Session 2
Ensuring Accountability: The Role Of Parliament
Moderator: Jim McDermott
Remarks by Jim McDermott, United States House of Representatives
In 1998, my friend Murli Deora and I founded the US-India Inter-Parliamentary Working Group, the first cooperative legislative venture between the world's oldest democracy and the world's largest democracy. It allows legislators from Washington, DC and New Delhi to meet directly on a regular basis, providing a forum for decision makers to advance trade and diplomatic relations through an extended dialogue. The Asian Center opens another line of communication between India and the United States. As an independent forum, jointly sponsored by NED and the CII, it is in a unique position to foster an on-going dialogue on democratization. The Working Group and the Asian Center are organizations that will cultivate a mutual understanding of our different systems.
Winston Churchill said: "Democracy is the worst form of government until you consider the alternatives." Anyone who watched the US presidential election over past couple of months knows the truth in this statement, no matter how advanced one thinks their democratic system is. This session addresses one of the most difficult issues democracies face. We will hear from speakers who discuss the Indian system as well as other parliamentary systems. I would like to speak for a moment about the US system.
The U.S. administrative, legislative, and judicial systems are successful because of the faith Americans have in their staying power and the patience to let them work. The founding fathers designed a system of checks and balances to ensure that no one branch of government becomes too powerful. The legislature passed "sunshine laws" mandating open access to government hearings and the release of unclassified government documents. The media and non-governmental organizations "watchdog" the actions of the government and report on them. However, the ultimate watchdogs are the American people - every election, they have the opportunity to hold elected officials accountable and decide which direction the country should go.
P.A. Sangma
In democracies the people are sovereign. The people exercise their sovereignty through their representatives, elected and returned by them to the parliament. Collectively, the parliament and individually, members of the parliament are accountable to the people. The MPs, whether they belong to political parties or not, are supposed to be answerable to the promises given by them at the time of the elections. MPs sponsored by political parties present their policies to the people in a rather structured and formal way through the election manifestos of their parties. Members not sponsored by political parties contest elections on their own individual stature and assurances.
Election manifestos are, of course, quoted in the parliament from time to time to make points and counter points in debates and other proceedings. But, often, manifestos do not get fully translated into action for fulfilment of assurances. This is partly due to the fact that manifestos serve as ritualistic pro forma exercises in elections, and partly due to the compulsions of practical governance. In coalition governance in particular, manifestos become compromised or watered down into what comes to be known euphemistically as "Common Minimum Programs" (CMPs). While the people are probably aware that a CMP is a device to hold on to power, they tend to be apathetic about it. They do not always take their representatives to task for non-fulfilment of assurances, and end up electing them repetitively. An educated, enlightened and aware electorate is therefore a primary requirement for ensuring parliamentary accountability.
Once elected, MPs are accountable to the house as a whole, according to constitutionally framed rules. Time in the house being limited, and the number of MPs being large - there are 545 of them in the Lok Sabha (House of the People) and 250 in the Rajya Sabha (Council of States) - time management becomes a matter of crucial importance for the orderly conduct of business. Several parliamentary devices have been formulated and incorporated in the rules for members to conform to while transacting business. However, quite often, rules are breached. There are many reasons for this:
- The very limited availability of time and the consequent competitiveness amongst members to draw the attention of the chairs;
- Ignorance of rules;
- Failure on the part of parliamentary parties to control their members on the floor of the house;
- Inability of party leaders on the Business Advisory Committee to stick to the allocated item of business or other matters;
- A tendency on the part of MPs to "reach out to their constituencies", or to their party high commands, using the electronic media to be seen as being active from the floor of the house.
Of course, the presiding officers do have full authority in the house to discipline members. But they like to avoid frequent recourse to discipline, as they draw their authority from the whole house, and do not consider it appropriate to intervene with tough measures like naming of members except in extraordinary circumstances. In their conduct on the floor of the house, the parliamentarians need to be guided by a sense of collective accountability to themselves, for the time and public funds spent on representative politics.
In all large human organizations, detailed business obviously cannot be transacted by plenary sessions. That is the very rationale for the parliamentary committee system followed by most parliaments of the world. In the Indian parliament, there are 17 subject-related committees, apart from house committees, which look after administration. The convention is that every member of the house is a member of one subject committee or the other. Thus, mandatory examination of the demands for grants and of bills as may be referred to them, is the business of the committees. This calls for considerable professionalism and knowledge. So, parliamentarians, to be accountable, should equip themselves with professional knowledge to function effectively on committees.
In the Indian parliamentary system, the government, in which the ministers are necessarily MPs also, is "collectively responsible" to the Lok Sabha under Article 75 of the Constitution. The government can remain in power only as long as it commands the confidence of the house. On this hinges the entire system of parliamentary control over the executive. Various parliamentary devices are designed to secure the accountability of the executive, including the mandatory question hour, motions for discussions on matters of public interest, short duration discussions, calling attention of ministers, no confidence motions, special provisions relating to financial business and so on. All are detailed devices geared to securing government accountability. But they can be effectively wielded only to the extent that there is meaningful time management in the house, and the MPs themselves are constructive, be they on the treasury or opposition benches.
Walter Bagehot wrote, "bureaucracy thrives under the cloak of ministerial responsibility." His reference was to ministers owning responsibility for the mistakes or wrong-doings of the entire official machinery working under them. Increasingly, Bagehot is being ignored. Ministers owning responsibility and stepping down from office on grounds of overall constructive liability is becoming increasingly rare. It is not merely the bureaucracy, but the entire political executive as well which thrives in circumstances of lax parliamentary control.
"Conflict of interests" is another factor that has serious implications for accountability. There are, broadly, three areas of conflict. First, conflict of constituency and national interests: In the Indian federal set-up, purely local issues are normally expected to be addressed locally in state legislative assemblies. Second, conflict of party and national interests. But they are frequently addressed in the parliament, in the name of "matters of urgent public interest". India being a vast country and a pluralistic society, there are far too many "happenings" which, though purely local, can be projected as matters of urgent public importance. Very often, these are also emotional matters. Issues of this nature, disproportionately engaging the time of the parliament, detract from time spent addressing issues of national interest, and hence from concerns of accountability.
Third, politics in India puts great value on the freedom of association. The result is mushrooming of parties. There are about 450 political parties registered with the Election Commission of India, and increasingly, coalitions are becoming the order of the day. The present government has been formed out of 24 political parties (and the Samata Party is reportedly on its way to a split). The texture of the legislative bodies of India is increasingly getting colourful due to a very complex admixture of ideologies, castes, communities, regionalism, religion and personality factors. This does have a devastating impact on the transaction of parliamentary business. Most of the issues, including those concerning the economy of the country, get addressed on the basis of partisan interests, to the detriment of national interests.
Fourth, conflict of personal and public interest concern probity and standards of individual members of parliament. This conflict is, of course, a worldwide phenomenon and many national parliaments have attempted to address this by efforts such as creation of offices of parliamentary ombudsmen, ethics committees, codes of conduct etc. There is an ethics committee for both the Rajya Sabha and the Lok Sabha, created on the recommendations of a group of parliamentarians who studied parliaments in major democracies. Legislation for the creation of the office of Lok Pal (equivalent to an ombudsman) has been considered over the past years, but no law, as yet, has been established. Experience elsewhere in the world has shown that such innovations have not necessarily been very effective, as members do not feel comfortable sitting in judgement over their own colleagues. Generally, ombudsmen can be concerned with larger issues of morality in public life; their findings do not necessarily have the force of law, while the office could only be as effective as the stature of the office holder.
Under the codes of conduct, it is generally stipulated that parliamentarians should register their interests in business, furnish returns of their properties, etc. However, ultimately, standards and ethics cannot be pushed into those holding public offices: they are matters of inculcated values. In democratic societies, it is for the people themselves, the electors, to ensure that persons of value are returned to positions of authority.
This is not to say that regulatory systems are unimportant. Electoral laws and laws relating to probity could certainly be tightened up; parliamentary ombudsmen with special mandates could be created. But in my personal opinion, these measures could only be of limited effectiveness, because human ingenuity to circumvent laws and institutions is incredible. Hence also my emphasis on inculcated values.
Parliamentary ethics, privileges and criminal culpability are inter-related issues. In the concern for securing the accountability of parliamentarians, ethics committees and privileges committees can run at cross-purposes. It is necessary to harmonise their functions. There are instances where parliamentarians have sought protection of privileges when called to account in courts of law. It is a rather well established practice that criminal culpability is quite distinct from parliamentary privileges. It is the parliament which decides on issues of privileges, and that cannot pre-empt separate criminal judicial proceedings, if the same would be warranted by in due process of law. This position needs to inform the conduct of parliamentarians.
Increasingly, redress through the judiciary is sought to secure accountability of holders of public offices. Public interest litigations are becoming the order of the day. It is the lack of transparency and failure of accountability on the part of public office holders that is giving rise to this trend. An active and independent judiciary is, no doubt, an indispensable arm of governance. But it would also detract from democracy if the space of the parliament or the executive gets to be occupied, however subtly, by the judiciary.
The principle of checks and balances is the corner-stone of democratic governance. The underlying spirit of this principle is accountability. Asian countries, being largely developing ones, need to exercise special vigilance in the area of accountability.
Suchit Bunbongkarn
Democratic governance is something more than democratic government. The latter is often referred to as a system of government in which the people have right to elect their rulers. But the election of rulers or the government by the people does not necessarily ensure the responsiveness of rulers to the people's needs. Neither does it guarantee the people's freedom and equality, as we can see in some countries where freedom of the people is restricted despite the fact that the government is directly elected by them. Therefore, what we need is a system, in which the freedom and rights of the people are guaranteed and the government's responsiveness and honesty ensured. In other words, what we need is good governance in a democracy, that is democratic governance.
In my view, democratic governance involves transparency, honesty, accountability and responsiveness to the people's needs on the part of political and government institutions. In addition, an independent, incorruptible and accountable judiciary is essential for the development of democratic governance. Good governance in the private sector is another important factor.
Parliament is one of the key political institutions in a democracy: it plays a decisive role in building and consolidating democratic governance. Most parliaments in modern political systems are elected by the people, and expected to represent the people's interest in performing the legislative and control functions. But in many democracies, we can rarely find parliamentarians who really work for the public interest. Political and personal interests are their major agenda. In some countries, including Thailand, parliamentary membership has provided politicians power, prestige and the chance to aggrandize personal wealth. Thus, if parliaments are to be part of the democratic governance process, a number of problems need to be resolved.
First, as in the case of Thailand, money politics has to be eliminated, or at least reduced substantially in its scope and intensity. Parliamentary elections in Thailand have been dominated by vote buying and fraud. The excessive use of money, and an increase in vote buying, were evident in the l990s. For example, in 1996, it was estimated that 10 billion baht (US$ 250 million) had been spent legally on the election, but another 30 billion baht (US$ 750 million) had been spent on vote buying.
Since MPs spend so much money on being elected, they feel that they have to seize every opportunity to recoup their investment. Corruption has become widespread. To resolve this issue of money politics, a new electoral system was introduced and became effective in 1997. Under this system, 400 MPs would be elected in single-member constituencies under a first-past-the-post system, with the remaining 100 elected under a party list system in a single national constituency.
An independent and powerful election commission was also established to administer elections. It has power to investigate wrongdoings in elections, and to prosecute wrongdoers.
Second, political and government stability is important for democratic governance, since stability ensures government efficiency. Parliament has an important role in fostering government stability. In Thailand, for example, money politics and corruption has caused government instability and short-lived cabinets. In the past 15 years, no government has served out a full term. Since most political leaders spend so much money being elected, they want to recoup the investment. Thus, certain ministerial posts are at a premium because they provide opportunities for minister to receive "kickbacks" or commissions. The struggles over such posts often lead to internal strife within the government, and can cause its downfall.
Opposition MPs, meanwhile, can hardly bear to stay on the opposition side. They are always eager to be in the government, and often use every possible means to topple the government, or to create rifts within the government, and to force cabinet reshuffles. Thus, to strengthen both the executive and legislative institutions, a new pattern of relationships between the two branches has to be established. Under the new constitution, the principle of incompatibility has been adopted, prohibiting MPs from holding concurrently the office of prime minister and a ministerial portfolio. A tougher restriction on moving a no-confidence vote against the prime minister was introduced to make the chief executive less vulnerable to political attacks, and manipulations by MPs. These new relationships will help stabilize government and parliament, and MPs will be forced to concentrate more on their legislative function.
Third, parliament should be able to strike a balance between the local interests of MPs and the public interest. Most Thai MPs are interested only in their constituency, which is understandable. But parliament's responsibility is to work for the interest of the general public as well. Working for the public interest, without overlooking the need of locality, is a challenge for parliament if it wants to strengthen democratic governance. It needs to have a vision, and it needs to look ahead.
Fourth, in performing its control function, parliament needs to be effective in ensuring that the executive branch, including the bureaucracy, is incorruptible, transparent, efficient and responsive to the people's needs. It is not easy for the parliament, in a parliamentary system as in Thailand, to be that effective, because the parliament is often dominated by government parties. But MPs should be conscientious and stick to their principles, even when the government has committed serious mistakes or wrongdoings. For example, under the new Constitution, the Senate has the authority to impeach cabinet members and other high-ranking officers if they have been corrupt or abused their power. Their authority will become meaningless if senators do not have integrity. Professional ethics among MPs therefore need to be introduced and recognized.
Last, but not least, parliament must fight for the people's freedom, equality and social welfare. These should be the interests of parliament when performing its legislative function.
In conclusion, parliament needs to institutionalize itself if it is to perform the above roles effectively. This institutionalization is a long and complicated process. It needs time, leadership, tolerance and recognition. It also needs the dedication of the MPs themselves. They should pay less attention to their own personal interests and more to the public interest.
James Manor
Parliaments' contributions here can be made in two overlapping areas. They can contribute directly, by holding executive agencies accountable. Or they can also contribute indirectly, by promoting a dispersal of power among institutions and actors within the state. Dispersing power enhances the capacity of actors outside of executive agencies to restrain the executive, and to make it answerable - to other state institutions and to citizens more broadly.
In both of these areas, accountability can be enhanced either through reforms in formal rules, institutions and policies, or through changes in informal political practices. In systems where the political executive emerges from within parliament, it is often very difficult for legislators to enforce much accountability - especially when political parties are highly disciplined, as they usually are in such systems. This is true even in consolidated democracies - not least in Britain where members of parliament (MPs) are mere "lobby fodder" who seldom challenge leaders, lest they damage their prospects of ministerial posts.
One non-drastic and thus comparatively achievable device, which has recently been introduced in several such systems (including India), is a set of parliamentary committees. When they are empowered to question ministers and senior civil servants on policy issues, they are sometimes able to extract information and to inspire sufficient embarrassment to enhance transparency and accountability.
Accountability might appear easier to achieve when the executive branch is separated from the legislature. But this often fails to occur, for two main reasons. Constitutional formalities may give the executive huge powers - as in Sri Lanka's French-style system, which has been much abused, particularly under the United National Party between 1982 and 1994. Or informal practices may undermine parliaments' powers and enable the executive to insulate ministers and civil servants from legislators' influence. One middle-ranking Kenyan civil servant who enjoyed the president's protection once told this writer that he often had to tell MPs to "shut up" - something that would be unthinkable in India, but not in some other Asian systems.
Of course, the insulation of the bureaucracy can occur even in systems where the executive emerges from within the legislative branch. In extreme cases, it can mean that the writ of parliament does not run. In Thailand, for example, parliament passed a law some years ago mandating the creation of elected bodies at lower levels, but the Interior Ministry simply refused to implement the act. This may now change, after the recent revision of the Thai Constitution, but at present the bureaucracy continues to defy parliament's will.
The Thai cases remind us of the possibility of thoroughgoing constitution overhaul as one strategy for enhancing accountability. But precisely because it is such a major undertaking, it may be less practicable than incremental changes. We have already noted one example of these, the creation of parliamentary committees. It is especially important that such committees include something akin to Westminster-style public accounts committees (traditionally chaired, as in India, by a member of the opposition). Other examples include the creation or the empowerment of autonomous offices that report to parliaments - such as an auditing agency, an ombudsman, a rights agency, and an election commission. In Bangladesh, concern over the fairness of elections has even led to a constitutional provision requiring a neutral caretaker government in the months leading to parliamentary elections.
Such changes disperse power more widely among the organs of state, and increase the chances of ensuring at least some accountability. So do two other things that are often unpopular with legislators, since they dilute the powers of parliaments. The first is an enhancement of the independence and powers of the judiciary. The second is democratic decentralization - the devolution of powers and funds onto elected bodies at lower levels.
Decentralization has been attempted (to varying degrees) by more than 60 countries in recent years. Asia has recently witnessed impressive successes on this front - in the Philippines, in South Korea, and in some Indian states (although, sadly, in only a small handful of them). But much of Southeast Asia has stood out against this global trend. Decentralization has been tried because institutions at higher levels, including parliaments, are far less likely than those lower down to be held accountable by citizens. Before the Indian state of Karnataka decentralized in 1987, its citizens had great difficulty influencing or even reaching its 28 MPs and 224 state legislators. Afterwards, they had over 50,000 elected councilors to deal with, which improved things markedly.
Parliaments pass the laws to enable decentralization but, unfortunately, legislators are almost always reluctant to part with powers and funds, which they have long commanded, and which are essential if decentralization is to work well. Ministers and bureaucrats share this reluctance - witness the Thai case, the majority of Indian states, and the abolition of promising sub-district councils in Bangladesh in 1992. This reluctance explains the many failures to devolve substantial powers. Legislators here are usually part of the problem. This is true even though decentralization makes government more accountable and responsive - and therefore serves their long-term interests by making all political institutions appear more legitimate.
Let us briefly look beyond such changes in informal institutional arrangements, to informal devices that may prove useful - although none of them is easy. What is required is a political struggle by legislators to persuade leading politicians and bureaucrats to share greater power with them, but that can be a dangerous game.
A useful start could be made by seeking to make political parties more genuinely democratic and less over-centralized. But those who attempt this may bring their political careers to an abrupt end. Legislators might also seek to reduce their parties' involvement in "money politics" - the illicit collection and disbursement of funds for electoral and other purposes. These activities are often so centralized that they undermine legislators' influence, and they always undermine accountability to citizens. But since many legislators owe their election to it, we should not expect miracles on this front.
Let us now look beyond the institutions of state, and consider what parliaments or legislatures can do to foster the accountability of those institutions to society at large. Three types of constructive initiatives are quite familiar, but still worth noting. Any changes in legislation which promote government transparency are likely to help. Freedom of information laws are an example - even if they are imperfectly implemented at first, as they usually are. They create theoretical opportunities for organized interests and citizens that may, over time, become realities. Legislation that encourages the development of a free press is also welcome. So are laws and policies that create greater space for civil society - that is, voluntary organizations with substantial autonomy from the state.
It is important, however, that we consider several further points, each of which is attended by ambiguities that may be less familiar. One way for governments to improve their relations with civil society is to encourage partnerships with civic associations, often in order to improve the delivery of services. This can yield benefits for citizens, because civic associations are frequently better equipped to ensure effective delivery and to minimize corruption. It also breaks down some of the mutual suspicions between those in government and those in civil society, which is usually a good thing.
But certain problems also attend such initiatives. Even when governments do not misuse these arrangements to co-opt civic associations (as they often do), they can damage civil society. This can happen because civic associations that become involved in partnerships may be fearful of advocacy activities that entail criticisms of government. Advocacy needs to be sustained alongside partnerships, since it often makes governments more accountable. It therefore makes sense for some civic associations to remain aloof from partnerships, in order to retain the autonomy from governments that they need to sustain advocacy work.
When parliaments pass laws enabling economic liberalization, what impact does this have upon political systems, civil society and the prospects for greater accountability? The answers are complicated. Theoretically, liberalization should enable the emergence of new forces in the private sector, which operate as power centers that are largely independent of government - and which therefore enhance the capacity of non-state actors to check the power of governments and ensure greater accountability.
This does not always happen, however. The privatization of state-owned enterprises can instead create a set of private owners who remain dependent upon politicians. This is true, for example, of Bangladesh. State-owned enterprises there have been sold to persons with close links to politicians, who have borrowed money from state-owned banks to make these purchases. Many of them have then refused to repay the loans - and have got away with their defaults because (again) politicians protect them from punishment. Thus state funds are merely recycled, and the new owners of the enterprises remain dependent upon their political patrons for protection. They are plainly not in a position to demand accountability or much else from the government. And Bangladesh is not an isolated case.
Even when liberalization has the impact that theorists have led us to expect, two problems can arise. First, it often empowers certain highly prosperous groups, which become potent forces within civil society. They are often in a position to dominate civil society - which they sometimes do in an uncompromising manner - to the detriment of less prosperous groups. They may be able to demand that governments be accountable mainly to them, and this often undermines equality and social justice. This reminds us that when we consider accountability, we need to ask "accountability to whom".
The second problem has to do with the changes in the composition of civil society that have occurred in recent times, partly as a result of economic liberalization. In most countries, in and beyond Asia over the last 15 or 20 years, civil society has become more vibrant. New associations have been formed and many (but not all) pre-existing associations have been enlivened This does not necessarily mean, however, that civil society has therefore become better able to grapple with governments and to demand accountability from them.
In many of these countries, economic liberalization has seriously weakened certain types of organizations - most notably labor unions - which were formerly quite capable both of forcing governments to make and stick to agreements and of ensuring some accountability from governments. The new associations that have burgeoned while unions have declined often lack much capacity to bind government to understandings and to demand accountability from them. As a result, even though civil society in general is more vibrant than before, it is sometimes easier for governments to ignore it, and to refuse to deal accountably with it.
Finally, let us consider a rather different point - the implications for accountability of the laws that parliaments pass in the field of taxation. Mick Moore has recently demonstrated that governments that derive most of their revenues from taxes on their own citizens tend to act more accountably than those that do not. And the greater the proportion of a country's population that pays taxes - especially direct taxes like income taxes - the greater the likelihood of accountable governance is. He dramatizes this by showing that governments which derive most of their revenues from other sources - either from external aid or from exports of a primary product like oil - tend strongly to be unaccountable.
It follows that parliaments can create conditions for enhanced accountability by passing laws that impose direct taxes like income taxes on large numbers of people in their countries. When many people have to pay such taxes, they tend to demand responsive, accountable government.
Note, however, that several governments in Asia fight shy of levying direct taxes on large numbers of their citizens. For example, in Pakistan today, only about one percent of the population pays income taxes. The situation is not all that different in several other Asian countries. If legislators genuinely wish to promote accountability, they might consider imposing income taxes on more of their countrymen and encouraging tax-collecting agencies to widen their nets. This would also benefit the exchequer, which is often hard pressed these days. Political difficulties would attend such initiatives, but they are nonetheless worth considering.
Discussion
- The continued politicization of the bureaucracy is not healthy for the functioning of democracies. This could be caused by a criminal or corruption nexus developing between politicians and bureaucrats, leading to the transfers of many senior officers whenever a government changes, and even fresh recruitment. Such political interference also occurs in local administration, with a nexus of local power brokers linked to the MP: the authority of MPs in their localities needs to be clarified. The independence of the civil service is crucial for the effective functioning of democracy.
- Parliamentarians need to have their own support staff to provide research and advice, along the lines developed in the US Congress and UK House of Commons. As the range of MPs coming into parliament widens, more skill is deployed into getting to parliament and less to knowing what to do with power. Good staff support would help such MPs work constructively once elected. In the Indian context, it was suggested that this might be financed from the 20 million rupees development-funding grant now given to each MP.
- A decline in the ethics and behavior of parliament in particular, and MPs in general, as in India for example, has a detrimental effect on democratic governance, affecting all other branches of the system including the civil service, and political parties. In the Indian context, an anti-defection bill preventing MPs switching from one party to another was discussed; and also limits on the proportion of ministers to legislators, which should be 10-15 per cent at most.
- The increasing vibrancy of civil society organizations over the past 10-15 years has greatly enhanced democratic governance, but does not of itself increase accountability within democracies. Nor is the role of civil societies bodies recognized enough in most democracies. It was suggested that clearer "performance related" criteria be introduced, so that a government's pledges on taking office could be assessed at the next election. The impracticality of using a business model for politics was pointed out. Many parliaments do submit an annual report on progress now. The individual "recalling" of MPs performing poorly during a parliament was even more difficult.
All were also agreed on the general need to strengthen counter-corruption measures, to reduce political patronage and ensure the independence of all institutions of democracy.
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