Investigative Committees
5.1.1 Overview of the Investigative Committee
5.1.1.1 Definition
Investigative committees are non-permanent parliamentary committees that have special authority and powers to investigate and are set up to inspect and evaluate a certain matter.
Across the world, such committees are also known as committees of inquiry, special or select committees, enquiries, investigatory committees or commissions of inquiry.Investigative committees are not to be confused with Royal Commissions of Inquiry. Royal Commissions of Inquiry are often used in Anglo-Saxon jurisdictions. They originated in 1080s as bodies that investigated on behalf of the British Crown1 and are still widely used by governments of constitutional monarchies2 to investigate. However, this chapter will only examine parliamentary committees of inquiry.
An introductory video can be found on www.writingconstitutions.com and on https://doi.org/10. 1007/978-3-030-94602-9_1.
1Glauben and Brocker (2016), p. 24.
2E.g. Australia, Bahrain, Canada, New Zealand and the United Kingdom. Australia states can also independently conduct royal commissions. Royal commissions are strong instruments as they are usually chaired by experienced former justices and have wide powers. They often investigate more complex problems and provide recommendations to the government. Royal commissions are
W. Babeck (*)
Sydney, Australia
e-mail: wbabeck@writingconstitutions.com
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W. Babeck, A. Weber, Writing Constitutions, https://doi.org/10.1007/978-3-030-94602-9_5
5.1.1.2 Historical Context
The tradition of investigative committees originated in the United Kingdom in the fourteenth century when the first select committees of inquiry were created to oversee the Government’s finance policy.
Parliament obtained the right to form select committees of inquiry to investigate other subject matters only in the seventeenth century.[339] [340] Other countries in which investigative committees were formed early on are the USA and France with their first committees in the eighteenth century as well as Belgium, where the first committee of inquiry was formed in the nineteenth century.5.1.1.3 Function
While an investigative committee serves many purposes, its primary function is to enable the legislative to exercise its right of inquiry, thereby contributing to the system of checks and balances between the different powers.
As the composition of the Government is usually mirroring the majority in parliament, the investigative committee can also be a weapon of the minority in Parliament to question and oversee the actions of the majority. How frequently and effectively this oversight can be applied depends heavily on the conditions of formation and procedures of the committee.
The inquiry does not only serve as a measure to oversee the actions of the executive, but also to independently acquire information on significant matters. In addition to question time, an investigative committee supplements Parliament with information so that it can make informed decisions. Without such an institute, Parliament would have to rely on the information it receives from the government, compromising its right of self-information.[341]
Another effect of forming an investigative committee is usually an increase in publicity of the subject of the inquiry. In giving the public access to the investigation conducted by the committee, transparency can be created. That strengthens the trust of the general population in their Parliament to take a delicate matter seriously. It also gives the parliament, or the minority required to form the committee, an opportunity to “focus the public spotlight”.[342] Alas, directing the public eye in a direction that is politically beneficial.
The so achieved transparency improves the efficiency of the instrument of an investigative committee as the public attention further exerts pressure on the government.
While the political use of investigative committees is common, for example in Brazil, there should be safeguards in place preventing overuse of this instrument so as to not impair the meaningfulness of a single investigation.
| 1. | Initiation of investigation | f |
| 2. | Formation of committee | f |
| 3. | Conduct of investigation | f |
| 4. | Finalisation of investigation and disbandment of committee | f |
| 5. | Report to Parliament and resulting action | f |
Fig. 5.1 Procedural issues when drafting an investigative committee clause
| 1. | How can Parliament form an investigative committee? | Formation | f |
| 2. | What is the subject and scope of the investigation? | Subject | f |
| 3. | How is the committee composed? | Composition | f |
| 4. | What rights and limits of investigation or intervention does the committee have? | Scope of empowerment | f |
| 5. | How do the findings relate to the judiciary? | Third power intervention | f |
| 6. | When and how is the committee dissolved? | Dissolution | f |
| 7. | Regulation on constitutional level or by ordinary law? | Regulatory level | f |
Fig.
5.2 Structural approach when drafting an investigative committee clause5.1.1.4 Caveat: Limits of the Function
Parliament is entitled to oversee Government activities. However, in order to ensure the separation of powers, it is crucial to ensure that the investigative committee does not take executive action. Parliament should not be able to govern through the committee, instead it should be reviewing and reacting to Government actions.
5.1.1.5 Procedural Questions
An investigative committee clause is usually quite complex as it contains a process during which the investigation is initiated, the committee is formed, the investigation is conducted, concluded and finally, the committee is disbanded, see Fig. 5.1.
5.1.1.6 Structural Approach and Guiding Questions
When drafting an investigative committee clause, various questions need to be answered (Fig. 5.2).
5.1.2 Details of the Clause Concerning Investigative Committees
5.1.2.1 How Can the Parliament form an Investigative Committee?
5.1.2.1.1 What Organ Is Responsible for the Formation?
In unicameral parliaments, the Parliament as such will usually be authorized to form investigative committees. In bicameral parliaments, however, restrictions may apply on which chamber initiates the formation of an investigative committee (Table 5.1).
The right of inquiry is crucial to the parliaments’ ability to scrutinize governmental and judiciary conduct. Therefore, only Parliament should have the power to initiate the formation of an investigative committee. Any inclusion of the executive branch in the initiation process bears the risk of the executive branch hindering an investigation and is therefore not recommended.
In bicameral parliaments it is possible to exclude one chamber of Parliament from the right to form an investigative committee. This can be reasonable if the chamber only represents the interests of federal states while the other chamber represents the country as a whole (common in federal states).
However, then giving the excluded chamber a right to demand an inquiry by the other chamber seems inconsistent. Moreover, the effectiveness of such an investigation might be impaired if the committee consists of people who do not acknowledge the importance of an investigation.If both chambers are empowered to form investigative committees, they can form joint committees if they desire (e.g. Brazil6). This also helps to prevent overuse of this instrument.
5.1.2.1.2 What Majority Is Required?
In countries where the parliamentary majority supports the government, setting up an investigative committee should not require a majority (Table 5.2). Even a simple majority would allow the parties supporting the Government to prevent any inquiries. In order to effectively protect parliamentary minorities and parliament’s right to scrutinize, a minority has to be able to demand the formation of such a committee. Therefore it is highly recommended to require less than 50% of votes to set up an investigation. The lower the minority required, the more effectively the institution of an investigative committee can contribute to the protection of minorities. This right has to be balanced against an abuse, where a minority can bring governmental activities to a standstill by initiating investigation after investigation. Giving every parliamentary group the right to demand one investigation once a year, protects the core interests of minorities. Ideally however the option of a qualified minority initiating formation should additionally be foreseen so that cross party investigations can be launched.
Sometimes, a constitution does require a simple majority, but only in matters related to foreign policy and national defense (e.g. Greece). This can be reasonable if
Table 5.1 | Formation of the investigative committee
| Nature/Main feature | Clause | Countries |
| Parliament as a whole | In addition, the Parliament appoints Committees ad hoc for the preparation of, or inquiry into, a given matter (Finland, sec. 35) | e.g. Albania (art. 77) Bangladesh (art. 76) Bulgaria (art. 79) Burkina Faso (art. 113) Cameroon (art. 35) Chad (art. 140) Denmark (art. 51) Finland Greece (art. 68) Latvia (art. 26) Switzerland (§ 163) |
| Both chambers | Each of the two chambers may, at any time, establish... (Algeria, art. 161) | e.g. Algeria Belgium (art. 56) Brazil (art. 58) Burundi (art. 204) Italy (art. 82) Spain (sec. 76) United States of America a |
| The chamber that cannot set up an investigative committee has the right to demand such a setup of the other | The National Assembly may establish Parliamentary Inquiries [...]. However, such an Inquiry must be established when demanded [...] by the National Council (Slovenia, art. 93) | e.g. Slovenia |
| Solely one Chamber | The Chamber of Deputies may at any time form commissions of inquiry... (Bahrain, art. 69) | e.g. Afghanistan (art. 89) Austria (art. 53) Bahrain Chile (art. 52) Czech Republic (art. 30) Germany (art. 44) Poland (art. 111) |
| Role of the executive in formation | Other than the Permanent Commissions mentioned in the preceding paragraph, commissions of inquiry may be created at the initiative of the King or...(Morocco, art. 67) | e.g. Morocco Switzerland (§ 163: Appointment of committee only after consultation with the federal council) |
a Glauben and Brocker (2016), p. 27
the subject matter is at the core of governmental activities or normally requires secrecy. It should, however, be clearly delineated so that not every object touches the core of Government activities.
Table 5.2 | Majority required to instate an investigative committee
| Nature/Main feature | Clause | Countries |
| Simple majority of the parliament | Parliamentary investigation may be requested against the Prime Minister or ministers through a motion tabled by at least one-tenth of the total number of members of the Grand National Assembly of Turkey. The Assembly shall debate and decide on this request through secret ballot within 1 month at the latest (Turkey, art. 100) | e.g. Turkey (1/10 initiates debate and decision by simple majority) |
| Dependent on subject matter | Parliament shall set up investigation committees from among its members by a resolution supported by two-fifths of the total number of members, on the proposal of one-fifth of the total number of members. A parliamentary resolution adopted by an absolute majority of the total number of members shall be required in order to set up investigation committees on matters related to foreign policy and national defense (Greece, art. 68) | e.g. Greece |
| Certain minority that obliges the Parliament to form a committee | The Bundestag shall have the right, and on the motion of one quarter of its Members the duty, to establish a committee of inquiry...(Germany, art. 44) | e.g. Germany, Georgia (art. 56 (2)) and Albania (art. 77) 1/4 Czech Republic (art. 30) 1/5 Latvia (art. 26) 1/3 Slovenia (art. 93) and Brazil (art. 58) 1/3 Chile (art. 52) 2/5 |
| Every parliamentary group has the right to demand the formation of an investigative committee once a year | e.g. France (Weber, EV, p. 241) |
5.1.2.2 What Is the Subject and Scope of the Investigation?
Usually, the scope of matters that the Parliament can have investigated by the committee is relatively broad. The subject of the investigation is then narrowed down and determined by the minority initiating the formation of the committee. Potential scopes can be seen in Table 5.3.
Table 5.3 I I Subject and scope of an investigative committee
| Nature/Main feature | Clause | Countries |
| Particular matter | The Sejm may appoint an investigative committee to examine a particular matter. (Poland, art. 111) | e.g. Poland Latvia (art. 26) Albania (art. 77) Brazil (art. 58) Costa Rica (art. 121) |
| Events of importance, matters of general interest | The Folketing may appoint committees from among its Members to investigate matters of general importance...(Denmark, art. 51) | e.g. Switzerland (§ 163) Algeria (art. 161) Bangladesh (art. 76) Denmark |
| Matters of public interest | Each House may set up inquiries on matters of public interest (Italy, art. 82) | e.g. Italy Spain (sec. 76) Czech Republic (art. 30) El Salvador (art. 131 (32)) Peru (art. 97) Germany (art. 44) |
| Government actions | The Parliament shall control Government action through oral or written questions and by setting up committees of inquiry with specific terms of reference (Cameroon, art. 35) | e.g. Afghanistan (art. 89) Benin (art. 113) Burkina Faso (art. 113) Burundi (art. 204) Cameroon Chad (art. 140) Chile (art. 52) Turkey (art. 100) |
Some constitutions allow for the committee to not only investigate on the parliament’s demand, but to react constructively to findings, for example with proposals for legislation.
Sometimes, constitutions “outsource” certain topics to other bodies, for example to standing committees to be investigated exclusively by them because they have special expertise on the subject or there is a heightened need for secrecy. For example, in Germany, such a regulation pertains to matters of defence.[343]
Some countries allow an investigation on matters of public interest. This is recommended in the interest of transparency of a country and accountability to the people. Common law countries have a long tradition of Royal Commissions for that purpose as outlined in the beginning of this chapter.
Some countries allow to amend the scope of the investigation while the investigation is already being conducted.[344] This mechanism can be useful when the investigation brings facts to light that were unexpected at the time of formation but require investigating. As the right to inquiry belongs to the parliament, the Parliament is usually also the only body able to amend the scope of an investigation. It is, of course, a possibility to enable the committee itself to amend the scope of investigation though that is not common since the investigation is ultimately meant to benefit the Parliament and its minority. For the empowerment of the parliamentary minority that has initiated the investigation, however, it is crucial that the scope cannot be amended or limited against its will. Otherwise, the parliamentary majority would be able to hinder the investigation by minimizing or redirecting the subject of investigation.
5.1.2.3 How Is the Committee Composed?
While it is certainly tempting and possible to enhance the power of a minority by varying the composition of an investigative committee (Table 5.4), it should be taken into consideration that most parliaments, as well as their committees, operate on the rule of democratic majority. Should minorities be over-represented in the composition of the committee, they will be over-represented in decisions concerning the investigation of important matters of public interest, infringing that rule.[345]
Mirroring the proportions of parliamentary groups in the composition of an investigative committee ensures that minorities will be represented in the committee and the democratic rule of majority is preserved. Instead the opposition is often provided with the lead of the investigation in the committee. Limiting the number of majority members in the committee does protect parliamentary minorities. However, an over-proportional representation is usually assumed to contradict the rule of democratic majority. Importantly both majority and minority should be able to express their interpretation of the outcome of the investigation. In bicameral systems,
Table 5.4 | | Composition of the investigative committee
| Nature/Main feature | Clause | Countries |
| Reflect proportions of parliamentary groups | In forming the Executive Committees and each Committee, proportional representation of political parties or parliamentary groups that participate in the respective Chamber shall be assured to the extent possible (Brazil, art. 58) | e.g. Italy (art. 82) Germany (art. 44) Greece (art. 68) Brazil Ghana (art. 103 (5)) Israel (art. 22) Sierra Leone (art. 93 (5)) Turkey (art. 100) France (Weber, EV, p. 241) |
| Limited number of parliamentary majority in committee | The parliamentary majority in an interim commission shall not represent more than half of the total number of commission members (Georgia, art. 56 (2); 2013) | e.g. Georgia |
| Equal number of representatives from both chambers of parliament | e.g. Switzerland (§ 164) |
giving both chambers equal seats to fill in an investigative committee lets both gain opportunity to take part in the investigation and preserve their rights.
5.1.2.4 What Rights and Limits of Investigation or Intervention Does the Committee Have?
5.1.2.4.1 General Powers
As an investigative committee is only formed under certain circumstances and there are additional thresholds in its formation, it will usually have more investigative powers than Parliament itself.
Some countries grant their investigative committees only the powers inherent to Parliament itself, as does Cyprus.10 Such a regulation may be sufficient if the Parliament has been granted enough investigative powers to conduct an investigation effectively. However, the more typical powers granted to investigative committees include the ones listed in Table 5.5.
In general, it is important for a Committee of Inquiry to be able to call and question Government officials. Adopting the rules of a judicial enquiry can suffice if the courts are equipped with strong investigative powers. Usually, the rules of
Table 5.5 | | Powers of an investigative committee
| Nature/Main feature | Clause | Countries |
| Same rights as in a judicial enquiry | A Parliamentary Inquiry so established shall have similar and comparable the same powers of investigation and examination as a court (Slovenia, art. 93) | e.g. Italy (art. 82) Slovenia Ghana (art. 103 (6): High Court) Sierra Leone (art. 93 (6): High Court) |
| Rules of criminal procedure | The rules of criminal procedure shall apply mutatis mutandis to the taking of evidence (Germany, art. 44) | e.g. Germany Austria (art. 53) |
| Authorities/Government are required to assist, produce files and information | ...Ministers and all State employees are to provide such testimony, documents and statements as are asked of them (Bahrain, art. 69) | e.g. Germany (art. 44) Austria (art. 53) Switzerland (§ 165) Latvia (art. 27) Bahrain Bangladesh (art. 76) Benin (art. 113) Cameroon (art. 35) Chile (art. 52) Costa Rica (art. 121) Denmark (art. 51) El Salvador (art. 132) Georgia (art. 56 (3)) Kuwait (art. 114) |
| Courts are required to assist, produce files and information | The courts and all other authorities are obliged to comply with the request of these committees to take evidence; all public departments must on demand produce their files (Austria, art. 53) | e.g. Germany (art. 44) Austria |
| Duty of appearance when summoned | It shall be compulsory to appear when summoned by the Houses. The law shall regulate penalties to be imposed (Spain, sec. 76) | e.g. Spain Czech Republic (art. 30) Bangladesh (art. 76) |
Table 5.5 (continued)
| Nature/Main feature | Clause | Countries |
| Chile (art. 52) Costa Rica (art. 121) Denmark (art. 51) El Salvador (art. 131) Georgia (art. 56 (3)) Honduras (art. 205 (21)) Kuwait (art. 114) Peru (art. 97) |
judicial enquiry include regulations for what happens when individuals do not comply with the requests of the court. These have to be extended to include officials who may be deprived of the duty to testify in court. Otherwise, the rules of the criminal procedural code as practices in Austria or Germany can also serve as a strong force.
Similarly, a “duty of appearance when summoned” has to also include Government officials.
Requiring Government authorities to assist, produce files and information satisfies the need for a pervasive investigative power. As a lot of Government affairs are otherwise secret, it is beneficial that the committee be entitled to have access and be entitled to assistance by Government and Government departments.[346]
A committee investigation should always be conducted independently from the judiciary. However, requiring courts to assist, produce files and information prevents unnecessary double-taking of evidence and is therefore advisable, provided an independent investigation is guaranteed.
While it is important to clarify which rights and ways to procure information exist, it is equally, if not more important to regulate what happens in case of non-compliance with the committee’s request because those regulations determine whether the committee can effectively exercise its powers. Sanctions for non-compliance, for example, do not exist in Bulgaria and Slovenia.[347] While officials might comply with the committee’s request simply because they do not want to lose credibility in the eyes of the public, others are not incentivized to comply and the request cannot be enforced. Therefore, the instalment of sanctions is advisable. Potential enforcement mechanisms are the forcible presentation of witnesses[348] or coercive detention of an individual not complying with the request.[349] Sanctions can be fines or even deprivation of liberty.[350] However, to make sure that the rights of the individual cannot be infringed without recourse, at least the sanctions pertaining to the freedom of a person should fall under the discretion of a court, which easily can be achieved by criminalising the failure to comply.[351]
For the sake of being able to keep delicate matters secret and encouraging their disclosure to the committee, the committee should have the option to exclude the public from its sittings, either in general or just for one sitting.
5.1.2.4.2 Exceptionsand Prerequisites
As the committees are often granted a wide range of investigative powers, some countries implement exceptions, prerequisites for the use of those powers or grant the executive some influence on the proceedings (Table 5.6).
Specifying constitutional rights that limit investigative powers such as the protection of privacy makes sense, so that the majority cannot easily override them.
Confining governments duty to provide information to the extent that the law permits might protect the secrecy of sensitive matters. But rather, it could create grey areas, where the Government cannot be controlled. Instead, sensitive matters could be protected by, for example, excluding the public from committee sittings or creating a committee fit to deal with secret information. Generally, also the core[352] decision-making within the government is also protected from discovery.[353] If areas are to be exempt from the committee powers, it is recommended to specify the extent of the exception in the constitution, not by ordinary law.
When certain majorities are required to induce the taking of evidence, the lower the minority required, the more empowered are the parliamentary minorities. The requirement of a simple majority or more to request the taking of evidence would counteract the empowerment.
Giving the Government a right to overview the investigation can be of great value to the committee as hearing the governments point of view on the subject can be
Table 5.6 | | Limitations and checks upon an investigative committee
| Nature/Main feature | Clause | Countries |
| Protection of privacy | The privacy of correspondence, posts and telecommunications shall not be affected (Germany, art. 44) | e.g. Germany Peru (art. 97: personal privacy remains protected) |
| Heads of state institutions only give information to the extent that the law permits | The Heads of state institutions, at the request of the parliamentary committees, give explanations and information about specific issues of their activity to the extent that the law permits (Albania, art. 77) | e.g. Albania |
| Furnishing of information subject to national defence and security of state, secrecy of criminal investigations | (2) The Government shall, subject to the imperatives of national defense, the security of the State or the secrecy of criminal investigation, furnish any explanations and information to Parliament (Cameroon, art. 35) | e.g. Cameroon |
| Certain Majorities required for inducing the taking of evidence | The investigatory commissions, at the petition of one-third of their members, may issue summons and request information. [...] the Ministers of State may not be summoned more than three times to the same investigatory commission, without the prior agreement of the absolute majority of its members (Chile, art. 52) | e.g. Chile, Germany (§ 17 Committees of Inquiry Act of 2001: the majority may intervene if the action is impermissible) 1/4 Saxony (art. 54) 1/5 |
| Right of the executive to overview actions of committee | A member of the Council of Ministers has the right to take part in meetings of the Assembly or of its committees; he is given the floor whenever he requests it (Albania, art. 80) | e.g. Albania Switzerland (§ 167 (1)) Germany (art. 43 (2)) |
vital. However, it is important to simultaneously limit its power in the investigation so that the Government cannot overtake it.
5.1.2.5 How Do the Findings Relate to the Judiciary?
The effect the investigation has on judicial proceedings and verse visa is of high importance because it directly affects the separation of powers. The investigation conducted by an investigative committee is not governed by the same rules as proceedings in court and often does not provide equal protection for individuals
Table 5.7 | | Interrelations between investigative committee and judiciary
| Nature/Main feature | Clause | Countries |
| Findings not binding on courts | (2) The Assembly has the right and, upon the request of one-fourth of its members, is obliged to designate investigatory committees to review a particular issue. Their conclusions are not binding on the courts, but they may be made known to the office of the prosecutor, which evaluates them according to legal procedures (Albania, art. 77) | e.g. Germany (art. 44) Spain (sec. 76) Albania El Salvador (art. 132) Peru (art. 97) |
| Findings not subject to judicial review | (4) The decisions of committees of inquiry shall not be subject to judicial review. The courts shall be free to evaluate and rule upon the facts that were the subject of the investigation (Germany, art. 44) | e.g. Germany |
| Findings can be referred to public Prosecutor to initiate proceedings | Their conclusions shall not be binding on the Courts, nor shall they affect judicial decisions, but the results of investigations may be referred to the Public Prosecutor for the exercise of appropriate action whenever necessary (Spain, sec. 76) | e.g. Spain, Albania (art. 77) Brazil (art. 58) El Salvador (art. 132) Morocco (art. 67) Turkey (art. 100: Supreme Court) |
| Exclusive relationship to judicial prosecution (at the same time) | Commissions of Inquiry may not be created when the matters have given rise to judicial prosecutions and as long as these prosecutions are underway. If a commission has already been created, its mission terminates on the opening of a judicial inquiry concerning the matters which motivated its creation (Morocco, art. 67) | e.g. Morocco |
that are investigated. As such, it is important to limit the impact the investigation has on court proceedings. On the other hand, the committee may find that an individual should be prosecuted and, in that case, should be able to refer its findings to instigate criminal or even civil proceedings (Table 5.7).
Keeping the work of investigative committees independent from judicial investigations is a manifestation of the separation of powers. Both investigations should be conducted independently from each other. However, courts should not be hindered using a committees findings if it desires to. Should crimes be discovered in a committee hearing, it is prudent and effective that the courts should investigate.
Creating an exclusive relationship between an investigation conducted by a committee of inquiry and one conducted by a court is not recommended as it should
not be possible to prevent or suspend a committee investigation by starting proceedings in court.
5.1.2.6 When and How Is the Committee Dissolved?
The composition and purpose of investigative committees depend on the composition of the current parliament, which is why investigative committees are usually dissolved at the latest when the legislative term is ending. However, there are various options to regulate an earlier end of the investigation. These alternatives can also be combined (Table 5.8).
Having a fixed time frame for the dissolution of the committee ensures a minimum time of inquiry that cannot be reduced by a majority. However, this should
Table 5.8 | | Dissolution of an investigative committee
| Nature/Main feature | Clause | Countries |
| Standing committee dedicated to inquiries | Parliament shall appoint from among its members the following standing committees... (Bangladesh, art. 76) | e.g. Bangladesh Israel (art. 22: Choice of whether to empower existing standing committee or create a special one), UKa |
| Certain amount of time after commencement of inquiry | ...and the commission or member is to present the findings of the inquiry not later than 4 months from the date of commencement of the inquiry (Bahrain, art. 69) | e.g. Bahrain Turkey (art. 100: 2 months with possible extension for another two) France (6 months, Weber, EV, p. 241) |
| Parliament may set the time period | Parliamentary inquiry committees... shall be created by the Chamber of Deputies and by the Federal Senate, jointly or separately, upon the request of one third of its members, to investigate a given fact and for a certain period of time...(Brazil, art. 58) | e.g. Brazil Germany b |
| Mission ending with submission of report/findings | Their mission terminates by the deposit of their report to the Bureau of the Chamber concerned and, the case arising, by the referral of [the matter] to justice by the President of the said Chamber (Morocco, art. 67) | e.g. Morocco Germany (where the Parliament can also decide on having the matter investigated further by that same committee) c |
| In practice: President has the power to stop the inquiry | e.g. Cameroon d |
a Select committees usually have an open-ended mandate: Lehmann (2010), p. 5
b Glauben and Brocker (2016), p. 133
c Ibid., p. 449
d (Fish & Kroenig (2011), p. 118)
not be the case in all instances. Some investigations might be too complex to thoroughly conduct within a fixed time frame. It is not efficient to create a new committee just because the time has elapsed. However, it would be possible to set a fixed time for an interim report.
Parliament setting a time period ensures that a thorough investigation of the subject is possible. It would however be favourable, if the minority initiating the investigation is also able to set the time period. Otherwise, the majority could hinder the minority by setting a time period that is too short considering the subject of investigation.
Allowing the President to terminate an investigation defeats the purpose of checks and balances and is therefore strongly discouraged.
The establishment of a standing committee of inquiries usually means that it is not dedicated to one issue in particular, but instead permanently investigating the government. It is therefore not recommended, as its members may not be particularly qualified to deal with specific issues.
It is recommended, however, to enable minorities in the committee to submit independent reports should they so choose. This ensures that the minority can continue to gather information and present their findings at the end of the investigation to the parliament.[354] As committee reports are usually made public, it also ensures that the minority’s opinion on the subject is heard and becomes part of the public discussion.
In some countries, the Government has the right to comment on results presented by the committee (e.g. Switzerland[355]). Such a right is a valuable addition to the discussion in Parliament and public. It would be unrealistic and counterproductive to expect the Government to stay silent, since its reaction is part of the desired result of conducting an investigation.
5.1.2.7 Regulation on Constitutional Level or by Ordinary Law?
In some countries, such as the US, UK and France, investigative committees are not mentioned in the constitution but are still established institutes. However, there, the main reason investigative committees are effectively used regardless is that the institution had time to grow and is embedded in a system of customs. Such a system is unlikely to exist in a situation where the constitution is being redrafted, which will make forming an investigative committee more difficult.
As the investigative committee is an important institute that helps to define the relationship between the executive and legislative powers in times when there is a lot of unrest and discussion, it is strongly recommended to embed it within the constitution.
A constitutional regulation provides certainty when the relation between legislative and execution is questioned and can grant reliable rights to the parliamentary minority and individuals that cannot be challenged by the majority as it would perhaps be the case if the committee were to be embedded in ordinary law. That is why it is also recommended to specify those rights in the constitution, not simply in ordinary law.
However, the need for reliability has to be balanced by the flexibility the Parliament requires to use investigative committees most effectively. For that purpose, it is recommended to regulate the procedure of the committee etc. in ordinary law, where it is easier for the Parliament to adapt them to its needs.
Exemplary for this is the constitution of Saxony. It specifies not only the parliamentary minority that is empowered to demand the formation of a committee and that the subject of investigation cannot be changed against its will, but also the minority within the committee that is able to demand the taking of specific steps in the investigation. Additionally, it ensures the protection of privacy rights and specifies the role the judiciary, as the third power, can take. The details of how the committee is formed and composed as well as procedures within the committee are left to ordinary law, giving the Parliament leeway in deciding how to structure its committees of inquiry.[356]
The wording reads as follows:
(1) The Landtag has the right and, at the request of one fifth of its members, the duty to set up committees of inquiry. The subject of the investigation must be specified in the decision. The subject matter of the investigation, which is stated in a minority claim, may not be changed against the will of the applicants.
(2) The Committees shall, in public proceedings, bring forward the evidence which they or the applicants consider necessary. The public is to be excluded if two-thirds of the members of the committee present request it.
(3) Evidence shall be provided if requested by one fifth of the members of the Committee.
(4) At the request of one fifth of the members of the Committee of Inquiry, the State Government is obliged to submit acts and to issue a statement of authorization to its employees, unless the core area of executive responsibility is affected or if legal regulations, third party rights or predominant interests of security protection are precluded.
(5) Courts and administrative authorities are required to provide legal and administrative assistance.
(6) The details of the establishment, the powers and the procedure of the committees of inquiry are governed by law. The postal, postal and telecommunications secrecy remains unaffected.
(7) The decisions and results of the committees of inquiry are not subject to judicial review. However, the courts are free in their assessment and assessment of the facts on which the investigation is based.
However, it should additionally be mentioned whether the committee’s composition is to mirror the composition of the parliament, as that, strongly influences how efficiently the minority can conduct an investigation.
5.2