Opposition and Legislative Minorities: Constitutional Roles, Rights and Recognition International IDEA Constitution-Building Primer 22 Opposition and Legislative Minorities: Constitutional Roles, Rights and Recognition International IDEA Constitution-Building Primer 22 Elliot Bulmer © 2021 International Institute for Democracy and Electoral Assistance International IDEA publications are independent of specific national or political interests. Views expressed in this publication do not necessarily represent the views of International IDEA, its Board or its Council members. The electronic version of this publication is available under a Creative Commons Attribution- NonCommercial-ShareAlike 3.0 (CC BY-NC-SA 3.0) licence. You are free to copy, distribute and transmit the publication as well as to remix and adapt it, provided it is only for non-commercial purposes, that you appropriately attribute the publication, and that you distribute it under an identical licence. For more information visit the Creative Commons website: <http://creativecommons.org/licenses/by-nc-sa/3.0/>. Design and layout: International IDEA DOI: https://doi.org/10.31752/idea.2021.67 ISBN: 978-91-7671-443-0 (PDF) Created with Booktype: <https://www.booktype.pro> Contents 1. Introduction ............................................................................................................ 6 2. What is the issue? .................................................................................................. 9 2.1. The principle: democracy and dialogue ............................................................ 9 2.2. The institutional practice: opposition and the legislative minority .................. 11 2.3. Leaders of the opposition in presidential and hybrid systems .......................... 13 3. Constitutional or subconstitutional rules? ........................................................ 15 4. Leader of the opposition: appointment and removal ...................................... 18 4.1. General rules .................................................................................................. 18 4.2. Additional constitutional rules ....................................................................... 20 5. Political opposition: roles and responsibilities ................................................ 24 5.1. Scrutiny and oversight .................................................................................... 24 5.2. Appointments to public institutions ............................................................... 27 5.3. Other roles and privileges of the leader of the opposition ............................... 31 6. Veto and referral powers of legislative minorities ........................................... 35 6.1. Supermajority or minority-veto rules .............................................................. 35 6.2. Right of the legislative minority to appeal to the constitutional court ............. 37 7. Decision-making questions ................................................................................ 39 8. Examples .............................................................................................................. 41 9. References ............................................................................................................ 45 Annex ......................................................................................................................... 47 Opposition and Legislative Minorities: Constitutional Roles, Rights and Recognition 1. Introduction This Primer examines the recognition, roles and rights of the opposition and the legislative minority in democratic constitutions. Opposition parties operating in democracies rely upon a wide range of constitutional protections, such as the freedoms of association, assembly and expression, backed by an independent judiciary and an impartial civil service. These protections ensure that opponents of the government continue to enjoy equal rights and are not criminalized, harassed or disadvantaged. However, many constitutions go further, formally recognizing the role, powers and responsibilities of the opposition or legislative minority in democratic politics. This recognition reflects the principle of political pluralism (that power should not be permanently monopolized by one party) and shows a commitment to democratic dialogue—hearing the other side—in decision-making. Definition of terms At the outset it is necessary to define the terms ‘opposition’ and ‘legislative minority’. Often, especially in a parliamentary system, these two things are the same: the minority party or bloc in the legislature is also in opposition to the government (executive), since the prime minister is in effect chosen and supported by a majority party or bloc in the legislature. In presidential or semi- presidential systems, however, it is possible for the president to be of one party and the legislative majority of another, so the party that is in a minority position in the legislature might not necessarily be in opposition to the president. ‘In countries with a recognized leader of the opposition, ‘the opposition’ (sometimes capitalized)’ usually means the official opposition—that is, the main, largest opposition party, from which the leader of the opposition is chosen. The term ‘opposition parties’ includes, besides the official opposition, any other parties in the legislature not supporting the government. In some contexts, 6 1. Introduction the second largest opposition party may be referred to as the ‘third party’ (if it is the third party in size, after the government party and the official opposition party), while other opposition parties, having fewer members of the legislature than the third party, may be referred to as ‘minor opposition parties’. Opposition parties can also include parties that are not represented in the legislature (‘the extra-legislative opposition’); however, this Primer’s main focus is on the role of the opposition and legislative minority within legislatures, not on very small parties with no legislative representation. Scope and content of this Primer The ways in which the recognition of the opposition and/or legislative minority is achieved varies widely in both form and substance. Section 2 of the Primer discusses matters of substance. Although political opposition and the rights of legislative minorities are, at least to some extent, features of all democratic systems, there are important conceptual and practical differences in how the opposition works, and how the legislative minority is empowered, in different institutional contexts: the leader of the opposition in a parliamentary system is not in quite the same position as the leader of the opposition or legislative minority leader in a presidential system. Although sometimes found elsewhere, formally recognized leaders of the opposition are most closely associated with political systems that are parliamentary and majoritarian and that have a British historical legacy. In other institutional contexts (in presidential and semi- presidential systems, and in parliamentary systems based on proportional representation), it is more usual to focus on other ways of empowering the legislative minority, although a few presidential systems give both recognition and significant powers to the leader of the opposition. In form, some constitutions recognize the opposition or rights of the legislative minority only in outline, leaving much of the detail to be determined by ordinary legislation, by the standing orders or rules of procedure of the legislature, or by convention, custom and tradition. Other constitutions provide for the opposition or legislative minority in considerable detail. The question of how much detail is put into the constitution, and how much is left to subconstitutional rules, is discussed in Section 3. The next two sections focus on those systems in which there is a recognized opposition. Section 4 examines rules for the appointment, selection and removal of the leader of the opposition, and Section 5 considers the opposition’s roles and responsibilities. Section 6 considers the roles and rights of legislative minorities in those countries which do not have a constitutionally recognized opposition. This includes such constitutional mechanisms as minority delay procedures, minority- veto referendums, the right of minorities to appeal to the constitutional court, 7 Opposition and Legislative Minorities: Constitutional Roles, Rights and Recognition minority-party inclusion in appointments and minority-party presence in legislative leadership. Section 7 offers decision-making questions for reflection and discussion. Section 8 provides tables of example constitutional provisions regarding the opposition and legislative minority. Advantages and risks There are three main advantages that stem from a country’s recognition of the opposition, or the legislative minority, in its constitution. ‘First, recognizing the opposition proclaims’ the value and legitimacy of opposition parties as an accepted part of the political system, curtailing any attempt to establish a one- party regime, and preventing governments and incumbent majorities from excluding opposition voices or evading scrutiny. In cases where the opposition has not been constitutionally recognized—as in the 1960 Constitution of Nigeria— majority parties have sometimes failed to follow convention in accepting the presence and role of the opposition in a democracy (Crowcroft 2020: 187). Second, recognition