr Megan Woods MP (Labour) said “Our position the right to speak Te Reo Māori in legal proceedings. It also establishes has been very clear right from the beginning on this piece of legislation a board, Te Mātāwai, as an independent statutory entity to provide when it came to the House for its first reading. This had to be a piece of leadership on behalf of iwi and Māori in their role as kaitiaki (guardians) legislation that fulfilled the desire that was clearly evident in Christchurch of Te Reo Māori. Te Mātāwai will take over direction of the Māori for a locally led recovery.” language commission and Māori television and broadcasting services. Although neither Labour nor the Greens supported the Bill when it Te Pire mō Te Reo Māori is notable for being the second piece of was reported back from the select committee, both parties went on to legislation in New Zealand that is published in both Te Reo Māori and support the legislation as amended, with Mr Kris Faafoi MP (Labour) English. Ms Louisa Wall MP (Labour) noted that “it [is] actually a time saying “I acknowledge the part that the Government has played and that for celebration, because we, today, have a Bill that is in English and Te it has been willing to work to a consensus where everyone in this House Reo.” In the Second Reading debate, Mr Nuk Korako MP (National) is happy with the legislation.” explained “This is very significant, as there has been only one other Bill However, Ms Jan Logie MP (Green Party) expressed concern where the text is in both Māori and English; however, this is the first about the powers given to Government Ministers: “We are, and we do, Bill where both languages are of equal validity. If the meaning between remain unhappy with the retention of extended powers for a range of the Māori and English is contested, it is the Māori version that will take Government Ministers, which is present in clause 42 and enables them precedence.” to override district or regional plans under the Resource Management New Zealand Members of Parliament may speak in both Te Reo Act or the Local Government Act, plans or bylaws, or regional transport Māori and English in the House, and all debates on the Bill saw many plans. We think that degree of power is unnecessary at this stage.” members of Parliament speak in Te Reo Māori. Speaking in Māori in his The Green Party spoke also of the need for the regeneration of First Reading speech on the Bill, Hon. Dr Pita Sharples MP (Former Christchurch to have an environmental focus, with Ms Eugenie Sage Leader, Māori Party) said “As an introduction, speak the language! The MP (Green Party) noting that “making Christchurch a more resilient Māori language is a treasure of tribes and Māori people and an important city must involve planning for climate adaptation, planning for sea-level part as well of the cultural identity of all New Zealanders.” rise. That must be a central part of the regeneration planning and it Hon. Nanaia Mahuta MP (Labour) said, in Te Reo Māori, “In must ensure that we have commercial and residential buildings and my personal view, if you have the language of your ancestors in your infrastructure development taking better account of sea-level rise, better heart, that is where the revitalisation of our language will begin from. account of more extreme weather events.” Even if this Bill is mandated, the manifestation of these aspirations of our Mr Denis O’Rourke MP (New Zealand First) added “I think ancestors is really within the family and the support of the tribe for future [the Bill] will ensure a very robust process, focusing, as it must, on generations.” regeneration, and I think it will mean that we will get a proper balance Also speaking in support of the Bill in the Committee of the Whole between redevelopment and the wider public interest, especially the House, Ms Marama Davidson MP (Green Party) said “While the Te public’s interest in achieving an excellent environment and a vibrant Pire mō Te Reo Māori / Māori Language Bill is not the be-all and end-all and viable community.” Mr Matt Doocey MP (National) praised of our Reo journey, it is important. It is important because the Crown the Government’s inclusion of social well-being as a purpose of needs to maintain a responsibility to put back what was taken away, not regeneration, noting that “it was great to see the Government respond just from Māori but from our whole nation.” with an extra $20 million recently for mental health services.” However, speaking in opposition to the Bill, Mr Pita Paraone MP (New Zealand First) said “I do not, for one moment, think that we need Te Pire mō Te Reo Māori / Māori Language Bill: Revitalising to depend on this Bill to revitalise the use of Te Reo. I would suggest to Indigenous Language those of us in this House who are Māori that if we go home to the wā Te Pire mō Te Reo Māori / the Māori Language Bill passed its Third kāinga, go home to our marae, there you will learn your Reo. We do not Reading on 14 April 2016. The Bill was drafted following a review need legislation for us to increase the number of Te Reo speakers.” of the Government’s Māori Language Strategy, which was initially Te Pire mō Te Reo Māori passed its Third Reading with 104 votes in developed in 1998. Speaking in Te Reo Māori at the Second Reading favour and 11 votes against. of the Bill on 9 March 2016, Minister for Māori Development Hon. Te
The Parliamentarian | 2016: Issue Two | 185 PARLIAMENTARY REPORT UNITED KINGDOM SECONDARY LEGISLATION, THE QUEEN’S SPEECH AND A NEW LORD SPEAKER ELECTED Secondary Legislation approve controversial cuts statutory instruments in Review was asked the wrong Secondary, or delegated, to tax credits, secondary ‘exceptional circumstances’. questions by the Government. legislation has been an legislation, and the scrutiny And secondly, that the views The role of the House of Lords unlikely topic of prominence by Parliament thereof, has of the elected House on in rejecting the tax credits in Westminster in recent become a key battleground matters of spending and regulations was not about the months. The majority of within Parliament. taxation should prevail. The House of Lords versus the statutory instruments, which In response to the high Government then asked Lord House of Commons; it was cannot be amended, require profile defeat the Government Strathclyde, a former Leader about Parliament scrutinising approval by both Houses – warned of a ‘constitutional of the House of Lords, to lead the Government.” usually a process involving crisis’, arguing that two key a review into “how to secure This was a view shared by little attention even within the Parliamentary conventions the decisive role of the elected the House of Lords Delegated UK Parliament, let alone in enshrining the primacy of the House of Commons in relation Powers and Secondary the outside world. However, House of Commons had been to its primacy on financial Legislation Scrutiny following a row over the broken. matters, and secondary Committees, who said that House of Lords’ decision in First, that the House of legislation.” implementing any of the October 2015 to decline to Lords should only reject Lord Strathclyde reported report’s recommendations in December 2015, putting would have the effect of tilting forward three options: “the balance of power away to remove the House of from Parliament generally Lords from the secondary and towards Government.” All legislation scrutiny process four reports called for urgent entirely; to retain the present consideration instead of the role of the House of Lords increased use of secondary but clarify the restrictions on legislation to implement how its powers should be policy objectives and of how exercised; or to legislate for a to improve scrutiny in both new procedure by which the Houses. House of Commons would be The Government have not guaranteed the final say on yet formally responded to secondary legislation. the Strathclyde report and In the following months, the Queen’s Speech, which four select committees sets out the Government’s criticised the report’s programme for the session recommendations. The ahead, gave few clues. But House of Commons with its reference to the Public Administration Government’s intent to uphold and Constitutional Affairs “the primacy of the House of Committee argued against Commons”, it seems that, one a legislative option, arguing way or another, there remains that legislation would be “an plenty of life in the debate in overreaction and entirely this area. disproportionate to the House of Lords’ legitimate exercise of Queen’s Speech a power that...is rarely used.” It had been widely expected The House of Lords that the Government would Constitution Committee delay the State Opening of agreed and went further Parliament and the start of the in saying the issues went next Parliamentary session much wider: “the Strathclyde until after the referendum on
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the UK’s membership of the the wrong direction that we an amendment expressing Thatcher; Conservative European Union on 23 June. have with this Government at regret at the absence of a bill peer Lord Cormack, a But on 18 May, a month after the present time.” to remove the NHS from the long-standing Member of her 90th birthday, the Queen The Bills announced in scope of a proposed EU-US the House of Commons; opened the UK Parliament for the speech included reforms trade deal which they fear and Baroness Garden of the 61st time in her reign. In to prisons, the care system, would put the NHS at risk of Frognal, a Liberal Democrat her speech she announced adoption and to universities. privatisation. By accepting the who served as a whip and a number of new bills which Other measures aimed at amendment the Government government spokesperson the Prime Minister, Rt Hon. strengthening the economy managed to avoid what looked during the coalition David Cameron MP said included the development set to have been the first government. showed the Government was of spaceports, self-driving Government to be defeated on The results were leading a “progressive, One vehicles (hence the Leader their legislative programme announced on Monday 13 Nation” Government which of the Opposition’s quip) and since 1924. June and the successful was “using the opportunities commercial drones as well candidate was Lord Fowler presented by Britain’s as a right to fast broadband Lord Speaker Election who received 443 out of 639 strengthening economy to connections. In February 2016, Baroness votes cast. Lord Fowler will increase life chances for the The decision on Britain’s D’Souza, Lord Speaker since take up his new post as Lord most disadvantaged.” membership of the European September 2011, announced Speaker on 1 September The Leader of the Union got barely a mention that she would not be 2016. Opposition, Rt Hon. Jeremy in the Speech, with most re-standing for election. Lady Corbyn MP was combative energies in the referendum D’Souza is the second Lord Please turn to page 160 to in response saying “if anyone debate being deployed Speaker of the UK Parliament, read an article by the outgoing wants to deliver a more outside of Parliament. The a post created in 2006 to Lord Speaker. equal society, an economy European question came to serve as presiding officer in that works for everyone and the fore in the subsequent the House of Lords. Below: Her Majesty The Queen a society where there is debate on the Speech, though, Three candidates stood in has opened the UK Parliament opportunity for all, it takes an with Eurosceptic Conservative the election to replace her: many times during her reign. active government to do it, not MPs and the Labour Lord Fowler, who served in This occasion was in 1977. the driverless car heading in Opposition combining to pass the Cabinet under Margaret
The Parliamentarian | 2016: Issue Two | 187 PARLIAMENTARY REPORT INDIA
President Address to ‘Ease of Doing Business’. India respectful relationship with Parliament was a haven of stability in an Pakistan and creating an The 2016 Budget Session of increasingly turbulent global environment of cooperation Parliament commenced on economy. The government in combating cross border 23 February 2016 with the fostered competitive terrorism. India remained at Presidential Address to the cooperation among various the forefront of the global members of both Houses states to enhance Ease of fight against terrorism. The of Parliament assembled Doing Business. The state President said terrorism was together in the Central Hall governments were being a global threat and strong of Parliament. In his Address, encouraged and supported to counter-terrorism measures the President of India, Shri simplify procedures, introduce were necessary worldwide Pranab Mukherjee said e-enabled processes and to eradicate it completely. Parliament reflected the invest in infrastructure to Sustained Indian efforts led to supreme will of the people improve investment climate. concrete action for reforming and democratic temper called The GDP growth had increased, the UN Security Council. for debate and discussion, not making India the world’s India also provided strong disruption or obstruction. He fastest growing economy. leadership and new vision urged all MPs to discharge The ‘Make in India’ initiative to regional and international their solemn responsibilities had achieved 39% increase groupings like BRICS, G-20, in a spirit of cooperation and in FDI inflow despite adverse WTO, East Asia Summit, mutual accommodation. global investment climate. ASEAN and the SCO. The President said the Inflation, fiscal deficit and Moving the Motion of government’s development current account deficit had Thanks on the President’s philosophy was Sabka Saath all decreased and India had Address on 24 February Sabka Vikas (together with recorded the highest ever 2016, Smt. Meenakshi all, development for all) and foreign exchange reserves Lekhi (BJP) said the ‘Make the overriding goal was to in 2015. Several steps in India’ programme of the eradicate poverty. The focus were taken to put in place a government with emphasis was on the welfare of poor, simplified, progressive and on the development of farmers and jobs for the youth. non-adversarial tax regime by infrastructure, railways, The government was trying incorporating internationally defence, and telecom sectors hard to make this possible prevalent best practices in tax would transform India. She through financial inclusion administration. described the Pradhan Mantri and social security. The The President said the Fasal Bima Yojana was a government was working government aimed at creating game changer in the field towards a second green an educated, healthy and of agriculture, especially revolution to fully harness clean India. The government for those poor farmers the agricultural potential was committed to providing who never received full of eastern States and housing for all by 2022. The compensation. The foreign recently launched farmer government took several direct investment almost crop insurance scheme the measures to eliminate the doubled and despite adverse Pradhan Mantri Fasal Bima scope of corruption and international conditions, Yojana, with the biggest-ever was unsparing in punishing Indian economy was poised Government contribution those who were found to grow at seven per cent to crop insurance and with guilty of corruption. The per annum. Seconding the lowest-ever premium rates concerted efforts of the Motion, the Minister of Food for farmers. Maintaining the government to tackle the Processing Industries, Smt. well-being of farmers was vital menace of ‘black money’ had Harsimrat Kaur Badal said to nation’s prosperity and the started yielding results. The in 19 months, India became President said food security Government firmly believed the fastest growing economy cover had doubled since 2015. that economic development in the world. Narrating the Highlighting the welfare and environmental protection various achievements of measures taken by government, could co-exist. the government she said the President said the The President said India transparency and honesty innovative initiatives of the believed in a secure and was the hallmark of the government helped India prosperous future for its government. In order to jump 12 places in the latest neighbourhood. India was make farmers prosperous rankings by World Bank on committed to forging a mutual more attention should be
188 | The Parliamentarian | 2016: Issue Two INDIA INDIA PARLIAMENT REPORTS given to agriculture and food the government to create a week in one or two sessions in part of the basic structure of the processing industry. separate ministry for fisheries. a year when only first-time MPs Constitution.” (See article on The leader of the INC in In the resumed debate on 26 should be allowed to speak to Challenges to the President’s Lok Sabha, Shri Mallikarjun February, Shri Sultan Ahmed develop fresh ideas. During a Address on page 137). Kharge, participating in (AITC) said the government session all MPs, cutting across the resumed debate on 25 had failed to implement the party line, could sit an extra day Celebrating International February 2016, alleged that the Food Security Act and asked on Saturday to discuss issues Women’s Day programmes mentioned in the the government to reveal the related to humanity like SDGs. On 8 March 2016, on the President’s Address were old number of youths who got The Prime Minister asserted occasion of International ones repacked with new names. employment during the past that his government was making Women’s Day, the Speaker, He said the schemes publicized 19 months. While farmers were efforts to strengthen the National Lok Sabha, Smt. Sumitra by the BJP government to gain in a distressed situation, the Rural Employment Guarantee Mahajan greeted the media attention were started by government was writing off Act by plugging the loopholes. members of Lok Sabha. She the previous UPA Government. huge bank loans owed by big Following the recommendations informed the members that He claimed that the pace industrialists. Shri Bhartruhari of the 14th Finance Commission, women legislators from the of poverty alleviation was Mahtab (BJD) pointed out states were being provided States, Union territories and fastest ever during 2005-2012, that there was despair among more financial resources from women MPs from Lok Sabha under the Congress-led UPA youths and the manufacturing 2015-16 onwards. He was of and Rajya Sabha participated government. Stating that the sector was not picking up, the view that the government in the National Conference government lacked any firm and which could have generated must repose faith in the citizens, of Women Legislators held in effective policy to deal with cross massive employment. and not leave them in the New Delhi on 5 and 6 March border terrorism, he wanted the Replying to the debate hands of bureaucracy and it 2016 (see page 162 for report). government to ask America the on 3 March 2016, the Prime was incumbent upon MPs to The Conference adopted reason for supplying F-16 fighter Minister, Shri Narendra increase the accountability of the a resolution calling upon planes to Pakistan. Modi thanked the Speaker, Executive. The Prime Minister the women legislators Giving a detailed account Smt. Sumitra Mahajan for sought the help and cooperation to strive for ensuring the of the achievements of the her initiative to organize of members in efforts to improve qualitative participation government, the Minister of a conference of all the the condition of people. of the greatest number of Urban Development, Minister elected women legislators The motion was debated women in the process of of Housing and Urban Poverty of Legislative Bodies in India for 12 hours 50 minutes. At decision-making, nation Alleviation and Minister of which was held on 5 and the end of the debate, all the building and development Parliamentary Affairs, Shri 6 March 2016. The Prime amendments moved were work in all walks of life and M. Venkaiah Naidu said a Minister said the House was negatived and the motion was committing towards removing new momentum had been meant for discussion and adopted. all obstacles in the path of generated in the country and when Parliament did not The Rajya Sabha also achieving these objectives. no one should try to derail that function, the nation suffered discussed a motion of Thanks The Speaker, Lok Sabha momentum. India’s reputation and MPs suffered more as on the President’s Address hoped that all MPs, on the had gone up in the world and they were not able to discuss to Parliament. The Prime occasion of International there was growing support issues of public interest. The Minister replied to the debate Women’s Day, would extend for India’s claim to the UN Prime Minister appealed to on 9 March 2016. The motion, their support to the objectives Security Council membership. the entire opposition to extend however, was passed with of the Conference as she Shri P. Nagarajan their support for the passage an amendment moved by the believed that ensuring greater (AIADMK) said the Pradhan of important bills in Parliament Leader of the Oppoition in access to women in the Mantri Jan Dhan Yojana was saying these legislations were Rajya Sabha, Shri Ghulam sphere of education, social world’s most successful in the interest of the people. Nabi Azad “regretting that the inclusion and nation building financial inclusion programme. He also stressed the need for Address does not mention that would ensure the prosperity of The programme went focusing on primary education the Government is committed entire family and the country. beyond mere opening of and water conservation. to securing the fundamental Speaking on the occasion, bank accounts to becoming The Prime Minister right of all the citizens to the Chairperson of the UPA a platform for poverty proposed that only women contest elections at all levels, and the President of the INC, eradication by offering basic MPs might speak in the including to Panchayats (local Smt. Sonia Gandhi said financial services and security House on 8 March to mark elected bodies) to further over the past six and a half to the poor. He requested International Women’s Day. He strengthen the foundations of decades, women had made also suggested for choosing a democracy, which also forms many striking achievements
The Parliamentarian | 2016: Issue Two | 189 PARLIAMENTARY REPORT INDIA
in different fields, which was (BJD) asked for providing justice low women representation in able to help women in the rural quite remarkable, considering to the victims of bride trafficking the Lok Sabha, she wanted areas in a better way. the obstacles they faced. where girls and women were an assurance from the The Minister of Urban Women, however, continued kidnapped or lured into and government on the enactment Development, Minister of to be victims of oppression sold, raped and/ or married off of the Bill providing for Housing and Urban Poverty and discrimination. The without their consent. reservation of seats for women Alleviation and Minister of mandatory reservation of Smt. Bhavana Pundalikrao in elected legislative bodies. Parliamentary Affairs, Shri M. seats for women in local Gawali (Shiv Sena) requested Smt. Meenakashi Lekhi Venkaiah Naidu (BJP) said elected bodies resulted the government to reserve (BJP) said the fifth goal of the women could excel if they were in having over 40% of for women 33% of seats Sustainable Development given the opportunity. Women women among the elected at the graduate and post Goals (SDG) set out by the still faced discrimination representatives in urban graduate level courses to UN related to gender equality despite the existence of and rural local bodies. This enable them to go for higher and women empowerment. various laws and this required she believed was nothing studies. Women needed to be The inadequate representation a change in the mindset of short of a revolution. While empowered economically to of women in parliamentary people. Education of girls was there was much in Indian command respect in society. committees was an oversight of utmost importance and the tradition to cherish and to Smt. Kavitha Kalvakuntla and needed to be corrected. government had taken several preserve, all must have the (TRS) was of the view that Smt. Jayshreeben Patel (BJP) steps in this regard. The courage to confront and good decisions in favour of suggested for providing 30% Minister observed there had to fight against social evils. women were taken only when reservation for women in all be a social change, economic Women legislators, must join a woman occupied a position ministries and departments and political empowerment hands with male colleagues to make decision. Women of the union government and of women. Responding to in a concerted campaign of the country could prosper giving opportunity daily to the concern that there was to change the mindset that if all worked in a focused women MPs to speak in the no adequate representation underlined these practices. manner and started providing House. Smt. M. Vasanthi of women in parliamentary She wanted the government education to girls. Smt. P.K. (AIADMK) requested the union committees, Shri Naidu to pass the long awaited Sreemathi Teacher (CPI-M) government to increase the said he would request the Women’s Reservation Bill. said the status of women was funds available under the respective parties to suggest Highlighting the problem one of the main yardsticks to Member of Parliament Local the names of female members of bride trafficking,Smt. measure the development Area Devlopment (MPLAD) for membership of such Pratyusha Rajeshwari Singh of a country. Bemoaning the Scheme so that MPs would be committees.
The Atomic Energy (Amendment), 2014 from entering into Joint Ventures with other PSUs December 2015 and by Rajya Sabha on 23 The Atomic Energy Act, 1962 empowers the for the above said purposes for the reason that December 2015. The Bill passed by both Central Government of India to produce, develop, any Joint Venture company formed by two PSUs Houses of Parliament was assented to by the use and dispose of atomic energy either by itself might not be subject to the control of the Central President of India on 31 December 2015. or through any authority or corporation established Government as a shareholder. by it or by a Government company and carry out The Government accordingly brought forward The Arbitration and Conciliation research in any matters connected therewith. the Atomic Energy (Amendment) Bill, 2015 to (Amendment) Bill, 2014 At present, only two Public Sector overcome this difficulty. During discussion on The general law relating to arbitration is Undertakings (PSUs), namely, Nuclear Power the Bill in both Houses of Parliament broadly the contained in the Arbitration and Conciliation Corporation of India Limited (NPCIL) and measure has been welcomed. Act, 1996. The Act, which is based on the Bhartiya Nabhikiya Vidyut Nigam Limited The Minister-in-charge of the Bill while UNCITRAL Model Law on International (BHAVINI), which are under the administrative replying to the debate inter alia observed Commercial Arbitration, as adopted in 1985 by control of Department of Atomic Energy, are that India is the world’s biggest storehouse the United Nations Commission on International operating nuclear power plants in the country. of thorium. But its fullest potential is yet to Trade Law (UNCITRAL), applies to both Formation of Joint Venture companies by NPCIL be exploited. In regard to safety concern, the international as well to domestic arbitration. with other PSUs of India for civil nuclear power Minister observed that there is absolutely The Act was enacted to provide for speedy projects is under consideration to meet the no compromise on the priority given to the disposal of cases relating to arbitration with additional funding requirements for expending victim. Secondly, the liability of the operator to least court intervention. With the passage of nuclear power programme and augmenting the the supplier had been kept intact so that the time, some difficulties in the applicability of nuclear power generation capacity of India. operator can also claim it. Further, there is a the Act had been noticed. Interpretation of the The expression ‘Government company’ had proper scientific methodology of dealing with the provisions of the Act by courts in some cases been defined in the Act to mean a company in spent fuel. Minister also assured that as far as had resulted in delay of disposal of arbitration which not less than fifty-one per cent of the paid-up entry of the private sector or foreign company is proceedings and increase in interference of share capital is held by the Central Government. concerned, that has not been granted. courts in arbitration matters, had been seen The Act thus precludes a Government company The Bill was passed by Lok Sabha on 14 to tend to defeat the object of the Act. With a
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THIRD READING: INDIA view to overcome the difficulties, the matter in Lok Sabha the Arbitration and Conciliation specified value i.e. one crore or above, are to was referred to the Law Commission of (Amendment) Bill, 2015 to replace the be dealt with by the Commercial Courts or the India, which examined the issue in detail and Arbitration and Conciliation (Amendment) Commercial Division of the High Court. submitted its 176th Report. On the basis of the Ordinance, 2015. The amending measure By way of the Delhi High Court (Amendment) said report, the Arbitration and Conciliation found a broad consensus among members Act, 2015, the ordinary original jurisdiction of (Amendment) Bill, 2003 was introduced in during discussion on bill in both Houses the Delhi High Court had been increased from the Rajya Sabha on 22 December 2003. The of Parliament. The Bill was passed by Lok rupees twenty lakhs to rupees two crore and there said Bill was referred to the Department- Sabha on 17 December 2015 and by Rajya is a provision for transfer of pending case from related Parliamentary Standing Committee Sabha on 23 December 2015. The Bill as the Delhi High Court to District Courts. On the on Personnel, Public Grievances, Law and passed by both Houses of Parliament was enactment of Commercial Courts, Commercial Justice for examination and Report. The assented to by the President of India on 31 Division and Commercial Appellate Division of said Committee, submitted its Report to the December 2015. High Courts Bill, 2015, some of the Commercial Parliament on 4 August 2005, wherein the Disputes which are to be transferred to the District Committee recommended that since many The Commercial Courts, Commercial Courts from the Delhi High Court may again be provisions of the said Bill were contentious, Division and Commercial Appellate required to be transferred to the Commercial the Bill might be withdrawn and a fresh Division of High Courts Bill, 2014 Division of the High Court of Delhi. This tend to legislation may be brought after considering The proposal to provide for speedy disposal of cause delay in the disposal of cases as well as its recommendations. Accordingly, the said Bill high value commercial disputes had been under inconvenience to the parties and counsels. Under was withdrawn from the Rajya Sabha. consideration of the Government of India for the circumstances, it became necessary that the On a reference made again in pursuance of quite some time. The high value commercial provisions of the Delhi High Court (Amendment) the above, the Law Commission examined and disputes involve complex facts and question of Act, 2015 and establishment of the Commercial submitted its 246th Report on “Amendments law. A need was, therefore, felt to provide for an Courts and Commercial Division of the High Courts to the Arbitration and Conciliation Act, 1996” independent mechanism for their early resolution. be brought into force simultaneously. in August 2014 and recommended various A considered view was also taken that early As Parliament was not in session and urgent amendments in the Act. The proposed resolution of commercial disputes would create steps were needed to be taken, the Commercial amendments to the Act would facilitate and a positive image to the investor world about the Courts, Commercial Division and Commercial encourage Alternative Dispute Mechanism, independent and responsive Indian legal system. Appellate Division in High Courts Ordinance, especially arbitration, for settlement of disputes The Law Commission of India in its 188th 2015 was promulgated on 23 October 2015, by in a more user-friendly, cost effective and Report had recommended the constitution of the President of India in exercise of his powers expeditious disposal of cases since India is the Commercial Division in each High Court. under article 123 of the Constitution. committed to improve its legal framework to Accordingly, the Commercial Division of High The Government, therefore, brought forward obviate delay in disposal of cases. Courts Bill, 2009 was introduced and passed by the the Commercial Courts, Commercial Division and As India had been ranked at 178 out of 189 Lok Sabha. However, during the discussion of the Commercial Appellate Division of High Courts nations in the world in contract enforcement, aforesaid Bill in the Rajya Sabha, some Members Bill, 2015 to replace the Commercial Courts, it was felt that it was high time that urgent raised certain issues and in view thereof, the matter Commercial Division and Commercial Appellate steps are taken to facilitate quick enforcement was again referred to the Law Commission of Division of High Courts Ordinance, 2015. The of contracts, easy recovery of monetary India for its examination. The Law Commission Minister-in-charge of the Bill while replying to the claims and award of just compensation for of India, in its 253rd Report, had recommended debate inter alia observed that the purpose of the damages suffered and reduce the pendency for the establishment of the Commercial Courts, bill is to accelerate economic growth, improve the of cases in courts and hasten the process of the Commercial Division and the Commercial international image of the Indian justice delivery dispute resolution through arbitration, so as to Appellate Divisions in the High Courts for disposal of system and the faith of investor world in the legal encourage investment and economic activity. commercial disputes of specified value. culture of the nature. Commercial disputes require As Parliament was not in session and Based on the recommendations of the Law better understanding and specialization. By taking immediate steps were required to be taken Commission made in its 253rd Report, a Bill namely, away commercial matters from normal courts, to make necessary amendments to the the Commerical Courts, Commercial Division and such matters can be dealt quickly and speedy Arbitration and Conciliation Act, 1996 to attract Commercial Appellate Division of High Courts disposal of the cases can be brought about. foreign investment by projecting India as an Bill, 2015 was introduced in the Rajya Sabha on The Bill was passed by Lok Sabha on 16 investor friendly country having a sound legal 24 April 2015 and the same thereafter, went December 2015 and by Rajya Sabha on 23 framework, the President in exercise of his for the consideration of the Department-related December 2015. The Bill as passed by both powers under article 123 of the Constitution Parliamentary Standing Committee on Personnel, Houses of Parliament was assented to by the of India promulgated the Arbitration and Public Grievances, Law and Justice. As provided President of 31 December 2015. Conciliation (Amendment) Ordinance, 2015. in the said Bill, 2015, all the suits, appeals or Thereafter, the Government introduced applications related to commercial disputes of
The Parliamentarian | 2016: Issue Two | 191 The Commonwealth Parliamentary Association (CPA)
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PATRON: VICE-PATRON: Her Majesty Queen Elizabeth II Vacant Head of the Commonwealth
CPA International Executive Committee Executive Committee Members’ dates of membership are indictated below each name. Portrait of The Queen © John Swannell/Camera Press Officers Regional Representatives
PRESIDENT: AFRICA ASIA BRITISH ISLANDS AND Vacant MEDITERRANEAN Hon. Thandi Modise, MP Hon. Karu Jayasuriya, MP VICE-PRESIDENT: Chairperson of the National Speaker of Parliament, Sri Lanka Hon. Carmelo Abela, MP Vacant Council of Provinces, South Africa (2013-2016) Malta (2013-2016) (2013-2016) CHAIRPERSON OF THE Hon. Mian Tariq Mehmood, MPA EXECUTIVE COMMITTEE Hon. Machana Ronald Provincial Assembly, Punjab, Hon. Derek Thomas, MLC (2014-2017): Shamukuni, MP Pakistan St Helena Hon. Dr Shirin Sharmin Botswana (2014-2017) (2014-2017) Chaudhury, MP (2013-2016) Speaker of Parliament, Hon. Imran Ahmad, MP Rt Hon. Sir Alan Haselhurst, MP Bangladesh Hon. Mutimura Zeno, MP Bangladesh United Kingdom Rwanda (2015-2018) (2015-2018) VICE-CHAIRPERSON (2014-2017) (2015-2016): Hon. Shirley M. Osborne, MLA Rt Hon. Themba Msibi, MP AUSTRALIA CANADA Speaker of the Legislative Speaker of Parliament, Swaziland Assembly, Montserrat (2014-2017) Hon. Mrs Vicki Dunne, MLA Hon. Tom Osborne, MHA Also Regional Representative Australian Capital Territory Speaker of the House of for Caribbean, Americas and the Hon. Emilia Monjowa Lifaka, MP (2013-2016) Assembly, Newfoundland and Atlantic Region (2013-2016) Deputy Speaker of Parliament, Labrador Cameroon Hon. Kezia Purick, MLA (2013–2016) TREASURER (2015-2018) Speaker of the Legislative Acting Treasurer: Assembly, Northern Territory Hon. David Laxton, MLA Hon. Mrs Vicki Dunne, MLA Hon. Umar Buba Jibril, MP (2014-2017) Speaker of the Legislative Australian Capital Territory Deputy House Leader, Nigeria Assembly, Yukon (2015-2018) Hon. Russell Paul Wortley, MLC (2014-2017) CHAIRPERSON OF THE President of the Legislative COMMONWEALTH WOMEN Council, South Australia Hon. Alexandra Mendes MP PARLIAMENTARIANS (CWP) (2015-2018) Canada (2013-2016): (2015-2018) Rt Hon. Rebecca Kadaga, MP Speaker of Parliament, Uganda
192 | The Parliamentarian | 2016: Issue Two The Commonwealth Parliamentary Association (CPA)
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