Inquisitorial Rights

5.2.1 Overview of Inquisitorial Rights

5.2.1.1 Definition

Unlike the right to form an investigative committee, inquisitorial rights are a common instrument used by parliaments to continuously monitor and supervise governmental activities.

The right of citation allows parliaments to demand the presence of a Government official in order for them to answer questions and to produce relevant documents. Citation can often be a means of enforcing a right of questioning, although according to common belief a citation right also already implies a right of questioning.^[357] Alongside the right of citation, a corresponding right of access developed, allowing Government officials to access parliamentary sessions and being heard upon request.^[358]

The right of questioning is the main and also the most common inquisitorial right. It appears in many different forms and facets: written enquiries, oral interrogations and question time. Written enquiries and oral interrogations are irregular measures of obtaining necessary information from executive officials on current matters.

Question time, typically implemented in countries where Government and Par­liament are inextricably linked (e.g. in the Westminster system), is a regular parlia­mentary session in which members of Government have to answer questions from members of parliament. However, due to its simplicity and secured continuous monitoring of Government activity this variation of the right of questioning is a standard instrument when drafting new constitutions.

Lastly, there is the right of interpellation which is sometimes used synonymously with the right of questioning. The difference can be however, that in some countries the right of interpellation enjoys higher procedural standards and most importantly, can lead to a vote of no confidence. The Finnish constitution, for example, provides for a compulsory vote of (no) confidence if a respective request has been tabled in the debate following an official’s answer to an interpellation.^[359]

5.2.1.2 Historical Context

The right of deputies to interrogate officials from the executive is a long-established right of parliaments and an integral part of the parliamentary culture of many older democracies.^[360] In constitutional texts, on the other hand, parliament’s inquisitorial rights are regulated in very different ways. As mentioned above, there are various forms of this classic parliamentary right. The reason for that is, that often most of parliament’s powers in this regard are outlined and governed by the respective Standing Order. So, while many countries de facto grant deputies the right to interrogate executive officials, their constitutions would only provide a right of citation, not explicitly mentioning any obligation for officials to answer questions by deputies.^[361]

This is a good example of the impact a long developed parliamentary culture can have. If established, such a strong culture of parliamentary responsibility and constitutional covenants can make up for the fact that no detailed rights of questioning or interpellation are constitutionally regulated.

On the other hand, in a country without a long parliamentary history and without well-established rights that result from such a tradition, a mere implementation of inquisitorial rights in the constitution as such can unfortunately not always guarantee parliamentary responsibility of the Government in practice: a large number of countries that have implemented such clauses in their constitutions but do not exercise parliamentary control over the Government because no practice of these rights has been established.^[362]

5.2.1.3 Function

Parliamentary control of the Government is a cornerstone of a functioning democ­racy.

Alongside the restriction of abuse of power, inquisitorial rights serve another important purpose: ensuring that deputies are able to effectively exercise their mandate. An elected parliamentarian’s task is primarily to vote on matters according to what they deem best for the people. This involves time consuming research an ordinary person would not be able to conduct. However, in order for deputies to obtain expertise on a particular matter and ultimately make an informed decision, it requires executive bodies to cooperate and provide Parliament with the necessary information. A representative can only decide upon the information they have. In the best interest of all people, they should have access to everything they need.

Fig.

5.2.1.4 Structural Approach and Guiding Questions Concerning Inquisitorial Rights

The structural approach in Fig. 5.3 firstly elaborates on the right of questioning, respectively the different versions and regulations. It then analyses how a right of questioning could be both granted and enforced by a right of citation. Next, this section deals with the right of interpellation and its threshold required for initiation, the addressees, the duty to personally attend and the obligation to reply. Finally, it discusses the possible scope of questions.

5.2.2 Details of the Clauses Concerning Parliament's Inquisitorial Rights

5.2.2.1 Right of Questioning

5.2.2.1.1 Overview

Embedded in a considerable amount of constitutions worldwide, the right of questioning allows deputies to address questions to Government officials. It has many use cases, ranging from being used merely declaratory by the majority faction in Parliament over a deputy seriously seeking to clarify a specific matter up to an opposition faction highlighting the perceived inadequacies of the Government by publishing an official answer.

The effect of written and oral questions is substantially different: when responding to a written enquiry, a minister can more easily furnish an answer to suit the ministry. When asked a question by a deputy in a plenary session, a minister is on the spot and either has to be well prepared or has to expect criticism from the deputies. Both, written and oral questions should be available to members of parliament.

5.2.2.1.2 Written Enquiries

As written questions arguably pose less of a threat to the Government and mainly serve the need of information deputies have, the thresholds should be relatively low, ideally open to all deputies at all times. The written enquiry to the Government is one of the core instruments for deputies to solicit information needed to exercise their mandate.

Minor procedural regulations regarding the frequency or length of written enquiries can be found in most standing orders of parliaments, however inconsistencies prevail regarding the time frame executive officials have to answer a written enquiry. Since written enquiries often deal with complex content, the Government must be given a certain amount of leeway. A period of more than 2 months is however disproportionate to the objective pursued by such a request. As a main source of information it enables Parliament to operate unhindered. Any longer period of time, for example 6 months, as laid down in the Bahrain constitu­tion,^[363] contradicts the purpose of the written enquiry and also prevents deputies from exercising their mandate in a timely manner.

5.2.2.1.3 Institutionalized Regular Question Time

Question time has been predominantly embedded in constitutions by countries with a parliamentary system. Naturally, where the executive forms part of the legislative, questioning Government officials is an integral part of parliamentary culture: Deputies can personally interrogate cabinet and the Head of Government during a regular parliamentary session. Members of Government have to answer thoroughly and are not able to bypass unpleasant facts or figures (as perhaps in a written inquiry scenario).

When compared, constitutions set very different intervals of “Question Time” (Table 5.9). The Canadian House of Commons, for example, sets aside 45 min each day of a sitting week to give deputies the chance to confront the Government face to face.^[364] Whereas in Belarus, question time is scheduled only once a month:^[365]

Regular question time is a beneficial way of ensuring governmental oversight. However, if this is the most important (only) way to supervise the executive, frequent implementation is essential. Especially since questions and answers in such an environment tend not to provide comprehensive information and can easily miss the point of the other.

Table 5.9 | | Intervals between question time

^a Procedure Office of Australian House of Representatives (2019), p. 3

important to set small intervals between each question time to ensure comprehensive Government oversight.

A monthly interval is certainly too long, as deputies need to be informed about current events in the meantime. However, holding question time on a daily basis can disrupt the Government’s day-to-day work. A weekly scheduling of question time during sitting periods therefore appears to be the most proportionate interval. It gives the executive sufficient time to take care of important tasks and at the same time informs the members of Parliament adequately about all current events in the government. If a third of the deputies request an ad-hoc question then it could additionally be granted.

5.2.2.1.4 Means of Enforcing the Right of Questioning

In countries that do not entertain a parliamentary system, i.e. the executive is not necessarily made up of members of parliament, question time is often uncommon. However, in order for parliaments to effectively supervise the executive and question officials, a right of citation assists. It allows parliaments to summon any executive official to its plenary sittings for them to be interrogated by the deputies. While the right of citation refers only to the competence of summoning the executive official, the competence to question the official, follows directly from them as it would be pointless to demand the presence of Government officials and then not be able to ask them about their activities in Government.

The German constitution, for example, contains no reference to the right of questioning. While such right exists and is being regulated by the standing orders of parliament, it is anchored in the constitutional right of citation.^[367] The strong parliamentary culture can compensate a lack of constitutional guarantees. It is recommended, however, to include a specific right of questioning in a constitution as cultures can change and a mention in the constitution can ensure unhindered exercise of the right.

When drafting the inquisitorial rights catalogue of a constitution it can be crucial to include safeguards that ensure unhindered exercise of these inquisitorial rights. The right of citation is a valuable tool for enforcing parliament’s right to question officials. Alongside, it is also recommended that certain consequences of non-compliance be regulated. Similar to the investigative committee, some countries determine appearance mandatory under the same constraints that are observed in judicial proceedings.^[368] This is a reasonable method of protecting and enforcing governmental oversight. When being summoned to answer questions before Parlia­ment it is recognised practice in many parliaments around the world that a represen­tative speaker is send on behalf of the official.^[369] However, this should only be occurring on the basis of a mutual understanding basis. If Parliament requests the exact person to provide information it should be mandatory for that very person to attend.

5.2.2.2 Right of Interpellation

5.2.2.2.1 Overview

A right of interpellation is in essence a stricter version of the right of questioning. While the terminology is being used interchangeably in some countries, especially countries with parliamentary systems have designed the right of interpellation with a considerably stronger impact: The answer of an executive official to a deputy’s question can give rise to a debate and a subsequent vote of (no) confidence chal­lenging the official. An unsatisfactory answer can therefore lead straight to the removal of the questioned official.

A right of interpellation usually requires Parliament to submit a catalogue of questions to the interpellated official in writing. Within a certain time frame the official has to answer the question(s) during a plenary session of parliament. In Iran, for example, an official subject to interpellation has to then seek a vote of confidence him- or herself. Normally, Parliament discusses the answer and when a certain number of deputies propose a motion of non-confidence, Parliament holds a vote of (no) confidence regarding the executive official. If they are not discharged, the officials can be removed from office.^[370]

Table 5.10 | | Threshold required to initiate an interpellation

The right of interpellation therefore serves a different purpose to gathering necessary information. It provides the parliamentary opposition with a sharp tool for assessing the work of executive officials, especially when utilizing the Damokles’ sword of impeachment as a means of exerting pressure and demonstrating power.

5.2.2.2.2 Initiation Threshold

As the right of interpellation is a considerably stronger instrument of control over the government, Parliament has to adhere to a certain threshold when initiating an interpellation (Table 5.10): How many deputies are required to submit questions, thereby initiating the process?

As the process of removing an official from office requires additional votes and majorities, the initiating threshold should not be set too high. In order to create an effective right of interpellation, the instrument should be accessible to parliamentary minorities. A requirement of an absolute majority to submit an interpellation is therefore severely counterproductive to the entire right of interpellation.

Furthermore, an interpellation is a less powerful instrument compared to the investigative committee. Accordingly, an initiation threshold should not exceed the one required for an investigative committee. A requirement of 20% or more is therefore not recommended, as it hinders parliamentary minorities to effectively exercise their supervision duties and, when compared to the considerably more powerful investigative committee, the threshold should be noticeably lower.

To fully empower minority groups in parliament, allowing every faction to submit an interpellation strengthens opposition and democracy. However, in accor­dance with the status of a deputy as an independent representative of the people it should also be possible for members from different factions to jointly submit an interpellation. Therefore, the threshold should allow every faction, as well as about 5-10% of all members to initiate such process. A lower threshold is of course effective in empowering minorities, but may lead to an official being unduly impeded in the exercise of his mandate. Again, much depends on the parliamentary culture of the country in question. With a fine balance in place between the legisla­tive and executive, a threshold of one member can work fine. In the event of abuse however, one risks stagnation and damaging the finely adjusted balance. Allowing every member of Parliament to submit an interpellation is therefore discouraged, in particular in young democracies where fractions ought to be strengthened.

5.2.2.2.3 Addressee

Addressees of the right of interpellation should generally be members of the cabinet, as well as the Head of government, in presidential systems also the president.

The constitutions of Thailand and Paraguay, for example, do not provide for an interpellation of the Prime Minister.^[371] This cannot be recommended because the Head of Government is mainly responsible for what Parliament ought to monitor and control.

Some constitutions add a catalogue of persons holding public executive offices to the list of possible addressees.^[372] This is a valuable addition to curbing any abuse of publicly entrusted power and corruption. Countries suffering from these problems should always consider including such a catalogue or even better a general clause in their interpellation clause.

5.2.2.2.4 Duty to Personally Attend

Since an interpellation, unlike any other inquisitorial right, involves the person interviewed, it is apparent that someone facing an interpellation must attend the hearing in person. A constitutional provision allowing Government officials to be represented^[373] therefore weakens the right of interpellation and is not recommended. Detailed rules of procedure in conjunction with a constitutional reference to them can have a clarifying effect.

5.2.2.2.5 Obligation to Respond

Equally clear should be an official’s obligation to respond to the questions posed to them. Nevertheless, this is often prescribed in an interpellation clause.^[374] Again, if not in the constitution such a provision can be of great value in the standing orders if referred to in the constitutional clause.

5.2.2.3 Allowed Scope of Questions

As outlined, Government is responsible to the Parliament for its operation and is required to cooperate and furnish it with reports on its work. However, where is the limit? What can deputies ask and what can they not? What must officials reveal and what not? Parliament’s inquisitorial rights reach their limits when the Government’s interest in effective decision-making prevails over Parliament’s need for informa­tion. But where is that demarcation point?

Most countries see the limit at matters that fall out of the competence of the questioned official. This barrier is appropriate since officials should have to answer questions only on matters within the scope entrusted to them. However, some countries weighed the Government’s interest more highly and implemented further restrictions to deputies’ questions. Guatemala and Costa Rica, for example, set the limit at matters concerning pending military operations or diplomatic relations.^[375] However, especially the military has great need for parliamentary supervision. And information about the current use of military force should not be kept from the people’s representatives. Here, the interest of Parliament to check and supervise all executive actions generally exceeds a Government interest in effective decision­making.

Details whose publication would impair national security are of course to be handled delicately. They could, like in committees of inquiry, only be clarified under special confidentiality agreements or only to a designated rapporteur who enjoys the necessary security clearance. Nevertheless, this should not become a permanent situation, as no military operations continue on forever. A general clause in the constitution though, provides the Government with liberty to deploy the military as it pleases and not to justify its orders. Moreover, the term “diplomatic relations” in the above-mentioned context can encompass too many matters. Essentially it could cover every contact of the Government with other states. Again, such a broad wording bears a great risk of abuse and should therefore not be a constitutional instrument.

Some countries go even further and provide the Government with every freedom to disclose information as it sees fit. The constitution of Thailand states that an interpellated minister has the right to refuse to answer if the Council of Ministers is of the opinion that the matter should not yet be disclosed on the grounds of safety or vital interests of the State.^[376] No consideration was given here and the Government’s interest clearly took precedence over that of parliament.

In conclusion, while matters concerning national security or state secrets should be handled with care, general clauses prohibiting certain topics from deputies’ questions are not sustainable and may promote abuse of authority, the very aspect that inquisitorial rights aim to prevent.