Photo by Buddhika Weerasinghe/Getty Images, via Huffington Post
According to President Maithripala Sirisena’s timetable for his 100-day reform programme, the Standing Orders of Parliament are to be amended on 20th January to reform the parliamentary committee system. According to the 100days.lk website,
“The Standing Orders will be amended and, in terms of Proposal 67/10 now tabled in Parliament, Oversight Committees will be set up comprising members of Parliament who are not in the Cabinet will be established [sic] and their Chairmanship will be given to representatives of all Ministers in consultation with the leaders of all parties represented in Parliament.”
There are a number of perplexing problems with this. Except for some newspaper reports during the campaign period that made brief reference to the common opposition’s desire to reform the committee system so as to establish a ‘working parliament’ in the model of the German Bundestag, no one seems to have seen ‘Proposal 67/10’, and certainly there has been no public discussion about its details. In the present system, in addition to Special Purpose and Ad Hoc Committees, we have Consultative Committees for each Ministry, which are chaired by the Minister concerned. This is extremely unsatisfactory to the extent that it is a method not of promoting legislative scrutiny and accountability of the executive, but of co-opting legislators as policy advisors to the Ministers.
Allowing for poor language and drafting in the passage quoted above, what seems to be now envisaged is a new type of committee called ‘Oversight Committees’, a change of name that implies a change of the role of the committees from consultation to oversight of the executive. This seems positive ex facie, but it is undermined by the reference to their chairmen being representatives of Ministers, although appointed in consultation with party leaders. This seems to me to be no reform at all, but merely a tinkering with the present system whereby its most unsatisfactory feature is very slightly changed, so that the committee chairs are not the Ministers themselves, and that the chairs are appointed in consultation. In this respect, it must also be noted that President Sirisena’s manifesto merely said, at page 15, “The Parliamentary Committee System for Ministries will be reinforced”, implying that the present system of Consultative Committees would be strengthened and enhanced rather than reformed or replaced. This therefore begs questions about the comprehensives of the proposed reforms, in the sense that a proper parliamentary committee system is and ought to be far wider than departmental committees, and includes Special Purpose Committees and Select Committees.
It also raises several other broader problems. What is the theory of change underpinning the entire 100-day programme? What are the deeper normative values and principles of democracy and constitutionalism that we are trying to realise through these institutional reforms? Doubtless the people of Sri Lanka made an inspirational reaffirmation of the need for ‘yaha paalanaya’ in the presidential election. Aside from a rejection of the Rajapaksas, their cronies, and all their corrupt works, what does this positively mean? ‘Yaha paalanaya’ is often translated as ‘good governance’, but in my view, it would be a mistake to assume that what is meant by the term in English (and especially in the sense it is used by NGOs and institutions like UNDP and the World Bank) is what this term meant or implied in the language of protest in the last election, and the values which are associated with the term that resonate with Sri Lankans when it is used as a concept in the lexicon of local political discourse. There is a need therefore for the normative and conceptual content of both, the idea of change, as well as the ideas for change, to be more fully articulated, and equally importantly, to be critically debated in public.
We all agree in principle, and at least rhetorically all political parties including the Rajapaksa loyalists of the UPFA, that democracy reforms are necessary. We also agree that the reform of the parliamentary committees is a key element of this. But how are reforms to be prioritised and sequenced? Why are we introducing, and without adequate discussion, committee reforms ahead of the far more fundamental reforms to the system of government itself for which President Sirisena has a mandate? How can one design a parliamentary committee system without knowing the precise regime-type – whether semi-presidential, parliamentary, or some unusual hybrid if the JHU’s Nineteenth Amendment Bill is followed – that would emerge once deeper constitutional changes are made to the substantive powers and institutional form of the presidency?
Incidentally in this regard, I share Professor Kumar David’s delight and approbation, together with the benefit of the doubt that he has given President Sirisena, that the new policy seems to be outright abolition of the executive presidency rather than piecemeal reduction of its powers. Again as the website cited above says, on 21st January,
“The process will begin of abolishing the authoritarian executive presidential system and replacing it with an executive of a Cabinet of Ministers responsible to Parliament, and of repealing the 18th Amendment to the Constitution with legislation to establish strengthened and independent institutions, including a Judicial Services Commission, a Police Commission, a Public Service Commission, an Elections Commission, a Commission against Bribery and Corruption and a Human Rights Commission. This will be through a 19th Amendment to the Constitution, which will be presented to Parliament and passed as swiftly as possible.”
This is welcome news, and for the arguments I have canvassed elsewhere, this needs to include a Media Commission and an Information Commission. If this holds true, then our overarching system of government and constitutional tradition is destined for a return to our Westminster and Commonwealth roots. We will re-join our great neighbour India in the category of Commonwealth ‘Eastminsters’ (to borrow Harshan Kumarasingham’s term), which has long demonstrated to the world how to maintain a vibrant democracy and a healthy respect for pluralism at the same time as a strong and united state, belying the ludicrous and indeed treacherous arguments about presidentialism emanating from pro-Rajapaksa political scientists unable to accept the democratic verdict of the presidential election. But while this does not imply any kind of uncritical or mechanistic imitation of any other country, we should also be careful not to replicate the vainglorious egocentricity and disingenuousness with which the Rajapaksas invested the word ‘home-grown’ in the recent past. We should therefore draw from the central normative and structural principles that are characteristic of the Commonwealth tradition in designing a system of constitutional and democratic government, which is, nonetheless, made by Sri Lankans for all Sri Lankans. Useful restatements of these principles are found in, for instance, the Singapore Declaration, the Harare Declaration, the Millbrook Plan of Action, the Edinburgh Plan of Action, and most importantly, the Latimer House Principles.
These are bigger issues to which we will have to return again and again in the coming days, but I have made these preliminary observations in order to place my discussion of parliamentary committees in some sort of context. The serious deficiencies in relation to the existing committee system in Sri Lanka’s Parliament that precludes it from effectively performing its constitutional functions have been extensively discussed over the years. For anyone interested in understanding the basic issues, the former Secretary-General of Parliament, Priyanee Wijesekera’s 2002 monograph Parliamentary Practice in Sri Lanka is a good starting point, and there are many other papers and articles that discuss these issues.
In this regard, it is also pertinent to recall that some commentators have mooted the Executive Committee system, the defining feature of the Donoughmore Constitution of 1931 which predated the evolution of political parties, as a possible model to be revisited in the quest for better and participatory governance, and as a panacea for the divisive nature of our political culture. In my view, however, this is not an appropriate system at this stage of our constitutional development, and its benefits, of which there are some, do not outweigh its disadvantages. The danger of the Donoughmore system lies not only in the violence it does to the normative underpinnings of adversarial liberal democracy. In the context of the clientelist social matrix upon which our political institutions are built, the system potentially creates an opposition lured by executive patronage into docile irrelevance, and the benefit of seemingly consensual government is undermined by the de-legitimation of the political opposition that is the unintended consequence of this system. In the post-Rajapaksa era, the necessity for a constructive, but active and independent opposition that utilises the full potential of Parliament to hold the executive to account needs hardly be emphasised.
If we leave the industrial-scale corruption aside, President Rajapaksa was as much a casualty as a perpetuator of an extremely threadbare political culture in which people enter politics almost exclusively to acquire and distribute patronage. Executive office is therefore vital to everyone, and it explains the jumbo cabinet and the hundreds of ministers and advisors that we had in the previous regime. Unlike in the pre-republican era, we no longer have any conception of or value for the legislative role, for the worth of backbench politics and committee work, for representation and scrutiny, and legislative policy specialisation. Indeed, at least a large minority of Members of Parliament do not have the basic education or intellectual capacity to fulfil the requirements of the job for which they are elected, even though in terms of preference votes, they consistently beat far worthier candidates all the time. And among those who do have the talent and capacity, with some notable and praiseworthy exceptions, most seem to prefer executive roles or media celebrity to the unglamorous but absolutely critical tasks that are performed by Parliaments away from the limelight. In these circumstances, institutional design seems almost irrelevant to the crisis of political culture we are faced with. Those who advocate the Donoughmore system I imagine are realistically attempting to address this feature of our political culture, by ameliorating the demands for ministerial appointments with a role in the executive for legislators.
But this is to apply a plaster over a problem that requires major surgery. The co-optation of opposition legislators into the activities of the executive would seriously enfeeble the institutional channels for the expression of democratic opposition, and recent experience attests to the dire consequences of both weak institutions and weak oppositions. The better approach, then, is to resuscitate the role and relevance of Parliament in such a way as to make it a genuine forum of redressing grievances and as a legitimate institution of deliberative democracy. This requires more discussion along the lines suggested above, and indeed we need to learn from the major innovations, including the use of informational and communication technology, that have occurred in the past few decades in such Parliaments as that of the United Kingdom, Scotland, South Africa, Canada, Australia, New Zealand, and Japan. But given the tight reform timetable, I should like here to offer some readily available practical solutions that may be effected by the relatively simple expedient of amending the Standing Orders. Other suggestions that relate to building legislative support services for parliamentary committees will be considered separately. If hasty reforms are enacted this week, then we might need to revisit the issue in the next Parliament.
The Committee on Public Accounts
The practice of other Parliaments that a member of the opposition chairs the Public Accounts Committee needs to be adopted. Furthermore, a prudent mix of experience as well as of available talent and expertise needs to inform the Committee of Selection in appointing motivated Members to the Public Accounts Committee. As with Oversight Committees for Ministries (see below), the hearings of the Public Accounts Committee must be made accessible to the media and the public, although their deliberations maybe held in camera. Government must be obliged to respond to the reported value for money findings of the Committee within a reasonable timeframe.
The Public Accounts Committee is a tried and tested mechanism of public financial accountability in other parliamentary systems, but in Sri Lanka, it is plagued with capacity problems. There are institutionalised delays in the submission and review of audit reports, infrequent meetings, a narrow focus on excess expenditure only (and not broader value for money methods used elsewhere in assessing government expenditure), and the lack of bureaucratic follow up action. While the existing powers of the committee are considerable, the assumptions with respect to auditing and reporting methods as well as the accounting function underlying the Standing Orders in force need to be reviewed. A holistic reform effort is needed in this area, since the success of the parliamentary mechanism – only one instrument in the larger machinery of financial accountability – relies on other institutions such as the Auditor General’s Department. We need also to consider the statutory establishment of an independent Office of Budget Responsibility along the lines of the UK and other countries (and some US states), and we need to statutorily ensure the independence of the Central Bank.
Consultative Committees or Oversight Committees?
These are a type of committees that could be most usefully reconstituted for strengthening the role of Parliament as a watchdog over administration. As they stand now, Consultative Committees are hampered by several constraints that are not found in the schemes for similar committees in modern Parliaments. As is proposed in President Sirisena’s programme, the nomenclature of a reconstituted system of Consultative Committees should be changed to ‘Oversight Committees’, which better reflects the nature of the task they are expected to perform, and should be grounded on the general principle that an Oversight Committee shadows the operation of each Ministry with a view to ensuring scrutiny, transparency, and accountability.
However, the allocation of subjects for oversight by parliamentary committees need not be on the basis of each line Ministry. The subjects can be rationalised around overlapping sectoral areas as well as some important trans-sectoral areas. The following is one way of organising the establishment of Oversight Committees, which operate in tandem with Special Purpose Committees such as the Public Accounts Committee and the Committee on Public Enterprises:
- Fiscal and monetary policy; investment promotion and industrial development; internal trade
- Budget formulation and management; revenue mobilisation and disbursement; public accounts
- Agricultural policy; state lands; fisheries; animal husbandry
- Power and energy; highways, road transport and railways, aviation; shipping and ports
- Administration of justice and law and order; constitutional affairs; prisons; immigration and emigration; registration of persons; control of narcotics and drugs
- Health; social security and welfare; housing; rehabilitation, resettlement and reconstruction (relevance of this area to be reviewed in five years)
- Foreign relations; national security and defence
- Education; human resource development; science and technology
- Employment and labour relations
- Telecommunications; media; postal services
In addition trans-sectoral Oversight Committees are important in the following areas:
- Economic and Administrative Reforms
- Human Rights, Equal Opportunities and Gender Equity
- Environmental Protection
The advantage of trans-sectoral committees is that they will be able to exclusively concentrate on the broader issues concerning their mandate from within the legislative process. Such a committee on devolution, for instance, will be able to help Parliament avoid the inadvertent transgression of constitutional principles in making law, and be able to ensure central legislation is consistent with devolution and other constitutional requirements. In addition, a convention needs to be established whereby a Member of Parliament from the Northern or Eastern Provinces chairs the Committee of Devolution.
Ministries of State
An ambiguity at first glance with regard to the system of Consultative Committees now obtaining, relates to the conflict between Article 45 (1) of the constitution which provides for the appointment of Ministers of non-Cabinet rank (now called Ministries of State) who are nonetheless responsible to Parliament, and Standing Orders that only provide for the establishment of Consultative Committees corresponding to the number of Cabinet Ministries. This is an anomaly that needs immediate rectification so as to bring such Ministries within the regime of parliamentary scrutiny. Priyanee Wijesekera has previously suggested that the Committee of Selection could overcome this problem by exercising a degree of flexibility in the application of the Standing Order, having regard to the constitutional requirement of ministerial responsibility. However it would appear that the better approach is to bring the anomalous Standing Orders in line with the provisions and requirements of the constitution.
Under the present Standing Orders, Consultative Committees are chaired by the respective Cabinet Minister, or in his absence, and in the case of Ministries held by the President, by the Deputy Minister. While Consultative Committees must meet at least once a month, the date and time of such meeting is to be named by the Minister. The rationale for this as Wijesekera points out is “the responsibility he bears in respect of such Ministry, and the familiarity he has acquired with the functioning of the institutions under him.” Sensible as this may seem, the contrary proposition is also true that a parliamentary committee designed to oversee the administration of a particular branch of the executive will be fatally inhibited by the presence of its political head as chairman of the committee. A new system of Oversight Committees must therefore avoid the selection of Ministers or Deputy Ministers as chairmen or even as members. Given the present constitutional framework and relevant judicial decisions, which promote the notion of a ‘party democracy’, it is inconceivable that even a government party backbencher would play the independent role expected of an Oversight Committee chairperson. As such the emergent convention in such special purpose committees as the Committee on Public Enterprises that an opposition Member is appointed to the chair, may be fruitfully replicated here.
Matters referred to Oversight Committees
The current Standing Orders restrict the potential scope of the Consultative Committees as monitors of administration by specifically listing the matters that may be referred to them. Thus the committees are constrained to consider only those matters that may be properly directed to them such as proposed legislation, estimates, motions, annual reports, etc., that come within the purview of the particular Ministry. On the other hand, if the mandate given to a new system of Oversight Committees is founded on the broad democratic values of transparency and accountability, then a more general systemic principle may be developed that requires the examination of the expenditure, administration and, crucially, policies under development in Ministries, government departments, and associated public entities. Such an organising principle would enable wider and deeper scrutiny of administration as well as the exploration of public policy alternatives by Oversight Committees. It would also facilitate the acquisition of specialised knowledge by Members of Parliament, and the enrichment of debates on the floor of the House.
A significant subject, which perhaps requires a specially dedicated Oversight Committee, is on statutory instruments. Subordinate legislation must be mandatorily laid before the committee for report to Parliament. Submission of the executive to such a committee ensures intra vires administrative action in terms of the authority conferred by Parliament as well the constitution. Wijesekera also gives a sound policy consideration for the establishment of a committee on delegated rule-making: “Detailed scrutiny of subordinate legislation would also help reduce the number of writ applications brought before courts.” The same committee may also oversee Consolidation Bills.
Powers of Oversight Committees
A new ethos must be set for the new regime of accountability, which would entail that Members sit in committee in their personal capacity (i.e., not as party ambassadors) and act impartially and independently. A new culture founded upon democratic values and traditions must be established from the outset wherein Members appreciate the constitutional role they are expected to play on behalf of the people. Here again we see the importance of discussing the normative underpinnings of institutional reform, and why such norms and principles must be expressly articulated perhaps as a preamble to the Standing Orders.
The present Consultative Committees have the power to summon witnesses, call for documents and records, to move from place to place, and to initiate any Bill or motion through its Chairperson (the Minister). The Standing Orders also require senior civil servants of the relevant Ministries to be present at the monthly meetings of the committees. These powers and requirements need to be continued, albeit meetings of Oversight Committees may be more than once monthly and civil servants would be expected to do more than merely be present.
It is imperative that a new system of Oversight Committee crystallises, at least by convention, the practice of Ministers to never reject an invitation by a committee to give oral or written evidence. Oversight Committees should also be empowered to select the issues for inquiry. They must also be able to obtain specialist advice from sources that include civil society and the professions in addition to governmental sources. A possibility worth exploring, and which would substantially enhance the quality of deliberations, is the co-option of about three members of civil society who are acknowledged leaders in their fields of expertise to be appointed by the Oversight Committees to act as consultants. They should be able to participate in the committees’ deliberations, but would, of course, have no voting rights. A form of this practice is followed with great success in the Scottish Parliament, which being a unicameral parliament, it was seen as a way of incorporating expert knowledge into the legislative process, whereas, this is achieved at Westminster through the appointment of experts and intellectuals to the House of Lords.
The Oversight Committees must present regular reports to Parliament on their activities and findings with adequate regard to confidential information. The reports may also contain recommendations addressed to the government, and to which the latter should be required to publish responses within a reasonably set period of time. While Oversight Committee reports should be debated on the floor of the House as the subject of a substantive motion, the practice of the House of Commons that at least reports are ‘tagged’ for reference in relevant debates may be usefully replicated here.
Legislative Standing Committees
One argument with regard to the use of these committees, which exist in the current system, is that they ought to be used more often. While Government Bills are almost always taken up in a Committee of the Whole House for reasons of expeditiousness, a clause by clause debate in the confrontational atmosphere of the floor of the House might not be the best forum for a considered deliberation on a particular measure, a fortiori due the absence of a second chamber. Therefore a way of qualitatively enhancing legislation within the existing framework may be to refer a greater proportion of bills to the Standing Committees on legislation.
Alternatively, the British practice of treating the Standing Committees as ad hoc bodies could be adopted, wherein the burden of scrutiny is placed upon the Departmental Select Committees (i.e., the equivalent of the proposed Oversight Committees) and such other committees as the Public Accounts Committee.
Legislative Support Services
Of fundamental importance in the capacity building of parliamentary committees is the provision of well-resourced support services. Good legislative support services are a characteristic of all modern democracies as both legislators and the people whom they represent become progressively more educated and better informed.
There are several ways of organising such services. The committees of the United States Senate are empowered to hire their own support staff. Members of the British House of Commons employ their own researchers, while committees of the Commons are served by an administrative staff supplied by the Department of the Clerk of the House. The House of Commons Commission and the Speaker run the administration of the House, with oversight from Domestic Select Committees. However a model worth closely studying as being, within budgetary constraints, not only particularly suited for our conditions, but also for its express and unequivocal acceptance of the importance of support services for the meaningful functioning of parliamentary democracy, is the organisation of the National Diet Library of Japan. The Parliament of Japan is called the Diet.
The National Diet Library primarily serves the Diet and its Members in the performance of their legislative functions and duties. At the same time, it has a mission to provide library services to the executive and judicial branches of the national government and for the general public. Thus the National Diet Library is a large comprehensive library, with the combined function of providing research services to the Diet.
The National Diet Library was founded in 1948 following the promulgation of a post-world war democratic Japanese Constitution in 1946. The law setting up the parliamentary library explicitly declared the ideal of its establishment as follows: “The National Diet Library is hereby established as a result of the firm conviction that ‘truth makes us free’ and with the object of contributing to international peace and the democratisation of Japan as promised in our Constitution.” The library is independent of the Secretariats of both Houses of the Diet, but is under the macro control of the Speaker of the House of Representatives and President of the House of Councillors, and micro supervision of the Standing Committees on Rules and Administration of both Houses.
A significant aspect of the activities of the National Diet Library is the work done by its Research and Legislative Research Bureau. The tasks of the Bureau are to advice and assist the Diet in the analysis and evaluation of any subject matter pending before the Diet, gather and analyse data likely to help in deliberations and make them available to the Diet, provide bill drafting services upon request by a member or a committee, and to make the information the Bureau gathers available to the executive and judicial branches of the government and to the general public.
The Bureau also initiates background studies on demand as well as anticipatory research, in which the Bureau is obliged to maintain objectivity, complete impartiality and where necessary, confidentiality. The results of the Bureau’s research activities are published in its several regular and ad hoc publications. While most information requests are from Diet members, the Bureau also receives requests from political party headquarters, the parliamentary secretariats, government offices, the private sector and from the public. Most of the responses to the requests are in the form of annotated material from the Library’s extensive databases (which are also online), but may also be oral briefings, special reports or assistance with bill drafting.
This sort of centralised organisation of service provision is ideally suited for a national Parliament both in terms of efficiency and cost effectiveness. Our Parliament already possesses a good library that is under-utilised by its membership and committees. The structures and personnel for more service-oriented resources for committees will however need to be set up and ways found to finance them.
Complementing such a structure for support service provision for parliamentary committees and individual members is the administrative and secretarial services provided under existing Standing Orders by the Secretary General of Parliament to committees. However, the administrative staff needs to be supplemented by qualified research personnel working permanently with the Oversight Committee or the special purpose committees like the Committee on Public Accounts and Committee on Public Enterprises. Over time, the permanent research staff would become the repository of formidable specialisms and knowledge in the areas of public policy and administration dealt with by the respective committees. Committee researchers could have access to the central structures of research and support services provided by bodies like the Library and Bureau in the Japanese context, for advanced research and comprehensive databases.
Summary of Recommendations for Reforming the Parliamentary Committee System
The Committee on Public Accounts
- The practice of other Parliaments that a member of the opposition chairs the Public Accounts Committee needs to be adopted by convention.
- Hearings of the Public Accounts Committee must be made accessible to the media and the public, although their deliberations may be held in camera. A new rule under Standing Order 125 may be added to this effect.
- The government must be obliged to respond to the reported value for money findings of the Committee within a reasonable timeframe. A rule to this effect may be added as an extension to Standing Order 125 (3).
- The PAC must be issued with an instruction to agree at least one report during a session, to be laid before Parliament by way of a substantive motion by its Chairman. Standing Order 125 (3) should be amended accordingly.
- The assumptions with respect to auditing and reporting methods as well as the accounting function (i.e., the narrow focus on excess) underlying Standing Order 132 (1) to (4) need to be reviewed, and Standing Orders 132 and 132A amended accordingly including consequential changes to Standing Order 125.
- The procedure laid down in Standing Order 132 (5) in respect of disallowed excesses and Standing Order 132A (4) in respect of losses in any Advanced Account Activity is sound.
- The system of Consultative Committees should be reconstituted as ‘Oversight Committees’, and be grounded on the general principle that an Oversight Committee shadows the operation of each Ministry. The framework under Standing Orders 104 to 115A would thus require extensive alteration.
- The present anomaly between Article 45 (1) of the Constitution (providing for the appointment of non-Cabinet rank Ministers) and Standing Order 104 (which only envisages a Consultative Committee for every Cabinet Ministry) should be resolved in favour of the Constitution.
- A new system of Oversight Committees must avoid the selection of Ministers or Deputy Ministers as chairmen or even as members (cf. Standing Order 105). The emergent convention in such special purpose committees as the Committee on Public Enterprises that an opposition Member is appointed to the chair may be replicated here.
- The allocation of subject for oversight by parliamentary committees need not be on the basis of each line Ministry. (cf. Standing Order 104)
- The subjects can be rationalised around overlapping sectoral areas as well as some important trans-sectoral areas. The following is one way of organising the establishment of Oversight Committees and special purpose committees such as the PAC and COPE:
- Fiscal and monetary policy; Investment promotion and industrial development; Internal trade
- Budget formulation and management; Revenue mobilisation and disbursement; public accounts
- Agricultural policy; State lands; Fisheries; Animal husbandry
- Power and energy; Highways, road transport and railways; Aviation; Shipping and Ports
- Administration of justice and law and order; Legal and Constitutional Affairs; Prisons; Immigration and Emigration; Registration of Persons; Control of Narcotics and Drugs
- Health; Social security and Welfare; Housing; Rehabilitation, Resettlement and Reconstruction (relevance of this area to be reviewed in five years)
- Foreign relations; National security and defence
- Education; Human resource development; Science and Technology
- Employment and labour relations
- Telecommunications; Media; Postal services
- The special purpose committees will continue to exist. In the case of the PAC, however, it may either be brought within the Oversight Committee framework (under heading no. 02, supra), or allowed to continue within the category of special purpose committee but with a broader mandate. In view of the venerable Commonwealth traditions surrounding PACs, the latter is the more attractive option.
- In addition trans-sectoral Oversight Committees are important in the following areas:
- Economic and Administrative Reforms
- Human Rights, Equal Opportunities and Gender Equity
- Environmental Protection
- The COPE may continue as a special purpose committee, or be re-constituted as a sub-committee of the trans-sectoral Oversight Committee on Economic and Administrative Reforms. As with the PAC, the preference should be to continue the status quo, with a convention of co-operation adopted between COPE and the trans-sectoral Oversight Committee.
- The advantage of trans-sectoral committees is that they will be able to exclusively concentrate on the broader issues concerning their mandate from within the legislative process. Such a committee on devolution, for instance, will be able to help Parliament avoid the transgression of constitutional principles as in the case of the 17th Amendment to the Constitution.
- In addition, a convention needs to be established whereby a Member of Parliament from the Northern or Eastern Provinces chairs the Committee of Devolution.
- The current Standing Orders restrict the potential scope of the Consultative Committees as monitors of administration by specifically listing the matters that may be referred to them, i.e., proposed legislation, estimates, motions, annual reports etc, that come within the purview of the particular Ministry (cf. Standing Order 109).
- If a new system of Oversight Committees is founded on the broad democratic values of transparency and accountability, then a more general systemic principle may be developed that requires the examination of the expenditure, administration and, crucially, the policies of Ministries, government departments and associated public entities. Standing Order 109 therefore requires amendment.
- A significant subject which requires a specially dedicated committee is on statutory instruments and Consolidation Bills. Subordinate legislation must be mandatorily laid before the committee for report to Parliament. This may be established as an Oversight Committee or as a new special Purpose committee. Alternatively, a sub-committee may be set up under the trans-sectoral Oversight Committee on Economic and Administrative Reforms.
- The present Consultative Committees have the power to summon witnesses, call for documents and records, to move from place to place, and to initiate any Bill or motion through its Chairperson (cf. Standing Order 114). The Standing Orders also require senior civil servants of the relevant Ministries to be present at the monthly meetings of the committees (cf. Standing Orders 112 and 114). These powers and requirements need to be continued in the case of Oversight Committees.
- A new system of Oversight Committee must establish, by convention, the practice of Ministers to never reject an invitation by a committee to give oral or written evidence. Oversight Committees should also be empowered to select the issues for inquiry.
- They must also be able to obtain specialist advice from sources that include civil society and the professions in addition to governmental sources. A possibility worth exploring, is the co-option of about three members of civil society who are acknowledged leaders in their fields of expertise to be appointed by the Oversight Committees to act as consultants. They should be able to participate in the committees’ deliberations, but would, of course, have no voting rights.
- The Oversight Committees must present regular reports to Parliament on their activities and findings with adequate regard to confidential information. The reports may also contain recommendations addressed to the government, and to which the latter should be required to publish responses within a reasonably set period of time.
- While Oversight Committee reports should be debated on the floor of the House as the subject of a substantive motion, the practice of the House of Commons that at least reports are ‘tagged’ for reference in relevant debates may be usefully replicated here.
Legislative Standing Committees
- While Government Bills are almost always taken up in a Committee of the Whole House for reasons of expeditiousness, a clause by clause debate in the confrontational atmosphere of the floor of the House might not be the best forum for a considered deliberation on a particular measure, a fortiori due to the absence of a second chamber. Therefore a way of qualitatively enhancing legislation within the existing framework may be to refer a greater proportion of bills to the Standing Committees on legislation.
- Alternatively, the British practice of treating the Standing Committees as ad hoc bodies could be adopted, wherein the burden of scrutiny is placed upon the Departmental Select Committees (i.e., the equivalent of the proposed Oversight Committees) and such other committees as the Public Accounts Committee.
Suggested Amendments to the Standing Orders of Parliament
Standing Order 104
- The Committee of Selection shall at the commencement of a Parliament appoint the following Sectoral Oversight Committees:
- Foreign Relations; National Security and Defence
- Investment Promotion and Industrial Development; Trade
- Agricultural Policy; State Lands; Fisheries; Animal Husbandry
- Power and Energy; Highways, Road Transport and Railways; Aviation; Shipping and Ports
- Administration of Justice and Law and Order; Constitutional Affairs; Prisons; Immigration and Emigration; Registration of Persons; Control of Narcotics and Drugs
- Health; Social Security and Welfare; Housing; Rehabilitation, Resettlement and Reconstruction (relevance of this area to be reviewed in five years)
- Education; Human Resource Development; Science and Technology
- Employment and Labour Relations
- Telecommunications; Media; Postal Services
- In addition the Committee of Selection shall appoint the following Trans-Sectoral Oversight Committees:
- Devolution and the Constitution
- Economic and Administrative Reforms
- Human Rights, Equal Opportunities and Gender Equity
- Environmental Protection and Sustainable Development
- Each Oversight Committee shall determine and announce to Parliament the Ministries it shall be overseeing during the life of a Parliament
- Oversight Committees shall co-operate with each other and with other Committees of Parliament in the discharge of their powers, duties and functions
Standing Order 105
- The Committee of Selection shall not appoint Cabinet Ministers, Non-Cabinet Rank Ministers, or Deputy Ministers as members of Oversight Committees
- All Oversight Committees, except the Trans-Sectoral Oversight Committee on Devolution and the Constitution, shall appoint an Opposition Member as its Chairman
- The Trans-Sectoral Oversight Committee on Devolution and the Constitution shall appoint a Member from the Northern or Eastern Province as its Chairman
Standing Order 108
No member shall serve in more than one Sectoral Oversight Committee, but may simultaneously serve in a Sectoral Oversight Committee and a Trans-Sectoral Oversight Committee
Standing Order 109
The duty of an Oversight Committee shall be to inquire into and report on any matter as it deems fit with respect to the administration, expenditure and policies of any Ministry, Government Department or other public entity
Standing Order 113
- Reports from an Oversight Committee on a specific matter referred to it by Parliament shall be presented to Parliament by the Chairman within three months of such reference, and if considered necessary, Parliament may propose the further consideration of any particular items. A reservation by any member of a Committee may be added to the Report:
Provided that matters referred to an Oversight Committee shall not be taken up for consideration by Parliament until the Report of the Oversight Committee on those matters is presented to Parliament
- An Annual Report of all other activities and findings including recommendations addressed to the Government of an Oversight Committee during the preceding year shall be moved by its Chairman for debate by Parliament at the commencement of the year, and its shall be the duty of the Government to publish a response to each Oversight Committee Annual Report within three months of presentation to Parliament
- It shall be the duty of the Secretary General of Parliament to indicate upon the Order Paper of Parliament relevant occasional, interim or Annual Reports of an Oversight Committee for the purposes of other debates
Standing Order 114
- Each Oversight Committee shall have the power to send for and examine any persons including Cabinet Ministers, Non-Cabinet Ministers, Deputy Ministers, Secretaries to Ministries and other Public Officials, papers and records, to move from place to place and to do all such acts as are necessary for the fullest consideration of matters in the discharge of their duties, and to meet notwithstanding any adjournment of Parliament
- An Oversight Committee may request specialist opinions or technical advice in the form of written or oral submissions from sources other than Government officials in the performance of their functions.
- In addition, an Oversight Committee may invite up to three persons from the civil society, professional or academic sectors who in the opinion of the Committee are leaders in their fields of expertise, to act as Resource Persons to the Committee and to participate in the proceedings of the Committee including deliberations:
Provided such Resource Persons shall not enjoy voting rights in Committee
Provided also that an Oversight Committee shall seek the prior approval of the Speaker in extending invitations to Resource Persons to serve in such Committee, but the choice of persons shall be at the sole discretion of the Committee
- Every Oversight Committees and every Sub-Committee shall conduct their hearings in public:
Provided that an Oversight Committee shall decide to conduct deliberations in private and shall have due regard to the public interest in recording confidential information
Standing Order 115
Three members of an Oversight Committee shall be the quorum and it shall be the duty of the Chairman of such Oversight Committee, not to function without the required quorum
Summary of Recommendations re Standing Orders 104 to 115A
- Standing Orders 104, 108, and 105 to be deleted and substituted as proposed above
- Standing Orders 109, 113 and 114 to be amended as proposed above.
- Amending Standing Order 114 requires consequent amendment to Standing Order 130 (4) and particularly to Standing Order 130A (i) regarding General Rules for Committees
- Standing Order 115 to be clarified as proposed above
- Standing Orders 106, 106A, 106B, 107, 108A, 110, 111, 112, and 115A may, mutatis mutandis, remain
COMMITTEES FOR SPECIAL PURPOSES
Standing Order 128B: COMMITTEE ON STATUTORY INSTRUMENTS AND CONSOLIDATION BILLS
- There shall be a Committee designated the Committee on Statutory Instruments and Consolidation Bills consisting of not more than twelve members to be nominated by the Committee of Selection
- It shall be the duty of the Committee to examine and report to Parliament from time to time:
- On all rules and regulations made or purported to be made under any enabling Act for determining the vires thereof
- On all Consolidation Bills
- It shall be the duty of the responsible Minister to report to Parliament on the measures taken to implement the Committee’s findings within two weeks of the Committee’s report to Parliament
Summary of Recommendations re Special Purpose Committees
- Add Standing Order 128B