Details of the Clauses

4.2.1 The Speaker

The term “Speaker” describes a person who acts as a spokesperson, and in our case the presiding officer over an office or a group of decision-making individuals.^[263] Therefore, a speaker can be seen as a representative, as he is to be elected by the individuals which are part of the group he is presiding over.

The Speaker generally acts as a spokesperson, representative and presiding officer over Parliament. In many countries this person is therefore ranks amongst the three highest persons in the country along with the head of the executive and the chair of the constitutional court. The Speaker is mainly responsible for organising the work of the plenary and the sub-organisations of Parliament.^[267] The Speaker therefore is also responsible for maintaining order and discipline in parliamentary sessions and debates.

4.2.2 The Presidium

The term “Presidium”, or synonymous “Bureau of Parliament”, represents the governing body of an assembly, organisation or party. It typically consists of a president and his representative(s), for example his deputy.^[269] In a political context, the Presidium defines the work and workflow of the Parliament in detail, including appointment of advisory staffs.^[270] The exact tasks and functions of the Presidium are usually not regulated in the constitution, but in the Rules of Procedure or Standing Orders of the Parliament. In France each chamber is presided over by a collegial body, called a Bureau which consists of a President, six Vice-Presidents and a certain number of secretaries and quaestors.^[271] In Germany, the mandatory organs include the President of the Bundestag, his deputy and secretaries.^[272] In Spain, for example, the chambers (House of Representatives and Senate) each elect their President and

Table 4.1 | Exemplary electoral clauses—speaker

Table 4.2 | | Duties of the speaker

the other members of the Presidium,^[273] the procedures of which are governed by rules of procedure drawn up by an absolute majority of both Houses.^[274] (Table 4.3).

In many countries outside the pure majoritarian electoral system the questions arises, whether the elections for the presidium should occur on the basis of propor­tional representation of factions or parliamentary groups in Parliament.

Table 4.4 | | Duties of the presidium

with a particular extremist party—there may be reason, not to include a leader of a faction of a respective party into the Presidium. This could be achieved by keeping the number of deputy-Speakers low or by making the proportional representation in the Presidium desirable (“should”) instead of mandatory (“shall”). In any case it is recommended to have the Speaker and his deputies elected by concealed ballot papers (Table 4.4).^[275]

4.2.3 Committees

The term “committee” defines a “body of persons delegated to consider, investigate, take action on, or report on some matter”, specifically a “group of fellow legislators chosen by a legislative body to give consideration to legislative matters”.^[276] The word committee also derives from the latin word “comitium” the meeting place and it was common practice in the ancient Rom to convene in committees, often with the power to appoint certain officials, like the comitia centuriata, which elected the Roman consuls. Later the nobility gathered with the Kings in Europe. After the holy sermon, the monarch would present the bills and the nobility would break up into committees (or even as the Committee of the Whole House) and provide the monarch with their comments. The procedure often followed Roman procedure with Duplik and Triplik until the monarch had agreed to the changes.^[277]

Additionally, committees can be both of mandatory and optional nature, even though both categories are essential for parliamentary work. Therefore, some constitutions stipulate the establishment of committees in specific fields, such as defence, economy, finance, foreign affairs, internal affairs, internal investigations, social or other permanent committees.^[278] In some cases it may also be necessary to set up subcommittees for this purpose. Finally, Parliament can usually also set-up ad-hoc committees.

Notably only common law countries have the tradition to establish—federal or state—Royal Commissions. These functions similar to investigative committees and often have a large budget and scope of investigation significant problems including human rights failures,^[279] however are established and report to the Executive and not the Parliament. They do not form part of this review.

Committees are appointed for the specific function to discuss and to advance the content of legislative proposals. They can be both of mandatory and optional nature. Nowadays many constitutions stipulate the establishment of legislative committees in specific fields, such as defence, foreign affairs and affairs of the European Union or other permanent committees.^[280] France for example has legislative committees (commissions permanentes), e.g. the External Affairs Committee, Defence Commit­tee, Finance Committee, Constitution Committee, etc... Besides participation in legislation they also exercise controlling functions.^[281]

The “European Commission for Democracy through Law” states that in fact not all members of Parliament experience the same amount of rights and competences.

However, in democratically organised countries, the right to vote, speak in parlia­mentary debates (though sometimes allocated only to party groups) and the right to participate in committee work, should be mandatory.^[282] Members of committees are often experts in the area that is discussed.^[283]

For the composition of the parliamentary committees the crucial questions there­fore again rank around proportionality and the involvement of the opposition. In some countries, the constitution explicitly regulates a ratio proportional to the political parties in Parliament, which is highly recommended. Article 52 of the constitution of Denmark states e.g. that “The election by the Folketing of members to sit on committees (...) shall be according to proportional representation”. A similar wording can be found in article 55 of the constitution of Austria: “The National Council elects its Main Committee from its members in accordance with the principle of proportional representation” or by Federal Constitutional Court deci­sion, as in Germany: “Each committee must be a miniature image of the plenary session.”^[284] The guidelines on the rights of the opposition laid down by the European Parliament in Resolution 1601 (2008) emphasise the importance of proportional representation, including “the presidency of standing/permanent committees shall be allocated among parliamentary groups on the basis of proportional representation [...] (2.5.1)” and “any committee, permanent or not, shall be composed on the basis of proportional representation (2.5.2).”.^[285] (Table 4.5).

The importance of committees for the parliamentary work cannot be overestimated: “The actual work of the Parliament is done in the committees.”^[286] (Table 4.6).

4.2.4 Faction

A “faction” is the group of deputies of a particular party in Parliament. At times factions also host members of several parties. If a party reaches only a minor representation, it may not be eligible to form a faction but is instead called a “parliamentary group.” For various reasons it is important to strengthen factions particularly in young democracies to establish stability in Parliament.

The role of strong factions in a democracy should not be underestimated: in principle the factions are the guarantor of a functioning Parliament. A constitution and in particular the Standing Order or procedural rules of Parliament should therefore do its best to manifest its importance and standing. This applies in particular to a young democracy or a country which has recently experienced a

Table 4.5 | | Election of the committees

turmoil of the party landscape (among which also count established democracies such as France after the emergence and victory of 308 of 577 seats by Emmanuel Macron’s party La Republic En Marche! in the year 2017). Usually factions and not their parties receive subsidies by the country after each election. Based on the deliberations in Chap. 2 of this book with respect of the free will of the deputy, the will of the faction is not necessarily identical with the position of the party. Whilst the faction is not the party, often party leaders may also be faction leaders and the name of the party often also coincides with the name of the faction.

Importantly Parliament will need to establish a minimal quota for a faction without setting it too high to avoid having too many parliamentary groups.

With respect to the legislative function a bill proposed by an entire faction usually receives priority over a bill which is only put forward by a single deputy (also referred to as Private Members Bill)^[287] as the bill has already been vetted by one faction and withstood internal critique, or has even by finetuned by this internal mechanism. Some countries also confine the ability to propose amendments in the third reading of a draft bill only to a faction and not to individual deputies. The factions are also usually empowered with the right to delegate members into and to withdraw members from a parliamentary committee, despite of the fact that each deputy should have the right to sit at least on one parliamentary committee. Draft legislation is not only discussed in the respective parliamentary committee, but in

Table 4.6 | | Exemplary committee clauses

Table 4.6 (continued)

parallel in the faction. This ensures that the technically oriented committee does not lose touch with other interdisciplinary aspects of the bill.

The electoral function can usually only be put in the hands of factions and not of individual deputies of a government. There may be parallel provisions which require a minimum threshold of e.g. 5% of all deputies—whether organised in a parliamen­tary group or no—for the nomination of suitable candidates for an internal or external officeholder.

The control function is discussed in detail in Chap. 5. Factions assume signifi­cance in the inquisitorial rights which can differ between requests made by individ­ual deputies and factions.^[288]

Elements in the public function of Parliament are the design and order of the agenda of the day of Parliament and the allocation of speaking time among the factions as well as the ability to close the debate as a whole.^[289]

4.2.5 Opposition

The term “opposition” derives from the Latin word “opponere” (to put something against) and is not easily defined as it refers to different groups within Parliament dependent on the respective country. It may vary across multi-party parliamentary regimes, presidential regimes and semi-presidential regimes. However, commonly understood the term “opposition” means a minority group of members of Parliament that are politically opposed^[290] to the Government.^[291]

Fig. 4.4 Five main principles of oppositional rights

The opposition’s fundamental purpose is to act as a counterbalance to the Government. Without a properly functioning and strong opposition it would be easy for the reigning parties to implement measures that could eventually lead to authoritarian regimes.^[292] In fact “majoritarian” rule has been described as one of the pillars of populism, which claims to act for the “real people” against the “enemies” and “those that oppose us” and are “bad” instead of seeking a social society dialogue.^[293] Therefore, steady constitutions need to vouch for five principles ensuring the strength of the opposition.^[294] These principles (see Fig. 4.4) are further examined in the following paragraphs.

The first and arguably most important principle is the one of pluralism and freedom^[295] accompanied by the so-called channels of political change. The opposition’s voice should be appreciated as an important measure towards forming public opinion and not as inability of the minority to acknowledge election results. This voice must be granted in a manner that it can influence the public unrestrictedly and be treated with the same respect as it is applied to the Government.^[296] If deployed correctly it simultaneously enhances democracy by keeping the “channels of politi­cal change” open.^[297] That phrase refers to the unconditional obligation of a constitu­tion to prevent the majority from abusing its power to render it impossible for the opposition to become majority. Every change with respect to fundamental principles of democracy, e.g. elections and authorities of the majority, must not be made without the opposition’s consent.^[298] If applied correctly, the principle will induce the dialogue between parliamentary groups in Parliament.

The second principle that a constitution must provide for the opposition is the involvement in the system of checks and balances.^[299] Since the exercise of power is shared between numerous political actors, a certain amount of supervisory power needs to be at the disposal of the opposition in order to limit the concentration of power of the Government.^[300]

The third important principle is that of a constructive cooperation and efficient decision making, which includes the contributions of the opposition.^[301] The consti­tution itself should provide for and inscribe such a good cooperation practice between the Government and the opposition. This principle directly results in a higher public interest in political debates as any voter may see its interest represented by the respective party and in mutual control of the acting parties.^[302] The constitution shall install several cooperative mechanisms as will be outlined further below. This will eventually also lead to a more efficient decision-making process. Effective decision-making determines oppositional rights in an implicit way. In order to allow the elected majority to perform their political task given by the voters, the parliamentary procedures must not be subject to excessive compromises as this would undermine the Government’s ability to act as well as it credibility and hence people would lose their political interest. Nevertheless, the opposition should as a minimum have a right to issue statements on ongoing legislative proceedings. This ensures a fair balance of the respective powers and interests as both the majority and minority owe constructive cooperation to each other.^[303]

The fourth principle is that of shared responsibility and political solidarity and aligns with the third principle of cooperation. As both the Government and the opposition have a duty towards the public, political accountability must always transcend party divisions towards legislators acting as a unified entity. Although political confrontations are usual and necessary in a modern political dispute, especially the majority reigning party needs to take into account the possibility of becoming the opposition itself before it abuses its powers, which is highly likely in a functioning democracy.^[304] In order to avoid detrimental impacts of such behaviour in the future as opposition party, the majority must exercise its powers with self­restraint. This is obviously not a one-way street because the opposition must also be forced to act cooperatively and in a non-abusive manner regarding its procedural rights in order to promote beneficial outcomes for the country.^[305]

The fifth and not less important principle is a fair participation of participation in the appointment of senior office holders outside Parliament. These include in particular those state officials of independent office holders which are reporting to Parliament, however also those of independent powers such as the judiciary as will be outlined in the text further below. Respecting this principle, it will lead to an unpolitical filling of posts for important offices within the democracy that ought not to be politically but rather only determined by decisions best in the respective institutions opinion.

4.2.5.1 Constitutional Establishment of the Main Principles

As discussed in the previous paragraphs, the main principles for oppositional rights will secure a strong opposition that fosters democracy and political diversity. However, in order to appreciate changing circumstances and to preserve reacting to such, it is necessary that only the most fundamental principles will make their way into the written constitution.^[306] This will not only render adaptions more feasible but also safeguards that the Government can properly discharge their duties by forming new laws. Therefore, the subsequent paragraphs will show a more in-depth way as to what ideally must be set out in a constitution.

4.2.5.2 Status of Members of Parliament

One and arguably the most important provision should be the equal treatment of governmental, oppositional and independent members of Parliament (“MPs”). All MPs have to be given the same rights to vote on bills and other matters, to speak in debates, to pose questions to the Government orally or in writing and to participate in the work of the committees.^[307] These rights apply to all MPs irrespective of the fraction they belong to. This may also include MPs that do not hold a membership in any fraction (so-called independent MPs). Although such independent MPs are vested with the same power as any other MP, restrictions are in place where it is necessary to preserve the viability and proportionality of Parliament. For instance, an independent MP may be assigned a seat in a certain committee. However, in order to maintain the overall proportionality of the committee this particular MP is prevented from voting on the committee’s decisions as such a voting right would unreasonably convey a power to decide on committee matters that is not substantiated with the respective votes of the public.^[308]

Furthermore, all MPs must have the same access to information and documents present to the parliament. Undoubtedly important, especially for oppositional MPs, are provisions that protect them from legal consequences for their conduct in parliament.^[309]

This is secured by parliamentary immunities, namely non-liability (freedom of speech) and inviolability (freedom of arrest)^[310] as well as a constitutional right to have a free political will^[311] which allows MPs to change their party allegiance. This will restrict the opportunities of the governing party to enforce imperative mandates. Finally, where a constitutional court has been established, no restrictions or repercussions on the respective MP to file a suit with the court ought to exist.^[312]

4.2.5.3 Financial Resources of Factions

Not directly linked to the factions’ constitutional rights but equally crucial is the amount of funds available to each faction. In order to allow every party in the Parliament to work efficiently und unfettered the constitution shall ensure that money designated for the parties’ political work is evenly allocated.^[313] This alloca­tion should follow the respective size of the overall seats in the Parliament of a party and be irrespective of whether a faction is with the majority or the minority. The same approach applies to the individual MPs and their personal financial equipment with regard to their office, employees etc.^[314]

Financial equality may easily be achieved by an “equal treatment” clause that determines the inviolable equality of treatment of any MPs.

4.2.5.4 Non-parliamentary Actors

In some occasions, it is helpful to consult external persons that provide input to the Parliament regarding legislative matters currently discussed in Parliament. These persons could be experts in a particular field that is affected by the proposed law, stakeholders of certain groups, witnesses of special incidents or people of the public that can contribute to that matter.

Those persons will most effectively be heard by the committees who can provide insights in the relevant industry. For that reason, the opposition must be allowed to invite experts and in general permission to attend a committee meeting upon invita­tion of the opposition should be granted. This will foster a more diverse perspective on certain proposed provisions as well as ensure a more comprehensive discussion within the respective committee.^[315]

4.2.5.5 Allocation of Positions of Responsibility

A pluralistic constitution must necessarily focus on a diverse allocation of positions of responsibility. If the power to appoint the Speaker, the heads and members of the permanent committees and other relevant positions of responsibility solely lays with the majority, there is an inestimably high risk of abuse by the governing parties, which will lead to the exclusion of the opposition from these governing bodies of the Parliament.^[316]

In order to reduce this risk, the opposition should be vested with a right to participate in the election of such positions. This may be done either by direct implementation of a written provision in the constitution or by establishing this right in the rules of parliamentary procedure or—albeit less recommendable—even by constitutional custom.^[317]

Most of the time, these participations rights, which mainly come down to co-election rights, are allocated according to the actual share of seats in the Parlia­ment. However, regarding the most important committees such as the budget or security services committee as well as the control chamber (which is discussed in more detail in Sect. 16.2.3 of Vol. I of Writing Constitutions, it is beneficial to supersede the principle of equal representation in order to allow the opposition to have a strong voice in these matters that often determine the future development of a nation and exercise a controlling function upon Government.^[318]

4.2.5.6 Procedural Decisions Within Parliament

The positions of responsibility should be elected by all parties in the Parliament on a proportional basis, but also the power associated with these positions needs to be allocated. Procedural matters of the Parliament, such as the daily agenda, speaking time and question rights, must not solely be made by the majority.^[319] Minority MPs should always have a say in the collective actions of the Parliament to ensure a balanced operation of Parliament.^[320]

This issue becomes particularly important with respect to deciding-making-bod­ies that rule upon internal procedures, rules and dispute resolution measures, e.g. an ethics commission. Since these internal matters directly affect and potentially impede the opposition as such, it is vital to complement the proportionality requirements even more.^[321] That can be achieved by additional mechanisms such as qualified majority voting thresholds or vetoing powers on bills that propose a change of participation rights of the opposition.^[322]

4.2.5.7 Allocation of Speaking Time

A main aspect of parliamentary debates is the oral discussion of a proposed law in the Parliament. In order to secure a fair debate, the speaking time available to the MPs should be determined by allocation of the time to the respective parties according to their overall share in Parliament.^[323] One or more MPs may take this allocated time and speak on behalf of its party. There may be situations where it is appropriate to give the opposition more time than it would originally have under its share, e.g. when the law was proposed by the Government or the majority MPs. In some cases, it is even appropriate to give the majority and minority equal speaking time irrespective of their overall share in the Parliament. This may be the case with constitutionally acknowledged important matters of national or international impor­tance, such as defence, budget or environmental issues.

Furthermore, a rule that provides for a particular sequence of the persons speaking and that is indicated by the rules of procedure or by custom law may be highly beneficial.^[324] This puts the opposition in a position to instantly respond to the position represented by the majority.^[325]

4.2.5.8 Amendments by the Opposition to Proposed Bills

Favourable for a democratic constitution is a right of the opposition to table amendments for Government proposed bills. This constitutes a very strong right for the opposition that bears the risk of exploration. It would be feasible for the opposition to protract the adoption of a bill or to deform it by making numerous amendment requests. Hence, the right is usually restricted by various requirements that need to be met in order to file an amendment request. Among these requirements are, e.g. a predetermined deadline for amendment requests or that the amendment itself must not have be previously discussed by Parliament or the respective com­mittee. The practice of Governments to request a bulk vote on its proposed bill drafts which overrule any amendment requests of the opposition is not at all good practice. Since the participation of the opposition in the legislative process by requesting amendments to bills is a crucial part of the opposition’s democratic role in the Parliament, such an overruling procedure should not be permitted by the constitution or procedural rights.^[326]

4.2.5.9 Qualified Majorities for Bills

In many cases, qualified majorities are required for certain decisions, e.g. for a constitutional amendment. However, a constitution may also ask for a qualified majority in other cases, such as important bills (e.g. on budget, foreign affairs or environment) or organic laws. The respective qualified majorities required differs. It may rank from a two-thirds majority to unanimity. All the rights granted to the opposition explained in the former chapters are subject to the threat of abolition by the majority. Therefore, it is vital for a constitution to require a qualified majority for amendments of the rules of procedure or other regulations concerning the internal organisation of the Parliament.^[327]

4.2.5.9.1 Participation by the Opposition in the Appointment of Senior Office Holders

Senior positions outside Parliament, such as, subject to the respective country, judges of the constitutional court, the prosecutor general, the president of the central bank, members of the high judicial council and of the high prosecutorial council, etc., must remain independent and therefore unfettered from political fluctuation. This will help office holders and their institutions focus on what is most beneficial to do regarding tasks before them and hence strengthen the public’s confidence into those institutions. In order to achieve such independence, the most effective measure is to require certain qualified majorities when it comes to the election of the senior office holders as the involved parties have to arrive at a consensus on the respective person appointed.^[328]

However, such qualified majority may only be beneficial if the majority does not hold a share which exceeds the required majority. This would in fact rather be detrimental for the opposition since the majority could make appointments in their own favour and the opposition would not be able to replace the office holder within the current legislative period. This may only be avoided by the implementation of a so-called anti-deadlock mechanism, which will be explained further below.

Another opportunity to tackle the problem of a fair appointment of top office holders is proportional representation of the parties in Parliament. Apart from a pure proportional representation is a mixed approach that includes proportional represen­tation as well as a qualified majority for the respective positions. This results in a double control of the appointed persons. These approaches work fairly well for collective bodies such as groups of judges of the constitutional court, but they are naturally not feasible if there is only one position vacant, as it is the case for the president of the central bank.

A deadlock can occur in two parliamentary situations. One of them is the above­mentioned situation, where the majority alone can rule on the positions irrespective of the opposition due to their seats in Parliament. The other one is the direct opposite of the first one. Due to their veto position, the opposition blocks all proposed office holders and hence locks the parties in a stalemate. For either of these situations, the constitution should provide for an effective deadlock resolving mechanism that encourages the parties to find a consent regarding the respective office holders and that discourages them from behaving obstructively in finding a suitable office holder.^[329]

A good solution to resolve a deadlock is a two-tiered elections procedure. In the first election, a qualified majority is required for the appointment of a certain person. If no candidate reached the necessary qualified majority, a second election would be held. In such a second election, the qualified majority is lower or even completely abandoned with a mere majority being sufficient to lift an office holder in place. However, this approach bears the risks that the majority exploits the system by simply awaiting the second election each time an office holder needs to be appointed unless sufficient time is allowed between the elections, which makes an early compromise more attractive.

A more compelling solution may be a slight alteration of the two elections system. After the failure of the first election, instead of holding a second one with lower thresholds, a neutral body will be in charge of appointing the vacant position. Who this neutral body will be is debatable, as each country’s constitution will make its own determinations. Once this body is in place, it highly encourages the parlia­mentary parties to find a common office holder, as they fear the loss of their election power.^[330] Some constitution also require the cooperation of two different institutions.^[331]

All these previously mentioned provisions will contribute to the parties’ willing­ness to form cross-party alliances for the appointment of the office holders and internal dialogue beyond political objectives. These cross-party alliances and compromises are particularly healthy in countries effectively dominated by a two party system—whether it is because of a first-past-the-post election system or otherwise like the US or Australia and which have been unable to advance cross­party political compromises on important political issues such as the environment. The appointment of US constitutional Justice Kavanaugh can serve as a negative example of such non-collaboration and creates distrust in politicians by the public.^[332] The German Rules of Procedure of the constitutional court e.g. have installed a two-thirds majority requirement for the appointment of various office holders, including any constitutional court judge,^[333] which forces the parties into a dialogue on other issues as well.^[334]

4.2.6 Detail of Regulation

Many of the above principles are core elements of a democracy. In fact, democracy is at risk if instruments such as the presidium, factions, work in committees or the opposition generally are not properly functioning. However often little details are being found in constitutions. That is because Parliament should be self-administered and as outlined initially, this should include (a) regulatory autonomy, (b) financial and administrative autonomy and (c) self-adjudication. Therefore, it is recommended that only principles, but not details are regulated in the constitution, but left to Standing Orders of Parliament.^[335] However, the Parliament of the day should not be in the position to change these Standing Orders lightly. Therefore, it is recommended to require either a qualified majority of a house to change the Standing Order or only allow for an alteration (in a bicameral Parliament) if both houses of Parliament approve such change or a combination of both. A reference to the Standing Order should be anchored in the constitution,^[336] possibly with the inclusion of some principles,^[337] such as in the Finnish example outlined above.^[338]