Routledge Handbook of Asian Parliaments 9780367624231, 9780367624286, 9781003109402

Table of contents :
Cover
Half Title
Series Page
Title Page
Copyright Page
CONTENTS
Contributors
1. Parliaments in Asia: Introduction
PART I: Thematic Chapters
2. Communist regimes
3. Liberal democracies
4. Dominant party democracies
5 Turbulent democracies
6. Presidential democracies
PART II: Jurisdiction Chapters
7. The Parliament (Jatiya Sangsad) of Bangladesh
8. The National Assembly and Senate of the Kingdom of Cambodia
9. The National People's Congress in China
10. The Legislative Council of Hong Kong
11. The Parliament and State Legislatures of India
12. The Legislatures of Indonesia
13. The Japanese Diet
14. The Parliament of Malaysia
15. The Legislature (Pyidaungsu Hluttaw) of Myanmar
16. The Parliament of Pakistan
17. The Congress of the Philippines
18. The Parliament of Singapore
19. The National Assembly of the Republic of Korea
20. The Parliament of Sri Lanka
21. The Legislative Yuan of Taiwan
22. The Legislative Assembly of Thailand
23. The National Assembly of Vietnam
Index

Citation preview

ROUTLEDGE HANDBOOK OF ASIAN PARLIAMENTS

This handbook showcases the rich varieties of legislatures that exist in Asia and explains how political power is constituted in 17 jurisdictions in East, Southeast and South Asia. Legislatures in Asia come in all stripes. Liberal democracies co-exist cheek by jowl with autocracies; semi-democratic and competitive authoritarian systems abound. While all legislatures exist to make law and confer legitimacy on the political leadership, how representative they are of the people they govern differs dramatically across the continent, such that it is impossible to identify a common Asian prototype. Divided into thematic and countryby-country sections, this handbook is a one-stop reference that surveys the range of political systems operating in Asia. Each jurisdiction chapter examines the structure and composition of its legislature, the powers of the legislature, the legislative process, thereby providing a clear picture of how each legislature operates both in theory and in practice. The book also thematically analyses the following political systems operating in Asia: communist regimes, liberal democracies, dominant party democracies, turbulent democracies, presidential democracies, military regimes and protean authoritarian rule. This handbook is a vital and comprehensive resource for scholars of constitutional law and politics in Asia. Po Jen Yap is a Professor in the Faculty of Law at the University of Hong Kong, where he specialises in Constitutional and Administrative Law. Rehan Abeyratne is an Associate Professor of Law at The Chinese University of Hong Kong, where he specialises in constitutional law and comparative constitutionalism.

Routledge International Handbooks

The Routledge International Handbook of New Critical Race and Whiteness Studies Edited by Rikke Andreassen, Catrin Lundström, Suvi Keskinen, Shirley Anne Tate. Routledge Handbook of Asian Parliaments Edited by Po Jen Yap and Rehan Abeyratne The Routledge International Handbook of Children’s Rights and Disability Edited by Angharad E. Beckett and Anne-Marie Callus

ROUTLEDGE HANDBOOK OF ASIAN PARLIAMENTS

Edited by Po Jen Yap and Rehan Abeyratne

Designed cover image: iStock/Buddhika_ Jayawardana First published 2023 by Routledge 4 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 605 Third Avenue, New York, NY 10158 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2023 selection and editorial matter, Po Jen Yap and Rehan Abeyratne; individual chapters, the contributors The right of Po Jen Yap and Rehan Abeyratne to be identified as the authors of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library ISBN: 9780367624231 (hbk) ISBN: 9780367624286 (pbk) ISBN: 9781003109402 (ebk) DOI: 10.4324/9781003109402 Typeset in Bembo by KnowledgeWorks Global Ltd.

CONTENTS

Contributors

vii

1 Parliaments in Asia: Introduction Po Jen Yap and Rehan Abeyratne

1

PART I 

Thematic Chapters

13

2 Communist regimes Po Jen Yap and Chen Yu-Jie

15

3 Liberal democracies Chien-Chih Lin

31

4 Dominant party democracies Po Jen Yap and Marcus Teo

46

5 Turbulent democracies Rehan Abeyratne

58

6 Presidential democracies Björn Dressel and Fakhridho Susilo

82

PART II 

Jurisdiction Chapters

101

7 The Parliament ( Jatiya Sangsad) of Bangladesh M Jashim Ali Chowdhury v

103

Contents

8 The National Assembly and Senate of the Kingdom of Cambodia Benjamin Lawrence

125

9 The National People’s Congress in China Sun Ying

143

10 The Legislative Council of Hong Kong Eric Chan

158

11 The Parliament and State Legislatures of India M Mohsin Alam Bhat

178

12 The Legislatures of Indonesia Simon Butt and Tim Lindsey

202

13 The Japanese Diet Shigenori Matsui

221

14 The Parliament of Malaysia Wong Chin Huat

236

15 The Legislature (Pyidaungsu Hluttaw) of Myanmar Richard Roewer and Han Htoo Khant Paing

251

16 The Parliament of Pakistan Mariam Mufti

271

17 The Congress of the Philippines Bryan Dennis G Tiojanco and Ronald Ray K San Juan

289

18 The Parliament of Singapore Eugene KB Tan

311

19 The National Assembly of the Republic of Korea Sang-Un Park

328

20 The Parliament of Sri Lanka Dinesha Samararatne

345

21 The Legislative Yuan of Taiwan Yen-Tu Su

366

22 The Legislative Assembly of Thailand Khemthong Tonsakulrungruang and Aua-aree Engchanil

384

23 The National Assembly of Vietnam Ngoc Son Bui

401

Index 417 vi

CONTRIBUTORS

Rehan Abeyratne is an Associate Professor of Law, The Chinese University of Hong Kong M Mohsin Alam Bhat is a Lecturer at Queen Mary University of London, School of Law Ngoc Son Bui is Professor of Asian Laws, University of Oxford Faculty of Law Simon Butt is Professor of Indonesian Law, University of Sydney Law School Eric Chan is a Solicitor of the High Court of Hong Kong Chen Yu-Jie is an Assistant Research Professor, Institutum Iurisprudentiae, Academia Sinica M Jashim Ali Chowdhury is a Lecturer in Law, University of Hull Björn Dressel is an Associate Professor, Crawford School of Public Policy, The Australia National University Aua-aree Engchanil is an Associate Professor, Faculty of Law, Chulalongkorn University Han Htoo Khant Paing is an MPP Graduate at the Blavatnik School of Government and an Independent Researcher Benjamin Lawrence is a Post-Doctoral Research Fellow at the Centre for Asian Legal Studies, Faculty of Law, National University of Singapore Chien-Chih Lin is an Associate Research Professor, Institutum Iurisprudentiae, Academia Sinica Tim Lindsey is Malcolm Smith Chair of Asian Law and Redmond Barry Distinguished Professor, Melbourne Law School

vii

Contributors

Shigenori Matsui is a Professor at Peter A Allard School of Law, University of British Columbia Mariam Mufti is an Associate Professor of Political Science, University of Waterloo Sang-Un Park is a Researcher, the Institute of Social Sciences, Sogang University Richard Roewer is a Research Fellow at the German Institute for Global and Area Studies and DPhil Candidate at the University of Oxford Dinesha Samararatne is a Senior Lecturer, Department of Public and International Law, Faculty of Law, University of Colombo Ronald Ray K San Juan is a Director, Philippine Department of Finance (on secondment with Asian Development Bank as Director’s Advisor) Yen-Tu Su is a Research Professor, Institutum Iurisprudentiae, Academia Sinica Sun Ying is an Associate Professor, School of Law, Sun Yat-sen University Fakhridho Susilo is a PhD Student at the Crawford School of Public Policy, The Australian National University Eugene KB Tan is an Associate Professor of Law, Yong Pung How School of Law, Singapore Management University Marcus Teo is a Sheridan Fellow at the Faculty of Law, National University of Singapore Bryan Dennis G Tiojanco is a Project Associate Professor of Transnational Law, University of Tokyo Khemthong Tonsakulrungruang is a Lecturer in the Faculty of Political Science, Chulalongkorn University Wong Chin Huat is a Professor and Deputy Head (Strategy), UN Sustainable Development Solutions Network (SDSN) Asia Headquarters, Sunway University Malaysia Po Jen Yap is a Professor of Law, University of Hong Kong

viii

1 PARLIAMENTS IN ASIA Introduction Po Jen Yap and Rehan Abeyratne

Legislatures in Asia come in all stripes. Liberal democracies co-exist cheek by jowl with autocracies1; semi-democratic and competitive authoritarian systems abound. While all legislatures exist to make law and confer legitimacy on the political leadership, how representative they are of the people they govern differ dramatically across the continent, such that it is impossible to identify a common Asian characteristic.2 The purpose of this Handbook is to showcase the rich varieties that exist in Asia and explain how political power is constituted in each jurisdiction. Furthermore, alongside detailed jurisdictional studies of 17 countries and regions, we also provide a taxonomy to explain the diverse regime types in Asia. These regime types are as follows: communist regimes, dominant party democracies, liberal democracies, presidential democracies, turbulent democracies, military regimes, and protean authoritarian rule. And we explain how the jurisdiction’s regime type impacts its government’s performance and legitimacy.

1.1  Communist regimes Sun Ying’s fine-grained examination of the National People’s Congress in China and Ngoc Son Bui’s lucid analysis of the National Assembly of Vietnam have allowed us to identify several common key characteristics that define communist regimes in Asia. First, the Communist Party is the centrepiece of the State’s political life. For China, the leadership of the Communist Party of China is the ‘most essential feature of socialism with Chinese characteristics’.3 In Vietnam, its Communist Party is the ‘leading force of the State and society’.4 In essence, the Communist Party is the country’s living constitution. Second, lawmakers to both the Chinese and Vietnamese legislatures are not elected by a genuine universal franchise. Deputies to China’s National People’s Congress are ‘elected’ by the deputies in the provincial congresses.5 Vietnam allows the people to directly vote for national parliamentarians,6 but candidates who are eligible to run are pre-vetted by the Communist Party,7 such that party members have always occupied over 90% of the seats in the national legislature. Third, the constitutional review of legislation is formally exercised not by the courts, but by the national legislature. For China, this power is exercised by the Standing Committee of the NPC (NPCSC).8 In Vietnam, both the NPC and its Standing Committee have this power.9 DOI: 10.4324/9781003109402-1

1

Po Jen Yap and Rehan Abeyratne

But notably, in both countries, the national legislatures have not formally wielded this power of constitutional interpretation, though in 2018, China created a Constitution and Law Committee within the NPCSC to engage in the constitutional review of legislation. A key difference between China and Vietnam concerns the role of their legislature’s Standing Committee vis-à-vis the full panel. For China, the NPC has about 3000 delegates comprising part-time lawmakers, and they convene only once a year.10 Therefore, most laws in China are passed by its Standing Committee – approximately 175 members – when the full panel is not in session.11 In Vietnam, the National Assembly has about 500 members who meet twice a year, and its Standing Committee is only empowered to issue subsidiary legislation.12 In the thematic Chapter on Communist Regimes, Chen Yu-Jie and Po Jen Yap also explore how human rights are observed in these communist regimes. Notably in both countries, their governments maintain an iron grip over all print and online media, and in recent years both countries have passed intrusive laws to preserve the informational ecosystem of their State and have engaged in an extensive crackdown on civil society and dissidents.

1.2  Liberal democracies Liberal democracies have been defined by Tom Ginsburg and Aziz Huq as political systems that uphold three institutional prerequisites: free and free elections; commitment to core political rights such as the freedom of expression, association, and a free press; and the bureaucratic rule of law whereby independent courts act according to the law.13 By this benchmark, Japan, South Korea, and Taiwan are the only liberal democracies in Asia. Notably, within Asia, only these three political systems have been ranked as ‘full democracies’ by the Economist Intelligence Unit in 2021.14 In the following chapters, Shigenori Matsui ( Japan), Sang-Un Park (South Korea), and Yen-Tu Su (Taiwan) have provided us with an incisive analysis of their respective electoral systems and explained with great care their functions and powers. Notably, all three legislatures comprise lawmakers elected to single-member district seats and party seats. Each voter has two votes, one for the district candidate and the other for the political party of choice. For the single-member district seats, the electoral candidate for that district election with the highest vote wins. For the party seats, legislative members are elected from a ‘closed’ party list drawn up by the respective parties, and seats are awarded in proportion to the votes cast for all political parties. In each of all three electoral systems, more than 60% of the seats in the legislature are district ones. The Japanese Prime Minister is chosen by his peers in the Japanese Diet, while the people of South Korea and Taiwan directly vote for their president. Japan has a bicameral legislature; South Korea and Taiwan do not. But perhaps the most crucial difference is that both South Korea and Taiwan have seen regular and extended rotation of political power between opposing parties in the legislature, while Japan bears semblance to the dominant-party democracies discussed below because of the Liberal Democratic Party (LDP)’s longevity in power. Japan has been ruled by the LDP almost continuously since the party’s formation in 1955; the LDP has been ousted from power only twice and briefly too: 1993–1994 and 2009–2012. In contrast, post-democratization, Taiwan’s rivalling Kuomintang and Democratic Progressive Party have taken turns controlling the Presidency and the Legislative Yuan. South Korea’s political system is even more fragmented with parties continuously splitting and reconfiguring as their party bosses leave the political stage.15 The dynamic nature of South Korea and Taiwan’s electoral scene has led to two important developments. First, political diversity in these two legislatures has led to the institutionalization 2

Parliaments in Asia

of an Inter-Caucus Negotiation (Taiwan) or Negotiation Group (South Korea) network that allows opposing parties to participate in the passage of legislative bills. Ruling governments that may become the opposition in a few years have every incentive to encourage bipartisanship in law-making. This formalized network for cross-party negotiation does not exist in Japan. Second, as astutely observed by Chien-Chih Lin in his thematic chapter on Liberal Democracies, the Constitutional Courts of Korea and Taiwan are more activist than their Japanese counterpart – the Supreme Court of Japan. Vis-à-vis Taiwan, its Constitutional Court has invalidated constitutional amendments that attempted to extend the term of existing National Assembly delegates,16 struck down discriminatory election deposit requirements imposed on independent electoral candidates,17 and has also expanded the right of its people to engage in peaceful political protests.18 Similarly, the Constitutional Court of Korea (KCC) has mitigated the effects of systemic political barriers erected by lawmakers to preserve their incumbency: prohibitive deposits for National Assembly elections,19 gerrymandering of electoral constituencies,20 and disenfranchisement of small political parties.21 It was in fact the KCC that required its government to allow each voter to cast two votes in the National Assembly election: one for the preferred individual candidate in the electoral district and the other for the preferred political party that would field the party representative in the national legislature.22 (Before this landmark decision, a voter could only vote for the district representative and party seats were allocated in proportion to the votes the political parties received in the electoral districts.) In contrast, the JSC is remarkably more subdued and has upheld the constitutionality of almost every legislation that comes its way.23 This difference in judicial behaviour is not surprising. In South Taiwan and South Korea, different competing parties take turns to occupy the Presidency and control the legislature, such that judges of different ideological stripes can be appointed by the government of the day to the highest court.24 Not accountable or beholden to one dominant party, these judges have the political space to rule regularly against the government. In contrast, Japan’s enduring LDP has been able to continuously stack the JSC with ‘ideologically reliable agents’25 who could not be easily replaced by the opposition during their very brief stints in power, such that the Japanese judges are largely a handmaiden of the ruling party.

1.3  Dominant party democracies Singapore, Hong Kong, and Malaysia are all dominant party democracies – democracies in which the same political party or coalition has continuously or largely ruled the political entity since independence or decolonization. Notably, dominant party democracies all share certain core features. First, for a dominant party to remain in power indefinitely, the ruling government has to regularly modify the electoral rules to preserve its incumbency. In Eugene Tan’s illuminating chapter on Singapore, he identifies one key method by which the ruling People’s Action Party (PAP) consolidates its hegemony – the use of multi-member group constituencies known as Group Representative Constituencies (‘GRCs’). Each GRC is formed by merging three to six single wards into one mega-constituency.26 Introduced in 1988 with the stated aim of ensuring racial diversity in Parliament – at least one team member must be from a racial minority community,27 the GRC system also benefits the PAP as it allows the Party to ensure the election of new candidates with ministerial calibre by fielding them in GRC teams alongside party stalwarts with mass electoral appeal. And as explained 3

Po Jen Yap and Rehan Abeyratne

in Po Jen Yap and Marcus Teo’s chapter on dominant party democracies, the PAP further skews the political competition in its favour by gerrymandering with the electoral boundaries before every general election. In Hong Kong, Eric Chan has underscored how the Communist Party has overhauled the city’s electoral system in 2021. Now, only 20 out of 90 seats in the Legislative Council (LegCo) are elected by universal suffrage28; previously half the LegCo seats were popularly elected. Furthermore, a new Electoral Committee (EC) – composed of 40 seats in the LegCo – was added to the legislature, and only pro-Beijing affiliates can vote for these 40 EC lawmakers. More extraordinarily, a new Candidate Eligibility Review Committee – chaired by the Chief Secretary of the Hong Kong government – was established in 2021 to screen all electoral candidates and ensure only ‘patriots’ can run for office. Second, dominant party democracies will rely on an optimal mix of co-optation, repression, censorship, and propaganda to buttress its hegemony.29 In Hong Kong, the National Security Law foisted on the city by Beijing in 2020 has criminalized a host of political expression. In particular, 47 pro-democracy activists were arrested in 2021 – prior to the 2021 electoral overhaul – for organizing an informal election primary to field candidates who can win seats in the Legislative Council and subsequently block the passage of the government’s budget, thereby forcing the Chief Executive’s resignation.30 With the ubiquity of social media and online news platforms, both Malaysia and Singapore have passed laws that allow them to remove ‘fake news’ communicated online, and the Hong Kong government is also weighing this option. One notable difference between these three jurisdictions is their use of sectoral representation in the legislature. In Hong Kong, 30 out of 90 seats in the LegCo are constituted by Functional Constituencies (FCs). As explained by Eric Chan in his chapter, FCs are said to represent ‘the economic and professional sectors which are substantial and of importance in the community’, 31 and the right to vote for these FC lawmakers generally depends on one’s membership or registration in a recognized commercial, economic, industrial, social, political advisory, or professional body represented in the LegCo. But for many of these sectors, e.g. Finance 32 and Insurance, 33 Transport, 34 it is the authorized representatives of these companies that vote for the FC lawmakers, 35 not their individual employees. In Singapore, these sectoral lawmakers – known as Nominated Members of Parliament – are chosen by the Singapore government, but they make up only 936 out of 104 members in the Singapore Parliament.

1.4  Turbulent democracies We refer to the four South Asian countries in this volume – Bangladesh, India, Pakistan, and Sri Lanka – as ‘turbulent democracies’. While each has endured periods of emergency rule, martial law, or civil war (in Sri Lanka’s case), they all have elected civilian governments today. But this similarity in form belies the precarity of democratic rule in the region as well as the democratic erosion or backsliding that has occurred in the region in recent years. Indeed, over the past decade, South Asia has experienced severe institutional turbulence wherein executive power has become increasingly unmoored from both institutional and political constraints. 37 One effect of this development is that parliaments in the regions have been marginalized and institutionally weakened. When exercising their functions, these parliaments do not function effectively as deliberative or law-making bodies. In Bangladesh, as M Jashim Ali Chowdhury’s chapter illuminates, executive dominance over the Parliament has adversely affected the latter’s operations. 38 Chowdhury highlights, among other things, 4

Parliaments in Asia

how Members of Parliament (MPs) lack autonomy to question or amend legislation, as they must follow the party line. Partisanship has skewed the composition – and defeated the institutional purpose – of the committee system, which was supposed to bring MPs across party lines together to debate and draft legislation. But, in practice, the majority party (Awami League) dominates proceedings. Similarly, the Speaker of Parliament is closely aligned with the government, which further diminishes parliamentary autonomy. 39 A similar picture emerges in India, as detailed in M Mohsin Alam Bhat’s chapter.40 Bhat notes the Indian Parliament’s decline as a deliberative body, with an increase in disruptions that reduced the number of working days and the time for discussion or debate on legislation. Further, the practice of government questions has faded, with most questions submitted in written (rather than oral) form. As a result, the government is not compelled to face interrogation by the opposition parties. Bhat also explains how the practice of executive lawmaking in the form of ordinances, which was supposed to be an emergency-like power, has become routine.41 With this parallel law-making authority, the Prime Minister and cabinet can circumvent Parliament altogether. This practice is especially problematic with respect to controversial issues like agricultural reform, which ordinarily should be subject to debate in Parliament and passed in the form of legislation, rather than promulgated through executive decree.42 The Parliaments of Pakistan and Sri Lanka face institutional turbulence of a different sort. Pakistan’s current Constitution, adopted in 1973, has been held in abeyance for extended periods of martial law and emergency rule, including from 1977 to 1985 and 1999 to 2003, during which Parliament did not function.43 And even in non-emergency periods, the President of Pakistan was effectively empowered under Article 58(2)(b) of the 1973 Constitution to dissolve Parliament at will, which led to successive governments in the 1980s and 90s being removed from power before the end of their terms.44 As Mariam Mufti notes, with the passage of the Eighteenth Amendment in 2010, Article 58(2)(b) was removed from the Constitution and the Pakistani Parliament has finally had a chance to develop as a democratic institution.45 However, with Pakistan in a deep economic crisis and the ever-present threat of military intervention, it is not clear that its Parliament will be able to mature into a well-functioning legislature. The 1978 Constitution of Sri Lanka – unlike the other three countries – vests executive power in a president, who is elected separately from the legislature and whose term in office does not depend on maintaining parliamentary confidence. The president appoints the prime minister and, in consultation with the latter, appoints cabinet members, noncabinet ministers, and deputy ministers.46 The president also has the power to take on any cabinet portfolio and change cabinet assignments at will.47 As Dinesha Samararatne points out, with the president exercising such broad powers, the Sri Lankan Parliament’s ability to function has depended on the approach to governance taken by individual presidents.48 Indeed, Sri Lanka has oscillated between presidents who were willing to be constrained by Parliament and independent commissions, and those – notably, Mahinda Rajapaksa and his younger brother Gotabaya – who have rolled back those constitutional safeguards to centralize power in the presidency.49 Widespread protests in 2022 culminated in President Gotabaya Rajapaksa’s resignation. The Sri Lankan Parliament is, as of August 2022, considering the Twenty-First Amendment Bill. If passed, the country would once again impose some constitutional limits and accountability on the president. But as long as the current constitutional structure persists, Parliament will always play a secondary role to the presidency. 5

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1.5  Presidential democracies In the two presidential democracies covered in this volume – Indonesia and the Philippines – competitive elections take place, but the national legislature is weak vis-à-vis the president. And after elections, the president can cajole or coerce opposing lawmakers to join his ruling coalition such that the country has a unitary executive-led government, and the country has a captured legislature. In Indonesia, the legislative power is primarily vested in the DPR (Dewan Perwakilan Rakyat, People’s Representative Assembly).50 As Simon Butt and Tim Lindsey explain, this body served as a rubber stamp during the authoritarian reign of President Soeharto (1967–1998). In the postSoeharto era, the DPR became a more powerful and independent institution. Its 575 members are elected on the basis of contested and largely free elections for five-year terms and no party has ever claimed an outright majority since 1998. However, the DPR is not a particularly representative institution. Over the past two decades, it has largely been controlled by elite-led coalitions dominated by four or five political parties. Those coalitions, in turn, cater to special interests and are primarily occupied with horse-trading and ‘politicking’ among themselves. All told, the DPR today has a reputation for corruption and self-dealing, rather than legislating for the common good. Moreover, the internal divisions and politicking among the DPR’s various coalitions have made it an ineffective check against the president. In the Philippines, the 1987 Constitution, which marked the end of President Marcos’s authoritarian regime and ushered in a new, democratic era, vests legislative power in a bicameral Congress. Reflecting its American colonial history, the Philippines Congress comprises a House of Representatives and a Senate. The House consists of 299 members, serving threeyear terms, who are elected from a combination of district-level and party-list systems.51 The Senate has 24 members, serving staggered six-year terms, who are elected from a nationwide electorate. Like Indonesia, the Philippines lacks dominant political parties. Rather, as Bo Tiojanco and Ron San Juan explain in their chapter, coalitions emerge from multiple parties, with their composition and loyalties shifting based on who the president – or leading presidential candidate – is at a given time.52 In their thematic chapter on Presidential Democracies, Björn Dressel and Fakhridho Susilo argue that the executive-legislative relationship in Indonesia and the Philippines has changed in recent years.53 While both countries have relatively weak, divided legislatures whose members have aligned with the country’s leader, President Joko Widodo (2014– present) in Indonesia and President Rodrigo Duterte (2016–2022) in the Philippines have altered lawmakers’ incentives for their political alignment. Legislators in prior regimes sought to make common cause with the president for clientelistic reasons: it gave them access to pork, rent, and other forms of patronage. Under the Widodo and Duterte regimes, however, it is the charismatic, personalized appeal of the president and the threat of being sidelined (or worse) that brings legislators in line. As a result, Dressel and Susilo argue, these presidents are able to pursue illiberal policy agendas with little or no resistance from their respective legislatures.54

1.6  Military regimes Thailand and Myanmar share not only geographic proximity but are also ruled by military regimes. While Thailand has oscillated between military and civilian rule over the past few decades, Myanmar has been effectively governed by the military since 1962. These military regimes attained power through coups d’état and have suppressed democratically elected governments and political movements by force. The legislatures in Thailand and Myanmar 6

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do not function regularly, as they are suspended during periods of martial or emergency rule. Even when democratically elected governments are in control, the military would reassert its authority by staging further coups and/or control subsequent elections more tightly to ensure their continued dominance. Thailand is currently governed by a military dictatorship in the guise of civilian rule.55 Following a coup in 2014, the military ruled the country from 2014 to 2019. The regime then held a sham election in 2019 in which the military leader Prayuth Chan-ocha was elected Prime Minister.56 This is the latest iteration of the cycle between democracy and military rule that has characterized Thai politics since 1997. Thailand’s Legislative Assembly has a bicameral legislature consisting of a House of Representatives and Senate. While the Senate has been popularly elected at times, its 250 members today were all handpicked by the junta.57 The House of Representatives under the 2017 Constitution is selected through Multi-Member Apportionment of 350 constituency MPs and 150 MPs drawn from a party list.58 As Khemthong Tonsakulrungruang and Aua-aree Engchanil show in careful detail, this electoral design favours small parties with extensive national networks, such as Prime Minister Prayuth’s Phalang Pracharath Party.59 Tonsakulrungruang and Engchanil further explain that the 2017 Constitution sought to reverse changes introduced in the 1997 Constitution, Thailand’s most democratic constitution to date.60 The 1997 Constitution reformed the electoral system to favour larger political parties with national platforms to counter the excessive politicking between coalitions – and related corruption – that characterized the legislature under the previous constitution.61 But this arrangement allowed a populist leader, Thaksin Shinawatra, to become Prime Minister in 2001. Though Thaksin faced charges of corruption and grave human rights violations (including extrajudicial killings) during his tenure, his anti-poverty, healthcare, and other socioeconomic policies proved popular among the Thai public.62 As a political outsider, Thaksin threatened the power of Thailand’s traditional political elite: the monarchy, military, and business magnates. His government was, therefore, removed by a military coup in 2006. The military then installed a new constitution in 2007, which reversed many of the liberal reforms introduced by the 1997 Constitution. For instance, it reverted to a partially appointed (rather than elected) Senate.63 Thaksin’s sister, Yingluck Shinawatra, became Prime Minister following democratic elections in 2011. Her government introduced amendments to the 2007 Constitution that, among other things, would have reinstated a fully elected Senate.64 However, the Thai Constitutional Court struck this amendment was unconstitutional under the 2007 Constitution in a judgement that has been cited as a form of illiberal or abusive judicial review.65 Yingluck’s government was then overthrown by a military coup in 2014, leading to the establishment of the 2017 Constitution. In addition to the changes to the electoral system, the 2017 Constitution further ensures that Thaksin’s family cannot return to power.66 The eligibility criteria for legislative candidates strictly prohibit candidates from owning holding shares in newspaper or other mass media companies.67 Not coincidentally, Thaksin had acquired his wealth and influence through a media business and had been accused of using that platform to enhance his political prospects. Moreover, candidates convicted of any corruption-related crime, as well as several other offences related to money laundering, human trafficking, fraud, and dishonest performance in public office, are permanently banned from contesting parliamentary elections.68 Both Thaksin and Yingluck Shinawatra have been accused of such crimes, though they fled the country before facing trial. All told, the military junta continues to rule Thailand, albeit in civilian form today. Assuming the usual cycle continues, democratic government may well resume. But, with the 7

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vacuum created by Thaksin and Yingluck’s departure, it is not clear whether other political parties will step into the breach and challenge the deeply entrenched – and military-backed – traditional power structure. In Myanmar, meanwhile, the military staged a coup in 2021 and declared martial law. With the legislature suspended indefinitely, Richard Roewer and Han Htoo Khant Paing’s insightful chapter focuses instead on Myanmar’s semi-democratic period from 2010 to 2020. As they explain, the military-imposed 2008 Constitution instituted what was effectively a tricameral legislature.69 The ostensibly bicameral legislature (Pyidaungsu Hluttaw or Assembly of the Union) contained the Pyithu Hluttaw, the lower house (House of Representatives), and the Amyotha Hluttaw, the upper house (House of Nationalities).70 However, the Assembly of the Union regularly sat as a joint chamber, which not only legislated as a single body but also comprised committees of members from both houses.71 Myanmar constitutionalizes the military’s role in politics more explicitly than Thailand. For instance, a majority of members in both houses of the legislature are selected on the basis of first-past-the-post elections, but the military appoints 25 per cent of the seats in each house.72 This is significant because constitutional amendments under the 2008 Constitution may only be enacted with a three-fourths majority in each house. Thus, the democratically elected members of the legislature were effectively barred from amending the constitution without the military’s consent.73 The major opposition party, the National League for Democracy (NLD), boycotted the 2010 general elections – the first elections under the 2008 Constitution – as its most prominent members, including its leader Aung San Suu Kyi, were barred from contesting seats, and it did not want to lend legitimacy to this constitution.74 Thus, the military-backed Union Solidarity and Development Party won a supermajority in both houses.75 However, the military regime began to gradually democratize Myanmar thereafter. Suu Kyi was released from long-term house arrest in 2011, and the NLD contested the 2012 by-elections, winning 43 out of 45 seats.76 The subsequent general elections in 2015 were the first open elections held in Myanmar since 1990 and resulted in the NLD winning a majority of seats in both houses of the legislature.77 The president and two vice-presidents of Myanmar are selected through the Presidential Electoral College (PEC), which is formed in the legislature.78 As leader of the NLD, Aung San Suu Kyi should have been elected President. But the military had specifically drafted the presidential eligibility provision in the 2008 Constitution to prevent her from assuming the office.79 It provides, among other things, that the parents, spouses, and children of presidential candidates must be citizens of Myanmar. Suu Kyi, whose children held British citizenship, was therefore ineligible to stand for president. In response, the NLD created the position of ‘State Counselor of Myanmar’ for Suu Kyi in 2016 – a post akin to Prime Minister and that effectively superseded the presidency.80 After the NLD’s comprehensive victory in the 2020 general elections,81 the military arrested Suu Kyi and other senior democratic leaders, placed them under house arrest, and convicted them on various trumped up charges.82 The Assembly of the Union was dissolved in February 2021 and the military-led State Administration Council (SAC) declared a state of emergency, which continues today.83 Thus, whether the Myanmar legislature will be restored and, in what form, remains to be seen.

1.7  Protean authoritarian rule in Cambodia Cambodia has been dominated by Prime Minister Hun Sen and the Cambodia People’s Party (CPP) since 1985.84 Unlike the communist regimes discussed above, the dominant regime in Cambodia lacks any stated (or actual) ideology. Rather, its protean ideology 8

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has evolved over the decades to suit the political needs of the moment and Hun Sen’s personal agenda. Cambodia’s Constitution was adopted in 1993 – the culmination of a UN peace-building process that followed decades of war and internal unrest.85 As Benjamin Lawrence notes in his chapter, the Constitution ‘guarantees a system of liberal, multi-party or pluralistic democracy’, which has not been realized in practice. The 1993 elections resulted in a hung parliament after which Hun Sen, with the support of the military and police, threatened to lead seven provinces to secede from Cambodia.86 This led to a power-sharing arrangement between Hun Sen and the royalist party Funcinpec led by Prince Norodom Ranariddh.87 However, the coalition fell apart in 1997, leading to a coup through which Hun Sen consolidated power which he never relinquished. Today, he is the world’s longest serving Prime Minister.88 The Cambodian National Assembly, currently comprising 125 members, was originally a unicameral legislature. Its members are elected to five-year terms, through (supposedly) universal direct elections with proportional representation within the provinces.89 In 1999, the Constitution was amended to introduce an upper house (Senate). As Lawrence explains, this structural change served to bring the royalist Funcinpec party into the CPP’s ruling coalition by accommodating their members in the Senate.90 Indeed, the first Senate was appointed by the King on the recommendation of the President of the National Assembly and the royally appointed Senate President.91 However, Senate members have since been selected through a combination of appointments and limited elections.92 There are currently 66 members of the Senate, who serve six-year terms. Politically, the strongest challenge to Hun Sen’s regime came in the 2013 general elections. The elections were closely contested, leading both the CPP and the opposition Cambodian National Rescue Party (CNRP) to claim victory.93 Hun Sen proceeded to form a government as the CPP claimed 68 seats compared to 51 seats for the CNRP.94 The CNRP and its supporters alleged that the CPP was engaged in voter fraud, which led to large-scale protests.95 By 2018, Hun Sen and the CPP ensured that the CNRP was dissolved and that the former faced no credible opposition.96 The sham elections held that year resulted in a sweep for the CPP: it claimed all 125 seats in the National Assembly.97 As Lawrence put it, this election marked a ‘shift from competitive to hegemonic authoritarianism’ in Cambodia.98 More broadly, as in Thailand and Myanmar, the presence of a genuine threat to the ruling party led the incumbent regime to batten down the hatches and consolidate its rule. While Cambodia did not experience further coups as Thailand and Myanmar did, the CPP’s sham elections in 2018 served the same purpose: to ensure that it possessed unrivalled political power.

1.8 Conclusion Overall, this Handbook seeks to present a panoramic view of Asian parliaments. The chapters herein describe and explain how parliaments in Asia function, how they are situated with respect to the executive and judicial branches of government, and how political power is exercised across different political systems. We hope that the richly detailed case studies and the analytical thematic chapters will inform further scholarship on the functions and limitations of parliaments in the region and serve as a useful reference guide to students of law and politics in Asia.

Notes 1 David S Law and Chien-Chih Lin, ‘Constitutional Inertia and Regime Pluralism in Asia’ in Mark Graber, Sanford Levinson and Mark Tushnet (eds), Constitutional Democracies in Crisis? (OUP 2018) 424.

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Po Jen Yap and Rehan Abeyratne 2 Lam Peng Er, ‘Parliaments in East Asia: Between Democracy and “Asia” Characteristic?’ in Zheng Yongnian, Lye Liang Fook and Wilhelm Hofmeister (eds), Parliaments in Asia: Institutional Building and Political Development (Routledge 2014) 13. 3 Constitution of China (1982, as amended in 2018), art 1. 4 Constitution of Vietnam (2013), art 4(1). 5 Constitution of China (1982, as amended in 2018), art 5. 6 Constitution of Vietnam (2013), art 7(1). 7 Constitution of Vietnam (2013), art 117. 8 Constitution of China (1982, as amended in 2018), art 67. 9 Constitution of Vietnam (2013), arts 70(10), 74(2). 10 Constitution of China (1982, as amended in 2018), art 61. 11 Constitution of China (1982, as amended in 2018), art 67. 12 Constitution of Vietnam (2013), art 74(2). 13 Tom Ginsburg and Aziz Huq, How to Save a Constitutional Democracy (University of Chicago Press 2018). 14 The Economist Intelligence Unit, ‘Democracy Index 2020: In sickness and in health?’ (The Economist 2021) accessed 16 June 2021. 15 Byung-Kook Kim, ‘Party Politics in South Korea’s Democracy: The Crisis of Success’ in Larry Diamond and Byung-Kook Kim (eds), Consolidating Democracy in South Korea (Lynne Rienner Publishers 2000) 53–60; Yoonkyung Lee, ‘Political Parties’ in Chung-in Moon and M Jae Moon (eds), Routledge Handbook of Korean Politics and Public Administration (Routledge 2020) 77, 82–83. 16 JY Interpretation No. 499 (Taiwan) (2000) (Constitutional Court of Taiwan) 17 JY Interpretation No. 340 (1994) (Constitutional Court of Taiwan) 18 JY Interpretation No. 445 (1998) (Constitutional Court of Taiwan) 19 One-Person One-Vote Case, 2000Hun-Ma91, etc., (consolidated) (19 July 2001) (Constitutional Court of Korea). 20 Case on Standard for Population Disparity allowed in Division of Electoral District, 2013Hun-Ma781, 2014 Hun-Ma53 (consolidated) (30 October 2014) (Constitutional Court of Korea). 21 Case on Prohibition of Using the Name of a Political Party whose Registration has been cancelled, 2012Hun-Ma431, 2012Hun-Ka19 (consolidated) (28 January 2014) (Constitutional Court of Korea). 22 One-Person One-Vote Case, 2000Hun-Ma91, etc., (consolidated) (19 July 2001) (Constitutional Court of Korea). 23 Shigenori Matsui, The Constitution of Japan: A Contextual Analysis (Hart 2010). 24 Po Jen Yap and Chien-Chih Lin, Constitutional Convergence in East Asia (CUP 2022). 25 David Law, ‘The Anatomy of a Conservative Court: Judicial Review in Japan’ (2009) 87 Texas LR 1545. 26 See Constitution of Singapore (1965), art 39A. 27 ibid art 39A(2). 28 Hong Kong Basic Law (1990, as revised in 2021), Annex II. 29 See Adam Przeworksi, ‘Authoritarianism, Authority, and Representation’ (2020) 60 Asian Survey 347. 30 Austin Ramzy and Tiffany May, ‘Hong Kong Charges 47 Democracy Supporters with Violating Security Law’ New York Times (New York, 30 July 2021) accessed 19 August 2022. 31 Constitutional Affairs Bureau, ‘Administration’s Responses to Points raised on 7 May by Members of the Bills Committee on the Legislative Council (Amendment) Bill 1999’ accessed 19 March 2020. 32 Legislative Council Ordinance (Hong Kong), s 20T. 33 ibid s 20C. 34 ibid s 20D. 35 ibid s 26(1). 36 Constitution of Singapore (1965), art 39(1)(c). 37 See Rehan Abeyratne, ‘Turbulent Democracies’, Chapter 5 in this volume.

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Parliaments in Asia 38 See M Jashim Ali Chowdhury, ‘The Parliament ( Jatiya Sangsad) of Bangladesh’, Chapter 7 of this volume at 118. 39 ibid 112–14. 40 M Mohsin Alam Bhat, ‘The Parliament and State Legislatures of India’, Chapter 11 in this volume. 41 ibid 193–95; Abeyratne (n 37) 64–65. 42 Bhat (n 40) 194. See also Shubhankar Dam, Presidential Legislation in India (CUP 2013). 43 See generally Sadaf Aziz, The Constitution of Pakistan: A Contextual Analysis (Hart 2018). 4 4 Abeyratne (n 37) 68. 45 See Mariam Mufti, ‘The Parliament of Pakistan’, Chapter 16 in this volume, at 271. 46 Sri Lanka Constitution 1978, art 44(1). 47 Ibid art 44(2); Dinesha Samararatne, ‘The Parliament of Sri Lanka’, Chapter 20 in this volume, at 347–48. 48 Samararatne (n 47) 359. 49 Abeyratne (n 37) 72–73; Dinesha Samararatne, ‘Constitutional Ping-Pong: Sri Lanka’s Crisis and the Rediscovery of Political Agency’ Verfassungsblog (5 May 2022), https://verfassungsblog.de/ constitutional-ping-pong/. 50 Two other bodies also play limited law-making roles: (1) People’s Consultative Assembly (MPR or Majelis Permusyawaratan Rakyat) and the Regional Representative Assembly (DPD or Dewan Perwakilan Daerah). See Simon Butt and Tim Lindsey, ‘The Legislatures of Indonesia’, Chapter 12 in this volume. 51 See Bryan Dennis G Tiojanco and Ronald Ray K San Juan, ‘The Congress of the Philippines’, Chapter 17 in this volume. 52 ibid 292. 53 See Björn Dressel and Fakhridho Susilo, ‘Presidential Democracies’, Chapter 6 in this volume. 54 ibid 83. 55 Khemthong Tonsakulrungruang and Aua-aree Engchanil, ‘The Legislative Assembly of Thailand’, Chapter 22 in this volume. 56 ibid. 57 Constitution of Thailand (2017), s 269. 58 ibid s 85, 86. 59 Tonsakulrungruang and Engchanil (n 55) 387. 60 Tom Ginsburg, ‘Constitutional Afterlife: The Continuing Impact of Thailand’s Postpolitical Constitution’ (2009) 7 International Journal of Constitutional Law 83. 61 Tonsakulrungruang and Engchanil (n 55) 386. 62 Rosalind Dixon and David Landau, Abusive Constitutional Borrowing: Legal Globalization & The Subversion of Liberal Democracy (OUP 2021) 106–107. 63 Björn Dressel, ‘Judicialization of Politics or Politicization of the Judiciary? Considerations from Recent Events in Thailand’ (2010) 23 Pacific Review 671. 64 Khemthong Tonsakulrungruang, ‘Entrenching the Minority: The Constitutional Court in Thailand’s Political Conflict’ (2016) 26 Washington International LJ 247, 261–263; Dixon and Landau (n 62) 102–103. 65 Khemthong Tonsakulrungruang, ‘Thailand’s Unamendability: Politics of Two Democracies’ in Rehan Abeyratne and Ngoc Son Bui (eds), The Law and Politics of Unconstitutional Constitutional Amendments in Asia (Routledge 2021) 184; Dixon and Landau (n 62) 109–112. 66 Tonsakulrungruang and Engchanil (n 55) 387–88. 67 Constitution of Thailand (2017), s 98(3). 68 ibid s 98 (8) (9) (10) and (11). 69 Richard Roewer and Han Htoo Khant Paing, ‘The Legislature (Pyidaungsu Hluttaw) of Myanmar’, Chapter 15 in this volume, at 254. 70 ibid. 71 ibid. 72 Constitution of the Republic of the Union of Myanmar (2008), s 109 (b), 141 (b). 73 Melissa Crouch, The Constitution of Myanmar: A Contextual Analysis (Hart 2019) 244. 74 Roewer and Paing (n 69) 258. 75 ‘Burma’s Pro-junta Party Wins Parliament Majority’ Irrawaddy (Yangon, 12 Nov 2010) accessed 19 August 2022.

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Po Jen Yap and Rehan Abeyratne 76 Kocha Olarn, ‘Myanmar confirms sweeping election victory for Suu Kyi’s party’ CNN (4 April 2012), accessed 19 August 2022. 77 Guy Dinmore, ‘NLD wins absolute majority in parliament’ Myanmar Times (Yangon, 13 Nov 2015) accessed 19 August 2022. 78 It consists of three groups: (a) 330 elected members of the lower house (b) 168 elected members of the upper house and (c) 166 military appointees from both houses of parliament. Roewer and Paing (n 69) 254. 79 Constitution of the Republic of the Union of Myanmar (2008), s 59(f ). 80 Roewer and Paing (n 69) 254. 81 The NLD won 396 out of 476 seats. See Pyae Sone Win, ‘Myanmar election commission rejects military’s fraud claims’ Associated Press (Naypyitaw, 29 Jan 2021) accessed 19 August 2022. 82 ‘Myanmar military seizes power, detains elected leader Aung San Suu Kyi’ Reuters (1 Feb 2021) accessed 19 August 2022; ‘Aung San Suu Kyi found guilty over walkie-talkie charges’ Al Jazeera (10 Jan 2022), accessed 19 August 2022. 83 Roewer and Paing (n 69) 260. 84 Hun Sen first served as Prime Minister from 1985 to 1993. Then, following a brief power sharing period from 1993 to 1997, he seized sole control of the government in 1997 through a militarybacked coup. 85 Benjamin Lawrence, ‘The National Assembly and Senate of the Kingdom of Cambodia’, Chapter 8 in this volume at 125. 86 Benny Widyono, Dancing in Shadows: Sihanouk, the Khmer Rouge, and the United Nations in Cambodia (Rowman & Littlefield 2008) 126–129. 87 ibid 128–129. 88 Lawrence (n 85). 89 Constitution of Cambodia (1993), arts 76, 78. 90 Lawrence (n 85) at 126. 91 ibid 126–27. 92 ibid. 93 Prak Chan Thul, ‘Defiant Hun Sen says to form government despite Cambodia poll row’ Reuters (2 Aug 2013) accessed 19 August 2022. 94 ibid; Thomas Fuller, ‘Ruling Party Wins Narrowly in Cambodian Vote’ New York Times (Phnom Penh, 28 July 2013) accessed 19 August 2022. 95 Prak Chan Thul, ‘Cambodian opposition rallies for second day after protest death’ Reuters (16 Sep 2013) accessed 19 August 2022. 96 ‘Supreme Court rules to dissolve CNRP’ Phnom Penh Post (Phnom Penh, 16 Nov 2017) accessed 19 August 2022. 97 ‘Cambodia election: Ruling party claims landslide in vote with no main opposition’ BBC (30 Jul 2018) accessed 19 August 2022. 98 Lawrence (n 85) 125.

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PART I

Thematic Chapters

2 COMMUNIST REGIMES Po Jen Yap and Chen Yu-Jie

2.1 Introduction Communist regimes are countries with Leninist party-structures where their political leaders represent the proletariat but are not validated by the public at any free and fair election.1 In a recent important monograph, Ngoc Son Bui creates a typology to explain constitutional change in four communist countries in Asia.2 Vietnam represents the universal model as global norms played a prominent role in shaping the current constitutional text.3 Laos reflects the integration model as constitutional change in the country was intended to integrate different ethnic groups.4 China projects the exceptional model as the country now seeks a prominent role in the global order.5 Finally, North Korea exemplifies the personal model as state power is centralized in one individual, and his ideology shapes constitutional change.6 This chapter focuses on Vietnam and China. Specifically, we will show how Vietnam’s Constitution—while ‘universal’ on paper—is hardly globalist in practice. As for China, the country is indeed reclaiming a prominent role in global affairs, but as this chapter illustrates, the country is doing so while concurrently consolidating power in its leader and rewriting its constitution in his image.

2.2 Vietnam Vietnam is a one-party communist state. The country has had five socialist constitutions7—1946, 1959, 1980, 1992, and 2013—and the constitution expressly provides that the Communist Party is ‘the leading force of the State and society’.8 While every adult is eligible to vote9 in National Assembly elections that are held every five years,10 only the Communist Party of Vietnam (CPV) is allowed to field candidates. Independents may contest the elections, but they have to be pre-vetted by the state-controlled National Election Council.11 The CPV currently controls over 95% of the seats in the National Assembly.12 The president is the head of state,13 and the prime minister runs the government.14 The Political Bureau and the Central Committee of the CPV also assert their influence by proposing laws and regulations.15 But the most powerful man in the country is the General Secretary of the Communist Party, who concurrently chairs the Central Military Commission—the DOI: 10.4324/9781003109402-3

15

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most powerful party organ on military affairs. In an unusual break from tradition, General Secretary Nguyen Phu Trong assumed the presidency when the incumbent passed away from a prolonged illness—the first person to do so since revolutionary leader Ho Chi Minh. In a departure from party custom, the 76-year-old Nguyen was also given a third term as the CPV’s party chief in 2021. While the 2013 Constitution acknowledges that human rights are ‘respected, protected and guaranteed’16 by the state—for the first time in the country’s history—the Communist Party maintains an iron grip over all print and online media, and critics of the regime are regularly harassed and detained. Unlike China, the Vietnamese government has not banned Facebook, Twitter, or Gmail. But notably, a new Law on Cyber Security came into force in 2019 that prohibits websites and social media from posting any information that would be regarded by the state as disruptive of public order, and the Law compels internet service providers to remove any prohibited content within 24 hours upon notification from the authorities.17 Foreign tech companies are also required to store user data for a stipulated period of time18 and turn them over to the Ministry of Public Security upon request. Independent journalism has also been curtailed as many prominent journalists and bloggers were arrested in 2020.19 While the 2013 Constitution may promise—another first in the nation—that state powers shall ‘control one another in the exercise of the legislative, executive and judiciary powers’, 20 the courts do not have any powers of constitutional review. Instead, the constitution vests the powers of the constitutional review with the National Assembly, 21 the Standing Committee of the National Assembly, 22 and the prime minister. 23 In any case, the judiciary is also not independent of the CPV. The Chief Justice of the Supreme People’s Court serves a renewable term of five years, 24 as do other judges on the Court and in the lower judiciary. To get reappointed, judges need to petition for reappointment to the judicial selection committee, which is staffed by representatives from the government and the courts. 25 As a consequence, the constitutional dialogue on rights has largely taken place outside the courtroom, and primarily within public debates on constitutional and statutory reforms. 26 However, rights-talk—albeit in rare circumstances—has permeated the constitutional discourse between the (monolithic) political branches of government. In 2003, the Ministry of Public Security—in an attempt to address traffic congestion in the country—passed a circular that limited every resident to one motorcycle. Remarkably, the Legal Committee of the National Assembly publicly announced in 2005 that this policy was unconstitutional, and the policy was soon rescinded. 27 While Vietnam’s 2013 Constitution is the country’s most ‘liberal’ socialist constitution yet, others might argue it is a mere ruse for the Communist Party to consolidate and continue its reign into the distant future.

2.3 China The People’s Republic of China has seen four socialist constitutions—1954, 1975, 1978, and 1982—and the current 1982 one has been amended five times. In the latest 2018 round of constitutional amendments, presidential term-limits were removed such that President Xi Jinping can now rule beyond his second term and possibly for life. Xi Jinping’s Thought on Socialism with Chinese Characteristics was also formally enshrined in the Constitution. Notably, of all of China’s past leaders, only Mao Zedong and Deng Xiaoping had their names attached to their accompanying ideologies in the Constitution. But hitherto the 2018 amendment, only Mao’s ideology was elevated as a ‘Thought’; Deng’s one was just a ‘Theory’. 16

Communist Regimes

While the presidency is largely a ceremonial one,28 Xi Jinping wields extraordinary power over the nation’s governance in his capacity as the General Secretary of the Communist Party and the Chairman of the Central Military Commission 29 —the most powerful state organ on military affairs. Even though the premier is technically head of the government,30 President Xi has sidelined the incumbent Li Keqiang by expanding the role of Leading Small Groups in state governance. These Leading Small Groups run the gamut from financial policy to foreign affairs, with the Leading Group for Comprehensive Deepening Reforms, which Xi created and chairs, acting as a de facto cabinet in place of Premier Li’s State Council. The Chinese Communist Party (CCP) is not conferred specific constitutional powers, though the 2018 constitutional revisions expressly provide that the defining feature of socialism with Chinese characteristics as practiced in China is the leadership of the CCP.31 The CCP’s influence pervades every facet of China’s public life, and the Party’s top leadership is effectively China’s living constitution.32 Deputies of the national legislature—the National People’s Congress—are elected from the provinces, autonomous regions, municipalities, and Special Administrative Regions.33 Deputies to the people’s congresses of these provinces/municipalities are elected by the respective people’s congresses below;34 deputies to the people’s congresses of counties and townships are elected directly by their constituents.35 But all these elections are a sham. The deputies to the national/provincial/municipality levels would be instructed by their respective CCP leadership to abide by party discipline and elect the pre-ordained candidates.36 For lower-level county and township elections, which are open to the public, the candidates allowed on the ballot paper are pre-vetted by the CCP.37 Chinese courts are ‘deeply embedded institutions’.38 While the constitution prohibits any administrative organ, public organization, or individual from interfering with the judiciary,39 it is silent on the CCP. (It is noteworthy that the CCP and its satellite parties are not even formally registered in China.)40 The presidents and vice-presidents at every court level are CCP (or CCP-affiliated) cadre members.41 Furthermore, the CCP top leadership regulates judicial affairs through the Party’s Central Political-Legal Committee (PLC); there are local PLCs replicated in every province and county, 42 and the Central PLC in turn reports to the Central Committee of the CCP, the party’s highest organ of authority led by the CCP’s General Secretary. While there will not be party-sanctioned interference with run-of-themill commercial or criminal cases, ‘complicated’ cases would be handled by an Adjudication Committee chaired by the president of that particular court level,43 and these cases will be decided in consultation with the relevant PLCs.44 While Chinese courts are not vested with any power of constitutional interpretation—this power lies with, albeit never exercised by, the Standing Committee of NPC45 —the Supreme People’s Court (SPC) regularly makes law when it issues judicial interpretations on legislation and regulations to guide lower courts, and it often supplements or extends the regulatory coverage of existing statutes.46 For example, in the Administrative Litigation Law (ALL) of 1989, Article 11 only authorizes judicial review of specific administrative acts in a list of circumstances, and Article 12 expressly lists cases that are non-justiciable. However, a judicial interpretation of the ALL was issued in 2000 that expanded the court’s jurisdiction to review all specific acts taken by state administrative organs and its personnel,47 save national security cases, mediation/arbitration disputes, and those deemed non-justiciable under Article 12 of the ALL.48 But it is an overstatement to say that these judicial innovations are done ‘all with impunity and at the expense of the National People’s Congress’.49 One must note that the president of the SPC is a member of the Central PLC; other members include the Minister of Justice, the Minister of State Security, the Minister of Public Security; and the Central 17

Po Jen Yap and Chen Yu-Jie

PLC is chaired by a member of the CCP’s powerful Politburo. These judicial innovations are better viewed as writ small bridging devices introduced with the acquiescence of the Party leadership that helps ameliorate inadequacies in the existing law, pending writ large legislative reform. It is particularly telling that the revised ALL of 2014 incorporated and expanded upon these judicial reforms.50 While the 2004 round of constitutional amendments formally enshrines a constitutional duty on the state to respect and preserve human rights,51 this beneficent gesture is mere window-dressing. The party-state promotes ‘Human Rights with Chinese Characteristics’52 as the centrepiece of rights discourse. This discourse manifests the CCP’s development-first, state-centric thinking that marginalizes fundamental principles of international human rights norms—i.e., that all human rights are derived from a necessarily human-based, individualcentred perspective and also universal, indivisible, interdependent, and inter-related. According to the CCP’s thinking, collective development and social stability trump individual rights and freedoms. It is the Party that dictates the nation’s path of development. Fundamental human rights are characterized as either Westphalian or culturally relative, such that individual expressions and group identities can be sacrificed for the greater good.53 Under Xi Jinping, crackdowns on dissidents and civil society have intensified. The pursuit of Xi’s ‘Chinese Dream’ requires the manifestation of a whole-of-society nationalism where the entire Chinese people march in lockstep to the Party’s drumbeat. Any act or speech, online or in the streets, that is deemed disloyal in the Party’s eyes will be sanctioned by an increasingly imposing public security apparatus. Space here does not permit a full examination of the expansive nature of the civil society crackdown and we can only highlight the most prominent human rights crises. In toto, China has witnessed an escalation of human rights violations unparalleled since the 1989 military crackdown in Tiananmen Square and throughout the country. One prime example is China’s Xinjiang Uygur Autonomous Region (XUAR). The region’s Turkic Muslims—mostly ethnic Uyghurs and Kazakhs—have traditionally observed different social, cultural, and religious practices from the majority of China’s Han people and have long been suppressed for exercising their cultural and religious rights. Starting from the 1990s, a series of ‘Strike Hard’ campaign recurred sporadically in this region.54 More recent tensions in Xinjiang began to escalate after a 2009 violent clash between the police and local protestors demanding an investigation of the death of two Uyghur workers in a fight with Han Chinese in a Guangdong factory.55 But the State became more concerned after political violence against civilians was involved. In 2013, a suicide car attack by Uighurs ploughed through pedestrians in Tiananmen Square.56 In 2014, a gang of knife-wielding assailants attacked the Kunming railway station in Yunnan province.57 In the same year, there were also a knife and bomb attack at the Ürümqi train station58 and a market bombing in Ürümqi.59 The Party blamed these attacks on Muslim separatists and launched another ‘Strike Hard Campaign’ in 2014.60 These discrete acts of violence gravely intensified China’s preexisting ‘Fight Against Three Evil Forces’—terrorism, separatism, and religious extremism— in XUAR.61 While the dissemination of information inside China is tightly controlled and the government does not allow independent and unfettered access to the region, a significant body of investigative reports,62 scholarly works,63 satellite images,64 individual testimonies,65 as well as China’s own leaked official documents66 have revealed an elaborate state-sanctioned programme that targets all aspects of civic life in the Xinjiang region. The most harrowing feature of the state-sanctioned program in Xinjiang would be the mass internment of its Muslim minorities. While the exact number of internees is kept secret 18

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by the government, international observers have estimated that at least between several hundred thousand and a million Turkic Muslims have been detained in these camps.67 While China branded these reports about Xinjiang’s internment camps as ‘fake news’,68 the government has acknowledged their existence, but these camps are characterized as ‘Vocational Education and Training Centres’, which are ostensibly used to teach minorities the Chinese language and labour skills, along with ‘legal knowledge’ and ‘de-extremization education’.69 This nomenclature, however, does little to conceal the camps’ coercive nature. The living conditions in these camps were appalling, and reports surfaced that inmates were subject to torture and other cruel, inhuman, or degrading treatment.70 There have also been allegations of sexual assaults and gang rapes taking place in these camps.71 In December 2019, under increasing international pressure, the Chinese government announced that internees of the Training Centres had all ‘graduated.’ 72 But reports have also emerged that some of the former internees have subsequently been sentenced to harsh prison terms,73 adding to the increasingly massive prison population. According to an estimate drawn from official data, about 300,000 people have been prosecuted in Xinjiang in 2017 and 2018 since the Strike Hard Campaign escalated, in stark contrast with less than 30,000 people prosecuted annually in the years before.74 Thousands of former internees have also been dispatched on work placements within and outside Xinjiang, which international observers have described as forced labour.75 But the Chinese government see the workers as surplus labour or idle labour,76 which require state assistance in finding employment, and this conveniently dovetails with the Party’s poverty alleviation agenda. Factories have been built next to the political re-education camps and nearby rural villages, and they commonly produce textiles with Xinjiang’s cotton and other labour-intensive products. The interconnection between Xinjiang’s use of detention, criminal prosecution, and its government-run labour force have led the United States, among other countries, to ban imports of any cotton from Xinjiang. Such bans also cover products manufactured or sold by a growing list of blacklisted private and state-owned companies,77 including the Xinjiang Production and Construction (Solider) Corps—a massive militaryindustrial body that has ties to nearly every major Xinjiang industry, including its lucrative metal, wind, and solar industries. Muslim residents who are not interned or transferred to factories remain under strict surveillance and grid policing in Xinjiang.78 This involves the operation of a dense network of state-of-the-art facial recognition cameras and the compulsory collection of personal and biometric data.79 In many parts of Xinjiang, a simple walk down a main boulevard may require the scanning of one’s biometric data and identification at the now-ubiquitous police checkpoints. All these data are fed into what is called the ‘Integrated Joint Operations Platform’ (IJOP), which collects and aggregates information on these individuals and flags to authorities individuals it deems suspicious.80 It is unclear how the Platform classifies an individual as threatening, but documents uncovered by the Uyghur Human Rights Project and Human Rights Watch suggest that flagged behaviour include many types of common, nonviolent behaviour, including the use of software such as peer-to-peer file sharing applications and VPN services, travelling to ‘sensitive’ countries or even other Chinese provinces.81 Also notable is the XUAR Regulation on Deradicalization passed in 2017 to prohibit the following conduct: wearing of burqas, keeping ‘irregular’ beards, undermining family planning policies, etc.82 Other forms of surveillance are less high-tech but are even more intrusive. CCP cadres are regularly dispatched to Xinjiang to visit, surveil, and even live in the homes of the Muslims.83 According to a Human Rights Watch report, for example, the authorities in October 2016 19

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launched a campaign termed ‘becoming family,’ in which more than a million cadres would spend at least five days every two months in the homes of Xinjiang residents.84 Other allegations have also been raised about the implementation of birth control measures, including forced abortions and the planting of Intrauterine Devices in Muslim women.85 ‘Having too many children’ is also listed on official documents as one of the grounds for political re-education.86 Birth rates of the Muslim population have plummeted in recent years. According to official statistics, birth rates in Hotan and Kashgar, places populated mostly by Muslim minorities, plunged by more than 60% between 2015 and 2018, and birth rates in the Xinjiang region fell by almost 24% in 2019, compared to just 4.2% nationwide.87 The human rights crisis in Xinjiang has triggered international alarm. A number of liberal democracies have labelled the abuses in Xinjiang as acts of genocide and/or crimes against humanity, and they include the State Department of the United States,88 the Parliament of the United Kingdom,89 the Parliament of Canada,90 and the Parliament of the Netherlands.91 New Zealand’s Parliament, however, declined to do so.92 China, on the other hand, has vehemently rejected all these allegations of genocide as ‘fake news’.93 In early 2021, The Economist published a controversial article entitled ‘“Genocide” is the wrong word for the horrors of Xinjiang’.94 The article provoked counter-responses arguing that it had adopted an unduly narrow view of the actus reus element of genocide that does not conform with the text of the Convention on the Prevention and Punishment of the Crime of Genocide.95 Human Rights Watch concluded that the putative acts of persecution, imprisonment, enforced disappearance, torture, forced sterilization, and enslavement would constitute crimes against humanity as defined in the Rome Statute of the International Criminal Court.96 However, for the geocide allegation to be substantiated, they are of the view that more evidence regarding the necessary genocidal intent would be needed. Regardless of one’s view on this thorny legal issue, what is happening in Xinjiang clearly constitutes ‘a comprehensive, multifaceted, whole of government and society campaign’ that seeks to dissolve the distinguishing characteristics of Muslim minorities,97 including their culture, language, religion, and identity. Beyond Xinjiang, as China aspires to become a leader in global technology, especially in the field of artificial intelligence, some observers worry about a fast-developing ‘digital totalitarianism’98 that would allow the Chinese government to surveil and control the everyday life of individuals in the name of maintaining social stability. One of China’s most well-known technological projects is the ‘Social Credit System’ (SCS), which is an ambitious attempt to monitor and shape the citizenry’s behaviour through incentives and rewards.99 In short, the SCS gathers information of so-called trust-breaking behaviour, blacklisting trust-breaking individuals, and imposing a variety of ‘joint sanctions’ on those blacklisted.100 In addition to the national SCS, various pilot cities are concurrently operating their own SCS, e.g., Suining and Rongcheng.101 This ambitious social engineering project, however, is not as omnipotent or omnipresent as foreign media often depict. To date, it remains underdeveloped without the concurrent aid of artificial intelligence or the use of real-time feedback data. On the other hand, one should not underestimate the surveillance potential of other technological advances that China has made. Skynet, a video-surveillance programme initiated in 2005, and the similar 2015 ‘Sharp Eyes’ project are both intended to use video surveillance to monitor its population.102 In 2017, it was reported on China’s state media that the ‘Skynet’ project had been completed,103 thereby bringing into operation the largest video-surveillance network in the world with an estimate of 349 million surveillance cameras installed around the country as of 2018.104 This technology has been used to arrest criminal suspects and find 20

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missing persons.105 But with the pervasive deployment of facial recognition technology in the people’s daily lives, including the use of facial scanning for e-payments, public transportation, and hospital visits,106 one’s privacy in China constitutes a rapidly shrinking space. The government is also reportedly building a DNA database with the collection of blood samples from men and boys; this policy has been pursued most aggressively in Xinjiang, with the scheme expanding to other parts of China.107 Even as China expands its surveillance capacity, it is also enhancing its control over the citizenry’s access to information. For example, The Great Firewall of China has been further buttressed: virtual private networks (VPN) services now need government approval to operate and the country’s top three Internet service providers—China Mobile, China Unicom, and China Telecom—no longer allow VPNs to access their networks, potentially closing off the remaining loopholes for the citizenry to access Google, Facebook, YouTube, and the New York Times.108 These developments indicate a Chinese society that is increasingly insulated from the outside world. With Chinese society more isolated from the world, the government has concurrently clamped down on domestic dissent, particularly with the detention of activists. The most well-known example is what is now termed the ‘709 Crackdown’, in which over 300 lawyers and rights advocates were detained and publicly pilloried in a media spectacle in July 2015.109 The repression of lawyers and independent NGOs is still ongoing, and the State has now institutionalized arbitrary detention by liberally resorting to ‘Residential Surveillance at a Designated Location’ (RSDL)110 and ‘Liuzhi’ (retention in custody).111 While the government claims that the codification of these hitherto unwritten practices improves rights protection,112 under the RSDL and Liuzhi systems, suspects can be detained for as long as six months without being brought before a court113 and can be denied legal counsel114 and have their whereabouts kept from family members.115 Although these practices are procedural exceptions that are supposed to apply in exceptional circumstances, in reality, without effective checks on police power, the investigatory apparatus may rely on these legal provisions more regularly. This is especially so for what the government considers ‘sensitive cases’.116 These detainees may face total isolation,117 repeated interrogations, and forced confessions.118 The detainees may not get to retain lawyers of their choosing; instead, the government assigns ‘officially designated lawyers’ to the cases, and they reportedly cleave to government instructions closely.119 Rights lawyers who deviate from the party line may be harassed, pressured to drop the case, and even have had their law licenses revoked.120 What China’s criminal justice system is witnessing is an unfortunate regression,121 and this does not represent China’s turn towards law.122 In 2021, Beijing also overhauled Hong Kong’s electoral system, the Special Administrative Region it governed since 1997. Before the political revamp, the head of the Hong Kong government—the Chief Executive (CE)—was selected by an Election Committee composed of only 1200 members.123 An overwhelming majority of the Election Committee members were already pro-Beijing, thereby ensuring that only a pro-Beijing candidate could be selected as Chief Executive.124 From the 2022 CE election onwards, the CE will be selected by a committee of 1500 members.125 With this change, Beijing added Hong Kong representatives of China’s national organizations to and removed elected Hong Kong district councillors126 from the Committee, thereby extending its control over the CE selection. Hong Kong’s Legislative Council was also not spared. Prior to the 2021 electoral revamp, it was composed of 70 members127 elected via two different electoral methods. A total of 35 seats in the Legislative Council were constituted via universal suffrage in Geographical Constituencies (GC) elections.128 The other 35 seats in the Legislative Council were constituted via Functional Constituencies (FC), a system in which the right to vote depends 21

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upon a person’s membership or registration in a recognized social, economic, industrial, commercial, political advisory, or professional body represented in the legislature.129 In many of these FCs,130 e.g., Insurance, Transport, Finance, Labour, it is not the individuals working in these professions who are eligible to vote. Instead, it is only the recognized corporate bodies operating in these professions that can vote. Most elected corporate representatives in the FCs are pro-business and therefore, within the Hong Kong context, also pro-Beijing. In 2021, Beijing foisted a new electoral map on Hong Kong: The Legislative Council has expanded to 90 members, but GC and FC seats have been slashed to 20 and 30 seats, respectively,131 with 40 of the new seats now reserved for members chosen by the Election Committee of the Chief Executive. All candidates must also be pre-vetted by a Candidate Eligibility Review Committee Law to ensure that prospective lawmakers would abide by the Basic Law. All these measures were introduced by Beijing to ensure that only ‘patriots’ would govern Hong Kong.132 Prior to the 2021 electoral revamp, Beijing in June 2020 also annexed a new national security legislation to Hong Kong’s Basic Law.133 Frustrated with the months of civil unrest that have rocked the city since mid-2019, and the local government’s inability to pass national security law ‘on its own’,134 Beijing decided to take matters into its own hands and custommake a bespoke one for Hong Kong. Notably, the details of this law were not subject to any public consultation and were only published after it took effect. ‘Secession’, which includes independence advocacy135; ‘subversion of state power’, which includes damaging government buildings such that governmental functions can no longer be performed;136 and ‘collusion with foreign governments’, which includes lobbying for the imposition of sanctions on Hong Kong or the People’s Republic of China137; are all national security penal offences now. Terrorism has also been defined to include arson and the damaging of vehicular transport and traffic facilities for political ends.138 For all four crimes, offenders face sentences of up to life imprisonment for grave violations, while short-term detentions can be imposed for minor infractions. Even non-Hong Kong residents based outside the jurisdiction are liable for prosecution if they commit any of these penal offences against Hong Kong.139 A National Security agency established by Beijing to gather intelligence can now operate legally in Hong Kong, but must abide by local laws,140 though these Mainland officials are not subject to local jurisdiction for acts performed in the course of duty.141 The enforcement and prosecution decisions made under this national security law are entrusted to local officials,142 and Hong Kong courts are also empowered to adjudicate the vast majority of cases brought under this law.143 Most local criminal law procedures and human rights safeguards continue to apply.144 But jury trial in individual cases can be replaced with a panel of three judges,145 and where state secrets are involved, all or part of the trial can be closed to the public, though the verdict must still be announced in open court.146 The Chief Executive—in consultation with the Chief Justice—will decide on the list of judges who will hear these national security cases, and they will be drawn from the pool of pre-existing Hong Kong judges, but no judge can be selected if they have made any statement or behaved in any manner that endangers national security.147 In those rare serious cases where foreign governments are involved or the Hong Kong government is unable to enforce the law effectively, the Chinese procuratorate and courts are legally empowered to take over from local counterparts.148 The law opens up the chilling possibility that for these exceptional cases, the offenders, if in Hong Kong, can be extradited to the Mainland to face trial. Finally, the power of interpreting this national security law lies with the NPCSC,149 which expressly allows Mainland officials to overrule the Hong Kong judiciary’s interpretation of this criminal law. As of 1 May 2021, no one has been extradited to China to face trial under the NSL, but 51 people have been charged under this law, 47 of 22

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whom are pro-democracy activists who, prior the 2021 election revamp, had organized an informal election primary to field candidates who can win seats in the Legislative Council and subsequently block the passage of the government’s budget, thereby forcing the CE’s resignation.150 China’s market and ‘comprehensive law-based governance’151 reforms are well underway, but its constitutional commitments to religious liberty152 and a free press153 are more honoured in the breach. All these only mean that the CCP is determined to grow the country into the world’s most powerful and prosperous behemoth. But one should have no illusion that the Party will allow civil society to erode its exclusive control over of the country’s political narrative. China may be on a constitutional journey, but for the CCP, a transition to a competitive democracy is not the final destination.

2.4 Conclusion Francis Fukuyama once crowed that communism would soon be consigned to the ideological dustbin of history,154 but his assessment has now to be revised in light of the rise of autocracies and the resilience of communism.155 The Cold War era ‘convergence theory’ that technology would homogenize all industrial societies—capitalist or communist—has now been disproved as modern communist states in Asia have successfully harnessed surveillance technologies to resist and reject the siren song of the Western liberalism.156 The defining feature of a communist regime is the glaring absence of democratic elections: public polls are political theatre and all organs of the State—the courts, the legislature, the executive, and the military—are subjected to the singular control of the country’s communist party. The resilience of communist regimes in Asia157 certainly debunks the erstwhile conventional wisdom that history will inevitably and ineluctably end with the triumph of democracy.

Notes 1 For a fuller discussion, see Po Jen Yap, ‘Authoritarian Regimes’ in Peter Cane, Herwig C H Hofmann, Eric C Ip, and Peter L Lindseth (eds), Oxford Handbook of Comparative Administrative Law (OUP 2020) 339–355. 2 Ngoc Son Bui, Constitutional Change in the Contemporary Socialist World (OUP 2020). 3 ibid 64. 4 ibid. 5 ibid. 6 ibid. 7 Ngoc Son Bui, ‘Contextualizing the Global Constitution-Making Process: The Case of Vietnam’ (2016) 64 The American Journal of Comparative Law 931. 8 2013 Vietnam Constitution, Article 4(1). 9 2013 Vietnam Constitution, Article 7(1). 10 2013 Vietnam Constitution, Article 71(1). 11 2013 Vietnam Constitution, Article 117. 12 ‘IFES Election Guide | Elections: Vietnam National Assembly 2021’ IFES (May 23, 2021) . 13 2013 Vietnam Constitution, Article 86. 14 2013 Vietnam Constitution, Article 95(2). 15 Brian J M Quinn, ‘Legal Reform and its Context in Vietnam’ (2002) 15 Columbia Journal of Asian Law 219, 225. 16 2013 Vietnam Constitution, Article 14(1). 17 Jonathan London, ‘Vietnam in 2018: Consolidating Market Leninism’ (2019) 59 Asian Survey 140, 145.

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Po Jen Yap and Chen Yu-Jie 18 ‘Data Localisation Requirements Narrowed in Vietnam’s Cybersecurity Law, Opinion - THE BUSINESS TIMES’ accessed 13 July 2021. 19 Paul Schuler, ‘Vietnam in 2020: Controlling COVID and Dissent’ (2021) 61 Asian Survey 90, 94. 20 2013 Vietnam Constitution, Article 2(3). 21 2013 Vietnam Constitution, Article 70(10). 22 2013 Vietnam Constitution, Article 74(2). 23 2013 Vietnam Constitution, Article 98(4). 24 2013 Vietnam Constitution, Article 105(1). 25 See n 15, 240. 26 Ngoc Son Bui, and Pip Nicholson, ‘Activism and Popular Constitutionalism in Contemporary Vietnam’ (2017) 42 Law & Social Inquiry 677. 27 Ngoc Son Bui, ‘The Discourse of Constitutional Review in Vietnam’ (2014) 9 Journal of Comparative Law 191, 215. 28 1982 Chinese constitution, Article 81. 29 ibid Article 93. 30 ibid Articles 85 and 86. 31 ibid Article 1 (as revised in 2018). 32 He Xin, ‘The Party’s Leadership as a Living Constitution in China’ in Tom Ginsburg and Alberto Simpser (eds), Constitutions in Authoritarian Regimes (CUP 2014) 245. 33 1982 Chinese constitution, Article 59. 34 ibid Article 97. 35 1982 Chinese constitution, Article 97. 36 He, see n 32. 37 Electoral Law of the National People’s Congress and Local People’s Congresses of the People’s Republic of China, Article 31. 38 Kwai Hang Ng and Xin He, Embedded Courts: Judicial Decision-Making in China (CUP 2017) 15. 39 1982 Chinese constitution, Article 126. 40 Qianfan Zhang, The Constitution of China: A Contextual Analysis (Hart Publishing 2012) 99. 41 ibid 194. 42 Ling Li, ‘The Chinese Communist Party and People’s Courts: Judicial Dependence in China’ (2016) 64 American Journal of Comparative Law 37, 57. 43 ‘2016 White Paper on Judicial Reform of Chinese Courts Part IV’ (2016) Supreme People’s Court . 4 4 Randall Peerenboom, ‘Judicial Independence in China: Common Myths and Assumptions’ in Randall Peerenboom (ed.), Judicial Independence in China: Lessons for Global Rule of Law Promotion (CUP 2010) 69, 80. 45 1982 Chinese constitution, Article 67. 46 Eric Ip, ‘The Supreme People’s Court and the Political Economy of Judicial Empowerment in Contemporary China’ (2010) 24 Columbia Journal of Asian Law 367. 47 Judicial Interpretation of the Administrative Litigation Law, Interpretation No. 8 (2000), Article 1 (read with Arts 6 and 7). 48 Judicial Interpretation of the Administrative Litigation Law, Interpretation No. 8 (2000), Article 1. 49 Eric Ip, ‘Judicial Review in China: A Positive Political Economy Analysis’ (2012) 8 Review of Law and Economics 331, 332. 50 Haibo He, ‘How Much Progress Can Legislation Bring? The 2014 Amendment of the Administrative Litigation Law of PRC’ (2018) 13 University of Pennsylvania Asian Law Review 162. 51 Article 33 of the 1982 Chinese constitution, as revised in 2004. 52 For an account of this concept of ‘Human Rights with Chinese Characteristics’ or ‘Human Rights under Socialism with Chinese Characteristics’ under the leadership of Xi Jinping, see for example: Liu Hainian (刘海年), ‘Shilun Xi Jinping dui Renquan Lilun de Xin Fazhang’ (试论 习近平对人权理论的新发展) [The New Contribution to the Important Discourse on Human Rights by General Secretary Xi Jinping] (2018) Nandu Xuetan (南都学坛) [Academic Forum of Nandu] No. 4 , translation available at http://www. chinahumanrights.org/html/2019/MAGAZINES_0110/12533.html. 53 For a critical analysis of ‘Human Rights with Chinese Characteristics’, see Yu-Jie Chen, ‘China’s Challenge to the International Human Rights Regime’ (2019) NYU Journal of International Law and Politics 1179.

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Communist Regimes 54 James Millward, Eurasian Crossroads: A History of Xinjiang (3rd edn, Columbia University Press 2009) 331–332, 341–343. 55 Edward Wong, ‘Riots in Western China Amid Ethnic Tension’ The New York Times ( July 5, 2009)

56 Jonathan Kaiman, ‘Islamist Group Claims Responsibility for Attack on China’s Tiananmen Square’ The Guardian (November 25, 2013) . 57 ‘Four sentenced in China over Kunming station attack’ BBC (September 12, 2014) . 58 ‘Deadly China blast at Xinjiang railway station’ BBC (April 30, 2014) . 59 ‘Urumqi Car and Bomb Attack Kills Dozens’ The Guardian (May 22, 2014) . 60 ‘Strike hard’ Campaign Aims to Restore Harmony to Xinjiang People’ Global Times ( July 7, 2014) . 61 Xiang Bo, ‘Full Transcript: Interview with Xinjiang Government Chief on Counterterrorism, Vocational Education and Training in Xinjiang’ Xinhuanet (October 16, 2018) . 62 For more recent reports, see for example: ‘Break Their Lineage, Break Their Roots’: China’s Crimes against Humanity Targeting Uyghurs and Other Turkic Muslims’ Human Rights Watch (April 19, 2021) ; Matthew Hill, David Campanale, and Joel Gunter, ‘“Their Goal Is to Destroy Everyone”: Uighur Camp Detainees Allege Systematic Rape’ BBC (February 2, 2021) ; ‘China Cuts Uighur Births with IUDs, Abortion, Sterilization’ Associated Press ( June 29, 2020) < https://apnews.com/article/ ap-top-news-international-news-weekend-reads-china-health-269b3de1af34e17c1941a514f 78d7 64c>; Vicky Xiuzhong Xu, et al. ‘Uyghurs For Sale’ (2020) Australian Strategic Policy Institute . 63 See e.g., Sean R Roberts, The War on the Uyghurs: China’s Internal Campaign against a Muslim Minority (Princeton University Press 2020); James Leibold, ‘Surveillance in China’s Xinjiang Region: Ethnic Sorting, Coercion, and Inducement’ (2020) 29 Journal of Contemporary China 46–60; James Millward and Dahlia Peterson, ‘China’s System of Oppression in Xinjiang: How It Developed and How to Curb It’ Brookings (September 2020) ; Adrian Zenz and James Leibold, ‘Securitizing Xinjiang: Police Recruitment, Informal Policing and Ethnic Minority Co-optation’ (2020) The China Quarterly 242, 324–348; Sheena Chestnut Greitens et al. ‘Counterterrorism and Preventive Repression: China’s Changing Strategy in Xinjiang,’ (2020/2021) International Security no. 3 44, 9–47; Joanne Smith Finley, ‘Securitization, Insecurity and Conflict in Contemporary Xinjiang: Has PRC Counter-Terrorism Evolved Into State Terror?’ (2019) 38 (1) Central Asian Survey 1–26; Adrian Zenz, ‘“Thoroughly Reforming them Towards a Healthy Heart Attitude”: China’s Political Re-education Campaign in Xinjiang’ 38(1) Central Asian Survey 102–128; Darren Byler, ‘Violent Paternalism: On the Banality of Uyghur Unfreedom’ (2019) 16 (24-4) The Asia-Pacific Journal 1–14. 64 See e.g., Techjournalist, ‘Open-Source Satellite Data to Investigate Xinjiang Concentration Camps’ Medium (February 2, 2020) ; Megha Rajagopalan, Alison Killing, and Christo Busch, ‘“News Investigation Reveals Vast Infrastructure for Long-Term Detention and Incarceration in China” Part 1: China Secretly Built a Vast New Infrastructure to Imprison Muslims’ BuzzFeed News (August 27, 2020) ; Megha Rajagopalan, Alison Killing, and Christo Buschek ‘“News Investigation Reveals Vast Infrastructure for Long-Term Detention and Incarceration in China” Part2: What They Saw: Ex-Prisoners Detail The Horrors Of China’s Detention Camps’ BuzzFeed News (August 27, 2020) . 65 See e.g., Xinjiang Victims Database (an online platform that compiles accounts of enforced disappearances and individual testimonies; accessed May 3, 2021) ; Raffi Khatchadourian, ‘Surviving the Crackdown in Xinjiang’ The New Yorker, (April 5, 2021) .

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Po Jen Yap and Chen Yu-Jie 66 See e.g., ‘China: Big Data Program Targets Xinjiang’s Muslims: Leaked List of Over 2,000 Detainees Demonstrates Automated Repression’ Human Rights Watch (December 9, 2020) ; Uyghur Human Rights Project, ‘Ideological Transformation’: Records of Mass Detention from Qaraqash, Hotan (February 18, 2020) ; William Yang and Sandra Petersmann ‘Exclusive: China’s Systematic Tracking, Arrests of Uighurs Exposed in New Xinjiang Leak’ DW (February 17, 2020) ; ‘China Cable’ International Consortium of Investigative Journalists (November 24, 2019) ; Austin Ramzy and Chris Buckley, ‘“Absolutely No Mercy”: Leaked Files Expose How China Organized Mass Detentions of Muslim’ The New York Times (November 16, 2019) . 67 For discussions of the internment camps and the estimated number of internees, see e.g., Finley, see n 63; Zenz, see n 63; ‘China: Massive Numbers of Uyghurs & Other Ethnic Minorities Forced into Re-education Programs’ Chinese Human Rights Defenders (August 3, 2018) . 68 See e.g., Wang Yu, ‘The Truth about Xinjiang’ Ministry of Foreign Affairs of the People’s Republic of China ( June 3, 2020) . 69 See n 61. 70 Human Rights Watch, see n 62, 19–21. 71 Campanale Hill and Gunter, see n 62; Qiao Long ‘Kazakhs Speak Out About Rape in China’s Xinjiang Camps’ Radio Free Asia (February 10, 2021) . 72 ‘Trainees in Xinjiang Education, Training Program Have All Graduated: Official’ Xinhuanet (December 9, 2019) . 73 E.g., ‘China: Baseless Imprisonments Surge in Xinjiang’ Human Rights Watch (February 24, 2021) ; Chris Buckley, ‘China’s Prisons Swell After Deluge of Arrests Engulfs Muslims’ (August 31, 2019) New York Times https://www.nytimes.com/2019/08/31/world/asia/xinjiang-china-uighursprisons.html. 74 Emily Feng, ‘“Illegal Superstition”: China Jails Muslims For Practicing Islam, Relatives Say’ NPR (October 8, 2019) ; Millward and Peterson, see n 63, 5. 75 For example, Australian Strategic Policy Institute, see n 62; DW, see n 66. 76 ‘Rumors of “forced labor” in Xinjiang Refuted’ People’s Daily (March 17, 2020) . 77 ‘CBP Issues Region-Wide Withhold Release Order on Products Made by Slave Labor in Xinjiang’ U.S. Customs and Border Protection ( January 13, 2021) . 78 Yael Grauer, ‘Revealed: Massive Chinese Police Database’ The Intercept ( January 29, 2021) ; Zenz and Leibold, see n 63; Leibold, see n 63. 79 See e.g., ‘China: Big Data Fuels Crackdown in Minority Region’ Human Rights Watch (February 26, 2018) ; ‘How Mass Surveillance Works in Xinjiang, China: “Reverse Engineering” Police App Reveals Profiling and Monitoring Strategies’ Human Rights Watch (May 2, 2019) ; Yanan Wang and Dake Kang, ‘Exposed Chinese Database Shows Depth of Surveillance State’ AP News (February 19, 2019) . 80 Bethany Allen-Ebrahimian, ‘Exposed: China’s Operating Manuals for Mass Internment and Arrest by Algorithm’ (November 24, 2019) . 81 Uyghur Human Rights Project, see n 66; Human Rights Watch, see n 66.

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Communist Regimes 8 2 Article 9 of the XUAR Regulation on Deradicalization 新疆维吾尔自治区去极端化条例 83 ‘Xiniiang 110 Wan Ming Ganbu Zhigong yu 160 Wan Hu Gezu Qunzhong Jiedui Renqin 新疆110万名干部职工与160万户各族群众结对认亲 [1.1 million cadres in Xinjiang ‘become family’ with a.6 million minorities population]’ Xinhuanet ( July 4, 2018) . 84 ‘China: Visiting Officials Occupy Homes in Muslim Region: ‘Becoming Family’ Campaign Intensifies Repression in Xinjiang’ Human Rights Watch (May 13, 2018) . 85 For example, ‘China Cuts Uighur Births with IUDs, Abortion, Sterilization’, see n 62; Emma GrahamHarrison and Lily Kuo, ‘Uighur Muslim Teacher Tells of Forced Sterilisation in Xinjiang’ The Guardian (September 4, 2020) ; Adrian Zenz, ‘Sterilizations, IUDs, and Mandatory Birth Control: The CCP’s Campaign to Suppress Uyghur Birthrates in Xinjiang’ The Jamestown Foundation (March 17, 2021) . 86 ‘China Cuts Uighur Births with IUDs, Abortion, Sterilization’, see n 62. 87 ibid. 88 Bureau of Democracy, Human Rights, and Labor, ‘2020 Country Reports on Human Rights Practices: China (Includes Hong Kong, Macau, and Tibet)’ (2020) U.S. State Department . 89 Jasmine Cameron-Chileshe and Christian Shepherd ‘MPs Unanimous in Declaring China’s Treatment of Uyghurs Genocide’ Financial Times (April 23, 2021) . 90 ‘Canada’s Parliament Declares China’s Treatment of Uighurs “genocide”’ BBC (February 23, 2021) . 91 ‘Dutch Parliament: China’s Treatment of Uighurs is Genocide’ Reuters (February 25, 2021) . 92 ‘New Zealand Draws Back from Calling Chinese Abuses of Uyghurs Genocide’ The Guardian (May 4, 2021) . 93 Mimi Lau, ‘Xinjiang “genocide” Claims are “fake news”, Chinese Foreign Minister Says’ South China Morning Post (March 8, 2021) . 94 ‘“Genocide” Is the Wrong Word for the Horrors of Xinjiang’ The Economist (February 13, 2021) . 95 See e.g., Donald Clarke, ‘The Economist on Xinjiang: Don’t Call It Genocide’ The China Collection (February 13, 2021) ; ‘How Did The Economist Get It This Wrong?’ Genocide Response (February 15, 2021) ; Jackson Neagli, ‘The Importance of “Biological Destruction” in Responsible Coverage of Xinjiang’ Lawfare (April 14, 2021) . 96 Human Rights Watch, see n 62. See also Preston Jordan Lim, ‘Applying International Law Solutions to the Xinjiang Crisis’ (2020) 22(1) Asian Pacific Law and Policy Journal 90–156 ; Asia Pacific Centre, ‘Genocide And Crimes Against Humanity In Xinjiang? Applying The Legal Tests’ The University of Queensland (November 2020) ; Macdonald et al., ‘International Criminal Responsibility for Crimes Against Humanity and Genocide Against the Uyghur Population in the Xinjiang Uyghur Autonomous Region’ (2020) ; Peter Mattis, ‘Yes, the Atrocities in Xinjiang Constitute a Genocide’ Foreign Policy (April 15, 2021) . 97 Jerome A. Cohen, ‘Genocide, Crimes Against Humanity, and Common Sense’ ( Jerry’s Blog, January 26, 2021) .

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Po Jen Yap and Chen Yu-Jie 98 Xiao Qiang, ‘The Road to Digital Unfreedom: President Xi’s Surveillance State’ (2021) 30(1) Journal of Democracy 53–67 . 99 Yu-Jie Chen, Ching-Fu Lin, and Han-Wei Liu ‘“Rule of Trust”: The Power and Perils of China’s Social Credit Megaproject’ (2018) 32(1) Columbia Journal of Asian Law 1–36 . 100 ibid. 101 Daithi Mac Sithigh and Mathias Siems, ‘The Chinese Social Credit System: A Model for Other Countries?’ (2019) 82(6) Modern Law Review 1034. 102 Xiao Qiang, ‘The Road to Digital Unfreedom: President Xi’s Surveillance State’ (2019) 30(1) Journal of Democracy 53–67, 57 ; Danielle Cave, Fergus Ryan, and Vicky Xiuzhong Xu, ‘Mapping more of China’s Tech Giants: AI and Surveillance’ Australian Strategic Policy Institute (November 28, 2019) ; Dahlia Peterson and Josh Rudolph, ‘Sharper Eyes: Shandong to Xinjiang’ China Digital Times (September 13, 2019) . 103 ibid. 104 See also Nectar Gan, ‘China is Installing Surveillance Cameras Outside People’s ront Doors ... and Sometimes Inside their Homes’ CNN (April 20, 2020) . 105 ‘Visual AI Technology to Shine in 2018, China Leads in Facial Recognition’ Global Times (September 28, 2018) ; ‘AI Helps Find Children 10 Years after They Went Missing’ People’s Daily ( June 19, 2019) . 106 ‘Facial Recognition Reshapes People’s Lives in China Amid Rising Tide of AI’ People’s Daily ( June 12, 2019) . 107 ‘China: Police DNA Database Threatens Privacy’ Human Rights Watch (May 15, 2017) ; Sui-Lee Wee, ‘China Is Collecting DNA From Tens of Millions of Men and Boys, Using U.S. Equipment’ The New York Times ( June 17, 2020) . 108 Minxin Pei, ‘China in 2017: Back to Strongman Rule’ (2018) 58 Asian Survey 21, 26. 109 Eva Pils, ‘The Party and the Law’ in Willy Wo-Lap Lam (ed) Routledge Handbook of the Chinese Communist Party (Routledge 2018) 248–265. 110 The RSDL was stipulated in the 1996 Criminal Procedure Law (CPL), but was significantly revised in the 2012 CPL (Article 73). The CPL was amended again in 2018, and the RSDL remains codified in Article 75 of the 2018 CPL. 111 PRC Supervision Law, Articles 22 and 43. 112 For example, ‘Full Text: White Paper on Judicial Reform in China’ Information Office of the State Council (2012) ; ‘China Focus: Supervision Law Gives Legal Teeth to China’s Graft-Busting Agency’ Xinhua (March 20, 2018) . 113 2018 PRC Criminal Procedural Law, Article 75; 2018 PRC Supervision Law, Articles 22 and 43. 114 2018 PRC Criminal Procedural Law, Articles 75 (3) and 39 (3); Sarah Biddulph, ‘Arbitrary Detention’ in Sarah Biddulph and Joshua Rosenzweig (eds.) Handbook on Human Rights in China (Edward Elgar Publishing 2019) 379. Under the 2018 Supervision Law, which conspicuously omits the rights protection provided under the CPL, individuals under supervision are not entitled to legal counsel or other procedural safeguards under the CPL; Jamie P Horsley, ‘What’s So Controversial about China’s New Anti-Corruption Body?” Brookings (May 30, 2018) . 115 2018 PRC Criminal Procedural Law, Articles 75 (2) and 79; 2018 PRC Supervision Law, Article 44 (1); Biddulph, ibid 379. 116 For an account of the increasingly common, serious human rights violations in China’s justice system and “sensitive cases” involving lawyers and activists, see Yu-Jie Chen, ‘Human Rights in the Chinese Administration of Justice in 2020—Political and Legal System Ideologized; Human Rights Abuses Normalized and Institutionalized’ in Taiwan Foundation for Democracy (ed),

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Communist Regimes China Human Rights Report 2020 (forthcoming); Yu-Jie Chen, ‘Human Rights in the Chinese Administration of Justice—Institutionalized Human Right Abuses Heighten Global Concerns’ in Taiwan Foundation for Democracy (ed), China Human Rights Report 2019 (2020) . 117 See generally Michael Caster M (ed), The People’s Republic of the Disappeared: Stories from inside China’s System for Enforced Disappearances (Safeguard Defenders 2017). 118 Peter Dahlin (ed), Trial by Media: China’s New Show Trials, and the Global Expansion of Chinese Media (Safeguard Defenders 2018). 119 Chunyi Chen, ‘Some Fundamentals Regarding China’s “Government-Designated Lawyers”’ China Change (September 24, 2020) . 120 Chen (forthcoming), see n 116; Chen (2020), see n 116, 101, 104–106; Chen, 2019, see n 116, 105–106. 121 Jerome A Cohen, ‘Law’s Relation to Political Power in China: A Backward Transition’ (2019) 86(1) Social Research: An International Quarterly 231–251. . 122 Taisu Zhang and Tom Ginsburg, ‘China’s Turn toward Law’ (2019) 59 Virginia Journal of International Law 306. 123 300 members were fielded from each of the following four sectors: (1) the industrial, commercial and financial sectors, (2) the professions, (3) labour, social services, religious and other sectors; and (4) members of the Legislative Council, representatives of district-based organisations, Hong Kong deputies to the National People’s Congress, and representatives of Hong Kong members of the National Committee of the Chinese People’s Political Consultative Conference. See ‘Amendment to Annex I to the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China Concerning the Method for the Selection of the Chief Executive of the Hong Kong Special Administrative Region’ (Approved at the Sixteenth Session of the Standing Committee of the Eleventh National People’s Congress on 28 August 2010). 124 Simon Young and Richard Cullen, Electing Hong Kong’s Chief Executive (HKU Press 2010) 79, 91. 125 ‘Annex I: Method for the Selection of the Chief Executive of the Hong Kong Special Administrative Region’ (Adopted at the Third Session of the Seventh National People’s Congress on 4 April 1990, amended, as approved at the Sixteenth Meeting of the Standing Committee of the Eleventh National People’s Congress on 28 August 2010, and amended at the Twenty-Seventh Meeting of the Standing Committee of the Thirteenth National People’s Congress on 30 March 2021) . 126 District Councillors advise the government on municipal affairs and undertake community projects. In the 2019 District Council elections, pro-democracy councillors won in a landslide and captured 17 out of 18 District Councils in Hong Kong. But for the 2021 electoral change, this win would have given the pro-democracy bloc 117 seats in the 1200-member Chief Executive Election Committee. 127 See Annex II of the Hong Kong Basic Law, as amended in 2010 but prior to the 2021 revamp. 128 ibid. 129 For a critique of the FC system, see Simon Young and Anthony Law, ‘Privileged to Vote: Inequalities and Anomalies of the FC System’ in Christine Loh (ed), Functional Constituencies: A Unique Feature of the Hong Kong Legislative Council (Hong Kong University Press 2007). 130 Prior to the 2021 electoral reform, there were 28 FCs in the Legislative Council. Each FC was allowed to return one FC legislator, except the Labour FC, which was permitted to return three members, and the District Council FC (2nd), which was permitted to return five members. 131 ‘Annex II: Method for the Formation of the Legislative Council of the Hong Kong Special Administrative Region and Its Voting Procedures’ (Adopted at the Third Session of the Seventh National People’s Congress on 4 April 1990, amended, as recorded at the Sixteenth Meeting of the Standing Committee of the Eleventh National People’s Congress on 28 August 2010, and amended at the Twenty-Seventh Meeting of the Standing Committee of the Thirteenth National People’s Congress on 30 March 2021) . 132 ‘Hong Kong: China Limits Parliament to “Patriots”’ BBC News (March 30, 2021) . 133 The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region 2020.

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Po Jen Yap and Chen Yu-Jie 134 Article 23 of the Basic Law reads: The Hong Kong Special Administrative Region shall enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People’s Government, or theft of state secrets, to prohibit foreign political organizations or bodies from conducting political activities in the Region, and to prohibit political organizations or bodies of the Region from establishing ties with foreign political organizations or bodies. 135 Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region, Articles 20 and 21. 136 ibid Article 22(4). 137 ibid Article 29(4). 138 ibid Article 24. 139 ibid Article 38. 140 ibid Article 50. 141 ibid Article 60. 142 ibid Articles 16 and 18. 143 ibid Article 40. 144 ibid Articles 4, 5, and 41. For example, the right to trial by jury can be suspended if the Secretary for Justice so decides in individual cases. See ibid Article 46. 145 ibid Article 46. 146 ibid Article 41. 147 ibid Article 44. 148 ibid Article 55. 149 ibid Article 65. 150 Austin Ramzy and Tiffany May, ‘Hong Kong Charges 47 Democracy Supporters with Violating Security Law’ The New York Times (February 28, 2021) . 151 For example, Jinping Xi (習近平) ‘Jiaqiang Dang Dui Quanmian Yifa Zhiguo de Lingdao’ (加強黨對全面依法治國的領導) (Enhancing the Party’s Leadership over Comprehensive Lawbased Governance.) Qiushi (求是). (February 15, 2019) . 152 1982 Chinese constitution, Article 36. 153 ibid Article 35. 154 Francis Fukuyama, The End of History and the Last Man (Free Press 1992). 155 Daniel Ziblatt and Steven Levitsky, How Democracies Die: What History Reveals about our Future (Penguin 2018). 156 Ivan Krastev and Stephen Holmes, The Light that Failed: A Reckoning (Penguin 2019) 136. 157 Yap, see n 1.

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3 LIBERAL DEMOCRACIES Chien-Chih Lin

3.1 Introduction According to the Economist, 2020 was a ‘very bad year’ for democracy.1 Many states suffered not only from the COVID-19 pandemic but also experienced coup d’états, populist uprisings, and other forms of democratic erosion. Asian countries were not exempt from this unrest. For example, China postponed an election in Hong Kong in the name of pandemic control and arrested many activists, including a media entrepreneur, cause lawyers, university professors, and members of opposition parties. The Myanmar military has overthrown the popularly elected government, detained a Nobel Prize laureate, and slaughtered hundreds of peaceful protestors. In the Caucasus, armed conflict between Azerbaijan and Armenia led to dozens of deaths, many of which involved civilians. This grim scenario leads to the puzzling question of why a few Asian countries have remained resilient against democratic regression while others have not. Before discussing the democracies in Asia, we need to have a basic idea of what counts as a democracy, which is a protean concept difficult to define. Notwithstanding its various definitions, the concept of democracy inevitably includes free and fair elections in which the rotation of power between competing political parties is realistically possible. Moreover, a genuinely free and fair election is predicated on the protection of certain political rights, such as the freedom of expression and the freedom of association. Of course, states can lie on a spectrum between a full democracy and an autocracy. In Asia, only 3 (out of nearly 50) countries are ranked ‘full democracies’ by the Economist: Japan, South Korea, and Taiwan.2 Although the Freedom House points out that ‘2020 was the 15th consecutive year of decline in global freedom,’ the three Asian countries were ranked ‘Free,’ as opposed to ‘Partly Free’ or ‘Not Free.’3 Perhaps more importantly, according to the World Values Survey,4 most people in all three countries believe that democracy is still the best game in town, even though the percentages vary across countries and fluctuate over time. This belief is crucial because it is a critical foundation for sustaining a democracy.5 In this chapter, we address the democratic vibrancy in the three countries by identifying and analyzing the factors that have undergirded these democracies during this wave of global democratic backsliding.

DOI: 10.4324/9781003109402-4

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3.2  Liberal democracies in Asia Most countries in Asia have remained autocratic. Some political scientists maintain that, in East Asia, democracy may be in tension with the dominant cultural legacy originating from Confucian thought, which emphasizes social hierarchy and harmony, duties over rights, and collectivism.6 Furthermore, some Asian countries have proved that economic prosperity does not necessarily lead to or require political liberalization. Singapore remains semi-authoritarian despite its impressive decades-long economic development, and China’s substantial infringement on human rights runs parallel to its spectacular economic achievements. The oncepopular ‘Asian values’ discourse vividly epitomizes the putative argument that (Western) democracy does not suit Asia.7 Japan, South Korea, and Taiwan also share some specific conditions that could seemingly obstruct the maturation of their democracy. To wit, nostalgia for authoritarian periods has haunted these three Asian democracies.8 This authoritarian nostalgia rears its ugly head when ‘citizens compare life under democracy with either the growth-oriented authoritarianism of the recent past or with their prosperous nondemocratic neighbors of the present.’9 This is patently evident in South Korea and in Taiwan where their economic transformations occurred during autocratic rule and whose recent economic development has encountered varying degrees of stagnation. Worse still, the corruption scandals of presidents that plague both South Korea and Taiwan have cast further doubt on the legitimacy and desirability of having a democracy. Nevertheless, we should not overstate the impact of these factors. If they had been dominant, these three countries would not have become consolidated democracies. Compared with other Asian countries, Japan, South Korea, and Taiwan all possess conditions that allow democracy to take root and flourish. Domestically, all three countries experienced exponential economic growth during the 1960s and 1970s—an achievement that created sizeable well-educated middle classes. Internationally, the United States has spurred and supported democracy in all three countries.10 And the rise of China has imposed a clear and foreboding counter-example for all three countries to avoid. All three countries have held elections regularly and impartially and have gone through a party turnover at least twice, an indicator of democratic consolidation.11 Obviously, there are also differences between the three democracies. For starters, the practice of democracy in Japan is quite different from that in South Korea and in Taiwan. Japan is the oldest democracy in Asia, and democratized after the Second World War, while South Korea and Taiwan democratized over the last quarter of the 20th century. Both South Korea and Taiwan adopted presidentialism in essence, while Japan adopted a parliamentary system. Both South Korea and Taiwan are two-party systems, while the Liberal Democratic Party (LDP) is the dominant party in Japan. Furthermore, there are many nuanced differences between South Korea and Taiwan regarding their democratic development. Consequently, in the following sections, we will discuss the three Asian democracies by focusing on two crucial elements that sustain a robust democracy: fair elections and the protection of the freedom of expression.12

3.3 Japan 3.3.1  Elections and the electoral system Japan is East Asia’s first stable democracy. It became a nascent democracy after the end of the American occupation in 1952. Nonetheless, party alternation is much less frequent in Japan 32

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than in South Korea and Taiwan. The LDP, the longtime ruling party in Japan since 1955, has lost power only twice: it lost control of the central government from 1993 to 1994 because of a factional split,13 and from 2009 to 2012 to the Democratic Party of Japan, which is the main opposition party in Japan. Unlike South Korea and Taiwan, Japan adopts a parliamentary system where the premier helms the country. Notwithstanding the LDP’s nearly perpetual dominance, few would question the genuineness of the multiparty system, its free elections, and the freedom of expression in Japan. Under a bicameral system, the Diet (the legislature in Japan) is divided into two chambers: the House of Councillors and the House of Representatives. In terms of electing the members for the House of Representatives, Japan adopted the single nontransferable vote (SNTV) system14 before 1993, a system that was widely associated with political corruption in the country.15 Currently, the House of Representatives is composed of 465 members, with 289 elected from single-member districts and 176 from proportionally represented districts, all for a four-year term unless the House of Representatives is dissolved.16 Citizens have two ballots, one for their preferred candidate in a single-member district and the other for their preferred political party.17 By contrast, the House of Councillors comprises 248 members: 100 of them are elected by Japanese voters nationwide according to proportional representation, and the remaining 148 are elected by voters in Japan’s 47 prefectures. All Councillors serve a six-year term, and election for half the members takes place every three years. Again, voters can cast two votes: one for a candidate in the voters’ local district and the other for their preferred party or candidate listed by each political party in the proportional representation system. This single-member district system is not without controversy—this electoral system allows candidates to be elected with only relative majority of votes, and as each district can only elect one candidate, it perpetuates the monopoly of political power held by the LDP, which has more resources.18 Still, the (Supreme Court of Japan) JSC has upheld the constitutionality of this electoral system.19 Japan enforces a plethora of restrictive campaign regulations, many of which pre-existed the promulgation of the operative Constitution of Japan (1947). That the Supreme Court of Japan ( JSC) has upheld most of these regulations20 should come as no surprise, given that the JSC is famous (or notorious) for its deference to the political branches. In fact, since its inauguration in 1947, the JSC has ruled against the government in only ten cases. However, of these ten cases, three involved malapportionment and another three involved equality of voting rights.21 The nature of these decisions underscores the centrality of electoral rights to the Japanese.

3.3.2  The right to vote and the freedom of expression As a result of its rapid urbanization, Tokyo is the most crowded city in the world.22 The emergence of megacities has created many constitutional problems around the world.23 Among these problems, malapportionment was particularly serious in Japan before 1994. In fact, before 1994, the disparity between the most populous constituencies and the least populous ones worsened so dramatically that the typically docile JSC intervened in the matter. Intriguingly, the JSC seemly drew a distinction between elections for the House of Representatives and elections for the House of Councillors. Consider, for example, the 1972 elections for the House of Representatives. By that time, more than eight years had passed since the Chiba Prefecture had been last reapportioned. During that time, the difference between the number of people in the prefecture’s most populated areas and the number of people in the prefecture’s least populated areas had grown 33

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much starker, eventually reaching a ratio of 5 to 1. In Kurokawa v. Chiba Prefecture Election Commission (1976), the JSC agreed that absolute equality was impossible,24 but nonetheless declared the apportionment rules used in the 1972 election to be unconstitutional because the ratio of 5 to 1 had surpassed any reasonably acceptable level.25 After 1994, when the government institutionally reformed the electoral system, malapportionment shrank considerably, eventually reaching a 2.3-to-1 ratio, which the JSC upheld as constitutional in 1999.26 In elections for the House of Councillors, however, the JSC seemed to give the political branches more leeway, partly because each prefecture had to be represented by at least one seat.27 In 1983, for example, the Supreme Court ruled that a deviation of 5.3:1 was constitutionally tolerable.28 However, in 1996, when the JSC considered a case involving a ratio of 6.6 to 1, the court held this to be unconstitutional.29 In 2005, the JSC also nullified a law depriving overseas Japanese of their full right to vote, which is enshrined in Article 15 of the Constitution of Japan.30 The central problem was that the Public Offices Election Act provided that only people registered as eligible voters could vote. Overseas Japanese, being unable to register in Japan, were not eligible to vote. After the amendment of the Act in 1998, overseas Japanese could vote, but only for candidates in those proportional representation elections. That is, the voters could not vote either in single-member district elections involving candidates for the House of Representatives or in prefecture-district elections involving candidates for the House of Councillors.31 Notwithstanding its surprising activism in the fields of apportionment and the right to vote, the JSC showed no appetite for ruling against the government regarding the freedom of expression. Specifically, Article 21 of the constitution expressly guarantees that ‘Freedom of assembly and association as well as speech, press and all other forms of expression are guaranteed. No censorship shall be maintained.’32 Nonetheless, organizers of outdoor assemblies and demonstrations must apply for a government permit in advance. Although the government does not often deny the applications, this requirement constitutes prior restraint imposed on the freedom of assembly. Still, the JSC endorsed the constitutionality of prior restraint even in cases where the proposed assembly poses no clear and present danger.33 The JSC has also upheld similar restrictions on public meetings.34 In short, its stance is that assemblies and demonstrations are capable of turning into riots and thus can be prohibited so long as there is any possibility that public safety may be jeopardized.35 Regarding freedom of the press, scholars have argued that this liberty weakened during Prime Minister Shinzo Abe’s administration.36 One major reason was the Diet’s passage, in 2014, of the Act on the Protection of Specially Designated Secrets, which authorizes the government to punish people who, among other things, try to acquire or reveal classified information.37 Although the government has rarely punished journalists under this Act, its very existence inevitably has a chilling and self-censoring effect on the press. Indeed, both the United Nations Special Rapporteur and the Freedom House in its 2020 country report expressed similar concerns about this Act.38

3.4  Taiwan (Republic of China, ROC) 3.4.1  Elections and electoral systems After toppling the imperial Qing Empire in China in 1912, the Nationalist Party (Kuomintang, KMT) suffered defeat at the hands of the Chinese Communist Party (CCP) in 1949 and retreated to the island of Taiwan. On the one hand, the KMT imposed martial law on the 34

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Taiwanese people, fearing the infiltration and invasion of CCP forces. On the other hand, to strengthen its legitimacy in Taiwan after its military defeat in China, the KMT held local elections in Taiwan beginning in 195039 and national elections beginning in 1969.40 These elections, however, were not fair in practice as the KMT still firmly controlled the state apparatus. Therefore, Taiwan did not begin genuine democratic reforms until July 15, 1987, the day when martial law was lifted along with the ban on political parties. Subsequently, on January 1, 1988, the ban on newspapers was also lifted. Many factors explain why the KMT ‘voluntarily’ pushed for political liberation. One pivotal factor was the United States’ severance of diplomatic ties with Taiwan in 1979. Having lost not only these formal ties with its most important ally, but also international recognition as the only legitimate Chinese government, the KMT had no choice but to further undergird its domestic legitimacy by hastening political reform. Nonetheless, the Taiwanese legislature, which comprised the National Assembly, the Legislative Yuan, and the Control Yuan, consisted mostly of representatives who had been elected in China in 1948; once relocated in Taiwan, the KMT had suspended comprehensive national elections. Citing a national catastrophe, the Taiwan Constitutional Court (TCC) endorsed the suspension of elections in Interpretation No. 31 (1954).41 With this decision, democracy in Taiwan was postponed for decades. Disappointed with the seemingly indefinite suspension of comprehensive national elections, Taiwanese university students organized and led the Wild Lily Movement beginning in March 1990. They demanded constitutional change and democratic reform. Then President Lee Teng-hui, a reform-minded KMT member, met with student representatives and promised to hold a national conference with a view to fulfilling the movement’s demands. Roughly around the same time, the TCC promulgated a landmark decision, Interpretation No. 261 (1990),42 in which the court essentially overruled the notorious Interpretation No. 31 (1954). Consequently, Taiwan in 1992 held its first comprehensive, politically transformative national election. Since then, legislative elections have been held regularly, though the KMT and its allies consistently succeeded in controlling a majority of the legislative seats until 2016. In that year, the KMT’s longtime opposition party, the Democratic Progressive Party (DPP), assumed control of the legislature and continued to hold a majority of the legislative seats following the 2020 election. Power changed hands in the executive branch more quickly. The first direct presidential election in 1996 was won by the KMT incumbent Lee Teng-hui, but, in 2000, the DPP presidential candidate, Chen Shui-bian, assumed the office, thus completing the first-party turnover in the history of Taiwan. Garnering less than 40 percent of the votes, Chen’s victory was attributable to the intraparty struggles and splits besetting the KMT and to Taiwan’s firstpast-the-post electoral system. Four years later, Chen was reelected by a razor-thin margin, a victory helped by a non-life-threatening gunshot wound he suffered one day before the election day. The murky circumstances surrounding this event, along with concerns about electoral improprieties, led the KMT to file several lawsuits requesting a recount and an invalidation of the presidential election. Meanwhile, the KMT-controlled legislature passed a special Act that tried to open an investigation into the shooting, which, according to many KMT members, Chen himself had orchestrated in order to gain sympathy votes in a tight presidential race. However, the TCC struck down the special Act, as it was clearly violative of both the separation of powers and rights protection.43 Following a landslide electoral victory, Ma Ying-jeou in 2008 assumed the presidency from Chen, whose political star had been tarnished by accusations of corruption. Ma was reelected in 2012. In 2014, during his second term, the Sunflower Movement broke out in opposition 35

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to his pro-China policies in general and to the Cross-Strait Service Trade Agreement in particular. The movement reflected Taiwanese people’s concern that Ma’s cozying up to China would undermine democracy in Taiwan. Against this backdrop, the victory of DPP President Tsai Ing-wen in the 2016 presidential election marked Taiwan’s third-party alternation. In addition to these electoral outcomes, Taiwanese democracy gained strength through changes made to the legislative electoral system. Prior to 2005, legislators were elected by two methods. First, there was the previously mentioned SNTV system, which regulated elections for geographical-district legislators and indigenous legislators. And the second was the use of proportional representation to elect legislators-at-large. Specifically, each elector had only one ballot, which could be cast in a geographical-district election involving multiple-member legislative seats, with candidates who received the highest number of votes winning the election. In addition to determining the winners in the multi-member districts, these votes would be aggregated and used to determine which candidates would assume the legislatorat-large seats in proportion to the votes that each political party obtained in the district elections. This rather complicated system was plagued with many problems, one of which was its potential to breed political polarization because candidates could win a district election without garnering the most votes. In other words, candidates needed only to appeal to a certain segment of society, if sufficiently large, would enable the candidates to gain enough votes to be elected. A troubling outcome of this system was that candidates had no strong incentive to be moderate but had considerable incentive to seek the support of radicals. To deter the increasingly prevalent political polarization gripping Taiwanese society, the National Assembly changed the SNTV system in 2005 by passing Article 4(2) of the constitutional amendments.44 Since then, and with only the exception of seats reserved for indigenous people, a mixed-member majoritarian (MMM) system has determined the outcome of legislative seats. Under the MMM system, (1) each voter has one vote for their preferred candidate in single-member geographical districts, in which only the candidate who gets the most votes assumes office, and (2) each voter has a second vote, known as the party vote, which, when aggregated, determines the share of legislator-at-large seats that go to each political party so long as it receives at least 5 percent (roughly 600,000) of all the party votes cast in the entire national election. The purpose of the MMM system was to consolidate democracy on the island by reducing political polarization.45 Nevertheless, a central problem with the MMM system is the discrepancy between the number of legislative seats a political party garners and the proportion of votes cast in its favor. The 5-percent threshold exacerbates this problem because it automatically excludes those ballots that went to fringe parties that failed to meet this minimum threshold. Consequently, small parties may not gain any seats in the legislature, even if they receive hundreds of thousands of votes. Two small political parties that failed to cross the 5-percent threshold in the 2008 legislative elections thus challenged the constitutionality of the constitutional amendments. They contended that this electoral system distorted popular will on the grounds that a large number of validly cast votes were ‘wasted.’ The TCC upheld the constitutionality of the disputed 5-percent threshold. Although the 5-percent threshold for political parties … may result in a certain discrepancy between the percentages of ballots received by, and seats allotted to, political parties and create an appearance of unequal ballots, its purpose is to ensure that the efficiency of legislative operations and the smooth interaction between the executive branch and the legislature are not impeded by a clustering of small parties and fragmentation of the political party system. In addition, it may be observed from the election results of party-list proportional representative elections in recent years that the possibility of winning elections for those political 36

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parties that are not the two main parties has not been completely ruled out. As a result, the provision concerning the threshold … does not hinder the realization of the principle of the democratic republic and the principle of popular sovereignty.46

3.4.2  The right to vote and the freedom of expression In the same decision in which the TCC declared the 5-percent minimum threshold to be constitutional, the TCC also addressed the issue of the right to vote, which is enshrined in Article 17 of the ROC Constitution.47 Specifically, the voting-power disparity among residents of differently populated counties has become increasingly stark in Taiwan. For example, Yilan County has a population of about 450,000 residents, while Lienchiang County (Matsu Islands) has a population of about 12,000 residents, yet each county can elect 1 legislator. Although (re)apportionment is constitutionally important, the TCC avoided ruling on this issue on procedural grounds, arguing that the two small parties lacked standing because one party did not participate in the election of single-member geographical districts and the other did not exhaust all available remedies, a precondition to petition the TCC. The TCC has also facilitated democratic participation by removing several systemic barriers to the citizenry’s right to run for offices. In 1992, for example, the TCC had to decide whether the government could impose educational qualifications on people seeking to stand for election. Article 32(1) of the Public Service Election and Recall Law stipulated that one should have certain levels of academic qualifications before running for different levels of government office. These requirements were aimed at promoting the efficacy and quality of public officials in all levels of government. Despite upholding the impugned requirements in Interpretation No. 290 (1992),48 the TCC also advised that legislators should regularly review the qualification requirements because, with mass education, voters could be left to decide on their own who were the most capable candidates. From this perspective, the government’s requirement that candidates should possess certain levels of education would be unnecessary. In 1994, two years after the TCC’s ruling, the Taiwanese legislature followed this judicial advice and repealed the disputed restrictions. Another example involving the right of election is Interpretation No. 340 (1994),49 in which the TCC struck down discriminatory deposit requirements for independent candidates without party affiliations. Article 38-II of the Public Officials Election and Recall Act halved the election-deposit requirement, which varies depending on the level of elections, for a party-recommended candidate, but the election deposit of independent candidates remained unchanged. This requirement would deter ordinary people from seeking office. The TCC declared the requirement unconstitutional and void on the grounds that it unreasonably differentiated between candidates with and without party affiliations, thereby violating the constitution’s equal-protection clause. Moreover, the TCC found that this requirement was detrimental to democratic development because it would encourage the unnecessary proliferation of smaller political parties.50 Certainly, the mere right to participate in elections is not sufficient for democracy to flourish. The freedom of expression must also be protected. This freedom of expression includes not only speeches but also the right of associations and assemblies. In Taiwan, a public assembly is regulated under the Assembly and Parade Act. Article 8(1) of the Act stipulates that ‘outdoor assemblies and parades’ shall not be held without a permission granted by the competent authority in advance, except in some prescribed scenarios.51 This regulation undoubtedly constitutes a prior restraint on the freedom of expression. Although Article 11 of the Act provides that the relevant authorities 37

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in principle should approve ordinary applications for ‘outdoor assemblies and parades,’52 the Article also stipulates that authorities should reject an application if, among other things, the notified assembly or parade advocates for secession or communism.53 In Interpretation No. 445 (1998),54 the TCC had to consider the constitutionality of this prior restraint in general and the Act’s prohibition against speeches advocating secession or communism in particular. In its ruling, the TCC first stated that the freedom of assembly is one of the most important basic rights for the implementation of democratic politics. The court therefore struck down Article 11, as it unconstitutionally prohibited assemblies simply because they advocated secession or communism, regardless of whether there was any clear and present danger posed by the assemblies. Although the TCC in Interpretation No. 445 (1998) nullified the Assembly and Parade Act’s prohibition on assemblies that posed no clear and present danger, the TCC’s decision did not ban prior restraints on the freedom of assembly. Several years later, in Interpretation No. 718 (2014), the TCC refined its stance, opining that prior approval required by the aforementioned Article 8(1) of the Assembly and Parade Act was unconstitutional if it did not exclude urgent and incidental assemblies and parades from its regulatory scope. By the same token, in Interpretation No. 644 (2008), the TCC also ruled that the government could not prohibit the establishment and registration of civil associations merely because the associations advocated for secession or communism.55 In sum, democracy has been firmly entrenched in Taiwan after decades of political liberalization and transformation. According to the Freedom House’s latest annual report, Taiwan has fully embraced the freedom of expression and freedom of assembly, and the country’s electoral laws are fair and implemented impartially.56 Admittedly, the situation is far from perfect, but the timely intervention of the TCC in critical moments has, on balance, helped consolidate democratic development in Taiwan.

3.5  South Korea 3.5.1  Elections and the electoral system South Korea did not become a democracy until 1987, when the military regime collapsed in the face of widespread political dissent, including vocal student movements.57 Since the country’s embrace of democracy, political power in South Korea has been highly fragmented because political parties are continuously splitting, forming alliances, or merging as their party bosses enter and then exit the political stage.58 Political competition between and within the political parties was extremely intense, especially as the president is limited to a single five-year term, a restriction that is uncommon in democracies around the globe. When the direct presidential election was held in 1987, Roh Tae-woo, who, despite having been a military colleague of the former dictator Chun Doo-hwan, secured the presidency with less than 40 percent of the votes, thanks to a split in the opposition. Real political turnover did not take place until 1997 when the prominent dissident Kim Dae-jung won the presidential election. In 2002, Roh Moo-hyun, a former minister in the Kim administration, won the presidential election. Partly because Roh Moo-hyun was embroiled in corruption scandals, the conservative Lee Myung-bak won the 2007 presidential election and was succeeded by his party comrade Park Geun-hye in 2012. After their presidencies ended, both Lee and Park, however, were convicted of corruption and sentenced to 17 years’ and 20 years’ imprisonment, respectively. Moon Jae-in, Roh Moo-hyun’s former chief presidential secretary, assumed the office of the presidency in 2017. 38

Liberal democracies

South Korea’s intense political competition is also reflected in its legislative elections. Party alternation takes place so frequently that the presidents’ parties often do not control a majority of the seats in the National Assembly. In the 1988 legislative elections, Roh Tae-woo’s party garnered the lion’s share of the seats but did not secure an absolute majority. Even after his party merged with smaller parties, the coalition in the 1992 legislative elections secured only 149 of the 299 seats. Likewise, when President Kim Dae-jung was sworn in, his party lacked a majority in the National Assembly, and Kim had to govern by forming a coalition with smaller parties.59 When Roh Moo-hyun assumed the presidency in 2003, his party was the second largest in the National Assembly and gradually became weaker as a result of factional struggles within the party. Not until the 2004 legislative elections did Roh Moo-hyun’s party finally secure a slim majority. After Lee Myung-bak won the presidency in 2007, his party gained a majority of the seats in the 2008 and 2012 legislative elections. In 2016, Park Geun-hye’s party lost the legislative elections and her corruption scandal led to a landslide victory for Moon Jae-in’s party in the 2020 National Assembly elections. National Assembly seats in South Korea are constituted by a mixed-member proportional representation system, which comprises single-member electoral districts and party seats. Party seats in the National Assembly were previously allocated to political parties in proportion to the votes their candidates won in the district seats. Before 2004, Article 146(2) of the Public Official Election Act stated that South Korean voters had only one vote.60 This vote would determine both the winners of district seats and, after aggregation, the allocation of the party seats proportional to the sum of votes obtained by all candidates and categorized according to party affiliation. But this system was declared unconstitutional by the Constitutional Court of Korea (KCC) in 2001 for three reasons: first, the system was ‘inherently prejudiced in favor of the existing major parties by allocating seats that exceed the actual support of them’61; second, voters could not directly affect the outcome of the party seats; and third, those votes that were cast in favor of independent candidates were not counted for the allocation of party seats, thereby violating the principle of equal protection.62 In the same decision, moreover, the KCC voided the deposit requirement for running for legislative seats because the amount (20 million won, roughly US$20,000) was excessively high. The KCC argued that this requirement unfairly excluded from legislative offices many people who were otherwise fit to run for and hold political office.63 To ensure that fringe parties have real chances to compete in the political arena, the KCC in 2014 invalidated Article 44 of the Political Parties Act, which had allowed authorities to cancel the registration of political parties when those parties had garnered less than 2 percent of the total number of votes cast in a legislative election.64 The KCC agreed that the impugned Article of the Political Parties Act could legitimately de-register political parties that did not sincerely intend to participate in political competition. But the KCC decided that the government’s pursuit of this legitimate goal should not result in the cancellation of a political party simply because the party incurred significant losses in a single legislative election, regardless of the party’s past successes in other national or local elections. Article 44’s unforgiving approach to party politics ran a very real risk of muffling the political voice of small parties.65

3.5.2  The right to vote and the freedom of expression Another impediment to an elector’s right to a free vote is gerrymandering, which will unlikely be corrected by self-serving legislators themselves. In 1995, the KCC ruled that population disparities between the most and the least populous districts should not exceed a 4-to-1 ratio.66 39

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This was the first decision, but not the last, in which the KCC struck down a districting plan that violated the constitution’s equal-protection clause. In 2001, the KCC addressed the constitutionality of the National Assembly election redistricting plan because of population disparities between electoral districts. On the one hand, the KCC admitted that a certain degree of population disparity in electoral districts was permissible and fell within the discretion of the legislative branch. On the other hand, gerrymandering that violated the equality of each vote constituted arbitrary re-zoning and was unconstitutional. As for the permissible baseline, the KCC decided that the maximum ratio between the most populous district and the least populous one should be 3 to 1.67 Any deviance beyond this ratio would be unconstitutional. Indeed, even this 3-to-1 ratio was not completely satisfying and was later challenged again in court. In 2014, the KCC overruled the abovementioned decision and concluded that a 2-to-1 population ratio is more desirable.68 Although the KCC found no evidence that the national legislature, through its demarcation of electoral districts, had intended to discriminate against electors for partisan gains, the Court decided that the demarcation infringed upon the right to vote and violated the equality-of-votes principle because the vote of one person was given three times more value than the vote of another. The KCC has also emphasized that the government could not just extinguish the people’s right to vote, even when the persons in question were convicted criminals. In 2014, the KCC deliberated over whether the government could constitutionally deprive prisoners of the right to vote. Article 18(1), item 1 of the Public Official Election Act,69 stipulated that the government can disenfranchise certain individuals sentenced to imprisonment so long as the sentence had not been served. The scope of the impugned Article was broad, ranging from people found guilty of minor infractions to people found guilty of felonies. The Article also applied uniformly to prisoners and probationers with a suspended sentence. Concluding that the scope of this disenfranchisement was overly broad, the KCC first argued that ‘any legislation restrictive of the right to vote cannot be justified directly by Article 24 of the constitution, but can only be justified according to Article 37 Section 2 of the constitution.’ 70 While the KCC agreed that sanctioning anti-social behavior was legitimate, the disputed law was too restrictive and sweeping in its regulatory scope.71 Hence, the KCC declared the provision incompatible with the constitution. The KCC also endeavored to bolster the freedom of expression, which is the bedrock of genuine political competition. Specifically, the KCC invalidated a raft of laws that overly restricted the right to assemble. For example, Article 11(1) of the Assembly and Demonstration Act72 stipulated that any assembly or demonstration should be prohibited so long as it was held within 100 meters of certain official buildings, including but not limited to the National Assembly, courts, and diplomatic institutions. A major problem with this Article is that people working in these buildings are often the target of large protests. Therefore the Article’s 100-meter ban—rather than serve as a content-neutral limitation regarding time, place, and manner of a speech— also impacted the content of permissible free speech. In 2003, the KCC declared that Article 11(1) of the Assembly and Demonstration Act was unconstitutional insomuch as it prohibited assemblies and demonstrations (henceforth, simply ‘assemblies’) within 100 meters of diplomatic institutions. But the KCC emphasized that the freedom of assembly is limited to a nonviolent assembly. While the legal interests of a third party, such as the safety of diplomats and their unencumbered access to diplomatic institutions, were legitimate state interests,73 the impugned provision failed to survive judicial review because it did not provide for exceptions in which certain assemblies would be permissible near diplomatic institutions. According to the KCC, the government should tolerate assemblies when they refrain from targeting 40

Liberal democracies

diplomatic institutions, e.g. when they are small in size, and when they occur on holidays because the diplomats and staff would be off duty.74 Notably, Article 11(1) also prohibited any assembly within 100 meters of the National Assembly, courts, and the official residence of the prime minister. In a series of decisions, the KCC dismantled all these restrictions. Specifically, in May 2018, the KCC held unconstitutional the provision that prohibited assemblies near the National Assembly. The KCC maintained that, while a complete ban of assemblies around the National Assembly might protect its functioning, assemblies ‘may help the National Assembly stay more true to its constitutional role … of gathering public consensus.’ 75 Hence, assemblies near the National Assembly should be tolerated so long as they cause neither ‘potential physical duress or harm against National Assembly members’ nor ‘the risk of threats against … National Assembly facilities.’76 An overarching ban, the KCC concluded, went beyond the scope of least restriction and did not conform to the constitution. Similarly, in June 2018, the KCC declared unconstitutional Article 11(1)’s prohibition of assemblies within 100 meters of the prime minister’s residence.77 The KCC reasoned that the Article’s legislative purpose of ensuring the function and peace of the prime minister’s residence was justifiable given the role of the prime minister, but that the ban was indiscriminate and excessively restrictive insofar as it prohibited assemblies of small sizes. In July 2018, the Article’s prohibition of assemblies within 100 meters of all levels of courts was held unconstitutional by the KCC, as well. To the extent that assemblies do not undermine judicial independence or affect an ongoing trial, they should be tolerated. In fact, the KCC opined that many protests near courthouses target neither specific judges nor specific cases.78

3.6 Conclusion Although Japan, South Korea, and Taiwan are generally regarded as stable liberal democracies in Asia, they still face political problems, such as malapportionment, excessive deposit requirements, and restrictions on the right to assemble and the right to vote. Moreover, in all three countries, some corrupt politicians have undermined people’s confidence in democracy, particularly in South Korea and Taiwan, where their presidents were found guilty of corruption. South Korea and Taiwan are even more similar in terms of their democratic development. In these two countries, political competition is more intense and party turnover in the executive and legislative branches has become routine. Their constitutional courts are even more active, and they play an indispensable role in consolidating the country’s democracy. These accomplishments of the courts in Japan, South Korea, and Taiwan have proven that their courts are firmly committed to enhancing the overall inclusiveness and responsiveness of the constitutional democracy. The principles of democracy are now enshrined in the constitutions and practiced in the everyday life of these three countries.

Notes 1 David Stasavage, The Decline and Rise of Democracy: A Global History From Antiquity to Today (Princeton University Press 2020) 256–276. 2 The Economist Intelligence Unit, ‘Democracy Index 2020: In Sickness and in Health?’ (The Economist, 2021), available at https://www.eiu.com/n/campaigns/democracy-index-2020/#mktoForm_anchor, accessed 16 June 2021. 3 Freedom House, ‘Global Freedom Status’ (Freedom House, 2021), available at https://freedomhouse. org/explore-the-map?type=fiw&year=2021, accessed 16 June 2021. Israel and Mongolia are another two Asian countries that are ranked Free.

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Chien-Chih Lin 4 World Values Survey, ‘World Values Survey Wave 7 (2017–2020)’ (World Values Survey, 2021), available at https://www.worldvaluessurvey.org/WVSDocumentationWV7.jsp?f bclid=IwAR2n0Nf X7 Pc5M6_3c49LCH5cjrNTyB6cVZrrnixvNf TPJVrcP3xkWz-jX2o, accessed 16 June 2021. 5 Larry Diamond, Ill Winds: Saving Democracy from Russian Rage, Chinese Ambition, and American Complacency (Penguin Press 2019) 16. 6 Lucian W. Pye, Asian Power and Politics: The Cultural Dimensions of Authority (Belknap Press 1985) 55–89. But see Sungmoon Kim, Confucian democracy in East Asia: Theory and Practice (CUP 2014) 4–11. 7 For more discussion, see Larry Diamonds, The Spirit of Democracy: The struggle to Build Free Societies Throughout the World (Times Books 2008) 208–211. 8 Yu-tzung Chang, Yun-han Chu, and Chong-Min Park, ‘Authoritarian Nostalgia in Asia’ in Larry Diamond and Marc F. Plattner (eds), How People View Democracy ( Johns Hopkins University Press 2008) 74; Yun-han Chu, Larry Diamond, Andrew J. Nathan, and Doh Chull Shin, ‘Introduction: Comparative Perspectives on Democratic Legitimacy in East Asia’ in Yun-han Chu, Larry Diamond, Andrew J. Nathan, and Doh Chull Shin (eds), How East Asians View Democracy (CUP 2008) 1. 9 Yu-tzung Chang, Yun-han Zhu, and Chong-Min Park, ‘Authoritarian Nostalgia in Asia’ (2007) 18 J Democr 66, 78. 10 Diamond (n 8) 48–49. 11 Samuel P. Huntington, The Third Waves: Democratization in the Late Twentieth Century (University of Oklahoma Press 1991) 266–267. 12 Tom Ginsburg and Aziz Z. Huq, How to Save a Constitutional Democracy (The University of Chicago Press 2018) 10–12. Certainly, the tendency to equate democracies with elections is open to interpretation. See Hélène Landemore, Open Democracy: Reinventing Popular Rule for the Twenty-First Century (Princeton University Press 2020). 13 Ronald J. Hrebenar and Mayumi Itoh, ‘Japan’s Changing Party System’ in Ronald J. Hrebenar and Akira Nakamura (eds), Party Politics in Japan: Political Chaos and Stalemate in the Twenty-First Century (Routledge 2009) 1, 2. 14 Shigenori Matsui, The Constitution of Japan: A Contextual Analysis (Hart Publishing 2011) 49. 15 Ian Neary, The State and Politics in Japan (2nd edition, Polity Press 2019) 105. 16 Adam P. Liff and Ko Maeda, ‘Electoral Incentives, Policy Compromise, and Coalition Durability: Japan’s LDP-Komeito Government in a Mixed Electoral System’ (2019) 20 Japan J Pol Sci 53, 60. 17 Ray Christensen, ‘The Rules of the Election Game in Japan’ in Ronald J. Hrebenar and Akira Nakamura (eds), Party Politics in Japan: Political Chaos and Stalemate in the Twenty-First Century (Routledge 2015) 22, 35. 18 Matsui (n 14) 49–50. 19 Koshiyama v. Tokyo Election Commission, Supreme Court, 10 November 1999, 53 Minshu 1704. 20 Shigenori Matsui, ‘Election Campaign Regulation and the Supreme Court of Japan’ in Po Jen Yap (ed), Judicial Review of Elections in Asia (Routledge 2016) 115, 123. 21 Yasuo Hasebe, ‘The Supreme Court of Japan: Its Adjudication on Electoral Systems and Economic Freedoms’ (2007) 5 ICON 296, 297. 22 Madeline Diamond, ‘The 20 Most Crowded Cities on Earth’ (Insider, 9 July 2019), available at https://www.insider.com/most-crowded-places-on-earth-2017-10#1-tokyo-japan-20, accessed 21 June 2021. 23 Ran Hirschl, City, State: Constitutionalism and the Megacity (OUP 2020) 10–16. 24 Kurokawa v. Chiba Prefecture Election Commission, 30 Minshū 3, 223 (1976). 25 Norman Dorsen, Michel Rosenfeld, Andras Sajo, and Susanne Baer, Comparative Constitutionalism: Cases and Materials (West Academic Publishing 2003) 1341–1342; Hiroyuki Hata, ‘Malapportionment of Representation in the National Diet’ (1990) 53 Law & Contemp Probs 157, 159, 162–164; William Somers Bailey, ‘Reducing Malapportionment in Japan’s Electoral Districts: The Supreme Court Must Act’ (1997) 6 Wash Intl L J 169, 178–179. 26 Hasebe (n 21) 302. 27 See Masami Koshiji, ‘Constitutional Issues Concerning the Franchise’ in Yoichi Higuchi (ed), Five Decades of Constitutionalism in Japanese Society (University of Tokyo Press 2001) 133, 143. 28 ibid. 29 ibid. 30 Article 15(1) of the Constitution of Japan provides the following: ‘The people have the inalienable right to choose their public officials and to dismiss them.’

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Liberal democracies 3 1 Hasebe (n 21) 303–304. 32 Article 21 of the Constitution of Japan (1947). 33 Shigenori Matsui, ‘Freedom of Expression in Japan’ (1991) 38 Osaka U L Rev 13, 35. 34 ibid 35–37. 35 Shigenori Matsui, ‘Freedom of Expression in Japan’ in Shinji Higaki and Yuji Nasu (eds), Hate Speech in Japan (CUP 2021) 35, 53–56. 36 Jeff Kingston, ‘Introduction: Press Freedom in Contemporary Japan’ in Jeff Kingston (ed), Press Freedom in Contemporary Japan (Routledge 2017) 1, 2. 37 Kenta Yamada, ‘State Secrets and Freedom of the Press in Japan’ in Jeff Kingston (ed), Press Freedom in Contemporary Japan (Routledge 2017) 119, 127–129. 38 United Nations Human Rights Office of the High Commissioner, ‘Japan: UN Rights Expert Warns of Serious Threats to the Independence of the Press’ (United Nations Human Rights Office of the High Commissioner, 19 April 2016), available at https://www.ohchr.org/en/NewsEvents/Pages/ DisplayNews.aspx?NewsID=19843&LangID=E, accessed 16 June 2021; Freedom House, ‘Freedom in the World 2020: Japan’ (Freedom House, 2021), available at https://freedomhouse.org/country/ japan/freedom-world/2020, accessed 16 June 2021. 39 Po-Liang Chen, ‘Legal Transplant and Law Reform: A Case Study of Pre-war Japanese Election and Campaign Finance Law into Republican Chinese Legal Framework (1935–1959)’ (2018) 6 Chinese L J 1. 40 Chen-shen J. Yen and Hung-chung Wang, ‘Democratic Representation in Taiwan’s Parliament: Evolution of Constituency Service from SNTV to Single-member District Electoral System’ in Zheng Yongnian, Lye Liang Fook, and Wilhelm Hofmeister (eds), Parliaments in Asia: Institution Building and Political Development (Routledge 2014) 243, 248. The term ‘complementary national election’ means that only a small number of congressional seats were open for competition; most seats were not. 41 J.Y. Interpretation No. 31 (1954) (Constitutional Court of Taiwan), available at https://cons.judicial. gov.tw/jcc/en-us/jep03/show?expno=31. 42 J.Y. Interpretation No. 261 (1990) (Constitutional Court of Taiwan), available at https://cons. judicial.gov.tw/jcc/en-us/jep03/show?expno=261. 43 J.Y. Interpretation No. 585 (2004) (Constitutional Court of Taiwan), available at https://cons.judicial.gov.tw/jcc/en-us/jep03/show?expno=585. The Act, among other things, granted the legislature both the prosecutorial power and the judicial power. Furthermore, it had restricted constitutional rights in a vague and excessive way. 4 4 The Additional Articles of the Constitution of the Republic of China (Taiwan) (2005), available at https://www2.judicial.gov.tw/FYDownload/en/p07_2.asp?lawno=98. 45 Yen and Wang (n 40) 260; Jih-Wen Lin, ‘The Democratic Progressive Party in Majoritarian Elections’ in Yun-han Chu, Larry Diamond, and Kharis Templeman (eds), Taiwan’s Democracy Challenged: The Chen Shui-Bian Years (Lynne Rienner Publishers 2016) 51, 68. 46 J.Y. Interpretation No. 721 (2014) (Constitutional Court of Taiwan), available at https://cons. judicial.gov.tw/jcc/en-us/jep03/show?expno=721. 47 The people shall have the right of election, recall, initiative, and referendum. 48 J.Y. Interpretation No. 290 (1992) (Constitutional Court of Taiwan), available at http://cons. judicial.gov.tw/jcc/en-us/jep03/show?expno=290. 49 J.Y. Interpretation No. 340 (1994) (Constitutional Court of Taiwan), available at http://cons. judicial.gov.tw/jcc/en-us/jep03/show?expno=340. 50 J.Y. Interpretation No. 340 (1994) (Constitutional Court of Taiwan), at [1], available at http://cons. judicial.gov.tw/jcc/en-us/jep03/show?expno=340. One should note that, in Interpretation No. 468 (1998), the TCC upheld the deposit requirement for presidential elections. Paragraph 1, Article 23 of the Presidential and Vice Presidential Election and Recall Act requires presidential candidates to pay a deposit of NT$1,000,000 (roughly US$30,000). The TCC upheld this provision, arguing that it was necessary ‘to prevent the people from needlessly participating in presidential and vice presidential elections, thus wasting social resources.’ 51 According to Article 8(1) of the Assembly and Parade Act, ‘For outdoor assemblies and parades, a permit shall be applied for with the competent authority except in the following conditions: (1) Assemblies or parades held in compliance with laws and regulations. (2) Academic, arts and literature, tourism, sports competitions or other similar activities. (3) Religious and folklore activities, weddings, funerals, celebrations, or festivities.’

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Chien-Chih Lin 52 Article 11 of the Assembly and Parade Act states, ‘Applications for outdoor assemblies or parades shall be approved except for one of the following conditions ….’ 53 Article 4 of the Assembly and Parade Act states, ‘Communism or secession shall not be asserted in any assembly or parade.’ 54 J.Y. Interpretation No. 445 (1998) (Constitutional Court of Taiwan), available at https://cons. judicial.gov.tw/jcc/en-us/jep03/show?expno=445. 55 J.Y. Interpretation No. 644 (2008) (Constitutional Court of Taiwan), available at https://cons. judicial.gov.tw/jcc/zh-tw/jep03/show?expno=644. 56 Freedom House, Freedom in the World 2021: Taiwan, https://freedomhouse.org/country/taiwan/ freedom-world/2021. 57 Tom Ginsburg, Judicial Review in New Democracies (CUP 2003) 213–214. 58 Po Jen Yap, Courts and Democracies in Asia (CUP 2017) 110; Byung-Kook Kim, ‘Party Politics in South Korea’s Democracy: The Crisis of Success’ in Larry Diamond and Byung-Kook Kim (eds), Consolidating Democracy in South Korea (Lynne Rienner Publishers 2000) 53–60; Yoonkyung Lee, ‘Political Parties’ in Chung-in Moon and M. Jae Moon (eds), Routledge Handbook of Korean Politics and Public Administration (Routledge 2020) 77, 82–83. 59 Chan Wook Park, ‘The National Assembly in Democratized Korea’ in Zheng Yongnian, Lye Liang Fook, and Wilhelm Hofmeister (eds), Parliaments in Asia (Routledge 2014) 185, 192. 60 ibid. 201. 61 One-Person One-Vote Case, 2000Hun-Ma91, etc. (consolidated) (19 July 2001) (Constitutional Court of Korea). For a more detailed discussion, see Yoojin Lim and Jungho Roh, ‘Political Institutions in Korea’ in Chung-in Moon and M. Jae Moon (eds), Routledge Handbook of Korean Politics and Public Administration (Routledge 2020) 21, 30. 62 ibid. 63 ibid. 64 Case on Prohibition of Using the Name of a Political Party whose Registration has been cancelled, 2012Hun-Ma431, 2012Hun-Ka19 (consolidated) (28 January 2014). 65 Case on Prohibition of Using the Name of a Political Party whose Registration has been cancelled, 2012Hun-Ma431, 2012Hun-Ka19 (consolidated) (28 January 2014). 66 Excessive Electoral District Population Disparity case, 95Hun-Ma224, etc. (27 December, 1995) (Constitutional Court of Korea). See also The Constitutional Court of Korea, Twenty Years of the Constitutional Court of Korea (The Constitutional Court of Korea 2008) 283. 67 National Assembly Election Redistricting Plan Case, 2000Hun-Ma92, 2000Hun-Ma240 (consolidated) (25 October 2001) (Constitutional Court of Korea). For a more detailed discussion, see Jong Ik Chon, ‘Effect of Constitutional Review on the Legislature and the Executive Branch for Last 25 Years in Korea’ (2015) J Korean Law 131, 155–156. 68 Case on Standard for Population Disparity allowed in Division of Electoral District, 2012Hun-Ma190·et al. (consolidated) (30 October 2014) (Constitutional Court of Korea). Woo-Young Rhee, ‘The Electoral Process and the Judicial Review of Elections in the Republic of Korea’ in Po Jen Yap (ed), Judicial Review of Elections in Asia (Routledge 2016) 136, 139–140. 69 Article 18(1)[2] of Public Official Election Act reads, ‘A person falling under any of the following subparagraphs … shall be disfranchised:…(2) A person who is sentenced to imprisonment without prison labor or a heavier punishment, but whose sentence execution has not been terminated or whose sentence execution has not been decided to be exempted.’ 70 Restriction on Right to Vote of Prisoners and Probationers with Suspended Sentence, 2012Hun-Ma409, 510, 2013Hun-Ma167 (consolidated) (28 Jan 2014) (Constitutional Court of Korea). Article 24 of the Constitution provides, ‘All citizens shall have the right to vote under the conditions as prescribed by Act.’ Also, Article 37 of the Constitution provides, ‘(1) Freedoms and rights of citizens shall not be neglected on the grounds that they are not enumerated in the Constitution. (2) The freedoms and rights of citizens may be restricted by Act only when necessary for national security, the maintenance of law and order or for public welfare. Even when such restriction is imposed, no essential aspect of the freedom or right shall be violated.’ 71 ibid. 72 Article 11(1) of the Assembly and Demonstration Act reads, ‘No person may hold any assembly or demonstration at any place within one hundred meters from the borderline of the following office buildings or residences: … (1) The National Assembly building, each level of courts, the Constitutional Court, the foreign diplomatic missions in Korea.’

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Liberal democracies 73 Prohibition of Assembly in the Vicinity of Diplomatic Institutions, 2000Hun-Ba67 (30 October 2003) (Constitutional Court of Korea). For a more detailed discussion, see Chaihark Hahm, ‘Human Rights in Korea’ in Randall Peerenboom, Carole J. Peterson, and Albert H.Y. Chen (eds), Human Rights in Asia: A Comparative Legal Study of Twelve Asian Jurisdictions, France and the USA (Routledge 2006) 265, 283–284. 74 ibid. 75 Case on the Ban on Outdoor Assemblies within 100m of the National Assembly Building, 2013Hun-Ba322, 2016Hun-Ba354, 2017Hun-Ba360, 398, 471, 2018Hun-Ka3, 4, 9 (consolidated) (31 May 2018) (Constitutional Court of Korea). 76 ibid. 77 Case on Banning Assembly near Official Residence of the Prime Minister, 2015Hun-Ka28, 2016Hun-Ka5 (consolidated) (28 June 2018) (Constitutional Court of Korea). 78 Case on Banning Outdoor Assembly in the Vicinity of All Levels of Courts, 2018Hun-Ba137 (26 July 2018) (Constitutional Court of Korea).

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4 DOMINANT PARTY DEMOCRACIES Po Jen Yap and Marcus Teo

4.1 Introduction Dominant- party democracies are democracies in which the same political party or coalition has exclusively or almost continuously ruled the country since the nation’s independence or transition to a new constitutional system.1 When one party or coalition dominates the country’s political scene, that party in essence becomes the country’s semi-permanent government. To perpetuate its rule, the dominant party can with ease manipulate rules of political contestation, gerrymander electoral seats to skew results in its favour before each election, and pass a slew of regressive legislation to arrest calls for further political diversity and democratization. Therefore, while universal suffrage may be the norm in the country such that are elections are free, they are rarely fair. Their courts, in turn, wield the power of judicial review in a largely unconfrontational manner, though as guardians of the Constitution, they may occasionally push back against the ruling governments.

4.2 Singapore 4.2.1  Elections and representative democracy Since gaining independence in 1965, Singapore has been governed by the same political party, the People’s Action Party (‘PAP’). The PAP has consistently controlled more than 85% of the elected seats whilst garnering 60–70% of the popular vote. With its supermajority in Parliament, the PAP government can pass legislation, and even constitutional amendments, with ease, such that it makes all relevant public policy decisions in the country. As Eugene Tan notes in his chapter in this Handbook, Singapore’s electoral system is unique insofar as it provides for both single-member constituencies (SMCs) and multimember group constituencies in parliamentary general elections. Such multi-member group constituencies are known as Group Representative Constituencies (‘GRCs’), and each GRC is formed by merging three to six single wards into one mega-constituency.2 The GRC system was first introduced, following a constitutional amendment in 1988, with the stated purpose of ensuring racial diversity in Parliament – at least one team member must be from a racial minority community.3 But the GRC system also benefits the PAP as the latter has relied on 46

DOI: 10.4324/9781003109402-5

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this system to ensure the election of new candidates with ministerial calibre; these promising freshmen are fielded in GRC teams alongside party stalwarts with mass electoral appeal.4 And to further cement its political advantage, the ruling PAP regime strategically skews the political competition in its favour by re-drawing pre-existing electoral boundaries before every general election.5 The Singapore courts also rarely impede the PAP’s hegemony. In Vellama d/o Marie Muthu v Attorney-General6 (2013), the Singapore’s Court of Appeal determined that the Prime Minister had a constitutional duty under Article 49 of the Constitution to call for a by-election within a ‘reasonable time’ 7 when a casual vacancy in a SMC arose. Unfortunately the Court reduced the force of this decision by conceding that the Prime Minister ‘could justifiably take into account matters relating to policy … [and] it is impossible to lay down the specific considerations or factors which would have a bearing on the question as to whether the Prime Minister had acted unreasonably for not, to date, calling for a by-election to fill a vacancy’.8 Furthermore, while the Court of Appeal in Vellama confirmed that ‘[t]he voters of a constituency are entitled to have a Member representing and speaking for them in Parliament’,9 as this was necessary to give effect to ‘the basic character of an elected MP who represents the citizens who voted him into Parliament’,10 the Court subsequently qualified this ruling in the context of GRCs. In Wong Souk Yee v Attorney-General (2019),11 an application was again brought to require the Prime Minister to fill a casual vacancy, albeit on this occasion the vacancy arose in a GRC, and the seat was vacated by the only racial minority in that GRC.12 This time, however, the Court of Appeal held that the constitutional duty to call for a by-election imposed by Article 49 only applied to SMCs and not GRCs. According to the Court of Appeal, when the GRC system was passed in 1988, Parliament had evinced a clear intention that no by-election would be held for a GRC unless all members in that GRC vacated their seats midterm.13 But one should note that this Parliamentary intention was, however, not expressed in the Constitution itself but was codified instead in the provisions of an ordinary statute, the Parliamentary Elections Act, which were passed alongside the 1988 constitutional amendments.14 Nevertheless, the Court was unwilling to interpret Article 49 in a manner inconsistent with the clear intentions expressed by Parliament during the 1988 amendment process, even though these intentions were not codified in the constitutional changes made.15 Wary that its reading of Article 49 would remove any constitutional obligation on the Government to call for a by-election even if all the seats in a GRC are vacated, the Court asserted that in that extraordinary circumstance, it was ‘at least arguable that an implied right to representation might be invoked to fill this lacuna in the Constitution’.16 Nevertheless, this implied right did not ‘prevent Parliament from devising the GRC scheme in such a way that a GRC could be left to be represented by less than its full complement of Members’.17 Thus, the decision in Wong Souk Yee was equivocal about democratic rights: an implied norm of representative democracy exists within Singapore’s Constitution, but a single vacancy in a GRC will not suffice for this right to be vindicated. One should note at in Singapore, only 15% of the elected seats are constituted as SMCs; the other 85% are constituted as GRCs. The Singapore courts have been equally deferential to the Government when there was a constitutional dispute over the Presidential election.18 The Presidency was initially a ceremonial office held by an appointee chosen by Parliament, modelled after the English Crown. In 1991, however, the Presidency was transformed into an office with several executive powers, i.e. ‘to safeguard the [financial] reserves of Singapore and the integrity of the Public Services of Singapore’ by wielding a veto-power over the Government’s decisions on these matters.19 To ensure that the President has the legitimacy and mandate to limit the powers 47

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of a democratically elected government, the 1991 constitutional amendments also turned the Presidency into a popularly elected office, with elections to occur once every six years.20 In 2016, further constitutional amendments were made to the Presidency. These amendments introduced the concept of a ‘reserved’ presidential election. To ensure racial representation, a new Article 19B of the Constitution states that a presidential election would be reserved for one of Singapore’s three major racial groups – Chinese,21 Malay,22 or ‘Indian or other’23 in Singapore – if no person belonging to that community has held the office of President in the five preceding elections.24 Also inserted is Article 164(1)(a) of the Constitution, which empowers the Legislature to ‘specify the first term of office of the President to be counted for the purposes of deciding whether an election is reserved under Article 19B’.25 Parliament, through statutory amendments to Singapore’s Presidential Elections Act,26 subsequently deemed that the first President to be counted for the purposes of Article 19B of the Constitution would be Wee Kim Wee, who held the office of President from 1989 to 1993. Notably President Wee was not elected by the people but was appointed by Parliament, in 1989 to exercise the powers of the elected presidency. By counting Wee’s term as the first presidential election under this new electoral scheme, five terms had passed without a Malay President in 2017.27 It thus followed that the 2017 presidential election was reserved for the Malay racial community. Subsequently, Madam Halimah Yacob, then a PAP member of Parliament, vacated her seat and ran unopposed 28 and won the presidential election. The reservation of the 2017 presidential election for the Malay racial community had the effect of blocking Dr Tan Cheng Bock, an opposition politician who narrowly lost the 2011 presidential elections,29 from running for President again in 2017, because he was a member of the Chinese racial community. Dr Tan thus challenged the amendments to the Presidential Elections Act as unconstitutional on the grounds that the first of the five presidential terms deemed to have passed – Wee Kim Wee’s – was not actually that of a popularly elected President. Wee had been appointed by Parliament in 1989, before the 1991 constitutional amendments had been passed. In Tan Cheng Bock v Attorney-General (2017),30 however, the Court of Appeal dismissed Dr Tan’s argument. It held that Article 164(1) of the Constitution gave Parliament the discretion to choose Wee’s term as the first term for the purposes of Article 19B, and Parliament had specifically contemplated in the 2016 amendment debates that it would choose Wee’s term for that purpose.31 Thus, the Court of Appeal disregarded the general purpose of having a President legitimated by popular elections in favour of Parliament’s specific intention during the amendment process to cherry-pick a particular President for the purpose of counting the commencement of this new electoral scheme.32

4.2.2  Free speech, online media, and fake news The PAP Government’s hegemony is also attributable to the extraordinary control it exercises over public expression in Singapore. Foremost is its control over print media located or operating within Singapore. The Newspaper and Printing Presses Act 33 requires a person to first obtain a licence before he or she can print, publish, or circulate a newspaper in Singapore and this licence can be refused or withdrawn by the Minister of Communications and Information at his or her discretion.34 Furthermore, any newspaper that publishes in Singapore must create two classes of shares, an ordinary share and a management share. Each management shareholder has 200 times the voting rights of an ordinary shareholder35 over any resolution relating to the appointment/dismissal of a director or any staff member of the newspaper company, and the former share type can only be owned by Singapore citizens or corporations that have been approved by the said Minister.36 The Public Order Act 37 requires an organizer of a 48

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public assembly, even if it is a demonstration by one person,38 first to obtain a permit from the Commissioner of Police;39 and licences for outdoor political protests are not granted in practice. Outdoor demonstrations organized by Singapore citizens in Speaker’s Corner – a small park – are exempted from these licensing requirements. The Public Order Act has also been upheld a reasonable restriction on the citizenry’s freedom of assembly.40 In recent years, the Singapore Government has further expanded its regulatory control over expressive conduct to cyberspace. In 2019, Parliament passed the Protection from Online Falsehoods and Manipulation Act (POFMA). POFMA empowers Ministers to issue executive directions against ‘false statements of fact’ communicated online. These directions may require these statement-makers to either correct their statements, by amending them to add the Government’s chosen response to it,41 or to remove those statements entirely.42 These directions may be appealed to the High Court, via an expedited process, on the grounds that the recipient of the direction did not communicate the impugned statement,43 that the statement made was not a statement of fact,44 that the statement was a true statement of fact,45 or that the direction is impossible to comply with.46 POFMA constitutes a potentially significant restriction on political speech and press freedoms in Singapore. And two key worrisome questions remain unresolved. First, who bears the burden of proof vis-à-vis the veracity of the impugned statements? This is important since Singapore recognizes no constitutional or statutory right to information and the PAP Government does not habitually make official records publicly available.47 If the burden to prove the veracity of the statements rests solely on statement-makers, this burden might prove impossible to discharge on matters which the Government chooses to keep silent on. Second, what constitutes ‘false statements of fact’? This is important given that POFMA itself defines a ‘false statement’ as a statement which is ‘false or misleading, whether wholly or in part, and whether on its own or in the context in which it appears’.48 This broad definition allows liability to accrue when statements are read out of context – that is, by taking part of a statement ‘on its own’ and not ‘in the context in which it appears’, and to impugn those statements as false on the basis of such acontextual interpretation.49 In The Online Citizen v Attorney-General (2021),50 however, the Singapore Court of Appeal clarified some of these statutory ambiguities. First, the Court held that an impugned statement subject to a governmental correction direction would be construed the way ‘an ordinary reasonable reader of that material would construe it as making’51; the statement-maker’s subjective intention to convey a false statement was irrelevant,52 but there must be ‘an appreciable segment or a particular class of the potential readership or audience of the subject material in Singapore who would construe it as making or containing the subject statement’.53 Second, while the burden of proof of discharging a correction direction rests on the statement-maker, the Court also held that the speaker need only show a ‘prima facie case of reasonable suspicion’54 that one or more of the grounds for setting aside the direction was satisfied, after which the evidential burden would then shift to the government to show that the none of the grounds relied upon the statement-maker was made out. Consider also the law on scandalizing contempt of court in Singapore. Prior to 2016, this was only criminalized under the common law and was routinely used against online content producers.55 In Shadrake Alan v Attorney-General (2011),56 the Singapore Court of Appeal pitched the threshold of liability at a higher threshold: whether there is ‘a real risk that the impugned statement has undermined – or might undermine – public confidence in the administration of justice’.57 In 2016, however, Parliament passed the Administration of Justice (Protection) Act 201658 (‘AJPA’) to codify this area of law and critically lowered the threshold for statements to be considered scandalizing contempt: any statement, which ‘imputes improper 49

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motives to or impugns the integrity, propriety or impartiality of any court’59 and which ‘poses a risk that public confidence in the administration of justice would be undermined’,60 would be scandalizing contempt. In the parliamentary debates, the Government took the position that replacing the standard of ‘real risk’ with that of ‘risk’ would entail ‘a change to the current law’61 but view this development as desirable to ‘make sure that the integrity of the Judiciary is pristine’.62 The AJPA also deems statements published online to be within the jurisdiction of Singapore’s courts if published or accessed in Singapore63 and empowers courts to try individuals for contempt in absentia64 and grants courts a discretion to order convicted contemnors to publish apology notices.65 Subsequently, in Wham Kwok Han Jolovan v Attorney-General (2020),66 the Court of Appeal upheld the convictions of two individuals for scandalizing contempt under AJPA in relation to their Facebook posts – one of which stated that ‘Malaysia’s judges are more independent than Singapore’s for cases with political implications’. The Court of Appeal was emphatic that the impugned post ‘plainly entails a direct attack on the independence and integrity of Singapore’s Judiciary’.67 And in upholding the convictions and fines, one applicant, who was a member of an opposition political party, was disqualified from running in Singapore’s 2020 parliamentary elections.68 But the Court of Appeal’s judgement in Jolovan Wham was not without nuance. In particular, the Court resisted applying the AJPA strictly. The Court, while fully appreciating Parliament’s intention to replace the common law’s ‘real risk’ test with AJPA’s ‘risk’ test, nevertheless held that ‘Parliament would not have legislated against risks that, in substance, are non-existent’.69 The Court then interpreted the ‘risk test’ as targeting only statements which ‘the reasonable person … would think needs guarding against so as to avoid undermining public confidence in the administration of justice’.70 Further, while the Government had argued that the applicants should be made to publish apologies for their statements, the Court declined to make such an order except in ‘exceptional circumstances’,71 of which the case before it was not one. It reasoned that ‘it is not in every case that a signal [of the court’s disapproval of contemptuous statements] needs to be sent to the public’,72 since ‘an insincere apology made under compulsion can have the opposite effect of diminishing the standing of the Judiciary’.73 Thus, even as the Court of Appeal in Jolovan Wham readily enforced the AJPA, the Court adjusted its interpretation at the margins when the statutory text left room for judicial manoeuvre.

4.2.3  Deference and judicial review Singapore’s Constitution grants courts the power of judicial review. Article 4 of the Constitution expressly states that ‘any law enacted by the Legislature … which is inconsistent with [the] Constitution shall, to the extent of the inconsistency, be void’. However, in view of the PAP’s overwhelming control over Parliament, and its unfettered ability to introduce even constitutional amendments, Singapore’s courts have shied away from the constitutional invalidation of legislation and engage only in ‘retail rule of law, insuring that government obeys its own laws until it changes them’.74 Notably, when the Government lost in a constitutional decision before the Court of Appeal in 1988 for the first and last time, the Government swiftly overturned that decision via a series of constitutional and statutory amendments within a month of the judgement. In that seminal decision of Chng Suan Tze v Minister of Home Affairs (1988), the Court of Appeal not only quashed the preventive detention orders issued under the Internal Security Act (‘ISA’) against alleged Marxist conspirators on a technicality75 but also concluded in obiter that the ministerial discretion to detain personnel under the ISA would be subject to an ‘objective’ review by the courts. This decision proved 50

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to be sufficiently disquieting to the Government, and subsequent statutory and constitutional amendments restricted judicial review in ISA cases to only narrow procedural grounds. Since the Government’s swift response to the Singapore Court of Appeal’s perceived judicial overreach in Chng Suan Tze, the nation’s highest court has abstained from invalidating any legislation that comes its way. The mandatory death sentence for drug trafficking was upheld on the basis that the constitution does not expressly prohibit inhuman punishment, and ‘it would not be appropriate for [ judges] to legislate new rights into the Singapore Constitution under the guise of interpreting existing constitutional provisions’.76 Judicial caning is also constitutional as the constitutional right to life and liberty had no application to ‘punishment to be imposed on a convicted person after trial’.77 Underpinning the Court’s position on the constitutional unimpeachability of these laws is a preference for judicial deference.78 As judges lack the democratic mandate and face an informational disadvantage vis-à-vis the political branches of government, Singapore judges take the view that matters of public policy are ‘the proper remit of the Executive’79 and courts should not be seen as ‘the first line of defence against administrative abuses of power: instead, control can and should come internally from Parliament and the Executive itself ’.80 This attitude of deference also echoes the PAP’s perception that they are a ‘government by honourable men who … have the trust and respect of the population…’81, which the political leaders believe ‘fits [Singapore] better than the Western ideas that a government should be given as limited powers as possible, and should always be treated with suspicion unless proven otherwise’.82 Emblematic of this philosophy is the reactionary decision of Chan Hiang Leng Colin v Minister for Information and the Arts83 (1996), where the Court of Appeal refused to intervene in the Government’s decision to deregister Jehovah’s Witnesses as a religious group in Singapore and ban their publications. In assessing whether the Government’s decision was irrational, the Court held: it is not sufficient for [the applicants] to show a prima facie case of reasonable suspicion that the Minister had used a sledgehammer to crack a nut. [They] must show what might turn out to be an arguable case that no reasonable Minister would use the proverbial sledgehammer to crack the figurative nut. And [they] must be able to do so within the restriction that issues such as the size of the nut, the thickness of its shell, the force required to crack it, how many attempts one has to crack it, the consequences of failing to crack it, and the adequacy or otherwise of any other alternative such as a smaller nutcracker, are all non-justiciable.84 But judicial approaches seem to be shifting in recent years.85 Tan Seet Eng v AttorneyGeneral (2015)86 involved a challenge to a preventive detention order – as was the case in Chng Suan Tze – but this time, the order was issued under another Act, the Criminal Law (Temporary Provisions) Act87 (‘CLTPA’). The applicant had been detained under Section 30(a) of the CLTPA ‘in the interests of public safety, peace and good order’ on the ground that he provided funding and personnel from Singapore to fix football matches in Europe, Africa, and the Middle East. The Court of Appeal, however, quashed his detention and ordered his release. The Court held that the CLTPA was intended by Parliament to combat serious criminal syndicate activities which posed ‘harm to public order in Singapore’.88 Although the applicant was operating ‘ from Singapore’,89 and his actions were ‘reprehensible and should not be condoned’,90 the Court opined that there was ‘nothing to suggest whether (or how) [those] activities could be thought to have a bearing on the public safety, peace and good order within 51

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Singapore’,91 and his detention was therefore ultra vires.92 Importantly, the Court also rejected the notion that the national security underpinnings of the case warranted broad deference to the executive’s decision to detain or rendered such disputes non-justiciable. 93 To reach this conclusion, the Court determined that the constitutional amendment that overruled Chng Suan Tze applied only to detentions under the Internal Security Act and not to other forms of preventive detention.94 Tan Seet Eng, on its own, had limited impact on the use of preventive detention in Singapore. Six days after, the judgement was handed down, the applicant was re-detained under a new CLTPA detention order which this time set out the grounds relied on by the government to establish the existence of the relevant threat in Singapore.95 But the decision nevertheless signals an increased willingness on the part of Singapore’s courts to scrutinize the legality of executive decisions, even in areas of ‘high policy’.96

4.3 Malaysia Since independence in 1957, Malaysia was ruled by a political coalition led by United Malays National Organisation (UMNO) until this coalition government was resoundingly defeated by the opposition bloc – Pakatan Harapan (PH) – in the 2018 general elections. But the PH’s stint in power was short-lived as it collapsed in 2020, which paved the way for Muhyiddin Yassin – a former Deputy President of UMNO – to be appointed as the nation’s premier, and he now leads a Perikatan Nasional governing coalition that includes UMNO in its political folds. Barisan Nasional (BN) – UMNO’s governing coalition prior to 2018 – had already lost the popular vote in the preceding 2013 general election, but it was still able to cling onto a majority of the House of Representative seats by political gerrymandering. Electoral redistricting in Malaysia is performed by the Election Commission, staffed by government appointees that report directly to the Prime Minister.97 In the 2013 election, the opposition coalition won only 89 out of 222 constituencies, but the average size of the constituencies they won had 88,981 voters compared to 52,792 voters in a BN constituency.98 Tellingly, these small constituencies are mainly found in rural and poorer areas in Malaysia – BN’s traditional strongholds – and were ‘carefully carved out to boost incumbent support’.99 These same antics were repeated, if not ratcheted up, by BN prior to the 2018 election, in its desperate but unsuccessful attempt to retain power. But all these political shenanigans proved inadequate to arrest the tide of public disquiet over Prime Minister Najib Razak (UMNO’s leader)’s purloining of over US$600 million in state funds. As is typical of courts operating within dominant party democracies, the Malaysian courts had previously done little to countermand BN’s hegemony, especially if the ruling regime can display its displeasure by ousting judicial review or even the judges themselves.100 It should be noted that three Supreme Court (now retitled the Federal Court of Malaysia) judges – including the Chief Justice – were impeached and removed on trumped-up charges in 1988.101 Unsurprisingly, the constitutional jurisprudence of the Federal Court largely remained anaemic after the 1988 judicial crisis. A Muslim apostate was denied the right to remove Islam as her designated religion on her national identity card, unless she had the consent of the Syariah religious courts.102 Sedition laws, which had been routinely used to punish strident BN critics, have also been upheld as a proportionate restriction on free speech.103 But there was a glimmer of hope. In 2017, the Federal Court in Semenyih Jaya104 invalidated a constitutional amendment introduced in June 1988 to clip the wings of the judiciary.105 Prior to the amendment, Article 121(1) of the Malaysia constitution read as follows: ‘The judicial power of the Federation shall be vested in a Supreme Court and such inferior courts 52

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as may be provided by federal law’. The 1988 constitutional amendment removed the term ‘judicial power’. Furthermore, the Court also invalidated section 40D of the Land Acquisition Act, which had imposed a duty on a judge to adopt the opinion of lay assessors when awarding compensation to persons whose land had been acquired by the government, as the impugned law had usurped the ‘judicial power’106 conferred on courts. This judgement is particularly noteworthy as it constituted the first invalidation of legislation by the Federal Court of Malaysia since the 1988 ouster of judges. Following up on this landmark ruling, the Federal Court in 2018 also determined that it had the jurisdiction to rule against the Syariah courts for unlawfully converting several minors’ religion to Islam against their mother’s wishes.107 However, this judicial renaissance appeared to be short-lived. In February 2020, as the PH government was on the precipice of collapse, the Federal Court refused to decide whether the country’s draconian National Security law was constitutional as it deemed the dispute hypothetical and academic: ‘no mention was made as to what rights, if any, of the plaintiff or any other person have been affected or are threatened to be affected’108 by this law. Notably, the plaintiff was Anwar Ibrahim who would have been Malaysia’s next Prime Minister if the PH government had remained in power. With the dissolution of the PH government in February 2020, and the rise of a new Perikatan Nasional coalition government that includes the discredited UMNO in its alliance, the courts swiftly reverted to its reactionary orthodoxy. Notably, the mandatory death sentence for drug trafficking was upheld in August 2020 on the ground that the ‘Court cannot substitute its view for the legislative policy decided by Parliament’,109 notwithstanding that only in April 2019, the Federal Court had invalidated statutory presumptions which required alleged drug traffickers to prove their innocence when they were found in custody of prohibited drugs exceeding a stipulated weight.110 The Federal Court’s most significant volte-face occurred in Maria Chin v Ketua Pengarah Imigrsen111 when it relied on the impugned 1988 constitutional amendment to uphold the constitutionality of a legislative provision in the Immigration Act which ousted judicial review, thereby repudiating the central holdings of its earlier decision in Semenyih Jaya. In the highly divided 4-3 decision, the majority noted that the 1988 constitutional amendment provided that the courts’ powers are ‘conferred by or under federal law’, and the impugned Section 59A of the Immigration Act was one such law and the courts therefore ‘have no jurisdiction to travel outside of the confines of that power’.112 As the majority emphasized, no common law doctrine of separation of powers may override the express terms of this constitutional amendment.113 When the dominant UMNO coalition controlled ‘all the commanding heights of government power’114 in Malaysia, the courts were inevitably marginalized. While there were glimmers of hope when PH was in power, illusions of progress were dashed with the return of UMNO under the folds of the new Perikatan Nasional coalition government in 2020. Notably, in October 2020, using the COVID-19 pandemic as a pretext, the Prime Minister Muhyiddin Yasin attempted to impose a state of emergency across the country, which would even have suspended legislative sittings such that his budget could pass without any debate in Parliament, but this emergency plan was rebuffed by the King.115 It is now anyone’s guess whether Malaysia will further regress in the coming years.

4.4 Conclusion A critical element to the success of ‘durable authoritarianism’116 rests on the dominant party’s continued ability to manipulate the electoral rules to stave off the opposition’s rise and the frequent use of draconian laws to suffocate civil society. The courts operating in 53

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such authoritarian democracies, in turn, are usually unable to challenge the dominant party’s hegemony; though as the above discussion has shown, unquestioning judicial deference is not always a given. Whether Singapore and Malaysia’s dominant parties can continue to romp home at every general election will depend too on the public’s willingness to disavow liberalism in favour of stability.117

Notes 1 See Po Jen Yap ‘Authoritarian Regimes’ in Peter Cane, Herwig C H Hofmann, Eric C Ip, and Peter L Lindseth (eds) Oxford Handbook of Comparative Administrative Law (OUP 2021) 339. 2 See Art 39A of the Singapore Constitution. 3 ibid, Art 39A(2). 4 For early discussions of the electoral advantages which the GRC system conferred upon the PAP, see Kevin Tan, ‘Constitutional Implications of the 1991 Singapore General Elections’ (1992) 13 Singapore Law Review 46–51; Li-Ann Thio, ‘The Post-Colonial Constitutional Evolution of the Singapore Legislature: A Case Study’ (1993) Singapore Journal of Legal Studies 80, 106–107. 5 Po Jen Yap, Courts and Democracies in Asia (CUP 2017) 26. 6 [2013] 4 SLR 1 (CA) (‘Vellama’). 7 ibid [84]. 8 ibid [85]. 9 ibid [79]. 10 ibid [80]. 11 [2019] 1 SLR 1223 (CA) (‘Wong Souk Yee’). 12 For a discussion of the decision below, see Po Jen Yap and Benjamin Joshua Ong, ‘Judicial Rectification of the Constitution: Can Singapore Courts Be Mini-Legislatures?’ (2018) 48 Hong Kong Law Journal 389. 13 Wong Souk Yee (n 11), at [71], [53]. 14 Cap 218, 1985 Rev Ed, s 24(2A) of which states that ‘[i]n respect of any group representation constituency, no writ shall be issued … for an election to fill any vacancy unless all the Members for that constituency have vacated their seats in Parliament.’ 15 Wong Souk Yee (n 11), at [71]. 16 ibid [72]. 17 ibid [78]. 18 Tan Cheng Bock v Attorney-General [2017] 2 SLR 850 (CA). 19 See Art 17(2) of the Constitution. For an overview of the (many) changes made to this office over time, see Jaclyn Neo and Swati Jhaveri (eds), Constitutional Change in Singapore: Reforming the Elected Presidency (Routledge 2020). 20 ibid Art 20(1) of the Singapore Constitution. 21 ibid Art 19B(6)(a). 22 ibid Art 19B(6)(b). 23 ibid Art 19B(6)(c). 24 ibid Art 19B(1). 25 ibid Article 164(1)(a). 26 Cap 240A, 2011 Rev Ed, s 5A and the Schedule of which setting out the first five terms to be counted for the purposes of Art 19B of the Singapore Constitution. 27 These terms were those of Wee Kim Wee (1989–1993), Ong Teng Cheong (1993–1999), S R Nathan (1999–2005), S R Nathan (2005–2011) and Tony Tan Keng Yam (2011–2017). Wee, Ong and Tan were Chinese, while Nathan was Indian. 2 8 Two other Malay candidates from the private sector attempted to run for the Presidency but they were deemed ineligible. Under the 2016 constitutional revisions, private sector candidates are eligible only if they were Chief Executive of companies with shareholders’ equity of at least SG $500 million dollars. Previously under the 1991 rules, a private sector candidate only needed to have been a Chairman or CEO of a company with a minimum paid-up capital of SG$100 million dollars. 29 Singapore holds presidential elections on a first-past-the-post basis (see Presidential Elections Act (n 26) ss 32(8), 32(8D), 32A(5), 32DA(2) and 32DB(2)). In the 2011 presidential elections,

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Dominant party democracies Tony Tan Keng Yam, the winner, received a 35.20% share of the vote, while Tan Cheng Bock, the first runner-up, received 34.85%. 30 [2017] 2 SLR 850 (CA). 31 ibid at [103]–[124]. 32 For a discussion of the Court’s reasoning in Tam Cheng Bock, see Marcus Teo, ‘Interpreting Frequently Amended Constitutions: Singapore’s Dual Approach’ (2021) 42(3) Statute Law Review 364, 366–368. 33 Newspaper and Printing Presses Act, Cap 206, 2002 Rev Ed (Singapore). 34 ibid ss 21, 22. 35 ibid s 10(11). 36 ibid s 10(1)(c). 37 Public Order Act, Cap 257A, 2012 Rev Ed (Singapore). 38 ibid s 2(1). 39 ibid ss 7(1), 7(2) and 16(1)(a). 40 See Wham Kwok Han Jolovan v Public Prosecutor [2020] SGCA 111. 41 Protection from Online Falsehoods and Manipulation Act (POFMA), s 11. 42 ibid s 12. 43 ibid ss 17(5)(a). 4 4 ibid ss 17(5)(b). 45 ibid. 46 ibid ss 17(5)(c). 47 See Tee Zhuo, ‘Parliament: Only 8% of 2 million public government records searchable on National Archives online portal’ (The Straits Times, 21 October 2020) (accessed 4 March 2020). 48 POFMA s 2(2)(b). 49 See Marcus Teo and Jonathan Hew, ‘Context and Meaning in the Interpretation of Statements Under POFMA’, Singapore Law Gazette ( June 2020), online: https://lawgazette.com.sg/feature/ interpretation-pofma/ 50 The Online Citizen v Attorney General [2021] SGCA 96. 51 ibid [109]. 52 ibid [154]. 53 ibid [156]. 54 ibid [183]. 55 See e.g. Au Wai Pang v Attorney-General [2015] SGCA 61, involving blog posts. For a case involving facts occurring after the AJPA was passed in 2016, but before it came into force in late 2017, see Li Shengwu v Attorney-General [2019] 1 SLR 1081 (CA), involving Facebook posts shared on a ‘Friends only’ privacy setting. 56 [2011] 3 SLR 778 (CA). 57 ibid [36] (emphasis added). 58 Administration of Justice (Protection) Act, No. 19 of 2016 (Singapore). 59 ibid s 3(1)(a)(i). 60 ibid s 3(1)(a)(ii). 61 Singapore Parliamentary Debates, Official Report (15 August 2016) vol 94 at 2.20pm (Mr K Shanmugam, Minister for Law). 62 ibid. 63 N58, ss 11(2) and 11(3). 64 ibid s 11(6). 65 ibid s 11(3). 66 [2020] 1 SLR 804 (CA) (‘Jolovan Wham’). 67 Jolovan Wham (n 66) at [39]. 68 Article 45(1)(e) of the Constitution disqualifies persons from standing in a General Election if, in the five years prior to the election, a fine of $2,000 or more were imposed on him for a criminal conviction. The applicant later argued unsuccessfully against his disqualification in Tan Liang Joo John v Attorney-General [2019] SGHC 263. 69 Jolovan Wham (n 66), at [38]. 70 ibid [38], emphasis added.

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Po Jen Yap and Marcus Teo 7 1 ibid [76], emphasis in original. 72 ibid [75], emphasis in original. 73 ibid [75]. 74 Martin Shapiro and Alec Stone Sweet, On Law, Politics, and Judicialization (OUP 2002) 166. 75 Po Jen Yap, Constitutional Dialogue in Common Law Asia (OUP 2015) 73–77. 76 Yong Vui Kong v Public Prosecutor [2010] 3 SLR 489 (CA) at [59]. 77 ibid [64]. 78 For a definition, and a criticism, of the idea of ‘deference’ in Singapore’s context, see Jaclyn Neo, ‘Autonomy, Deference and Control: Judicial Doctrine of Separation of Powers in Singapore’ (2018) 5 Journal of International and Comparative Law 461, 465–467. 79 Lim Meng Suang v Attorney-General [2015] 1 SLR 26 (CA) at [34]. 80 Chan Sek Keong, ‘Judicial Review – From Angst to Empathy’ (2010) 22 Singapore Academy of Law Journal 480. 81 Singapore, Shared Values (White Paper, Paper Cmd 1, 1991) at [41]. 82 ibid. 83 [1996] 1 SLR(R) 294 (CA). 84 ibid [46]. 85 In Nagaenthran a/l K Dharmalingam v Public Prosecutor, [2019] 2 SLR 216 (CA) at [74], the Court of Appeal in obiter dicta suggested that legislation which purported to oust the power of judicial review on the ordinary grounds of illegality, irrationality, and procedural impropriety ‘would be constitutionally suspect for being in violation of Art 93 of the Singapore Constitution (vesting the ‘judicial power’ in the Supreme Court) as well as the principle of the separation of powers’. 86 [2016] 1 SLR 779 (CA) (‘Tan Seet Eng’). 87 Criminal Law (Temporary Provisions) Act, Cap 67, 2000 Rev Ed (Singapore). 88 Tan Seet Eng (n 86), at [116]–[120], [128]. 89 ibid [146]. 90 ibid. 91 ibid, emphasis in original. 92 ibid [148]. 93 ibid [106]. 94 ibid [98]. 95 Sundaresh Menon, ‘The Rule of Law: The Path to Exceptionalism’, (2016) 28 Singapore Academy Law Journal 413, 422–423. 96 Tan Seet Eng (n 86) at [106]. 97 See 13th Schedule of the Federal Constitution of Malaysia. 98 Wong Chin Huat, ‘Reconsidering Malaysia’s First-Past-the-Post Electoral System: Malpractices and Mismatch’ in Meredith L Weiss and Faisal S Hazis (eds.), Towards a New Malaysia?: The 2018 Election and Its Aftermath (NUS Press 2020), 220. 99 Bridget Welsh, ‘Malaysia’s Elections: A Step Backward’ (2013) 24 Journal of Democracy 136, 146. 100 Po Jen Yap, Constitutional Dialogue in Common Law Asia (OUP 2015) 78. 101 Hoong Phun Lee, Constitutional Conflicts in Contemporary Malaysia. (OUP 2017). See Björn Dressel and Tomoo Inoue, ‘Politics and the Federal Court of Malaysia, 1960–2018: An Empirical Investigation’ (2020) Asian Journal of Law and Society 1, 22, which empirically compares the behaviour of the Malaysian judges pre and post 1988. 102 Lina Joy v. Federal Territory Islamic Council & Director-General of the National Registration Department (2007) 4 MLJ 585. 103 PP v. Azmi bin Sharom [2015] 6 MLJ 751. 104 Semenyih Jaya v. Pentadbir Tanah Daerah Hulu Langat [2017] 3 MLJ 561. 105 See Jaclyn L. Neo, ‘A Contextual Approach to Unconstitutional Constitutional Amendments: Judicial Power and the Basic Structure Doctrine in Malaysia’, (2020) 15 Asian Journal of Comparative Law 69. 106 Semenyih Jaya v. Pentadbir Tanah Daerah Hulu Langat [2017] 3 MLJ 561 at [52]. 107 Indira Gandhi v Pengarah Jabantan Agama Islam Perak [2018] 2 AMR 313. For an insightful discussion of this case, see Yvonne Tew Constitutional Statecraft in Asian Courts (OUP 2020) 171–173. 108 Datuk Seri Anwar Ibrahim v Government of Malaysia [2020] 2 AMR 433 at [285]. 109 Leticia Bosman v Public Prosecutor [2020] 6 AMR 801 at [112]. 110 Alma Nudo Atenza v Public Prosecutor [2019] 3 AMR 101.

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Dominant party democracies 1 11 Maria Chin Abdullah v Ketua Pengarah Imigresen [2021] 2 CLJ 579 (Federal Court of Malaysia). 112 ibid [88] (Abdul Rahman Sebil FCJ’s opinion). 113 ibid [122]. 114 Tom Ginsburg and Robert Kagan, ‘Institutionalist Approaches to Courts as Political Actors’, in Tom Ginsburg and Robert Kagan (eds.), Institutions and Public Law: Comparative Approaches (Peter Lang 2020) 6. 115 Azmil Tayeb, ‘Malaysia in 2020: Fragile Coalitional Politics and Democratic Regression’ 61 (2021) Asian Survey 103. https://www.straitstimes.com/asia/se-asia/malaysias-king-says-no-needfor-emergency 116 Dan Slater, Ordering Power: Contentious Politics and Authoritarian Leviathans in Southeast Asia (CUP 2012) 305. 117 See Beng Huat Chua, Liberalism Disavowed: Communitarianism and State Capitalism in Singapore (NUS Press 2017).

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5 TURBULENT DEMOCRACIES Rehan Abeyratne

5.1 Introduction The South Asian countries covered in this volume – Bangladesh, India, Pakistan, and Sri Lanka – are what we term ‘turbulent democracies’. Historically, democratic rule has been precarious in this region. Since independence,1 Pakistan and Bangladesh have experienced several military coups and prolonged periods of emergency rule or martial law.2 India had only one democratic breakdown in the postcolonial era – the ‘Emergency’ (1975–77) – though national security laws have been in place since independence and parts of Kashmir and the Northeast region have been under military rule for several decades.3 Sri Lanka, meanwhile, has never succumbed to a military coup or departed from regular elections. However, Sri Lanka’s simmering ethnic tensions resulted in a 26-year civil war (1983–2009) and longstanding emergency regulations.4 Today, martial law and prolonged emergency periods are no longer the norm. All four countries have elected civilian governments. They have written constitutions that entrench democratic rule, including popularly elected parliaments that serve as the primary law-making bodies. These parliaments are also empowered to amend their respective constitutions with the support of a two-thirds supermajority.5 But over the past decade, South Asian parliaments have had to confront severe institutional turbulence. In Bangladesh and India, Prime Ministers Sheikh Hasina and Narendra Modi, respectively, have effectively become autocratic rulers of one-party states. Their consolidation of power has come at the expense of their respective parliaments, which no longer function as credible deliberative or democratic law-making bodies. Meanwhile, the Pakistani and Sri Lankan parliaments have long operated in the shadow of unaccountable executives, with recent political scandals leading to the ouster of populist, authoritarian-leaning leaders (Imran Khan and Gotabaya Rajapaksa, respectively), leaving democracy hanging in the balance. Higher courts in the region have struck down duly enacted constitutional amendments (India and Bangladesh),6 declared certain constitutional features unamendable (Pakistan),7 and opined on the constitutionality of draft amendment bills (Sri Lanka).8 However, aside from preventing blatantly illegal power grabs, these courts have failed to meaningfully protect the democratic process or empower their country’s parliament vis-a-vis the executive.9 This chapter examines recent turbulent episodes that exemplify how executives in Bangladesh, India, Pakistan, and Sri Lanka have centralized power with little to no judicial resistance. 58

DOI: 10.4324/9781003109402-6

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It does not aim to provide a complete account of executive aggrandizement or democratic decline in these countries,10 nor does it explore internal explanations for parliamentary dysfunction in South Asia.11 Rather, it seeks to demonstrate how institutional turbulence has left South Asian parliaments weakened and, in some cases, crippled today.

5.2 Bangladesh Bangladesh was part of British India until 1947. The Indian Independence Act, 1947, an Act of the UK Parliament, divided British India into the Dominions of India and Pakistan, which came into existence on 15 August 1947.12 Pakistan consisted of two Muslim-majority areas, separated by India: West Pakistan (Pakistan today) and East Pakistan (Bangladesh today). Following a bloody war of independence from West Pakistan, which included an intervention from India, Bangladesh gained independence in 1971 and adopted its own Constitution in 1972. That Constitution (with substantial amendments) remains in force today. Article 65 of the Constitution established a unicameral legislature in Bangladesh, with executive power wielded by a government led by the Prime Minister and Cabinet who are drawn from Parliament. In the Westminster mold, the Prime Minister must maintain the confidence of a majority of Members of Parliament to remain in power.13 The early years of independent Bangladesh were tumultuous. The country was ruled under martial law from 1975 to 1979 and 1982 to 1986 and further experienced four periods of emergency rule during which fundamental rights were suspended.14 Following the second martial law period, Bangladesh transitioned to a parliamentary democracy in the early 1990s. The Bangladesh Nationalist Party (BNP) prevailed in the 1991 general elections. Khaleda Zia, the widow of former Prime Minister Ziaur Rehman who had been assassinated in a military coup in 1981, became Prime Minister. Her government enacted the Twelfth Amendment to the Constitution, which reversed some of the authoritarian elements introduced by the Fourth Amendment during an emergency period in 1975.15 While the 1991 elections were fairly contested, opposition members of parliament alleged fraud in a 1994 by-election. An opposition boycott followed, leading to a mass resignation from Parliament in December 1994 to demand the establishment of a non-partisan caretaker government to preside over the 1996 general election.16 The BNP government eventually acceded to this demand by enacting the Thirteenth Amendment to the Constitution in 1996.17 The Thirteenth Amendment created a Non-Party Caretaker Government (NPCTG) to preside over the 1996 general elections and all general elections thereafter. Headed by the most recent former Chief Justice of Bangladesh, the NPCTG would serve as an interim government to ensure the fair conduct of elections and the smooth transfer of power to a new government. However, in 2006, the NPCTG became embroiled in controversy. That year, the BNP-led government passed the Fourteenth Amendment to the Constitution, which raised the retirement age of Supreme Court justices from 65 to 67.18 This change was thought to be motivated by the BNP’s desire to permit one of their former leaders, Chief Justice KM Hasan, to retire on the eve of the 2007 general election so that he could helm the NPCTG in that critical period.19 The main opposition party, the Awami League (AL), strongly opposed what it believed was political interference with the NPCTG, leading to violent clashes between its supporters and those of the government. Eventually, a state of emergency was declared from 2007 to 2008 during which Bangladesh was ruled by a military-backed caretaker government.20 General elections were finally held in 2008. Sheikh Hasina, daughter of Bangladesh’s first President Sheikh Mujibur Rahman, led the AL to victory and became Prime Minister for 59

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a second time – a post that, as of 2022, she has not relinquished. Meanwhile, the constitutionality of the Thirteenth Amendment (which had established the NPCTG) was challenged before the Bangladesh Supreme Court. In a preliminary ruling (‘Short Decision’) issued in May 2011, the Court’s Appellate Division (AD) – its chamber of final adjudication – found that the NPCTG was undemocratic and therefore prospectively invalidated the Thirteenth Amendment.21 The Court, however, permitted the NPCTG to be used for the next two general elections and suggested the government reform the mechanism. It noted that the Parliament was ‘at liberty to bring necessary amendments excluding the provisions of making the former Chief Justices of Bangladesh or the Judges of the Appellate Division as the head of the [NPCTG]’.22 Following this preliminary judgment, the AL – which controlled a supermajority in Parliament – moved to amend the Constitution to abolish the NPCTG. The Fifteenth Amendment, enacted in 2011, fundamentally altered the constitutional landscape in Bangladesh.23 Among more than 50 changes to the constitutional text, this amendment added ‘secularism’ to the values listed in the Preamble, made it an offence to abrogate or suspend the Constitution in Article 7A, and placed the Constitution’s ‘basic structures’ including the chapter on fundamental rights beyond the scope of amendment in Article 7B. Most importantly for present purposes, the Fifteenth Amendment abolished the NPCTG. Its abolition led to months of protests from opposition parties in Parliament, followed by a boycott of the 2014 elections.24 As a result, the outcome of that election was a foregone conclusion, with more than half the seats left uncontested, and the AL winning a landslide victory. While the opposition participated in the subsequent general elections in 2018, the AL won 288 out of 300 seats in an election that has been described as a ‘stage-managed show’25 and ‘transparently fraudulent’.26 In addition to election-related chicanery, the AL government under Prime Minister Sheikh Hasina has systematically targeted opposition politicians and the media using both legal and extralegal means. Corruption is rampant in Bangladesh, with both the government and opposition leaders engaged in illegal activities. However, law enforcement has been politicized such that it targets only opposition figures, while incumbent leaders are free to operate with impunity.27 Indeed, all the cases (15 in total) filed by the BNP and the NPCTG against Sheikh Hasina were dropped by 2010.28 Meanwhile, opposition leader Khaleda Zia was placed under house arrest prior to the 2014 elections, and the government filed 36 criminal cases against her from 2012 to 2019.29 In 2018, she was found guilty of a corruption-related offense and sentenced to five-years in prison – a sentence later increased to ten years by the High Court. Opposition critics in the media, including bloggers, have been targeted under the Information and Communication Act 2006 (amended in 2013), which criminalizes the publication of materials which are ‘false’, ‘prejudicial to the state or person’ or that hurt ‘religious beliefs’.30 Prior to the 2018 elections, the Bangladesh Parliament passed the Digital Security Act 2018, enabling the AL government to more effectively silence critics engaging in online speech.31 Bangladesh over the past decade has also witnessed a slew of extrajudicial killings and enforced disappearances.32 The main targets of these abuses have been members of the political opposition and media voices that were critical of the government. Of particular concern is that these attacks appear to have been ratcheted up in the lead up to elections. For instance, there were fewer than 200 extrajudicial killings from 2015 to 2017, but more than 400 in 2018 when general elections were held.33 As Sheikh Hasina and the AL have consolidated power and eroded parliamentary democracy in Bangladesh, the Supreme Court has not intervened on the side of parliament 60

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or democracy. To the contrary, the Court’s 2011 ‘Short Decision’ declaring the NPCTG unconstitutional precipitated Bangladesh’s democratic decline.34 The Supreme Court AD later issued a full judgment on this issue.35 It held that the Thirteenth Amendment, which created the NPCTG, violated two pillars of the Constitution’s basic structure: democracy and judicial independence. On democracy, the Court noted that the NPCTG was an unelected government, contrary to democratic principles. The Court further pointed to the 2006–08 constitutional crisis, when Bangladesh experienced widespread unrest and emergency rule in the buildup to general elections, as evidence that the caretaker mechanism was ineffective.36 On judicial independence, the Court found that the BNP government’s manipulation of judicial appointments to have their preferred candidate helm the NPCTG had ‘erode[d] the people’s perception towards the independence of the judiciary’.37 For these reasons, the Supreme Court AD ruled that the Thirteenth Amendment was unconstitutional, thereby lending legitimacy to the AL government’s decision to abolish the NPCTG. Though it had its warts, the NPCTG was a vital guardrail protecting Bangladesh’s fragile parliamentary democracy. Once it was taken away – with the Supreme Court’s blessing – the AL government administered the next two general elections (2014 and 2018), which saw Bangladesh slide towards authoritarianism and single-party dominance. Bangladesh is scheduled to have its next general elections in 2023. It is difficult to envision any result other than a preordained victory for the AL in which Sheikh Hasina further entrenches authoritarian rule and renders Parliament even less effective as a deliberative body and check on the executive.

5.3 India India has experienced a less tumultuous independent history than Bangladesh. Its postcolonial republican Constitution, adopted in 1950, remains in force today. The Constitution established a parliamentary democracy in which the government is headed by the Prime Minister, who along with a Council of Ministers (Cabinet), exercises executive power.38 Unlike Bangladesh, India has a bicameral parliament. The government must maintain the support of a majority of members of the lower house (Lok Sabha) to remain in power. The upper house (Rajya Sabha) represents the states and was intended to serve as a check on the lower house.39 As we shall see, however, it has been rendered almost powerless under Prime Minister Narendra Modi. India’s post-independence period can be roughly divided into four political orders.40 The Indian National Congress (INC) was hegemonic in the first order (1952–67), dominating both national and state level elections.41 The INC was the main driver behind India’s independence movement from Britain and one of leaders of that movement, Jawaharlal Nehru, served as Prime Minister from independence until his death in 1964. Nehru’s passing precipitated the second order (1967–89), which was dominated by his daughter, Indira Gandhi, who served as Prime Minister from 1966 to 1977.42 In 1975, the Allahabad High Court found Prime Minister Gandhi guilty of election fraud in the 1971 general elections. Facing widespread criticism and demands for her resignation, she declared a state of emergency in June 1975. During the ensuing Emergency period, Gandhi’s government suspended fundamental rights, including habeas corpus, and jailed political opponents.43 Gandhi finally called an end to the Emergency in March 1977 in the face of sustained political and civil society opposition. In the ensuing general elections, the INC was defeated by the opposition Janata Party. The new government moved quickly to rescind some of the controversial constitutional amendments passed during the Emergency, restoring fundamental 61

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rights to their original place, and reasserting judicial independence.44 The Janata government further repealed laws that suppressed free speech and suspended habeas corpus and sought to protect against subsequent abuses of power.45 To wit, Article 352 of the Constitution, which was invoked by Prime Minister Gandhi in 1975 to declare an Emergency due to an ‘internal disturbance’, was amended to remove that phrase and replace it with ‘armed rebellion’. Despite her fall from grace, Gandhi and the INC returned to power in the 1980 general elections. She served as Prime Minister from 1980 until her assassination in 1984. Her son, Rajiv Gandhi, took over as Prime Minister until 1989. During this period, opposition to INC dominance began to emerge at the state level, as caste-based and regional parties emerged as viable political alternatives to the predominantly elite, secular, and high-caste leadership of the INC.46 The third political order (1989–2014) was characterized by a splintering of political power, leading to – often fragile – coalition governments and relatively weak Prime Ministers.47 It witnessed the national rise of these erstwhile regional parties as well as the emergence of Hindu nationalism as a serious political force. A major catalyst for both these developments was the Mandal Commission, a government body tasked with determining reservations (quotas) for ‘backward classes’. The Commission recommended that 27 percent of government jobs and public university seats should be reserved for Other Backward Castes (OBCs).48 Prior to this, only Scheduled Castes (Dalits) and Tribes were eligible for reservations in the public sector.49 The Commission’s recommendations were put into effect in 1990, leading to OBC groups, including the powerful Yadav community, assuming greater power in national politics. The 1990s and 2000s were characterized by coalition governments in which OBC and other caste-based regional parties were vital partners to more established parties, like the INC, in gaining parliamentary majorities.50 The Mandal Commission also had the unintended political effect of spurring Hindu nationalism. Hindu nationalist leaders capitalized on the perception that the Commission sought to divide Hindus along caste lines.51 They used this provocation to unite upper and lower castes around a common cause. Their target was the sixteenth century Babri Masjid mosque in Ayodhya.52 The Vishwa Hindu Parishad (VHP), a right-wing, nationalist political party, led the Ram Janmabhoomi movement to tear down the mosque and replace it with a temple to the Hindu deity Lord Ram. According to the VHP and its supporters, the mosque stood in Ram’s birthplace. Following months of anti-Muslim rhetoric from the VHP and its allies, combined with overt calls to build a temple on the site of the Mosque, Hindu mobs demolished the mosque in December 1992, setting off widespread communal violence.53 In the aftermath of Ayodhya, Hindu nationalism became a more potent force in New Delhi. The Bharatiya Janata Party (BJP), the standard-bearer of Hindu nationalism, rose to become one of the two major national political parties (along with the INC) in the 1990s and 2000s. In this period, it led coalition governments twice: briefly (less than two weeks) in 1996, and then from 1998 to 2004 under Prime Minister Atal Bihari Vajpayee. The 2014 election ushered in what appears to be a fourth political order – one dominated by a single party and the consolidation of power in the executive.54 Following two consecutive terms of INC-led coalition governments, the BJP swept back into power. The BJP won a landslide victory in 2014 – the most dominant victory in 30 years and the first time since 1984 that a single party won a majority of seats in Parliament.55 But it was not merely the scale of this electoral victory that marked 2014 as inaugurating a new era in Indian politics. The new Prime Minister, Narendra Modi, was fundamentally different than his predecessors. Unlike the previous BJP Prime Minister Vajpayee, who was a moderate within his party, Modi was 62

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best known for serving as Chief Minister of Gujarat during the 2002 pogroms that resulted in more 1,000 Muslim deaths.56 Moreover, Modi ran a personality-driven campaign leading up to the 2014 elections that was reminiscent of a presidential election rather than the party-based campaigns that had hitherto characterized parliamentary elections in India. Slick holograms, foreign consultants, and extensive cross-country country travel were the hallmarks of Modi’s campaign. He and the BJP converted the campaign into an individual contest between Modi, who came from a non-elite lower caste background, and the INC leader Rahul Gandhi, the wealthy and highcaste scion of the Nehru-Gandhi Dynasty.57 This campaign proved so effective that it not only resulted in a dominant BJP victory but also relegated the INC to a mere 44 seats (out of 545), less than the requisite 55 seats needed to serve as the official opposition party. Once in power, Modi systematically disempowered parliament and other checks on his authority. A full account of these measures is beyond the scope of this chapter, but they include failing to appoint a leader of the opposition,58 politicizing the previously independent Election Commission (and thus ensuring victory in the 2019 general elections),59 and coopting Supreme Court justices with the lure of prestigious government posts upon their retirement.60 As Tarun Khaitan has argued, these measures, taken collectively, constitute a systematic assault on democratic institutions in India that is unprecedented in the country’s independent history.61 With respect to Parliament specifically, Modi’s government has capitalized upon preexisting institutional weaknesses and constitutionally questionable practices. Consider, for instance, the ‘anti-defection’ law that was introduced through a constitutional amendment in 1985.62 The law was intended to curb the practice of legislators defecting to opposing parties. Defection not only threatened the stability of coalition governments but also led to a form of bribery in which members of parliament (MPs) were paid large sums to defect.63 The antidefection law sought to end this practice, providing that MPs who did not align with their party whip on a vote could be disqualified from holding office. An unfortunate side effect of the law, however, has been to deprive MPs of their independence, resulting in a lack of deliberation and debate on major legislation. MPs simply vote the party line. Madhav Khosla and Milan Vaishnav argue that this inverts the relationship between parliament and the executive. As they put it, ‘The executive controls the ruling party, and the ruling party controls how legislators can vote. The executive no longer answers to Parliament. Rather, Parliament answers to the executive’.64 The executive has become even more unmoored from parliamentary constraints since 2014. Generally, bills that are passed in the lower house of Parliament must also be approved by a majority of the upper house. The upper house in India is predominantly elected by state legislatures, which has made it less vulnerable to BJP capture. Indeed, since 2014, the BJP has not been able to secure a majority in the upper house. But with the backing of a robust majority in the lower house, whose members face expulsion if they do not toe the party line, the Modi government has been empowered to circumvent the upper house.65 In doing so, it has relied on constitutionally dubious practices. I highlight two of them below. First, Article 110 of the Indian Constitution enables the Speaker of the lower house to designate bills relating to financial matters as ‘money bills’. Once certified as such by the Speaker, these bills can be passed solely with the support of a majority in the lower house – the upper house’s approval is not required. The Modi government has used this mechanism to pass sweeping legislation outside the realm of ordinary financial matters.66 The most glaring example is the Aadhar Bill 2016, which implemented a nationwide biometric identification scheme. Certified by the Speaker as a ‘money bill’, the bill was signed into law with no 63

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involvement of the upper house. A five-judge bench of the Supreme Court upheld constitutionality of the Aadhar Act. The judgment focused on whether the act violated the constitutional right to privacy and other fundamental rights, effectively ignoring that its passage as a ‘money bill’ was constitutionally suspect.67 In dissent, Justice Chandrachud strongly opposed the judgment and made clear the constitutional stakes involved. He wrote: Superseding the authority of the Rajya Sabha is in conflict with the constitutional scheme and the legitimacy of democratic institutions. It constitutes a fraud on the Constitution. Passing of a Bill as a Money Bill, when it does not qualify for it, damages the delicate balance of bicameralism which is a part of the basic structure of the Constitution.68 The Modi government has gone on to use this mechanism more frequently than any past government to pass legislation on controversial issues without any oversight from the upper house.69 Second, the Modi government has used the ordinance mechanism to bypass the upper house. Article 123(1) of the Indian Constitution provides that the President may enact ordinances ‘at any time, except when both Houses of Parliament are in session’ and ‘circumstances exist which render it necessary for him to take immediate action’. Interestingly, this is not an emergency provision – the President must simply be satisfied that enacting an ordinance is necessary.70 Article 123(2) makes clear that ordinances ‘shall have the force and effect as an Act of Parliament’, meaning that, in substance, they are no different from legislation. Moreover, the President is a ceremonial figure in India, who exercises power pursuant to the advice of the Prime Minister and Council of Ministers.71 All told, the Prime Minister effectively has the power to rule by decree – a power that has been used regularly in independent India, but with greater frequency in the Modi era. In theory, the ordinance power is a limited one – ordinances are supposed to be temporary and expire six weeks after Parliament reconvenes unless signed into law.72 But Prime Ministers have circumvented this restriction by re-promulgating lapsed ordinances when Parliament adjourns.73 The practice of re-promulgation has been challenged on several occasions before the Supreme Court. In DC Wadhwa v State of Bihar (1987),74 the Court was asked to rule on the constitutionality of more than 250 ordinances that had been re-promulgated in the State of Bihar.75 The Court denounced the practice of re-promulgation as ‘subverting the democratic process’ and ‘a fraud on the Constitution’.76 However, the judgment had little practical effect. While one of three ordinances at issue in this case was struck down, the Court did little to curb this problematic practice. It said simply that it would ‘hope and trust that such practice shall not be continued in the future’.77 Further, the judgment permitted the executive to re-promulgate ordinances in certain instances, including if the legislature has ‘too much…business’ or if the ‘time at the disposal of the legislature… [is] short’.78 Eventually, these exceptions swallowed the rule; that is, ordinances continue to be promulgated and re-promulgated at both the central and state levels without the government having to prove a compelling need to do so.79 The constitutionality of ordinances was at issue again in Krishna Kumar Singh v State of Bihar (2017).80 The case, emerging out of a series of state-level ordinances in Bihar, concerned whether a lapsed ordinance continued to have legal effects. The Supreme Court in this case expressed much the same outrage as in DC Wadhwa. Justice Chandrachud’s majority opinion for a seven-judge bench held that lapsed ordinances would ordinarily cease to have enduring legal effects. To rule otherwise would give ordinances a ‘degree of permanence…in derogation of parliamentary control and supremacy’.81 The Court also reaffirmed the holding of 64

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DC Wadhwa that re-promulgation constituted a ‘fraud on the Constitution and a subversion of the democratic process’.82 The judgment further established some conditions for the executive to follow in promulgating ordinances.83 Most importantly, Justice Chandrachud held that for ordinances to have the full legal effect of legislation under Article 123 of the Constitution,84 they must be tabled before Parliament when the legislature resumes its session.85 They must also be accompanied by ‘a statement explaining the circumstances which necessitated immediate legislation by ordinance’.86 While previous judgments had limited judicial review to re-promulgated ordinances, Justice Chandrachud made clear that courts may intervene if the executive exercises the ordinance power in bad faith or fails to provide reasons for its use.87 But, as in DC Wadhwa, the Court’s bark was greater than its bite. The Krishna Kumar Singh judgment did not clarify whether the exceptions the Court had carved out in DC Wadhwa to permit the re-promulgation of ordinances remained good law. And while it ruled that lapsed ordinances ordinarily lack continuing legal effects, the Court provided that in cases of constitutional necessity or public interest, ordinances may confer legal rights and liabilities after ceasing legal operation.88 As Gaurav Mukherjee argues, the ‘lack of sharpness’ of these tests ‘may lead to courts accepting a wide category of justifications from an executive government which is unwilling or unable to undo the effects of an ordinance’.89 From 2014 to 2019, the Modi government issued 55 ordinances, the most of any government since the mid-1990s.90 The government promulgated a further 14 ordinances in 2020, many of which pertained to non-urgent matters such as MP salaries and bankruptcy, as well as controversial issues that should have been handled by Parliament, such as agricultural reform.91 Along with the use of ‘money bills’, this is part of a coordinated effort to circumvent the upper house and evade accountability in Parliament specifically, and to weaken democratic institutions in India more broadly. Despite objections from the Supreme Court, it has not put an end to these practices, nor has it taken a stand against the Modi government’s systematic institutional assault on parliamentary democracy in India.

5.4 Pakistan Of the four countries discussed in this chapter, Pakistan has perhaps had the most turbulent modern history. As discussed, British India at independence was divided into the Dominions of India and Pakistan. Pakistan’s Dominion period (1947–56) would entrench two pillars of the country’s post-independence constitutional order: (1) broad executive powers; and (2) a prominent role for the military.92 Pakistan was governed in this period under the Indian Independence Act, 1947, along with the Government of India Act, 1935. The latter had served as the Constitution of British India during the final years of the colonial period. This constitutional framework instituted parliamentary democracy modeled on the Westminster system, but with significant power vested in a Crown-appointed Governor-General.93 Muhammad Ali Jinnah, Pakistan’s independence leader, notably chose to assume the position of Governor-General rather than Prime Minister in 1947, thereby affirming the relative importance (and power) of the two roles. Indeed, in the colonial era, the Governor-General wielded almost plenary power 94 – a fact that was not lost on Jinnah, who had fought against colonial rule as leader of the All-India Muslim League since 1913. During the transition from colonial to dominion rule, the Governor-General was empowered, inter alia, to issue orders amending the Government of India Act, 1935 and other colonial-era laws to suit the needs of Dominion Pakistan; to divide powers, rights, property, duties, and liabilities among the provinces; and to enter into agreements on behalf of the Dominion.95 65

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The challenging circumstances around Pakistan’s formation called for strong executive leadership. While India inherited the legal identity and government apparatus from the British colonial government in Delhi, Pakistan was cast as a ‘seceding state’ and had to build its government infrastructure from scratch.96 Pakistan had also been given a paltry share of assets from British India, including an ‘inequitable division of the British Indian Army’.97 This inequity was highlighted by the Indo-Pakistani War (1947-49) over Kashmir in which India claimed two-thirds of the disputed territory. Pakistan further had to contend with the effects of Partition, which killed two million people and created one of the largest refugee crises in history. The arrival of millions of Muslim migrants from India, most of whom arrived without any property or wealth, placed a severe economic burden on the new state.98 Provincial legislatures – faced with a humanitarian crisis – were unwilling to spend their limited financial resources on the military.99 With the treat of India looming, and the country under severe socio-economic stress, Jinnah used the Governor-General’s transitional powers to insert a provision into the Government of India Act, 1935 that enabled him to unilaterally declare a state of emergency and to dismiss provincial governments at will. Like British Governors-General during the colonial era, Jinnah further ensured that major government offices continued to report solely to him and that he maintained the ordinance-making power, which permitted the GovernorGeneral to rule by decree.100 As a result, executive ordinances provided for significant military expenditures and a more prominent role of the army.101 Moreover, Jinnah twice declared a state of emergency to dismiss provincial governments and placed them under the direct (and authoritarian) rule of the governor.102 The effects of the Dominion period would persist in republican Pakistan. Pakistan adopted its first republican Constitution in 1956, following tense and embattled negotiations through two constituent assemblies.103 It maintained a parliamentary system of government, with an executive (the President) who continued to wield significant power, allied with the military. Indeed, before elections could be held under the new Constitution, President Iskander Mirza in 1958 dissolved both the National and State Assemblies and annulled the 1956 Constitution.104 Martial law was declared throughout the country, with opposition politicians arrested, political parties abolished, and public gatherings banned.105 President Mirza appointed General Ayub Khan as the Chief Martial Law Administrator. Following a Supreme Court judgment that legitimized the coup,106 Ayub Khan took over the reins of the presidency, sending former President Mirza into exile. Under Khan’s military regime, a new Constitution was promulgated in 1962. While the 1962 replaced the martial law framework, it did not signal the return of democratic government. Rather, it centralized power in an executive president, who was not accountable to the unicameral legislature (National Assembly) or to the people.107 Following prolonged civil unrest, Ayub Khan resigned in 1969 to be replaced by another military general – Yahya Khan – who promptly declared martial law and ruled as both President and Chief Martial Law Administrator from 1969 to 1971.108 The cycle of military rulers came to a temporary halt in the early 1970s. General elections for the National Assembly were held in 1970: the first democratic elections held since Pakistan gained independence in 1947. The East Pakistan-based Awami League, led by Sheikh Mujibur Rahman, won a majority of seats. However, General Yahya Khan and Zulfikar Ali Bhutto – Chair of West Pakistan’s largest party, the Pakistan People’s Party (PPP) – were unwilling to permit Rahman, a Bengali nationalist who had led a movement for greater autonomy in East Pakistan, assume the role of Prime Minister.109 General Khan appointed Nurul Amin – a more conservative Bengali leader – as Prime Minister to craft a compromise between the AL and the PPP. 66

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The undemocratic appointment of Nurul Amin led to mass protests in East Pakistan, which were brutally suppressed by the Pakistani army.110 On 26 March 1971, East Pakistan declared its independence as Bangladesh, leading to an eight-month long War of Independence. Pakistan finally surrendered on 16 December 1971, two weeks after India decisively intervened on Bangladesh’s side.111 Following this military defeat, and the breakup of the country, the military handed the reins of power to Zulfikar Bhutto. He had a popular mandate, as the PPP won a majority of seats in then-West Pakistan in the 1970 elections. Nonetheless, Bhutto initially took on the role of Chief Martial Law Administrator until an Interim Constitution was adopted in 1972.112 Pakistan’s fourth (and current) Constitution was adopted on 14 August 1973. The 1973 Constitution established a bicameral parliament, consisting of a popularly elected National Assembly (lower house) and a Senate (upper house) representing – and largely elected by – provincial assemblies.113 It, therefore, reestablished parliamentary democracy, with Bhutto serving as the first Prime Minister. The 1973 Constitution vested executive power in the largely ceremonial figure of the President, who would act on the advice of the Prime Minister and cabinet.114 In other words, Bhutto as Prime Minister effectively wielded executive power. And though he now wielded this authority in a civilian capacity, Bhutto continued to rule in the vein of his military predecessors. Indeed, the day after the new Constitution came into force, he asked the President to issue an order to extend the state of emergency that had been imposed during the Bangladesh War of Independence.115 That order, which the President duly executed on the Prime Minister’s advice, suspended fundamental rights in the Constitution for Bhutto’s entire term in office.116 Bhutto’s government, supported by a large majority in parliament, subsequently pushed through seven constitutional amendments from 1974 to 1977 that further centralized power in the executive and weakened both political opposition parties as well as the courts. The First Amendment, for example, permitted the government to ban political parties that operated ‘in a manner prejudicial to the sovereignty or integrity of Pakistan’.117 The Third Amendment expanded the scope of executive-ordered preventative detention,118 while the Fourth Amendment limited judicial review of such detention.119 The Fifth and Sixth Amendments targeted the judiciary by, inter alia, further limiting the scope of judicial review,120 and extending the terms of chief justices past the retirement age with the intent to keep the incumbent Chief Justice in power for longer.121 In the 1977 general elections, Bhutto and the PPP won 155 out of 200 seats in the National Assembly. The main opposition party, the Pakistan National Alliance (PNA), challenged the results following credible allegations of vote rigging and other electoral misconduct.122 The PNA demanded new elections be held under military supervision – demands to which Bhutto eventually acquiesced. However, on 5 July 1977 – the day an agreement was to be signed to hold new elections – General Zia-ul-Haq, Chief of the Army, staged a military coup. Bhutto’s government was overthrown, and the country once again would be ruled under martial law.123 Though Zia promised to hold elections within 90 days, Pakistan ultimately remained under martial law until 1985. The Constitution was held in abeyance during this period, with fundamental rights suspended and political opposition suppressed.124 The Supreme Court in this period, just as it had under General Ayub Khan, issued rulings that legitimized the military coup and General Zia’s actions under martial law.125 The Court denied Bhutto’s petition for release from detention, holding that the coup and all acts thereafter – including laws and decrees to bring about law and order – were justified under a doctrine of ‘state necessity’.126 Thus, the Court gave broad authorization to Zia’s regime to act as it saw fit, limited 67

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(in theory) only by the continuing necessity of those measures, after which the Court urged ‘the earliest possible holding of free and fair elections’.127 When Zia finally lifted martial law and reinstated the 1973 Constitution on 30 December 1985, he did so only after it had been substantially altered by the Eighth Amendment to the Constitution.128 This amendment conferred constitutional validation on all the military orders and regulations issued during the martial law period and provided immunity to all those involved in the execution of those orders and regulations.129 Most significantly, it inserted Article 58(2)(b) into the 1973 Constitution – a provision that harkened back to Pakistan’s Dominion period. Article 58(2)(b) enables the President ‘to dissolve the National Assembly in his discretion where, in his opinion, the Government of the Federation could not be carried on in accordance with…the Constitution’. Thus, it conferred independent and broad executive power on the President, who hitherto under the 1973 Constitution had been largely limited to acting on the advice of the Prime Minister and cabinet. Zia’s death in a plane crash in 1988, followed by general elections later that year, returned Pakistan to democratic rule.130 The late 1980s and 1990s witnessed two political parties vying for power: the PPP led by Benazir Bhutto (Zulfikar Bhutto’s daughter) and the Pakistan Muslim League (PML-N) led by Nawaz Sharif. However, while both leaders served multiple terms as Prime Minister, they did so in the shadow of an unaccountable presidency, backed by the military. Three successive parliaments – two controlled by the PPP and one by the PML-N – were dissolved under Article 58(2)(b), with Prime Ministers Bhutto and Sharif, respectively, being removed from power prior to the end of their five-year terms.131 In a series of judgments in the 1990s, the Supreme Court upheld these dissolutions as well as the constitutionality of the Eighth Amendment.132 The doctrinal tests and reasoning deployed in these judgments were haphazard and inconsistent. As Moeen Cheema put it, ‘By the end of the decade, no consistent constitutional logic or doctrine rationalizing the political cases was discernable, as the Supreme Court appeared to be relying on changing interpretations of various constitutional provisions at stake’.133 Prime Minister Sharif finally sought to end this practice following the 1997 general elections. The PML-N secured a two-thirds super majority in both houses of Parliament: the threshold required to enact constitutional amendments.134 Sharif ’s government pushed through the Thirteenth and Fourteenth Amendments to the Constitution, which returned Pakistan to a parliamentary democracy. The Thirteenth Amendment abolished Article 58(2)(b), thereby preventing the President from unilaterally dissolving Parliament.135 The Fourteenth Amendment provided for the disqualification of members who defected or breached party discipline.136 Much like the anti-defection law in India, it was passed with a view to stabilizing parliamentary majorities so that governments could serve their full terms. For good measure, the Fourteenth Amendment also prevented a vote of no-confidence being brought against Prime Minister Sharif during the five-year parliamentary term. All told, the Prime Minister now wielded executive power, with the President returned to a ceremonial role.137 However, in 1999, General Pervez Musharraf overthrew Sharif ’s government, suspended parliament, and instituted emergency rule. The 1973 Constitution was once again held in abeyance as Musharraf assumed the newly minted role of Chief Executive of Pakistan.138 In 2001, Musharraf removed the incumbent President – who was merely a figurehead at this point – and took on the position himself. He then staged a popular referendum in which he received 97 percent of the votes and ‘legitimized’ his five-year presidential term.139 As President, Musharraf issued a Legal Framework Order in 2002 that barred both the PPP and PML-N from contesting the elections to be held in October that year. Perhaps most significantly, this 68

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Order also revived Article 58(2)(b), which had been abolished by the Thirteenth Amendment, permitting Musharraf (and future presidents) to dissolve Parliament at will.140 With these changes in place, and following the passage of the Seventeenth Amendment in 2003 by a pliant Parliament, Musharraf finally restored the 1973 Constitution. The Seventeenth Amendment, much like the Amendments passed during Zia’s regime, granted immunity to the military for its actions since the 1999 coup, validated all the orders and regulations taken under emergency rule, and permitted Musharraf to remain in power until 2007.141 Facing public pressure to return to civilian rule, Musharraf permitted general elections to be held in 2008. This time, the PPP and PML-N were allowed to participate, and they won more seats in the National Assembly than the pro-Musharraf parties.142 PPP leader Yousaf Gillani became Prime Minister, and the military gradually withdrew from the government. In the face of united political opposition, and with fading military support, Musharraf finally resigned as President in August 2008. Benazir Bhutto’s widower143 and PPP co-chairman Asif Ali Zardari was elected as the next President.144 Pakistan has been governed by elected governments since 2008 – the longest period of civilian rule in its history. The Eighteenth Amendment (2010) once again removed Article 58(2)(b) from the Constitution, reducing the discretionary powers of the President and making the executive more accountable to Parliament.145 This amendment would prove vital in protecting democracy in Pakistan from its latest threat: an attempt by Prime Minister Imran Khan to have the President dissolve Parliament so that Khan could avoid a no-confidence vote. Following the Panama Papers leak in 2016, Imran Khan, then a Member of Parliament, petitioned the Supreme Court to investigate the financial dealings of Nawaz Sharif, who was serving his third term as Prime Minister (2013–17).146 Article 62(1)(f ) of the Constitution requires those standing for elections to Parliament as well as sitting parliamentarians to be ameen (trustworthy in a Quranic sense).147 The Supreme Court had interpreted this provision broadly to disqualify several members of Parliament who had been found guilty of dishonesty by lower courts. In Prime Minister Sharif ’s case, the Court disqualified him from holding public office for life under Article 62(1)(f ) after its investigation revealed that he possessed millions of dollars’ worth of property in the UK and in several offshore companies.148 Imran Khan became Prime Minister in 2018 after his party – Pakistan Tehreek-e-Insaf (PTI) – upset the PML-N and PPP to win a majority of seats in the general elections that year. Khan ran as a populist outsider, promising to reform the government from the corruption and mismanagement that characterized PML-N and PPP governments.149 After becoming Prime Minister, Imran Khan systematically targeted other opposition leaders through corruptionrelated charges, including former President and PPP co-chairman Asif Ali Zardari.150 In early 2022, Pakistan faced a balance of payments crisis, leading to public outrage over rising fuel and food costs. Prime Minister Khan was blamed for his haphazard approach to the crisis. He had cycled through four finance ministers and six finance secretaries from 2018 to 2022.151 His government had also failed to meet the conditions for a bailout from the International Monetary Fund (IMF), leading the IMF to suspend its financial assistance to Pakistan in 2019. Meanwhile, the military had soured on his government, after it had backed him in 2018.152 As we have seen, military support is the sine qua non for civilian leaders in Pakistan to remain in power. With the public and the military turning against Imran Khan, the PPP and PML-N – whose leadership Khan had targeted – were determined to remove him from power. They planned to hold a no-confidence vote against the Prime Minister in April 2022.153 However, citing baseless accusations of foreign interference, the Deputy Speaker of Parliament – a 69

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member of the PTI party – refused to allow the vote to proceed citing the overriding importance of national security.154 Shortly thereafter, Prime Minister Khan asked President Arif Alvi to dissolve parliament and call for new elections.155 The Supreme Court intervened on its own accord – before any petitions were filed before it – using its extraordinary suo motu powers. The Court noted that the Deputy Speaker’s actions were prima facie unconstitutional and that it ‘acted…with the sole purpose of preserving constitutional order in the country’.156 Article 95 of the 1973 Constitution sets forth the procedures for a vote of no-confidence in the Prime Minister. It provides that if a resolution for a no-confidence is moved by 20 percent or more of the total membership of the National Assembly, it must be voted upon between three and seven days thereafter.157 The Court held that once moved, it is mandatory to hold a no-confidence note. In refusing to permit that vote, the Deputy Speaker violated Article 95 of the Constitution and his order was ruled ‘devoid of legal effect’.158 The Court proceeded to consider the constitutionality of the Prime Minister’s advice to the President to dissolve parliament. Article 58(1) of the 1973 Constitution permits the President to dissolve the National Assembly on the advice of the Prime Minister. However, the Eighteenth Amendment – which was intended to limit the President’s power in this area – had included an explanation with this provision. It stated as follows: Reference in this Article to “Prime Minister” shall not be construed to include reference to a Prime Minister against whom a notice of a resolution for a vote of no-confidence has been given in the National Assembly but has not been voted upon. As the Court noted, this explanation was intended to cover precisely the situation at issue here: a Prime Minister, fearing the loss of power, who seeks to have parliament dissolved to avoid a no-confidence vote.159 Thus, the Court ruled that Imran Khan’s advice to the President was unconstitutional and the President’s order dissolving the National Assembly had no legal force.160 Following this landmark judgment, Imran Khan was removed from office through a vote of no-confidence.161 He was replaced as Prime Minister by Shehbaz Sharif, who had taken over as President of the PML-N after his brother Nawaz Sharif ’s disqualification from office. Pakistan, therefore, remains under civilian rule, with the Supreme Court – not the military – intervening in response to a constitutional crisis. The guardrails supplied by the Eighteenth Amendment worked to prevent Imran Khan’s blatantly unconstitutional attempt to dissolve parliament. Of course, the military’s forbearance – due to its rift with Khan – was crucial in enabling the Court to intervene as it did. It seems unlikely, based on Pakistan’s constitutional history, that the Court would have taken a similar stand in defense of the Constitution if it were opposed by the military. Considering the deep-seated corruption and economic crisis in Pakistan, it also remains to be seen how much longer the military will permit Pakistan’s dysfunctional parliamentary democracy to operate without resorting to martial law or emergency rule.

5.5  Sri Lanka Like Pakistan, Sri Lanka experienced a long Dominion period (1948–72) after securing independence from Britain in 1948, followed by multiple republican constitutions. Sri Lanka (then Ceylon) was initially governed by a Dominion Constitution that was very much a product of 70

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the colonial era.162 It is usually referred to as the ‘Soulbury Constitution’ as it emerged from the recommendations of a constitutional reform Commission,163 led by Lord Soulbury, who would later serve as Ceylon’s first governor-general. The Soulbury Commission’s recommendations, in turn, were drawn from a Ministers’ Draft Constitution that was largely the handiwork of British constitutional scholar Sir Ivor Jennings.164 The Soulbury Constitution effectively transplanted the Westminster system to Ceylon, with a bicameral parliament exercising legislative power.165 It vested executive power in a Governor-General, appointed by the British Monarch, who would act on the advice of the Prime Minister and cabinet.166 The elite, colonial nature of the Soulbury Constitution would ultimately be its undoing. Not only did the constitution-making process lack any broad-based public consultation – and therefore alienated the Tamil and Muslim minorities – but it also enabled the rise of Sinhala nationalism. It fed the perception that Ceylon as a dominion lacked sovereignty over its own affairs, which was exploited by nationalist politicians to engineer its downfall.167 In 1972, Ceylon became Sri Lanka and adopted its first republican Constitution. The 1972 Constitution was short-lived, but some of its core features have endured. In a nod to Sinhala nationalism, it proclaimed Buddhism as the religion with ‘foremost place’ that the state must ‘protect and foster’168 and declared Sinhala the ‘Official Language of Sri Lanka’.169 It further departed from the Soulbury Constitution by establishing a unicameral National State Assembly and a Constitutional Court. The latter was empowered only to conduct preenactment judicial review; in other words, it could only review the constitutionality of bills in draft form.170 And if the Court declared a bill incompatible with the Constitution, the National State Assembly could nonetheless enact it into law with the support of two-thirds of its members.171 The 1978 Constitution retained many of these features, including conferring special status on Buddhism and the Sinhala language and maintaining a unicameral legislature (renamed Parliament).172 The Constitutional Court was abolished, but the Supreme Court was similarly limited to performing pre-enactment review.173 And, as in the 1972 Constitution, a twothirds majority in Parliament was empowered not only to amend the Constitution but also to enact bills into law notwithstanding their inconsistency with the Constitution.174 The main import of the 1978 Constitution was to convert Sri Lanka from a parliamentary to semi-presidential democracy. It was adopted following the United National Party (UNP) and Prime Minister JR Jayewardene’s landslide election victory in 1977 in which they won approximately 80 percent of National State Assembly seats. A Select Committee, which included members of the opposition and various minority groups, drafted the 1978 Constitution, but the existing Constitution had already been amended to install Jayewardene as President before the Committee even met.175 This was a clear signal that the Committee was convened not to openly discuss and debate the merits of different forms of government, but to impose on Sri Lanka what Jayewardene desired: a system of government modeled on the French Fifth Republic in which Jayewardene hoped to emulate the powerful leadership of President Charles de Gaulle.176 The 1978 Constitution would take Sri Lanka away from the Westminster parliamentary system and institute a powerful executive President. Jayewardene had long advocated a French ‘Gaullist’ executive to bring about more decisive leadership.177 Since 1947, Sri Lanka was ruled by a series of precarious coalition governments that, much like in India’s third political order, were unable to govern effectively. The business of forming coalitions, managing coalition partner interests, and protecting against the threat of dissolution from coalition members often prevented stable executive leadership.178 71

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The executive presidency was intended to overcome these issues. The Sri Lankan President under the 1978 Constitution is the Head of State, Head of Government, and the Commanderin-Chief of the Armed Forces.179 The President is directly elected and does not depend on parliamentary confidence to remain in power.180 The President presides over a Cabinet of Ministers, which like the Prime Minister, are drawn from the majority party in Parliament.181 The President is empowered to nominate the Prime Minister and Cabinet of Ministers, who serve at the President’s pleasure.182 Moreover, the President may assign him or herself any portfolio or function and may dissolve Parliament at any time except during the first year after a general election.183 The 1978 Constitution was arguably enacted in response to legitimate governance challenges and promised a more effective and accountable executive. The concern, however, was that concentrating so much authority in the President would eventually erode democratic rule and lead to authoritarianism. The historian AJ Wilson anticipated this problem in 1980, noting that ‘if the President is in control of a majority in Parliament, he could transform his office into one that approximates to that of a constitutional dictator’. This is precisely what came to pass 30 years later. In 2005, Mahinda Rajapaksa was elected President. Under his leadership, the government finally – and brutally – prevailed in the civil war against the Liberation Tigers of Tamil Eelam (LTTE) in 2009.184 In the aftermath of the war, Rajapaksa’s popularity soared, and he moved to consolidate his (and his family’s) control over Sri Lanka. His government pushed for the enactment of the Eighteenth Amendment to the Constitution in 2010, which greatly expanded presidential power and removed independent checks on that authority. It abolished term limits for the President, who was previously limited to two six-year terms.185 This would allow President Rajapaksa to contest elections (and to potentially remain in power) indefinitely. This amendment also repealed vital constraints that the Seventeenth Amendment had placed on executive power. Enacted in 2001 with multi-party support, the Seventeenth Amendment aimed to depoliticize certain areas of governance. It created an independent Police Commission, Human Rights Commission, and Election Commission, among others.186 The President was permitted to appoint members of these Commissions, but only with the consent of an independent Constitutional Council.187 The Eighteenth Amendment replaced the Constitutional Council with a five-member Parliamentary Council that consisted of the Prime Minister, the Speaker, the Leader of the Opposition, and two Members of Parliament nominated by the Prime Minister and Leader of the Opposition.188 This not only politicized the appointments process but also guaranteed that the President’s appointees would be approved, as three of the five Parliamentary Council members represented the majority party or coalition. The Eighteenth Amendment further empowered the President to appoint the Chairman and members of the following Commissions: the Police Commission, Human Rights Commission, Permanent Commission to Investigate Allegations of Bribery and Corruption, Finance Commission, and the Delimitation Commission.189 In effect, it rendered these Commissions ‘independent’ in name only. Not content to simply control and aggrandize the presidency, the Rajapaksa family’s tentacles extended across Parliament and cabinet positions. Consider the following (incomplete) list of posts that the family controlled from 2005 to 2022. Gotabaya Rajapaksa, Mahinda’s younger brother, served as Defense Minister from 2005 to 2015, where he oversaw military operations at the end of the civil war. He was responsible for the deaths of between 40,000 and 70,000 civilians and was credibly accused of grave violations of international humanitarian law.190 Gotabaya 72

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would later be elected President in 2019. The eldest brother, Chamal Rajapaksa, served as Speaker of the Parliament from 2010 to 2015 while Mahinda was President, and subsequently as Minister of Irrigation from 2020 to 2022 during Gotabaya’s presidency. Younger brother Basil Rajapaksa also held roles in both administrations: he was appointed Minister of Economic Development from 2010 to 2015 and Minister of Finance from 2021 to 2022. Finally, Namal Rajapaksa – Mahinda’s eldest son – served as an MP from 2010 to 2022, including a stint as Minister of Sports and Youth from 2020 to 2022. In this era of Rajapaksa family dominance, there was a brief period of respite in which Sri Lanka appeared to transition to a more accountable and representative government. In the 2015 presidential election, Maithripala Sirisena, who had served as President Mahinda Rajapaksa’s Secretary of Health, ran as the unified opposition candidate against Rajapaksa. His victory – considered a huge upset – ushered in a unity coalition government committed to reform.191 Within a few months of President Sirisena’s term, the Sri Lankan Parliament enacted the Nineteenth Amendment.192 It restored some aspects of the pre-Eighteenth Amendment Constitution, including a two-term limit on presidents and the reintroduction of a Constitutional Council to vet appointments to independent Commissions and the higher judiciary.193 While there was political pressure to abolish the executive presidency and return to a parliamentary system, the Nineteenth Amendment (2015) struck a compromise.194 The presidency would remain, but the President would be barred from dissolving Parliament within the first four and a half years of its term. Moreover, the President could no longer remove the Prime Minister at will, nor hold any cabinet portfolios. The Nineteenth Amendment also made the President accountable to the judiciary: official acts of the President would hereafter fall within the Supreme Court’s jurisdiction over fundamental rights.195 Empowered by the Nineteenth Amendment, the Supreme Court – which is institutionally weaker and has historically been more circumspect than other apex courts in South Asia – stood firm against a blatantly illegal attempt by President Sirisena to make Mahinda Rajapaksa Prime Minister.196 This constitutional crisis took place in October 2018, when the coalition government formed by Sirisena’s United People’s Freedom Alliance (UPFA) and the UNP, headed by Prime Minister Ranil Wickremesinghe, fell apart.197 The rift between these leaders was caused, among other things, by anemic economic growth; trouble repaying debts to foreign lenders, including China;198 and the Rajapaksa party’s dominant victory in the 2018 local elections. On 26 October 2018, the UPFA left the unity government and President Sirisena appointed Mahinda Rajapaksa as the new Prime Minister.199 The sitting Prime Minister, Ranil Wickremesinghe, refused to relinquish his position. On 9 November, with Wickremesinghe continuing to insist that he was the rightful Prime Minister, Sirisena issued a proclamation dissolving Parliament and calling for snap elections.200 The proclamation was promptly challenged before the Supreme Court.201 The lead petitioner, an MP and leader of the opposition, argued, inter alia, that the proclamation, by illegally dissolving parliament, violated he and his fellow MPs right to equality under Article 12(1) of the Constitution.202 A seven-judge bench of the Supreme Court unanimously ruled in the petitioners’ favor. The Court noted that, following the Nineteenth Amendment, Article 70(1) of the Constitution provided that the President ‘shall not dissolve Parliament until the expiration of a period of not less than four years and six months from the date appointed for its first meeting’, unless dissolution is requested by 2/3 of the total membership of Parliament.203 Since that period had not expired and no request for dissolution came from a supermajority of MPs, the President was barred from dissolving Parliament. 73

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The Court went on to hold that the proclamation violated the petitioner’s right to equality under Article 12(1). In response to the government’s contention that Article 12(1) required a showing of differential treatment based on classification, the Court referred to its expansive past jurisprudence in this area wherein it held that Article 12(1) encompassed male fide and arbitrary executive acts as well as ‘the protection of the rule of law’.204 It said: It is a misnomer to equate ‘Equal Protection’ with ‘reasonable classification’. It would clothe with immunity a vast majority of executive and administrative acts that are otherwise reviewable…if this Court were to deny relief merely on the basis that Petitioners have failed to establish ‘unequal treatment’, we would in fact be inviting the State to ‘equally violate the law’.205 Thus, the Supreme Court concluded that the petitioner’s rights, both as a parliamentarian and as a citizen, should be protected from the ‘arbitrary exercise of power’. The Court quashed the proclamation with a declaration that it was null and void. Following the Court’s judgment, Rajapaksa sent a letter of resignation to President Sirisena, and Wickremesinghe was reinstated as Prime Minister. The judgment was hailed not only for ending a constitutional crisis, but also for upholding the rule of law and separation of powers.206 Yet, the Court was only able to intervene due to the Nineteenth Amendment, which limited presidential power vis-a-vis parliament and made the presidential acts subject to judicial review. In the 2019 election, Mahinda’s younger brother and former defense secretary Gotabaya Rajapaksa was elected President, with Mahinda appointed Prime Minister. The Rajapaksas, with full control of government again, swiftly went about removing the guardrails put in place by the Nineteenth Amendment. The Twentieth Amendment, passed in October 2020, permitted the President to remove the Prime Minister at will and to dissolve Parliament after two and a half years (as opposed to four and a half years under the Nineteenth Amendment).207 It abolished the Constitutional Council and replaced it with a partisan Parliamentary Council comprising the Speaker of the House and four members of parliament. It, therefore, gave the President untrammeled authority to appoint members of independent Commissions and the higher judiciary.208 All told, elected representatives in Sri Lanka have been playing what Dinesha Samararatne has called ‘constitutional ping-pong’ over the past two decades, oscillating between more accountable and more authoritarian forms of executive power.209 The reform-oriented Seventeenth and Nineteenth Amendments were countered by the Rajapaksas through the Eighteenth and Twentieth Amendments, respectively. In 2022, Sri Lanka defaulted on its foreign debt, leading to its worst economic crisis since independence.210 The public, facing unprecedented levels of inflation as well as food, oil, and petrol shortages, took to the streets to demand Gotabaya Rajapaksa’s resignation as President.211 After months of turmoil, including government-led violence against protestors, President Rajapaksa fled the country in July 2022 and resigned the presidency. Ranil Wickremesinghe, who in May 2022 had taken over as Prime Minister upon Mahinda Rajapaksa’s resignation, was chosen by Parliament to be the next President. With the Rajapaksas in exile, the Sri Lankan Parliament is now considering the passage of the Twenty-First Amendment,212 which is poised to constrain executive power once again. Yet, as with the Seventeenth and Nineteenth Amendment, the amendment bill does not venture so far as to return Sri Lanka to a parliamentary democracy. As long as the Gaullist system in place, it is hard to imagine that the Twenty-First Amendment will end the cycle of constitutional ping-pong. It is more likely that the cycle will continue when the next strongman 74

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leader assumes the presidency and wishes to operate without the constraints of an autonomous parliament, independent Commissions, and an independent judiciary.

5.6 Conclusion In sum, the turbulent democracies of South Asia are in a tenuous position today. The Bangladeshi and Indian parliaments have been reduced to little more than rubber stamps for furthering the political agendas of the dominant parties. In these countries, Prime Ministers Sheikh Hasina and Narendra Modi, respectively, have centralized power, neutralized the opposition in Parliament, and unshackled themselves from independent checks on their authority. The Supreme Courts of these countries, while maintaining some institutional independence, have been either unwilling or unable to stand as a bulwark against the systematic assault on democracy unfolding before them. With no countervailing institutional or political forces in their way, it seems that the AL in Bangladesh and the BJP in India are well-positioned to maintain their dominance in the next parliamentary elections and beyond. In Pakistan and Sri Lanka, by contrast, executive power has not been vested so squarely in the Prime Minister. While Pakistan has maintained a parliamentary form of government for most of its independent history, it has experienced prolonged bouts of martial law or emergency rule in which the Constitution was held in abeyance and the country was governed by military diktat. Moreover, even in democratic periods, Article 58(2)(b) of the 1973 Constitution permitted Presidents to dissolve elected governments at will, until this practice was ended by the Eighteenth Amendment in 2010. Sri Lanka, meanwhile, is the only one of these countries whose current democratic Constitution vests power in an executive president, who is elected separately from (and is not held accountable to) the Parliament. For these historical and structural reasons, Pakistan and Sri Lanka have long had weak parliaments, which have been unable to gain a foothold among all the institutional turbulence they have faced in recent years. Recent political scandals, leading to the removal of Prime Minister Imran Khan in Pakistan and President Gotabaya Rajapaksa in Sri Lanka, showed that the Supreme Courts in these countries will stand up against blatantly unconstitutional acts, but it is unlikely that this augurs the emergence of a judicial check on executive power. Overall, institutional turbulence has left South Asian parliaments without the autonomy and the democratic culture required for them to function effectively as deliberative bodies, much less to serve as the locus of law-making and political power.

Notes 1 India and Pakistan (including Bangladesh) achieved independence from the British in 1947, Sri Lanka in 1948. Bangladesh then gained its independence from Pakistan in 1971. 2 Po Jen Yap, Courts and Democracies in Asia (CUP 2017) 135, 157. 3 For an overview and critique of national security laws in India, see Surabhi Chopra, ‘National Security Laws in India: The Unraveling of Constitutional Constraints’ (2015) 17 Oregon Review of International Law 1. 4 Asanga Welikala, A State of Permanent Crisis: Constitutional Government, Fundamental Rights and States of Emergency in Sri Lanka (Centre for Policy Alternatives 2008); Radhika Coomaraswamy and Charmaine de los Reyes, ‘Rule by Emergency: Sri Lanka’s Postcolonial Constitutional Experience’ (2004) 2(2) International Journal of Constitutional Law 272. 5 Constitution of Bangladesh (1972), art 142; Constitution of India (1950), art 368; Constitution of Pakistan (1973), art 239; Constitution of Sri Lanka (1978), art 82. 6 See, for example, Kesavananda Bharati v State of Kerala (1973) SCC 225; Anwar Hossain Chowdhury v Bangladesh (1989) 41 DLR (AD) 1.

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Rehan Abeyratne 7 Mahmood Khan Achakzai v Federation of Pakistan, PLD 1997 SC 426. 8 Re: The Nineteenth Amendment [2002] 3 Sri LR 85. 9 South Asian higher courts have been more willing to stand firm when their own institutional selfinterest is at stake. See Po Jen Yap and Rehan Abeyratne, ‘Judicial Self-Dealing and Unconstitutional Constitutional Amendments in South Asia’ (2021) 19 International Journal of Constitutional Law 127. 10 For holistic accounts on these issues in Bangladesh, India, Pakistan, and Sri Lanka, see, respectively, Ali Riaz, ‘The Pathway of Democratic Backsliding in Bangladesh’ (2021) 28 Democratization 179; Tarunabh Khaitan, ‘Killing a Constitution with a Thousand Cuts: Executive Aggrandizement and Party-State Fusion in India’ (2020) 14 Law & Ethics of Human Rights 39; Kainat Shakil and Ilsan Yilmaz, ‘Religion and Populism in the Global South: Islamist Civilisationism of Pakistan’s Imran Khan (2021) 12 Religions 777; Mario Gomez, ‘Constitutional Struggle in Sri Lanka’ (2022) 50 Federal Law Review 174. 11 For in-depth explanations of how South Asian parliaments function (and fail to carry out their constitutional and/or political functions), see Chapters 7, 11, 16, and 20 in this volume. See also Nizam Ahmed, Parliaments in South Asia (Routledge 2020). 12 Indian Independence Act, 1947, s 1. 13 See M Jashim Ali Chowdhury, ‘The Parliament ( Jatiya Sangsad) of Bangladesh’, Chapter 7 of this volume. 14 See Yap (n 2) 157–62. 15 Article 142 of the Bangladesh Constitution provides that constitutional amendment bills must be supported by two-thirds of the total number of members of Parliament to be enacted. 16 Yap (n 2) 162. 17 The Constitution (Thirteenth Amendment) Act 1996. 18 Ridwanul Hoque, ‘The Politics of Unconstitutional Amendments in Bangladesh’ in Rehan Abeyratne and Ngoc Son Bui (eds) The Law and Politics of Unconstitutional Constitutional Amendments in Asia (Routledge 2021) 220. 19 ibid. 20 Yap (n 2) 166–7. 21 Abdul Mannan Khan v Bangladesh (2012) 64 DLR (AD). 22 ibid. 23 Constitution (Fifteenth Amendment) Act 2011. 24 Hoque (n 18) 221. 25 Riaz (n 10) 187. 26 ‘Obituary of a Democracy: Bangladesh’ The Economist (30 January 2019) accessed 22 August 2022. 27 Riaz (n 10) 188–92. 28 ibid 188. 29 ibid. 30 ibid 189. 31 ‘Bangladesh: New Digital Security Act is Attack on Freedom of Expression’ Amnesty International (12 November 2018) accessed 22 August 2022. 32 Democracy in the Crossfire: Opposition Violence and Government Abuses in the 2014 Pre- and Post- Election Period in Bangladesh (Human Rights Watch 2014) accessed 22 August 2022; Bangladesh: Freedom in the World Report 2021 Country Report (Freedom House 2021) accessed 22 August 2022. 33 Riaz (n 10) 190. 34 Abdul Mannan Khan (n 21). 35 Abdul Mannan Khan v Bangladesh (Civil Appeal No 139 of 2005). 36 ibid (opinion of SK Sinha, J) 447. 37 ibid 515. 38 Constitution of India (1950), art 74(1). Executive power is formally wielded by the President of India but following the Forty-Second Amendment to the Constitution in 1977, the President must act on the advice of the Council of Ministers, headed by the Prime Minister. 39 See M Mohsin Alam Bhat, ‘The Parliament and State Legislatures of India’, Chapter 11 in this volume, at 184–85.

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Turbulent democracies 40 Milan Vaishnav and Jamie Hintson, The Dawn of India’s Fourth Party System (Carnegie Endowment for International Peace 2019). 41 ibid 4. 42 ibid. 43 Granville Austin, Working a Democratic Constitution (OUP 1999) 309–13. 4 4 ibid 393–430. 45 Manoj Mate, ‘The Origins of Due Process of India: The Role of Borrowing in Personal Liberty and Preventative Detention Cases’ (2010) Berkeley Journal of International Law 28, 243–4. 46 Vaishnav and Hintson (n 40) 4–5. 47 ibid. 48 Vinay Sitapati, ‘Reservations’ in Sujit Choudhry, Madhav Khosla and Pratap Bhanu Mehta (eds) Oxford Handbook of the Indian Constitution (OUP 2016) 724 (noting that the Mandal Commission used data from 1931 and likely underestimated the actual percentage of OBCs in India). 49 ibid 721. 50 Vaishnav and Hintson (n 40) 5. 51 Christophe Jaffrelot, Religion, Caste and Politics in India (Columbia University Press 2011) xx. 52 Pratap Bhanu Mehta, ‘Hindu Nationalism: From Ethnic Identity to Authoritarian Repression’ (2022) 10 Studies in Indian Politics 31, 38. 53 Neelanjan Sircar, ‘Religion-as-Ethnicity and the Emerging Hindu Vote in India’ (2022) 10 Studies in Indian Politics 79, 84–5; Brenda Cossman and Ratna Kapur, ‘Secularism’s Last Sigh? The Hindu Right, the Courts, and India’s Struggle for Democracy’ (1997) Harvard International LJ 113, 117–9. 54 Vaishnav and Hintson (n 40) 6–7. 55 ibid 8. 56 Christophe Jaffrelot, Modi’s India: Hindu Nationalism and the Rise of Ethnic Democracy (Cynthia Scoch tr, Princeton University Press 2021) 39–44. 57 ibid 89–101. 58 Khaitan (n 10) 64–5. 59 Jaffrelot (n 56) 337–41. 60 See Madhav S Aney, Shubhankar Dam, and Giovanni Ko, ‘Jobs for Justice(s): Corruption in the Supreme Court of India’ (2021) 64 Journal of Law and Economics 479. 61 Khaitan (n 10) 52–3. 62 The Constitution (Fifty-Second Amendment) Act, 1985. 63 PM Kamath, ‘ Politics of Defection in India in the 1980s’ (1985) 25 Asian Survey 1039; Madhav Khosla and Milan Vaishnav, ‘The Three Faces of the Indian State’ (2021) 32 Journal of Democracy 111, 115. 64 Khosla and Vaishnav (n 63) 115. 65 ibid. 66 Ibid; Khaitan (n 10) 66. 67 Justice KS Puttuswamy v Union of India (2019) 1 SCC 1 (opinion of Sikri, J). 68 ibid (opinion on Chandrachud, J) 762. 69 Khaitan (n 10) 66; Devyani Chhetri, ‘As Justice Chandrachud Calls Aadhaar Law “Unconstitutional”, Government Increases Use of Controversial Short Cut’ Bloomberg Quint (3 October 2018) accessed 23 August 2022. 70 For a detailed account of the uses (and abuses) of the ordinance-making power, see Shubhankar Dam, Presidential Legislation in India: The Law and Practice of Ordinances (CUP 2012). 71 Constitution of India (1950), art 74(1) (as amended by the Forty-Second Amendment). 72 Dam (n 70) 4. 73 Madhav S Aney and Shubhankar Dam, ‘Decree Power in Parliamentary Systems: Theory and Evidence from India’ (2021) 83 Journal of Politics 1432, 1432–5. 74 AIR 1987 SC 579. 75 Article 213 of the Indian Constitution effectively replicates the national framework for issuing ordinances at the state level. It permits state governors to promulgate ordinances on the advice of their Chief Minister and cabinet. 76 DC Wadhwa (n 74) [6]. 77 ibid [7]. 78 ibid [6].

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Rehan Abeyratne 7 9 Dam (n 70) ch 3. 80 (2017) 3 SCC 1 (opinion of Chandrachud, J). 81 ibid 77. 82 ibid 84. 83 Gaurav Mukherjee, ‘The Supreme Court and Executive Law-Making: The Afterlife of Failed Ordinances In Krishna Kumar Singh II’ (2017) 1 Indian LR 312, 316–7. 84 The same requirement applies to state-level ordinances under Article 213. 85 Krishna Kumar Singh (n 80) 83–4. 86 ibid 79. 87 ibid 85. 88 ibid. 89 Mukherjee (n 83) 325. 90 Aney and Dam (n 73) 1438. 91 M Mohsin Alam Bhat, ‘The Parliament and State Legislatures of India’, Chapter 11 in this volume, at 194. 92 On dominion constitutionalism in Pakistan, see Mara Malagodi, ‘Dominion Status and the Origins of Authoritarian Constitutionalism in Pakistan’ (2019) 17 International Journal of Constitutional Law 1235. 93 Indian Independence Act, 1947, s 5–9. 94 Government of India Act, 1935, s 7–17. 95 Indian Independence Act, 1947, s 9(1)(b), (c), (f ). Section 9(5) provided that these powers expired on 31 March 1948. 96 Ayesha Jalal, Democracy and Authoritarianism in South Asia: A Comparative and Historical Perspective (CUP 1995) 49. 97 Malagodi (n 92) 1238. 98 Jalal (n 96) 49. 99 ibid. 100 The ordinance-making power in India, discussed in Section 5.3, similarly originates in the Government of India Act, 1935. See Dam (n 70) 44–51. 101 Malagodi (n 92) 1238. 102 Moeen Cheema, Courting Constitutionalism: The Politics of Public Law and Judicial Review in Pakistan (CUP 2022) 39. 103 See generally, Malagodi (n 92). 104 Yap (n 2) 135. 105 Sadaf Aziz, The Constitution of Pakistan: A Contextual Analysis (Hart 2018) 46. 106 State v Dosso PLD [1958] SC 533. 107 Cheema (n 102) 70. 108 Yap (n 2) 136. 109 Aziz (n 105) 51–2; Cheema (n 102) 87–8. 110 The Pakistan army’s systematic killing and rape of civilians in Bangladesh is widely considered a genocide. See Aziz (n 105) 52–3; Gary J Bass, The Blood Telegram: Nixon, Kissinger, and a Forgotten Genocide (Vintage 2014). 111 Cheema (n 102) 88. 112 Yap (n 2) 136–7. 113 Constitution of Pakistan (1973), arts 51, 59. 114 ibid art 48. 115 Aziz (n 105) 54. 116 ibid; Cheema (n 102) 99. 117 Constitution (First Amendment) Act, 1974. 118 Constitution (Third Amendment) Act, 1975. 119 Constitution (Fourth Amendment) Act, 1975. 120 Constitution (Fifth Amendment) Act, 1976. 121 Constitution (Sixth Amendment) Act, 1976; Cheema (n 102) 101 (noting that this was the first time that a civilian or military government in Pakistan had directly interfered with judicial tenures). 122 Cheema (n 102) 105. 123 Yap (n 2) 138. 124 ibid.

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Turbulent democracies 1 25 Cheema (n 102) 112–3. 126 Begum Nusrat Bhutto v Chief of Army Staff, PLD 1977 SC 657, 703. 127 ibid 723. The Court subsequently upheld Bhutto’s conviction and death sentence for conspiring to murder a political opponent, despite the trial being rigged against him. 128 Yap (n 2) 140. 129 Cheema (n 102) 126–7. 130 Aziz (n 105) 56. 131 Yap (n 2) 140–1. 132 Federation of Pakistan v Haji Muhammad Saifullah Khan, PLD 1989 SC 166; Ahmad Tariq v Federation of Pakistan, PLD 1989 SC 66; Nawaz Sharif v President of Pakistan, PLD 1993 SC 473; Mahmood Khan Achakzai v Federation of Pakistan, PLD 1997 SC 426; Benazir Bhutto v President of Pakistan, PLD 1998 SC 388. 133 Cheema (n 102) 139. 134 1973 Constitution, art 239. 135 Constitution (Thirteenth Amendment) Act, 1997. 136 Constitution (Fourteenth Amendment) Act, 1997. 137 Cheema (n 102) 159. 138 Yap (n 2) 145. 139 ibid 146. 140 Cheema (n 102) 174. 141 Constitution (Seventeenth Amendment) Act, 2003; Yap (n 2) 146–7. 142 Yap (n 2) 149. 143 Benazir Bhutto was assassinated in on 27 December 2007 shortly after leaving a PPP campaign rally. 144 Yap (n 2) 150. 145 The Constitution (Eighteenth Amendment) Act, 2010. 146 ‘Pakistan: Supreme Court Hears Panama Leaks Case’ Al Jazeera (1 November 2016) accessed 23 August 2022. 147 For a detailed account of the constitutional law and history of this provision, see Matthew J Nelson, ‘Amending Constitutional Standards of Parliamentary Piety in Pakistan? Political and Judicial Debates’ in Rehan Abeyratne and Ngoc Son Bui (eds), The Law and Politics of Unconstitutional Constitutional Amendments in Asia (Routledge 2021). 148 Imran Ahmed Khan Niazi v Mian Muhammad Nawaz Sharif, PLD 2017 SC 692. 149 Omar Waraich, ‘Pakistan’s Populist Triumph’ Atlantic (27 July 2018) accessed 23 August 2022. 150 Abid Hussain, ‘Imran Khan: A Year Facing Pakistan’s Harsh Realities’ BBC (25 August 2019), https://www.bbc.com/news/world-asia-49450145; Salman Masood, ‘Ex-President of Pakistan Is Indicted on Money Laundering Charges’ New York Times (28 September 2020), accessed 23 August 2022. 151 Khalid Qayum, ‘What Led to the Downfall of Pakistan’s Prime Minister’ Washington Post (18 April 2022), accessed 23 August 2022. 152 ibid. 153 ibid. 154 Pakistan Peoples Party Parliamentarians v Federation of Pakistan, Suo Motu Case No 1 of 2022/ Constitutional Petitions Nos 3–7 of 2022, [12]. 155 ibid [13]. 156 ibid [14]. 157 1973 Constitution, arts 95(1), (2). 158 Pakistan Peoples Party Parliamentarians (n 154) [69–79]. 159 ibid [80]. 160 ibid. 161 Qayum (n 151).

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Rehan Abeyratne 1 62 Ceylon (Constitution) Order in Council 1946. 163 Colonial Office, Ceylon: Report of the Commission on Constitutional Reform (1945) (‘Soulbury Commission Report’). 164 Harshan Kumarasingham (ed), The Road to Temple Trees: Sir Ivor Jennings and the Constitutional Development of Ceylon: Selected Writings (2015) 34–8. 165 Soulbury Commission Report (n 163) 81–5. 166 ibid 97–108. 167 For a broad account of sovereignty under the Soulbury Constitution, see Rehan Abeyratne, ‘Uncertain Sovereignty: Ceylon as a Dominion 1948-72’ (2020) 17 International Journal of Constitutional Law 1258. 168 Constitution of Sri Lanka (1972), s 6. 70 percent of Sri Lankans are Buddhist, including more than 90 percent of the dominant Sinhala ethnic group. 169 ibid s 7. 170 ibid s 54. Under the Soulbury Constitution, courts in Sri Lanka (then Ceylon) could review acts of parliament and the Judicial Committee of the Privy Council served as the court of final adjudication. 171 ibid s 52. 172 Constitution of Sri Lanka (1978), arts 9, 18. 173 ibid art 80(3). 174 ibid arts 82, 84. 175 AJ Wilson, The Gaullist System In Asia (Macmillian 1980) 28–9. 176 ibid 43–4. 177 ibid 1. 178 ibid 3–6. 179 Constitution of Sri Lanka (1978), art 30(1). 180 ibid art 30(2). 181 ibid art 43. 182 ibid art 43–4. 183 ibid art 44, 70. 184 Sumit Ganguly, ‘Ending the Sri Lankan Civil War’ (2018) 147 Daedalus 78. 185 Rohan Edrisinha and Aruna Jayakody (eds), The Eighteenth Amendment to the Constitution: Substance and Process (Centre for Policy Alternatives 2011). 186 Seventeenth Amendment to the Constitution (2001). 187 The Constitutional Council consisted of ten members including the Prime Minister, Speaker of Parliament, Leader of the Opposition, one person appointed by the President, one person appointed by Parliament (representing a party other those of the Prime Minister and Leader of the Opposition), and five eminent persons nominated by the President with the consent of both the Prime Minister and Leader of the Opposition. Its main function was to recommend nominees for appointment to the independent commissions with a view to depoliticizing key areas of governance. 188 Eighteenth Amendment to the Constitution (2010). 189 ibid; Edrisinha and Jayakody (n 185). 190 Ryan Goodman, ‘Sri Lanka’s Greatest War Criminal (Gotabaya) is a US Citizen: It’s Time to Hold Him Accountable’ Just Security (19 May 2014) accessed 6 September 2022. 191 Mario Gomez, ‘Constitutional Struggle in Sri Lanka’ (2022) 50 Federal LR 174, 175. 192 Nineteenth Amendment to the Constitution (2015). 193 ibid. For a comparison of the Seventeenth and Nineteenth Amendments, see Gehan Gunatilleke, ‘The Structural Limits of Depoliticisation in Sri Lanka’ (2019) 108 Round Table 613. 194 Gomez (n 191) 179. 195 Nineteenth Amendment to the Constitution (2015). For a summary of these changes, see A Brief Guide to the Nineteenth Amendment to the Constitution (Centre for Policy Alternatives 2015) accessed 29 August 2022. 196 Asanga Welikala, ‘Paradise Lost? Preliminary Notes on a Constitutional Coup’ Groundviews (27 October 2018) < https://groundviews.org/2018/10/27/paradise-lost-preliminary-notes-on-aconstitutional-coup/> accessed 29 August 2022.

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Turbulent democracies 197 Dinesha Samararatne, ‘Losing a Paradise We Never Had?’ Groundviews (3 November 2018) accessed 29 August 2022. 198 In 2017, the Sri Lankan government handed over a newly built port – built with Chinese investment – to Beijing on a 99-year lease as a form of payment of the debt it had incurred from China. 199 Samararatne (n 197). 200 ‘Sri Lanka’s President Calls Snap Election in Bid to End Power Struggle’ Guardian (10 November 2018) accessed 29 August 2022. 201 Sampanthan v Attorney General, SC FR Application No 351/2018 (2018). 202 ibid 12. Article 126(1) of the 1978 Constitution gives the Supreme Court exclusive jurisdiction over executive acts that infringe fundamental rights. 203 ibid 81. 204 ibid 86. 205 ibid 87. 206 ‘A Historic Judgment’ Groundviews (14 December 2018) < https://groundviews.org/2018/12/14/ahistoric-judgment-supreme-court-holds-dissolution-of-parliament-illegal/> accessed 29 August 2022. 207 Twentieth Amendment to the Constitution (2020). 208 Gomez (n 191) 180; A Brief Guide to the Twentieth Amendment to the Constitution (Centre for Policy Alternatives 2021) < https://www.cpalanka.org/wp-content/uploads/2021/07/A-brief-guideto-the-20th-Amendment-to-the-Constitution-English-CPA-compressed_compressed-1.pdf> accessed 29 August 2022. 209 Dinesha Samararatne, ‘Constitutional Ping-Pong: Sri Lanka’s Crisis and the Rediscovery of Political Agency’ Verfassungsblog (5 May 2022) < https://verfassungsblog.de/constitutional-pingpong/> accessed 29 August 2022. 210 Ishaan Tharoor, ‘How One Powerful Family Wrecked a Country’ Washington Post (11 May 2022)

accessed 30 August 2022. 211 Hannah Ellis-Petersen, “‘The Family Took Over”: How a Feuding Ruling Dynasty Drove Sri Lanka to Ruin’ Guardian (7 July 2022) accessed 6 September 2022. 212 ‘Sri Lanka Cabinet Passes Twenty-First Amendment Aimed at Empowering Parliament over President’ Hindu (20 June 2022) accessed 29 August 2022.

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6 PRESIDENTIAL DEMOCRACIES Björn Dressel and Fakhridho Susilo

6.1 Introduction Presidential democracies1 in Asia are back in the limelight. Long seen as potentially ‘perilous’ for political stability after a series of contested presidential impeachments in, among others, South Korea, Taiwan, the Philippines, and Indonesia,2 attention has recently shifted to an opposite concern: the rise of presidencies that dominate legislatures, and often, under a populist guise, have actively engaged in ‘executive aggrandisement’ that raises once more the spectre of authoritarianism in the region.3 Perhaps this is most obvious in Southeast Asia’s most important presidential regimes: the Philippines and Indonesia. In the Philippines, Asia’s oldest presidential system, President Duterte (2016–22) has shown an unprecedented number of illiberal transgressions that are reminiscent of the Marcos dictatorship—a pattern made possible by the president’s control over both the House of Representatives and the Senate.4 In Indonesia, under the increasingly assertive presidency of Joko Widodo (2014–), the People’s Representative Council (DPR), Indonesia’s notoriously fractured legislature, has allowed the president to go virtually unchecked through his second term, which has renewed concerns about ‘democratic backsliding’ in what to date had been one of Asia’s most vibrant democracies.5 Such developments in its largest democracies raise serious questions about the changing nature of presidential democracies in Asia, and especially executive-legislative relations. As populist leadership grows in the region, we ask: How are presidents using their formal constitutional and informal partisan powers to reshape executive-legislative relations? And how are these actions affecting democratic quality and liberal-constitutional practice in their countries? The literature on presidentialism, while considerable, has yet to fully provide answers to these questions—particularly for Asia.6 The last three decades have witnessed several waves of scholarly debate about the effects of various regime types on democratic survival, and three distinct waves of presidential regimes.7 For instance, starting with Juan Linz’s work on Latin America, the first wave of scholarship focused on how, compared to parliamentary systems, presidential regimes endanger political stability due to such innate features as the winner-take-all nature of presidential elections, the rigidity of the presidential term, and the dual legitimacy claims between the 82

DOI: 10.4324/9781003109402-7

Presidential democracies

executive and parliament that are exacerbated in presidential regimes; concerns were also raised that presidential systems encourage ‘political outsiders’ to rise to the top.8 A second wave then shifted attention to variations within presidential regimes (for instance, presidential vs. semi-presidential) and their interactions with party systems, highlighting in particular the precarious nature of presidential systems matched with multiparty systems—a combination seen as enhancing gridlock and ideological polarization and making coalition-building more difficult.9 The most recent wave, returning to the ‘perils of presidentialism’ theme in a different guise, has concerned itself with democratic decline—‘backsliding’—moving past the danger of executive-legislative gridlock to focus on the risks of transgressive presidential political power. This scholarship has demonstrated how presidents overpower other institutions and undermine horizontal accountability, thus paving the way for democratic decline.10 These debates have much to offer for the understanding of presidential regime dynamics and general executive-legislative relations in the region.11 Indonesia and the Philippines are relatively pure cases of presidentialism, with dynamic executive-legislative relations born out of a fractured multiparty landscape. In both countries, a weakly institutionalized party system, combined with patronage centrally dispensed from within the presidency, has also been the traditional basis for a ‘promiscuous power sharing’ between the chief executive and the legislature, where presidents create powerful partisan coalitions between parties and members of the legislature. In fact, in Asia, partisan rather than constitutional powers have often been the basis for strong presidencies, and occasional executive overreach.12 And yet, as we seek to demonstrate empirically in our two case studies, traditional executive-legislative dynamics have also changed with the rise of populist presidents like Rodrigo Duterte and Joko Widodo. While in the past parties and members of parliament largely joined the president’s camp to access patronage (e.g., pork, rents), the catalyst for cooperation today is the popular appeal of the president himself and the benefit of being seen to be aligned with him. Strong personalized public support has allowed populist presidents to rely on a mixture of charismatic-populist appeal and coercion to engineer unprecedented presidential majorities in parliament, rather than traditional budget sticks (vetos) and carrots (pork), or the use of party as a coordination device. The combination has allowed both Duterte and Widodo to pursue illiberal agendas virtually unchecked, to the detriment of democracy in their countries, and the region. This chapter proceeds as follows: First, we provide a brief description of how to measure constitutional and partisan powers in theory, drawing on the work of Mainwaring and Shugart13 and its application to Asia by Kasuya.14 We then apply the theory to trace the changes to presidential powers and executive-legislative relations in the Philippines and Indonesia since their return to democracy, with an emphasis on the novel dynamics emerging in the populist presidencies of Rodrigo Duterte and Joko Widodo. The chapter concludes by reflecting on how our findings might inform broader debates on executive-legislative relations and democratic quality within presidential democracies, in Asia and beyond.

6.2  Basic framework of presidential-legislative relations To provide a broad picture of the relationship between presidents and assemblies, we focus on presidential strength vis-à-vis the legislature. The basic framework has two dimensions: The first captures the formal constitutional powers of the president over legislation, such as veto and decree authority. The second addresses the president’s influence through their political party, principally measured by the share of ruling party seats in the assembly. 83

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Of the two dimensions, constitutional power is generally considered relatively stable, while partisan power often varies depending on election results, party switching, or coalition reshuffling.15 We thus measure the strength of the president vis-à-vis the legislature as follows: •

•

Constitutional powers relating to legislation are measured as a combination of (1) package veto, (2) partial (line item) veto, (3) presidential decree, (4) limits on legislature revision of budget bills, (5) exclusive introduction of legislation (reserved policy areas), and (6) authority to initiate national referendums. Adopting a three-point scale (0, 1, 2) for each of the six items creates a final composite index by adding the six rankings together16 (see for scoring and measurement Kasuya 2013:20–21). Partisan power refers to the degree of the president’s inf luence over the legislature through a party. For this, the seat share of the ruling party is usually considered the most important factor as it will allow the president from that party to enact policies relatively easily. Yet, the degree of party discipline and the presence of legislative coalitions also have important consequences. Party discipline refers to the extent to which national party leaders control party member behaviour in the legislature, which in turn is often seen as a direct outcome of institutional incentives and constraints (e.g., the electoral system, control of nominations, rank ordering, and vote polling).

Similarly, although presidents do not depend on parliamentary support, coalitions in support of the executive arise frequently when the president is dominant.17 We thus measure coalitional support for the executive by focusing on the size of the ruling coalition, the effective number of parties, and the average district magnitude (calculated for each election). Consistent with the literature, we also assume that partisan power is lower when party discipline is weak and when coalitions form. To capture this aspect, we weigh the seat share by the items scored for party discipline. Following Mainwaring and Shugart,18 and modifying Kasuya’s earlier scale,19 we consider partisan powers to be very strong when the weighted share is more than 60 per cent for both chambers; strong when that share is at least 50 per cent for both chambers but under 60 per cent for at least one; somewhat strong if at least 40 per cent for both chambers but under 50 per cent for at least one; weak if at least 30 per cent for both chambers but under 40 per cent for at least one, and very weak if an adjusted score is below 30 per cent for at least one chamber.20 A closer look at these two dimensions in the Philippines (1987–) and Indonesia (2004–) highlights the relative stability of the president’s constitutional powers over the legislature, while, particularly in the Philippines, partisan powers of the president fluctuate over time. However, in both countries, we see considerable stronger partisan powers in the presidencies of Joko Widodo (2014–) and Rodrigo Duterte (2016–) (see Table 6.1). In fact, as we will show in greater detail in the following case studies, since the return to democracy, the current strength of both presidents is in many ways unparalleled. Not only do both command super-majorities in their legislatures that meet the threshold for constitutional amendments, but both have also managed to control and even widen their coalitions through a combination of charismatic-populist appeal, outright coercion, and seizing on extraordinary powers granted to cope with the current COVID-19 emergency. This has resulted in very different executive-legislative dynamics. In fact, well beyond what is captured here systematically for both constitutional and partisan powers, the impact is felt most notably in terms of declining democratic quality. 84

Presidential democracies Table 6.1  Presidential strength, Indonesia and the Philippines Constitutional power vs. legislature

Strong

Partisan power Very weak

Weak

Somewhat strong

Strong

Very strong

Philippines (1998)

Philippines (2001)

Philippines (2004–07; 2016)

Philippines (1995, 2010, 2019)

Philippines (1987, 1992)

Somewhat strong Weak

Indonesia (2004–2019)

Note: Philippines is the combined score for both House of Representatives and Senate. Measurement: Constitutional Powers: Weak (0–2), Somewhat Strong (3–4), Strong (5–6); Partisan Power: presidential coalition (weighted) >60 per cent (very strong); 50–60 per cent (strong); 40–50 per cent (somewhat strong); 30–40 per cent (weak); >30 per cent (very weak).

6.3  Philippines: strong presidents, weak parliaments The presidency is the central political institution in the Philippines. First launched in the shortlived revolutionary Malolos Republic (1899–1901),21 a presidential system of government was formally established by the 1935 constitution as part of U.S. colonial democracy.22 That was followed by a shift to a semi-presidential system in the Marcos-imposed 1973 Constitution, before return to a ‘pure’ presidential system in the post-Marcos 1987 Constitution, where the presidency was embedded within formal horizontal accountability structures and with new limits on the declaration of martial law.23 Despite these new constraints on the presidency, since the return to democracy in 1987, the president has continued to claim a dominant position in the political system. In fact, some scholars have described the Philippines as a ‘hyper-presidential’ system because the president overpowers other institutions, and checks and balances regularly break down 24; others have classified it as a ‘delegative democracy’, marked by presidents actively seeking to subordinate the other branches of government,25 because executive digressions are quite common in the Philippines.26 As we will show, while the formal powers of the president vis-à-vis the legislature are largely reactive, strong budgetary powers and thus the ability to steer the formulation and execution of public spending priorities have given the president disproportionate influence over the alignment of political forces in both Houses of Congress. In fact, members of both Houses often switch to the president’s party or join a coalition with the presidential administration to access pork barrel spending. Hence, with presidents acting as ‘patron in chief ’ via the distribution of particularistic spending (‘pork’), and a weakly institutionalized party system built on political machines operated by dynasties, presidents are able to exert strong influence over the leadership of both Houses and the majority of their members. A closer look at executive-legislative relations since 1987 in terms of both formal constitutional and informal partisan powers illustrates this point. The negative consequences of such ‘coalitional presidencies’ are further discussed in relation to how President Duterte’s illiberal impetus has not only achieved an extraordinary degree of stability vis-a-vis the legislature but has also introduced new dynamics that have accelerated the erosion of constitutional democracy. 85

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6.3.1  Constitutional powers of the president over the legislature The formal constitutional powers of the president are best understood in terms of proactive and reactive powers.27 Proactive powers seek to change the status quo; for instance, through the ability to promulgate new laws by decree without the consent of the assembly. With broad application, they are thus different from executive orders (EOs), which apply only to the executive branch and are much more common. Reactive powers seek to defend the status quo via packaged or line-item veto and other gate-keeping powers such as rules that a bill cannot be considered unless it is initiated by the president.28 If both dimensions are available, the president is generally considered more powerful than in settings where only one dimension is available. However, as we show here, context matters. Under the 1987 Constitution, the Philippines president, who is directly elected by popular vote for a single-six-year term, largely relies on reactive powers. Specifically, in addition to a package veto (ability to veto a whole bill), the president also has the power of a line-item veto (ability to reject specific provisions of a bill)—an institutional feature shared only with Argentina. In contrast, the 1987 Constitution limits the proactive powers of the president by eliminating decree powers and the ability to initiate referenda or dissolve Congress. These changes are undoubtedly a direct response to the executive digressions of the Marcos dictatorship (see Table 6.2). However, reliance on reactive powers does not mean, at least in practice, that no proactive powers remain at the president’s disposal. For instance, it is widely acknowledged that presidential EOs affect how legislation is interpreted and applied.29 A case in point is the 1987 Administrative Code, which was issued by President Corazon Aquino as EO 292. Still in force today, it operates as a statute preserving the reserve control (impoundment) and transfer (augmentation though savings) powers of the president in budget execution, though the president was deprived of any decree-making power when the 1987 Constitution was ratified. Similarly, the Philippines president initiates the annual appropriations bill, which today gives Duterte considerable agenda-setting powers. He can also certify through the State of the Nation Address and informal channels to members of Congress that certain bills are urgent, which in practice triggers immediate action by Congress.30 Hence, in addition to the considerable reactive powers, the president also commands, at least informally, some proactive powers vis-à-vis Congress. Table 6.2  Constitutional legislative powers of the president Total score Package veto

Partial veto

Limits on budget bill

Decree

Item Veto on No Veto on all all bills, provision bills with extraordinary extraordinary majority majority override

6

2

2

0

Source: Adapted from Kasuya (2013:20).

86

Referendum

Dissolution

Type of power

No Reactive President No sets upper presidential provision (Proactive) authority limit on to propose total referenda spending within which assembly may amend 2 0 0

Presidential democracies

6.3.2  Partisan powers As the president’s party often commands less than a 25 per cent share of seats in both Houses, presidents often require the support of a broad coalition in Congress to ensure policy agenda and legislative success. Traditionally party discipline is weak. In the bicameral Philippines legislature, the entire House (comprising more than 290 members) is elected every three years from single-member districts (supplemented by 20 per cent party-list representatives from marginalized sectors), and half of the 24 Senators are replaced every three years in staggered elections from a single constituency in a nationwide block vote. As a result of this frequent turnover in Congress, partisan powers, that is, the ability of presidents to wield influence over their own and allied coalition parties become critical to the workings of ‘coalitional presidentialism’ in the Philippines.31 Fortunately, for presidents, however, this task is facilitated by some of the formal powers already described, which encourage parties and individual members of Congress to jump on the presidential bandwagon either before, or most notably right after, the election in a practice widely known as post-election ‘turncoatism’. 32 In fact, on average 30–40 per cent of members of Congress will switch parties, with members shifting at a consistently higher rate after a presidential election (e.g., 50 per cent 1992; 44 per cent in 1998; 37 per cent in 2004, 24 per cent in 2010, 50 per cent in 2016, and 68 per cent in 2019). This has given presidents large coalitional majorities in the House of Representatives and to a lesser extent the Senate, and generally, therefore, gives presidents control over the Speakership in both houses (see Table 6.3). Regulating access to legislative pork is at the heart of coalition-building; presidents exert control over legislative pork through their power to prepare the budget, issue vetos, and execute the budget. For instance, in preparing budget proposals to submit to Congress, they can specify a lump-sum congressional ‘slush fund’, to be allocated for projects identified by legislators after the budget is enacted.34 Sometimes presidents have their own project-based pork and quasi-pork funds that can, in addition to the congressional fund, be directed at their discretion to the projects of legislators.35 Presidents can also use their veto authority to get rid of insertions or earmarks—new pork projects added by legislators during deliberations. Finally, through the Department of Budget and Management, which handles national disbursement, the president can also delay or expedite release of project funding. In short, presidential regulation of access to funding becomes a principal coalition-building technique that provides strong incentives for members of Congress to defect to the presidential camp in order to, inter alia, recoup the costs of their own election campaigns.36 As Holmes shows, since 1987, Philippines presidents have used these budgetary tools strategically. For instance, President Ramos (1992–98) used them often to secure congressional assent to expand the value-added tax and privatize state-owned enterprises. For President Macapagal Arroyo (2001–10), these tools helped muster support for her contested presidential bid in 2004 and formed a ‘legislative shield’ against impeachment threats in 2008. In 2011, President Aquino III (2010–16) relied heavily on slush funds in his political battle to secure the impeachment of Chief Justice Corona. Even presidents who initially had a minimal legislative agenda (Aquino I, Estrada, Duterte) ultimately relied on their control of funding to convince Congress to achieve their goals.37 However, budgetary control is not the only tool presidents may use to manage unwieldy coalitions.38 For instance, President Arroyo, whose legitimacy was questioned as soon as she replaced President Estrada, invited 12 Representatives and 3 Senators to join her cabinet in an effort to stabilize her government.39 Likewise, the often informal exchange of political support 87

Table 6.3  Party system and coalition status, 1987–2020 Year

1987

1992

1995

1998

2001

President

Aquino I

Ramos

Ramos

Estrada

Macapagal- Macapagalarroyo arroyo33

Source: Comelec data and Teehankee (2002).

2007

2010

2013

Macapagalarroyo

Aquino III

Aquino III Duterte

Presidential Midterm

Presidential Midterm

2016

2019 Duterte

Presidential Midterm

0.84

43.7

32.2

37.6

31.7

20.4

80.59

69.7

61.0

58.1

82.4

89.2

54.0

46.7

71.0

67.6

55.3

59.7

0

8.7

17.4

16.7

4.2

20.8

60.8

65.2

82.6

75.0

66.7

83.3

40.8

43.7

55.3

50.3

44.7

55.8

Somewhat Somewhat Strong strong Strong

Strong

Somewhat Strong Strong

Björn Dressel and Fakhridho Susilo

88

Election Type Presidential Presidential Midterm Presidential Midterm House of Representatives President’s Party Seat Share 10.3 19.0 44.6 0 0 at Election (per cent) Presidential Coalition Seat 92.9 95.4 87.1 33.9 55.6 Share after election (per cent) Presidential Coalition 62.3 63.9 58.3 22.7 37.2 Seat Share Weighted (per cent) Senate President’s Party, Seat 16.7 8.3 20.8 0 9.1 Share at Election (per cent) Presidential Coalition Seat 91.7 100 87.5 37.5 77.3 Share after Election (per cent) Presidential Coalition Seat 61.4 67.0 58.6 25.1 51.8 Share Weighted (per cent) Very Strong Very Weak Degree of Presidential Very Strong Strong Weak Powers

2004

Presidential democracies

for economic support, private benefits, or other forms of personal assistance also marked the presidency of Joseph Estrada (1998–2001), whose major decisions were often made in his notorious ‘midnight cabinet’ of confidants (Labrador 2001). More recently, threats and coercion have become the new pattern under President Duterte (2016–22). Yet, in the Philippines, budgetary dynamics remain at the core of the partisan powers of the president. In short, because partisan and constitutional powers often complement each other, the Philippines presidency has been relatively stable, despite a weakly institutionalized and highly fragmented party system. As a result, change has often come from outside the political system, as in the EDSA 1 (1986) and EDSA 2 (2001) protests. Moreover, this stability can become problematic if pinned to an illiberal agenda. In fact, under Duterte’s populist rule, distinct new executive-legislative dynamics have emerged that have hollowed out the liberal constitutional state.

6.3.3  New executive-legislative pattern? The Duterte presidency The surprise election of Rodrigo ‘Digong’ Duterte as president in May 2016 was widely seen as a major rupture in the post-Marcos liberal-democratic regime established 30 years ago. Drawing on the tough guy image created when he was mayor of Davao City in Mindanao and a campaign theme of ‘Change Is Coming’, Duterte has engaged in a dramatic public war on drugs in which extrajudicial killings have claimed an estimated 12,000 lives.40 He has weaponized the legal system to attack political opponents, threatened public officials with impeachment, launched legal proceedings against critical media outlets, and accused critics and activists of a conspiracy to oust him.41 At times, his government has also raised the spectre of nationwide martial law, threatened to establish a revolutionary government not bound by the constitution, and openly flirted with far-reaching constitutional change. A sluggish COVID response, meanwhile, has done little to hurt his appeal. He ended his single six-year term in 2022 with one of the highest popularity ratings of any president since 1987—prompting in turn calls for his continued involvement in politics, possibly as a vice-presidential candidate. In coming to terms with his presidency, many recent studies have focused on Duterte’s populist personality42 and, to a lesser extent, the political and legal strategies he and his allies have pursued in consolidating his power.43 Changes in executive-legislative relations and party-system dynamics under his administration have received much less attention.44 This is surprising: since 2016, President Duterte has not only managed to assemble and maintain unprecedented supermajorities in both Houses of Congress, he has done so less through traditional pork-barrelling than through a unique blend of charismatic-populist appeal, coercion, and the strategic use of COVID-related emergency powers. All told, he has greatly strengthened the presidency and largely succeeded in his legislative agenda. Few in 2016 would have predicted such an outcome. While winning a plurality of votes (39 per cent), the president was originally supported only by his own party, PDP-Laban, which won three seats in the House and one in the Senate. However, in the usual partyswitching pattern, he was able to assemble a greater than 200-member Congressional supermajority, with allies assuming the speakership in both chambers. Three years later, with the war of drugs at its peak and a campaign of intimidation unfolding that saw his boldest critic in the Senate arrested, Duterte consolidated his position in the 2019 midterm election. No opposition senator was elected that year and Duterte’s allies secured well over 85 per cent of the seats in both houses (Table 6.3). 89

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As Teehankee and Kasuya45 have pointed out, what is remarkable here is that Duterte has achieved these results without relying on traditional executive-legislative dynamics, including the use of pork. Instead, drawing on his populist-charismatic appeal with voters, he has kept Congress at a distance. As a result, he was able to resist demands for congressional pork, especially since his own interest in implementing administrative priorities through legislation is low. In fact, few bills were considered a priority in his term, and the LegislativeExecutive Development Advisory Council (LEDAC) has hardly been called into action. The president has also shown little interest in the affairs of his own party. This has limited the party’s role as a Congressional coordinating device, as highlighted in struggles over the House Speakership in 2020 and the new ‘anarchy of parties’ in which members of Congress in the 2019 elections tried to benefit from the president’s popularity to win seats through administration-endorsed parties and senatorial slates.46 Accelerated by the declining popularity of the president’s own party, such proliferation of ‘proxy’ parties allowed Duterte allies to sweep the Senatorial elections in 2019 midterms—the last remaining bastion of resistance against the administration.47 In short, while Duterte’s populist presidency has not changed the fundamental nature of Philippines politics—from family-owned political machines, weak party labels, and presidential control of the pork barrel process—executive-legislative relations have undergone subtle changes that have further strengthened the president vis-à-vis the legislature. Combining popular appeal with the use of intimidation and coercion against critics, Duterte has been able to exert considerable control over his coalition and allies—so much so that even at the twilight of his presidential term, candidates have sought his endorsement to run for president rather than to defect, as had been common in the past. Most importantly, though, this greater presidential power vis-à-vis the legislature has also allowed Duterte and his allies to pursue a distinctly illiberal agenda, which has led to attacks on oversight agencies, intimidation of government critics, and attempts to influence the Supreme Court. As a consequence, the Philippines since 2016 has witnessed a gradual democratic decline and the hollowing out of the 1987 constitutional-liberal order such as has not been seen since the Marcos dictatorship (1965–86).

6.4  Indonesia: stronger president, weaker parliament Indonesia has long followed a presidential system of government, except for a 14-year period (1945–59) when a parliamentary system was introduced amid political turbulence and several alternative constitutions were adopted.48 The original 1945 Constitution (UUD 1945), adopted immediately after independence, envisioned a presidency stronger than the parliament. It ultimately laid the groundwork for two authoritarian regimes in Indonesia, the Old Order (1959–66) and the New Order (1966–98), in which parliament became simply a rubber stamp for the executive (Butt and Lindsey 2012). However, the 1998 Reformasi triggered a series of constitutional amendments that gave the legislature more powers. Parliament’s impeachment of President Abdurrahman Wahid on 23 July 2001, less than two years after he was elected, illustrates the power over the presidency that the legislature achieved in the immediate post-Reformasi era.49 Observers claimed that parliament became ‘the most powerful constitutional institution’ in Indonesia’s political system.50 Yet the last decade has seen a distinct shift back to the presidency, as illustrated by a growing literature on Indonesia’s ‘authoritarian turn’ and ‘democratic regression’ under President Joko ‘Jokowi’ Widodo.51 How has a once-powerful legislature been unable to prevent increasing executive dominance? 90

Presidential democracies

The answer lies in the changing dynamics of executive-legislative relations since Reformasi; in particular, how presidents can call upon various powers to shape and reshape political coalitions. In Indonesia, while the formal constitutional powers of the presidency vis-àvis the legislature are relatively weak, presidents can rely on informal partisan power to tilt executive-legislative relations toward the former. Popularity, patronage and coercive presidential tactics in settings like Indonesia where parties are only weakly institutionalized allow the executive to command overwhelming partisan power, which not only overshadows but may even co-opt the legislative branch. This renders ineffective institutional checks on the power of the presidency and ultimately accelerates democratic decline. For Indonesia, we first outline the post-Reformasi formal constitutional powers and informal partisan powers of the president. We then explain coalitional presidentialism dynamics under President Joko Widodo, for whom populist charisma and, marking a departure from his predecessor, increasing use of coercive tactics along with patronage have helped him create a coalition that forms a super-majority in parliament.52 The result is an unchecked administration that is facilitating the erosion of democracy in Indonesia.53

6.4.1  Constitutional powers of the President over the legislature The constitutional power of the president relative to the parliament was greatly weakened by the post-Suharto constitutional amendments, which reaffirmed the legislature (DPR: Dewan Perwakilan Rakyat) as the primary authority on law-making and oversight.54 More importantly, the amendments also grant to the DPR impeachment power based on prior trial by the Constitutional Court, while rendering its dissolution by the executive impossible.55 Hence, unlike the ‘hyper-presidential’ Philippines, Indonesia’s post-Reformasi reforms dramatically limited formal presidential power, while at the same time strengthened the legislature.56 As Kasuya (2013) illustrates, the Indonesian president has only one legislative power: the power to issue decrees (Peraturan Pemerintah Pengganti Undang-Undang, ‘Perppu’) without engaging the legislature. Yet, though that power could be considered proactive, Article 22 of UUD 1945 limits it in several ways: (1) decrees can only be issued in matters of utmost urgency; (2) the DPR must approve such decrees in the next legislative session; and (3) if the DPR does not approve them, they must be annulled. Thus, a very limited proactive power is given to the presidency, and there are virtually no reactive powers like vetos, limitations on budget bills, the authority to propose referendums, or the power to dissolve the parliament.57 This stands in contrast to the Philippines, where the executive possesses both, package and partial veto powers, as well as the power to limit budget bill. In Indonesia, therefore, the president’s formal power over the legislature is weaker compared to its counterpart in the Philippines (see Table 6.4).

6.4.2  Partisan legislative powers Formal constitutional powers, however, are not the only way presidents can influence parliaments. Equally important is partisan power—their ability to wield influence over their own party and allied parties within a coalition. Generally, the larger the share of the president’s ruling party or coalition in the parliament, the more powerful the president is. Table 6.5 summarizes the partisan power of Indonesian presidents after popular direct election of the president was institutionalized in 2004. After every election, the seat share of the presidential coalition was consistently above 60 per cent. It reached an apex of 82.06 per cent in 2019 during Jokowi’s second term, which denotes not merely a supermajority 91

Björn Dressel and Fakhridho Susilo Table 6.4  Constitutional powers of the president over legislation Total Package score veto

2

Limits on budget bill

Partial veto Decree

Referendum

Dissolution

Type of power

No No President No No The power to Proactive provision provision may issue Provision presidential dissolve the Decree authority president has (Perppu) to propose been discarded which referenda in the fourth may constitutional become amendment law if not vetoed by the parliament 0 0 2 0 0 0 (Proactive)

Source: Adapted from Kasuya (2013:20).

but also a virtually unopposed presidency. Even when the seat share is weighted, the value is above 60 per cent from 2004 to 2019. Thus, presidential partisan power is very strong in Indonesia, even exceeding that of its counterpart in the Philippines (with the exception of the Aquino I and Ramos presidencies in the aftermath of the Marcos ouster), due to a more institutionalized party system. What explains the strong partisan power of Indonesian presidents? A major factor was the adoption of a pure presidential system in which presidents are directly elected rather than chosen through indirect elections via the People’s Consultative Assembly (MPR) as they were under previous constitutions. Direct elections have given presidents popular appeal, which bolsters their bargaining position vis-à-vis their own party and coalition allies. As in the Philippines under Duterte, Jokowi’s charisma and popularity have given him ample political capital in building a party coalition.58

Table 6.5  Coalitional seat share of the Indonesian president, 2004–19 Year President Election Type House of Representatives President’s Party, Seat Share at Election (per cent) Presidential Coalition Seat Share after Election (per cent) Seat Share of Presidential Coalition, Weighted (per cent) Classification of Presidential Powers

2004

2009

2014

2019

Yudhoyono

Yudhoyono

Jokowi

Jokowi

1st Term

2nd Term

1st Term

2nd Term

10.18

26.43

19.46

22.3

73.27

75.54

68.93

82.06

69.2

71.4

65.1

77.54

Very strong

Very Strong

Very Strong

Very Strong

Source: BPS data.

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Perhaps even more important than popularity, however, are all the powers and authority, formal and informal, that presidents can use to manage their legislative coalitions.59 In Indonesia, two powers stand out: (1) cabinet allocation—‘broad powers of appointment to secure political support’; and (2) exchange of favours, informal deals between president, and legislators ‘in which political support is informally exchanged for economic support, private benefits, or other forms of personal assistance’.60 Mietzner 61 also points to the increasing use of coercion, especially during Jokowi’s presidency, as an often overlooked tool. Scholars of Indonesian politics have long identified the ‘cartelization’ of political parties as a political phenomenon. This is a pattern where parties collude to extract resources from the state, which results in the Indonesian political system lacking meaningful opposition and democratic accountability.62 The problem is exacerbated by the country’s dysfunctional political financing system in which cabinet posts provide access to state resources that are vital for the survival of political parties.63 As a result, ‘promiscuous power-sharing’ has become the norm for executive-legislative dynamics. This is a coalition-building practice in which parties ‘share executive power with any and all other significant parties after an election …, even across a country’s most important political cleavages’ (Slater and Simmons 2013:1370). Not surprisingly, then, the collusive nature of such alliances often leads to charges of corruption against heads of party coalitions and other major political figures. Promiscuous power-sharing is evident in the Yudhoyono and Jokowi presidencies, though it is Yudhoyono, who favoured such tactic for coalition-building initially more than his successor. A case in point is the behaviour of Golkar, one of the largest parties in Indonesia, during the Yudhoyono presidency (2004–09). Initially, Golkar supported Yudhoyono’s rival, Megawati, during the 2004 election. But it ultimately bowed to the temptation of cabinet posts, which prompted a change of party chairmanship from Akbar Tandjung (Megawati’s ally) to Jusuf Kalla (Yudhoyono’s 2004 running mate). Golkar thus occupied five cabinet posts in the Yudhoyono administration (Slater 2018). In the 2009 election, after a failed attempt to wrest the presidency from Yudhoyono, Kalla was removed from the chairmanship before Golkar eventually re-joined Yudhoyono’s 2009–14 coalition in exchange for four cabinet posts (Slater 2018). President Jokowi has adopted similar tactics, though he has also become known for a strong-armed approach to coalitionbuilding. This marks a further decline in Indonesian democratic practice, as the next section will illustrate.

6.4.3  New executive-legislative relations? The Jokowi presidency Many in Indonesian society initially met the rise of President Jokowi with optimism, even euphoria. A middle-class and moderate candidate from a humble background without prior ties to the New Order regime but with a proven track record in decentralized local governance, he was seen as the antithesis to the elitist, strongman profile of his rival, Prabowo Subianto, whose anti-democratic rhetoric had become a major concern for many.64 Accordingly, Jokowi’s victory over Prabowo in 2014 was celebrated by scholars, who called it democracy’s ‘close call’65 against the threat of ‘oligarchic populism’.66 Hopes were high as the new president promised progressive reforms and to not be held hostage by a ‘grand coalition’ of political parties as Yudhoyono had been.67 Such expectations were short-lived. Shortly after his election, Jokowi’s minority coalition was unable to withstand the blockade of Prabowo’s opposition coalition in parliament, where it constituted a majority (52.14 per cent). Like Yudhoyono, Jokowi saw the need to marshal 93

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coalitional support in parliament to pass his legislative initiatives. But unlike his predecessor, Jokowi resorted not just to promiscuous power-sharing but also to coercive tactics—in particular, the power of the government to give or deny formal recognition to a particular faction in a party’s internal disputes. According to Mietzner,68 this ‘presidential interventionism’ in internal party affairs means a pro-government faction in a political party enjoys the endorsement of Jokowi’s administration, effectively causing oppositional elements to surrender and swear allegiance to the government. The authority to formally recognize a party’s leadership board lies with the Minister of Justice and Human Rights. Without that recognition, a party loses full control over such party affairs as replacing its personnel in parliament, nominating candidates for local elections, and sending representatives to other units of state organization.69 Best described as ‘coerced power sharing’, Jokowi’s encouragement of Golkar during his first term has been documented extensively by Mietzner.70 Initially, an adamant supporter of Prabowo during the 2014 election, internal strife followed the defeat of Golkar’s presidential candidate. Jokowi then withheld legal recognition of the pro-Prabowo camp while putting economic and political pressure on Golkar’s chairman, Aburizal Bakrie. Party leadership then fell to a Jokowi loyalist, who would bring Golkar into the government’s coalition. Using both coerced and promiscuous power-sharing through cabinet allocation, Jokowi successfully co-opted the initially strong coalitional opposition in parliament under Prabowo and brought it to heel. The final blow, however, came in 2019 when long-time rival Prabowo finally ended his opposition after losing a contentious and highly polarizing election. Having lurked in the opposition since Yudhoyono’s term, Prabowo ultimately moved into the incumbent’s camp, enjoying the cabinet post of Defence Minister in Jokowi’s second term. With other minor parties also co-opted, as of 2021, Jokowi commands an unprecedented 82.06 per cent of the seats in parliament (see Table 6.5). Moreover, early in 2021, the public became aware of government interventionism in Yudhoyono’s party, Demokrat: Jokowi’s own chief of staff and former commander of Indonesia’s armed forces, Moeldoko, was declared by a split congress the pro-government chairman of Demokrat, of which he was not a member. While the intervention was not as successful as in Golkar’s case,71 the Demokrat party has been severely weakened.72 The coercive, interventionist tactics of Jokowi’s administration have amplified the partisan power of the president and fuelled widespread suspicion of his intention to garner parliamentary support for constitutional amendments that would extend presidential term limits. These tactics have also contributed to the worrying trends of democratic regression and illiberalism in Indonesia in recent years. Jokowi’s administration has overseen crackdowns on social media and Internet activism, particularly against grassroots opposition and political rivals; ‘criminalised’ opposition politicians by law enforcement agencies; taken a repressive stance towards pro-Prabowo Islamic elements; and more recently, undermined the Corruption Eradication Commission.73 But while these developments have detrimental effects on Indonesia’s scores in global democratic quality metrics (e.g., Freedom House, EIU Democracy Index), they do not seem to affect the popularity of the President. In a survey on potential candidates for the 2024 presidential election, Jokowi’s name surprisingly comes out on top,74 even though he has reached the constitutional term limit. In short, in both Indonesia and the Philippines, populist, strong-armed presidents are pushing forward illiberal agendas that have been detrimental to the quality of democracy. Driving these developments are shifts in executive-legislative relations that concentrate more power in the presidency. 94

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6.5 Conclusion With the rise of populist presidencies in both Indonesia and the Philippines, the executive has emerged as a hegemonic actor in relation to the other branches of government, especially parliament. As demonstrated in the presidencies of Duterte and Jokowi, populist-charismatic appeal, patronage, and coercion have coalesced towards illiberal ends in both countries. This is illustrated by growing executive transgressions and efforts to subvert constitutional and legal structures designed to check such executive abuses. As a result, democracy in both countries has substantially regressed. The formal constitutional powers of the president are only one aspect of the new executivelegislative dynamics. Executive dominance over the legislature has been facilitated by weakly institutionalized party systems, characterized by parties operating as political machines for oligarchs and political dynasties. The context also incorporates clientelist, patronage-based elections, so that control over access to state patronage becomes a critical tool for presidents to create large parliamentary majorities, given that parties (Indonesia) and individual members (Philippines) will readily switch allegiance to the presidential administration. In fact, what was in the past described as a ‘push’ initiated by legislators, has increasingly become a ‘pull’ by presidents, drawing on their popularity and the occasional use of coercion by executives like Duterte and Widodo. The result has been the ability to form and maintain unprecedentedly large legislative majorities, thus facilitating a gradual shift towards hyper-presidentialism in both countries. The literature on presidentialism, largely emerging from Latin America, has yet to fully come to terms with these new executive-legislative developments. Clearly, the rise of strong populist presidencies is challenging the traditional narrative of weak and unstable presidential regimes in multiparty systems. It instead gives rise to new concerns over the constitutionally outsized strength of the executive vis-à-vis the legislature. Moreover, as we have shown here by examining both formal constitutional powers and informal partisan powers, informal dynamics are responsible for most of the recent executive aggrandizement, but there are often formal changes as well. In the context of Southeast Asia, it is thus necessary to account for a wide variety of actors beyond parties and members of the legislature, such as oligarchs, political dynasties, and the military. In fact, it is estimated that 70 per cent of the members of the Philippine Congress are from political dynasties. In Indonesia, oligarchic control over parties has become pervasive, and regional dynasties have emerged.75 In short, the strong informal partisan powers of presidents over legislative actors and their supporters where institutions are traditionally weak have heightened the danger to the quality of democracy in two of Asia’s erstwhile most vibrant presidential democracies. What about the rest of Asia? To be sure, the findings here travel only with difficulty to Asia’s two other presidential democracies, South Korea and Taiwan. There, institutions are generally considered stronger and populist presidents have yet to appear. Yet, concerns about democratic backsliding and a decline of democratic norms are also growing in those contexts, linked similarly to executive transgressions and populist appeal.76 This draws attention to an often forgotten aspect of institutional analysis in the region: the implicit support, particularly from middle-class constituencies, for presidential ‘strongmen’. Scholars have described this for Southeast Asia as part of a broader pattern of ‘voting against disorder’,77 in which officials get elected by casting mass politics as a threat, and promoting order over law, effectively eliminating the traditional separation of powers. That pattern has also gained currency in other parts of Asia. This is particularly apparent where political polarization has increased 95

Björn Dressel and Fakhridho Susilo

and, amid external security threats and COVID pandemic, a popular executive has become empowered—as in Taiwan and Korea. In short, where an illiberal-populist agenda f inds fertile soil within the electorate, and strong presidencies overpower institutional checks and balances, the danger of sliding towards authoritarianism is very real. Asia’s presidential democracies face an uncertain future. What is certain is that executive-legislative relations are central to how this story unfolds.

Notes 1 Following standard academic practice, we characterize a presidential system as marked by the following: (a) The president is chosen directly by the people, (b) the constitution specifies the term of office of the president, and (c) the president forms the cabinet and is constitutionally given considerable legislative power (Shugart 2006:344–348; Kasuya 2013:12). 2 Francis Fukuyama, Björn Dressel and Boo Seung Chang, ‘Facing the Perils of Presidentialism?’ (2005) 16 Journal of Democracy 102. 3 Marco Bünte and Mark R. Thompson, ‘Perilous Presidentialism in Southeast Asia?’ (2018) 24 Contemporary Politics 251. 4 Björn Dressel and Cristina Bonoan, ‘Southeast Asia’s Troubling Elections: Duterte versus the Rule of Law’ (2019) 30 Journal of Democracy 134; Yuko Kasuya and Julio C. Teehankee, ‘Duterte Presidency and the 2019 Midterm Election: An Anarchy of Parties?’ (2020) 41 Philippines Journal of Political Science 106. 5 See, Eve Warburton and Edward Aspinall, ‘Explaining Indonesia’s Democratic Regression: Structure, Agency and Popular Opinion’ (2019) 41 Contemporary Southeast Asia 255; Edward Aspinall and Marcus Mietzner, ‘Southeast Asia’s Troubling Elections: Nondemocratic Pluralism in Indonesia’ (2019) 30 Journal of Democracy 104; Marcus Mietzner, Democratic Deconsolidation in Southeast Asia (CUP 2021). Note that Freedom House currently ranks as ‘partly free’ both Indonesia (59/100) and the Philippines (56/100). In both, Freedom House scores have eroded in the last five years. 6 But see, Yuko Kasuya (ed), Presidents, Assemblies and Policy-Making in Asia (Palgrave Macmillan 2013); Marco Bünte and Mark R Thompson, Presidentialism and Democracy in East and Southeast Asia (Routledge 2022). 7 Robert Elgie, ‘From Linz to Tsebelis: Three Waves of Presidential/Parliamentary Studies?’ (2005) 12 Democratization 106; Bünte and Thompson (n 3). 8 Juan Linz, ‘Presidential or Parliamentary Democracy: Does it make a Difference?’ in Juan Linz and Arturo Valenzuela (eds), The Failure of Presidential democracy ( Johns Hopkins University Press 1994); Juan Linz, ‘The Perils of Presidentialism’ (1990) 1 Journal of Democracy 51. 9 Mathew Soberg Shugart and John M. Carey, Presidents and Assemblies. Constitutional Design and Electoral Dynamics (CUP 1992); Scott Mainwaring and Mathew Soberg Shugart, Presidentialism and Democracy in Latin America (CUP 1997); Scott Mainwaring, ‘Presidentialisn, Multipartism and Democracy: The Difficult Combination’ (1993) 26 Comparative Political Studies 198. 10 Nancy Bermeo, ‘On Democratic Backsliding’ 27 Journal of Democracy 5; Stephen Levitsky and Daniel Ziblatt, How Democracies Die (Crown 2018). 11 See for broader comparative perspective on executive-legislative relations in Asia, Jose Antonio Cheibub and Fernando Limongi, ‘The Structure of Legislative-Executive Relations: Asia in Comparative Perspective’ in Rosalind Dixon and Tom Ginsburg (eds), Comparative Constitutional Law in Asia (Edward Elgar 2014). 12 Dan Slater, ‘Indonesia’s Accountability Trap: Party Cartels and Presidential Power after Democratic Transition’ (2004) 78 Indonesia 61; William Case, Executive Accountability in Souteast Asia: The Role of Legislatures in New Democracies and Under Electoral Authoritarianism (Policy Studies, No 57 2011) 13 Mainwaring and Shugart. 14 Yuko Kasuya, ‘A Framework for Analysing Presidential–Legislative Relations in Asia’ in Kasuya (n 6). 15 Kasuya (n 6) 10. 16 See for scoring and measurment, ibid.

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Presidential democracies 17 David Altman, ‘The Politics of Coalition Formation and Survival in Multiparty Presidential Democracies: The Case of Uruguay, 1989-1999’ (2001) 6 Party Politics 259; Jose Antomio Cheibub, Presidentialism, Parliamentarism, and Democracy (CUP 2007). 18 Mainwaring and Shugart (n 9) 429. 19 Kasuya (n 6) 30. 20 Following Mainwaring and Shugart (1997:429), the mathematical expression is: partisan power = (seat share) × (1 − 0.11 (number of No)). For coalitions, Yes converts to No in the formula. The Philippines scores three ‘No’s’ for Control of Nomination, Rank Ordering, and Vote Pooling. Indonesia scores Yes, Yes/No, and No for Control of Nomination, Ran Ordering, and Vote Pooling (see Kasuya 2013:27). 21 Although the First Philippine Republic established the ‘Presidency’ as the executive branch, it might be better described as a parliamentary system, given that the executive was elected not directly but by parliament from within. 22 Patricio N Abinales and Donna J Amoroso, State and Society in the Philippines (Rowman & Littlefield Publishers 2005). 23 Joaquin G Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary (Rex Bookstore Inc. 2003), see Art. VII of Philippine Constitution. 24 Susan Rose-Ackerman, Diane A. Desierto and Natalia Volosin, ‘Hyper-Presidentialism: Separation of Powers without Checks and Balances in Argentina and Philippines’ (2011) 29 Berkeley Journal of International Law 246. 25 Guillermo A.O’Donnell, ‘Delegative Democracy’ (1994) 5 Journal of Democracy 55. 26 Bünte and Thompson (n 3). 27 Matthew Soberg Shugart, ‘Presidentialism, Parliamentarism, and the Provision of Collective Goods in Less-Developed Countries’ (1999) 10 Constitutional Political Economy 53. 28 ibid. 29 Kenneth R Mayer, ‘Executive Orders and Presidential Power’ (1999) 61 The Journal of Politics 445. 30 Ronald D Holmes, The Centrality of Pork Amidst Weak Institutions: Presidents and the Persistence of Particularism in POst-Marcos Philippines (1986-2016) (ANU 2019) 16. 31 Yuko Kasuya, Presidential Bandwagon: Parties and Party Systems in the Philippines (Keio Press 2008). 32 ibid; Gabriellla R. Montinola, ‘Parties and Accountability in the Philippines’ (1999) 10 Journal of Democracy 126. 33 Vice-President Gloria Macapagal Arroyo stepped into the presidency in 2001 after President Estrada resigned. 34 Their names have changed over time, ranging from Country Wide Development Fund (CDF) to Priority Assistance Development Fund (PDAF). 35 See Holmes (n 30) 16. 36 Kasuya, Presidential Bandwagon: Parties and Party Systems in the Philippines (Anil Publishing 2009). 37 Sheila Coronel and others (eds), The Rulemakers. How the Wealthy and Well-Born Dominate Congress (Philippine Center for Investigative Journalism 2004); Julio Cabral Teehankee and Yuko Kasuya, ‘The 2019 Midterm Elections in the Philippines: Party System Pathologies and Duterte’s Populist Mobilization’ (2019) 5 Asian Journal of Comparative Politics 69. 38 See for good overview of ‘presidential’ toolbox, Paul Chaisty, Nic Cheeseman and Timothy Power, ‘Rethinking the ‘Presidentialism Debate’: Conceptualizing Coalitional Politics in Cross-Regional Perspective’ (2012) 21 Democratization 72. 39 Coronel and others (n 37). 40 Human Rights Watch, Philippines: Duterte’s ‘Drug War’ Claims 12,000+ Lives, 18 January 2018 (Human Rights Watch 2018). 41 David G Timberman, Philippine Politucs Under Duterte: A Midterm Assessement (Carnegie 2019); Mark R Thompson, ‘Duterte’s Violent Populism: Mass Murder, Political Legitimacy and the ‘Death of Development’ in the Philippines’ (2021) 52 Journal of Contemporary Asia 403. 42 Nicole Curato (ed), A Duterte Reader: Critical Essays on Rodrigo Duterte’s Early Presidency (Cornell University Press 2017); Jonathan Miller, Duterte Harry: Fire and Fury in the Philippine (Scribe Publications 2018). 43 Mark R Thompson and Julio Teehankee, ‘The Vote in the Philippines: Electing A Strongman’ 27 Jourmal of Democracy 124; Dressel and Bonoan (n 4). 4 4 though see, Kasuya and Teehankee (n 37). 45 ibid.

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Björn Dressel and Fakhridho Susilo 46 Most notably this included parties like Hugpong ng Pagbabago (Alliance for Change, HNP), led by the president’s daughter, and the Partido Federal ng Pilipinas (Federal Party of the Philippines, PFP), run by the former PDP-Laban vice president for Luzon. 47 Kasuya and Teehankee (n 37). 48 Adopted within this period were the 1949 Federal Constitution (‘UUD RIS’) and the 1950 Interim Constitution (‘UUDS 1950’). 49 Arief Budiman, ‘Indonesia: The Trials of President Wahid’ (2001) Southeast Asian Affairs 145. 50 Simon Butt and Tim Lindsey, Indonesian Law (Oxford University Press 2018) 12. 51 Thomas P Power, ‘Jokowi’s Authoritarian Turn and Indonesia’s Democratic Decline’ (2018) 54 Bulletin of Indonesian Economic Studies 307; EVE Warburton and Edward Aspinall, ‘Explaining Indonesia’s Democratic Regression Structure, Agency and Popular Opinion’ (2009) 41 Contemporary Southeast Asia 255. 52 Marcus Mietzner, ‘Coercing Loyalty: Coalitional Presidentialism and Party Politics in Jokowi’s Indonesia’ (2016) 38 Contemporary Southeast Asia 209. 53 Aspinall and Mietzner (n 5). 54 UUD 1945 stipulates DPR’s rights of interpellation, inquiry, and expression of opinions (Article 20A par. (1)), as well as the rights to question, submit proposals and opinions (Article 20A par. (2)), and the right to immunity for its members (Article 20A par. (3)). It also obliges the President to hear the DPR in various matters, such as signing of international treaties, appointment of ambassadors to other states, and the granting of amnesty. Note: While the amendment also establishes another legislative chamber, the Dewan Perwakilan Daerah (DPD) elected based on regional representation rather than party constituency, its authority is limited to decentralization-related law making, and thus less relevant to the present discussion. 55 Impeachment procedure is stipulated in Article 7A and 7B par. (1); the impossibility of the dissolution of the parliament is found in Article 7C of UUD 1945. 56 Kasuya (n 6) 23; Butt and Lindsey (n 50) 12. 57 A Framework for Analysing Presidential–Legislative Relations in Asia. 58 It also helped him overcome initially difficult relations with his own party, see: Marcus Mietzner, ‘Reinventing Asian Populism: Jokowi’s Rise, Democracy, and Political Contestation’ (Policy Studies, No 72 2015) 74. 59 Chaisty, Cheeseman and Power (n 38). 60 Paul Chaisty, Nic Cheeseman and Timothy Power, The Coalitional Presidentialism Project: How MPs Understand Coalitional Politics in Presidential Systems (University of Oxford 2015) 6. 61 Mietzner (n 52). 62 Dan Slater, ‘Party Cartelization, Indonesian-Style: Presidential Power-Sharing and The Contingency of Democratic Opposition’ (2018) 18 Journal of East Asian Studies 23; Slater (n 12); Kuskridho Ambardi, The Making of The Indonesian Multiparty System: A Cartelized Party System and Its Origin [Doctoral Dissertation, Ohio State University] (2008). 63 Mietzner (n 58). 64 ibid. 65 Edward Aspinall and Marcus Mietzner, ‘Indonesian Politics in 2014: Democracy’s Close Call’ (2014) 50 Bulletin of Indonesian Economic Studies 347. 66 Edward Aspinall, ‘Oligarchic Populism: Prabowo Subianto’s Challenge to Indonesian Democracy’ (2015) 23 Indonesia 1. 67 Mietzne (n 58). 68 ibid. 69 ibid. 70 ibid. 71 Yudhoyono’s swift response to the intervention, utilizing an extensive media campaign to build public opinion in his favour, has been relatively successful in cornering the government, which eventually refused to formally recognize the leadership of Moeldoko’s faction. Nevertheless, the situation could still spiral into an unpredictable outcome pending the decision of the Administrative Court, which is currently addressing the grievances of Moeldoko’s camp. 72 n 58. 73 Jeremy Mulholland and Arbi Sanit, The Weakening of Indonesia’s Corruption Eradication Commission (East Asia Forum Power 2020).

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Presidential democracies 74 See https://www.liputan6.com/news/read/4574609/survei-parameter-elektabilitas-jokowi-masihtertinggi-jika-boleh-maju-pilpres-2024 (accessed 20 June 2021). 75 Ronald U Mendoza, Leonardo M Jaminola and Jurel Yap, From Fat to Obese: Political Dynasties after the 2019 Midterm Elections (Ateneo School of Government Working Paper Series 2019); Julius Cesar I. Trajano and Yoes C. Kenawan, Political Dynasties in Indonesia and the Philippines (East Asia Forum 2020) (accessed 13 February 2020). 76 Huoyan Shyu, ‘Populism in Taiwan: The Rise of a Populist-Democratic Culture in a Democratising Society’ (2008) 16 Asian Journal of Political Science 130; Sook Jong Lee, ‘Chapter 1: Populism in Asian Democracies’ in Sook Jong Lee, Chin-En Wu and Kaustuv Kanti Bandyoppadhyay (eds), South Korea’s Tamed Populism: Popular Protests from Below and Populist Politics from the Top (Brill 2020). 77 Thomas Pepinsky, ‘Southeast Asia: Voting Against Disorder’ (2017) 28 Journal of Democracy.

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PART II

Jurisdiction Chapters

7 THE PARLIAMENT (JATIYA SANGSAD) OF BANGLADESH M Jashim Ali Chowdhury

7.1 Introduction The Parliament of Bangladesh (hereinafter, the Parliament) is officially known as the Jatiya Sangsad (House of the Nation). It is a unicameral legislature established under Article 65 of the Constitution of the People’s Republic of Bangladesh (hereinafter, the Constitution). Modelled on Westminster, the Parliament is entrusted with legislative powers, the constitutional amendment power, financial and budgetary powers, and the powers of democratic oversight over the government. The Prime Minister and the Cabinet are drawn from the majority parliamentary party. The government remains in power so long as it bears the confidence of Parliament. As Bangladesh recognises constitutional supremacy, parliamentary laws and even constitutional amendments are subject to judicial review. The Supreme Court of Bangladesh is considered the guardian of the written Constitution and, hence, has the power of judicial review over executive and legislative actions. This chapter explains the structure, composition, powers, functions, and legislative process of the Parliament. The chapter also includes critical reflections on several of its institutional aspects.

7.2  Structure and composition of the Parliament 7.2.1  Composition of the Parliament Article 65 of the Constitution has fixed the number of directly elected Members of Parliament (hereinafter, the MPs) at 300. In addition, Parliament today includes 50 women MPs who are indirectly elected by the 300 MPs.1 Known as the ‘reserved seat’ women MPs, these MPs are proportionally distributed among the parties represented in the Parliament. While women’s organisations have generally welcomed the reservation of women member seats, they have raised concern over the trend of ad-hoc changes made in consecutive constitutional amendments.2 It has also been argued that apart from consolidating the numerical majority of the ruling parties,3 reserved seat MPs have played a negligible role in the parliamentary process.4 While the framers of the Constitution adopted the reservation policy as a temporary arrangement, the successive extensions of its tenure without any serious commitment to women’s empowerment in the national political discourse did not escape criticism.5 DOI: 10.4324/9781003109402-9

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A Bench of High Court Division of the Supreme Court of Bangladesh (hereinafter the HCD) questioned the reservation policy in Shamima Sultana Seema v Bangladesh.6 Though the case was related to reserved women seats in City Corporations, the petitioner also questioned the parliamentary reservation system.7 The Court accordingly made some obiter comments on the doubtful constitutionality of the reservation in Parliament.8 Calls for direct elections to the women’s reserved seats have intensified since then.9

7.2.2  Election of the general MPs Article 65 of the Constitution does not regulate the manner of parliamentary elections. It simply states that MPs shall be elected ‘in accordance with law’ and ‘from single territorial constituencies … by direct election.’10 Article 124 of the Constitution authorises the Parliament to pass laws determining constituencies, electoral rolls, and the process, manner, etc., of elections. The principal election law of Bangladesh – the Representation of the People Order 1972 (hereinafter the RPO) – was issued pursuant to Article 124 and has been amended several times. Articles 72 and 123 of the Constitution provide some guidance about the timing of the parliamentary general election. As per Article 123(3), a general election to the Parliament is held within 90 days before the expiry of the tenure of a sitting Parliament. If the President dissolves the Parliament before the end of its tenure, election to the next Parliament is held within 90 days after such dissolution. As per Article 72(3), a Parliament’s tenure is five years from the date of its first sitting after a general election. In case the Republic is at war, the Parliament’s tenure may be extended up to six months after the termination of the war. A limitation, however, is that the Parliament’s tenure cannot be extended by more than one year at a time.11 In a war situation, the President may even call a dissolved Parliament back into session.12 Though it has not yet been applied, this provision could lead to the controversial intervention of the President in the electoral process. Recalling an already dissolved Parliament would postpone the election to the next Parliament. As per Article 48(3) of the Constitution, the President may act only in accordance with the advice of the Prime Minister. Hence, the President’s decision to recall a dissolved Parliament could be the decision of the outgoing Prime Minister who, as per Article 57(3) of the Constitution, might then be waiting for his successor to be elected in the ensuing election. Apart from the general parliamentary elections, mid-term vacancies are filled through by-elections to the concerned constituencies. Article 123(4) of the Constitution provides that a by-election to fill the vacancy in any seat will be held within 90 days of the official notification of such vacancy. In some cases, the Chief Election Commissioner (CEC) may extend that deadline by another 90 days if they think the election could not be held within the first 90-day period due to an ‘Act of God.’

7.2.3  Election of the reserved seat women MPs Before the introduction of the proportional distribution system in 2004, the majority parties usually took all the reserved seats unless they agreed to share some with coalition or strategic partners. This was possible because the reserved seat MPs were elected by the 300 MPs elected in the general election.13 Presently, the Parliament (Reserved Women Seats) Election Act 2004, passed after the Fourteenth Amendment of 2004, provides for proportional distribution of reserved seats among the parliamentary parties. After a general election, the 104

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parties represented in Parliament nominate their assigned number of candidates through an internal nomination process. The Election Commission then takes over the electoral process. Fifty MPs nominated by the parties are elected through the votes of the directly elected MPs.

7.2.4  Partisan candidate selection and independent candidates The RPO recognises partisan as well as independent candidatures in parliamentary elections. Political parties registered with the Election Commission can nominate their candidates for the election.14 A formal nomination paper duly signed by the responsible party officer is sufficient for the candidates nominated by registered parties. An independent candidate, however, requires, in addition to a sponsor and a seconder of the proposal for their nomination, supporting signatures from at least 1% of the total eligible voters in the constituency in which they might contest.15 Parties nominate their list of candidates through their internal parliamentary nomination boards. Though the nomination board formally nominates the candidates, the nature of Bangladesh politics is personalistic and patrimonial. Thus, the party chief determines the nomination of MP candidates.16

7.2.5  First-past-the-post system of election As mentioned earlier, Article 65 of the Constitution requires ‘direct election’ to the Parliament. Members are elected through a first-past-the-post system, where a simple majority of every transferable vote counted on a universal adult suffrage basis determines which candidate wins a parliamentary seat. The party securing the most seats forms the government. Hence, the parties are not allotted seats in proportion to the popular votes they receive. The electoral history of Bangladesh shows that the number of seats the parties gain is usually disproportionate to the percentage of popular votes they receive.17 While there are concerns regarding the disproportionate distribution of seats among the political parties, there have not been serious demands for a proportional election system in Bangladesh.18

7.2.6  Eligibility of the voters Article 122(1) of the Constitution requires elections to be held ‘on the basis of the adult franchise.’ Voters are registered in the electoral roll if they are (1) citizens of Bangladesh; (2) of 18 years of age; (3) not declared persons of unsound mind by a competent court; and (4), not convicted for any offence under Bangladesh Collaborators (Special Tribunals) Order, 1972.19 Disenfranchisement for conviction under the Collaborators Order was inserted by the Constitution (Fifteenth Amendment) Act of 2011. It was targeted at persons accused of and convicted for collaborating with the occupying Pakistani military during Bangladesh’s Liberation War in 1971. This provision had the effect of barring the Jamat-i-Islami ( JI) leaders, who were accused of collaborating with the Pakistani military, from putting forward candidates in parliamentary elections. An eligible voter must be registered in the constituency where they are a lawful ‘resident.’ The Electoral Rolls Act of 2009 requires a ‘resident’ to physically live in the constituency or possess homestead or immovable property there.20 The matter was challenged in ATM Ali Reza v EC.21 Mr Ali Reza, a non-resident Bangladeshi living in London, challenged 105

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the residency requirement in the Electoral Rolls Ordinance 2008. The HCD decided in his favour by holding: It appears that the petitioner is a permanent resident of Bangladesh. Having his temporary residence in London and having attained the age of eighteen years and not having been declared by a competent court to be a person of unsound mind, he is entitled to be registered as a voter pursuant to Article 122 of the Constitution and the provision of Section 8 of the Electoral Rolls Ordinance, 2008 cannot restrict or deny the right of the petitioner conferred by Article 122 of the Constitution.22 In light of the HCD’s verdict, the Electoral Rolls Act 2009 inserted a clause that nonresident Bangladeshis will be deemed residents of the constituencies where they had lived before emigrating or still owned ancestral homes.23 This provision is similar to that governing prisoners. The 2009 Act requires prisoners and inmates to be registered in the constituency of their permanent residence rather than in the constituencies where they might be held in jail.24 The 2009 Act, however, has made voting almost impossible for prisoners and nonresident Bangladeshis. Though the RPO allows voting by postal ballot, the practice has not gained popularity in Bangladesh. The process of requesting the postal ballot is cumbersome.25 Concerns about the postal service have made voters sceptical that they will receive ballots on time and that their votes will be counted. For non-resident Bangladeshis, there is no means to request ballots through Bangladesh embassies in their respective countries of residence. Hence, despite calls for reform, Bangladesh continues to disenfranchise millions of its nonresident citizens. While there was a promise by the incumbent Prime Minister in 2013 to make the necessary amendments to the RPO, these amendments never materialised.26

7.2.7  Qualification of the MP candidates As per Article 66(1) of the Constitution, any citizen of Bangladesh eligible to be registered in the Electoral Roll and who has attained 25 years of age may be a candidate in parliamentary elections. Though educational background or personal disposition are not listed as qualifications, there had been growing calls for better information sharing about the candidates’ criminal, financial and educational records. This movement drew inspiration from an Indian Supreme Court decision requiring the candidates to supply information about their criminal records.27 The Bangladesh Supreme Court later made the disclosure of such information compulsory.28

7.2.8  Disqualification of the candidates and MPs As per Article 66(2) of the Constitution, a person shall be disqualified from serving, or to continue as, a Member of Parliament, if they are declared a person of unsound mind, an insolvent, a dual citizen of another country, or is convicted of a criminal offence involving ‘moral turpitude,’ sentenced to imprisonment for at least two years for the offence and five years have not passed since he served a sentence. Article 66(2)(f ) provides that any person holding any office of profit in the service of the Republic will be disqualified from being an MP. The Constitution (Fifteenth Amendment) Act of 2011 added that persons convicted under the Bangladesh Collaborators (Special Tribunals) Order, 1972, will also be disqualified as MPs. Apart from the constitutional disqualifications in Article 66(2), Article 12(1) of the RPO contains additional statutory grounds for disqualifications. Any retiring civil or military 106

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officer will be disqualified from parliamentary elections until three years have passed since their retirement or resignation. Any person who might have been appointed in the service of the Republic on a contractual basis or who might have worked in executive posts of any foreign fund-receiving NGO will be disqualified until three years after their termination from such post. Any person who switched their party affiliation will be barred from running in an election on their new party’s ticket until three years have passed since the switch. They may, however, contest as an independent candidate in the meantime. Article 12 of the RPO also disqualifies those who defaulted on bank loans, utility bills, etc. These disqualifications were introduced during the late 1990s and early 2000s in response to various public mobilisations for fairer politics and cleaner candidatures.29

7.2.9  Non-credible electoral process and institutions The fairness of the electoral process, the neutrality of the Election Commission, and the trustworthiness of election results are continuing problems in Bangladesh.30 Except for the four relatively free and fair elections held under the non-partisan caretaker governments from 1991–2008,31 elections conducted under the party governments have been deeply flawed.32 Though the Constitution of Bangladesh envisages an independent Election Commission, successive political governments have captured the institution through their appointment power. The posts of the CEC and other commissioners are filled by the President on the advice of the Prime Minister.33 Almost all appointments to the Commission have been political.34 Political control of the electoral administration has been ‘the biggest problem’ for the Election Commission.35 The Commission must depend on the government machinery, including the law enforcing forces and the bureaucracy, to conduct the election. However, the party governments in power during the election usually make it impossible for the Commission to command the administration. Naturally, there is little, if any, faith among the opposition parties regarding the Commission’s ability to conduct a free and fair election under a party government.36

7.2.10  Vacation of seats by the sitting MPs Parliamentary seats may be vacated by resignations or the dissolution of Parliament. MPs may also vacate their seats when any disqualifications mentioned in Article 66(2) of the Constitution arise. Article 67(1) provides some additional grounds for vacation. Three of those deserve mention. First, an MP-elect will vacate their seat if they fail to take an oath of office within 90 days of a newly elected Parliament’s first meeting. Second, an MP will lose their seat if they remain absent from Parliament without the Speaker’s leave for 90 consecutive sitting days. Third, a seat will be vacated if an MP resigns from or votes against their political party or abstains from voting by disregarding the party instruction under Article 70(1).

7.2.11  The Speaker and Deputy Speaker As per Article 74(1) of the Constitution, the Speaker and Deputy Speaker are elected at the first sitting of Parliament after every general election. The Speaker election process is governed by Rules 8–10 of the Parliamentary Rules of Procedure (hereinafter RoP). Though the RoP requires individual MPs to propose other colleagues for the post, the nomination is usually predetermined along partisan lines. The practice is that the majority party proposes its preferred MPs as the Speaker and Deputy Speaker. Knowing that their members have no chance of winning, the opposition parties usually do not propose their candidates for the post. 107

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Formal voting then follows, and the Speaker and Deputy Speaker are elected. Article 74(3) of the Constitution permits the Deputy Speaker to assume the role in the absence of the Speaker. In the absence of both, some other member of Parliament may discharge the role. The RoP requires the Speaker to nominate, at the commencement of each parliamentary session, a panel of five such MPs who would preside over the House in order of precedence if both the Speaker and Deputy Speaker are unavailable.37

7.2.12  Powers and functions of the Speaker As per Article 148(2) of the Constitution, the Speaker administers the oath to MPs. The RoP has detailed the powers and functions of the Speaker. When a Speaker is reelected as a member of a new Parliament, Rule 5(3) of the RoP allows them to take an oath to themselves first and then administer it to newly elected MPs.38 Apart from administering the oath, the Speaker has the power to make MPs behave in an orderly and parliamentary manner. They may punish grossly disorderly behaviour by ordering an MP to withdraw immediately and for the rest of a sitting day from the House.39 In extreme cases, they may name an MP who obstructs the business of the House by persistently and wilfully disregarding the authority of the Chair or abusing the rules of the House and suspend that MP for the duration of a whole session after a motion being passed in the floor.40 Subject to the President calling and proroguing the Parliament, the day-to-day sitting and adjournment of parliamentary business are directed at the discretion of the Speaker.41 The Speaker, however, may constitute a Business Advisory Committee42 which, if constituted, would include the Prime Minister, the Leader of the Opposition, and the Chief Whips of the majority and opposition parties. This high-powered committee could potentially contribute to more democratic management of the parliamentary business. Absent any mandatory language in the RoP, the constitution and conduct of such committee remain the Speaker’s privilege. Therefore, the Business Advisory Committee has been underutilised tool in the management of the parliamentary business. While the Business Advisory committee has been framed in non-mandatory terms, several other rules require the Speaker to consult the Prime Minister in setting the parliamentary agenda.43 For example, while private member businesses are scheduled for Thursdays, the Speaker, in consultation with the Prime Minister, who is also the Leader of the House, may direct that such business be conducted on any other day.44 Overall, the Speaker represents the House. It is assumed that once elected, the Speaker shuns loyalty to their political party. Unfortunately, successive Speakers in Bangladesh have served more like party members than neutral arbiters of parliamentary business. Unlike the British practice, the Speakers in Bangladesh do not resign their party affiliation after their election to the post, nor are they elected uncontested in the next election. Speakers’ partisan tendencies have been a constant source of frustration for opposition parties in Bangladesh.45 The frustration was reflected in an obiter comment from a Supreme Court judge in Anwar Hossain Monju v Bangladesh.46 ABM Khairul Haque J urged Speakers ‘to risk their wooden chair to uphold the dignity of their office by beginning completely impartial and remain independent and aloof of browbeating of their party bosses in conducting the proceedings of the House.’47

7.3  Powers of the Parliament Typical of a Westminster parliament, the Parliament of Bangladesh has three broad categories of powers – first, the law-making power, including the constitutional amendment power; second, the power of the purse – the power to approve taxation and expenditure; 108

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and, third, the power to enforce the collective and individual ministerial responsibilities of the government. Ministerial responsibility is enforced through the Parliament’s appointment, impeachment, removal, debate, question, and scrutiny powers. In pursuance of its scrutiny power, the Parliament and its committees are supplemented by parliamentary officers like the Ombudsman and the Comptroller and Auditor General (CAG). On the one hand, the Ombudsman investigates allegations of corruption, unfairness, and illegality in the bureaucracy. The CAG, on the other hand, audits the government offices, divisions, statutory corporations, and organisations.

7.3.1  Law-making and constitutional amendment powers The Parliament of Bangladesh possesses plenary legislative power48 as well as the constitutional amendment power.49 Though statute laws are passed by a simple majority of the members present in the Parliament, constitutional amendments require a two-thirds majority of the total membership. The Parliament’s law-making power is subject to constitutional limits. Statutes inconsistent with fundamental rights or any provisions of the Constitution are unconstitutional. The judiciary has also gained the power to review constitutional amendments. The original Constitution of 1972 did not contain any limitation on the amendment power. Except for a procedural requirement of a two-thirds majority, the amendment power was free of any other limitation.50 In Anwar Hossain Chowdhury v Bangladesh, the Supreme Court of Bangladesh borrowed the ‘basic structure doctrine’ from the Indian Supreme Court’s Kesavananda Bharati judgement.51 Under this doctrine, certain parts of the Constitution constitute basic structures of the document and, therefore, could not be altered through constitutional amendments. Recently, the Constitution (Fifteenth Amendment) Act of 2011 expressly endorsed the basic structure doctrine. Article 7B of the Constitution now provides that the ‘basic structures’ of the Constitution cannot be amended. It also identifies certain parts and provisions52 – an unusually long list of provisions53 – which are not amendable. Since the Anwar Hossain Chowdhury judgement, judicial review of constitutional amendments has been the norm rather than the exception in Bangladesh. So far, the Supreme Court has invalidated, in whole or in part, the fifth, seventh, eighth, thirteenth, and sixteenth amendments to the Constitution. The eleventh, twelfth, and fourteenth amendments were challenged, but those challenges failed on substantive grounds. Parliament has almost always acquiesced to Supreme Court judgements on constitutional amendments except in the case of the sixteenth amendment. That case resulted in combative exchanges between the Parliament and the Court and caused the Chief Justice to resign.54

7.3.2  Financial powers Article 83 of the Constitution lays down the Parliament’s financial powers. It unequivocally provides that no tax may be imposed, and no revenue may be collected from the people without parliamentary authorisation.55 Appropriation laws passed by Parliament regulate payments into and withdrawals from the public account.56 The President may regulate this area only where the Parliament makes no law.57 Each year, the government presents an Annual Financial Statement (budget) before the Parliament.58 It contains the government’s fiscal policy, priorities, and proposals for expenditure and taxation for the coming fiscal year.59 Parliament engages in a general debate on the budget.60 However, the budget as such is not passed into law. The government needs to submit separate Demands for Grants for each expenditure proposal it makes in the budget statement.61 109

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Parliament reserves the power to discuss and vote to approve, modify, or reject these demands.62 There is, however, one exception. Demands for Grants related to the Charges upon the Consolidated Fund are debatable but not amendable. Parliament may discuss but cannot vote on those.63 Charges upon the Consolidated Fund mainly include the remunerations payable to constitutional office holders like the President, Speaker, Deputy Speaker, Judges of the Supreme Court, CAG, Election Commissioners, Members of the Public Service Commission, and administrative expenses of their offices.64 This provision is an important safeguard of the institutional independence of these offices. It ensures that these constitutional institutions are secure from the arm-twisting of hostile political governments. There are, however, some other unwelcome restraints on the Parliament. Unlike the British Parliament, Bangladesh Parliament does not send the annual budget for committee scrutiny. Also, three procedural devices known as Votes on Accounts, Votes of Credit and Withdrawal by Presidential Ordinance work to the advantage of the government. Sometimes, the government may secure advanced monetary grants through the ‘Votes on Accounts’ process before the Parliament approves its budget.65 The ‘Vote of Credit’ allows a government facing an adversarial parliament to withdraw money through presidential orders for a maximum of 60 days.66 The government can thereby pressure a parliament unwilling to pass the government’s Demands for Grants to come to terms with it. In extreme cases, the President may even dissolve the Parliament and withdraw money from the public account through their Ordinance power.67 Though Parliament must ratify such ordinances within 30 days of its reconstitution,68 this process may allow the governments to propose budgets and get them approved by the President for an indefinite period. Such a situation may arise when a parliament is dissolved, but the election to the next Parliament is deliberately deferred beyond the 90-day time limit. From 2007 to 2007, a military-backed caretaker government refused to hold elections for around two years and utilised this provision to publish their budgets in large press conferences and later approve those budgets through presidential ordinances.69

7.3.3  Appointment and removal power The Parliament of Bangladesh has the powers of election, appointment, and removal concerning some key constitutional offices, including the Prime Minister, President, and justices of the Supreme Court.

7.3.4  Appointment and removal of the Prime Minister and Cabinet The President invites the Leader of the parliamentary majority party to be the Prime Minister (PM) and form a government.70 The PM and Cabinet have no fixed term or tenure, nor do they hold their office at the pleasure of the President. The Prime Minister serves so long as they hold the confidence of a majority of MPs.71 Suppose a motion of no confidence is passed in the Parliament. In that case, the Prime Minister has to resign, and the President must invite another MP, who might have the confidence of the majority, to form the government. If no such MP is found, the President shall dissolve the Parliament. The Prime Minister would continue in office until the next election, when a successor enters the office.72

7.3.5  Election, removal, and impeachment of the President As per Article 48(1) of the Constitution, the President is elected by the Parliament. Usually, a nominee of the majority party, the President, is elected for five years from their 110

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entry into the office. They, however, continue to hold office until a successor enters the office following a new parliamentary election.73 While the majority party is likely to nominate a partisan candidate, non-partisan figures have also been chosen.74 Parliament may impeach the President on charges of violating the Constitution or for grave misconduct under Article 52. If a majority of members moves a motion for impeachment, the Speaker must summon Parliament. After a prolonged debate, the matter may be referred by Parliament for an investigation to a court, tribunal, or any other body appointed or designated for that purpose. The President has the right to appear before the designated investigative body and defend. Upon report of the investigation, Parliament may proceed to impeach the President by a two-thirds majority of the total MPs. The President vacates the office on the date on which the impeachment resolution is passed.75 Short of impeachment, the President may be removed from office on the grounds of physical or mental incapacity under Article 53 of the Constitution. In this instance, instead of an investigation or trial, the matter is referred to a designated Medical Board. Upon the Board’s report, Parliament may pass a resolution for removal by a two-thirds majority of the total membership.76 While an impeached President is disqualified from serving in the office again, a removed President may theoretically be appointed again in the future if their physical or mental capacity is regained.77

7.3.6  Appointment and removal of Supreme Court judges Parliament’s authority to appoint and remove Supreme Court judges has been a matter of constitutional controversy in recent years. Article 95 of the Constitution grants Parliament law-making authority in determining the qualifications for the appointment of judges. The President formally appoints judges on the recommendation of the Prime Minister and the Chief Justice.78 Like the appointment of Supreme Court judges, the appointment of other constitutional officers like the Election Commissioners,79 CAG,80 and Members of the Public Service Commission81 are controlled by the government. While the Parliament is given a general law-making power of prescribing the qualifications and other requirements for candidates to such offices,82 it is the President who appoints these office bearers as per the advice of the Prime Minister. The original Constitution of 1972 provided for a significant parliamentary role in the removal of judges. As with presidential impeachment, judges were to be removed by a twothirds majority in Parliament. This system was substituted in 1977 by a military ruler, who instituted the Supreme Judicial Council system. The Council comprised the Chief Justice and two of his colleagues in the Appellate Division. In 2014, the sixteenth amendment to the Constitution sought to revive the original parliamentary removal system.83 In 2016, the Supreme Court declared the sixteenth amendment unconstitutional in Advocate Asaduzzaman Siddiqui v Bangladesh.84 This judgement has been a matter of contentious constitutional debate in Bangladesh.85 While the government’s review petition against the judgement is still pending in the Appellate Division, the invalidated sixteenth amendment remains in the printed pages of the Constitution. Unlike the previous invalidation of constitutional amendments, the government has not reprinted the Constitution by omitting the sixteenth amendment and restoring the Supreme Judicial Council system. Thus, there is confusion as to the current status of the sixteenth amendment.86 Recently, some judges of the Supreme Court, against whom there have been allegations of misconduct, were told by the Chief Justice to refrain from judicial work. They have neither been investigated by the Supreme Judicial Council nor removed by the Parliament.87 The fate of the sixteenth amendment is important for another reason as well. The Constitution provides that other constitutional office bearers like the 111

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Election Commissioners, CAG, and Members of the Public Service Commission shall be removed on the same grounds and under the same procedures as Supreme Court judges.88

7.3.7  Accountability power Typical of a Westminster Parliament, the Parliament of Bangladesh is dominated by the government. It is called into session by the President89 upon written advice of the Prime Minister.90 The Prime Minister and other ministers in the Cabinet have the ‘right’ to speak and participate in parliamentary business. The Cabinet largely determines the parliamentary agenda. Government business has priority over private member business. While the government’s collective responsibility is expressed in the Parliament’s power of tabling a no-confidence motion, there is no express provision regarding individual ministerial responsibility in the Constitution.91 Article 58(2) of the Constitution rather makes the ministers responsible to the Prime Minister. They serve during the Prime Minister’s pleasure. Parliament, however, can make ministers answer questions, debate their actions, and scrutinise their departments through parliamentary committees.

7.3.8  Parliamentary questions Parliamentary questions are asked and answered during the first hour of each sitting day. Ministers take turns answering parliamentary questions on a rotational basis. The Prime Minister’s question time takes place on Wednesdays. The questions consist of two types – starred and unstarred. Ministers must give an oral answer to the starred questions and supplementary questions can follow those. To the unstarred questions, ministers must give written answers, and no further supplementary questions are permitted. Parliamentary questions have serious efficacy concerns in Bangladesh.92 There are procedural complexities in tabling questions.93 Ministers have near-absolute discretion in answering or ducking questions.94 The Speakers show a partisan attitude in entertaining questions and a tendency to refuse urgent questions.95 Under the RoP, the Speaker has wide powers regarding the admission, rejection or amendment of parliamentary questions.96 The MPs also avoid accountability questions and focus on their constituency demands instead.97 Prime Minister’s Question Time has failed to generate any meaningful accountability. Questions asked to the Prime Minister usually lack a critical bent. The RoP gives the Prime Minister absolute discretion of whether or not to answer a particular question.98 Prime Ministers have usually faced comfortable and friendly questions and used the platform to score political points by attacking the opposition rather than answering for their government’s actions and policies.99

7.3.9  Parliamentary debate As mentioned earlier, the Parliament’s agenda and debates are largely dominated by the government. Individual members and opposition parties have very limited scope to initiate and sustain debate in the House unless the government allows them. Still, the MPs can serve call attention notices100 on matters of public interest. These are usually directed towards a Minister. While these are usually allowed by the Speaker, MPs often use this motion to press a minister over their constituency issues. Apart from permitting a 2- or 3-minute speech by the concerned MP, these notices rarely result in any follow-up debate in the House. MPs may also move for half-an-hour discussions on answers given by the Ministers during the question 112

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hour.101 Speakers rarely allow the half-an-hour discussion motions. The MPs may sometimes request short discussions102 on matters of public importance. The RoP, however, expressly requires the Speaker to consult the Prime Minister before approving such requests. MPs may also move private member resolutions on matters of public importance.103 These resolutions are discussed on the private member business days. Absent the endorsement of the government, they rarely pass. MPs can also move points of order. Such points of order may draw the Speaker’s attention to some procedural irregularities such as a lack of quorum on the House floor. Otherwise sidelined in parliamentary agenda setting, opposition parties in Bangladesh usually table motions for adjournment of any day’s parliamentary business and demand discussion on matters they consider important and urgent.104 Government parties have historically viewed these motions as disruptive tactics. Indeed, opposition parties have abused these motions to create chaos and stage walkouts and parliament boycotts.105 Unlike the UK House of Commons, the Bangladesh parliament does not reserve any opposition day in parliamentary business.

7.3.10  The committee system There are three types of committees in the Bangladesh Parliament – standing, select, and special committees.106 Standing committees are constituted permanently and for a parliamentary term. Special committees are constituted to handle special issues or matters coming to the Parliament from time to time.107 Select committees are mainly formed to scrutinise a specific bill. However, bills may be sent to standing committees instead of a select committee. Until the seventh Parliament of 1996–2001, no select committee was ever established for scrutinising a particular bill. The seventh Parliament established a select committee dedicated to reviewing the bills tabled in the House.108 Earlier parliaments would usually send bills to the relevant standing committees. The Constitution specifically lists the public accounts and parliamentary privileges committees as two standing committees.109 Other standing, select, and special committees are formed at the discretion of Parliament as per the RoP.110 Apart from subject-wise committees, such as parliamentary privileges, government estimates, and public accounts standing committees, there are ministerial standing committees that oversee the ministries continuously. Before a reform in the fifth Parliament (1991–1996), ministerial standing committees could only scrutinise government bills relating to the Ministry under its oversight. Since the reform, the ministerial standing committees also oversee, investigate, and report on the operation and policies of the Ministry concerned.111 Since the ministerial standing committees mirror government ministries, their number varies from term to term. Committee work is, however, severely compromised due to structural issues surrounding the committee system. The core of the problem is the lack of appreciation for the system itself.112 Until the ninth Parliament (2009–2013), parliaments often finished more than half of their tenures without constituting committees.113 In some instances, committee formation was delayed due to the opposition parties’ refusal to submit their list of nominees.114 When formed, the committees are constituted from members on partisan lists supplied by the leadership. Members and Chairs of the committees are distributed among the parties in proportion to their seats in Parliament. The RoP also designates some ex officio members – the Speaker, the Leader of the House, the Leader of the Opposition, etc.115 The House usually adopts a resolution confirming the partisan committee placements. The RoP designates some on an ex officio basis. For instance, the Speaker chairs the Business Advisory Committee.116 113

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Other Chairs are decided by the party leadership,117 though, formally, either the House or the committees themselves elect the chairs.118 Historically, the majority parties have claimed almost all the Chairs.119 Though the chairs are now distributed among the parties on a proportionate basis, the government party decides which committee Chairs will be allotted to members of other parties. Unless the government is exceptionally generous, Chairs of important committees like the Public Accounts, Public Undertaking, and Estimate committees are unlikely to be given to the opposition members.120 Until a reform in the seventh Parliament (1996–2001), the ministerial standing committees were chaired by the Minister of the relevant Ministry.121 After the rule was amended, general MPs are appointed to the Chairs, but the Ministers remain ex officio members of standing committees on their Ministry. There is now a perception that committee Chairs – whose salaries and amenities are equal to government ministers – are distributed among ministerial aspirants who could not be accommodated in the Cabinet. In this process, expertise and accountability are mostly ignored.122 Packed with partisan chairs and members, the committees rarely display an interest in holding the government accountable to Parliament.123

7.3.11  The Comptroller and Auditor General The CAG of Bangladesh is a constitutional post. As an officer of Parliament, the CAG is required to report to the Parliament through the President.124 The CAG places its audit report before the Public Accounts Committee (PAC), which considers it, recommends corrective actions, and investigates anomalies in government expenditure that the report may unearth.125 The CAG attends the PAC meetings and sends representatives to the Public Undertaking Committee and Estimate Committee meetings. Functional autonomy and the institutional separation of the CAG from the government bureaucracy are substantially compromised in Bangladesh.126 While their status as a parliamentary officer is expressly mentioned in the Constitution, appointment to the office has paradoxically been entrusted to the President and Prime Minister.127 Governments have traditionally appointed senior bureaucrats to the post. While the audit mandate of CAG constitutionally extends to the public accounts of the State128 as well as to the accounts of all courts of law and other authorities and officers of the government,129 section 3A of the CAG (Additional Functions) Act of 1974 empowers the government to exclude any office from CAG jurisdiction. The Bangladesh government’s Rules of Business (1996) also requires the CAG to contact the Prime Minister’s office. Despite Article 128(4)’s express requirement that the CAG ‘shall not be subject to the direction or control of any other person or authority,’130 the office is administratively dependent on the Ministry of Finance. The Ministry controls the appointment, promotion, and terms and conditions of all the staffers at the CAG office.

7.3.12  The Ombudsman Article 77 of the Constitution permits the Parliament to create an office of Ombudsman who will work as a parliamentary officer and ‘investigate any action taken by any Ministry, a public officer or a statutory public authority.’ The Ombudsman receives direct complaints from citizens, investigates them, and reports to the Parliament. Though the Ombudsman Act 1980 was passed in pursuance of Article 77, the law left it to the government to decide when to allow the office to assume its function. Due to resistance from the bureaucracy, the office of the Ombudsman has not yet been created.131 114

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7.4  The legislative process Legislative procedure in Bangladesh broadly mirrors the Westminster process. However, as will be clear by the end of this part, the law-making process of the Bangladesh Parliament lacks meaningful scope for private members or opposition parties to have a say in legislation. Parliamentary committees also play a very formal and minimal role. The government’s agendasetting power and purely majoritarian approach to parliamentary business have not only cast it in the leading role for passing legislation but have also circumscribed the Parliament’s institutional power to influence proposed laws. In post-independence Bangladesh, only seven private member bills have been passed, indicating that backbench members lack the scope, logistics, and interest in passing extra-governmental legislation.132 The legislative procedure of Bangladesh, therefore, merely serves as a legitimation tool for the executive branch.

7.4.1  Pre-legislative stage While the President’s annual speech to the Parliament would ideally include the government’s upcoming legislative agenda, this is rarely the case in Bangladesh. Therefore, the general debate on the presidential speech that follows does not provide members with an opportunity to consider the broader principles of the government’s legislative program.133 Governments in Bangladesh instead bring forth their legislative proposals on an ad-hoc basis. Bureaucratic proposals for law-making initiate in the relevant department or Ministry. Three departments are usually involved in the process. These are (1) the Legislative Drafting Wing of the Ministry of Law, Justice and Parliamentary Affairs; (2) the Ministry of Finance; and (3) the Cabinet Division. The Legislative Drafting Wing writes the bill. The Ministry of Finance opines on draft bills if they require government expenditure. A draft bill may travel back and forth among Law, Finance, and other relevant ministries during this process. Government departments or ministries may invite input from expert bodies such as the Law Commission, individuals, civil societies, or other stakeholders at this stage. The Cabinet Division, headed by the Prime Minister and including all the Ministers of the government, is the final body that considers the draft and signals its readiness for the bill to be placed before the Parliament.134 After the Cabinet approves a draft bill, the relevant Minister, called the Minister-in-charge, tables the bill in the House.135 Individual or private members have to draft their bills. However, the research assistance, office, interns, and logistics support for individual members are so inadequate that they struggle to produce high-quality legislative drafts. Parliamentary time for private member businesses is also limited. While government business is conducted throughout the week, Thursdays are reserved for private member business.136 In consultation with the Prime Minister, the Speaker may vary the private member business days at his discretion.137 There is a separate parliamentary committee on private member bills and resolutions. It examines and recommends the timetable for discussion of private member bills.138

7.4.2  Legislative stages At the parliamentary stage, a bill goes through three readings.

7.4.2.1  First reading A bill starts with the Minister or private member giving notice to the parliament secretariat of their intention to table a ‘motion for leave to introduce’ the bill. For government 115

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bills, the Minister-in-charge would need to give seven days’ notice. For private member bills, the Member-in-charge must provide fifteen days’ notice.139 They would also give a brief statement on the purposes of the bill. If the bill involves expenditure from the public purse, such as the budget, the Minister-in-charge would need to certify that it was presented before the President and that the President recommended the bill’s introduction.140 On private member bills, the Member-in-charge must attach the written recommendation of the President, which they must secure through a relevant ministry.141 This onerous requirement means that private members are practically barred from introducing money bills or bills with monetary implications without the government’s consent. The first reading starts on the day scheduled for tabling the motion for leave to introduce the bill. Except in cases where another member opposes this motion, the first reading is usually a mere formality. It is very brief, involving only the tabling of the motion for the introduction of the bill. When a motion for leave to introduce the bill is moved, any other member may oppose it. If any opposition is raised, the Speaker will allow the opposing member a very brief time to explain why they oppose the bill’s introduction. The Minister/Member-incharge of the bill then replies to the objection. Without any further debate, the Speaker then puts the matter to a vote. The leave to introduce the bill will usually be decided through a voice vote. Once the leave is granted, the first reading ends and the second reading is reserved for a different day.

7.4.2.2  Second reading The second reading involves discussing a bill’s general principles rather than a clause-by-clause discussion of its contents. Once introduced through the first reading, a bill is published in the Parliament’s official gazette. On the day of the second reading, the Minister or Memberin-charge of the bill will propose that the House should consider it on the floor, refer it to a standing or select committee or circulate it to elicit wider public opinion.142 Once they propose one of these options, any other MP may oppose it and propose one of the alternatives. During the discussion of these proposals and counter-proposals, the general purpose and principles of the legislation are discussed. No amendments or clause-by-clause reading and debate occur at this stage.143 Once the discussion is over, the question is put to the vote, and the appropriate course – direct consideration in the floor, sending to a committee, or circulating for public opinion – of the bill is decided.

7.4.2.3  Committee stage Bills are sent either to a select committee constituted to consider specific bills or to a standing committee on the Ministry that sponsored the bill. If a motion to refer the bill to a select committee is passed during the second reading, the House will constitute such a committee through a separate motion.144 The House, however, may still send any bill to a ministerial standing committee.145 Private member bills are referred to the Standing Committee on Private Members’ Bills. At the committee stage, the opposition and backbench members are expected to have more opportunities to debate and propose amendments. The committees can decide on any issue or agenda by simple majority, and dissenting members may note their dissents in the committees’ report.146 However, the overall quality of the deliberation at the committee stage remains low. Though Article 70 of the Constitution – which binds the MPs to their parties – does not apply to committee proceedings, the government backbenchers in committees tend to take a 116

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strict party-line there as well.147 Backbenchers may attempt to play a role when they hold the Chair or any position of influence in a committee. That, however, rarely translates into significant changes in the original government proposal unless exceptionally supported by the Prime Minister. Parliamentary committees’ power to take public evidence148 from representatives of special interest groups has also not been widely utilised.149 After a clause-by-clause deliberation, the committees may return the bill with or without any amendment proposals.150

7.4.2.4  Floor stage Back in the House, the Minister or Member-in-charge may move for considering the bill along with the report of the Committee.151 Once taken for consideration, the Speaker schedules the bill for a clause-by-clause reading and debate. MPs can propose amendments to the bill at this stage.152 Members proposing amendments are allowed to explain their proposals. The Minister or Member-in-charge addresses the Parliament at the closing of the debate. Amendment proposals then are put to the vote.153 Unless accepted by the government, amendment proposals are usually rejected by voice vote.

7.4.2.5  Filibustering and closure and programming motions The RoP does not formally recognise filibustering. Yet, opposition parties may try to put forward several amendment proposals to indefinitely prolong the debate on a bill. In such situations, the government may invoke devices like the closure motion or pre-programming of legislative business through the Business Advisory Committee. The Speaker may also intervene in certain cases. A closure motion, when passed, halts the debate and puts the question to a vote.154 While the Speaker is empowered to judge whether a closure motion is invoked by the government in an abusive way that infringes upon the Parliament’s right of reasonable debate,155 Bangladeshi Speakers have never questioned the ruling party’s closure motions on this ground. Also, unlike the British Parliament, there is no tradition of an informal agreement between the government and opposition parties on the timetabling of bills.156 The Business Advisory Committee headed by the Speaker may decide the timeline for each stage.157 The Committee, however, is dominated by ruling party members, and the opposition has little chance there. Moreover, the Speaker is not bound to form a Business Advisory Committee. The Speaker is, rather, required to consult the Leader of the House – the Prime Minister – in almost every aspect of parliamentary timetabling.158 Additionally, in cases of prolonged debate on the floor, the Speaker is permitted to ‘take the sense of House’ and vary the timetable for discussion at any stage of a bill.159 It empowers the Speaker to end the debate and put the matter to voting ‘forthwith.’160 Suppose the opposition party members propose an excessive number of amendments. In that case, the Speaker can choose and order the amendment proposals to be raised on the floor of the House.161 Faced with a reservation from the ruling party, successive Speakers of Bangladesh have tended to ignore opposition amendments.162

7.4.2.6  Third reading The third reading involves a motion for passing the bill as presented or amended in the second reading stage or by the committee.163 Debate at this stage, if any, concerns whether the bill as 117

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a whole should be passed or rejected. Details of the bill are not touched upon at this stage.164 The Speaker usually puts the motion to a vote without further debate.

7.4.3  Passage and presidential assent Bills considered and passed by the Parliament are sent to the President for assent.165 The President’s options are very limited. They either assent to the bill within 15 days or send it for reconsideration of the Parliament.166 If Parliament passes the bill again with or without modification, the President will have to sign it within seven days of such presentment.167 For money bills like the Annual Appropriation Act, the President’s power is further curtailed. They must assent to the bill as sent within 15 days.168 Otherwise, the bill is considered automatically passed.169 There is no veto power vested in the President.

7.5 Conclusion While the executive-legislature relationship in the Westminster system is admittedly a dominant-dormant one,170 the discussion above reveals that the Bangladesh Parliament’s position vis-à-vis the executive branch is especially weak. Though the Constitution and the RoP have empowered the Parliament in many significant ways, the non-institutionalisation of the committee system and the MPs’ lack of freedom from their partisan whips have undermined the textual powers of the institution. While a Westminster Parliament’s legislative process is naturally subject to government dominance, the Bangladeshi Speakers’ failure to distance themselves from their partisan bonds has further eroded the legislative autonomy of the Parliament.171 Moreover, the government has practically co-opted parliamentary officers like the CAG. The Ombudsman has never even been established. As the recent sixteenth amendment controversy shows, Parliament’s relationship with the judiciary is antagonistic. Finally, given the lack of necessary tools and space for the parliamentary opposition to operate,172 the Parliament’s capability to ensure executive, legislative, budgetary, and policy scrutiny has remained largely nominal.173

Notes 1 The Constitution of the People’s Republic of Bangladesh 1972, art 65(3) accessed 23 August 2021. 2 In 1972, the original Article 65(3) reserved 15 women’s seats for ten years beginning in 1973. In 1978, a military ruler increased the number of seats to 30, and the reservation was extended for another ten years. It was later made part of the Constitution through the Constitution (Fifth Amendment) Act 1979. The Constitution (Tenth Amendment) Act of 1990 extended the reservation period for another ten years. The Constitution (Fourteenth Amendment) Act of 2004 once again extended the reservation by another ten years. This time, however, the number of seats was increased to 45. The Constitution (Fifteenth Amendment) Act of 2011 extended the reservation for another ten years. It, however, raised the number of reserved seats to 50. Lastly, the Constitution (Seventeenth Amendment) Act of 2018 extended the reservation for another 25 years. 3 In 1991, for example, Bangladesh Nationalist Party (BNP) won 140 seats out of 300. Falling 11 seats short of a majority, BNP had to rely on Jamaat-i-Islami ( JI), which won 18 seats. Once the government was formed, it took 28 reserved seats and gave 2 seats to JI. Through this process, BNP secured the required majority, and its government no longer relied on the support of JI. Similarly, in 1996, Awami League (AL) won 146 seats out of 300. Falling 5 seats short of a majority, AL had to rely on Jatiya Party ( JP), who had 32 seats. Once the AL formed the government, they took 27 reserved seats and left 3 seats for JP. It, however, gave AL the required majority, and its government no longer required the support of JP. For statistical data on various election results in Bangladesh,

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The Parliament (Jatiya Sangsad) of Bangladesh see Nizam Ahmed, ‘Bangladesh’ in Dieter Nohlen, Florian Grotz and Christof Hartmann (eds.) Elections in Asia and the Pacific: A Data Handbook, Volume I (OUP 2001), 535–538. 4 Nizam Ahmed and Sadik Hasan, ‘Alangkar or Ahangkar? Reserved-Seat Women Members in the Bangladesh Parliament’ in Nizam Ahmed (ed.) Women in Governing Institutions in South Asia, Parliament, Civil Service and Local Government (Springer 2018) 17–39; Pranab Kumar Panday, ‘Representation without Participation: Quotas for Women in Bangladesh’ (2008) 29(4) International Political Science Review 489; Jannatul Ferdous, ‘Representation of Women in Parliament of Bangladesh: Is it Hopeful?’ (2019) 6(2) Journal of Governance and Public Policy 110. 5 SM Masum Billah, ‘Reserved seats for women, constitutionality and human rights issues’ The Daily Star, Law and Our Rights (Dhaka, 7 February 2009) accessed 28 August 2021. 6 Shamima Sultana Seema v. Bangladesh 57 DLR (2005) 201. 7 ibid [50]. 8 ibid [58] (ABM Khairul Haque J). 9 Mahbuba Sultana, ‘Reserved Seats and Women’s Representation in Bangladesh Parliament: Gaps between Expectations and Reality’ (2018) 3(1) Premier Critical Perspective 41 accessed 25 August 2021. 10 Constitution (n 1), art 65(1). 11 ibid art 72(3). 12 ibid art 72(4). 13 The manner and form of the indirect election were then regulated by the Representation of People (Seats for Women Members) Order 1973. 14 The Representation of the People Order 1972 (RPO) art 90A-I accessed 28 August 2021. 15 ibid art 12(3A). 16 Mohammad Mozahidul Islam, ‘The Toxic Politics of Bangladesh: A Bipolar Competitive Neopatrimonial State?’ (2013) 21(2) Asian Journal of Political Science 148, 149–151; Sabina Sharmin and AKM Jamal Uddin, ‘Characteristics of Political Culture in Bangladesh: A Critical Analysis from the Perspective of Political Development and Under Development’ (2013) 1(1–2) Jagannath University Journal of Social Sciences 74, 77. 17 Nizam Ahmed (n 3); Mohammad Mohabbat Khan and Habib Mohammad Zafarullah, ‘The 1979 Parliamentary Elections in Bangladesh’ (1979) 19(10) Asian Survey 1023; Syed Serajul Islam, ‘Elections and Politics in Post-Ershad Era in Bangladesh’ (2001) 10(1) Asian and African Studies 160; Stanley A. Kochanek, ‘Bangladesh in 1996: The 25th Year of Independence’ (1997) 37(2) Asian Survey 136; Ahmed Shafiqul Huque and Muhammad A. Hakim, ‘Elections in Bangladesh: Tools of Legitimacy’ (1993) 19(4) Asian Affairs 248. 18 Harun Ur Rashid, ‘The case for proportional representation’ The Daily Star (Dhaka, 06 November 2007) accessed 30 July 2021; GM Quader, ‘Proportional representation voting system: Bangladesh perspective’ The Independent (Dhaka, 01 February 2017) accessed 30 August 2021; Mesbah Kamal, ‘Proportional representation is of utmost importance’ The Daily New Age (Dhaka, 29 November 2018) accessed 3 August 2021; M Moniruzzaman, ‘Electoral Legitimacy, Preventive Representation, and Regularization of Authoritarian Democracy in Bangladesh’ in Ryan Merlin Yonk (ed.) Elections: A Global Perspective (IntechOpen 2019). 19 Constitution (n 1) art 122(2). 20 The Electoral Rolls Act 2009 sec. 8(1), 8(2) accessed 23 August 2021. 21 ATM Ali Reza v EC 50 DLR (HCD) 58. 22 ibid [21] (The Electoral Roll Act 2009 later replaced the Electoral Rolls Ordinance 2008, but section 8 remained unchanged). 23 Electoral Rolls (n 20) s 8(6). 24 ibid s 8(5). 25 RPO (n 14) art 26. 26 Najrul Khasru, ‘Bangladeshi expatriates’ voting rights – and wrongs’ The Daily Star (Dhaka, 30 March 2017) accessed 21 August 2021.

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M Jashim Ali Chowdhury 2 7 Union of India v Association for Democratic Reforms (2002) 3 SCR 294. 28 Abdul Momen Chowdhury and others v Bangladesh and others 2005, 34 CLC (HCD); Md. Abu Safa v Abdul Momen Chowdhury and others V ADC (2008) 64. 29 Abu Sufian Shamrat, ‘Electoral Reform in Bangladesh (1972-2014): An Assessment’ South Asia Journal Blog (23 October 2016) accessed 17 August 2021. 30 Gyasuddin Molla, Democratic Institution Building Process in Bangladesh: South Asian Experience of a New Model of a ‘Care-taker Government’ in a Parliamentary Framework (University of Heidelberg Working Paper No. 3, 2000) accessed 20 August 2021. 31 A Rashid Moten, ‘Parliamentary Elections in Bangladesh’ (1981) 42(2) Indian Journal of Political Science 58; M Moniruzzaman, ‘Parliamentary Democracy in Bangladesh: An Evaluation of the Parliament during 1991–2006’ (2009) 47(1) Commonwealth & Comparative Politics 100. 32 Ali Riaz, ‘Bangladesh’s Failed Election’ (2014) 25(2) Journal of Democracy 119, 129. 33 Constitution (n 1) art 118(1). The Chief Election Commissioner and other Election Commissioners Appointment Act 2022 mandates the formation of a Search Committee to search and nominate ten names against the five Election Commissioners to be appointed. However, the final say in the appointment from this list still rests with the Prime Minister. 34 M Sakawat Hussain, Electoral Reform in Bangladesh 1972-2008 (Palok Publishers 2012) 63. 35 ibid 51. 36 M Jashim Ali Chowdhury, ‘Elections in Democratic Bangladesh’ in Mark Tushnet and Madhav Khosla (eds.) Unstable Constitutionalism Law and Politics in South Asia (CUP 2015) 192–230. 37 The Rules of Procedure (RoP) of Bangladesh Jatiya Sangsad, r 12 accessed 16 August 2021. 38 Fazlur Rahman v Md Abdul Hamid and ors (2004) 56 DLR (HCD) 448. 39 RoP (n 37) r. 15. 40 Ibid, r 16. 41 ibid, rr 20, 22, 23. 42 Ibid, r 219. 43 Ibid, rr 25, 26, 30. 4 4 ibid, r 25. 45 Jalal Firoj, ‘Forty Years of Bangladesh Parliament: Trends, Achievements and Challenges’ (2013) 58(1) Journal of the Asiatic Society of Bangladesh (Humanities) 83, 98–100. 46 Anwar Hossain Monju v Bangladesh 16 BLT (HCD) 86. 47 ibid 97. 48 Constitution (n 1) art 65. 49 ibid art 142. 50 ibid art 26(3). 51 Jafar Ullah Talukder and M Jashim Ali Chowdhury, ‘Determining the Province of Judicial Review: A Re-evaluation of ‘Basic Structure of the Constitution of Bangladesh’ (2009) 2(2) Metropolitan University Journal 161. 52 Article 7B of the Constitution provides that apart from the ‘basic provisions’ of the constitution, the Preamble, all articles of Part I and II, subject to the provisions of Part IXA all articles of Part III, and Article 150 of Part XI are not amendable. On a rough estimate, this list has made more than onethird of the Constitution unamendable. 53 Ridwanul Hoque, ‘Eternal Provisions in the Constitution of Bangladesh: A Constitution Once and for All?’ in Richard Albert and Bertil Emrah Oder (eds.) An Unamendable Constitution? (Springer 2018) 195, 224. 54 Ashutosh Sarkar, ‘Chief justice steps down’ The Daily Star (Dhaka, 12 November 2017) accessed 26 August 2021. 55 Constitution (n 1) art 83. 56 ibid art 90(3). 57 ibid art 85. 58 ibid art 87(1). 59 ibid art 87. 60 ibid art 89. 61 ibid arts 81–82.

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The Parliament (Jatiya Sangsad) of Bangladesh 6 2 ibid art 89(2). 63 ibid art 89(1). 64 ibid art 88. 65 ibid art 92(1). 66 ibid art 92(3). 67 ibid art 93(3). 68 ibid art 93(4). 69 Mashihur Rahman, ‘Budget, ordinance and constitutional government’ The Dhaka Courier (Dhaka, 11 May 2007) 10, 12. 70 Constitution (n 1) art 56. 71 ibid art 57(2). 72 ibid art 56(4). 73 ibid art 50(1). 74 Former Chief Justice Shahabuddin Ahmed, a non-partisan jurist and the head of the electiontime non-party caretaker government of 1991, was nominated for Presidency by the ruling Awami League in 1996. 75 Constitution (n 1) art 52. 76 ibid art 53. 77 ibid art 48(4)(C). 78 The requirement of consultation with the Chief Justice was incorporated in the original Article 95(1) of 1972. It was later omitted, but the consultation continued as a matter of convention. Later, the Supreme Court of Bangladesh declared the consultation mandatory in Advocate Idrisur Rahman v Bangladesh 60 DLR (2008) (HCD) 714. 79 Constitution (n 1) art 118. 80 ibid art 127. 81 ibid art 137. 82 ibid arts 118(1), 127(2), 137, and 138(1). 83 Asano Noriyuki and Minato Kazuki, Politicization of the Appointment and Removal of Judges in a Declining Democracy: The Case of Bangladesh (Institute of Developing Economies, Japan External Trade Organization Discussion Paper, 2019) accessed 30 August 2021. 84 Advocate Asaduzzaman Siddiqui v Bangladesh 10 ALR (AD) 03 (2017). 8 5 Anisur Rahman, ‘16th Amendment of the constitution: Another view’ The Daily Star (Dhaka, 23 September 2014); S M Masum Billah, ‘Faith, hope and promise’ Dhaka Tribune (Dhaka, 17 August 2014); Md Yasin Khan Chowdhury, ‘Removal of Judges under 16th Amendment of Bangladesh Constitution: A Euphemism to curb on Judiciary’ (2015) 3 DIU Journal of Humanities and Social Science 89; M Jashim Ali Chowdhury and Nirmal Kumar Saha, ‘Advocate Asaduzzaman Siddiqui v. Bangladesh: Judiciary’s Dilemma with Impeachment’ (2017) 3(3) Constitutional and Administrative Law Quarterly 7; Ridwanul Hoque, ‘Can the Court Invalidate an Original Provision of the Constitution?’ (2016) 2(1) University of Asia Pacif ic Journal of Law and Policy 13; Po Jen Yap and Rehan Abeyratne, ‘Judicial Self-Dealing and Unconstitutional Constitutional Amendments in South Asia’ (2021) 19(1) International Journal of Constitutional Law 127. 8 6 Haroon Habib, ‘Bangladesh: judiciary v. parliament’ The Hindu, Frontline (New Delhi, 18 August 2017) accessed 25 August 2021; M Raf iqul Islam, ‘Judging apex judges by parliamentarians’ The Daily Star, Law and Our Rights (Dhaka, 18 July 2017) accessed 25 August 2021; Tribune Report, ‘High Court hears argument over existence of contempt law’ Dhaka Tribune (Dhaka, 10 March 2014) accessed 25 August 2021. 87 TBS Report, ‘A catch 22 for the Supreme Court’ The Business Standard (Dhaka, 25 August 2019) accessed 25 August 2021. 88 Constitution (n 1) arts 118(5), 129(2), 139(2). 89 Constitution (n 1) art 72(1). 90 ibid art 72(1) (further proviso).

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M Jashim Ali Chowdhury 91 M Jashim Ali Chowdhury, ‘Ministerial ‘non-responsibility’’ The Daily New Age (Dhaka, 31 May 2019) accessed 26 August 2021. 92 M Jashim Ali Chowdhury, ‘Parliamentary questions in Bangladesh’ The Daily Observer, Law and Justice (Dhaka, 20 July 2019) ; M. Jashim Ali Chowdhury, ‘Procedural modernisation of Prime Minister’s Question Time in Parliament’ The Daily Observer, Law and Justice (Dhaka, 09 November 2019) accessed August 27 2021. 93 RoP (n 37) rr 41–59. 94 Nizam Ahmed, The Parliament of Bangladesh: A Data Handbook (Institute Governance Studies, BRAC University, Dhaka 2013) 219–220. 95 Institute of Governance Studies, BRAC University, State of Governance in Bangladesh 2008 (BRAC University 2008) 42. 96 ibid rr 45, 55. 97 Mustafizur Rahman, ‘Parliament and Good Governance: A Bangladesh Perspective’ (2008) 9(1) Japanese Journal of Political Science 39, 48. 98 RoP (n 37) r 48. 99 Jalal Firoj (n 45). 100 RoP (n 37) r 71. 101 ibid r 60. 102 ibid rr 68–70. 103 ibid rr 130–131. 104 ibid rr 60–67. 105 Until recently, walkouts from sessions and boycotts of parliament by the opposition parties were a regular and painful part of Bangladesh’s parliamentary practice. For more insight on this problem, see Elora Shehabuddin, ‘Bangladesh in 1999: Desperately Seeking a Responsible Opposition’ (2000) 40(1) Asian Survey 181. 106 RoP (n 37), r 189(1). 107 ibid, r 266; To take an example, in 2010, an All Party Parliamentary Committee on Constitutional Amendment was formed to examine all the past amendments of Bangladesh Constitution. See: Library of Congress, ‘Bangladesh: Special Parliamentary Committee on Constitution Formed to Review All Past Amendments’ accessed 31 August 2021. 108 Nizam Ahmed, The Parliament of Bangladesh (Ashgate Publishers 2002). 109 Constitution (n 1) art 67. 110 ibid art 76(1). 111 Constitution (n 1) art 76(2)(c); RoP (n 37) rr 246–248; Taiabur Rahman, Parliamentary Control and Government Accountability in South Asia: A Comparative Analysis of Bangladesh, India and Sri Lanka (Routledge 2008). 112 Nizam Ahmed (n 108) 131. 113 Jalal Firoj (n 45); Fahreen Alamgir, Tanvir Mahmud and Iftekharuzzaman, Corruption and Parliamentary Oversight: Primacy of The Political Will (Transparency International Bangladesh 2006) accessed 30 August 2021. 114 Nizam Ahmed, ‘From Monopoly to Competition: Party Politics in the Bangladesh Parliament (1973–2001)’ (2003) 76(1) Pacific Affairs 55, 68–69; Quamrul Alam and Julian Teicher, ‘The State of Governance in Bangladesh: The Capture of State Institutions’ (2012) 35(4) Journal of South Asian Studies 858. 115 RoP (n 37), rr 219, 225, 231, 239, 240, 245, 246, 249, 257, 264, 266. 116 ibid rr 219, 257, 264. 117 Nizam Ahmed, ‘Parliament-Executive Relations in Bangladesh’ (1997) 3(4) The Journal of Legislative Studies 70, 85–88. 118 RoP (n 37) r 191(1). 119 KM Mahiuddin, ‘The Parliamentary Committee System in Bangladesh An Analysis of its Functioning’ (PhD Thesis, Ruprecht-Karls-Universität Heidelberg 2009) 104–106.

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The Parliament (Jatiya Sangsad) of Bangladesh 120 ATM Obiadullah, Institutionalization of Parliament in Bangladesh: A Study of the Donor Intervention for Reorganization and Development (Palgrave Macmillan 2019) 107–138. 121 Nizam Ahmed, ‘Parliamentary Committees and Parliamentary Government in Bangladesh’ (2001) 10(1) Contemporary South Asia 11, 24. 122 Obaidulla (n 120) 338. 123 Philip Norton and Nizam Ahmed, ‘Legislatures in Asia: Exploring Diversity’ in Philip Norton and Nizam Ahmed (eds.) Parliaments in Asia (Frank Cass 1999) 51–52. 124 Constitution (n 1) art 132. 125 ibid art 76. 126 M Jashim Ali Chowdhury and Md Abdullah Al Mamun, ‘The Comptroller and Auditor General of Bangladesh: Arguments for “Substantial Independence”’ (2016) 21 The Chittagong University Journal of Law 159. 127 Constitution (n 1) art 127. 128 ibid art 84. 129 ibid art 128(1). 130 ibid art 128(4). 131 Nadim Zawad Akil, ‘Absence of the office of Ombudsman: 48 years and counting’ The Daily Star, Law and Our Rights (Dhaka, 10 November 2020) accessed 27 August 2021. 132 Abdul Latif Mondol, ‘What will happen to the bills?’ The Daily Star (Dhaka, 14 September 2009). accessed 27 August 2021. 133 R Jahan and I Amundsen, The Parliament of Bangladesh: Representation and Accountability (CPD-CMI 2012) accessed 1 March 2021. 134 Administration of the Government of Bangladesh operates under the Rules of Business 1996 framed as per Article 55(6) of the Constitution of Bangladesh. 135 Md A Saleh, ‘Law Making Process in Bangladesh Parliament’ (2013) 6 Jahangirnagar Journal of Administrative Studies 143, 249–151. 136 RoP (n 37) rr 74, 75. 137 ibid r 25. 138 ibid, rr 222–224. 139 ibid rr 72, 74, 75. 140 Constitution (n 1) art 82, 89(3); See also: Gavin Murphy, ‘How Legislation is Drafted and Enacted in Bangladesh’ (2006) 27(3) Statute LR 133. 141 RoP (n 37) r 73. 142 ibid r 77. 143 ibid r 78. 144 ibid r 225. 145 Constitution (n 1) art 76(2)(a); RoP (n 37) r 77. 146 RoP (n 37) r 228(5). 147 Nizam Ahmed (n 114) 65. 148 RoP (n 37) r 227. 149 Nizam Ahmed (n 114). 150 RoP (n 37) rr 80, 81. 151 ibid r 80. 152 ibid, rr 81–87. 153 ibid r 88. 154 ibid r 290(2). 155 ibid r 290(1). 156 For a clear description of the UK parliament’s informal communication practices, see Michael Rush and Clare Ettinghausen, Opening Up the Usual Channel (Hansard Society 2002). 157 ibid r 219. 158 ibid r 220. 159 ibid r 291(1). 160 ibid r 291(2). 161 ibid rr 286, 287.

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M Jashim Ali Chowdhury 162 Nizam Ahmed, ‘Development and working of parliaments in South Asia’ (2001) 9(1) Asian Journal of Political Science 18, 29. 163 RoP (n 37) r 90. 164 ibid r 91. 165 Constitution (n 37) art 80(2). 166 ibid art 80(3). 167 ibid art 80(4). 168 ibid art 81(3). 169 ibid art 80(3). 170 MM Khan, Dominant Executive and Dormant Legislature: Executive-Legislature Relations in Bangladesh (South Asian Publishers India 2006). 171 Philip Norton, ‘Playing by the Rules: The Constraining Hand of Parliamentary Procedure’ (2011) 7(3) Journal of Legislative Studies 13, 15. 172 M Jashim Ali Chowdhury, ‘In Search of Parliamentary Opposition in Bangladesh’ IACLAIDC Blog (21 January 2021) accessed 27 August 2021. 173 M Jashim Ali Chowdhury and Raihan Rahman Rafid, ‘Parliaments during the Pandemic: A “Dual State” Explanation of Bangladesh Parliament ( Jatya Sangsad)’ (2020) 18(1–2) Bangladesh Journal of Law 25.

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8 THE NATIONAL ASSEMBLY AND SENATE OF THE KINGDOM OF CAMBODIA Benjamin Lawrence

8.1 Introduction The Cambodian Constitution was written at the height of an internationalised peace-building process that saw the United Nations Transitional Authority in Cambodia (UNTAC) administer the country for 18 months. Enacted in 1993, the Constitution formally reinstituted a system of constitutional monarchy with parliamentary democracy in Cambodia. Pursuant to Annex 5 of the 1991 Paris Peace Accords, which prefigured the basic principles of the constitution drafted two years later, Cambodia’s Constitution guarantees a system of liberal, multi-party or pluralistic democracy and prohibits any constitutional amendment altering this fundamental character (Article 155). Of course, such guarantees sit awkwardly alongside a reality in which the ruling Cambodian People’s Party (CPP) continues to dominate the political landscape, with Hun Sen remaining at its apex as the world’s longest-serving elected sitting Prime Minister. Cambodia’s shift from competitive to hegemonic authoritarianism was in fact widely proclaimed by academics in response to the general election results of 2018, which saw the CPP collect all available seats in the lower house of the country’s legislature for the first time under the current constitutional order.1 Thus, providing an overview of the structure and functioning of the legislative (or the judicial or executive) branch of government in Cambodia presents multiple challenges. While seeking to elaborate the formal rules that purportedly govern parliamentary practice, it is important to also acknowledge limits to the effectiveness of these rules, not to mention the limited influence of the institutions they purport to govern. As this chapter will demonstrate, attention to formal rules may at times tell only a very partial story. This is not to say that such rules – whether enshrined in the Constitution or in organic laws – are irrelevant. In fact, in multiple instances (to be discussed below), adherence to such rules has resulted in prolonged political crises. In other instances, the adaptation or amendment of these rules is also indicative of a broader ebb and flow of the political tide in post-UNTAC Cambodia. In this chapter, I outline the formal rules by which Cambodia’s legislative bodies are structured and their members are chosen. I will also highlight some of the key moments in which these rules were reshaped, noting the specific political contexts in which they occurred. Finally, I will seek to explicate the procedures that undergird the legislative process. While it is beyond the scope of this chapter to detail all of the informal influences and processes DOI: 10.4324/9781003109402-10

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involved in Cambodia’s parliamentary practice, these are acknowledged wherever possible throughout the chapter.

8.2  Structure and composition 8.2.1  The configuration (and reconfiguration) of the legislative branch The legislative branch was originally designed as a unicameral parliament by Cambodian constitution-makers in 1993. However, constitutional amendments in 1999 established the Senate ( or Prethsaphea) as the upper house, supplementing the National Assembly ( or Rathsaphea) in what is now a bicameral system. The creation of a second chamber of parliament is widely understood as the result of a power-sharing compromise. The CPP secured the involvement of the royalist party, Funcinpec,2 as a junior partner in a coalition government after the 1998 election by accommodating members of the latter party with seats in the newly established Senate.3

8.2.2  The structure of Cambodia’s bicameral parliament Members of the National Assembly are elected every five years.4 The National Assembly elections (hereafter, general election) are supposed to operate on the basis of ‘universal, free, equal, direct suffrage and a secret ballot,’5 with a system of proportional representation within provincial constituencies.6 The number of seats awarded to each party is calculated (on a constituency-by-constituency basis) according to the d’Hondt method, as outlined in Article 135 of the Law on Election of Members of the National Assembly (LEMNA).7 Despite being elected by provincial constituencies, however, Members of the National Assembly are elected to represent the nation as a whole. According to Article 77 of the Constitution, MPs are ‘the representatives of the whole Khmer Nation and not only of the citizens of their constituencies.’ The National Assembly is currently made up of 125 members. While Article 76 of the Constitution specifies only that the body should contain a minimum of 120 members, the 125-person composition is specified by amendments made to LEMNA in 2015. Another amendment made to LEMNA in 2015, this time to Article 6, lays out the precise number of seats allocated to each province.8 Prior to its amendment, which was made as part of a political compromise between the ruling CPP and the opposition Cambodian National Rescue Party in 2015, LEMNA provided for a more flexible system of establishing the number and distribution of seats. Specifically, in its original form, LEMNA provided a formula for establishing the appropriate distribution of seats based on the existing ratio but allowing for demographic change9 and guaranteed that provinces that failed to meet the minimum size would be allocated a single seat.10 Given the speed of demographic change and the rate of internal migration in Cambodia, it seems unlikely that the seat distributions currently prescribed by the new Article 6 will remain in perpetuity. The Senate, by contrast, operates on the basis of six-year mandates, as specified by Article 102 of the Constitution.11 The number of seats in the Senate is prescribed by Article 99 of the Constitution, which states that the number of Senators must ‘not exceed half of all of the members of the Assembly.’12 As such, the number of seats in the upper house is currently 66 (the upper allowable limit). For its first mandate, the Senate’s membership was appointed by the King, largely on the recommendation of the President of the National Assembly and the royally appointed Senate President. The King first appointed two Senators and the President and First Vice-President of the newly formed upper house, before selecting the remaining 126

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57 Senators (the Senate had 61 seats in its first three mandates) from political parties that had seats in the National Assembly, based on the advice of the President of the N.A. and the newly appointed President of the Senate.13 These appointments ultimately mirrored the existing distribution of seats in the National Assembly at the time, meaning there was initially little to differentiate political composition of the upper house from its counterpart.14 For the Senate’s subsequent mandates, members have been chosen via a mixture of appointment and limited elections. Specifically, Article 100 of the Constitution provides for two Senate seats to be filled by the direct appointees of the King, a further two to be elected by a relative majority vote in the National Assembly, and the remaining Senators to be elected by a ‘restricted suffrage’ vote.15 The exact details of this latter modality for electing members of the Senate, meanwhile, is left to the Law on Election of Members of the Senate, which was passed in 2005. Accordingly, provinces are now grouped together into eight regions for the purpose of Senate elections.16 The distribution of seats between these regions is decided at least six months in advance of an election by the Senate itself,17 and the electoral colleges comprise two groups – members of the National Assembly and the members of local Commune/Sangkat councils – who elect members of the Senate for their designated region.18

8.2.3  The election and selection of members of the National Assembly and Senate Elections for both the National Assembly and the Senate are supervised by the National Election Committee (NEC),19 which was endowed with constitutional status by Articles 150 and 151 of the Constitution in 2015.20 As such, the NEC is provided with a formal mandate to organise, regulate and administer elections ‘independently and impartially.’21 The ninemember body operates on a five-year mandate, with four members selected by the government, four others selected by opposition parties that have seats in the N.A. (and have not joined any coalition with the governing party), and a final member who is selected by the unanimous consent of all parties in the Assembly.22 The organisation and operation of the NEC is established and regulated by the Law on the Organization and Functioning of the National Election Committee, which was also passed in 2015. National Assembly elections take place on a single day, with polls opening at 07:00 and closing at 15:00 unless otherwise provided for by the NEC. To be eligible to register to vote in an election, a voter must be a Cambodian national of at least 18 years of age on the day of polling for that election; have proof of permanent or temporary residence in the Commune/ Sangkat in which one seeks to register (with an exception for certain family members of electoral candidates to vote in the Commune/Sangkat of their relative’s candidacy, regardless of residency); not be serving a prison term or otherwise be deprived of the right to vote by law; and be of sound mind and not under any kind of state guardianship.23 Registration and voting are both done in-person, 24 with prospective voters required to show their stateissued Identity Card in both instances. Polling stations can only be established within the boundaries of their corresponding Commune/Sangkat. 25 Mail-in voting and voting from abroad are not permitted. As such, Cambodia’s significant international diaspora community is largely disenfranchised, and members of its growing migrant-worker population are only able to vote if they have been able to maintain a formal residence in Cambodia and return to the country both to register and vote. While limitations on state capacity contribute to the reticence of successive governments’ in this regard, both communities tend to be overwhelmingly antithetical to the ruling-party. This political fact is also widely understood as an inhibiting factor. 127

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In order to be eligible to stand as a candidate in National Assembly elections, a would-be candidate must be a Cambodian national of at least 25 years of age who is eligible and registered to vote and has temporary or permanent residency in Cambodia.26 The same criteria, but with an increased minimum-age limit of 40, are applied to candidates in Senate elections by Article 17 of the Law on Election of Members of the Senate.27 Prospective candidates in National Assembly and Senate elections must also be members of a political party that is formally registered to compete in the election and be nominated by that party in order to stand for election to either house.28 Importantly, after an election, the mandate for members of both houses is also made contingent upon continued membership in the party by which they were nominated.29 The removal of National Assembly and Senate members on this basis is not uncommon. Most notably, in 1995, then-Minister of Finance (and now exiled leader of the dissolved Cambodian National Rescue Party) Sam Rainsy lost his seat in the National Assembly after his membership of the royalist party, Funcinpec, was revoked.30 Similarly, in 2001, three Senators were removed from the house after their membership of the CPP was revoked. The latter example followed shortly after one of the few cases in which the Senate rejected draft legislation (namely, the controversial Law on Aggravating Circumstances bill).31 The right to stand as a candidate in both National Assembly and Senate elections is also withheld from members of other constitutionally recognised institutions – such as the NEC, the Supreme Council of the Magistracy, and the Constitutional Council – and from civil servants, court officials, members of the National Police and Royal Cambodian Armed forces, and religious priests.32 In order for such figures to run for election to the National Assembly, they must resign their functions at least seven days before the start of campaigning. As I explain elsewhere, the inclusion of religious figures on this list (which is otherwise made up of public officials or employees) is noteworthy for a number of reasons. Firstly, the current constitutional order is the first in Cambodian history to permit Buddhist monks to vote in elections. Previous constitutions and election laws have provided an exemption for Buddhist monks from the universal franchise.33 Yet, even as Buddhist monks are enfranchised for the first time, Cambodia’s electoral laws prevent them from running for office (a practice that is commonplace in Sri Lanka).34 Secondly, the exemption from running for election – which has typically been applied only to Buddhist monks in Cambodia (and multiple other Theravada Buddhist-majority countries in the region) – is in fact applicable to priests from all religions under the current electoral laws, and not only to Buddhist monks. National Assembly and Senate elections (as well as in Sangkat/Commune Elections and a political party’s collective right to contest an election) can be suspended by the NEC.35 Further, following two sets of amendments to the Law on Political Parties in 2017, individuals can have their right to vote, their right to stand for election, and even their right to engage in ‘political activity’ suspended.36 Similarly, based on the 2017 amendments to the Law on Political Parties, parties can also be suspended or permanently dissolved by a decision of the Supreme Court. Within a year of being introduced, these amendments provided the basis for a Supreme Court decision that dissolved the opposition Cambodian National Rescue Party, which narrowly lost the 2013 National Assembly elections and had won a record number of seats for an opposition party in the Commune/Sangkat Council elections in June 2017. As I explain elsewhere, the Supreme Court’s decision, delivered on 16 November 2017 after a hearing lasting one day, also included five-year bans from political activity for 116 CNRP members who the Court found to have been involved in a conspiracy to overthrow the government.37 Contemporaneous changes to LEMNA, meanwhile, provided for the redistribution of seats vacated by Members of the Assembly who resigned or were ejected from their positions. 128

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These seats are allocated to parties that had run in the previous election but had not won seats. This formulation precluded the redistribution of seats to the CPP, which already held a majority in the Assembly. By contrast, simultaneous changes to and the Law on the Election of Commune/Sangkat Councils (LECC) allowed for the redistribution of offices at the local level to the next-best-placed party, which in the case of all 489 Commune Chief positions to be vacated by CNRP officials was the CPP. Ultimately, the dissolution of the CNRP cleared the way for the ruling CPP to win all 125 available Assembly seats in the 2018 elections, turning the lower house to a single-party parliament for the first time since Cambodia’s purported transition to democracy 25 years earlier. Similarly, the redistribution of CNRP seats at the commune-level to the CPP meant that, in the Senate elections of 2018, all 59 non-nominated seats were filled by CPP candidates. Finally, it should also be noted that all members of the National Assembly and Senate are formally accorded parliamentary immunity under Articles 80 and 104 of the Constitution. As I have explained in detail, however, the practical application of this rule has been contested consistently since 1993.38 Formally, at least, members of both houses are immune from being arrested, detained, held in custody, or prosecuted for opinions expressed in the course of their duties,39 unless approved by two thirds of the members of their respective house.40 In cases where the Assembly or the Senate are not in session, the Standing Committee may make a decision on the matter in the first instance, but this decision is ultimately subject to the same two-thirds majority approval in the next available plenary session of the Assembly.41 Similarly, in cases of flagrante delicto, arrest and detention is possible only on the condition that a representative of the responsible ministry appears before the respective house or its Permanent Committee urgently. This decision, too, must be confirmed by a two-thirds majority vote of the house. Any decision to allow arrest, detention, or prosecution of a parliamentarian can also be overturned at a later date by a three-fourths majority vote of either house.42

8.2.4  The formation of parliament and the Royal Government The procedures by which the National Assembly and the Royal Government are formed have been the source of much contention in Cambodia. While the first session for a mandate of the National Assembly and Senate is convened by the King, and must be held within 60 days of the requisite election,43 this has not always been possible. The validity of election results has often been challenged by opposition parties, leading to prolonged deadlocks that have delayed the start of an Assembly’s mandate. These standoffs, as well as the legal changes they have precipitated over the years, are discussed below. The first session of the National Assembly and Senate are to be presided over by the oldest member to have been named at the top of a constituency candidate-list their by their party in the election.44 ‘Before taking office,’ Articles 82 and 106 of the Constitution state, members of the respective houses ‘shall decide on the validity of each Member’s mandate, and shall vote separately to elect a President, Vice-Presidents and all of the members of the various Commission, by an absolute majority vote’ at this first session.45 In both the National Assembly and the Senate, members are then required to swear an oath before they take office.46 According to Article 119 of the Constitution, the Royal Government of Cambodia is then to be formed through the National Assembly, as the King – acting on the recommendation of the party with the largest number of seats (the winning party) – assigns responsibility to a high ranking member of the winning party to form a Cabinet (officially known as the Council of Ministers).47 While the Prime Minister, therefore, must be a duly-elected member of the National Assembly, members of the Council of Ministers need only be ‘members of parties 129

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represented at the National Assembly,’ and do not necessarily need to have stood for nor won election to parliament.48 A prospective Prime Minister must then solicit the confidence in his proposed Cabinet from the National Assembly,49 which can be obtained through an absolute majority vote.50 The aforementioned rules have changed significantly since the Constitution was first promulgated in 1993, as the procedures for convening the National Assembly and establishing a new government have led to several post-election stalemates. When it was initially drafted in 1993, for example, Article 82 of the Constitution called for the selection of the Assembly’s President and Vice-Presidents, as well as the members of Assembly’s commissions, to proceed on the basis of a two-thirds majority vote.51 Similarly, in its original form, Article 88 specified that the vote of confidence from the National Assembly, which is necessary to form a government, should also be subject to an exacting two-thirds majority requirement.52 Such conventions were initially agreed upon to encourage consensus between the major political parties and resulted in the formation of coalition governments. For instance, the royalist party Funcinpec won the largest number of seats in the Assembly (58/120) in the 1993 elections, but was forced to compromise with the CPP, which had won 38% of votes (and 51/120 seats) but still controlled much of the state apparatus. Here, parliament voted for a novel coalition in which there were two ‘co-Prime Ministers’ (Prince Norodom Ranariddh and Hun Sen). Ministerial postings were also divided evenly between the two parties until Funcinpec was effectively ousted in a ‘pre-emptive coup’ launched by the CPP in 1997.53 Nevertheless, coalition governments were subsequently formed between Funcinpec and the increasingly dominant CPP after the elections of 1998 and 2003. In the latter instance, however, a political deadlock initially delayed the convening of parliament beyond the 60-day limit specified in Article 82, and an ongoing boycott of parliament even after the first session of the Assembly (in September 2003) prevented the formation of a new government.54 The boycott, in which Funcinpec joined the Sam Rainsy Party to form an ‘Alliance of Democrats,’ emerged in response to a campaign and election process characterised by voter-registration irregularities, intimidation, and targeted killings.55 While the existing government continued to administer the country in a caretaker role, Funcinpec cabinet members also boycotted meetings of the Council of Ministers, making the initiation of new policies impossible.56 In an initial attempt to salvage the situation, the King solicited a decision from the Constitutional Council, which asserted that the first session of parliament could be convened without the full participation of all of its elected members.57 The Council’s decision would not have alleviated the challenges posed by the conjunction of several issues. These included: (i) the requirement of a 2/3 majority vote to elect the President, Vice-Presidents and Commissions of the National Assembly,58 or to form a government59; and (ii) Article 88’s requirement that all two-thirds majority votes proceed only with a quorum of two-thirds of National Assembly members present.60 A potential repeat of the CPP-Funcinpec coalition of the previous mandate (whereby Prince Ranariddh was named President of the National Assembly and Hun Sen Prime Minister) did not occur due to Hun Sen’s suspicion that royalist Members of the Assembly would withdraw their support for a confidence vote in a Hun Sen-led government as soon as the vote forming the National Assembly was completed. While the intervention of King Norodom Sihanouk eventually ensured that 118 of the 123 prospective members of the National Assembly did convene for its first session (albeit after the 60-day limit had elapsed), it was clear that – in order to form a new legislature or government – a more drastic solution was required. This solution came in the form of the ‘Additional Constitutional Law,’ which was passed by lawmakers from the CPP and Funcinpec in July 2004, amid much controversy. Consisting of 130

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seven articles, the Additional Constitutional Law made possible – in the interests of ‘the good functioning of national institutions’61 – the passage of constitutional or legislative changes through the National Assembly before it had officially begun its mandate.62 Meanwhile, Articles 3 and 4 provided for the simultaneous formation of the National Assembly and the government, via a ‘package vote,’ and Article 5 stipulated that such a vote should be conducted without debate and by a show of hands.63 Clearly, the move was of profoundly questionable constitutional validity. It was condemned as unconstitutional by civil society organisations and the Sam Rainsy Party, the latter of which boycotted the session in which the Additional Constitutional Law was passed and was excluded from the coalition government that emerged from the new package vote system. Specifically, these criticisms were based on that fact that the new law: (i) purported to allow constitutional and legislative changes to be made by a National Assembly that had not officially been constituted; (ii) allowed for a package vote that was in direct contradiction to the text of Article 82, which states that such votes should be conducted ‘separately’; and (iii) allowed for voting by show of hands, overruling existing procedures in the Internal Rules of the National Assembly that require such votes to be conducted via secret ballot. The controversy was underlined by the fact the King Norodom Sihanouk left the country before he, as head of state, could be asked to promulgate the law. Instead, Sihanouk wrote a letter to the interim head of state, Senate, and CPP President, Chea Sim, leaving it ‘up to his conscience.’64 In a remarkable twist, Chea Sim also appears to have refused to sign the Addition to the Constitution into law, at which point he was reportedly escorted onto a flight to neighbouring Thailand.65 The changes would ultimately be signed into law by Senate VicePresident, Nhiek Bun Chhay. Having been formed as part of a package vote amid the above-described controversy (which ultimately appears to have convinced King Sihanouk to abdicate the throne in late 2004), the third mandate of the National Assembly also saw further changes to constitutionally enshrined procedures regarding the formation of a government. Specifically, Articles 88 and 111 were amended to reduce the quorum for ordinary meetings of the National Assembly and Senate from two-thirds to fifty-plus-one. More significantly, these amendments altered the procedures in Article 90 of the Constitution (and Article 6 of the Additional Constitutional Law) for the formation of a government, by reducing the vote of confidence requirement from two-thirds to a simple majority.66 The latter change, in fact, was secured with the support of Sam Rainsy (and members of his eponymous political party) after they agreed to end their boycott of the National Assembly in 2005 in exchange for a pardon of Sam Rainsy and the provision of bodyguards to guarantee his personal safety on return from exile.67 Additional changes in 2015, meanwhile, have further pre-empted the possibility of parliamentary boycotts to prevent the formation of either the National Assembly or a new government. Among the amendments to LEMNA and Internal Rules of the National Assembly made in 2015, as part of the compromise that saw the CNRP end its boycott of parliament, were changes providing for the invalidation of an elected representative’s mandate should they boycott specific sessions. The sessions to which this rule pertains include: (i) the first session of the house, convened by the King; (ii) the validation of each individual member’s mandate; or (iii) the swearing-in ceremony for their respective house.68 As Norbert Feige explains, it is ‘questionable if this sanction is legitimate and proportional, since it prevents parties from using political boycotts to protest election fraud and other irregularities,’ while such boycotts do not typically cause ‘tangible damage’ other than perhaps to the reputation of the party instigating such an action.69 131

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8.2.5  Parliamentary commissions Alongside electing their President and Vice-Presidents in its first session, the National Assembly and Senate also elect the members of their respective commissions.70 While membership of the National Assembly’s commissions are, of course, subject to inclusion in the ‘package vote’ stipulated by the Additional Constitutional Law, the Senate Commissions are elected separately from the Senate President and Vice-Presidents (as the commissions of the National Assembly were before 2004). Once elected, the presidents of each commission sit on the Standing/Permanent Committee of their houses, alongside the President and Vice-Presidents of the National Assembly or Senate, respectively.71 The two houses of Cambodia’s parliament currently operate with ten identical commissions. These are: 1 Commission on Human Rights, Complaints, and Investigation; 2 Commission on Economics, Finance, Banking and Auditing; 3 Commission on Planning, Investment, Agriculture, Rural Development, Environment, and Water Resources; 4 Commission on Interior, National Defense, and Civil Service Administration; 5 Commission on Foreign Affairs, International Cooperation, Information, and Media; 6 Commission on Legislation and Justice; 7 Commission on Education, Youth, Sport, Religious Affairs, Culture and Tourism; 8 Commission on Health Care, Social & Veterans’ Affairs, Youth Rehabilitation, Labor, Vocational Training & Women’s Affairs; 9 Commission of Public Works, Transport, Telecommunication, Post, Industry, Commerce, Land Management, Urban Planning and Construction; 10 Commission on Investigation and Anti-Corruption.72 According to Article 10 of the internal rules of both houses, parliamentary commissions are made up of one President, one Vice-President, and one Secretary and must consist of seven Members in total.73 Quorum for a meeting of any commission is reached only when more than half of the members are present.74 Nine of the aforementioned ten commissions have existed since the constitution of their respective houses (i.e. since 1993 in the National Assembly and 1999 in the Senate). Commission 10 (Investigation and Anti-Corruption), meanwhile, was only created in 2015 and is one of only two commissions (along with Commission 1, for Human Rights, Complaints, and Investigation) that can receive complaints, requests and testimonies directly from the Cambodian public.75 In practice, however, this process is often thwarted by the reluctance of government ministers to respond to commission questions. Previously integrated with the mandate of Commission 4, the Commission on AntiCorruption was established as part of a political compromise that saw the Cambodian National Rescue Party end its post-2013 election boycott of the National Assembly.76 That compromise also saw, for the purpose of the National Assembly’s f ifth mandate, the composition of commissions being split evenly between the two parties. Special commissions can be created by either house and are not necessarily subject to the same composition rules (i.e. a minimum of seven members),77 but their establishment is subject to an absolute majority vote of the National Assembly (following the procedures laid out in Articles 82 and 106 of the Constitution), with no mechanism for a minority party to initiate a commission. 132

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8.3  Functioning and powers of the legislature 8.3.1  National Assembly and Senate sessions Once sworn-in, under Articles 83 and 107 both the National Assembly and Senate convene for three-month sessions twice each year.78 Extraordinary sessions can be called by the Permanent Committees at the request of either the King, the Prime Minister, or 1/3 of the members of the house in question.79 In the time between ordinary sessions, the Standing Committees are in charge of the work of the National Assembly or Senate.80 Meanwhile, during a State of Emergency, the National Assembly is compelled to meet every day, except in situations in which it simply cannot convene for ‘imperative reasons’ such as foreign occupation, according to Article 86 of the Constitution.81 No such rule currently exists for the Senate. The declaration of a State of Emergency is provided for by the Constitution, which states that an emergency can be proclaimed by the King only with the unanimous consent of the Prime Minister and the Presidents of both houses.82 This requirement is elaborated upon by the vaguely worded Law on the Management of a State of Emergency.83 Articles 78 and 102 of the Constitution provide for the National Assembly and Senate, respectively, to be prorogued for one year in instances of emergency (such as war) in which the holding of fresh elections is impossible,84 with prorogation made subject to a two-thirds majority vote.85 At the same time, Article 78 provides for the dissolution of parliament before the end of its mandate by the King, on the recommendation of the Prime Minister and with the approval of the President of the Assembly, only in instances where the government has been dissolved twice within a period of 12 months.86 Finally, in order to address ‘important issues of the country,’ the National Assembly and Senate can convene in unison as a Congress. The two houses are to convene in congress at the request of the King, the Prime Minister, or the President of either house. This mechanism is provided for in Chapter IX, Articles 116 and 117, of the Constitution, and is elaborated in the Law on the Organisation and Functioning of the National Assembly and Senate Congress of 2011.87 The law provides a non-exhaustive list of ‘important issues’ for which Congress can be convened, which include ‘serious threats to the independence, the sovereignty and territorial integrity of the Nation’ and a nationally significant ‘force majeure.’88 As Yan Vandelux points out, however, the internal ordering of the Congress is interesting in that, when it was first established via the organic law of 2011, the chair of the Congress was provisionally to be shared by the Presidents of the National Assembly and Senate. This compromise was subsequently overturned by the body’s internal rules, which gave the presidency to the President of the Senate.89 Quorum for a Congress of the National Assembly and Senate is reached when more than half of the members of the National Assembly and more than half of the members of the Senate are in attendance. Resolutions of the Congress are subject to a fifty-plus-one threshold.90 The Congress of the National Assembly and Senate should not be confused with the similarly named National Congress, which has not been convened once since 1993. This latter body, according to Chapter 14 (Articles 147–149) of the Constitution, is to be convened and presided over by the King and would exist in order to hear complaints from the public as well as to submit suggestions or requests – relating to national policy and the resolution of issues of national importance – to the legislative and executive branch.91

8.3.2  Parliament’s oversight role Cambodia’s legislative branch is also entrusted with crucial oversight functions. Article 121 of the Constitution states that all ‘[a]ll Members of the Royal Government are collectively 133

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responsible to the National Assembly for the general policy of the government,’ and that ‘[e] ach Member of the Royal Government is individually responsible to the Prime Minister and to the National Assembly for their own actions.’92 As such, in addition to forming a government through a vote of confidence (as described above), the National Assembly can also remove a government or individual members of the Council of Ministers via a motion of censure that proceeds according to an absolute-majority vote.93 Such a motion must be submitted by a minimum of one-third of the members of the National Assembly 94 and is subject to a secret ballot.95 As with a vote of confidence, a motion of censure was originally subject to a 2/3 majority vote in the National Assembly, but this was since revised to a mere absolute majority vote by constitutional amendments in 2006.96 The oversight role intended for parliament is also evident in its collective right to ask questions of the government, although much of this role is primarily accorded to the lower house. For example, at the request of at least one-tenth of its members, the National Assembly can invite members of the government – who can in turn invite relevant experts to accompany them – to stand before it in order to provide clarifications on the work of government.97 Similarly, both the Constitution and the Internal Rules of the National Assembly provide for individual commissions to request the attendance of a member of the government, although neither provide any guidance as to how many members of each commission are required to initiate such a request.98 Finally, members of the National Assembly can submit written questions to the Council of Ministers, through the President of the National Assembly.99 Questions submitted to the government can be answered by one or more members of the Council of Ministers, depending on the scope of the question, but where a question pertains to the general policy of the government, it is the responsibility of the Prime Minister to answer.100 Answers can be provided in writing or orally via attendance at a dedicated weekly session of the National Assembly.101 In instances where questions are answered orally, the President of the National Assembly decides whether or not to allow the answer to be proceeded by debate,102 all of which must not last longer than one session.103 The Council of Ministers is required to respond to all questions within seven days of receiving the request, with one day per week reserved for answering questions (and thus precluded from being used for legislative work).104 Despite being enshrined in the Constitution and the Internal Rules of the National Assembly, parliamentary questions have frequently been ignored by the Council of Ministers. A prominent instance occurred in January 2017, amid a breakdown of the political compromise between the CNRP and CPP that saw the former return to a selective boycott of Assembly sessions in response to the assault of two of their parliamentarians by plain clothed members of the Prime Minister’s Bodyguard Unit outside of the National Assembly building.105 While announcing his intention to amend the Law on Political Parties so as to allow the dissolution of the CNRP, Prime Minister Hun Sen explained that he would block attempts to invite his Ministers of Defense, Labour, and Agriculture to answer questions at the Assembly until he felt that the opposition party was engaging fully in parliament. ‘I still respect the rule of questions and answers in the National Assembly but only would do it with Assembly Members that are working fully and with permission of the President of the National Assembly,’ asserted the Prime Minister. He added, ‘[i]f they do not report themselves to works, we do not have to go take questions, and again, will do so only with fully working members of the National Assembly.’106

8.3.3  Parliamentary appointments and other roles The National Assembly and Senate also play a role in other state institutions in Cambodia. In instances where the King is certified as being seriously ill, the President of the Senate 134

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becomes the interim Head of State.107 The team of doctors responsible for making a decision about the health of the King, meanwhile, is to be selected by the President of the Senate, the President of the Assembly, and the Prime Minister.108 Where the President of the Senate is unable to fulfil the role as interim head of state, the responsibility passes to the President of the National Assembly, followed by the First Vice-President of the Senate, the First VicePresident National Assembly, the Second Vice-President of the Senate, and the Second VicePresident National Assembly, in sequence.109 The same procedures apply for the intervening period between the death or abdication of a sitting monarch and the election of a new King.110 Article 28 allows the King to delegate his power (as Head of State) to promulgate laws by Royal Kram (Decree) to the interim Head of State (typically the President of the Senate, unless they are also indisposed) in instances where he is abroad for the purposes of medical treatment.111 This delegation does not require certification by a medical doctor. The leadership of both houses of Cambodia’s parliament also sit on the Throne Council. Under Cambodia’s system of elected monarchy, the Throne Council is charged with selecting a new King within seven days of the death or abdication of the previous one.112 Article 14 of the Constitution stipulates that a new King must be at least 30 years of age and a descendent of either King Ang Duong, King Norodom, or King Sisowath.113 The composition of Throne Council is provided for by Article 13, which places the President of the Senate at the head of the Council, followed by the President of the National Assembly, the Supreme Patriarchs of the two orders of Cambodia’s Buddhist sangha (the Mahanikay and Thommayuth), the First and Second Vice-Presidents of the Senate, and the First and Second Vice-Presidents of the National Assembly.114 The Throne Council has only convened once: to select the current King, Norodom Sihamoni, to succeed his father, Norodom Sihanouk, on the throne after the latter abdicated in 2004.115 In addition, the National Assembly also nominates three members of the Constitutional Council – the non-judicial body entrusted with constitutional interpretation and review.116 Members of the Council serve nine-year terms, with three members elected every three years, meaning that the National Assembly makes one nomination every three years in normal circumstances. The other six positions one the Council are nominated by the King and the Supreme Council of the Magistracy.

8.4  The legislative process Legislation can be proposed by any Member of the National Assembly, or a Parliamentary Group in the National Assembly, as well as by the Royal Government (through the Council of Ministers) and, in theory, by the Senate.117 In practice since 1993, however, legislation in Cambodia has almost always been proposed by the Council of Ministers. A distinction is made between legislative proposals submitted by Members of the National Assembly and Senate (which are called Proposed Laws) and those that are submitted by the Council of Ministers (Draft Laws). The amendment of an existing law can only be initiated by a proposal made by at least one-quarter of the members of the National Assembly or Senate. Amendments to the Constitution may be initiated by at least one-quarter of the members of the National Assembly but cannot be initiated by the Senate.118 Constitutional amendments are prohibited during a state of emergency,119 and amendments that affect the principles of liberal, pluralistic democracy, or constitutional monarchy are technically prohibited at any time.120 Similarly, legislation or legislative amendments that are deemed to undermine national independence, sovereignty, territorial integrity, national independence, sovereignty, unity, or territorial integrity are invalid.121 Article 91 of the Constitution makes inadmissible any legislative 135

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amendment from the National Assembly that ‘intends to reduce public income or increase the burden on the people.’122 The exact meaning and parameters of this provision have not yet been clarified by the Constitutional Council or been the basis of any challenge as of 2021. Regardless of which body proposes the legislation or amendment in question, a draft/ proposed law must first be submitted to the Standing Committee of the National Assembly, via its President, along with a Statement of Cause that explains the rationale for the proposal.123 The sponsor of the draft or proposed law may request it to be considered ‘urgent’ in the Statement of Cause.124 However, it is the decision of the Standing Committee and, subsequently, the plenary session of the Assembly whether or not to accept this qualification.125 Draft/proposed laws marked urgent are to be placed at the top of the Agenda for the Assembly126 and have much shorter timelines for discussion in both houses, as will be detailed below. In practice, the vast majority of draft/proposed laws have been marked urgent and have been accepted and treated as such by the National Assembly. As Norbert Feige has noted, this often occurs even when objectively observable circumstances that might justify such a designation are ‘not visible in the slightest,’ a practice that is of particular concern when ‘draft laws that are publicly discussed with much controversy are passed via emergency procedures’ that leave little room for discussion in Cambodia’s parliament.127 In the first reading, the Standing Committee decides which of the Assembly’s ten commissions should examine the draft/proposed law. The Standing Committee can send the draft/proposed law to more than one commission but must assign only one as the commission-in-charge. Members of the National Assembly have the right to appear before that commission (whichever is selected) to report on their proposal.128 Other members of the National Assembly may propose amendments to a draft or proposed law at this stage (the second reading) by submitting written applications to the commission in charge of discussing it.129 The President of the commission charged with examining the draft/proposed law must then convey the opinion of the commission as a whole to a plenary session of the National Assembly, in the form of a report, wherein they can recommend that the Assembly (i) decide not to consider the draft or proposed law; (ii) discuss and then vote on it; or (iii) consider it as a matter of urgency by voting on it in its current form.130 At a plenary session (the third reading), the National Assembly proceeds in two stages: first, it considers the draft or proposed law in its entirety, before deciding whether or not to consider it; second, having decided to consider the draft or proposed law, the Assembly examines and discusses each article in turn.131 For budget-related legislation, the Assembly can opt for an expedited procedure wherein only those articles or chapters that have been subject to proposed amendments are discussed.132 Each Assembly Member may speak for up to 20 minutes, although the President of the Assembly can permit a further 10 minutes up to three times (making an absolute maximum of 50 minutes), with responses limited to 5 minutes.133 The Assembly then votes on whether or not to pass the draft or proposed law. For ordinary legislation to be passed, an absolute majority is required.134 However, for constitutional amendments, a two-thirds majority is required.135 As noted above, Articles 88 and 111 require a quorum of two-thirds of either house be present for any vote where a two-thirds majority is required, while a quorum of more than half of all members is required for an absolute majority vote.136 Votes can be counted by a show of hands, or through an open or secret ballot, with the latter being required if at least ten members request it.137 If a law or constitutional amendment is passed by the National Assembly, the approved text is then sent to the Standing Committee of the Senate, which distributes the draft to one or more commissions, appointing one commission as the commission-in-charge. Here, as in the lower house, members of the Senate are able to submit their comments and proposed 136

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amendments to the commission in advance of its discussion of the draft. The commission then calls a meeting of all of the Senate’s commissions (and inter-commission meeting), to discuss the draft, to which it also invites the sponsors of the draft or proposed law (lawmakers or a particular ministry).138 On the basis of this meeting, the commission-in-charge prepares a report, which is submitted along with the text of the draft or proposed law to the Standing Committee of the Senate, which is then responsible for convening a plenary session to discuss the draft. As with the National Assembly, members of the Senate are limited to 20 minutes to express their opinion, and 5 minutes for responses.139 Once all members have had an opportunity to express their opinion, the Senate then votes on the draft or proposed law, along with any approved amendments. The Senate is required to give its opinion on the draft or proposed law within one month of having received it from the National Assembly or within five days if it has been marked urgent.140 If the Senate votes to pass the draft without amendments, or fails to hold a vote in order to give its opinion within the designated time, then the legislation is considered passed.141 If the Senate rejects the draft/proposed law in its entirety, then it is returned to the National Assembly, which can only reconsider the draft or proposed law after 30 days have elapsed.142 The 30-day period is reduced to 15 days for a draft law relating to the national budget, and to 4 days for a draft or proposed law that has been marked as urgent.143 In essence, then, the Senate is effectively denied any right to veto legislation.144 If the Senate approves the law with amendments, then the revised draft or proposed law is returned to the National Assembly, where only the amendments made by the Senate are subject to discussion and a vote. The National Assembly is required to reach a decision within one month of the draft or proposed law being returned. If it approves of such amendments, the legislation is considered to have been passed in both houses. Constitutional review of legislation and legislative amendments, as well as constitutional amendments, is undertaken by the Constitutional Council. A priori constitutional review is required for all constitutional amendments, organic laws, and the internal rules of either house. Such a review can be initiated for any other draft or proposed law or legislative amendment by a request from the King, the Prime Minister, the President of either house, one-tenth of all members of the National Assembly, or one-quarter of all members of the Senate.145 The Council is required to submit a decision on the constitutionality of any draft, proposed, or existing law within 30 days of receiving such a request.146 The same set of actors that is able to request a priori constitutional review – with the addition of Cambodia’s courts, via a request from the President of the Supreme Court – is also empowered to request the a posteri review of laws by the Council.147 Draft or proposed laws that have been passed in both houses and have not been deemed unconstitutional by the Constitutional Council are then sent to the Royal Government, which is responsible for submitting them to the King for royal assent and promulgation.148 Unless a later date is specified in the text of the law, all legislation comes into effect 10 days after promulgation in Phnom Penh and 20 days after promulgation in the rest of the country.149 In cases where a law is marked as urgent, it can come into effect immediately upon promulgation.150

8.5 Conclusion Following the 2018 elections, in which the CPP swept the board by winning all 125 available seats in the National Assembly in the absence of any realistic opposition, the Cambodian Constitutions’ promise of liberal, multiparty democracy seems further from reality than at any point since the document’s promulgation in 1993. Amid this (re-)entrenchment of hegemonic 137

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authoritarian rule by the CPP after 30 years of experimentation with flawed and restricted democratic competition, it would be easy to reflect on the role of parliamentary institutions in the Cambodian political system dismissively. In such a context, the laws and structures regulating the legislative process are assumed to be of little significance, for example. Admittedly, attempts by opposition MPs to pose critical questions to Ministers have frequently and overtly been disregarded by the ruling party, and parliamentarians have been stripped of their immunity (particularly in recent years) on the somewhat tenuous legal grounds provided by a creative reading of the flagrante delicto exception. Most notably, the resolution of the post-2003 election standoff via an ‘Additional Constitutional Law.’ However, it is notable that this is one in a long lineage of deadlocks that occurred precisely because of a commitment to legislative rules and procedures. It was only after a seemingly intractable iteration of these deadlocks after 2003 that the onerous requirement of two-thirds-majority approval for the formation of a government – itself the legacy of the peace-building context in which consensus-building was a primary aim of the political process – was ultimately removed. Although there are notable examples of legislative rules and procedures being disregarded, the politics around Cambodia’s parliamentary processes indicates that formal rules do hold some normative power, albeit if only as an expendable part of the wider attempt to construct and maintain a democratic artifice. Undoubtedly, throughout the almost three decades since 1993, neither the National Assembly nor the Senate (after its establishment in 1999) appears to have provided formal checks on executive power. While neither house has taken a proactive role in initiating legislation, there has only been one notable instance in which a government initiated bill has been voted down: the result of which was the removal of two CPP legislators from the party, and thus from the National Assembly. Where opposition parties have been able to gain a foothold in the Assembly, this has tended to be tenuous, tempestuous, and short-lived. Post-election deadlocks in which parties such as FUNCINPEC, the SRP, and later, the CNRP refused to join parliament until they were guaranteed positions of influence or – in the latter case – structural changes to electoral institutions and rules, did little to disturb a political status quo in which the CPP held (and continues to hold) all the cards. While FUNCINPEC was ultimately drawn into – and ultimately undermined by their ineffectual involvement in – successive coalition governments, the CNRP’s experimentation with a more contentious form of opposition politics ultimately led to its dissolution. The consolidation of CPP dominance – which began after the 2013 elections, saw it only narrowly defeat the insurgent CNRP, and was embodied in its absolute (and virtually unopposed) win in 2018 – will likely usher in a more stable era for Cambodia’s parliamentary politics. It remains to be seen, however, whether this will precipitate any change in the status, assertiveness, or self-confidence of the country’s legislative institutions.

Notes 1 Of course, under the auspices of the Khmer People’s Revolutionary Party, the CPP had ruled a single-party state (the People’s Republic of Kampuchea) throughout the 1980s (from the fall of the Khmer Rouge in 1979 to the beginning of the UNTAC experiment in 1992). 2 Funcinpec is an acronym for the French Front uni national pour un Cambodge indépendant, neutre, pacifique, et coopératif. In English, this translates as the National United Front for an Independent, Neutral, Peaceful, and Cooperative Cambodia. 3 The creation of the Senate also allowed for the provision of a position as President of the National Assembly to the Funcinpec leader, Prince Norodom Ranaraddh, without alienating CPP President, Chea Sim, who became President of the upper house having previously been President of the

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The National Assembly and Senate of the Kingdom of Cambodia Assembly. For an account of the power-sharing settlements reached after the 1993 and 1998 elections, see Assembly David Roberts, ‘Democratization, Elite Transition, and Violence in Cambodia, 19911999’ (2002) 34(4) Critical Asian Studies 52. 4 Constitution of Cambodia 1993, art 78 para 1 [hereafter 1993 Constitution]. 5 ibid art 76 para 2. 6 The Law on Election of Members of the National Assembly, Cambodia 1997 (amended 2015), art 5 para 2 [hereafter LEMNA]. 7 ibid art 135. 8 Phnom Penh, technically a municipality rather than a province, is allocated 12 seats, with nearby Kandal awarded 11 and neighbouring Kampong Cham receiving 10. At the other end of the spectrum, eight provinces receive a single seat in the assembly. 9 LEMNA (n 6) art 9. 10 ibid art 10. 11 1993 Constitution (n 4) art 102 para 1. 12 ibid art 99 para 2. 13 ibid art 159. 14 Yan Vandeluxe, ‘The Senate of the Kingdom of Cambodia’ in Hor Peng, Kong Phallack and Jörg Menzel (eds) Cambodian Constitutional Law (Konrad Adenauer Stiftung 2016) 147. 15 1993 Constitution (n 4) art 100 para 3. 16 The Law on Election of Members of the Senate (2005), art 9 [hereafter LEMS]. 17 ibid art 10. 18 ibid art 11. 19 Elections at the Commune/Sangkat level are supervised by Commune/Sangkat Election Commissions, which are themselves appointed by the NEC. The NEC is represented at the provincial level during national elections by Provincial Election Commissions. 20 1993 Constitution (n 4) arts 150, 151. 21 ibid art 150 para 2. 22 ibid art 151 para 1. 23 LEMNA (n 6) art 46. 24 ibid art 51 para 1, art 46. 25 ibid art 38 para 3. 26 LEMNA (n 6) art 23. 27 LEMS (n 16) art 17 28 LEMNA (n 6) art 23; LEMS (n 16) art 17. 29 LEMNA (n 6) art 139; LEMS (n 16) art 29. 30 Jörg Menzel, ‘Cambodia from Civil War to a Constitution to Constitutionalism?’ in Hor Peng, Kong Phallack and Jörg Menzel (eds) Cambodian Constitutional Law (Konrad Adenauer Stiftung 2016) 23. 31 ibid 23. 32 LEMNA (n 6) art 24. 33 Tomas Larsson, ‘Monkish Politics in Southeast Asia: Religious Disenfranchisement in Comparative and Theoretical Perspective’ (2015) 49(1) Modern Asian Studies 40; Benjamin Lawrence, ‘Saffron Suffrage: Buddhist Monks and Constitutional Politics in Cambodia’ (2022) 37(2) Journal of Law and Religion 259. 34 Benjamin Schonthal, Buddhism, Politics and the Limits of Law: The Pyrrhic Constitutionalism of Sri Lanka (CUP 2016); Benjamin Schonthal, ‘Formations of Buddhist Constitutionalism in South and Southeast Asia,’ (2017) 15(3) International Journal of Constitutional Law 705; Benjamin Schonthal, ‘Buddhism and Constitutional Practice’ (2018) 13(2) Asian Journal of Comparative Law 245. 35 LEMNA (n 6) Chapter X ‘Penalties’ arts 142–66. 36 The Law on Political Parties, Cambodia 1997 (amended 2017). Political activity is not defined by law, but appears to be understood in practice to mean discussing electoral/party politics publicly or privately. 37 Benjamin Lawrence, ‘Outlawing Opposition, Imposing Rule of Law: Authoritarian Constitutionalism in Cambodia’ (2020) 15(2) Asian Journal of Comparative Law 225. 38 ibid. 39 1993 Constitution (n 4) art 80 paras 1–2, art 104 paras 1–2. 40 ibid art 80 para 4, art 104 para 4.

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Benjamin Lawrence 4 1 ibid art 80 para 3, arts 1–4 para 3. 42 ibid art 80 para 5, arts 1–4 para 5. 43 ibid art 82 para 1, and 106 para 1. 4 4 Internal Rules of the National Assembly, Cambodia 1993, art 2 para 1 [hereafter IRNA]. 45 1993 Constitution (n 4) art 82 para 2, art 106 para 2. 46 ibid art 82 para 4, art 106 para 4. 47 ibid art 119. 48 ibid art 119. However, Article 120 of the Constitution makes clear that a position in the Council of Ministers is to be considered ‘incompatible with any professional activity in the field of trade or industry and with the holding of any position of public function’. 49 ibid art 119. 50 ibid art 90. 51 1993 Constitution (unamended) (as found in Raoul Marc Jennar, The Cambodian Constitutions, 19531993 (White Lotus 1995). 52 Ibid. 53 Sorpong Peou, ‘Hun Sen’s Pre-Emptive Coup: Causes and Consequences’ 1998 Southeast Asian Affairs; Sorpong Peou, ‘Cambodia in 1997: Back to Square One?’ (1998) 38(1) Asian Survey 69; Sorpong Peou, ‘The Cambodian Elections of 1998 and Beyond: Democracy in the Making?’ (1998) 20(3) Contemporary Southeast Asia 279. 54 Sorpong Peou, Intervention & Change in Cambodia: Towards Democracy? (Silk Books 2000); Duncan McCargo, ‘Cambodia: Getting Away with Authoritarianism?’ (2005) 16(4) Journal of Democracy 98. 55 According to Human Rights Watch, for example, at least a dozen Funcinpec or SRP activists were murdered in the year before the election. See Human Rights Watch, The Run-Up to Cambodia’s 2003 National Assembly Election: Political Expression and Freedom of Assembly under Assault (HRW 2003). 56 Melanie Beresford, ‘Cambodia in 2004: An Artificial Democratization Process’ (2005) 45(1) Asian Survey 134. 57 In fact, the Council’s initial decision appeared to imply that the King was obliged to convene parliament within the 60-day period, regardless of whether all elected members were in attendance. King Sihanouk’s request explained the standoff and asked for a succinct answer to the question “The King shall go, or the King shall not go?” with regard to the first session of parliament. This appears to have been a source of confusion for the Council, which first answered that the King “shall.” However, King Sihanouk then sought a clarification, which came in form of Notification No 20/2003 (22 September 2003), wherein the Council explained that there was no compulsion implied in this “shall.” DecisionNo054/005/2003 (22 July 2003). 58 1993 Constitution, art 82. 59 ibid arts 90, 119. 60 ibid art 88 para 3. 61 Additional Constitutional Law 2004, art 1. 62 ibid art 2. Note that the Additional Constitutional Law was itself a constitutional amendment passed by a National Assembly that had not yet officially begun its mandate. 63 ibid arts 3-5. 64 Yun Samean, ‘King Refuses to Sign Off on Package Vote,’ Cambodia Daily (Phnom Penh, 12 July 2004)

accessed 17 November 2022. 65 Saing Soenthrith, ‘Chea Sim Leaves, Creating Political Crisis’ Cambodia Daily (Phnom Penh, 14 July 2004, accessed 17 November 2022. 66 1993 Constitution (n 4) art 88 para 3, art 111 para 3, art 90 para 7; Additional Constitutional Law 2006, art 6. 67 Yun Samean, ‘King Pardons Sam Rainsy at PM’s Request’ Cambodia Daily (Phnom Penh, 6 February 2006) accessed 17 November 2022; Yun Samean, ‘Government Assigns Bodyguards to Sam Rainsy’ Cambodia Daily (Phnom Penh, 16 February 2006) accessed 17 November 2022. 68 IRNA (n 44) art 3; LEMNA (n 6) art 138.

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The National Assembly and Senate of the Kingdom of Cambodia 69 Norbert Feige, ‘The National Assembly of the Kingdom of Cambodia’ in Hor Peng, Kong Phallack and Jörg Menzel (eds) Cambodian Constitutional Law (Konrad Adenauer Stiftung 2016) 121. 70 1993 Constitution (n 4) art 82 para 2, art 106 para 2. 71 ibid art 84 para 2, art 108 para 2. 72 IRNA (n 44) art 6. 73 ibid art 10 paras 1 and 2. 74 ibid art 10 para 3. 75 Feige (n 70) 126. 76 ibid. 77 IRNA (n 44) art 11; Internal Rules of the Senate 1999, art 19. 78 1993 Constitution (n 4) arts 83, 107. 79 ibid arts 83, 107. 80 ibid arts 84, 108. 81 ibid art 86. 82 ibid art 22. 83 The Law on the Management of a State of Emergency, Cambodia 2020. The law was passed in April 2020, apparently in response to the COVID-19 pandemic. It was widely criticised by local and international civil society organisations for its lack of specificity, and the absence of effective oversight mechanisms. Cambodian Centre for Human Rights (CCHR), Civil Society Organizations Call for the Royal Government of Cambodia to Amend the State of Emergency Law to Protect Human Rights (CCHR 2020); Human Rights Watch, Cambodia: Emergency Bill Recipe for Dictatorship (HRW 2020). 84 1993 Constitution (n 4) art 78 para 5, art 102 para 5. 85 ibid art 78 para 6, art 102 para 6. 86 ibid art 78 para 1. 87 ibid art 116; Law on the Organisation and Functioning of the National Assembly and Senate Congress 2011. 88 The Law on the Organisation and Functioning of the National Assembly and Senate Congress, Cambodia 2011, art 3. 89 Vandeluxe (n 14) 154. 90 Law on the Organisation and Functioning of the National Assembly and Senate Congress 2011. 91 1993 Constitution (n 4) arts 147–9. The National Congress here is, of course, largely based on that which existed in Cambodia’s post-independence period, and which was a characteristic of the Sangkum Reastr Num regime in which Norodom Sihanouk ruled Cambodia from 1955 to 1970. 92 ibid art 121. 93 ibid art 98 para 1. 94 ibid art 98 para 3. 95 IRNA (n 44) art 40. 96 1993 Constitution (n 4) art 92 para 1. 97 ibid art 89. 98 ibid art 97; IRNA (n 44) art 34. 99 1993 Constitution (n 4) art 96 para 1. 100 ibid art 96 para 2. 101 ibid art 96 paras 3, 7. 102 ibid art 96 para 4. 103 IRNA (n 44) art 33. 104 1993 Constitution (n 4) art 96 para 8. 105 Ouch Sony, ‘Prime Minister’s Bodyguard Describes Beating Lawmaker’ Cambodia Daily (Phnom Penh, 29 April 2016) accessed 17 November 2022. 106 Socheat Samreth, ‘Selected Comments Samdech Techo Hun Sen at the Graduation and Diploma Presenting Ceremony of the National University of Management [Unofficial Translation] | ​ accessed 17 November 2022. 107 1993 Constitution (n 4) art 11 para 1. 108 ibid art 11 para 11. 109 ibid art 11 para 2. 110 ibid art 12.

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Benjamin Lawrence 1 11 ibid art 28. 112 ibid art 13 para 1. 113 ibid art 14. 114 ibid art 13 para 2. 115 Wency Leung, ‘King Appeals to Top Monk to Let Him Abdicate’ Cambodia Daily (Phnom Penh, 3 August 2004) accessed 17 November 2022; Wency Leung, ‘Monarchy Continues as King Steps Down’ Cambodia Daily (Phnom Penh, 16 October 2004) accessed 17 November 2022. 116 1993 Constitution (n 4) art 137 para 1. 117 ibid art 91; IRNA (n 44) art 11, The Internal Rules of the Senate, Cambodia 1999, arts 21–2. 118 1993 Constitution, art 153 para 1. 119 ibid, art 154. 120 ibid, art 155. However, one could easily argue that constitutional amendments such as that which permitted the denial of political rights to individuals deemed to have worked against the ‘national interest,’ as seen in the 2018 amendments to Art 34, is a clear example of such a move (and should thus be considered an ‘unconstitutional constitutional amendment’). 121 ibid art 92. 122 ibid art 151 para 2. 123 IRNA (n 44) art 26. 124 ibid art 46. 125 ibid art 45 para 2. 126 ibid art 44. 127 Feige (n 70) 131. 128 IRNA (n 44) art 23. 129 ibid art 26. 130 ibid art 24. 131 ibid art 29. 132 ibid arts 29–30. 133 ibid art 59. 134 ibid art 90; IRNA (n 44) art 41. 135 1993 Constitution (n 4) art 153 para 2. 136 ibid art 88 para 3, art 111 para 3. 137 IRNA (n 44) art 39 para 3. 138 Internal Rules of the Senate 1993. 139 ibid. 140 ibid. 141 1993 Constitution (n 4) art 113 para 2. 142 ibid art 113 para 6. 143 ibid. 144 Menzel (n 30) 24. 145 1993 Constitution (n 4) art 140 para 1. 146 ibid art 140 para 2. 147 ibid art 141. 148 ibid art 93. 149 This appears to reflect the fact that, when the Constitution was first drafted, information about legislative changes made in Phnom Penh was presumed to be slow in reaching the provinces, given the incredibly low levels of state capacity, lack of technology, and high rates of illiteracy in the population. 150 ibid art 93 para 1.

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9 THE NATIONAL PEOPLE’S CONGRESS IN CHINA Sun Ying

9.1 Introduction In many ways, the People’s Republic of China (hereafter PRC) is a unique political system. PRC has neither a parliamentary system nor a presidential system. It has a president and a prime minister. And it is a unitary system with two special administrative regions (SARs). The Chinese government does not welcome the idea of checks-and-balance as it believes that the people’s will can only be exercised through the people’s congress system. According to the Chinese Constitution, the National People’s Congress (NPC) is the highest organ of state power.1 The president, the prime minister, and the head of judiciary are all elected by the NPC deputies. The NPC supervises other state organs, including the government, the supervisory commission, the court, and the procuratorate. Above all the Chinese Communist Party (CCP) exerts unified leadership over all state organs. The Chinese people’s Congress operates at five levels: the national level, the provincial level, the municipal level, the county level, and the township level. People’s congresses at sub-national level are called local people’s congress (the ‘LPC’). Different levels of people’s congress vary in terms of their authority and organizational structure.

9.2  Structure and composition of the NPC Under the Chinese Constitution, the NPC is the highest organ of state power.2 The NPC is a unicameral legislature. It meets in session once a year.3 There is no legal requirement on how long this annual meeting lasts. In practice normally, the NPC meets for less than two weeks (see Table 9.1). The NPC convenes in the first quarter of each year.4 There is no fixed date for the opening of the NPC session. Conventionally it begins and ends in March. In 2020, however due to the spread of Covid-19, the NPC postponed its annual convention to May (Table 9.1).

9.2.1  Composition of NPC deputies As noted above, each session of the NPC does not last long. A major reason is that the deputies of the Chinese congress are part timers coming from all walks of life. The number of NPC DOI: 10.4324/9781003109402-11

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Sun Ying Table 9.1  Period of the NPC plenary sessions Annual session

Dates of the meeting

First session of 12th NPC Second session of 12th NPC Third session of 12th NPC Fourth session of 12th NPC Fifth session of 12th NPC First session of 13th NPC Second session of 13th NPC Third session of 13th NPC Fourth session of 13th NPC

March 5–11, 13–17, 2013 March 5–7, 9–13, 2014 March 5–10, 12–15, 2015 March 5–14, 16–20, 2016 March 5–10, 12–15, 2017 March 5–14, 16–20, 2018 March 5–10, 12–15, 2019 May 22–28, 2020 March 5–11, 2021

Number of days of the meeting 12 8 10 11 10 15 10 7 7

deputies is not fixed by the Constitution. The PRC Election Law sets a maximum limit of 3000 for the number of deputies to the NPC and in reality the total number of NPC is about 2900 (see Table 9.2). The total number of deputies to the current NPC i.e. the 13th NPC is 2980. This is a huge number when compared to legislatures in other countries, but a small number compared to the whole population of China. The NPC not only discharges the functions of scrutinizing and making laws, but it also provides legitimacy for the regime. When presenting the draft of 1982 Constitution, Peng Zhen, the Vice-President of Constitution Revision Committee explained that the NPC should contain an enormous number of deputies because the whole population in China is enormous, and there are more than 50 ethnic groups and more than 2000 counties, ‘people of all ranks and classes, all nationalities, localities, political parties should have their own representatives in the NPC’.5 The CCP insists on filling the NPC with deputies from all sectors of Chinese societies. The report at the CCP 18th Party congress asked that ‘the proportion of community level deputies to people’s congresses, particularly those elected from among workers, farmers and intellectuals on the frontlines of various fields of endeavor should be raised, while that of deputies from among leading Party and government officials should be reduced’.6 The decision at the 4th plenum of 19th CCP Central Committee also required an increase in the number of grassroots deputies to the people’s congress. Furthermore, it is written in the PRC Election Law that the deputies to NPC and LPCs shall be ‘broadly representative’, there shall be an appropriate number of grassroots deputies, especially deputies of workers, farmers, and intellectuals, there shall be an appropriate number of women deputies, and the proportion of women deputies shall be raised gradually.7 Traditionally the Chinese deputies are divided into categories such as workers, Table 9.2  Numbers of deputies to the NPC Period of each session (year) 1978–1982 1983–1987 1988–1992 1993–1997 1998–2002 2003–2007 2008–2012 2013–2017 2018–2022

Session of NPC

Numbers of deputies

5th 6th 7th 8th 9th 10th 11th 12th 13th

3497 2978 2970 2978 2979 2984 2987 2987 2980

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The National People’s Congress in China

farmers, intellectuals, cadres, women, ethnic minorities, democratic parties’ members, overseas Chinese, and the People’s Liberation Army (PLA).8 But this traditional categorization of Chinese social classes is out of date. The professions and social classes are more complicated in China’s era of economic reform, and these elections now ‘co-opt’ new social groups.9 In today’s electoral practice, the identities or professions of the deputies of the people’s congress are divided into eight groups, i.e. workers, farmers, specialists, civil servants, people in charge of enterprises, people in charge of public institutions, PLA and policemen, and other types.10 This new classification is intended to absorb or reflect all the important professions in today’s Chinese society. For example, under the category of specialists, there are researchers in the field of natural science and social science, technical staff, people working in the professions of education, medicine, and sports, people employed in the businesses of banking, insurance, securities, law firm, and accounting.11 The quotas of congress seats are carefully and proportionally allocated among these eight types of deputies. To achieve this goal, the Party’s control of the nomination process is inevitable, like legislatures in authoritarian states elsewhere.12

9.2.2  How NPC deputies are elected All citizens of the PRC who have reached the age of 18 have the right to vote and the right to be elected as deputies to all levels of people’s congresses, regardless of ethnic status, race, sex, occupation, family background, religious belief, education, property status or length of residence, except persons deprived of political rights according to law.13 The NPC deputies are elected by the provincial level people’s congresses (PPCs) and the PLA. NPC deputies from Hong Kong and Macau SARs are elected by special election committees of their respective two SARs. Only the township and county level deputies are directly elected to the congress, deputies to higher level congress are elected by the congress below. The PPCs are elected by the plenary session of municipal people’s congress (MPC) and the MPCs are elected by county level people’s congress. For example, for the current NPC that is the 13th NPC elected in 2018, there are 35 electoral units (including 23 provinces, 5 autonomous regions, 4 municipality directly under central government, 2 SARs and the PLA). Using Guangdong province as an example, the first session of 13th Guangdong PPC (lasting from January 25, 2018 to January 31, 2018) elected 162 NPC deputies.14 As mentioned above, to achieve the goal of ‘broad representativeness’, the election should produce a balanced proportion among different social groups. In 13th NPC, the ethnic minorities constitute 14.7% of the total number of NPC deputies, female deputies make up 24.9%, deputies representing frontline workers and farmers take up 15.7%, specialists constitute 20.57%, and the proportion of Party and government officials is 33.93%.15 The key to ensuring this balance lies in the process of nomination. According to the PRC Election Law, political parties and people’s organizations may jointly or separately recommend candidates, meanwhile a group of ten or more deputies may also jointly recommend candidates.16 In practice, the nomination of NPC deputies follows a ‘dual track’ system, which means that the provincial Party committee draws up its own candidate list, and the PPC also prepares their own candidate list. And then these two name-lists are combined and submitted to the PPC Presidium to generate a final name-list of formal candidates.17 The nominees on the list are not necessarily limited to the deputies to the current PPC.18 The election is competitive. The number of candidates must exceed the slots available in each electoral unit.19 At the provincial level, the number of NPC candidates shall be greater than the number of deputies to be elected by one fifth to one half.20 Deputies to every level of people’s congress including the NPC are elected for a term of five years.21 But there is no limit on the number of terms for reelection. A national figure 145

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named Shen Jilan served as people’s deputy from the first NPC till 13th NPC, from age 25 till she died at the age of 91. A debate is ongoing about ‘deputy quality’.22 All the deputies are part timers who are not professional legislators. A person is chosen to be a deputy because he or she is an outstanding role model and fits the profile of a certain category of representation. The deputies learn on the job as most newly elected deputies are amateurs in congressional affairs. The NPC conducts regular training programs for the deputies. The training provided for the 13th NPC deputies include the 14th five-year national plans, the essence of the 5th plenums of the 19th CCP Central Committee, Xi Jinping’s Thought on Rule of Law, the legislative system, the Civil Code, the history and features of the Chinese legal system, and rules of procedures of the NPC, etc.

9.2.3  Structure of NPC committees Like legislatures elsewhere, the NPC has a number of special committees (专门委员会). The 1982 Constitution allows the NPC to establish a Nationalities Committee, a Law Committee, a Finance and Economic Committee, an Education, Science, Culture and Public Health Committee, a Foreign Affairs Committee, an Overseas Chinese Committee, and such other special committees as are necessary.23 The special committees can keep functioning even when the NPC and NPC Standing Committees are not in session. Because the law allows the NPC to establish special committees as necessary, the NPC has gradually set up more new special committees. In 1988, the 7th NPC set up an internal and judicial affairs committee. In 1993, the 8th NPC set up an environment protection committee, which was later renamed environment and resource protection committee. In 1998, the 9th NPC set up an agricultural and rural work committee. Pursuant to the 2018 constitutional amendment, the 13th NPC set up 10 new special committees, which are the ethnic affairs committee (民族委员会), the Constitution and law committee (宪法和法律委员会), the supervisory and judicial affairs committee (监察和司法委员会), the financial and economic affairs committee (财政经济委员会), the education, science, culture and public health committee (教育科学文化卫生委员会), the foreign affairs committee (外事委员会), the overseas Chinese affairs committee (华侨委员 会), the environmental protection and resources conservation committee (环境与资源保护委 员会), the Agriculture and Rural Affairs Committee (农业与农村委员会), and the social development affairs committee (社会建设委员会). Each special committee is comprised of a chairperson, several vice-chairpersons, and other members. They are nominated by the Presidium of the NPC session from among the NPC deputies and are approved by the NPC. The role of the special committees is to research, deliberate, draw up bills or proposals related to their fields, and assist the NPC and its Standing Committee in legislation, supervision, and other areas.24 The most important organ of NPC is its Standing Committee (NPCSC). As mentioned before, the NPC only holds a plenary session once a year, the session is short on time and the number of deputies is enormous. It is impossible for so many deputies to debate and make decisions over a short time period. But it is unacceptable to reduce the number of deputies given the large population of China. And it is also unacceptable to ask the deputies to attend more meetings because they are unpaid and part timers. The plenary session of the people’s congress is more like a symbolic institution of popular representation. There has to be another organ to substantially exercise the legislative function and this is why the Standing Committee was created. In 1954, the first session of NPC was established and its Standing Committee was set up at the same time. The Standing Committee members are elected from the deputies at the first plenary of each NPC and serve for five years. The size of Standing

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Committee is much smaller than the plenary session. And the Standing Committees convene meetings more frequently than the plenary sessions. Compared to the plenary session, the size of the NPCSC is much smaller. The number of the 13th NPC deputies is 2980, and the number of its Standing Committee member is 175. The Standing Committee consists of the chairperson, vice-chairpersons, secretary, and other members, all of whom are elected at the NPC plenary session. 25 The chairperson, vice-chairpersons, and secretary constitute the Chairmen council (委员长 会议). The 13th NPCSC chairmen council has 1 chairman, 14 vice chairmen, and 1 secretary-general. The chairmen council has an equivalent status as the Speaker of the House of Commons in a Westminster-style parliament. According to the Rule of Procedure of NPCSC, the Chairmen council convenes and presides over the Standing Committee meeting. It also drafts the agenda for the Standing Committee meeting. In practice, the Chairmen’s council is the de facto the leading core of the NPCSC. It handles the administrative affairs of the NPCSC on a daily basis. The NPCSC itself has a complex internal organization. Administrative offices and working organs are set up in the NPCSC. Usually, the Congress Standing Committee administrative office is called the general office (办公厅). The general office itself has a dozen bureaus. Under the general office of NPC, there are the bureau of secretaries (秘书局), the research office (研究室), the liaison bureau (联络局), the foreign affairs bureau (外事局), the information bureau (新闻局), the bureau for the reception of letters and visits (信访局), the personnel bureau (人事局), the retiree affairs bureau (离退休干部局), the administrative bureau of departmental affairs (机关事务管理局), the party committee of the NPC departments (机关党委), the party discipline inspection commission of the NPC departments(机关纪委),the labor union of the NPC departments(机关工会), the administrative bureau for the Great Hall of the People (人民大会堂管理局), the service center of the NPC (机关服务中心), the training center (培训中心), the information center (信息中 心), the conference center (会议中心), the library (图书馆) and a magazine publisher (杂志 社). The working organs of the congress Standing Committee are referred as commissions. The NPCSC has three commissions: the legislative affairs commission (法制工作委员会); the budgetary affairs commission (预算工作委员会); and the Hong Kong SAR basic law committee (香港基本法委员会) and the Macao SAR basic law committee (澳门基本法委 员会). Under these commissions, there also are many offices. Taking the NPC legislative affairs commission as an example, it has ten offices, including a general office (办公室), constitutional law office (宪法室), legislative plan office (立法规划室), criminal law office (刑法室), civil law office (民法室), economic law office (经济法室), state law office (国家法室), administrative law office (行政法室), social law office (社会法室), regulation review office (法规备案审查室), and a research office (研究室). What is worth noting is there are full-time members working in NPCSC. It is written in the Constitution that no one on the Standing Committee of the People’s Congress at both national and sub-national levels shall hold office in any of the administrative, judicial, or procuratorial organs of the State.26 This legal requirement results in some of the congress Standing Committee members working full time for the congress. The chairperson and vicechairpersons are full-time congress members. If a Standing Committee member who is not a chairperson or a vice-chairperson but serve full time in the congress, he will be appointed as a special committee member. A large number of full-time members in the Congress Standing committee are former officials who used to work as Party secretaries or government heads at provincial or ministerial levels.

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There is an overlap of personnel between NPCSC members and civil servants in the NPC special committee members. Take the 13th NPCSC as an example, some full-time members of the Standing Committee also are chairpersons of the special committees. Li Fei, an ordinary member in the NPCSC, is the chairperson of Constitution and law committee; Bai Chunli, an ordinary member of the NPCSC, is the chairperson of ethnic affairs committee. Furthermore, the chairpersons of the commissions are officials in the congress bureaucracy machine, and they are also elected deputies and serve as vice-chairpersons in the NPC special committees. Shen Chunyao serves as a vice-chairperson of the Constitution and law committee, he also serves as the chairperson of legislative affairs commission, Hong Kong SAR Basic Law committee, and Macao SAR Basic Law committee; Shi Yaobin is the vicechairperson of budgetary affairs committee, and he also is the chairperson of the budgetary affair commission. This personnel overlap blurs the boundary between the congress bureaucracy machine and the elected legislature itself. In practice, the bureaucrats sometimes speak and act on the behalf of legislators. An obvious example is the behavior of the legislative affairs commission. In big events, the legislative affairs commission would become the spokesperson of the NPC, explaining laws and settling disputes. For example, during the 2019 Hong Kong anti-extradition movement, the Hong Kong Court of First Instance ruled that the Emergency Regulations Ordinance which imposed the ‘anti-mask law’ was unconstitutional. The next day, a spokesman of NPCSC legislative affairs commission responded and declared that the Hong Kong court does not have the authority to judge or decide whether an Ordinance is in conformity with the Basic Law.27 During the 2020 nationwide panic over Covid-19, the officials of the NPCSC legislative affairs commission interpreted laws relating to the prevention and control measures of the epidemic, such as whether an enterprise can be excused from its obligation to fulfill its contracts during this unusual time. At the local level, LPCs above the county level have similar organization structures as the NPC. Unlike the NPC and the NPCSC, the people’s congress at the local level did not set up their own standing committees (LPCSCs) until the 1970s. The Local Organic Law28 was passed in 1979 to require LPCs above the county level to establish standing committees. In August 1979, the Tibet PPC set up its standing committee and it is the first standing committee at a provincial level congress. Later in August 1979, Qinghai PPC set up its standing committee. PPCs in Xinjiang, Henan, Beijing, Jiangsu, Zhejiang, Fujian, Hunan, Guangdong, Guangxi, Sichuan, Yunnan, Shaanxi, Gansu, Shandong, Shanxi, Neimenggu, Heilongjiang, Jiangxi, Shanghai, and Anhui were established in 1979, and PPCs in Liaoning, Guizhou, Ningxia, Hubei, Hebei, Jilin, Tianjin were set up in 1980. Hainan PPC set up its standing committee in August 1988. Chongqing people’s congress set up its standing committee in June 1997. At municipal and county levels, the LPCs also established standing committees. While the Constitution and the laws do not state that the people’s congress at the lower level should report to the level above, in practice, the NPCSC gives unified guidance on work to the LPCSCs.

9.3  Powers of the NPC and NPCSC According to Article 62 of Chinese Constitution, the NPC ‘exercises the following functions and powers: 1 to amend the Constitution; 2 to supervise the enforcement of the Constitution; 3 to enact and amend basic laws governing criminal offences, civil affairs, the state organs and other matters; 148

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4 to elect the President and the Vice-President of the People’s Republic of China; 5 to decide on the choice of the Premier of the State Council upon nomination by the President of the People’s Republic of China, and on the choice of the Vice-Premiers, State Councillors, Ministers in charge of ministries or commissions, the AuditorGeneral and the Secretary-General of the State Council upon nomination by the Premier; 6 to elect the Chairman of the Central Military Commission and, upon nomination by the Chairman, to decide on the choice of all other members of the Central Military Commission; 7 to elect the Chairman of the National Supervisory Commission; 8 to elect the President of the Supreme People’s Court; 9 to elect the Procurator-General of the Supreme People’s Procuratorate; 10 to examine and approve the plan for national economic and social development and the report on its implementation; 11 to examine and approve the state budget and the report on its implementation; 12 to alter or annul inappropriate decisions of the Standing Committee of the National People’s Congress; 13 to approve the establishment of provinces, autonomous regions, and municipalities directly under the Central Government; 14 to decide on the establishment of special administrative regions and the systems to be instituted there; 15 to decide on questions of war and peace; and 16 to exercise such other functions and powers as the highest organ of state power should exercise’. In addition, the NPC ‘has the power to remove the following persons from office: 1 the President and the Vice-President of the People’s Republic of China; 2 the Premier, Vice-Premiers, State Councillors, Ministers in charge of ministries or commissions, the Auditor-General and the Secretary-General of the State Council; 3 the Chairman of the Central Military Commission and other members of the Commission; 4 the Chairman of the National Supervisory Commission; 5 the President of the Supreme People’s Court; and 6 the Procurator-General of the Supreme People’s Procuratorate’.29 With some exceptions, the NPCSC shared most of the NPC powers. According to Article 67 of Constitution, the NPCSC ‘exercises the following functions and powers: 1 to interpret the Constitution and supervise its enforcement; 2 to enact and amend laws, with the exception of those which should be enacted by the National People’s Congress; 3 to partially supplement and amend, when the National People’s Congress is not in session, laws enacted by the National People’s Congress provided that the basic principles of these laws are not contravened; 4 to interpret laws; 5 to review and approve, when the National People’s Congress is not in session, partial adjustments to the plan for national economic and social development or to the state budget that prove necessary in the course of their implementation; 149

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6 to oversee the work of the State Council, the Central Military Commission, the National Supervisory Commission, the Supreme People’s Court, and the Supreme People’s Procuratorate; 7 to annul those administrative rules and regulations, decisions or orders of the State Council that contravene the Constitution or the law; 8 to annul those local regulations or decisions of the organs of state power of provinces, autonomous regions, and municipalities directly under the Central Government that contravene the Constitution, the law or the administrative rules and regulations; 9 to decide on the ratification or abrogation of treaties and important agreements concluded with foreign states; 10 to institute systems of titles and ranks for military and diplomatic personnel and of other specific titles and ranks; 11 to institute state medals and titles of honour and decide on their conferment; 12 to decide on the granting of special pardons; 13 to decide, when the National People’s Congress is not in session, on the proclamation of a state of war in the event of an armed attack on the country or in fulfilment of international treaty obligations concerning common defence against aggression; 14 to decide on general mobilization or partial mobilization; 15 To decide on the declaration of the country as a whole or particular provinces, autonomous regions or municipalities directly under the Central Government to be under a state of emergency; and 16 to exercise such other functions and powers as the National People’s Congress may assign to it’. The NPCSC also has the power to appoint or remove Ministers in charge of ministries or commissions, the Auditor-General or the Secretary-General of the State Council; the appointment of the Chairman of the Central Military Commission; the appointment of the Chairman, the Vice-Chairmen and members of the National Supervisory Commission; the appointment of the President of the Supreme People’s Court, the Vice-Presidents and Judges of the Supreme People’s Court, members of its Judicial Committee and the President of the Military Court; the appointment of the Procurator-General of the Supreme People’s Procuratorate, the Deputy Procurators-General and procurators of the Supreme People’s Procuratorate, members of its Procuratorial Committee and the Chief Procurator of the Military Procuratorate, and the chief procurators of the people’s procuratorates of provinces, autonomous regions, and municipalities directly under the Central Government; and the appointment of plenipotentiary representatives abroad.30 The Constitution also highlights the role that the NPC and NPCSC play in supervising other state organs. The logic is that the State Council, the Central Military Commission, the National Supervisory Commission, the Supreme People’s Court, and the Supreme People’s Procuratorate are all appointed by the NPC and therefore are held responsible to it. The Chinese Constitution does not provide for a check-and-balance mechanism. Instead, all administrative, supervisory, judicial, and procuratorial organs of the state are subject to the Congress’s supervision. Since the NPC plenary session normally hold meetings only once a year, most of the time, this supervisory responsibility falls on the NPCSC. According to the Supervision Law,31 supervision acts conducted by congress standing committees of various levels include (1) hearing and deliberating special work reports of other state organs (听取专项 工作报告); (2) inspecting the implementation of laws and regulations (执法检查); (3) examining the archival filing of regulatory documents (备案审查)32; (4) inquiry and interrogatory (询问和质询); and (5) investigation of special issues (特定问题调查), et cetera. 150

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9.4  Making, amending, and repealing laws The rules on legislative power and legislative process are codified in the PRC legislation Law (PRCLL). 33 The PRCLL establishes an orderly legislative system for China. 34 The law not only divides the legislative authority between central and local governments, congress and government, but it also defines the boundary between the NPC and the NPCSC in the lawmaking area. The PRCLL stipulates that the NPC and NPCSC all ‘exercise the legislative power of the State’35 (国家立法权). But there is a division of labor. The NPC makes and amends the ‘basic law’ on criminal matters, civil matters, and state authorities, among others. Meanwhile the NPCSC makes and amends laws other than those made by the NPC; and when the NPC is not in session, the NPCSC partially supplements and amends laws made by the NPC, provided that the basic principles of such laws are not violated. 36 However, in reality, the number of laws enacted by the NPCSC is much more than the laws enacted by the NPC. According to research by Chinese scholars, between 1954 and 2012, the NPC enacted 46 laws, which amounted to 18.8% of the total number; on the other hand, the NPCSC made 199 laws, which was 81.2% of the total number of laws passed by NPC and NPCSC. 37 This is understandable given that the NPC only works for a few days every year and the NPCSC is a permanent body that has full-time members and functions every day. When NPC is not in session, the NPCSC exerts the national legislative authority.

9.4.1  Lawmaking process at the NPC At the NPC meetings, a legislative bill goes through the following steps to become law.

9.4.1.1  Introduction of a bill Like legislatures in other countries, although the laws are officially made by the legislature, the bills are mostly introduced by the government and other public bodies. The PRCLL confers the following bodies with the right to introduce bills before the NPC38: 1 the NPCSC, the State Council, the Central Military Commission, the Supreme People’s Court, the Supreme People’s Procuratorate, and the specialized committees of the NPC may introduce bills at the NPC sessions, and the Presidium (主席团) shall decide whether such bills should be put on the legislative agenda of the NPC; 2 the Presidium itself may also introduces bills to the NPC; 3 a delegation or a group of 30 or more co-signing deputies may introduce a bill to the NPC, and the Presidium shall decide whether the bill will be put on the agenda of a session of the NPC or before making this decision, first refer the bill to a relevant specialized committee for deliberation and an opinion on whether the bill should be put on the agenda.

9.4.1.2  Deliberation by all delegations Once a bill is put on the agenda of a NPC session, the proposer should provide an explanation for the bill at a plenary meeting of the session, and this bill shall be then deliberated by all delegations.39 151

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9.4.1.3  Deliberation by special committee Once a bill is on the agenda of a NPC session, it shall be deliberated by the relevant specialized committee, which shall submit a deliberation opinion to the Presidium and distribute the printed opinion to the session.40

9.4.1.4  Deliberation by law committee After the deliberation of the special committee, the bill shall be deliberated by the Law Committee, which would examine the opinions offered by the delegations and relevant specialized committee. After deliberation, the Law Committee shall submit to the Presidium a report on the deliberation result and the revised draft law and state any important differing opinions in the report. After deliberation and adoption at a meeting of the Presidium, the printed report and revised draft law shall be distributed to the NPC session.41

9.4.1.5  Withdrawal of a bill Before a bill is placed on the agenda of a NPC session to be voted on, and the proposer requests a withdrawal of that bill, the proposer shall state their reasons for the withdrawal, and the deliberation of the bill shall terminate upon the consent of the Presidium.42

9.4.1.6  Passing a bill After a revised draft law has been deliberated upon, the Law Committee shall revise the draft according to the opinions provided and produce a final version of the draft law, which shall be submitted by the Presidium to a plenary meeting of the NPC session for a vote. The bill will be passed by a simple majority of all the deputies present.43

9.4.1.7  Promulgation of the law A law enacted by the NPC shall be issued by a Presidential Order signed by the President of the PRC.44

9.4.2  Lawmaking process at the NPCSC At the NPCSC meetings, a bill goes through the following steps to become a law.

9.4.2.1  Introducing a bill At the NPCSC meetings, the following bodies can introduce bills to the NPCSC45: 1 The Chairmen’s council may introduce a bill to the NPCSC; 2 The State Council, the Central Military Commission, the Supreme People’s Court, the Supreme People’s Procuratorate, or a specialized committee of the NPC may introduce a bill to the NPCSC, and the Chairmen’s council shall decide whether the bill should be put on the agenda of a session of the NPCSC or before making such a decision, the council may first refer it to the relevant specialized committee for deliberation and a report. If the Chairmen’s council deems that any significant issue in the bill requires 152

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further research, it may recommend that the proposer revises and improves the bill before introducing it to the NPCSC; 3 A group of ten or more co-signing members of the NPCSC may introduce a bill to the NPCSC, and the chairmen’s council shall decide whether the bill will be put on the agenda of a session of the NPCSC or before making such a decision, the council may first refer it to the relevant specialized committee for deliberation and an opinion on whether the bill should be put on the agenda. If the chairmen’s council decides not to put the bill on the agenda of a session of the NPCSC, it shall report the decision to a session of the NPCSC or provide an explanation to the proposer. As a general rule, a bill on the agenda of a NPCSC session shall go through ‘deliberation at three sessions’ (三审制). In other words, a ‘three reading process’ is undertaken before the bill is put to a vote.46 There are, of course, exceptions. A bill on the agenda may be brought to a vote after deliberation at two NPCSC sessions if a consensus has been reached among all parties concerned on the bill, or the bill may be brought to vote after deliberation at just one NPCSC session if a consensus has been reached among all parties concerned on the bill that regulates a single matter or amends a part of a law.47

9.4.2.2  First reading When a bill is deliberated for the first time at a session of the NPCSC, an explanation provided by the proposer shall be heard at a plenary meeting, and preliminary deliberation shall be conducted at group meetings. At the first reading, the lawmakers’ focus is on the necessity and feasibility of enacting this law, and the general framework of the law.

9.4.2.3  Deliberation by group meetings When group meetings of the NPCSC are held to deliberate over a bill, the proposer shall dispatch personnel persons to gather opinions and answer questions.48

9.4.2.4  Deliberation by special committee A bill on the agenda of a session of the NPCSC shall be deliberated by the relevant specialized committee, which shall offer its deliberation opinion, and distribute the printed opinion to the Standing Committee.49

9.4.2.5  Deliberation by law committee A bill on the agenda of a session of the NPCSC shall be deliberated by the Law Committee based on the opinions provided by the NPCSC members and the relevant specialized committee. After this, the Law Committee shall produce a revision report or a report on the deliberation result and the revised draft law and state any important differing opinions in either of the reports.50

9.4.2.6  Solicitation of opinions from all concerned parties For a bill placed on the agenda of a session of the NPCSC, the Law Committee, the relevant specialized committee, and the operating divisions of the Standing Committee shall solicit the opinions of all the parties concerned at various forums, discussion meetings, and hearings.51 153

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A legislative hearing is required when the bill involves a major adjustment of interests, and this hearing should include the relevant representatives of grassroots organizations and groups, departments, people’s organizations, experts, deputies to the NPC, and parties concerned in the society. And when the bill involves very specialized issues and requires a feasibility evaluation, a discussion meeting shall be held to gather the opinions of the relevant experts, departments, deputies to the NPC, and other parties concerned.52

9.4.2.7  Solicitation of public opinion What needs to be mentioned is the legal requirement for the solicitation of public opinion. Once a bill is on the agenda of a NPCSC session, the law draft and an explanation of the drafting or amendment thereof shall be released to the public to solicit opinions, unless the Chairmen’s council decides not to do so. The public consultation shall not be less than 30 days.53

9.4.2.8  Second reading When a bill is deliberated for the second time at a session of the NPCSC, a report made by the Law Committee on the revision of the draft law and the major issues shall be heard at a plenary meeting, and further deliberation shall be conducted in group meetings.54

9.4.2.9  Third reading When a bill is deliberated for the third time at a session of the NPCSC, a report made by the Law Committee on the draft law shall be heard at a plenary meeting, and the revised draft law shall be deliberated upon in group meetings.

9.4.2.10  Withdrawal of a bill If before a bill on the agenda of a NPCSC session is put to vote, the proposer requests the withdrawal of the bill, the proposer shall state the reasons for the withdrawal, and further deliberation of the bill shall terminate upon the consent of the Chairmen’s council.55

9.4.2.11  Passing a bill After a revised draft law has been deliberated upon at a NPCSC session, the Law Committee shall revise it based on the opinions offered by the NPCSC members after deliberation and produce a final version of the draft law for voting, which shall be submitted by the Chairmen’s council to a plenary meeting of the NPCSC for voting. The bill shall be adopted by a simple majority of all the members of the NPCSC present.56

9.4.2.12  Promulgation of a law A law adopted by the NPCSC shall be issued by a Presidential Order signed by the President of the PRC.57

9.5  Constitutional review by the NPCSC The first and foremost power of NPCSC is to ‘interpret the Constitution and supervise its enforcement’.58 Internationally there are three models of constitutional review, i.e. review by 154

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a generalist court, review by a constitutional court or committee, and review by the legislature. China adopts the third model, that is, the NPSCS conducts constitutional review of legal documents. It is noteworthy that the NPCSC has never issued an official interpretation despite its formal power of interpreting the constitution and supervising its enforcement.59 In 2018, the Chinese Constitution underwent a major round of revision and one of those amendments was to add a ‘Constitution and Law Committee’ to the list of NPCSC special committees. This revision was to strengthen the constitutional review function of the NPCSC. The functions of Constitutional and law committee are to promote the implementation of the Constitution, carry out Constitutional interpretation, push forward constitutional review, and promote the popularization of the Constitution. Currently, the Chinese style constitutional review mechanism is realized mainly through the ‘filing and review’ (备案审查) system.60 The filing and review system has three features. Firstly, the law is not the subject of the review. The laws are made by the NPC and NPCSC, and it is not reasonable for the NPCSC to file and review the legal document enacted by itself or the NPC. The filing and review system targets the constitutionality of the ‘Normative Documents’ (规范性文件), which include local regulation (地方性法规), administrative regulation (行政法规), supervision regulation (监察法规), judicial interpretation (司法解释), local government regulation (地方政府规章), departmental regulation (部门规章), government decision and directive (政府决定、命令), congress resolution and decision (人大决议、决定), and other official documents. Secondly, the NPCSC and the LPCSCs are the main authoritative institutions that undertake this filing and review activity. From the 1980s, the LPCSCs started the practice of filing and reviewing local formative documents. From 2017, the chairperson of the law committee (i.e. the Constitution and law committee) started to report on the filing and review work at NPCSC sessions. According to the 2017 report, the division of labor between the NPCSC and LPCSCs in the field of filing and review is as follows: the NPCSC reviews the administrative regulations, local regulations, and judicial interpretations; the LPCSCs review the local government regulations, LPC and LPCSC resolutions and decisions, as well as local government decisions and directives.61 According to the 2019 report, the framework of filing and review system is that, the NPCSC reviews the administrative regulations, supervision regulations, local regulations, and judicial interpretations; the State council reviews local regulations, departmental regulations, and local government regulations; the LPCSCs review local government regulations at the same level and the level below, resolutions and decisions made by LPC and LPCSC at the level below, as well as normative documents issued by local governments of the same level; the CCP central committee and local Party committee review Party regulations (党内法规) and other Party official documents; the Central Military Commission reviews military regulations (军事规章) and other military formal documents.62 Thirdly, the filing and review is an ex post facto mechanism, not an ex ante examination. The purpose of filing and review is to check the legality of normative documents, and revoke and correct normative documents which are in conflict with the Constitution, laws and higher-level regulations. The NPCSC is the top authority in the filing and review hierarchical system. It receives reports from other state organs and petitions from citizens asking for a review of normative documents. For example, the Supreme People’s Court issued a judicial interpretation of the PRC marriage law which says that after marriage, the personal debt of a spouse is considered as joint marital debt. This judicial interpretation caused problems in practice. The NPCSC received thousands of letters from citizens asking the NPCSC to review this interpretation. Besides, at the 5th session of 12th NPC, a number of NPC deputies 155

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put forward 5 suggestions on this issue. In June 2017, the NPCSC law committee held discussion meetings and invited some NPC deputies and officials from the Supreme People’s Court to investigate this problem. In January 2018, the Supreme People’s Court issued a new interpretation on how to define the joint debt of a married couple.63 This incident is a typical example of how the citizens’ requests bring legal problems to the NPCSC’s attention and advance legal reform through the filing and review mechanism. Even when there are no citizens’ requests, the NPCSC also examines the constitutionality of regulations on its own accord. For example, the NPCSC discovered that some local regulations require the ethnic schools to conduct its teaching activities in their ethnic languages or only part of its curriculum is conducted in the Chinese language. The NPCSC subsequently decided that such regulation was in conflict with Article 19 of Constitution64 and demanded that the local authority make corrections to the regulation.65 Although the filing and review system is not a conventional constitutional review system which adjudicates the constitutionality of laws and government actions, it plays an influential role in improving the quality of local regulations and safeguarding the unity of the legal system. Nowadays the Party state puts more and more emphasis on the filing and review system in central and local governance.

Notes 1 Article 57 of PRC Constitution. 2 Ibid. 3 Article 61 of Constitution. The PRC Constitution was made in 1982 and amended in 1988, 1993, 1999, 2004, and 2018, respectively. 4 Rules of Procedure of the National People’s Congress of the People’s Republic of China (NPCROP). 5 Peng, Zhen. Explanation on revising the Constitution, http://www.npc.gov.cn/wxzl/gongbao/ 2000-12/26/content_5001302.htm (in Chinese). 6 Hu, Jintao. Report at 18th CCP Party Congress. 7 Article 7 of PRC Election Law (PRCEL). 8 Chen, Sixi. 县乡两级人大代表选举流程 (The procedure of electing deputies to county level people’s congresses), 中国民主法制出版社 (China Democracy and Legal System Press) 2011, pp.21–22. 9 Sun, Ying, ‘Municipal People’s Congress Elections in the PRC: a process of co-option’ (2014) 23 Journal of Contemporary China 183. 10 Interview with NPC staff, May 7, 2021. 11 Ibid. 12 Rod Hague and Martin Harrop, Comparative Government and Politics: An Introduction (8th edn), (Palgrave Macmillan 2010) 314. 13 Article 34 of the Constitution. 14 The name list of Guangdong deputies to the 13th NPC. http://gd.ifeng.com/a/20180201/6350940_0. shtml (in Chinese). 15 Xin, Chunying. Report on the Election work of deputies to the 13th NPC. http://news.china.com. cn/2018-02/24/content_50598843.htm (in Chinese). 16 Article 30 of PRCEL. 17 For the dual track process of nominating NPC deputies, see Sun, Zhe. 全国人大制度研究 (Study on the Chinese National People’s Congress) 法律出版社 (Law Press) 2004, pp.233–234. 18 Article 33 of PRCEL. 19 Article 31 of PRCEL. 20 Ibid. 21 Article 60 of the Constitution. 22 See Kevin J. O’Brien and Lianjiang Li, ‘Chinese Political Reform and the Question of ‘Deputy Quality’’, China Information, vol 8, No. 3 (Winter 1993–1994). 23 Article 70 of the Constitution.

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The National People’s Congress in China 24 See the introductions to special committees in NPC website, http://www.npc.gov.cn/englishnpc/ c2849/columns.shtml. 25 Article 65 of the Constitution. 26 Article 103 of the Constitution. 27 See Yang Sheng, ‘Court ruling, not anti-mask law, is unconstitutional’, , visited Feb 23rd 2020. 28 The 1979 local organic law has been revised in 1982, 1986, 1995, 2004, 2015 respectively. 29 29 Article 63 of the Constitution. 30 30 Article 67 of the Constitution. 31 The Supervision Law, i.e. the Law on the Supervision of Standing Committees of People’s Congresses at Various Levels came into force on January 1, 2007. 32 Also known as filing and review system. 33 The PRCLL was promulgated in 2000 and revised in 2015. This chapter adopts the 2015 version. 34 See Laura Paler. China’s Legislation Law and the Making of a More Orderly and Representative Legislative System, The China Quarterly, No. 182 ( Jun 2005), pp. 301–318. 35 Article 7 of PRCLL. 36 Article 7 of PRCLL. 37 Han, Dayuan, 论全国人民代表大会之宪法地位 (On the constitutional status of NPC), 法学评论 (Law Review), 2013(6), p.6. 38 Article 14 of PRCLL. 39 Article 18 of PRCLL. 40 Article 19 of PRCLL. 41 Article 20 of PRCLL. 42 Article 22 of PRCLL. 43 Article 24 of PRCLL. 4 4 Article 25 of PRCLL. 45 Article 26 of PRCLL. 46 Article 29 of PRCLL. 47 Article 30 of PRCLL. 48 Article 31 of PRCLL. 49 Article 32 of PRCLL. 50 Article 33 of PRCLL. 51 Article 36 of PRCLL. 52 Article 36 of PRCLL. 53 Article 37 of PRCLL. 54 Article 29 of PRCLL. 55 Article 40 of PRCLL. 56 Article 41 of PRCLL. 57 Article 44 of PRCLL. 58 Article 67 of the Constitution. 59 See Lin, Yan and Ginsburg, Tom. ‘Constitutional Interpretation in Lawmaking: China’s Invisible Constitutional Enforcement Mechanism’ (2015) 63 The American Journal of Comparative Law 467. 60 For an extensive analysis of filing and review system, see Keith J. Hand, ‘Understanding China’s system for addressing legislative conflicts: capacity, challenges and the search for legislative harmony’, Electronic copy available at: http://ssrn.com/abstract=2196047. 61 Shen, Chunyao. Report on the 2017 filing and review work, http://news.sina.com.cn/c/2017-1224/doc-ifypwzxq6134008.shtml (in Chinese). 62 Shen, Chunyao. Report on the 2020 filing and review work, http://www.npc.gov.cn/npc/c30834/ 202101/239178b5d03944c7b453ddc6bdd7c087.shtml (in Chinese). Also see Article 98 of PRCLL. 63 See Shen, Chunyao. Report on the 2018 filing and review work, https://www.sohu. com/a/284545418_693202. NPCSC legislative affairs commission filing and review office. 规范性文件备案审查案例选编 (Selected cases of filing and review), 中国民主法制出版社 (China Democracy and Legal System Press) 2000, p.95. 64 Paragraph 5 of Article 19 of the Constitution. 65 Shen, Chunyao. Report on the 2020 filing and review work, http://www.npc.gov.cn/npc/c30834/ 202101/239178b5d03944c7b453ddc6bdd7c087.shtml (in Chinese).

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10 THE LEGISLATIVE COUNCIL OF HONG KONG Eric Chan

10.1 Introduction The Legislative Council, also known as ‘LegCo’, is the legislature of the Hong Kong Special Administrative Region (HKSAR). Its authority is vested by the Basic Law,1 the miniconstitution of the region. The LegCo is also empowered and regulated by other relevant laws, such as the eponymous Legislative Council Ordinance (Cap. 542) (LCO). In this chapter, we will analyze the structure and composition of the Hong Kong Legislative Council, explain how its members are elected, examine some of its important powers, and briefly look at the legislative process.

10.2  Structure and composition of the Legislative Council The Hong Kong Legislative Council is a unicameral legislature with 90 members.2 It is chaired by the President of the Legislative Council, who is elected among the members, by the members.3 Notwithstanding its colonial past, Hong Kong does not have an English-style parliamentary system. The Chief Executive (CE), who heads the region and its government,4 is not a member of the legislature. But alongside his or her ministerial appointees, the CE would typically co-opt a few pro-government legislators into her ‘de facto cabinet, – the Executive Council.5 All LegCo members are elected. That is mandated by the Basic Law.6 Currently, the term of office of LegCo is fixed at four years.7 Although all LegCo members are elected, less than a quarter of them are elected by universal franchise. According to the Basic Law, the method for forming the Legislative Council is specified ‘in accordance with the principle of gradual and orderly progress’.8 Universal suffrage is only the ‘ultimate aim’.9 In 2021, Beijing made sweeping changes to Hong Kong’s electoral system, thereby expanding its control over the Legislative Council. The existing method for forming the Legislative Council is found in the Basic Law.10 The method involves three types of constituencies: (1) geographical constituencies (GCs), which elect 20 members through universal suffrage; (2) functional constituencies (FCs), which elect 30 members; and (3) the Election Committee (EC) constituency, which elects 40 members.11 158

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As we will see, the EC plays an important role in Legislative Council elections. Not only does it have its own constituency, it has a gatekeeping role in other constituencies too.

10.2.1  The Election Committee constituency The EC elects the CE of Hong Kong.12 It is made up of 1500 members from five sectors: (1) Industrial, commercial, and financial sectors; (2) The Professions; (3) Grassroots, labour, religious and other sectors; (4) Members of the Legislative Council, representatives of district organisations and other organisations; and (5) HKSAR members of relevant national organisations.13 These five sectors are further split into different subsectors. For example, the Professions sector is divided into subsectors including Accountancy, Legal, Medical.14 The EC is meant to be ‘broadly representative, suited to the actual situation of the HKSAR, and represents the overall interests of society’.15 After the electoral overhaul in 2021, the EC also elects part of the Legislative Council in its capacity as the EC constituency (ECC). The ECC forms one single constituency with 40 seats in LegCo.16 To vote in an election for the ECC, one must be one of the 1500 members of the EC.17 For perspective, there were over 3.7 million registered voters for the GCs in the 2016 general election.18 In other words, this tiny fraction of the entire voting population in Hong Kong gets to choose almost half of all the members in LegCo. There are three ways to join this exclusive committee and vote as part of the ECC, depending on the subsector one belongs to. First, a person can hold a ‘specified office’ and become an ex-officio member of the EC. Second, a person can be nominated to the EC by a ‘designated body’. Third, a person can be elected to the EC by a ‘specified entity’. Most of these specified offices, designated bodies, and specified entities have a pro-government or proChina background, thereby giving Beijing firm control over the selection of EC members. For example, let us look at the legal subsector, as it offers all three routes to membership. The legal subsector has 30 seats on the EC. The specified offices and ex-officio members of the legal subsector are the six Hong Kong members of the Committee for the Basic Law of the HKSAR under the Standing Committee of the National People’s Congress (NPCSC).19 The designated body which can nominate nine EC members is the China Law Society’s HK Council Members Association.20 The specified entities which can elect the remaining 15 EC members range from the professional bodies of local solicitors and barristers to progovernment entities such as the Hong Kong Legal Exchange Foundation Limited.21 To be elected as a member for the ECC, one must first be nominated as a candidate at an election. To be nominated, one must be at least 21 years old, be allowed to vote in a GC, have ordinarily resided in Hong Kong for the three years right before being nominated, and be a Chinese citizen and Hong Kong permanent resident with no right of abode in any country except China.22 Of course, one must also not be disqualified from being nominated or elected.23 Examples of those who are disqualified include prisoners, judicial officers, and those holding an office and employed in a government department or bureau.24 These requirements are the same for a candidate who wishes to run for a GC. In order to secure a nomination to run for one of the ECC seats, candidates must submit a nomination form to the Returning Officer (RO). The standard nomination form must be subscribed by two to four EC members from each of the five sectors.25 The form must also include the prescribed promissory oath and declarations,26 including a declaration signed by the candidate that he or she will uphold the Basic Law and pledge allegiance to the HKSAR.27 As we will see later, this declaration will not be taken at face value. 159

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The ECC uses the ‘first past the post’ voting system.28 As there are 40 seats, each EC member may vote for 40 candidates on the ballot paper, and the 40 candidates with the most number of votes will be elected.29

10.2.2  Geographical constituencies GCs represent different geographical areas of the HKSAR. There are ten GCs in total, spread across Hong Kong Island, Kowloon, and the New Territories.30 Each GC has two seats.31 These constituencies are where popular elections are held. To vote in elections for a GC, one must be a registered elector for the constituency.32 To be a registered elector, one must be at least 18 years old,33 be a Hong Kong permanent resident,34 hold an identity document,35 ordinarily reside in Hong Kong,36 and actually apply to become one.37 Naturally, those who are no longer eligible to be registered as an elector will be disqualified from voting.38 To be elected as a member for a GC, one must first be nominated as a candidate at an election. To be nominated, one must be at least 21 years old, be allowed to vote in a GC, have ordinarily resided in Hong Kong for the three years right before being nominated, and be a Chinese citizen and Hong Kong permanent resident with no right of abode in any country except China.39 Of course, one must also not be disqualified from being nominated or elected.40 Examples of those who are disqualified include prisoners, judicial officers, and those holding an office and employed in a government department or bureau.41 In order to secure a nomination to run for a GC seat, candidates must submit a nomination form to the RO.42 Each form must be subscribed by 100–200 registered voters of the relevant GC.43 After the electoral overhaul in 2021, the form must also be subscribed by two to four EC members from each of the five sectors.44 The nomination form must also include the prescribed promissory oath and declarations, including a declaration that candidate will uphold the Basic Law and pledge allegiance to the HKSAR.45 After the 2021 electoral overhaul, all GCs use the ‘first past the post’ voting system. Each voter may only vote for one candidate, and the two candidates who obtain the greatest number of votes in each constituency will be elected.46

10.2.3  Functional constituencies FCs are said to represent ‘the economic and professional sectors which are substantial and of importance in the community’.47 Currently, there are 28 FCs: (1) Heung Yee Kuk,48 (2) Agriculture and Fisheries, (3) Insurance, (4) Transport, (5) Education, (6) Legal, (7) Accountancy, (8) Medical and Health Services, (9) Engineering, (10) Architectural, Surveying, Planning and Landscape, (11) Labour, (12) Social Welfare, (13) Real Estate and Construction, (14) Tourism, (15) Commercial (first), (16) Commercial (second), (17) Commercial (third), (18) Industrial (first), (19) Industrial (second), (20) Finance, (21) Financial Services, (22) Sports, Performing Arts, Culture and Publication, (23) Import and Export, (24) Textiles and Garment, (25) Wholesale and Retail, (26) Technology and Innovation, (27) Catering, and (28) the FC for HKSAR deputies to the National People’s Congress, HKSAR members of the National Committee of the Chinese People’s Political Consultative Conference and representatives of relevant national organisations.49 All FCs have one seat each, except for Labour, which has three seats.50 In general, FCs are constituted differently from GCs. For instance, the right to vote in most FC elections generally depends on one’s membership or registration in a recognised 160

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commercial, economic, industrial, social, political advisory, or professional body represented in LegCo. Corporate voting also exists. In some FCs (e.g. Transport and Financial Services), it is the recognised corporate bodies operating in those industries, instead of the people working in those industries, which can vote. There are generally three types of FCs electors.51 The first type is members of certain umbrella organisations who can vote at those organisations’ general meetings. These organisations may be incorporated or unincorporated, and their voting members may include individuals or corporates, or both, depending on their membership rules.52 An example of FCs that are only composed of these electors is Commercial (First), which consists of ‘corporate members of The Hong Kong General Chamber of Commerce entitled to vote at general meetings of the Chamber’.53 Other examples include Commercial (second)54 and Industrial (First).55 The second type is the major organisations or companies that are said to be representative of the relevant sectors. An example of FCs that are composed only of these electors is Finance, which consists of banks, restricted licence banks, and deposit-taking companies.56 Another is Insurance.57 Some of these FCs even have their constituents expressly named in the LCO. An example is Transport, which consists of ‘the bodies named in Schedule 1A [of the LCO]’,58 including companies and associations, such as the MTR Corporation Limited, Hong Kong’s subway operator, and the Cathay Pacific Catering Services (H.K.) Limited, the catering arm of Hong Kong’s flag carrier. The third type is the individual professionals who are recognised as electors. An example of FCs that are composed only of recognised professionals is Legal,59 which consists of solicitors,60 barristers,61 government lawyers,62 and LegCo’s full-time legal advisers,63 but not law firms. Others examples include Accountancy64 and Medical and Health Services.65 It is therefore clear that both natural persons and corporations may be registered to vote in FC elections. However, they may be registered to vote in one FC only.66 Further, natural persons must be registered as electors for a GC or be eligible and have applied to be so registered.67 They must also not be disqualified from being registered.68 For corporations that wish to vote in their capacity as a member of a certain prescribed body, they must have been a member of that body for at least three years immediately before applying to be registered to vote.69 Corporations applying to vote in certain prescribed FCs must also have been operating for the past three years.70 Corporations must also pick an authorised representative to cast their vote in the election.71 Such representative must, among other requirements, have a ‘substantial connection with the corporate elector’,72 which can be established if one is a member, partner, officer, or employee of that corporate body.73 A corporate-authorised representative must not be registered or have applied to be registered to vote in his or her personal capacity for the same FC,74 or be disqualified from being registered or voting.75 To be elected as a member for an FC, one must first be nominated as a candidate at an FC election. What is required of an FC candidate is similar to that of a GC candidate.76 But unlike in GCs, foreign citizens can run as candidates for certain FCs.77 Also, an FC candidate must usually either be (1) registered and eligible to be registered as an elector for that constituency or (2) show that one has a ‘substantial connection with the constituency’.78 A person can have a substantial connection with the FC by ‘(i) being a member, partner, officer or employee of a corporate elector of the constituency or a corporate member of such a corporate elector’,79 or ‘(ii) belonging to a class of persons specified as being electors of the constituency’.80 In order to secure a nomination to run for an FC seat, candidates must submit a nomination form to the RO. The standard nomination form must be subscribed by 10–20 electors 161

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of the relevant FC, as well as by 2–4 EC members from each of the 5 sectors.81 The form must also include the prescribed promissory oath and declarations,82 including one signed by the candidate that he or she will uphold the Basic Law and pledge allegiance to the HKSAR.83 If only one candidate has been validly nominated for those single-seat FCs after nominations have closed, that candidate will be automatically elected.84 From the birth of the HKSAR in 1997 up to the electoral overhaul in 2021, about 40% of the FCs elected their respective representatives without any actual contest.85 In fact, there had never been an electoral contest for the Heung Yee Kuk and Commercial (second) FCs until 2021. All FCs use ‘first past the post’.86 If the FC has one seat, each elector may vote for one candidate only, and the candidate with the most votes wins.87 For Labour, which has three seats, each elector may vote for three candidates, and the three candidates with the most votes win.88 Voting power also differs greatly across FCs. First, some votes are weighted more than others, as the size of FCs can vary dramatically. In 2018, the smallest single-seat FC composed only of natural persons, Heung Yee Kuk, had only 148 registered voters. However, the largest of such FCs, Education, had 85,705. In fact, the five largest FCs in 2018 made up over three quarters of the entire traditional FC electorate that year.89 In this way, a vote in smaller FCs is weighted more than a vote in larger FCs.90 Second, some corporations can cast more votes than others. Large companies like conglomerates are able to ‘pack’ one or more FCs with multiple corporate electors that are subject to the voting control of the parent company.91 Through this practice of ‘packing’, corporate empires in effect can control and cast more votes than Small and Medium Enterprises.92 It has been argued that corporate voting in FCs is inconsistent with Article 26 of the Basic Law,93 because Article 26 precludes the legislature from conferring the right to vote upon entities other than permanent residents. However, that argument was rejected by the Hong Kong Court of Appeal. Looking at the context of Article 26, the Court of Appeal ruled that ‘functional constituencies, embracing corporate voting, have played a central role’94 in Hong Kong’s electoral development since 1985, and taking into account the themes of gradual progress in electoral development and of participation of major organisations as electors, it would have been surprising if the drafters of the Basic Law had intended to endorse a change as fundamental as the abolition of corporate voting for FCs.95 The Court concluded that while Article 26 confers permanent residents the right to vote, it does not say that it is impermissible to confer the right on anyone else,96 such as corporations.

10.2.4  Split constituencies and split voting in the Legislative Council Splitting LegCo’s constituencies into ECCs, GCs, and FCs not only divides LegCo’s structure and composition. It also affects how LegCo votes. The procedures for voting on bills and motions are set out in Annex II of the Basic Law. Unless otherwise specified in the Basic Law, bills introduced by the government only need a simple majority vote of the members who are present to pass. However, motions, bills, or amendments to government bills introduced by individual members need a majority vote of members returned by ECCs, plus a majority vote of members returned by GCs and FCs.97 This arrangement, often called ‘split voting’,98 means that motions, bills, or amendment to a bill proposed by an individual member can theoretically still be vetoed even though it is supported by an overall majority in the Council. 162

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10.2.5  Disqualification of candidates and lawmakers As mentioned above, when prospective candidates run for the Legislative Council, they must declare that they will uphold the Basic Law and pledge allegiance to the HKSAR. Since 2016, the government began using this declaration to bar certain candidates from running for office. In the run-up to the 2016 general election and the 2018 by-election, certain candidates campaigning on platforms such as ‘localism’ and ‘democratic selfdetermination’ saw their nominations invalidated, since the RO did not believe they genuinely intended to uphold the Basic Law and pledge allegiance to the HKSAR.99 In 2020, after Beijing imposed the National Security Law on Hong Kong, 12 opposition candidates were also disqualified from the general election scheduled for that year, as their nominations were ‘not in compliance with the requirement under the Legislative Council Ordinance’.100 In 2021, the Candidate Eligibility Review Committee was established to assess and validate the eligibility of candidates for the Legislative Council. Prospective candidates will be screened by the National Security Department of the Hong Kong police. The Committee for Safeguarding National Security of HKSAR (National Security Committee), established under the National Security Law,101 will then decide whether a candidate fulfils the legal preconditions on upholding the Basic Law and bearing allegiance to the HKSAR.102 Decisions made by the Candidate Eligibility Review Committee pursuant to the National Security Committee’s review advice are not subject to any judicial proceedings.103 After an election, when members of the Legislative Council assume office, they are constitutionally required to swear to uphold the Basic Law and swear allegiance to the HKSAR in accordance with law.104 In that regard, the Oaths and Declarations Ordinance (Cap. 11) (ODO) states that a member of the Legislative Council shall, as soon as possible after the commencement of his term of office, take the Legislative Council Oath105; any member who declines or neglects to take the Legislative Council Oath must vacate his office if he has already entered on it and be disqualified from entering on his office if he has not entered on it.106 In the 2016 general election, several ‘localist’ activists were elected to the Legislative Council. On 12 October 2016, at the first meeting of the freshly elected Legislative Council, its members were due to take the Legislative Council Oath. However, some of them took the opportunity to broadcast other political messages instead. Leung Chung-hang Sixtus and Yau Wai-ching, two newly-elected ‘localist’ lawmakers, purported to take the LegCo oath upon request, but they departed from the requisite text by using terms such as ‘Hong Kong nation’ and ‘Sheen-na’, a derogatory reference to China. Four other lawmakers also purported to take the oath, but they read out the oath in a questionable manner, such as reading it very slowly or adding their own messages before and after reading the oath.107 In the same week, the government commenced court proceedings and sought declarations inter alia that the invalid oaths taken by Leung and Yau disqualified them from assuming their offices as LegCo members, and the President had no power to re-administer their oaths. But on 7 November 2016, before the Court of First Instance (CFI) delivered its ruling, the NPCSC, which is the permanent body of China’s highest organ of state power, issued an Interpretation of Article 104 of the Basic Law, which inter alia provides that ‘[i]f the oath taken [by a public officer specified in Article 104 of the BL] is determined as invalid, no arrangement shall be made for retaking the oath’.108 The CFI later ruled that Leung and Yau had declined to take the LegCo oath, and they were thus disqualified from entering their office under the ODO. With this court victory, 163

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the government brought additional proceedings to disqualify the four other pro-democracy lawmakers. In these four cases, the CFI also held that it is a constitutional requirement that a member-elect of the LegCo must, before assuming office, properly and validly take the LegCo Oath both in form and in substance as required by the law, meaning the oath-taker must (1) take the LegCo Oath in exactly the same form and content as prescribed under the ODO; (2) do it solemnly and sincerely; and (3) sincerely believe in and strictly abide by the pledges in the oath at the time of taking the oath.109 If the oath-taker commits any intentional acts or conduct, which are found not to be compliant with the oath-taking legal requirements, he or she shall be regarded in law to have declined or neglected to take the LegCo Oath.110 The CFI found that all four lawmakers had failed to fulfil at least one of those requirements and, therefore, declined or neglected to take the LegCo Oath and were all disqualified from entering on their offices. Three of the ex-lawmakers appealed, but the Court of Appeal upheld the CFI’s findings against them.111

10.3  Powers of the Legislative Council According to Article 73 of the Basic Law, ‘[the Legislative Council] shall exercise the following powers and functions: 1 To enact, amend or repeal laws in accordance with the provisions of this Law and legal procedures; 2 To examine and approve budgets introduced by the government; 3 To approve taxation and public expenditure; 4 To receive and debate the policy addresses of the Chief Executive; 5 To raise questions on the work of the government; 6 To debate any issue concerning public interests; 7 To endorse the appointment and removal of the judges of the Court of Final Appeal and the Chief Judge of the High Court; 8 To receive and handle complaints from Hong Kong residents; 9 If a motion initiated jointly by one-fourth of all the members of the Legislative Council charges the Chief Executive with serious breach of law or dereliction of duty and if he or she refuses to resign, the Council may, after passing a motion for investigation, give a mandate to the Chief Justice of the Court of Final Appeal to form and chair an independent investigation committee. The committee shall be responsible for carrying out the investigation and reporting its f indings to the Council. If the committee considers the evidence suff icient to substantiate such charges, the Council may pass a motion of impeachment by a two-thirds majority of all its members and report it to the Central People’s Government for decision; and 10 To summon, as required when exercising the above-mentioned powers and functions, persons concerned to testify or give evidence’. In addition, Article 75(2) states that: ‘[t]he rules of procedure of the Legislative Council shall be made by the Council on its own, provided that they do not contravene this Law’. In other words, the Legislative Council also has the power to make its own Rules of Procedure. Some of the more important powers of the Legislative Council will now be discussed in greater detail. 164

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10.3.1  Making Rules of Procedure The Rules of Procedure are the internal rules which regulate the proceedings of the Legislative Council. They define how members speak in meetings,112 how points of order are dealt with,113 how bills and amendments are processed,114 how motions are moved and debated,115 how voting is done,116 and so on. They are not laws, but they bind all Members.117 The Rules of Procedure also retain and regulate a number of committees inherited from the colonial era, including, for example, the Finance Committee, Committee on Rules of Procedure, House Committee, Bills Committees, Panels, and Select Committees.118 Committees are natural extensions of the legislature.119 Through these committees, Members carry out much of the work of the Legislative Council.120 We will look at some of the committees more closely, but it would be useful to introduce the House Committee first. The House Committee is LegCo’s multi-purpose committee. It comprises all Members except the President121 and may consider practically any matter relating to the business of the Council.122 It is also a platform for members to exchange views with the government; its chairman and vice-chairman meet with the government regularly to follow up on matters raised by members.123 It also plays a role in the law-making process, which we will come to soon. The Rules of Procedure are made and amended by Member’s motions.124 Although amendments are usually considered by the Committee on Rules of Procedure first,125 any member can propose to amend the rule book at a Legislative Council meeting. But because of the ‘split voting’ requirement on Member’s motions, amending the rule book would need the support of a majority of members returned by the ECC, plus a majority vote of members returned by GCs and FCs, respectively. Therefore, in the unlikely event that the pro-Beijing camp does not command a majority in all types of constituencies, it will be more difficult to push through controversial amendments.126 The President of the Legislative Council often has to apply the Rules of Procedure and decide on points of order or requests by members regarding motions and bills. The President’s rulings become precedents which guide the interpretation and application of the Rules of Procedure.127 And if the Rules of Procedure are silent on a certain matter, the President gets to decide the practice and procedure to be followed.128 As we will see, this sweeping power has changed the way in which the Legislative Council makes laws.

10.3.2  Making, amending, and repealing laws The Legislative Council legislates, but only ‘in accordance with the provisions of [the Basic] Law and legal procedures’.129 Therefore, the Legislative Council’s law-making powers are necessarily confined by other provisions in the Basic Law and by the Rules of Procedure.130 According to the Basic Law, the Government of the HKSAR is responsible for drafting and introducing bills, motions, and subordinate legislation.131 Article 74 states that Members may also introduce bills in accordance with the provisions of the Basic Law and legal procedures, but their bills must not relate to public expenditure, political structure, or government operation. And if Members wish to introduce bills relating to government policies, they would also need the written consent of the CE first.132 A bill goes through a ‘three reading process’ to become law. The process includes these stages: First Reading, Second Reading, committee stage, Report Stage, and Third Reading.133 165

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10.3.2.1  First reading The First Reading of a bill takes place at a meeting specified by the person in charge of the bill (either a member or public officer). No debate is allowed at this stage.134 The Clerk will read the short title of the bill for the first time, and the bill is set down for a second reading.135

10.3.2.2  Second reading Immediately afterwards, the President of the Legislative Council will call the person in charge of the bill to move the motion ‘That the bill be now read the second time’.136 The debate on this motion will be about the general merits and principles of the bill.137 The person in charge of the bill will speak first, usually explaining the purposes of the bill and calling for members’ support. Then, the debate will be adjourned, and the bill normally goes to the House Committee.138 At a later meeting, the House Committee will decide whether to form a Bills Committee to study the bill before the Second Reading debate resumes. A Bills Committee considers the general merits and principles as well as the detailed provisions of the bill assigned to it; it may also consider amendments to the bill.139 While not strictly necessary, a Bills Committee will be formed in most cases.140 A Bills Committee will hold meetings to scrutinise the proposed law. Members of the committee will deliberate among themselves, meet with the government, and even receive views from the public. As soon as the Bills Committee has finished considering the bill, it will report back to the House Committee and advise whether it supports the bill. Having said all that, in order to resume the Second Reading debate, the person in charge of the bill only needs to consult the chairman of the House Committee and then give at least 12 clear days’ written notice to the Clerk.141 This was exactly what the government did in 2019 to fast-track the infamous extradition bill, which would have allowed Hong Kong residents to be extradited to the Mainland to face trial for offences allegedly committed there.142 A Bills Committee had been formed in April 2019, but it became embroiled in a bitter dispute over procedural matters.143 Work came to a halt. In May, the government wrote to the chairman of the House Committee and asked to have the Second Reading debate resumed,144 thereby circumventing the Bills Committee. On 12 June 2019, when the Second Reading debate was supposed to resume, protestors surrounded the Legislative Council Complex and prevented lawmakers from entering the legislature. After months of protests, this bill was formally withdrawn in October 2019. Ordinarily, when the Second Reading debate resumes in the Council, a member of the Bills Committee will speak first and report on the committee’s work.145 After all members who wish to speak have spoken, the person in charge of the bill gets to reply, and the LegCo President will put the motion that the bill be read the second time to a vote.146 If it is defeated, no further proceedings will be taken on the bill.147 But if the motion is carried, the Clerk will read the short title of the bill for the second time, and the bill normally goes to the committee of the whole Council.148

10.3.2.3  Committee stage The Legislative Council then becomes a committee of the whole Council, and the President becomes its Chairman. The committee of the whole Council is essentially a working 166

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committee to fine-tune the details of a bill after its general merits and principles have been considered by a Bills Committee.149 The committee of the whole Council meets right after the short title of the bill is read the second time. Members will usually go through the bill clause by clause and decide what amendments to make, if any.150 The Chairman will normally order a joint debate on the clauses and their amendments. After the committee has completed all proceedings pertaining to the bill, the Council resumes.

10.3.2.4  Report stage At the resumed Council, the person in charge of the bill will report that the bill has been passed by the committee of the whole Council,151 and move a motion that the report be adopted by the Council.152 This motion is voted on right away without debate. If the motion is defeated, no further proceedings shall be taken on the bill; but if it is carried, the Council will be deemed to have ordered the bill to be set down for a third reading.153

10.3.2.5  Third reading At this stage, there may be short and succinct speeches confined to whether the bill should be supported.154 Also, amendments of a material character are not allowed.155 If all members who wish to speak have spoken, the President will put the motion to vote. If it is defeated, no further proceedings can be taken on the bill; but if it is carried, the short title of the bill will be read the third time, and the bill is passed.

10.3.2.6 Filibustering Before 2021, filibustering was a common feature in the Legislative Council as it was a tactic regularly used by pro-democracy lawmakers to impede governmental action. However, in 2020, Beijing effectively expelled four opposition lawmakers for allegedly failing to fulfil the legal requirements and conditions on upholding the Basic Law and pledging allegiance to the HKSAR, and in response, most of the other opposition lawmakers resigned.156 Facing virtually no resistance, the remaining pro-establishment members amended the rulebook to further limit filibustering,157 though this remains technically possible. There are three ways to filibuster a bill in the Legislative Council. The first and easiest way to filibuster is to call for a quorum count. The quorum of the Council is at least one half of all its members (i.e. 35 members) (including the President),158 while the quorum of the committee of the whole Council is only 20 (including the Chairman).159 If the President’s attention is drawn to the fact that a quorum is lacking, he must direct the Members to be summoned.160 Meanwhile, proceedings will be suspended, and the quorum bell will start ringing. If there is still no quorum after 15 minutes, the LegCo President must adjourn the Council.161 Through repeated quorum calls, a member can delay a bill by multiple 15-minute intervals, or even longer if the meeting had to be adjourned. This tactic was commonly used by pro-democracy lawmakers.162 To encourage attendance, there were plans to fine lawmakers a day’s salary if they are absent without a valid reason from a meeting that was adjourned due to a lack of quorum.163 The second and conventional way to filibuster is for lawmakers to speak for as long as possible in debates. Generally, a member cannot speak for more than 15 minutes at a time,164 and for more than once on a question.165 However, a member may speak for more than once 167

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in the committee of the whole Council.166 As a result, filibustering by this method tended to occur more frequently at the committee stage of the lawmaking process. The 15-minute time limit on speaking, however, is subject to any ‘recommendations’ made by the House Committee and, as such, can be further reduced.167 In tandem with the latest amendment to the Rules of Procedure, the House Committee decided in 2021 that members may only speak for 5 minutes at a time when a bill is at the committee stage.168 Further, under the new Rules of Procedure, the President or the Chairman of a committee of the whole Council may set a time limit on the consideration of individual bills.169 This leaves very limited room for lawmakers to filibuster by speaking. The third way to filibuster is for lawmakers to move as many amendments to the bill as possible in the committee of the whole Council. However, there are limits on what amendments are allowed. For example, amendments must not, in the opinion of the Chairman, be frivolous or meaningless.170 Also, notice of amendments must be given at least seven clear days before the day on which the bill is to be considered in committee. Otherwise, the amendment cannot be moved without the leave of the LegCo President/Chairman.171 Generally, a filibuster can be cut short. In 2012, two members decided to filibuster the government’s controversial Legislative Council (Amendment) Bill 2012, which proposed to ban any member who resigns from contesting a by-election held within six months in the same legislative term.172 The duo managed to propose a staggering 1306 committee stage amendments. In the joint debate that ensued, the filibusterers spoke for many times and called for several quorum counts.173 As a result, the joint debate went on for 33 hours spanning seven days with no end in sight. The filibuster appeared to be working, until the President stepped in and ended the debate. The LegCo President had invoked Rule 92 of the Rules of Procedure. It reads: ‘In any matter not provided for in these Rules of Procedure, the practice and procedure to be followed in the Council shall be such as may be decided by the President who may, if he thinks fit, be guided by the practice and procedure of other legislatures’. According to the President, since the Rules of Procedure ‘do not provide for the manner in which a joint debate in the Committee stage should be conducted and how the Committee stage may be ended’,174 he could exercise the power under Rule 92 and ‘make a decision on how to conduct a joint debate and how to close such a debate’.175 One of the filibusterers brought a legal challenge against the President’s ruling, and the dispute went all the way up to the Hong Kong Court of Final Appeal (CFA).176 The CFA confirmed that the courts will exercise jurisdiction to determine the existence of a power, privilege, or immunity of the President of LegCo, but they will not exercise jurisdiction to determine the occasion or the manner of exercise of any such powers, privileges, or immunities either by LegCo or the President.177 Against this background, the CFA held that the President did have the power to end a legislative debate, because this power was inherent in his power granted under Article 72(1) of the Basic Law to ‘preside over meetings’, and it was not for the Court to consider whether that power was exercised properly or whether the impugned decision to close the debate was an unauthorised making of a rule of procedure.178 In case the above measures prove to be inadequate to deal with filibusterers, the President may also eject a member whose conduct is ‘grossly disorderly’ from the Council or the committee for the remainder of that meeting.179 And if that is insufficient with respect to such ‘grossly disorderly conduct’, pro-government lawmakers added a new rule which empowers the President to name the misbehaving member, so that other members can vote to suspend such member from the service of the Council for at least one week.180 168

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After the National Security Law was imposed by Beijing, state media has even suggested that filibustering as practiced by pro-democracy lawmakers could be illegal.181 According to Article 22 of the National Security Law, anyone who organises, plans, commits, or participates in the act(s) of seriously interfering in, disrupting, or undermining the performance of duties and functions in accordance with the law by the body of central power of the People’s Republic of China or the body of power of the HKSAR by force or threat of force or other unlawful means with a view to subverting the State power shall be guilty of an offence; principal offenders or persons who commit an offence of a grave nature could face life imprisonment. In any event, after the drastic changes to Hong Kong’s electoral system in 2021, and with the pro-government camp firmly in control of the Legislative Council, filibustering may have become a practice of the past.

10.3.2.7  Executive veto Even if a bill has been passed, it does not necessarily become law. Under the Basic Law, a bill passed by LegCo takes effect only after it is signed and promulgated by the CE of the HKSAR.182 If the CE considers that a bill passed by the Legislative Council is not compatible with the overall interests of the HKSAR, she may return it to the Legislative Council within three months for reconsideration.183 If the Legislative Council passes the original bill again by at least a two-thirds majority of all the members, the CE must sign and promulgate it. If the CE refuses to sign a bill passed by the Legislative Council for the second time, and if there is still no consensus after consultations, the CE may dissolve the Legislative Council.184 In addition, under the Basic Law, Beijing retains a veto over laws ‘regarding affairs within the responsibility of the Central Authorities or regarding the relationship between the Central Authorities and the Region’,185 which were enacted by the Legislative Council.

10.3.3  Endorsing the appointment and removal of senior judges Under the Basic Law, the CE is responsible for appointing judges.186 However, to appoint or remove judges of the CFA and the Chief Judge of the High Court, he or she must first obtain the endorsement of the Legislative Council.187 The Legislative Council therefore vets the most senior judicial appointments and removals in Hong Kong. The CFA is the highest court in Hong Kong and is vested with the power of final adjudication in the region.188 It comprises the Chief Justice and three permanent judges,189 as well as non-permanent Hong Kong judges and judges from other common law jurisdictions who sit on the Court.190 Meanwhile, the High Court is the second-highest court in Hong Kong. It consists of the Court of Appeal and the CFI and is led by the Chief Judge of the High Court.191 While the Legislative Council has a substantive power to endorse senior judicial appointments and removals, it is also recognised that the Legislative Council should, as a matter of convention, accept nominations made by the Commission.192 Since the establishment of the HKSAR in 1997, the Legislative Council has endorsed all judicial appointments that have come before it. And there have been no attempts to remove a senior judge. 169

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10.3.3.1  Endorsing judicial appointments All judges are appointed by the CE based on the recommendation of ‘an independent commission composed of local judges, persons from the legal profession and eminent persons from other sectors’,193 called the Judicial Officers Recommendation Commission.194 According to established practice,195 before the CE publicly announces her acceptance of the Commissions’ recommendation, the government will inform the House Committee and provide sufficient information on the recommended appointee to the Legislative Council. The House Committee would then decide whether to set up a subcommittee to consider the appointment. If one is set up, it will discuss the matter as soon as possible. A public hearing might be held to collect views from the public on the proposed appointment,196 but none was ever held. After deliberations, the subcommittee will report back to the House Committee, which will indicate through a non-binding vote whether it supports the appointment. The government will then introduce a motion to seek the Legislative Council’s endorsement of the appointment. The motion will be moved, debated, and voted on at a Council meeting. If the motion is passed, the CE will appoint the judge.

10.3.3.2  Endorsing judicial removals A judge can only be removed for inability to discharge his or her duties or for misbehaviour, based on the recommendation of a tribunal appointed by the Chief Justice with at least three local judges.197 Meanwhile, the Chief Justice can only be investigated only for inability to discharge his or her duties, or for misbehaviour, by a tribunal appointed by the CE with at least five local judges, and be removed by the CE on the recommendation of the tribunal and in accordance with the procedures prescribed in the Basic Law.198 The Legislative Council vets judicial removals in largely the same way as it vets judicial appointments.199 Before the CE’s decision on the tribunal’s recommendation is made public, the government will inform the House Committee and the Legislative Council. The House Committee would decide whether to appoint a subcommittee. If one is appointed, it will discuss the matter as soon as possible. Then, the subcommittee will report back to the House Committee, and the government will introduce a motion to seek the Legislative Council’s endorsement of the recommended removal. If the motion is passed, the CE will remove the judge.

10.3.4  Impeaching the Chief Executive According to Article 73(9) of the Basic Law, the Legislative Council may impeach the CE for a serious breach of law or dereliction of duty. The impeachment process can be summarised in five steps: 1 At least one-fourth of all Legislative Council Members will need to jointly sign a notice of a motion for investigation. This motion should contain charges against the CE of a serious breach of law or dereliction of duty and give a mandate to the Chief Justice to form and chair an independent investigation committee to investigate the charges. 2 If the CE does not resign, the Legislative Council will debate and vote on the motion for investigation. Since that motion is introduced by a member and not the government, under Annex II of the Basic Law, it needs a majority vote of members returned by ECCs, plus a majority vote of members returned by GCs and FCs to pass. 170

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3 If the motion is passed, the Legislative Council will give a mandate to the Chief Justice to form and chair an independent investigation committee to investigate the charges. 4 If the investigation committee considers the evidence sufficient to substantiate the charges, a motion of impeachment may be moved in the Legislative Council. This motion needs a two-thirds majority of all Legislative Council Members to pass. 5 If the motion of impeachment is passed, the resolution will be reported to the Central People’s Government for a decision. So far, there have been three attempts to impeach the CE. They all failed. In May 2012, then CE Donald Tsang, Hong Kong’s second CE, was accused of serious dereliction of duty for allegedly having ‘accepted advantages or extravagant entertainment offered by other persons without making any declaration, failing to fulfill the duties under Article 47 of the Basic Law that the Chief Executive must be a person of integrity and dedicated to his or her duties’.200 However, due to a backlog in the Legislative Council’s business, the motion for investigation could not be dealt with before Tsang’s term expired in June 2012.201 In December 2012, Tsang’s successor, CY Leung, was accused of serious breaches of law and dereliction of duty for allegedly making false statements about illegal structures in his home.202 In January 2013, the motion for investigation was vetoed by a majority of FC members.203 In 2017, CY Leung was again accused of serious breaches of law and dereliction of duty. This time, it was alleged that he improperly interfered with the affairs of a select committee set up to investigate matters about an agreement he had with Australian firm UGL regarding its takeover of real estate firm DTZ Holdings, of which Leung was a director. This agreement saw Leung pocket £4 million while he was CE.204 Again, the motion for investigation was vetoed by a majority of FC members.205

Notes 1 Article 66 of the Basic Law (BL). 2 Annex II of the BL. 3 Article 71 and 72(1) of the BL. 4 Article 43 and 48(1) of the BL. 5 The Executive Council is an organ for assisting the Chief Executive in policymaking. The Chief Executive must consult it before making important policy decisions and introducing bills to the Legislative Council: Articles 54 and 56 of the BL. See also Joyce Ng, What exactly is Hong Kong’s Executive Council and why does it matter? (South China Morning Post, 23 June 2017) accessed 19 March 2020. 6 Article 68(1) of the BL. 7 Article 69 of the BL. However, after the pro-democracy camp won a landslide victory in the District Council elections in 2019, and amid the COVID-19 pandemic in 2020, the government invoked emergency powers and postponed the 2020 LegCo general election on ‘openness’, ‘fairness’, and public health grounds. The term of the Sixth LegCo therefore lasted over 5 years. 8 Article 68(2) of the BL. 9 ibid. 10 Article 68(3) and Annex II of the BL. 11 Annex II of the BL. 12 Annex I of the BL. 13 ibid. 14 ibid. 15 ibid. 16 Section 21B of the LCO.

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Eric Chan 1 7 Section 48(3D) of the LCO. 18 Electoral Affairs Commission, Report on the 2016 Legislative Council General Election, p.186. 19 Paragraph 5D of the Schedule to the Chief Executive Election Ordinance (Cap. 569) (CEEO). 20 Paragraph 5R of the Schedule to the CEEO. 21 Annex 6 to the Schedule to the CEEO. Previously, all 30 EC members for the legal subsector were elected, and all practicing solicitors and barristers could register to vote in the legal subsector, which has generally elected pro-democracy members to the EC. 22 Section 37(3A)(a), (b), (d), (e) of the LCO. 23 Section 37(3A)(c) of the LCO. 24 See ss 39(1) and (5) of the LCO. 25 Section 7(3) of the Legislative Council (Subscribers and Election Deposit for Nomination) Regulation (Cap. 542C). 26 Section 40(1)(b) of the LCO. 27 Section 40(1)(b)(i) of the LCO. 28 Section 52A(1) of the LCO. 29 Section 52A(2) and (5) of the LCO. 30 They are: (1) Hong Kong Island East, (2) Hong Kong Island West, (3) Kowloon East, (4) Kowloon West, (5) Kowloon Central, (6) New Territories South East, (7) New Territories North, (8) New Territories North West, (9) New Territories South West, and (10) New Territories North East: Schedule 6 to the LCO. 31 Section 19(2) of the LCO. 32 Section 48(1) of the LCO. 33 Section 29 of the LCO. 34 Section 27 of the LCO. 35 Section 30 of the LCO. 36 Section 28 of the LCO. 37 Section 24(1)(b) of the LCO. 38 Section 53(1) of the LCO. Members of armed forces and mentally incapacitated persons are neither allowed to vote or be registered as electors: see ss 31(1) and 53(5) of the LCO. 39 Section 37(1)(a), (b), (d), (e) of the LCO. 40 Section 37(1)(c) of the LCO. 41 See ss 39(1) and (5) of the LCO. 42 Section 10(1) of the Electoral Affairs Commission (Electoral Procedure) (Legislative Council) Regulation (Cap. 541D). 43 Sections 7(1)(a) of the Legislative Council (Subscribers and Election Deposit for Nomination) Regulation (Cap. 542C). 4 4 Sections 7(1)(b) of Cap. 542C. 45 Section 40(1)(b) of the LCO. 46 Section 49 (1) and (2) of the LCO. 47 Constitutional Affairs Bureau, ‘Administration’s Responses to Points raised on 7 May by Members of the Bills Committee on the Legislative Council (Amendment) Bill 1999’ accessed 19 March 2020. 48 The Heung Yee Kuk is a statutory advisory and consultative body for the New Territories: see the Heung Yee Kuk Ordinance (Cap. 1097). 49 Section 20(1) of the LCO. 50 Section 21 of the LCO. 51 Legislative Council Bills Committee on Legislative Council (Amendment) Bill 2003, Amendment to Constitution of Organisations under Functional Constituencies, LC Paper No. CB(2)2075/02-03(01). 52 See generally, Simon Young and Anthony Law, ‘Privileged to vote: Inequalities and anomalies of the FC system’ in Christine Loh (ed), Functional Constituencies: A Unique Feature of the Hong Kong Legislative Council (Hong Kong, HKU Press: 2006). 53 Section 20P of the LCO. 54 Composed exclusively of ‘corporate members of The Chinese General Chamber of Commerce entitled to vote at general meetings of the Chamber’: s 20Q of the LCO. 55 Composed exclusively of ‘corporate members of the Federation of Hong Kong Industries entitled to vote at general meetings of the Federation’: s 20R of the LCO. 56 Section 20T of the LCO.

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The Legislative Council of Hong Kong 5 7 Section 20C of the LCO. 58 Section 20D of the LCO. 59 See s 20F of the LCO. 60 See s 20F(a) of the LCO. 61 See s 20F(b) of the LCO. 62 They include, for example, lawyers in the Department of Justice, Lands Department, Companies Registry, the Land Registry, and the Department of Legal Aid: see s 20F(d)–(e) of the LCO. 63 See s 20F(f ) of the LCO. 64 Composed of registered certified public accountants: s 20G of the LCO. 65 Composed of medical practitioners, dentists, nurses etc. who are registered or deemed to be registered: s 20IA of the LCO. 66 Section 25(2) of the LCO. 67 Section 25(1)(b) of the LCO. 68 Section 31 of the LCO. 69 Section 25(5) of the LCO. 70 Sections 25(4) and 25(5) of the LCO. 71 Section 26(1) of the LCO. 72 Section 26(2)(b) of the LCO. 73 Section 3(2)(a) of the LCO. 74 Section 26(2)(c) of the LCO. 75 Section 26(2)(d) of the LCO. 76 See sections 37(2)(a), (c), (d), (e) of the LCO. 77 For example, Legal, Commercial(First), and Finance. See ss 37(2)(f ) and 37(3) of the LCO. 78 Section 37(2)(b) of the LCO. 79 Section 3(2)(b) of the LCO. 80 Ibid. 81 Section 7(2) of Cap 542C. 82 Section 40(1)(b) of the LCO. 83 Section 40(1)(b)(i) of the LCO. 84 Section 46(1) of the LCO. 85 In the 1998 LegCo Election, 10 out of 28 FCs elected their representative without a contest. In the 2000 LegCo Election, the ratio was 9 out of 28. In the 2004 LegCo Election, the ratio was 11 out of 28. In the 2008 LegCo Election, the ratio was 14 out of 28. In the 2012 LegCo Election, the ratio was 16 out of 29. In the 2016 LegCo Election, the ratio was 12 out of 29. 86 Section 51(2) of the LCO. 87 Sections 51(3) of the LCO. 88 Sections 51(4) of the LCO. 89 In 2018, Education had 85,705 registered voters, Health Services had 36,734, Accountancy had 25,723, Social Welfare had 13,787, and Medical had 11,406: Voter Registration Statistics: Functional Constituency accessed 28 March 2020. The entire traditional FC electorate had 230,934 registered voters: Voter Registration Statistics: Functional Constituency < https://www.voterregistration.gov.hk/eng/statistic20192.html> accessed 28 March 2020. 90 See Simon Young and Anthony Law, ‘Privileged to vote: Inequalities and anomalies of the FC system’ in Christine Loh (ed), Functional Constituencies: A Unique Feature of the Hong Kong Legislative Council (HKU Press 2006), 80. 91 Ibid., 98–99. 92 Po Jen Yap, Courts and Democracies in Asia (CUP 2018), 64. 93 Article 26 of the Basic Law reads: ‘Permanent residents of the [HKSAR] shall have the right to vote and the right to stand for election in accordance with law’. 94 Chan Yu Nam v Secretary for Justice (CACV 2/2010, unreported, 7 December 2010), [81]. 95 ibid., [85]. 96 ibid., [93]. 97 Annex II of the BL. 98 Tony Cheung, ‘Split voting’ and abstentions kill record number of Legco proposals’ (South China Morning Post, 8 November 2013) accessed 19 March 2013.

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Eric Chan 99 See for example Chow Ting v Teng Yu Yan Anne [2019] 4 HKLRD 459. 100 The Government of the HKSAR, ‘HKSAR Government supports Returning Officers’ decisions to invalidate certain nominations for Legislative Council General Election’ accessed 31 July 2020. 101 Officially translated as The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region. 102 Annex II of the Basic Law. 103 ibid. 104 Article 104 of the BL. 105 Section 19 of the ODO. 106 Section 21 of the ODO. 107 Tony Cheung, Joyce Ng and Stuart Lau, ‘Three rejections and multiple deviations mark Hong Kong Legislative Council swearing-in’ (South China Morning Post, 12 October 2016) accessed 19 March 2020. 108 Under Hong Kong law, NPCSC interpretations of the Basic Law are binding on Hong Kong courts. 109 Chief Executive of HKSAR v President of the Legislative Council [2017] 4 HKLRD 115, [27]-[28]. 110 ibid., [34]. 111 See Chief Executive of HKSAR v President of the Legislative Council [2017] 1 HKLRD 460 and Secretary for Justice v Leung Kwok Hung [2019] 2 HKC 244. 112 Part H of the Rules of Procedure (RoP). 113 Part I of the RoP. 114 Part K of the RoP. 115 Part G of the RoP. 116 Parts G and J of the RoP. 117 The Legislative Council Commission, A Companion to the history, rules and practices of the Legislative Council of the Hong Kong Special Administrative Region (the ‘Companion’), [1.37] and [1.5]. 118 See Rules 71–78 of the RoP. 119 Cheng Kar Shun v Li Fung Ying [2011] 2 HKLRD 555, [211]. 120 See n117, Companion, [13.35]. 121 Rule 75(1) of the RoP. 122 Rule 75(11) of the RoP. 123 See n117, Companion, [5.94]. 124 See n117, Companion, [1.37]. 125 For details on how proposed amendments are considered, see Committee on Rules of Procedure, Progress Report for the period October 2017 to July 2018, [2.11]. 126 In 2017, the pro-Beijing camp exploited the vacancies created by the disqualif ication of pro-democracy lawmakers and introduced controversial amendments to the Rules of Procedure to curb f ilibustering: Kris Cheng, ‘Hong Kong legislature passes controversial house rule changes taking powers from lawmakers’ (Hong Kong Free Press, 15 December 2017) accessed 19 March 2020. And as mentioned below, pro-Beijing lawmakers made further amendments after most opposition lawmakers resigned in 2020. 127 See n117, Companion, [1.34]. 128 Rule 92 of the RoP. 129 Article 73(1) of the BL. 130 Leung Kwok Hung v The President of the Legislative Council [2007] 1 HKLRD 387, [7]. 131 Article 62(5) of the BL. 132 Article 74 of the BL. 133 See n117, Companion, [11.72]. 134 Rule 53(2) of the RoP. 135 Rule 53(3) of the RoP. 136 See n117, Companion, [11.76]. 137 Rule 54(3) of the RoP. 138 Rule 54(4) of the RoP.

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The Legislative Council of Hong Kong 1 39 Rule 76(7) of the RoP. 140 See n117, Companion, [11.80], [11.81]. 141 Rule 54(5)(d) of the RoP. 142 Formally, the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019. 143 Alvin Lum, ‘Hong Kong extradition bill explained: how did we get into this mess and what happens next?’ (South China Morning Post, 15 May 2019) accessed 19 March 2020. 144 Sum Lok-kei and Alvin Lum, ‘Hong Kong government to take drastic step in fast-tracking controversial fugitive bill’ (South China Morning Post, 20 May 2019) accessed 19 March 2020. 145 See n117, Companion, [11.92]. 146 ibid. 147 Rule 54(8) of the RoP. 148 Rule 55(1) of the RoP. 149 Leung Kwok Hung v President of the Legislative Council for and on behalf of the Legislative Council [2019] HKCFI 1482, [49]. 150 Rule 56(2) of the RoP. 151 Rule 58(12) of the RoP. 152 Rule 59(1) of the RoP. 153 Rule 59(2) of the RoP. 154 Rule 63(1) of the RoP. 155 Rule 63(2) of the RoP. 156 Lily Kuo and Helen Davidson, ‘Hong Kong opposition lawmakers all quit after four members ousted’ (The Guardian, 12 November 2020) accessed 31 July 2021. 157 See Natalie Wong and Lilian Cheng, ‘Hong Kong lawmakers to be suspended for ‘grossly disorderly conduct’ under approved changes to Legislative Council rule book’ (South China Morning Post, 25 March 2021) accessed 19 August 2021; and Selina Cheng, ‘Hong Kong legislature changes rules to prevent filibustering with fines for absent members; new dress code’ (Hong Kong Free Press, 15 July 2021) accessed 19 August 2021. 158 Article 75(1) of the BL. Rule 17(1) of the RoP. 159 Rule 17(1A) of the RoP. 160 Rule 17(2) of the RoP. 161 ibid. A similar rule for the committee of the whole Council is provided by Rule 17(3). 162 Kimmy Chung, ‘First Hong Kong Legco meeting ends abruptly, as divisions appear to deepen’ (South China Morning Post, 19 October 2017) accessed 19 March 2020. 163 Hong Kong Hansard (14 July 2021), p.8250. 164 Rule 36(5) of the RoP. 165 Rule 38(1) of the RoP. 166 Rule 38(1)(a) of the RoP. 167 Rule 37 of the RoP. 168 Rule 17(b) and Appendix IIIA of the House Rules. Members may also only speak for 10 minutes at the resumption of the second reading debate, and for 3 minutes at the third reading debate. 169 Rule 19(1A) of the RoP. 170 Rule 57(4) of the RoP. 171 Rule 57(2) of the RoP. 172 That Bill was introduced after a pro-democracy member from each of the 5 GCs resigned midterm in 2010 to trigger city-wide by-elections for their seats. The by-elections were described as a ‘de facto referendum’ on the question of universal suffrage: see Alan Leong, ‘Quantifying Hong Kong’s

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Eric Chan democratic desires,’ (The Wall Street Journal, 8 February 2010) accessed 19 March 2020. 173 This tactic likely prompted pro-Beijing lawmakers to later amend the Rules of Procedure and lower the quorum of the committee of the whole Council from not less than one half of all members (i.e. 35) to 20. 174 Hong Kong Hansard (16 May 2012), p.10179. 175 ibid., p.10180. 176 Leung Kwok Hung v President of the Legislative Council (No 1) (2014) 17 HKCFAR 689. 177 ibid., [43]. 178 ibid., [46]. 179 Rule 45(2) of the RoP. 180 Rule 45A of the RoP. 181 ‘‘Filibustering’ hinders LegCo operations, might be against the National Security Law’ (Ta Kung Pao, 30 October 2021) accessed 31 July 2021 (English translation). 182 Article 76 of the BL. 183 Article 49 of the BL. 184 Article 50 of the BL. But if the bill is again passed by a two-thirds majority of all the members of the new LegCo, and the Chief Executive still refuses to sign it, the Chief Executive must resign: see Article 52(2) of the BL. 185 Article 17(3) of the Basic Law. Nevertheless, it is very unlikely Beijing would ever need to exercise this power, as the Chief Executive, who is answerable to Beijing, may simply refuse to sign it: see Danny Gittings, Introduction to the Hong Kong Basic Law (HKU Press 2013), 74–75. 186 Article 48(6) of the BL. 187 Article 90(2) of the BL. 188 Article 82 of the BL. 189 Section 5(1) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) (HKCFAO). 190 Section 5(2)–(4) of the HKCFAO. 191 The Chief Judge of the High Court is also the President of the Court of Appeal: s.5(3) of the High Court Ordinance (Cap. 4). 192 Report of the Panel on Administration of Justice and Legal Services for submission to the Legislative Council, LC Paper No. CB(2)1958/09-10, [5]. 193 Article 88 of the BL. 194 Section 3(1) of the Judicial Officers Recommendation Commission Ordinance (Cap. 92). 195 Report of the Panel on Administration of Justice and Legal Services on procedure for endorsement of appointment of judges by the Legislative Council under Article 73(7) of the Basic Law, LC Paper No. CB(2)2059/02-03. 196 Report of the Subcommittee on Proposed Senior Judicial Appointments, LC Paper No. CB(4)1041/17-18. The question of whether such public hearings can be held first arose when the subcommittee was discussing the appointments of Lady Hale and Beverley McLachlin to the CFA. The subcommittee had received written submissions from the public expressing concerns of apparent bias if the appointees hear LGBT cases. The proposal to hold a public hearing was put to a vote but failed to pass. 197 Article 89(1) of the BL. 198 Article 89(2) of the BL. 199 Report of the Panel on Administration of Justice and Legal Services on procedure for endorsement of removal of judges by the Legislative Council under Article 73(7) of the Basic Law, LC Paper No. CB(2)2417/03-04. 200 The alleged ‘advantages or extravagant entertainment’ included, for example, renting a penthouse renovated at the expense of and owned by a company controlled by a tycoon. See Motion under Article 73(9) of the Basic Law, LC Paper No. CB(3) 731/11-12. 201 Tsang was later convicted of misconduct in public office over matters related to the penthouse and served 12 months in prison. On appeal, the CFA overturned his conviction on the grounds of jury misdirection: HKSAR v Tsang Yam Kuen Donald (2019) 22 HKCFAR 176. 202 Motion under Article 73(9) of the Basic Law moved at the Council meeting of 9 January 2013 accessed 19 March 2020.

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The Legislative Council of Hong Kong 203 Voting Result of Motion under Article 73(9) of the Basic Law (9 January 2013) accessed 19 March 2020. At that time, there were only GCs and FCs, and members’ motions required a majority of members of both types of constituencies to pass. 204 Motion under Article 73(9) of the Basic Law, LC Paper No. CB(3) 611/16-17. 205 Voting Result of Motion under Article 73(9) of the Basic Law (8 June 2017) accessed 19 March 2020.

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11 THE PARLIAMENT AND STATE LEGISLATURES OF INDIA M Mohsin Alam Bhat

11.1 Introduction India today has a democratic, republican, and parliamentary form of government. The Constitution of India (1950) incorporated the Commonwealth Model of British Westminster system, comprising the President as the head of the Executive, along with two houses composed predominantly of elected members. The President is the nominal head, bound by the aid and advice of the Prime Minister and the Council of Ministers. The Council of Ministers, who are members of the legislature, require the support of the lower house and hence are accountable to it. The Constitution also adopts some key elements of federalism.1 It provides for shared rule between the centre and states, with states exercising regional selfrule in constitutionally specified subject areas. Constitutional provisions related to the federal distribution of powers may be amended only with the ratification of a majority of states. The provincial or state legislative structure replicates the design at the central level. Under India’s bicameral system, Parliament’s upper house is elected by state legislatures. This chapter provides an overview of some of the most significant features of India’s legislature at the parliamentary and state legislative levels. Section 11.2 discusses the legislative structure, specifically its composition, basis of representation, and offices. Section 11.3 discusses the electoral process, and qualifications and disqualifications of members, in the upper and lower houses. Section 11.4 gives an account of legislative powers and process, including the procedures of law-making, legislative competence and constraints, and legislative privileges. Section 11.5 highlights some key questions and debates regarding the legislature’s role in maintaining executive accountability. It discusses the deliberative process, the role of the legislature during emergencies, and the Executive’s law-making powers. Finally, Section 11.6 highlights some important issues regarding the recognition and regulation of political parties, which play a crucial function in India’s legislative system. In providing this broad account, the chapter will also highlight the role of two themes that have particular relevance to scholarly and popular debates on India’s legislature. The first theme is the question of representation. As the chapter will show, the meaning of political representation has been both historically significant and contentious, as legislative institutions have evolved over time. India’s constitutional framers were invested in incorporating a system of representation that minimized the role of divisive identities in politics. But they also, 178

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despite deep reservations, accepted community representation. Political representation is also at stake in debates on federalism, particularly as to the role and capacity of Parliament’s upper house to represent the states. The section on political parties also reveals the importance of representation. Are legislators representatives of their constituents, or agents of political parties? Are political parties better understood as means of political representation? The second theme is the role of non-elected bodies in governing the country’s legislative schemes. The most important of such bodies is, of course, the judiciary. Each of the sections presents the dilemma of justiciability under a written constitution with a bill of rights. Which legislative activities are (or should be) subject to judicial review, what should be the standard of review, and hence, to what extent should courts regulate political actors? Another important institution in this regard is the Election Commission of India, which is a constitutional and bureaucratic body assigned with the task of conducting elections. These themes of representation and regulation are thus two conceptual sites where the contours of India’s parliamentary scheme continue to be shaped.

11.2  Legislative structure 11.2.1 Composition The Indian Parliament consists of the Executive and two houses consisting of elected and appointed legislators. The President who heads the Executive is part of Parliament following the Westminster model.2 Under Indian political practice and constitutional jurisprudence, the President is bound to act under the aid and advice of the Council of Ministers and the Prime Minister who leads it.3 The Constitution creates a bicameral parliament at the federal level and provides for its composition. Since 1987, the lower house, called the House of the People or the Lok Sabha, has 545 members. Until recently, the President was empowered to nominate two members from the Anglo-Indian community if they believed the community was not adequately represented.4 A total of 543 members are directly elected from territorial constituencies, based on first-pass-the-poll system. Lok Sabha members serve up to five years, but as in the Westminster system, the House can be dissolved and new elections declared. The upper house, called the Council of States or the Rajya Sabha, currently has 250 members. The President can nominate 12 members with special knowledge or practical experience in various fields like science, arts, public service, or literature. The remaining seats in the Rajya Sabha are filled by representatives of states and union territories,5 who are elected by the state legislative assemblies through a system of proportional representation by means of a single transferable vote. The members of the Rajya Sabha have a tenure of six years, making it a continuing house with one-third of its members retiring every two years. The Prime Minister and the Council of Ministers can be members of either house but must enjoy the support of the majority in at least the Lok Sabha. State legislatures are broadly analogous to Parliament. The Governor is the nominal head of the Executive at the state-level and is appointed by the President (and hence the central government) from among persons with special knowledge in various fields.6 The lower house, or the Legislative Assembly, is composed of directly elected members from state legislative constituencies. The upper houses at the state level, called the legislative councils, are created under parliamentary law and generally have been constituted only for larger states.7 Under the Constitution, their membership cannot exceed one-third of the total membership of their corresponding legislative assemblies. The Constitution designates the proportion of legislative council members to be elected by the Legislative Assembly, nominated by the Governor, 179

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and elected by electorates with an eclectic composition, including teachers, members of local authorities, and persons with higher educational qualifications.

11.2.2  Basis of representation The Indian Parliament owes its beginnings to British colonial rule.8 Colonial constitutional arrangements were not fully representative, with the franchise severely limited by educational qualifications and property ownership. Under the Government of India Act, 1935, which provided the pre-independence constitutional arrangement, only 28.5 per cent of the adult population could vote in the legislative elections. The executive powers of the Governor General and Governors, who represented the British Crown, were legally superior to the parliamentary legislative powers. They could block and introduce legislation and make law without the approval of the House. Colonial legislatures thus lacked legislative autonomy. These legislatures were also designed to provide communal representation, especially for religious minorities. The anti-colonial nationalist movement was critical of both these features. Its leaders were convinced that a fragmented electorate failed to unite the country and further aggravated existing social cleavages and divisions in the country. As early as the 1920s, policy recommendations within the Indian National Congress, which was the dominant anti-colonial platform, supported popularly elected assemblies at both federal and provincial levels based on universal adult franchise.9 The nationalist position was also deeply suspicious of separate communal electorates but had some sympathy for special representation for minorities, and in some cases, for landlords, labour, women, industry, and other special constituents. India’s Constituent Assembly thus had to formulate parliamentary powers and the nature of political representation afresh. The fact that Indians were experienced in the Westminster system finally became the most convincing ground for the Assembly to borrow and adapt the Commonwealth parliamentary federal model of the Crown-in-Parliament. The most important value for the members was the imperative of nation-building.10 As the chronicler of the Indian constitutional framing Granville Austin notes, they wished ‘to create a basis for the social and political unity of the country.’11 This meant the incorporation of universal adult suffrage that would unite the whole country. The Constitution provides for adult suffrage for all Indian citizens aged eighteen years and above, but beyond that, leaves the prerogative to the legislature to provide for voter disqualifications on grounds of ‘non-residence, unsoundness of mind, crime or corrupt or illegal practice.’12 The constitutional framers also rejected the principle of community representation. They blamed minority political reservations for the country’s Partition along religious lines in 1947. Despite murmurs of dissatisfaction from religious minorities, especially some Muslim members of the Constituent Assembly, the Constitution did not incorporate any representational safeguards. The only special representation that was eventually incorporated was for the former Untouchable castes (Scheduled Castes or SCs) and Adivasi indigenous communities (Scheduled Tribes or STs). The Constitution incorporated reservations for SCs and STs in proportion to their population in Parliament,13 and in state legislative assemblies.14 The framers thought this would be a temporary solution to the problem of integration of subordinated communities. The original constitutional text placed a limitation of ten years for political reservations, but Parliament has since extended these reservations through constitutional amendments.15 Through subsequent amendments to the Constitution, Parliament has also provided representation in local village and city councils for SCs and STs, including representation for women among the SCs and STs.16 Thus, in addition to universal franchise, 180

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group representation for subordinated communities has become an entrenched constitutional feature of democratic representation in India.17 Recently, there have been proposals to introduce one-third reservations for women in Parliament. The representation of female members in Lok Sabha has witnessed only a modest increase, from 4.4 per cent (22 members) in 1952, to 14.36 per cent (78 members) in 2019. There has been a similar modest increase in Rajya Sabha, from 6.9 per cent (15 members) in 1952, to 10.2 per cent (25 members) in 2020. While most political parties today acknowledge these dismal numbers, they are yet to find common ground regarding the proposal.

11.2.3  Parliamentary offices The Constitution also provides for the official bureaucratic structure of Parliament. The Lok Sabha chooses its Speaker and Deputy Speaker from among the elected members.18 Either can be removed if a majority of the House moves a resolution to that effect.19 The Vice President is the ex officio chairperson of the Rajya Sabha, and the House chooses its deputy chairperson under its own rules.20 These officials preside over the proceedings of the respective houses. The presiding officers do not have the right to vote unless to break a tie.21 If a house is deliberating on resolutions for the removal of any of these officials, the presiding officer can participate in the proceedings but does not have the right to vote.22 The Constitution also provides for the creation of a secretarial staff for both the houses, to be regulated under parliamentary legislation.23 As the conductor of the sessions and decision-maker in adjudication of process, the presiding officer, particularly the Speaker, often finds themselves to be a ‘conciliator and facilitator’ of the legislature.24

11.3 Elections 11.3.1  Electoral process Under the constitutional scheme, Lok Sabha members are elected by eligible voters in territorial constituencies. The size of constituencies and their distribution among states is proportional to population.25 Delimitation is meant to occur in accordance with the latest census. The Constitution authorizes Parliament to legislate the process for delimitation of territorial constituencies26 and removes judicial review of the delimitation process.27 As of 2021, Parliament has done this four times by creating Delimitation Commissions in 1952, 1953, 1973, and 2002. These commissions usually have an apolitical composition. For instance, under the Delimitation Act 2002, the Commission comprised three members: the chairperson (an active or retired Supreme Court judge); either the Chief Election Commissioner or one of the election commissioners nominated by them; and the election commissioner of the state concerned.28 The last delimitation was conducted in 1972 based on the 1971 census but was paused through a constitutional amendment until the first census after 2026. This was done to ensure that states, which implemented family planning measures to slow population growth, were not penalized or disincentivized by reducing their representation in Parliament. Similarly, intra-state adjustments are currently based on the 2001 census, and there will be no further adjustments until the first census after 2026. The Constitution creates a broad legal architecture to govern India’s electoral process, leaving the details to be legislated. It authorizes Parliament – and to the extent Parliament has not provided, state legislatures – to make laws regarding elections to Parliament or state legislatures.29 Parliament passed two laws, the Representation of Peoples Acts of 1950 and 1951 181

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(RPAs 1950 and 1951), which provide the legal framework governing elections. Significantly, the Constitution also creates the institution of the Election Commission of India (ECI). The ECI is what recent scholarship has identified as a fourth branch institution, to secure electoral integrity through independent management and regulation of the electoral process.30 The Constitution vests the conduct of elections to Parliament and state legislatures, and the elections of President and Vice-President in the ECI.31 While the RPAs provide most of the powers and procedures in relation to the ECI, the institution also exercises powers independent of legislation. The Supreme Court has ruled that these independent powers to regulate India’s electoral process are ‘plenary,’ especially in the absence of legislative guidance.32 This has made the ECI an especially powerful institution, as it organizes, manages, and regulates elections both in conjunction with parliamentary legislation and independent of it.33 The ECI conducts all stages of elections. While it does not currently have a fully independent secretariat, parliamentary legislation gives it authority over state officials who work under its authority on deputation for the purposes of election management.34 The ECI authenticates and maintains the delimitation of constituencies conducted by the delimitation commission.35 One of its most important roles is the superintendence, direction, and control over preparing electoral rolls.36 It is authorized to determine whether a person meets the legal standards for disqualification for violating norms against corrupt electoral practices, corruption, disloyalty, or lack of transparency in election expenses.37 The ECI also has the power to adjudicate the extent or length of disqualification in most cases.38 The ECI’s determination is binding on the government.39 It allots symbols to political parties,40 registers them, and, when disputes arise, adjudicates which splinter group retains the name and symbol of the party.41 The ECI further administers the nomination process for candidates.42 It conducts and oversees the voting process through a network of officials, from the polling stations all the way to the counting process,43 and the declaration of results.44 The Constitution provides that elections to Parliament or state legislatures cannot be questioned outside the process provided under legislation.45 The ECI exercises wide discretionary powers in various areas. For instance, the ECI is empowered to recommend to the Executive dates for parliamentary elections,46 and to fix the time period for voting.47 The Supreme Court has held that the ECI is not bound by any timeline and is free to ascertain the most suitable election timelines.48 The ECI also enforces the Model Code of Conduct (MCC), which is a non-legal code of electoral ethics meant to target unfair and corrupt practices during the elections.49 The ECI usually triggers the MCC a few weeks before elections, which halts the government from introducing any new policy that may be deemed to unfairly influence voters. The ECI has often used the MCC to enforce campaign bars on defaulting candidates. Until 1966, the ECI could hear disputes about the validity of election results. Election petitions raising these disputes can now only be heard by state high courts.50 A high court can entertain petitions within a limited time after the declaration of results and may hold them void if it finds that the successful candidate is unqualified or disqualified, or that they or their agent has committed an act that qualifies as a ‘corrupt practice’ under the law.51 A high court may also hold that another candidate won the election if after adjudication it is found that they received the majority of votes or would have done so if there had been no corrupt practices.52 The Supreme Court is authorized to hear appeals from these high court judgements.53 The structure of the ECI – particularly the appointment of its officials, their competence, and independence – is thus crucial to the integrity of India’s electoral process. While the institution has consistently enjoyed a relatively high degree of public confidence, the institutional mechanisms of its independence are not fully secure. The constitutional text protects the conditions of tenure and service for the Chief Election Commissioner, who 182

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heads the institution,54 but it does not provide a bipartisan mechanism for their appointment. The Commissioner is appointed by the President on the advice of the Council of Ministers. The Constitution also does not provide a secure system to select the additional election commissioners who may join the institution with potentially equal decision-making powers to the Commissioner. The Indian Supreme Court has taken a permissive approach towards the power of Parliament to determine these questions, without adequately considering its implications for the ECI’s institutional independence.55

11.3.2  Qualifications and disqualifications The Constitution specifies qualifications for members of Parliament. A parliamentarian must be an Indian citizen, above the age of 25 years for the Lok Sabha or 30 years for the Rajya Sabha, and meet any further qualifications required by parliamentary legislation. 56 Parliament has laid down these requirements in RPAs 1950 and 1951. A person standing for the Lok Sabha must be an elector registered on the electoral roll in any part of the country. 57 There are additional requirements to be elected for a seat that is reserved for SCs and STs. 58 The Constitution and RPAs also provide grounds of disqualification for new and continuing members. Under the Constitution, members of Parliament are disqualified if they: (1) hold an ‘office of profit,’ (2) are declared by a competent court to be of unsound mind, (3) are undischarged insolvents, (4) are not Indian citizens or have allegiance to another state, (5) are disqualified under any parliamentary law, and (6) are disqualified under the Tenth Schedule. 59 Similar conditions apply in the case of state legislatures. The ‘office of profit’ disqualification has been the subject of political and legal controversy. The requirement is based on the principle of separation of powers and the allied ideal that members of Parliament should be independent of the Executive in holding the government accountable to Parliament. The Constitution requires that except for ministers of the government, no member of Parliament or state legislatures can hold an office that may be one of profit under the government, and which has not been excluded under parliamentary law.60 The Supreme Court has held that an office needs to exist independently of the appointed person. Profit can be pecuniary or otherwise, need not involve actual reception of gain, and would include even the capacity of yielding a profit or pecuniary gain.61 In order to constitute an office that is under the government, the Court has held that the government needs to make the appointment, have the power to remove the person, and pay the remuneration. In addition, the functions of the office must benefit the government, and the government must have control over these functions. Parliament enacted three laws in 1950, 1951, and 1954 regulating the content of the disqualification and exempted numerous offices. Critics have noted that the range of legislated exemptions do not reflect a coherent principle, which has weakened the constitutional mandate.62 They have advocated revisiting these laws, including to reduce the range of exceptions, and laying down rational criteria that respect the separation of powers and legislative independence. Parliament has specified further disqualifications in addition to the constitutionally listed ones. Parliamentary legislation provides disqualifications for varying time periods on grounds that include conviction for some serious offences, corruption, or disloyalty to the state, and some cases of conflict of interest.63 Parliament attempted to relax some of these disqualifications specifically for sitting members,64 but the Supreme Court has invalidated differentiated regimes for sitting members and persons seeking legislative office.65 183

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11.3.3  Bicameralism and composition of the upper house The creation of an upper house was a key puzzle in the Constituency Assembly. The constitution framers could not rely on the existing colonial system that was based on devolution of political authority from the centre, rather than federalism. The protection of minority interests has historically been a leading justification for an upper house.66 But members of the Constituent Assembly were critical of this rationale. Many members of the Assembly were concerned that an upper house would represent local interests and hence introduce or entrench divisive politics. Members were also worried that the body would be undemocratic and potentially stall popular legislation passed by the lower house. Nevertheless, there are three other interrelated rationales that find resonance in India’s constitutional history. First, the upper house has a federalism rationale by representing states at the national level. Under the Constitution, members of the Rajya Sabha are elected by state legislatures, and the Rajya Sabha authorizes Parliament’s actions in areas that have a bearing on the rights of states.67 This role of bicameralism – of integrating sub-national interests in the formulation of policy – is well recognized in the literature on federalism.68 This federalism rationale is distinct from minority protection, as state legislatures might be dominated by regional majorities. The federalism rationale is meant to serve at least two normative purposes. The ‘diversity’ rather than ‘duplication of political representation’69 between the two houses deepens and enriches Parliament’s representative quotient and hence improves its democratic legitimacy. The federalism rationale also enhances regional acceptance of national policies. Second, the Rajya Sabha also has a deliberative function. The role of upper houses in providing ‘representation to the wise’ 70 or acting like a ‘chambre de réflexion’ 71 has been appreciated in the scholarship on constitutional design. Along similar lines, the constitutional framers believed that an upper house would check the majoritarian impulses of a directly elected lower house by introducing a deliberative pause in the legislative process. Apart from extending the deliberative process, the members of the Rajya Sabha can arguably debate the merits of legislation alleviated from the immediate pressures of direct popular elections. The constitutional arrangement emphasizes this role of the Rajya Sabha. In terms of powers, there is an asymmetry between the Lok Sabha and Rajya Sabha, significantly in relation to economic policy that was high on the agenda of the constitutional framers. Only the Lok Sabha can introduce and pass money bills dealing with economic policy. But the Rajya Sabha has the power to deliberate on the merits of money bills, and make recommendations to the Lok Sabha. The federalism and deliberative rationales of the Rajya Sabha feed into the third rationale: counter-majoritarianism. The Rajya Sabha’s counter-majoritarian role relies on its representative character being different from that of the Lok Sabha. Elections to the Rajya Sabha are staggered, and elections to state legislatures (that elect the Rajya Sabha members) are not usually held simultaneously with Lok Sabha elections. Consequently, the Lok Sabha and Rajya Sabha are at least theoretically expected to have contrasting political opinions and interests. This makes the Rajya Sabha a crucial and productive democratic barrier against excessively dominant political majorities in the Lok Sabha. This role has gained in significance in recent times, owing to the need to check excessive prime-ministerial control over the Executive, and the rise of populist politics that can dominate the lower house and undermine democracy.72 The efficacy of these rationales depends on the Rajya Sabha’s distinct representative character. The Rajya Sabha members will only be able to fulfil their federalism, deliberative and counter-majoritarian functions if they have the capacity to voice interests and views different 184

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from members in the Lok Sabha. While this capacity depends on India’s constitutional design, it also relies heavily on the mediating role of political parties. Political parties seek uniformity of policy between houses in order to reduce political conflict.73 Consequently, members of Parliament from the same political party, irrespective of which house they join, are less likely to introduce a diversity of opinions that these rationales assume. It is hence not surprising that the Rajya Sabha’s role has historically depended on the dynamics of party politics in India. After India’s independence, there was the dominance of Congress Party, which subsequently gave way to the rise of regional parties and a stronger opposition.74 This transition may have strengthened the Rajya Sabha’s role in deliberation and policy formation.75 We are currently in a phase of single party domination, with the prominence of the Bhartiya Janata Party at both the central and state levels. These dynamics put the institutional role of the Rajya Sabha in a bind, since precisely when its assertion is most needed (in times of a strong executive), it is least likely to embody the desired capacities.76 The Indian Supreme Court has yet to appreciate all these dimensions of the Rajya Sabha’s role. This is most evident in the case of Kuldip Nayar (2006),77 which involved territorial qualifications for the upper house. Originally under parliamentary legislation, members of the Rajya Sabha had to be registered voters in the states or union territories from which they were elected.78 Parliament removed this requirement in 2003. The petitioners in the case argued that this removal of the territorial requirement misconstrued and undermined the Rajya Sabha’s constitutional function and thus was unconstitutional. Members of the Rajya Sabha, they argued, were representatives of their particular states and not merely of the legislatures in those states. This required a relationship – some ‘link or nexus’ – with the state, without which Rajya Sabha members would not have the adequate ‘capacity’ to represent the state. While a residence requirement could be one example of this nexus, Parliament could incorporate others. But some territorial requirement, they insisted, had to be recognized under the law. The Supreme Court rejected this view of representation and federalism. The Court recognized the deliberative rationale for the upper house by noting that the Rajya Sabha was a ‘revising chamber…improving Bills passed by the Lok Sabha.’79 But it took an arguably cavalier approach towards the implications for federalism. In a rather confounding passage, the Court noted that in India is not a federal state ‘in the traditional sense of the term,’ and its ‘principle of federalism is not territory related.’80 Even if the Rajya Sabha’s federal role were accepted, the Court held that there was no constitutional requirement that the representatives of the states ‘must belong to that State.’81 The Court did not fully consider the range of constitutional purposes that the Rajya Sabha is expected to serve, and how the norms of representation may impact these purposes. Most of all, the Court did not evaluate how the actual functioning of the electoral system, including the role of political parties, may help meet the Rajya Sabha’s purposes or undermine them in the long run.

11.4  Powers and process 11.4.1  Legislative process Bills can be introduced both by the government through ministers, and by members other than ministers through private bills. India does not have a formal pre-legislative consultation process.82 Under the current practice, relevant ministries or departments of the government formulate legislative proposals, with the expectation of consultation with various interests and groups. The Ministry of Law and Justice advises on the legalities and prepares a draft bill on the lines of the ministry’s or department’s office memorandum delineating the 185

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details of the proposed bill. A note that includes the draft bill, views of concerned ministries, and implications of the proposed legislation is then sent for the cabinet’s approval. After incorporating revisions, the relevant ministry compiles a statement of objects and reasons, notes on clauses, financial memorandum on expenditures involved, and a memorandum on delegated legislation. In some cases, the prior sanction of the President is needed, before finally forwarding the particulars of the bill to the Ministry of Parliamentary Affairs in order to be introduced in the legislative programme. Ordinary bills can be introduced in either house, but money bills, based on the determination of the presiding officer, can only be introduced in the Lok Sabha. Bills pass through three stages of the legislative process. During the first reading, the member-in-charge of the bill asks for leave to introduce the bill in the house, or the bill is tabled if it has been passed by the other house. If the motion for leave passes, the bill is formally introduced in the house. In cases of opposition, the presiding officer may initiate a discussion, followed by a vote in the house. After the introduction of the bill and its publication in the gazette, the presiding officer may refer it to the Departmentally Related Standing Committees, who are expected to present their reports to Parliament in subsequent sessions. The minister concerned may, with reasons, request the presiding officer of the house to not refer the bill to the Standing Committee in urgent cases. During the second reading, the house conducts a general discussion on the bill and may refer it to a Select Committee of the house, a Joint Committee of both the houses, or invite opinions on its contents. The committees are expected to conduct detailed discussions on the bill, invite opinions of the public and experts, consider amendments, and finally submit a report to the house. During the second reading, the house considers the report of the committee, or in the absence of a reference to committees, directly deliberates on each clause. The house votes on amendments to each clause, schedules, long title, and other components, which become part of the final bill. In the third reading, the house considers the bill as a whole, followed by a final vote. In the case of an ordinary bill, both the houses should pass it with a majority of its members present and voting. In the case of a bill amending the Constitution, a majority of not less than two-thirds of members present and voting is required. Subject to parliamentary law, the quorum is set at one-tenth of the membership of the house.83 Once this is done, Parliament sends the Bill to the President for his assent. In case the President withholds assent, they can send the Bill back to the houses for reconsideration. This procedure does not apply to money bills. The President may attach a message, indicating their recommendations and reasons. But if the houses pass the Bill again, with or without amendments, the President is bound to assent.84

11.4.2  Legislative powers Legislatures are bound by procedural and substantive constraints under the Constitution. These include fundamental rights under Part III of the Constitution. Laws that violate fundamental rights are void to the extent of inconsistency. All persons have the right to approach the Supreme Court in cases of violations, and courts have wide powers to issues writs, orders, and directions for their enforcement.85 The Constitution also federally divides legislative powers between the centre and the states.86 This scheme extends the pre-independence model under the Government of India Act 1935, which was innovative compared to the existing Australian and Canadian federal systems. Unlike those systems, which provided one list of subjects for one legislature (federal or provincial) and left the residuary subjects to the other, the 1935 Act sought to be 186

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as exhaustive as possible by providing three lists. The Indian Constitution similarly divides legislative capacity between Parliament and state legislatures by providing three extensive lists of subjects under the Seventh Schedule. Parliament is authorized to legislate on the subjects under Union List or List I, state legislatures under the State List or List II, and both on the Concurrent List or List III.87 The residuary power over unenumerated subjects lies with the Union.88 Parliament also enjoys the legislative capacity to implement an international treaty even if it may relate to subjects in List II.89 The scheme of the lists makes it clear that subjects like defence, foreign affairs, citizenship, and inter-state trade, which have a national character, have been allotted to the Union. Subjects like public order, policing, and agriculture, which are better governed locally, have been allotted to the states. Subjects of common concern, like criminal law and family law, electricity and the press, have been placed in the Concurrent List. The purpose behind the extensive listing was to minimize conflicts over legislative division. Conflicts have nonetheless arisen often, partly due to the nature of subject-wise division. Numerous entries appear to overlap or to draw discreet lines between subject areas. Many entries also explicitly refer to each other. This has required courts to evolve legal doctrines to resolve conflicts. The judicial strategy has generally been to minimize the appearance of legislative conflict by interpreting the entries – under which a legislature claims to be legislating – as broadly as feasible. The courts have also interpreted the Constitution to allow legislatures to make laws on their permitted subject matter, even if the law’s contents may permeate into impermissible entries in other lists. According to the doctrine of pith and substance, a legislation would continue to be valid if it is, in its essence and character, related to a permitted entry, even if it may incidentally encroach upon others. The doctrine corresponds with the standard common law understanding that courts should ordinarily desist from invalidating legislation. The doctrine also makes law-making workable, because a strict interpretation of competing entries would make it exceedingly difficult for legislatures to design regulation. The judiciary, though, has faced criticism on some aspects of its doctrine. The Constitution incorporates the concept of repugnancy, according to which parliamentary law would prevail over any inconsistent provision of state law.90 Such inconsistencies may arise when Parliament makes a law (under an entry in Lists I or III) that conflicts with a state law properly made under an entry in Lists II or III. Despite the inconsistency, an inconsistent state law under an entry in the Concurrent List can prevail in the state if it receives the assent of the President.91 The Supreme Court has limited the scope of the repugnancy clause only to cases where the conflicting laws are on the same entry in the Concurrent List.92 In cases involving conflicting Union and state laws, where both are within the competence of the respective legislatures, the Supreme Court has held that both laws would remain valid. Evidently, the Court’s position favours upholding more laws, but it is unhelpful in a practical sense. The doctrine of repugnancy is meant to remove conflicting guidance for courts that are faced with contradictory laws. By narrowly interpreting the doctrine, the Court has retained the possibility of inconsistencies arising between federal and state laws.93 The Constitution provides three instances when the scheme of federal division of legislative powers can be deviated from, to allow the Union to legislate on List II subjects. The Rajya Sabha can authorize Parliament to legislate on a matter outside its jurisdiction, if it declares that it is necessary or expedient in the national interest by means of a resolution passed by two-thirds of its members present and voting.94 Such an authorization is valid for one year and may be extended by the Rajya Sabha for one more year. The second instance is if at least two-thirds of state legislatures pass a resolution authorizing Parliament to regulate 187

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a matter ordinarily within the legislative capacity of states.95 In such a situation, Parliament can make laws on the matter for those states, as well as any additional states if they subsequently pass a similar resolution. The third instance relates to emergencies. Parliament can legislate on the State List if the Executive has proclaimed a national emergency under constitutional procedures.96 Any law that Parliament enacts in this circumstance will cease to have effect, to the extent of Parliament’s ordinary legislative incompetence, six months after the proclamation expires.97 State legislatures can continue to make laws on the matters in which they are competent, but the Union law would override state laws to the extent of repugnancy.98 Parliament can also acquire state legislative powers in case the central Executive invokes its powers of President’s rule. Under the Constitution, if the central government is satisfied that there has been a breakdown of constitutional machinery in a state, it can through a proclamation decide to assume the powers of the state Executive.99 The government can also, through a declaration, authorize Parliament to exercise the powers of the state legislature.100 The Constitution requires such proclamations to be laid before Parliament for its approval, after which the proclamation remains valid for six months.101 Parliament can extend the life of the proclamation for additional six-month periods, but it cannot exceed three years in total.102 Parliament also has the power to amend the Constitution. A bill amending the Constitution requires a majority of not less than two-thirds of members of each house present and voting.103 The Constitution provides additional constraints for amending provisions related to the election of the President, powers of the Executive, the judiciary, federal distribution of legislative powers, representation of states in Parliament, and the amendment process. In these instances, the amending bill requires a ratification by at least half of the states. The amending power has historically been a matter of significant constitutional controversy, leading to heightened inter-institutional tension between Parliament and the Supreme Court. This controversy culminated in the Court laying down the doctrine of basic structure in the case of Kesavananda Bharati (1973), according to which Parliament could not alter the basic and essential features of the Indian Constitution.104 In Kesavananda Bharati and subsequent cases, the Court has held that values like democratic and republican form of government, the rule of law, equality, federalism and secularism are unamendable basic features of the Constitution.

11.4.3  Bicameral division of legislative powers Apart from the federal division between Parliament and state legislatures, there are also some distinctions between the legislative powers of the upper and lower houses of Parliament. On almost all counts, the two houses have identical powers. For a bill to be passed as legislation, it needs to be passed by both houses.105 If there is disagreement between the two houses, the Constitution mandates that the President call for a joint sitting of the two houses to vote together.106 The bill will be deemed to have passed if it gets the support of the majority of the sitting members. Joint sittings are rare, having been called only three times since the inception of Parliament. On all these occasions, the Lok Sabha’s opinion has prevailed. There may be significant political disincentives, however, for pressing ahead with the Lok Sabha’s opinion through this route. The government of the day may not want to raise the political stakes of disagreement by resorting to this procedure and may also not want to display the brute strength of political majorities against the views of the states represented in the Rajya Sabha. The Lok Sabha has decisive primacy with respect to money bills. Bills are deemed to be money bills if they only contain provisions related to financial matters like taxation, financial 188

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obligations of the Indian government, and the Consolidated Fund of India, or any matter incidental to these subjects.107 The Constitution leaves the determination of whether a bill qualifies as a money bill to the Speaker.108 Money bills can only be introduced in the Lok Sabha109 and cannot be introduced without the recommendation of the President and thus the support of the government.110 The Rajya Sabha is only allowed to give recommendations within a stipulated period and those recommendations may or may not be accepted by the Lok Sabha.111 Money bills have recently been a subject of constitutional controversy. One issue is whether the certification of a bill as a money bill by the Speaker is justiciable. The constitutional text may imply that it is not. It reads, ‘[i]f any question arises whether a Bill is a Money Bill or not, the decision of the Speaker of the House of the People thereon shall be final.’112 This follows a general tendency under the Indian Constitution, following many aspects of British constitutionalism, that leaves ‘irregularity of procedure’ arising from intra-parliamentary decisions out of the judicial realm.113 The history of the Constitution’s incorporation of the money bill procedure, however, may imply the opposite. The money bill exception owes its origins to British constitutional practice. After centuries of contention between the House of Commons and the House of Lords regarding the control over legislation on taxation and expenditure, the British Parliament passed the Parliament Act, 1911. The Act stated that the House of Lords could pass a money bill without amendments, initially passed by the House of Commons. But if it did not do so within a month, the bill would be deemed to have been passed by Parliament. The Speaker’s certification, under the Act, ‘shall be conclusive for all purposes, and shall not be questioned in any court of law.’ This constitutional practice, which is reflected in India’s colonial arrangement to some extent, came to influence the constitutional drafting process. Nevertheless, the Indian Constitution did not adopt the same language as the 1911 Act. Regarding the Speaker’s decision to classifying a bill as money bill, the Constitution only used the word ‘final’ and did not explicitly exclude judicial review. This would imply that the Indian Constitution, unlike the British parliamentary procedure, did not leave this issue outside the determination of courts. If this issue is justiciable, the second question is how courts should interpret the boundaries of a money bill. Specifically, can a putative money bill include provisions outside the matters mentioned in the constitutional provisions? There is some textual conflict to resolve here. The constitutional text states that a bill would be a money bill ‘if it contains only provisions dealing with all or any’ of the enumerated matters, suggesting that a stricter interpretation is more suitable. But it also states that a money bill may deal with ‘any matter incidental to any of the matters specified’ in the enumeration, which appears to lead to the opposite conclusion. This is not merely a legalistic matter. The classification of a bill as a money bill has important consequences, since classification as a money bill substantially lessens the deliberative role of the Rajya Sabha. The Supreme Court has not successfully resolved this question as of 2021. In the KS Puttaswamy (2018), in which the Court dealt with the constitutionality of the national identity programme, the justices split on this question. While the majority held that judicial review would be permitted ‘under certain circumstances,’114 it did not clearly lay down what those circumstances, or the applicable standard of review, would be. It held that a bill would continue to be a money bill if its dominant purpose related to the enumerated matters, even though it may touch upon other matters.115 In his dissenting opinion, Chandrachud J drew from the history of the money bill provisions to hold that the Speaker’s certification was subject to judicial review. He also interpreted the text strictly to hold that a money bill cannot include matters outside those enumerated in the Constitution. At most, they may include 189

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matters incidental to the enumerated matters. These questions came up again in Rojer Mathew (2019), where the Court recognized the ambiguities in the majority judgements of Puttaswamy, and recommended that these questions be referred to a larger bench to clarify with finality.116 But in an order in January 2021, four judges on a five-judge bench of the Supreme Court refused to refer the matter to a larger bench, with Chandrachud J dissenting again.117

11.4.4  Parliamentary privileges Drawing from the Westminster system, Indian legislatures also enjoy legislative privileges. In order to fulfil their responsibilities without political interference, legislators are protected against interference or pressure from the Executive, as well as courts and non-state entities. The content and scope of privileges has been a subject of considerable controversy, owing to textual ambiguities and the existence of enumerated fundamental rights. The key question has been whether and to what extent the exercise of privileges is subject to judicial review. One view supports a strict separation of powers, while the other favours a degree of justiciability when the exercise encumbers rights like speech and personal liberty. In the early case of MSM Sharma (1959), the Supreme Court had to address this tension between privileges and fundamental rights.118 The case involved a privilege notice against a newspaper publisher who published the contents of a Legislative Assembly debate that had been critical of the government but had been expunged by the Speaker from the official records. The publisher argued that the exercise of legislative privileges and the punishment against him would violate his freedom of speech and personal liberty. The Court’s majority held that the legislature had the power to exercise its privileges to restrict reportage of its proceedings. It accepted that free reportage served the public interest of keeping the people informed, but it held that the legislature also had a legitimate interest in preventing inaccurate reporting that may hinder its work. The majority also held that since the provisions on privileges were special in character, they would override the free speech rights that were of general applicability. The arguably troublesome implication of the decision was that it reversed the ordinary judicial understanding of giving preference to fundamental rights over other parts of the Constitution.119 It also gave overriding authority to privileges without requiring a case-tocase assessment of competing interests. This question of balancing fundamental rights and privileges arose again in 1964 in Keshav Singh in a rather dramatic chain of events.120 The Uttar Pradesh Legislative Assembly issued a notice of breach of privileges against Keshav Singh who had criticized a legislator in a pamphlet. When Keshav Singh allegedly refused to comply, the Speaker issued an arrest warrant and detained him in a district jail. Subsequently, a two-judge bench of the state’s High Court heard a habeas corpus petition filed by Keshav Singh’s lawyer and directed his release. Within days, the Assembly issued another notice, this time not only against Keshav Singh, but also against his lawyers and the high court judges, requiring them to be produced before the house in custody. In response, the High Court conducted full court proceedings and restrained the Assembly until the adjudication of the breach notice was fully conducted. The Assembly eventually revoked the arrest warrants, but the controversy led the central government to refer the question to the Supreme Court for an advisory opinion. The Supreme Court held that the High Court was well within its powers to consider the validity of the legislature’s actions. It also held that the Assembly was not competent to issue notices against judges and lawyers because they were not connected with Keshav Singh’s allegedly contemptuous actions. The Court made a distinction between the British Parliament’s broad powers of contempt and those applicable in India. It noted that while the British Parliament 190

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exercised numerous powers like resolving election disputes and disqualifying its members, the Indian Parliament was bound by constitutional provisions that necessarily entailed judicial interpretation. In addition to the implications for the rights of non-members, privileges have also been in tension with the rule of law. In PV Narasimha Rao (1998),121 the police alleged that the Prime Minister (petitioner) and members of the then ruling Congress Party in 1993 had bribed some political parties to vote in their favour during a vote of confidence. The police sought sanction for prosecution that was required under the law. The legislators objected by arguing that the acts for which the police sought to prosecute them were immune under legislative privileges. The Supreme Court held that while those who gave bribes could be prosecuted, the members who had allegedly accepted bribes and voted could not. According to the majority of the Court, this was because the alleged misconduct was closely connected to voting inside the legislature and was thus covered by privileges. The Supreme Court has adopted a wide interpretation of Parliament’s discretion in penalizing members for violating legislative privileges. In Raja Ram Pal (2007), a television channel showed 11 members of Parliament accepting money or favours for asking questions in the houses. The privileges and ethics committees of the houses recommended expulsion of the members, and the presiding officers acted on this recommendation. The expelled members challenged this on the ground that Parliament was not competent to go beyond the legislated disqualifications to expel its members. Since RPA 1951 provided for the disqualification of members if they are convicted under corruption law, they argued that judicial determination – rather than parliamentary privileges and process – would be the appropriate route. The Supreme Court rejected this argument.122 It held that Parliament could exercise a wide discretion under its privileges powers, including expelling defaulting members, if such members obstruct legislative processes or bring Parliament into disrepute. Another recent example of this tenuous balancing is Amrinder Singh (2010), where the Punjab Assembly moved against a member from the opposition party to expel him for allegedly improper land dealings while he was serving as the Chief Minister. The Supreme Court held that the House was not authorized to do this and restored his membership.123 It held that a legislature cannot use its power of privileges to address acts allegedly committed in a previous term. This, according to the Court, did not ‘threaten the discharge of legislative functions during the current term.’ Here, the Court struck a desirable balance as it attempted to circumvent the possibility of legislative majorities using privileges as a means of political vendetta.

11.5  Executive accountability 11.5.1  Deliberative process Based on the Westminster model, India’s parliamentary system is prone to executive dominance. The Executive enjoys the concentration of power once a party attains majority in the lower house. This makes the parliamentary deliberative process, especially the ability of the opposition members to bring public attention to government policies, crucial for holding the Executive accountable. Under the Constitution, legislatures are free to determine their own procedures.124 Legislatures do not have a fixed calendar for deliberation and legislative work, and it is left to the Executive to summon them. The Constitution only provides that the gap between sessions should not exceed six months.125 Parliament usually has three sessions in a year, including a 191

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budget session from February to May. Despite calls for introducing a mandated schedule, or mechanisms through which members can call a sitting, no such process has been introduced yet. Scholars of the Indian parliamentary practice have been critical of this gap and have argued that a lack of a mandatory procedure permits the government to decide upon fewer sittings to escape parliamentary scrutiny.126 A motion of no-confidence is obligatory if 50 or more members move it. On other occasions, the Speaker has the discretion to admit discussions. In practice, the Business Advisory Committee,127 based on an agreement among all parties, decides the issues that should be debated and the form of the deliberations. This, in effect, gives the government a veto on the matter. This process has introduced tremendous strain on parliamentary process. Opposition parties are often convinced that the government is steering away from debating difficult issues, which incentivises opposition-led disruptions.128 A growing number of commentators and scholars have argued that India’s Parliament has ‘declined’ in terms of its performance and calibre.129 According to this thesis, the institution has not transacted business in an orderly fashion due to regular disruptions. For instance, the legislative process scholar, MR Madhavan, analyzed Parliament’s functioning under the metrics of frequency of meetings and the time lost due to disruptions.130 He found that from the 1950s to the 1990s, the number of working days had reduced from 127 to 71 days. He also found that the time lost due to disruptions had increased from 1962 to 2015. All this, he claims, has resulted in less time being devoted to deliberation and debate over legislative activity. One casualty has been the parliamentary function of holding the government accountable through questions and discussions on the floor of the house. Most of the questions are answered in written, rather than oral, form. Scholars have recommended certain revisions in the process, including allowing opposition parties control over the agenda of discussion, as a rule, for a part of the house’s business. Another recommendation is to require discussion if a minimum number of parliamentarians demand it. The Indian legislative process also incorporates a committee structure to improve and diversify the deliberative process. Committees are designed to take an in-depth look at policies, bills, and evidence. Committee systems allow legislators to acquire greater subjectmatter expertise and mitigate information gaps and uncertainty of policy outcomes. They also resolve scarcity of legislative time and allow individual legislators to influence policy. Committees are composed of members from across the aisle and from both houses. Since they conduct proceedings in private,131 they can be expected to provide a space for members to deliberate and cooperate in a bipartisan manner.132 Moreover, strong committee systems are ‘associated with opposition influence,’133 because they give opposition parties institutional space to contribute to policy-formation. Opposition parties in India have often demanded committees to be constituted to bring attention to what they consider to be executive misdemeanours. There are various categories of committees under the legislature’s rules. Parliamentary rules provide for the constitution, functions and procedures of certain permanent standing committees. These include the Business Advisory Committee (to recommend the allocation of Parliament’s time for legislative business),134 Committee on Public Accounts (to assess if the government’s expenditures conform to parliamentary sanction),135 and the Committee of Privileges (determination and recommendation in relation to breaches of legislative privileges).136 Since 1993, parliamentary procedure also provides for standing committees that deal with the budget and activities of specific government departments.137 These Departmentally Related Standing Committees are composed of members of both houses, provided they are not ministers, with one-year tenures. The procedure also provides for the 192

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creation of Select Committees for the consideration of specific bills.138 The procedure also permits the creation of Joint Parliamentary Committees, which are ad hoc committees for a specific purpose, if one house passes a motion and the other house subsequently agrees. The literature shows a relationship between committee systems and political control. Political parties seek to control members through committees,139 and coalition partners exercise oversight over government policy.140 Scholars have also noted a correlation between the strength of committee systems, and the ways through which legislators build their electoral constituencies. Political systems where legislators seek votes through extra-legislative service tend to have weaker committee systems.141 Political systems that are dominated by political parties – for instance, where the political fates of legislators depend on their membership in parties – tend to have weaker committee systems. In these cases, legislators are more likely to invest time within party structures, as opposed to legislative committees as spaces of policy formation.142 These factors are relevant to India’s committee system, but more research is needed in this area. This includes studies on the incentives (or disincentives) of legislators to join and strengthen the committees, the impact of other institutions (like political parties) on the efficacy of the system, and the reforms that may be needed in legislative organization.

11.5.2 Emergency An important area of Parliament’s accountability function and control over the Executive is during national emergencies. The Indian Constitution provides that the central Executive can declare a national or regional emergency when the security of the country is threatened by war, external aggression, or armed rebellion.143 As in many other jurisdictions, a state of emergency limits the rights of citizens, including the right of judicial remedies.144 The Executive’s misuse of its emergency powers has been an important part of India’s post-independence history. The most egregious example was when Prime Minister Indira Gandhi imposed a 21-month long national emergency from 1975 to 1977. In light of the serious violations of rights and the failure of the courts to address them, Parliament amended the Constitution’s emergency provisions by immunizing certain rights even during the emergency, and strengthening the oversight role of Parliament. After the amendment, the Executive is expected to lay the emergency proclamation before each house, which, unless approved by the majority of each house, will cease to operate after one month.145 Once approved, the emergency can operate for a period six months and Parliament has the power to extend it another six months. There are two additional ways in which Parliament can hold the Executive accountable in the context of emergency. First, it has the power to revoke the emergency if it passes a resolution disapproving it.146 Second, one-tenth of the members of the Lok Sabha can request the Speaker or the President to convene a special sitting of the house to move a resolution of disapproval.147

11.5.3  Executive ordinances One of the striking features of the Indian law-making scheme is the incorporation of wide legislative powers in the Executive. The legislature under the Westminster system is expected to perform the democratically accountable legislative function. The Indian Constitution permits a diversion from this ideal, by empowering the central and state Executives to promulgate ordinances with the same legal force as ordinary legislation. The ordinance-making power is conditional. The Executive can promulgate ordinances only when the legislature is not in session, and urgent conditions exist that warrant ‘immediate action.’148 The Executive is required to lay ordinances before the reconvened legislature. The legislature can pass a 193

M Mohsin Alam Bhat Table 11.1  Central ordinances promulgated by decade (1952–2021) Number of promulgated central ordinances149

Years 1952–1959 1960–1969 1970–1979 1980–1989 1990–1999 2000–2009 2010–2019 2020–2021 (until 30-09-2021)

57 67 133 84 196 72 78 26

resolution disapproving an ordinance. If not withdrawn by the Executive, an ordinance lapses in six weeks after the reassembly of the legislature. In view of these conditions, promulgating ordinances is supposed to be an exceptional, even an emergency-like or extraordinary power, and subject to ostensibly strong legislative oversight. The Executive is expected to resort to it in urgent circumstances when there is a need for legislation. But legislative practice over the last seven decades suggests that the Executive has not so confined its use of the ordinance power (see Table 11.1). First, the large number of ordinances since independence suggests that the Executive has not limited its law-making powers to exceptional circumstances. These ordinances do not mention the circumstances that justify the constitutional expectation of urgency or immediacy.150 Ordinances cover a range of substantive areas, not just those that may be ordinarily associated with urgency or immediacy. In 2020, the central government not only promulgated 14 ordinances,151 which were not limited to urgent matters (say, related to health during the covid pandemic), but also included ordinances on salaries and allowances for members of Parliament, commercial matters like insolvency, bankruptcy and banking, and even politically controversial issues like agricultural reform. This substantiates the view, held by commentators and scholars, that the Executive has misused the ordinance-making power to legislate on issues in which it did not command support in the legislature.152 Second, while ordinances are meant to have short life span, the Executive has found ways to keep them alive for long periods by repromulgating them, often without even tabling them before the legislature. This background has made the promulgation of ordinances increasingly politically controversial. Critics have argued that governments have attempted to circumvent constitutionally mandated accountability processes by pushing through controversial legislation via ordinances. The legality of ordinances remains ambiguous. The questions before the courts have been whether, and to what extent, the Executive’s ordinance-making power is justiciable. If it is justiciable, what should be the standard of judicial review and the appropriate legal test? The initial Supreme Court judgements on the subject, including AK Roy (1982), made it clear that the ordinance-making power was very much an ‘exercise of legislative power’ and not executive power.153 Ordinances, thus, were as much ‘law’ as ordinary legislation. The Court was also evidently less sympathetic to the claim that the ordinance-making power should be narrowly interpreted because it was in tension with democratic governance. In one case, it noted that ordinances ‘may appear to be undemocratic but it is not so, because the Executive is clearly answerable to the legislature,’ and that ordinances are for a ‘necessary 194

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purpose’ and ‘hedged in by limitations and conditions.’154 The Court, after recognizing that ordinances were based on the Executive’s legislative power, was reluctant to subject Executive discretion – in relation to immediacy and urgency – to judicial review.155 This reluctance, though, has significantly faded since. The first indication of this was in DC Wadhwa (1986), where the Supreme Court dealt with the legality of repromulgated ordinances. The state government of Bihar had promulgated 256 ordinances between 1967 and 1981 and, in some instances, had kept them alive for 14 years. In some cases, it had repromulgated the same ordinances as many as 39 times. The Court distinguished the question of repromulgation from the Executive’s satisfaction that an ordinance, in the first instance, was needed. Describing such mechanical repromulgations as colourable and a ‘fraud on the constitutional provision,’156 the Court held them to be unconstitutional. More recently, the Supreme Court has adopted a more expansive approach to justiciability and its authority in shaping remedies. In KK Singh (2017),157 the question before the Court was whether it could invalidate the first promulgation (and not merely subsequent repromulgations) of an ordinance, if the Executive failed to place it before the legislature? And if so, what would be the effect of this invalidation on the actions taken under such an ordinance? The Court, first, held that the Executive’s power to promulgate ordinances, even in the first instance, was subject to judicial review. Courts could evaluate whether the Executive’s satisfaction of the conditions was based on ‘some relevant material,’ or whether it was ‘actuated by an oblique motive.’158 The Court did not need to apply this test in the case and hence future adjudication will reveal how it is interpreted in concrete cases. Second, KK Singh held that while ordinances were legislative in character, their validity depended on fulfilling both prior and subsequent conditions. Placing ordinances before the legislature, in the future, would be a mandatory constitutional requirement for the conditional validity of ordinances. Failure to meet this condition would amount to an abuse of constitutional process and the ordinance in question would cease to operate. Third, rights, privileges, obligations, and liabilities under such failed ordinances may nevertheless survive if this serves the tests of public interest and constitutional necessity.

11.6  Political parties Despite the centrality of political parties in the Indian parliamentary practice, the constitutional framers did not recognize or regulate them.159 The beginnings of legal regulation of political parties can be found in election law. The ECI introduced mechanisms for the allotment of party symbols provisionally during the first election after independence (1951–1952) and then more formally through an order in 1968.160 Subsequently, Parliament introduced procedures for the recognition of political parties under the RPA 1951.161 An important step in the regulation of political parties, with important implications for parliamentary practice, was the introduction of the Tenth Schedule into the Constitution through a constitutional amendment in 1985.162 The schedule provides for the disqualification of members who either give up membership in their political party or vote contrary to party instructions.163 The schedule exempts cases of merger, where at least two-thirds of the members of a political party either join another party, or form a new party.164 The schedule, as expected, was controversial and raised fundamental questions about the character of representation in India’s parliamentary democracy. Among the key questions was whether the schedule, by inhibiting the freedom of members to not only change parties but also potentially to vote according to their conscience, violated a fundamental tenet of parliamentary democracy. The introduction of the schedule was defended on the ground that 195

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there were severe concerns about individual members altering their political loyalties, often due to temptations of office or money. The supporters argued that shifting party loyalties was a corrupt practice that undermined democracy. Should members be free to deviate from party lines if they considered it in the best interests of their constituents? Or should their role as representatives of their constituents be understood firmly within their party identity? The Supreme Court in Kihoto Hollohan (1992) was asked to decide these questions, and to assess whether the constitutional amendment violated the basic structure doctrine.165 The petitioners argued that while unprincipled defections are a problem, the amendment went beyond acceptable limits by constraining freedom of speech, dissent and conscience of the members.166 The Court’s majority also framed the issue as concerning the balance between the need to address ‘unethical and unprincipled changes of political affiliations,’167 and the freedom of speech and other prerogatives and privileges of members.168 Regarding this tension, it sided with the need to preserve the integrity of the party system. It noted that defections undermined the stability and utility of parties, as well as public trust in them. For the Court, this required that members should be bound by party decisions. But this dichotomy missed an equally pressing tension between members as agents of political parties and members as representatives of their constituents. The Court did not consider that there could be occasions when a member’s representative capacity towards their constituents may be in tension with their political party’s instructions. The most obvious example would be if the political party diverted from the party manifesto that had been the basis for the constituents to vote for the member. The Court also did not consider the serious democratic deficit within political parties. This oversight made the Court’s assumption that political parties were the primary vehicle of popular representation less persuasive. The Court interpreted India’s parliamentary democracy as essentially being constituted by political parties, who were the representatives of the electorate.

11.7 Conclusion This chapter sought to offer a broad overview of the key structural and procedural features of India’s legislative scheme. India’s central and state legislatures, in terms of their formal powers under the Constitution, are formidable institutions. Beyond their law-making powers, they can also hold the Executive accountable, while performing a range of regulatory functions of political consequence inside and outside the houses. But as the chapter points out, the legislatures’ performance over time has led to serious concerns about their institutional health. While legal norms have some gravitational pull, the well-being of the parliamentary institutions is often a function of the precarious dynamics of political power. Moreover, these political dynamics are also relevant for how legal norms themselves are interpreted over time. They set the stage and constitute how institutions set boundaries for each other and for themselves. The debates on representation and justiciability, which consistently came up during the course of the chapter, are a reflection of this relationship between the legal and political practices of the legislature.

Notes 1 Ronald L Watts, Comparing Federal Systems (2nd ed McGill-Queen’s University Press 1999) 6–7. 2 Constitution of India, art 79. 3 Constitution of India, arts 74, 163. 4 Constitution of India, art 331.

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The Parliament and state legislatures of India 5 Both states and union territories are listed in the First Schedule of the Indian Constitution. The main difference between the two is that while states have their own legislatures (assemblies, and wherever applicable, councils), union territories usually have a stronger and more direct role of the central government in governance. Some union territories may have legislatures and even enjoy devolved powers, but they have considerably lesser federalized powers compared to states. 6 Constitution of India, art 171(3). 7 Constitution of India, art 169. 8 For an early study of the institution, see WH Morris-Jones, Parliament in India. (Longmans, Green & Company 1959). 9 See, for example, Motilal Nehru, The Nehru Report: The Committee Appointed by the All Parties Conference (Mickiko and Panjathan 1928). 10 For a discussion of these themes in the Constituent Assembly, see Rochana Bajpai, Debating Difference: Group Rights and Liberal Democracy in India (OUP 2011); Madhav Khosla, India’s Founding Moment (Harvard University Press 2020). 11 Granville Austin, The Indian Constitution: Cornerstone of a Nation (Clarendon Press 1966) 144. 12 Constitution of India, art 326. 13 Constitution of India, art 330. 14 Constitution of India, art 332. 15 Constitution of India, art 334. 16 Constitution of India, arts 243D, 243T. 17 For a comprehensive analysis of these debates, see Niraja Gopal Jayal, Representing India: Ethnic Diversity and the Governance of Public Institutions (Palgrave Macmillan 2006). 18 Constitution of India, art 93. 19 Constitution of India, art 94. 20 Constitution of India, art 89. 21 Constitution of India, arts 100(1), 100(2). 22 Constitution of India, arts 92, 96. 23 Constitution of India, art 98. 24 Vernon Hewitt and Shirin M Rai, ‘Parliament’ in Niraja Gopal Jayal and Pratap Bhanu Mehta (eds), The Oxford Companion to Politics in India (OUP 2010) 28, 37–38. 25 Constitution of India, arts 81(2), 82. 26 Constitution of India, arts 82, 327. 27 Constitution of India, art 329(a). 28 See Delimitation Act, 2002, s 3. 29 Constitution of India, arts 327, 328. 30 Mark Tushnet, ‘Institutions Protecting Constitutional Democracy: Some Conceptual and Methodological Preliminaries’ (2020) 70(2) University of Toronto LJ 95; Tarunabh Khaitan, ‘Guarantor Institutions’ (2021) 16 Asian Journal of Comparative Law s40; Michael Pal, ‘Electoral Management Bodies as a Fourth Branch of Government’ (2016) 21 Review of Constitutional Studies 85. For an early and field-initiative article on the issue, see Bruce Ackerman, ‘The New Separation of Powers’ (2000) 113 Harvard LR 1. 31 Constitution of India, art 324. 32 See, for example, Kanhiyalal Omar v RK Trivedi (1985) 4 SCC 628. See generally, M Mohsin Alam Bhat, ‘Between Trust and Democracy: The Election Commission of India and the Question of Constitutional Accountability’in Swati Jhaveri, Tarunabh Khaitan and Dinesha Samararatne (eds), Constitutional Resilience Beyond Courts: Views from South Asia (Bloomsbury 2023). 33 M Mohsin Alam Bhat, ‘Governing Democracy Outside the Law: India’s Election Commission and the Challenge of Accountability’ (2021) 16 Asian Journal of Comparative Law s85. See also Alistair McMillan, ‘The Election Commission of India and the Regulation and Administration of Electoral Politics’ (2012) 11(2) Election Law Journal: Rules, Politics, and Policy 187; Ujjwal Kumar Singh and Anupama Roy, Election Commission of India (OUP 2019). 34 These include election officers at various levels of government. See RPA 1950, ss 13A, 13AA, 13C, 13CC. 35 RPA 1950, ss 8, 9. 36 Constitution of India, art 324; RPA 1950, ss 15–21. 37 RPA 1951, ss 8A, 9, 10A. 38 RPA 1951, s 11, 11B.

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M Mohsin Alam Bhat 3 9 RPA 1951, ss 8A(3), 9(2). 40 The Election Symbols (Reservation and Allotment) Order, 1968. 41 RPA 1950, s 29A. 42 RPA 1950, s 30. 43 RPA 1950, ss 19A–29. 4 4 RPA 1950 ss 66, 73. 45 Constitution of India, art 329(b). 46 RPA 1951, ss 12, 14(2), 15, 15A, 16. 47 RPA 1950, s 56. 48 In the Matter of Special Reference Case No. 1 of 2002, (2002) 8 SCC 237. 49 Election Commission of India, ‘Model Code of Conduct for the Guidance of Political Parties and Candidates’ accessed 1 October 2021. 50 RPA 1951, s 80A. 51 RPA 1951, s 100. 52 RPA 1951, s 101. 53 RPA 1951, s 116A. 54 Constitution of India, art 324. 55 SS Dhanoa v Union of India (1991) 3 SCC 567; TN Seshan, Chief Election Commissioner of India v Union of India [1995] 4 SCC 611. For a discussion of the weaknesses of this jurisprudence, see Bhat, ‘Governing Democracy Outside the Law’; Ramaswamy R Iyer, ‘The Election Commission and the Judgment’ (1996) 31 Economic and Political Weekly 37. 56 Constitution of India, art 84. 57 RPA 1951, s 4(d). 58 RPA 1951, ss 4(1)–(c). 59 Infra notes 165–171 and accompanying text. 60 Constitution of India, arts 102, 191. 61 Jaya Bachchan v Union of India, (2006) 5 SCC 266. 62 MR Madhavan, ‘Legislature’ in Sujit Choudhry, Madhav Khosla and Pratap Bhanu Mehta (eds), The Oxford Handbook of the Indian Constitution (OUP 2016) 270, 278. 63 RPA 1951, part II, chs III, IV. 64 If a sitting legislator is convicted, the disqualification will come into effect after 3 months, or until a court disposes any appeal or application filed by her. 65 Lily Thomas v Union of India, (2013) 7 SCC 653. 66 William B Heller and Diana M Branduse, ‘The Politics of Bicameralism’ in Shane Martin, Thomas Saalfeld and Kaare W. Strøm (eds), The Oxford Handbook of Legislative Studies (OUP 2014) 332, 335. 67 Infra note 97 and accompanying text. 68 Saul Levmore, ‘Bicameralism: When are Two Decisions Better than One?’ (1992) 12(2) International Review of Law and Economics 145; Arend Lijphart, ‘Consociation and Federation: Conceptual and Empirical Links’ (1979) 12(3) Canadian Journal of Political Science 499. 69 John Uhr, ‘Bicameralism’ in Sarah A. Binder, R. A. W. Rhodes and Bert A. Rockman (eds), The Oxford Handbook of Political Institutions (OUP 2008) 474, 479. 70 Heller and Branduse, ‘The Politics of Bicameralism’ 335. 71 Heller and Branduse, ‘The Politics of Bicameralism’ 336. 72 John Uhr, ‘Bicameralism’ 481; Louise Tillin, Indian Federalism (OUP 2019) ch 1. For a recent assessment of the role of the Rajya Sabha in terms of introducing political accountability, see Ronojoy Sen, ‘House Matters: The BJP, Modi and Parliament’ (2015) 38(4) South Asia: Journal of South Asian Studies 776. 73 Heller and Branduse, ‘The Politics of Bicameralism’ 337. 74 See E Sridharan, ‘The Party System’ in Niraja Gopal Jayal and Pratap Bhanu Mehta (eds), The Oxford Companion to Politics in India (OUP 2010) 117, 119–129. 75 Mahendra Prasad Singh, ‘The Decline of the Indian Parliament’ (2015) 14(3) India Review 352, 356. 76 For a critique of the Rajya Sabha’s role in providing a political check on the Executive or the rights of states, see Pritam Baruah and Nicolas M. Rouleau, ‘Democracy, Representation, and Self-Rule in the Indian Constitution’ (2011) 44(2) Law and Politics in Africa, Asia and Latin America 177, 193–194. 77 Kuldip Nayar v Union of India, (2006) 7 SCC 1.

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The Parliament and state legislatures of India 7 8 RPA 1951, s 3. 79 Kupdip Nayar para 47. 80 Kupdip Nayar para 71. 81 Kupdip Nayar para 73. 82 For a critique, see Tarunabh Khaitan, ‘Reforming the Pre-legislative Process’ (2011) 46(25) Economic and Political Weekly 27–30; Dipika Jain, ‘Law-Making by and for the People: A Case for Pre-legislative Processes in India’ (2020) 41(2) Statute Law Review 189. 83 Constitution of India, art 100(3). 84 Constitution of India, art 111. 85 Constitution of India, arts 32, 226, 142. 86 Constitution of India, arts 245, 246. 87 Constitution of India, Seventh Schedule. 88 Constitution of India, art 248. 89 Constitution of India, art 253. 90 Constitution of India, art 254(1). 91 Constitution of India, art 254(2). 92 See VK Sharma v Union of India, (2000) 9 SCC 449. 93 See V Niranjan, ‘Legislative Competence: The Union and the States’ in Sujit Choudhry, Madhav Khosla and Pratap Bhanu Mehta (eds), The Oxford Handbook of the Indian Constitution (OUP 2016) 466. 94 Constitution of India, art 249. 95 Constitution of India, art 252. 96 Constitution of India, art 250. 97 Constitution of India, art 250(2). 98 Constitution of India, art 251. 99 Constitution of India, art 356. 100 Constitution of India, art 356(1)(b). 101 Constitution of India, art 356(3). 102 Constitution of India, art 356 (4). 103 Constitution of India, art 368. 104 Kesavananda Bharati v State of Kerala (1973) 4 SCC 225. For an in-depth study of the doctrine, see Sudhir Krishnaswamy, Democracy and Constitutionalism in India: A Study of the Basic Structure Doctrine (OUP 2010). 105 Constitution of India, art 107. 106 Constitution of India, art 108. 107 Constitution of India, art 110(1). 108 Constitution of India, art 110(3). 109 Constitution of India, art 109(1). 110 Constitution of India, art 117(1). 111 Constitution of India, art 109(2). 112 Constitution of India, art 110(3). 113 Constitution of India, arts 122, 212. 114 KS Puttaswamy (AADHAAR) v. Union of India, (2019) 1 SCC 1, para 464. 115 For a critique based on the value of democracy, see Malavika Prasad and Gaurav Mukherjee, ‘Reinvigorating Bicameralism in India’ (2020) 3(2) University of Oxford Human Rights Hub Journal 96. 116 Rojer Mathew v South Indian Bank Limited, (2020) 6 SCC 1. 117 Beghar Foundation v K.S. Puttaswamy, (2021) 3 SCC 1. 118 MSM Sharma v Sri Krishna Sinha, AIR 1959 SC 395. 119 See Sidharth Chauhan, ‘Legislature: Privileges and Process’ in Sujit Choudhry, Madhav Khosla and Pratap Bhanu Mehta (eds), The Oxford Handbook of the Indian Constitution (Oxford University Press, 2016) 290, 296. 120 Special Reference No 1of 1964, AIR 1965 SC 745. 121 PV Narsimha Rao v State, (1998) 4 SCC 626. 122 Raja Ram Pal v Speaker, Lok Sabha, (2007) 3 SCC 184. 123 Amarinder Singh v Punjab Vidhan Sabha, (2010) 6 SCC 113. 124 Constitution of India, arts 118, 208.

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M Mohsin Alam Bhat 1 25 Constitution of India, arts 85, 174. 126 MR Madhavan, ‘Parliament’ in Devesh Kapur, Pratap Bhanu Mehta, and Milan Vaishnav (eds), Rethinking Public Institutions in India (OUP 2017) 67,75. 127 See infra notes 134–141 and accompanying text. 128 Madhavan, ‘Parliament’ 79. 129 BL Shankar and Valerian Rodrigues. The Indian Parliament: A Democracy at Work (OUP 2014) 3–6; Mahendra Prasad Singh, ‘The Decline of the Indian Parliament’ (2015) 14(3) India Review 352, 361–371 (discussing the factors causing the decline of the institution, including the erosion of the deliberative process and accountability performance of Parliament, and a rise in the criminalization of politics); Devesh Kapur and Pratap Bhanu Mehta, The Indian Parliament as an Institution of Accountability (United Nations Research Institute for Social Development 2006) 29 (suggesting that Indian Parliament may have become ‘dysfunctional’ in many respects). 130 Madhavan, ‘Parliament’ 73–74. 131 Rules of Procedure and Conduct of Business (15th ed., Lok Sabha Secretariat, 2014), r 266 (Lok Sabha Rules). 132 Wolfgang C Müller and Ulrich Sieberer, ‘Procedure and Rules in Legislatures’ in Shane Martin, Thomas Saalfeld and Kaare W Strøm (eds), The Oxford Handbook of Legislative Studies (OUP 2014) 311, 325. 133 Shane Martin, ‘Committees’ in Shane Martin, Thomas Saalfeld and Kaare W. Strøm (eds), The Oxford Handbook of Legislative Studies (OUP 2014) 352, 364. 134 Lok Sabha Rules, r 287. 135 Lok Sabha Rules, r 308. 136 Lok Sabha Rules, r 314. 137 Lok Sabha Rules, r 331E. For a history and background of India’s committee system, see Arthur G. Rubinoff, ‘India’s New Subject-based Parliamentary Standing Committees’ (1996) 36(7) Asian Survey 723. 138 Lok Sabha Rules, r 298. 139 Shane Martin, ‘Committees’ 358. 140 Shane Martin, ‘Committees’ 368. 141 Shane Martin, ‘Committees’ 364. 142 Eduardo Alemán, ‘Legislative Organization and Outcomes’ in Jennifer Gandhi and Rubén Ruiz-Rufino (eds), Routledge Handbook of Comparative Political Institutions (Routledge 2015) 145, 149. 143 Constitution of India, art 352. 144 Constitution of India, arts 358, 359. 145 Constitution of India, art 352 (4). 146 Constitution of India, art 352 (7). 147 Constitution of India, art 352 (8). 148 Constitution of India, arts 123, 213. 149 Calculated by the author, based upon the data in Statistical Handbook 2019 (Ministry of Parliamentary Affairs, Government of India, 2019) 55 accessed 1 October 2021; List of Central Ordinances (High Court of Tripura, Agartala) accessed 1 October 2021. 150 Shubhankar Dam, ‘Constitutional Fiat: Presidential Legislation in India’s Parliamentary Democracy’ (2010) 24 Columbia Journal of Asian Law 1, 9. 151 See Ordinances, 2020 (Legislative Department, Ministry of Law and Justice, Government of India) accessed 1 October 2021. This data is until 20.11.2020. 152 Dam, ‘Constitutional Fiat’. 153 AK Roy v Union of India, (1982) 1 SCC 271, para 14. 154 RK Garg v Union of India, (1981) 4 SCC 675, para 4. 155 See Dam, ‘Constitutional Fiat’ 49–51. 156 DC Wadhwa v State of Bihar, (1987) 1 SCC 378, para 7. 157 Krishna Kumar Singh v State of Bihar, (2017) 3 SCC 1 (KK Singh). 158 KK Singh, para 105.13. 159 Aradhya Sethia, ‘Where’s the Party?: Towards a Constitutional Biography of Political Parties’ (2019) 3 Indian LR 1.

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The Parliament and state legislatures of India 1 60 Bhat, ‘Governing Democracy Outside the Law’. 161 RPA 1951, part IVA. 162 The Constitution (Fifty-second Amendment) Act, 1985. 163 Constitution of India, Tenth Schedule, para 2. 164 Constitution of India, Tenth Schedule, para 3. 165 Kihoto Hollohan v Zachillu, (1992) Supp (2) SCC 651. 166 Kihoto Hollohan, para 30. 167 Kihoto Hollohan, para 38. 168 Kihoto Hollohan, para 39–40.

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12 THE LEGISLATURES OF INDONESIA Simon Butt and Tim Lindsey

12.1  Structure and the composition of the legislature The Republic of Indonesia is a unitary state, where state sovereignty vests ‘in the hands of the people and is exercised in accordance with the Constitution’.1 The national legislative power of the state is exercised primarily through the DPR (Dewan Perwakilan Rakyat, People’s Representative Assembly). However, Indonesia has two additional national-level institutions that have roles in national lawmaking, albeit very limited ones. These are the People’s Consultative Assembly (MPR or Majelis Permusyawaratan Rakyat) and the Regional Representative Assembly (DPD or Dewan Perwakilan Daerah). We now discuss these three legislative bodies in turn.

12.1.1  The DPR Part VII of the Constitution deals with the DPR, which is now Indonesia’s most powerful constitutional institution. Article 19(3) requires that the DPR meets at least annually and Article 19(2) provides that its organisation is to be regulated by statute. Because the DPR has power to enact statutes, the DPR has enormously wide authority to regulate itself, limited only by the parameters set by the Constitution. The DPR has 575 members, all of whom are democratically elected.2 They come from a range of political parties, the total number of which is limited, as discussed below. Besides its legislative powers, the DPR oversees the executive and the bureaucracy, including by ‘monitoring the implementation of legislation and the state budget’. Its members possess powers of ‘interpellation, of enquiry, and of expressing opinions’ and regularly use them to call state or government officials, judges and community members to provide information about an issue of importance to the state. The DPR is also increasingly called on to perform ‘fit and proper tests’ to fill senior government, administrative and judicial positions.3 The DPR has been criticised for prioritising these functions for largely political reasons, when it should be increasing its legislative output, as discussed below. Almost all of the DPR’s main functions are performed in commissions, except those performed by the Plenary Session, and each DPR member (except its leadership) sits on a commission. Each commission is responsible for specified matters and is usually entrusted 202

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with deliberating bills, supervising the implementation of laws and overseeing the state budget relating to those matters. At time of writing, the DPR had the following 11 Commissions: 1 2 3 4 5 6 7 8 9 10 11

defence, foreign affairs, communications and information, and intelligence; domestic governance, regional autonomy, state apparatus and elections; legal affairs and law, human rights and security; agriculture, forestry, maritime affairs, fisheries and food; transport, telecommunications, public works, public housing, village development and disadvantaged areas; trade, industry, investment, cooperatives, small and medium businesses and state-owned companies; energy, natural mineral resources, research and technology and the environment; religion, social affairs and the empowerment of women; health, labour affairs and transmigration; education, youth affairs, sports, tourism, art and culture; and finances, national development planning, banking and non-bank financial institutions.4

The membership of the DPR and the number of parties permitted to compete in elections to fill the institution, have long been controversial in Indonesia – even in more democratic times. Indonesia was under authoritarian rule from 1957 until 1998, with the last 33 years of that period under President Soeharto. From the early 1970s, his government – called the ‘New Order’ (Orde Baru) – forced the amalgamation of all existing political parties into just two: the United Development Party (PPP or Partai Persatuan Pembangunan) and the Indonesian Democratic Party (PDI or Partai Demokrasi Indonesia).5 The aim was to hobble these parties so that they could not compete with Soeharto’s electoral vehicle, Golkar,6 or act as a check on government power. This strategy was, for most of Soeharto’s rule, very effective, given that the members of two new parties held different, and often incompatible, political goals and interests.7 With military backing, the government monitored the activities of PDI and PPP and even sought to install party leaders who were government sympathisers. Consequently, these parties never posed a serious threat to Golkar, which comfortably won every election from 1971 until 1997, usually with a final vote that was within a few percentage points of President Soeharto’s publicly announced target. The result was that the DPR became little more than a ‘rubber-stamp’ for the regime’s legislative programme.8 Yet even after Soeharto’s fall, some limits on the number of political parties able to contest elections and occupy legislative seats have remained. In 1998, new parties were established, and 48 of them contested the 1999 elections.9 This resulted in a legislature that was too fragmented to effectively govern. At the behest of some of the larger parties, changes were therefore made to the electoral rules to reduce the number of parties contesting elections. These changes have been achieved through the tightening of party validation requirements (for example, by requiring parties to have a minimum number of representative offices across Indonesia) and legislative thresholds (that is, the minimum number of votes required to take up seats in the DPR, usually represented as a percentage of seats).10 By 2004, the DPR was filled solely by democratically elected representatives, as military personnel were no longer allocated seats as they had been under Soeharto.11 203

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12.1.2  The DPD Part VIIA of the Constitution covers the composition and powers of the DPD, the Regional Representatives Assembly. As its name suggests, the DPD’s primary function is to represent the interests of Indonesia’s regions. However, it has no real power to perform this function: as discussed below, it cannot affect the law-making process beyond simply proposing and participating in debates on draft legislation. It has no power to veto, or even vote on, bills that come before the DPR. Article 22C(1) of the Constitution requires the members of the DPD to be elected, with each province having the same number of DPD representatives. General elections for the DPD are held every five years (Art 22E). The number of DPD members cannot exceed onethird of the DPR’s (Art 22C(2)), thereby ensuring that the DPR controls the MPR, as we explain shortly. Before 2014, DPD candidates needed to be independent, that is, not a member of a political party. In 2014, this limitation was removed but a challenge brought in 2017 resulted in the Constitutional Court reinstating the limitation to exclude party functionaries.12

12.1.3  The MPR The MPR is, in effect, a joint sitting of members of the DPR and the DPD, both chosen at general elections. Previously, the MPR could choose the president and had power to issue laws that governed the direction of government policy. It no longer has either power, but many of its decrees (ketetapan or TAP) issued in the past still have legal force. The MPR now has two functions, both highly significant. The first is to amend the Constitution. It is the only institution with power to do this and most recently exercised it in four annual constitutional amendment rounds in 1999–2002 (Articles 2 and 3 of the Constitution). The second is to impeach the president and vice-president (Article 7A of the Constitution). It can only perform this second function if the Constitutional Court has issued a decision finding that the president or vice-president has committed a crime or performed a reprehensible act (Article 7B).

12.2  Relationship between National (Federal) Legislature and Regional (State/Municipal) Legislatures Under Soeharto’s New Order, Indonesia was a highly centralised republic with power concentrated in the national government, based in Jakarta – particularly the presidency. The primary function of local governments was loyally to support and implement national policies and directives.13 Well before Soeharto’s resignation, this system had become deeply unpopular. Many provinces had long complained that Jakarta’s economic, military and bureaucratic controls were excessive and that the fruits of Indonesia’s natural resources – largely located in outer regions – were channelled almost entirely to the centre, particularly to the Soeharto family.14 Some provinces even sought to break away from Indonesia, generating sustained periods of civil war, including in Aceh, West Papua and East Timor.15

12.2.1  Legal framework for regional autonomy Decentralisation was, therefore, one of the key demands of reformists in the post-Soeharto period. The first batch of decentralisation laws was enacted in 1999 and came into operation in 2001.16 204

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These were replaced in 2004 and again in 2014, in part to reconfigure the power balance between the various tiers of government. Indonesia is now divided into 38 provinces (propinsi) and over 500 counties (kabupaten) and cities (kota), all of which have separate legislative and executive governments. While the 1999 Law devolved extensive authority from the ‘central’ national governments to city and county governments,17 many powers were ‘clawed back’ in 2004 and 2014. The 2004 Autonomy Law gave provinces more powers, at the expense of cities and counties, and made them ‘responsible for implementing central government affairs in provinces, counties and cities’ (Art 38(1)). The 2014 Law consolidated the position of provinces so that they clearly sit ‘above’ cities and counties and exercise some control over them, though the precise extent of that control remains unclear. One of the main effects of the 2014 Law is that it seeks to stamp the authority of the national government in general – and the president in particular – over subnational governments, whether provincial, city or county. The Law emphasises that the president holds ‘governmental authority’ (kekuasaan pemerintahaan) (Art 5(1)), which extends across Indonesia. The central government now determines policies as the basis for ‘performing government affairs’ (menyelenggarakan urusan pemerintah) (Art 6), namely, concurrent affairs falling within the authority of both national and subnational governments.18 It also ‘develops and supervises’ the performance of regional governments (Art 7(1)).19

12.2.2  Relative jurisdictions Subnational legislatures and executives were given responsibility over a wide variety of matters and the Constitution grants them power to enact laws and issue decisions to exercise their autonomy (Art 18(6)). These laws are called ‘regional regulations’ (Peraturan Daerah, or Perda) and encompass regulations and decisions issued by these subnational parliaments and executives. The 2014 Law establishes three categories of government ‘affairs’ (urusan): absolute (absolut), over which the central government has exclusive authority; concurrent (konkuren), over which authority is divided between the three tiers and authority is handed to the regions ‘based on regional autonomy’; and ‘general government’, over which the president has jurisdiction, as head of the administration (Art 9). Matters of absolut jurisdiction – reserved for the central government – are: overseas political affairs, defence, security, justice, national monetary and fiscal issues and religion (Art 10(1)).20 The central government can exercise power over these matters itself or can delegate it to a ‘vertical agency’ in the region – that is, a local branch of a central government ministry or non-ministerial government agency – or to the governor, as the central government authority (Art 10(2)). Concurrent affairs fall within the jurisdiction of the national and regional governments and consist of both ‘obligatory’ and ‘optional’ affairs (Art 11(1)). Obligatory affairs are further divided into ‘affairs related to basic services’ and ‘affairs not related to basic services’ (Art 11(2)). Obligatory affairs relate to basic services cover: education and health; public works and spatial planning; people’s housing and settlements; peace, public order and community protection; and social affairs (Art 12(1)). Regional governments are to prioritise providing these basic services (Art 18(1)) and, when doing so, must follow minimum standards set by the central government (Art 18(2) and (3)). Obligatory affairs not related to basic services cover: workforce issues; women’s empowerment and child protection; food; land; environment; population administration and the civil registry; community and village empowerment; population 205

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control and family planning; transportation; communications and information; cooperatives and small-medium enterprises; capital investment; youth affairs and sport; statistics; culture; cryptography; and libraries and archives (Art 12(2)). Optional concurrent affairs cover: marine and fishery matters; tourism; farming; forestry; energy and mineral resources; trade; industry; and transmigration (Art 12(3)).21 The 2014 Law also allocates jurisdiction over affairs that cross jurisdictional borders. So, for example, the central government has jurisdiction over affairs that cross provincial and national borders (Art 13(2)), provinces have jurisdiction over affairs that cross city and county borders (Art 13(3)) and counties and cities have authority over affairs in their own areas (Art 13(4)). As for subject matter jurisdiction, the 2014 Law’s main text deals only with strategic national interests and affairs that would be more efficiently managed by the central government (both of which fall within the central government’s jurisdiction) (Art 13(1)). The Law also covers division of authority between the central and subnational governments concerning forestry, marine issues, energy and mineral resources, depending on the precise affair or issue (Art 14). So, for example, counties and cities manage forest parks (Art 14(2)) and geothermal energy exploitation (Art 14(4)), while the central government manages oil and natural gas (Art 14(3)). An Appendix (Lampiran) to the Law divides up government affairs among the central, provincial and city/county governments in more detail (Art 15(1)). The Appendix comprises almost 150 pages and outlines relative responsibility over concurrent affairs, including education, health, public works, spatial planning, housing, public order, women’s empowerment and child protection, land and the environment. Issues that are not covered in the Appendix fall within the jurisdiction of ‘every level’ of government (Art 15(2)) and are to be ‘stipulated by presidential regulation’ (Art 15(3)).

12.2.3  Central government override Article 10(5) of the 2004 Law had provided the central government with power to exercise jurisdiction over affairs falling within the jurisdictions of local governments or to delegate this power to regional apparatuses and officials. This provision appeared to ‘defeat the very goal’22 of decentralisation, because it allowed the central government to override or replace subnational laws, or to enact a law that regulated a particular issue, thus leaving little or no regulatory scope for local governments. The 2014 Law appears to contain no direct equivalent to Article 10(5) but, in our view, other provisions in the Law lead to the same or a similar result. Article 19(1) of the 2014 Law grants the central government power to exercise concurrent jurisdiction but, unlike Article 10(5) of the 2004 Law, specifies this to be only in respect of issues falling within its concurrent jurisdiction as specified in the Law. Although this provision has not, to our knowledge, been judicially tested in Indonesia, it seems not to grant carte blanche to the central government in the way Article 10(5) did. The 1999, 2004 and 2014 regional autonomy laws required all subnational governments to send their Perda after enactment for ‘evaluation’ review within seven days of a local government finishing its deliberations and the legislature and regional head agreeing to it. City and county governments must send their Perda to their provincial governor for review (Arts 242(4), 249(3) 2014 Regional Autonomy Law); and provincial governments must send their Perda to the Ministry of Home Affairs (Art 242(3), 249(1)). If they fail to do so, they risk a written reprimand from the Minister or the governor (Art 249(2) and (4)). This sanction is weak, giving local governments almost no incentive to comply with the pre-enactment 206

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review process. The result, as discussed below, is that few local governments submit their Perda for review, and this is unlikely to change. The criteria by which the governor or Minister assess Perda are whether they conflict with a higher level law, the public interest or morality (Art 250(1)). ‘Morality’ is defined as ‘norms related to civilisation and politeness, good behaviour and excellent manners’ (Elucidation to Article 250(1)). ‘Public order’ is defined to include: disturbing inter-communal harmony; access to public services; public peace and order; or economic activity that increases the people’s prosperity; and discriminating against an ethnic group, religion or belief, race, group or gender (Art 250(2)). The reference to higher level laws in Article 250(1) appears to be to the hierarchy of laws contained in Article 7(1) of Law 12 of 2011 on Lawmaking.23 This is a list of laws, ranked in relative authority, which positions the Constitution, national statutes, government regulations and presidential regulations above provincial regulations and county and city regulations. In other words, a subnational regulation should not be inconsistent with a national statute, government regulation or presidential regulation. Much uncertainty surrounds the precise operation of the hierarchy, particularly regarding the status of types of laws not mentioned in the hierarchy. This is an important legal issue in the context of regional autonomy, because the Home Affairs Minister often seeks to exercise control over subnational governments by issuing ministerial regulations, which are not included in the hierarchy as a type of law. According to Articles 251(1)–(4), laws that conflict with a higher law, the public interest or morality can be invalidated by the Minister (by Ministerial Regulation, for provincial laws) or the provincial governor (by gubernatorial decision, for city or country laws). If the governor fails to invalidate a city or county Perda that does not meet these criteria, the Minister can invalidate it. If unhappy with invalidation, governors can object to the president (Art 251(7)), and mayors or regents to the Minister (Art 251(8)). If no objection is lodged, the local government has seven days to stop implementing the Perda and to cancel it (Art 251(5)). Regional governments that continue applying an invalidated Perda face administrative sanctions (Art 252(1) and (2)), including withdrawal of central government funding (Arts 252(3) and (5)). Some types of Perda require approval before their enactment. These are laws setting local budgets, changes to budgets, spatial plans, taxes and user charges (retribusi) and regional development plans. Provincial Perda with this subject matter must be sent to the Minister for pre-approval (Art 245(1)); and city and county Perda must be sent to the governor before enactment (Art 245(3)). So, for example, once a provincial DPRD and governor agree to a long-term development plan, they must send it to the Minister within three days (Art 267(1)). The reviewer then has 15 days to assess the plan by reference to its consistency with spatial plans, the public interest and higher laws (Art 268(1)). If the evaluation is negative, the local government has seven days to respond by sending an amended version (Art 268(3)). If it does not respond and enacts the law regardless, the Minister can invalidate it (Art 268(4)). Similar review processes exist for medium-term plans (Arts 269–271), regional budgets (Art 314–315), and for tax and user charges laws (Arts 324 and 325), although Perda produced by city and county governments are assessed by their provincial governor rather than the Minister. For many years, these Perda review processes were criticised for being ineffective. Many local governments were notorious for failing to send their Perda for review and for failing to respond to negative reviews.24 Another significant problem was that the Minister and governors lacked the human resources to review the many thousands of Perda issued each year.25 Under the 2004 Law, the central government’s right of review expired after 60 days (Art 145(3)). If it did not invalidate the Perda within this time, the Perda continued in force by default (Art 145(7)). The result was that many Perda simply ‘slipped through’, even 207

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if their content may have failed to meet these criteria. By contrast, the 2014 Law did not provide for automatic validity after a given period. This led to fears that Perda for review could become bottlenecked in the offices of the Ministry or governors, indefinitely delaying local lawmaking. Another perceived failure of the Perda review process is that the central government almost exclusively reviewed and invalidated Perda that seek to raise revenue.26 Presumably, this focus helps guard central government revenue flows. Laws in other subject matter areas appear to have escaped invalidation, perhaps even any form of review, despite some appearing to contradict central government laws or the public interest. For example, the National Women’s Rights Commission (Komnas Perempuan) has conducted an annual review of the Perda in force in Indonesia’s regions in past years. In mid-2016, the Commission announced that it had identified as many as 421 bylaws that were discriminatory against women and minorities between 2009 and 2016.27 Discrimination based on gender is expressly prohibited by ‘higher laws’, namely, the 1999 Human Rights Law and the Constitution,28 yet the central government did not find problems of discrimination in the review process, or ignored them, and did not act on the Commission’s reports. Indeed, the central government appeared to be nervous, or at least very cautious, about cancelling Perda relating to religion or morality, perhaps fearing the response of religious conservatives.29 Despite these problems, the central government reviewed and invalidated an increasing number of Perda, albeit, as mentioned, only those relating to revenue. In 2016, for example, the Jakarta Post reported that the Ministry of Home Affairs had revoked 3,143 Perda that conflicted with central government regulations or hampered economic growth.30

12.2.4  Judicial review However, the bureaucratic review mechanisms just described are no longer available. In two decisions issued in early mid-2017, the Constitutional Court invalidated the provisions of the 2014 Law, discussed above, that allowed provincial governors and the central government to review and invalidate Perda after their enactment. The first case was brought by over 40 county governments and the Indonesian Association of County Governments.31 They disputed various provisions in the 2014 Law, including the subsections in Article 251 that allowed governors to invalidate city and county laws that breached higher level laws, the public interest, or morality. These provisions, they claimed, were unconstitutional for two reasons: first, because they violated the rights of subnational governments granted by Article 18 of the Constitution; and, second, because bureaucratic review usurped the judicial function of the Supreme Court. A majority of the Constitutional Court accepted this second argument, equating the function of governors and the Minister with ‘judicial review’ which, under the Constitution, could only be performed by the Supreme Court. The Constitutional Court added that gubernatorial decisions lacked sufficient authority to invalidate city or county Perda for two related reasons: first, these decisions did not appear in the hierarchy of laws, while Perda do; and, second, an administrative decision cannot prevail over a regulatory instrument in any event.32 This usurpation of the judicial function, and ignoring of the hierarchy, led the court to conclude that the impugned provisions violated the rule of law (negara hukum). A minority disagreed, arguing that the president, as head of the government administration, was responsible for exercising government authority and could, therefore, review and invalidate Perda. The decision-making process in this case was suspect, although this went largely unnoticed in Indonesia’s legal community.33 Included on the nine-judge panel hearing the case was 208

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Patrialis Akbar, former Minister for Justice and then a Constitutional Court judge. Akbar also participated in a judge’s meeting about the case on 20 August 2016. However, by the time the court met on 2 February 2017 and 30 March 2017 to discuss the case again, he had been suspended from office and was being prosecuted for taking a bribe to fix the outcome of another Constitutional Court case. Yet without him and his vote, the Court was split four judges to four. Whether a judge must be present during hearings, and during all deliberation meetings, to have his or her ‘vote’ count is an issue not regulated by law. If this case is anything to go by, it appears that a judge need not be present at all important events related to proceedings, although in our view this greatly weakens the authority of the court’s decisions, leaving it open to allegations that decisions do not properly represent the opinions of all the judges or even that they have been manipulated. Had the Court considered itself to be ‘split’ (as we think it should have), the chief justice would have the casting vote.34 This could have resulted in an entirely different outcome in this case, because Chief Justice Arief Hidayat had been in the minority. A few months later, the Court handed down a decision of similar effect – but this time concerning provincial Perda.35 The Court applied its reasoning in the earlier case to invalidate provisions of the 2014 Law that allowed the Minister to invalidate them by issuing a formal ministerial decision. Again, the way this case was decided raises significant questions about the Court’s operations that escaped significant scrutiny. This time, Akbar’s replacement, Saldi Isra, was not appointed until after the Court had heard the case but the decision states that he participated in the sole judges’ deliberation meeting. Again, this raises questions about whether judges must participate in hearings and the judicial deliberations where the decision is made if they are to have their votes counted. Again, the case seems to indicate that judges need not be present at both. Once again, if Isra’s vote was excluded, the Court would have been split four judges to four. Now that post-enactment bureaucratic review is no longer available, the primary means by which a Perda can be revoked is through judicial review in the Supreme Court. In fact, the Supreme Court has been asked to review subnational laws for compliance with national legislation in numerous cases. However, it has generally been reluctant to exercise its review powers. When it does, the Court often: fails to demonstrate that it has considered the parties’ arguments; declines to examine the merits of the case; issues decisions inconsistent with previous decisions; or provides few (if any) reasons for its conclusions. 36 The result is that regulation produced by regional legislatures and governments is now rarely subject to any form of review. This is highly problematic given the huge proliferation of lower level laws triggered by decentralisation and the corruption prevalent in local governments across Indonesia.37 It is widely believed that many local officials use their office for private commercial gain rather than to improve public services for their constituents, and it is common for Perda to be unworkably unclear, meet no apparent regulatory need and not be preceded by any public consultation. As the law now stands, there is often very little that can be done about this by the national government or concerned citizens. This is emerging as a major flaw in Indonesia’s legal and political systems.

12.3  Election of members of the legislature Voting is not mandatory in Indonesia. Most Indonesians, provided that they are aged 17 or above or married, can vote every five years for: two national-level bodies – the national legislature (DPR) and the regional representative council (DPD); the president and vice-president; 209

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their provincial legislature; their city or county legislature; and their provincial governor or their mayor or regent, depending on whether they live in a city or a county. Presidential candidates are nominated and elected in pairs, as are those seeking election as regional governors (in provinces), regents (in counties) and mayors (in cities). Most of these elections have traditionally been governed by a patchwork of statutes and regulations that are frequently amended, especially in the lead-up to general legislative elections. Only in 2017 did the national legislature enact a statute (the 2017 General Election Law) that consolidates the law governing most of these elections. The only elections not governed by this statute are regional head elections, which continue to be regulated under general regional autonomy legislation (see above). Article 22E of the Constitution covers elections and provides that they are to be used to elect members of the DPR, DPD and Regional People’s Representative Councils (Dewan Perwakilan Rakyat Daerah, DPRD), and the president and vice-president. ‘Participants’ (that is, candidates) in DPR and DPRD elections are political parties, whereas in DPD elections ‘participants’ are individuals (Art 22E(4)).38 Article 22E(1) of the Constitution requires that general elections take place every five years and be organised in a ‘direct, public, free, secret, honest, and fair way’. Article 22E(6) provides that general elections are to be regulated in more detail by statute, and there are now many that do so. Regional regulations and a range of other subordinate regulations – including various decisions of the General Electoral Commission on technical issues – also apply to the conduct of many elections.

12.3.1  Electoral system Indonesia has traditionally employed a proportional system for legislative elections, both national and subnational. In the first post-Soeharto elections, held in 1999, a closedlist system was employed for these elections. Parties obtaining enough votes to obtain seats could allocate seats to the candidates they preferred, as ranked on a candidate list, regardless of how many votes the candidates received. 39 This system was widely criticised for motivating candidates to bribe parties to be placed high on candidate lists, making election more likely.40 The system was changed to an ‘open-list’ system for the 2004 elections,41 which allowed voters to choose a particular candidate from a party or to simply vote for a party. An individual candidate would automatically receive a seat if the number of votes he or she obtained met the ‘seat quota’ in a given electoral district – that is, the number of overall votes divided by the number of available seats.42 The system was changed again in 2008, ahead of the 2009 elections, to allow voters to choose an individual candidate, a party or both.43 Critically, it was also made easier for party members to be elected as individual candidates: in order to obtain a seat, they needed to obtain only 30% of the seat quota. Any remaining seats would then be allocated to candidates based on their position on the candidate list.44 The Court finally made party lists entirely obsolete in the Open List case (2008),45 requiring parties to allocate seats to their candidates receiving the most votes, rather than according to their position on the list. The Court held that the list system violated the ‘principle of people’s sovereignty’ established by Article 1(2) of the Constitution. For the majority of the Justices, democracy was a fundamental and absolute principle. Candidates must, therefore, be elected based on the number of votes they receive, not their position on a party list.46 210

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12.3.2 Candidacy The Constitutional Court has regularly been called upon to invalidate prohibitions on individuals standing for election on grounds such as political belief, criminal record or lack of affiliation with a political party. Indeed, in one of its earliest cases – the PKI case (2003) – a majority of the Court removed candidacy restrictions that prevented former members of the now-defunct Indonesian communist party (Partai Komunis Indonesia, PKI) and their families from standing for election, holding that those restrictions were discriminatory.47 This was a courageous decision, given the heavy opprobrium directed at communists in Indonesia since the slaughter and imprisonment of well over a million supposed ‘Leftists’ in the late 1960s, when the army under Soeharto annihilated the PKI and its supporters in order to seize power. The Constitutional Court has also heard several challenges to provisions in general election laws that prevent candidates from standing for election or occupying a particular office if they have been convicted of a crime attracting a prison sentence of five years or more. In these cases, the Court has progressively watered down this general prohibition, creating a list of exceptions.48 The most important case on this issue involved an applicant who had served almost ten years in prison for violent robbery causing death,49 and so was prohibited from standing as a candidate for election to the DPD, DPR, and any provincial or city/county DPRD.50 The Court struck down that prohibition, provided that the candidate honestly disclosed the conviction to the electorate, was not a recidivist and had ‘adapted back into society’. Five years must also have passed since the sentence was completed.51 Politically, the Court’s stance has been difficult to maintain, and the Electoral Commission has continued to refuse to allow convicts to stand for election.52 Despite resistance, political parties eventually agreed to follow the Commission’s stance.53

12.4  Electoral reform Indonesia’s electoral system has been in a constant state of flux for decades. Since 1999, Indonesian electoral law has changed every few years, typically with particular frequency as general legislative elections draw near. Politicians often explain these changes as being necessary to simplify the electoral or party system by reducing the number of parties in the legislature. They cite the difficulties that a large number of parties present for decision-making. Commentators, meanwhile, point out that most of these changes are directed towards entrenching the larger political parties by making them more likely to obtain seats in future elections – and even to increase their share of seats, while reducing competition from smaller parties.54

12.4.1  Simultaneous elections Perhaps the most significant change to the Indonesian electoral system since 1999 has been the introduction of simultaneous election: holding, at the same time, elections for the DPR, DPD and subnational legislatures on the one hand, and elections for the presidency on the other. Before 2019, presidential elections were held three months after legislative elections. This emerged out of a Soeharto-era practice, when the MPR would select and appoint the president after the MPR elections. This was a largely ceremonial exercise, given that Soeharto controlled the MPR. After Soeharto’s fall, the practice remained – albeit with a democratically elected MPR. The practice was maintained after direct presidential elections were introduced in 2004. In a 2014 decision, the Constitutional Court changed these practices, holding that the Constitution required that these legislative elections and the presidential election be held 211

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on the same day, every five years.55 The resulting combined election was a massive logistical exercise.56 Some have claimed that conducting the elections simultaneously led to many errors in counting, as well as to problems with general election administration, which have undermined the legitimacy of elections. While there were undoubtedly mistakes, administrative problems and significant corruption, there is little to suggest that the 2019 election was any worse than previous elections. Perhaps the main negative consequence of simultaneous elections was the death of over 600 officials, primarily from exhaustion.57 These officials set up polling stations, oversaw the voting and then counted the votes. The 2017 general election law requires that votes be counted on election day. So, after a long day of work, many kept working late into the night and into the early hours of the morning to check and cross check their counts. It was anticipated that running these elections simultaneously would increase efficiency and reduce costs but it did not. According to one report, the 2019 simultaneous elections cost 60% more than the 2014 elections.58 From a democratic perspective, perhaps the biggest problem with simultaneous elections is that they interfere with the presidential nomination process. Ever since 2004, when direct presidential elections began in Indonesia, electoral statutes have required that parties or coalitions meet a ‘presidential nomination threshold’ in order to nominate their preferred candidate pairs (president and vice-president). For the past three elections, this has been 20% of national legislative seats or 25% of the total vote. Before 2019, when presidential elections were held three months after legislative elections, this was not an issue because parties nominated their preferred presidential candidates after they knew how many seats and votes they had. But with simultaneous elections, presidential nominations needed to happen before election day. This caused problems because parties did not know how many votes or seats they would get in the legislative election before nominating their presidential candidates. The solution, contained in the 2017 general election law, was to base the nomination threshold on the results of the 2014 legislative elections. In other words, political parties serving in the 2014–2019 legislature nominated presidential candidates for the 2019–2024 presidential term, regardless of how many seats in the legislature or votes they obtained in the 2019 legislative elections. This undermines the main rationale for the presidential nomination system: because parties must work with the presidential pair that are eventually elected they should nominate their preferred pair. This rationale falls away if the legislature that nominates a president is not the same legislature that then has to govern with that president. This flaw did not appear to cause fundamental problems in the 2019 elections, because the number of votes the top three parties obtained was within a few million votes of their 2014 results. But if one of the parties were to lose a significant proportion of their vote share because of scandal or poor performance, as Susilo Bambang Yudhoyono’s party did in the 2014 elections, allowing that party to have a substantial say in presidential nominations for future elections would seem inappropriate.

12.5  Powers of the legislature other than legislating 12.5.1  The DPR As mentioned, DPR members enjoy constitutional rights ‘to ask questions, to make proposals and to give other opinions, with a right to immunity’ (Art 20A(3) of the Constitution); they also have rights of ‘interpellation, of enquiry, and of expressing opinions’ (Art 20A(2)). 212

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The Constitution additionally grants the DPR extensive authority to perform ‘legislative, budgetary and oversight functions’ (Art 20A(1) of the Constitution and Article 69(1) of Law 17 of 2014).

12.5.2  The DPD Article 22D grants three powers to the DPD. First, Article 22D(1) allows it to submit bills to the DPR about the following: 1 2 3 4 5

regional autonomy; relations between the central government and the regions; establishing, developing and merging regions; management of natural and other economic resources in regional areas; and financial balance between the central government and the regions.

Second, Art 22D(2) gives the DPD power to participate in DPR debates on these regional issues, and to provide recommendations to the DPR about bills concerning the national budget, taxation, education and religion. Third, the DPD can ‘supervise the implementation’ of laws relating to most of these issues 59 and report its findings to the DPR ‘as material for consideration and further action’ (Art 22D(3)). In practice, these limited powers have proved to have very little political significance, and the DPD has mostly been irrelevant to policy formation and implementation. There have been several attempts by political parties and DPD members to increase legislative power to the DPD to create a real bicameral system60 but these have been repeatedly rejected by the Constitutional Court, the MPR and, of course, the DPR, which is unwilling to cede any of its extensive powers to any other institution.

12.6  The legislative process Statutes (undang-undang) are laws enacted by the national legislature, the DPR. The subject matter of legislation appears to be virtually unlimited, subject to the Constitution. Article 10(1) of the 2011 Lawmaking Law specifies subject matter that must be regulated through legislation and, therefore, presumably cannot be regulated by a lower level law. These are matters that either the Constitution or another statute requires to be regulated by statute, and the ratification of particular international agreements. Article 10(1) also says that legislation is the legal instrument required to respond to Constitutional Court decisions and to fulfil ‘legal needs in the community’ (though this term is not defined).

12.6.1  The National Legislative Programme (Prolegnas) At the beginning of its five-year term, the DPR formulates a five-year National Legislative Program (Prolegnas or Program Legislasi Nasional), which contains a list of bills that the national legislature plans to enact in the short to medium-term.61 The list should include bills that are required by the 1945 Constitution and other laws, national development plans, government and legislative objectives and the ‘legal aspirations and needs of society’ (Art 18, 2011 Lawmaking Law). Also required is an outline of each bill’s subject matter, aims, targets and scope, and an explanation about how it ‘fits’ with existing laws.62 Most bills must also be accompanied by a formal academic study (naskah akademik) that outlines why the bill is 213

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necessary.63 However, the absence of a naskah akademik accompanying a bill during introduction, deliberation and passage usually will not, of itself, render invalid the statute thereby enacted.64 A Legislative Committee (Badan Legislasi or Baleg), elected at the beginning of each fiveyear DPR term, oversees the preparation of the Prolegnas. DPR factions and commissions, the DPD (Dewan Perwakilan Daerah or Regional Representatives Council, discussed further below), the government and the community can submit proposed bills to Baleg for inclusion in the Program. Baleg prepares a draft Plan and puts it before a DPR Plenary Session for approval. It then helps prepare bills initiated by the DPR, DPR commissions and members before they are presented to the DPR Chairperson. The Prolegnas is notorious for its rigidity – a bill will ordinarily not be deliberated or enacted if not included in it. However, the 2011 Lawmaking Law provides some scope for unlisted bills to be considered for enactment. Article 23(1) allows ‘open’ categories to be included on the list to accommodate the need to: ratify international conventions; respond to Constitutional Court decisions; address national income and expenditure budgets; form, split or consolidate provinces, cities or counties; or endorse or annul interim emergency laws. Article 23(2) of the 2011 Lawmaking Law also allows the DPR and President to introduce unlisted bills to overcome: ‘extraordinary circumstances’; conflict situations and natural disasters; and ‘other circumstances’ that create ‘national urgency’ for a bill, as agreed by Baleg and the Law and Human Rights Minister (Art 23(3)).

12.6.2  Initiating bills Bills included on the Prolegnas can be introduced by three bodies: the President, the DPR and the DPD (Arts 43(1)(2)). Bills proposed by the President (usul inisiatif Presiden) are generally prepared by a government minister or the head of a non-department government institution who works in the area to which the subject matter of the bill relates (Art 47). After the bill has been drafted by a team of government officials, academics and experts, the DPR Chairperson introduces the bill into the legislature, accompanied by a Letter of Introduction from the President (Art 50(1)) and the naskah akademis (Art 43(3)). A minister must be appointed to represent the President during deliberation of the bill in the DPR (Art 50(2)). Without such a presidential representative, deliberation is likely to be delayed. In the usual course of events, the DPR should begin deliberations within 60 days of receiving the President’s Letter (Art 50(3)). Bills introduced by the DPR (usul inisiatif DPR) can be prepared by Baleg, a DPR Commission, a Coalition of Commissions or a group of members. A Plenary Session will then decide whether the DPR should consider the bill and can suggest modifications to the bill. If accepted for deliberation, the bill is sent to the President and the DPD leadership (if the subject matter of the bill covers a matter relevant to the DPD, discussed below). They must then nominate an official to represent them in DPR deliberations over the Bill. DPD-initiated bills can originate from a governor or mayor, or a DPD member or commission, and must deal with a matter falling within the DPD’s purview – that is, regional affairs. These include: the relationship between central and local governments, including financial issues; the formation, expansion and merger of regions; and the management of natural resources and other economic resources. One quarter of DPD members must agree before the bill is drafted and then sent to the DPR. A Plenary Session of the DPR decides whether to deliberate it and, ultimately, whether to enact it. 214

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12.6.3 Deliberation Once the DPR decides to consider a bill, it is deliberated within a two-stage process. During Stage I deliberations, the various DPR factions and government representations meet to discuss and prepare it (with the DPD, if the bill relates to regional affairs).65 Stage II deliberations occur when a DPR Plenary Session considers the bill and decides whether to pass it into law. Stage I deliberations can be held in several fora but usually take place in one of the DPR’s Commissions (Komisi) – the primary working units of the DPR.66 During these Stage I deliberations, the initiator of the bill will usually introduce the proposed bill and explain its rationale. Individual DPR members, factions and government officials are then given an opportunity to discuss the proposed bill. Stage I deliberators can seek public opinion, call experts and discuss the bill with leaders of state or other institutions whose work relates to the substance of the bill.67 After deliberations have concluded, the commission must decide whether to introduce the bill before a DPR Plenary Session for Stage II deliberations. During Stage II, the Plenary Session is presented with a summary of the Stage I deliberations and the conclusion reached. Factions and individual members can then comment on the bill.68 Once debate has concluded, the DPR will usually first seek to pass legislation through deliberation and consensus (musyawarah dan mufakat). If members or factions initially reject the bill, further deliberations and, if necessary, negotiations, can take place. If consensus still cannot be reached, a vote is taken. A bill will be considered ‘approved’ if a majority of legislators in attendance vote in its favour.69 While the DPD can initiate and deliberate bills relating to regional affairs, it may not vote upon them, let alone block them. The President’s role in the legislative process is particularly significant. It seems that, in order to come into force, the President and the DPR must discuss the Bill to ‘obtain joint approval’ (Art 20(2) of the Constitution) and, if this joint approval is not obtained, the bill cannot be introduced to the DPR during the same period (Art 20(3) of the Constitution). The President must, however, pass into law all bills already ‘jointly approved’ (Art 20(4) of the Constitution). If the President does not, the bill is deemed passed in any event within 30 days (Art 20(5) of the Constitution). Article 20 is widely considered to have significantly reduced the President’s authority to dictate the legislative process as occurred under Soeharto as a matter of course.70 Yet it does not appear to prevent the President from preventing the passage of a law by simply refusing to give the joint approval mentioned in the previous paragraph. To our knowledge, this interpretation of Article 20 of the Constitution has not yet been tested. The government and the DPR, or the initiating ministry, must ensure that new legislation and regulations are published in the official State Gazette (Berita Negara) and formal elucidations of these laws in the Official Supplement to the State Gazette (Tambahan Berita Negara).71

12.6.4  Critiques of the legislative process Legislative processes in Indonesia are notoriously problematic. The DPR is infamous for ‘money politics’, with its members perceived by many to be among the most unprofessional and corrupt holders of public office in Indonesia.72 This perception is fuelled by a regular flow of sex and ethics scandals, and the successful prosecution by Indonesia’s Corruption Eradication Commission (Komisi Pemberantasan Korupsi, KPK) of DPR members from all parties for bribery, accepting procurement kickbacks, and other forms of corruption. 215

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The DPR is also renowned for its lack of legislative output – particularly for consistently failing to meet its own legislative targets as set out in the Prolegnas. In the first year of its five-year term, for example, the 2014–2019 DPR passed only three statutes.73 In 2016, it significantly improved its performance but still only produced only 22 of the 40 statues it had planned.74

12.7 Conclusion Democratic Indonesia has a complex legislative system, with three law-making bodies at the national level and hundreds across the archipelago at the local level. However, by far the most important is the DPR: the national legislature. Under President Soeharto’s authoritarian New Order (1966–1998), the DPR was little more than a ‘rubber-stamp’ for the regime’s policies but, since his fall in 1998, it has emerged as Indonesia’s most powerful constitutional and political institution – more powerful, perhaps, than the president. Post-Soeharto, the DPR’s membership has been determined by hotly contested and generally free elections, in which no party has ever won a majority of seats. Instead, the DPR has usually been controlled by coalitions dominated by four or five major parties, most of which are controlled by powerful business or political figures. This has led to extensive ‘politicking’ and horse-trading of votes between parties that often delays the legislative process and favours vested interests at the expense of good policy. These problems are exacerbated by complicated law-making processes and procedures, and the DPR’s many non-legislative tasks (such as vetting candidates for many public appointments), which distract its members from their core task of making law. However, by far the biggest problem the DPR faces, at least in the eyes of the Indonesian public, is the well-earned reputation of its members for unprofessional behaviour and outright corruption. None of these problems are likely to be resolved soon, as the major parties that control the DPR have effectively consolidated their positions through amendments to the electoral laws. Likewise, there are very few institutions that can challenge the DPR, other than the Constitutional Court, which can review the constitutionality of laws, and the Corruption Eradication Commission, which has prosecuted members of the DPR from many different parties. However, both these institutions have been significantly weakened by laws passed by the DPR in recent years, leaving the national legislature or, more accurately, the small group of major parties and powerful politicians that control it, in an almost unassailable position of power.

Notes 1 Article 1 of the Constitution. 2 Art 186 of Law 7 of 2017 on General Elections. This Law replaces and consolidates: Law 8 of 2012 on Election of Members of the DRP, DPD and DPRD; Law 15 of 2011 on the Organisation of General Elections; and Law 42 of 2008 on the Election of the President and Vice-President. The new Law, for the first time, provides for the simultaneous conduct of these elections (Art 167(3)). 3 For the right ‘to ask questions, to make proposals and to give other opinions, with a right to immunity’, see Art 20A(3) of the Constitution; for ‘interpellation, of enquiry, and of expressing opinions’, see (Art 20A(2)). For the authority to perform ‘legislative, budgetary and oversight functions’, see Art 20A(1) of the Constitution and Article 69(1) of Law 17 of 2014). These powers are discussed further below. 4 See DPR website: http://www.dpr.go.id/akd/komisi. 5 PDI later split and was eventually replaced by PDI-P (Partai Demokrasi Indonesia – Perjuangan, the Indonesian Democratic Party – Struggle) under the leadership of Megawati Soekarnoputri, daughter of the first president.

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The legislatures of Indonesia 6 Golkar (Golongan Karya, Functional Group) was officially not a political party (although it could compete in elections), and so was exempt from the many restrictive rules that applied to its only competitors, PPP and PDI. See Adam Schwarz, A Nation in Waiting: Indonesia in the 1990s (Westview Press 1994) 272 (‘A Nation in Waiting’). 7 So, for example, by the end of Soeharto’s rule the DPR comprised 425 elected members from PPP, PDI and the government’s Golkar, together with 75 army members appointed by the government, and Golkar hugely outnumbered the other parties. 8 Adam Schwarz, A Nation in Waiting: Indonesia in the 1990s (Westview Press 1994) 272 (‘A Nation in Waiting’); Patrick Ziegenhain, The Indonesian Parliament and Democratization (Institute of Southeast Asian Studies 2008) 45; Stephen Sherlock, The Indonesian Parliament after Two Elections: What Has Really Changed? (Centre for Democratic Institutions 2007) 37 . 9 Simon Butt, The Constitutional Court and Democracy in Indonesia (Brill 2015). 10 Ibid. 11 The Fourth Amendment to the Constitution (2002) removed the military from the legislature for the 2004 elections. 12 Constitutional Court Decision 30/PUU-XVI/2018. 13 Edward Aspinall and Greg Fealy, ‘Introduction’ in Edward Aspinall and Greg Fealy (eds), Local Power and Politics in Indonesia: Decentralisation & Democratisation (Institute of Southeast Asian Studies 2003) (‘Local Power and Politics in Indonesia’). 14 Adrian Vickers, A History of Modern Indonesia (CUP 2005) 220. 15 Of course, East Timor was granted independence from Indonesia in 1999, following a referendum. 16 See Law 22 of 1999 on Regional Government and Law 25 of 1999 on Fiscal Balance between the Central and Regional Governments. Aceh and Papua achieved ‘special’ regional autonomy. 17 Gabriele Ferrazzi, ‘Using the ‘F’ Word: Federalism in Indonesia’s Decentralization Discourse.’ (2000) 30(2) Publius: The Journal of Federalism 73 (‘Using the ‘F’ Word’); Fitria Fitrani, Bert Hofman and Kai Kaiser, ‘Unity in Diversity? The Creation of New Local Governments in a Decentralising Indonesia’ (2005) 41(1) Bulletin of Indonesian Economic Studies 57, 60 (‘Unity in Diversity?’). 18 The 2014 Law also repeatedly reaffirms central government control over provinces – in particular, governors – and contains expanded provisions on governors as representatives of the central government (now contained in Arts 91–93). 19 Central government Ministries and non-ministries develop and supervise provincial governments (Art 8(1)); and provincial governments develop and supervise county and city governments (Art 8(2)). 20 Article 10(3) of the 2004 Law granted the central government exclusive authority over the same issues. 21 These appear to be ‘optional’ in the sense that they will not be relevant to every region. So, for example, regions that are not heavily forested will probably not need to issue laws about forestry, while regions that few tourists visit might prefer not to regulate tourism. 22 Gary F Bell, ‘The New Indonesian Laws Relating to Regional Autonomy: Good Intentions, Confusing Laws’ (2001) 2 Asian-Pacific Law & Policy Journal 29. 23 See Butt and Lindsey (n 1) 2. 24 Panduan praktis memahami perancangan peraturan daerah (Direktorat Jenderal Peraturan Perundangundangan Departemen Hukum dan HAM bekerjasama dengan United National Development Programme; CAPPLER Project, 2008); ‘Banyak Perda Abaikan Kaidah Yang Berlaku’, Hukumonline (16 March 2012). 25 See David Ray, ‘Decentralization, Regulatory Reform, and the Business Climate’ in Decentralization, Regulatory Reform, and the Business Climate (Partnership for Economic Growth, 2003) 18 (‘Decentralization, Regulatory Reform, and the Business Climate’). 26 Simon Butt and Nicholas Parsons, ‘Reining in Regional Governments? Local Taxes and Investment in Decentralised Indonesia’ (2012) 34(1) Sydney Law Review 91 (‘Reining in Regional Governments?’). 27 Muhammad Muhyiddin, ‘Komnas Perempuan: Perda Diskriminatif Meningkat’, Tempo.co (20 January 2014); ‘Komnas Perempuan Finds 421 Discriminatory Policies’, Tempo (online, 19 August 2016) . 28 See, for example, Articles 1(3) and 3(3) of Law 39 of 1999 on Human Rights.

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Simon Butt and Tim Lindsey 29 Ihsanuddin, ‘Mendagri Tegaskan Tak Ada Perda Bernuansa Islam Yang Dibatalkan’, Kompas (online, 16 June 2016) . 30 Ayomi Amindoni, ‘Government Annuls 3,143 Bylaws’, Jakarta Post (online, 13 June 2016) . 31 No 137/PUU-XIII/2015. 32 This relates to a highly fraught debate about the difference between regulations and administrative decisions. On the one hand, administrative courts can review (and invalidate) administrative decisions but not regulations, which apply generally as law. On the other hand, the Supreme Court can only engage in judicial review of regulations, not decisions. (Confusingly, the Supreme Court can hear appeals against lower administrative court decisions about the validity of administrative decisions but these cases do not involve the invocation of judicial review powers.) Lawyers and judges alike find distinguishing between decisions and regulations very difficult, and many decisions are controversial: Simon Butt and Nicholas Parsons, ‘Judicial Review and the Supreme Court in Indonesia: A New Space for Law?’ (2014) 97 Indonesia. 33 Simon Butt, ‘Constitutional Court Lets Local Governments off the Leash’, Indonesia at Melbourne (online, 4 July 2017) . 34 Article 45(8) of Law 24 of 2003 on the Constitutional Court as amended by Law 8 of 2011. 35 56/PUU-XIV/2016. 36 Simon Butt, ‘Judicial Reasoning and Review in the Indonesian Supreme Court’ (2019) 6(1) Asian Journal of Law and Society 67. 37 In 2016, for example, the Corruption Eradication Commission (Komisi Pemberantasan Korupsi, KPK) announced that it had declared at least ten sitting governors, regents or mayors to be suspects in corruption cases in 2016. According to the KPK, 18 former or serving governors and 343 regents and mayors have been involved in corruption cases: Abba Gabrillin, ‘Kaleidoskop 2016: 10 Kepala Daerah Tersangka Korupsi’ Kompas (3 August 2016) ; Abba Gabrillin, ‘KPK: 18 Gubernur dan 343 Bupati/Wali Kota Terjerat Korupsi’ Kompas (12 December 2016) . 38 As mentioned, as of September 2017, there are 575 seats contested in a DPR election. The number of seats contested in the DPD is calculated according to the rules described above, based on the number of DPR seats. Pursuant to Article 181(1) of Law 7 of 2017 on General Elections, there are between 35 and 120 seats contested in each DPRD (regional legislature). This is an increase on the 35–100 seats described in Article 23(1) of Law 8 of 2012. 39 Article 1(7) of the 1999 General Election Law. 40 S. Sherlock, Indonesia’s 2009 Elections: the New Electoral System and the Competing Parties (2009) p. 5. 41 2003 General Election Law (Article 6(1)). 42 See Article 107 of the 2003 General Election Law. The party could then use the votes obtained by individuals who did not meet this quota, along with the votes cast for the party, to allocate any remaining seats to its preferred candidates by reference to its party candidate list. 43 2008 General Election Law, Article 214(a–e). 4 4 Sherlock, Indonesia’s 2009 Elections: the New Electoral System and the Competing Parties, p. 6. 45 Constitutional Court Decision 22-24/PUU-VI/2008. 46 Constitutional Court Decision 22-24/PUU-VI/2008, p. 105. 47 Simon Butt, ‘Judicial Review in Indonesia: Between Civil Law and Accountability? A Study of Constitutional Court Decisions 2003–2005’ (PhD Dissertation, Law Faculty, Melbourne University, 2007); Butt, The Constitutional Court and Democracy in Indonesia (n 10). 48 See, for example, the Muhlis Matu case (Constitutional Court Decision 14-17/PUU-V/2007) and the Kaat case (Constitutional Court Decision 15/PUU-VI/2008). 49 The applicant was convicted under Articles 365 and 351(3) of the Criminal Code and Article 1(1) of Emergency Law 12/Drt/1951. 50 Articles 12(g) and 50(1) of the 2008 Election Law and Article 58(f ) of the 2004 Regional Government Law. 51 Constitutional Court Decision 4/PUU-VII/2009, p. 79. 52 KPU regulation 20 of 2018, Article 4(3).

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The legislatures of Indonesia 53 Muhammad Febriansyah, Muhamad Takiyuddin Ismail and Norazam Mohd Noor, ‘Competing Not Complementing: KPU, Bawaslu, and the Dynamic of Election Monitoring in PEMILU 2019’ 28(3) Asian Journal of Political Science 275, 283. 54 Butt, The Constitutional Court and Democracy in Indonesia (n 10) 152. 55 ht t ps://w w w.hu ku mon l i ne.com / ber it a/ baca/ lt 52e131d88b072/m k-put usk a n-pem i luserentak-tahun-2019/. The remaining section on simultaneous elections draws on: https:// indonesiaatmelbourne.unimelb.edu.au/should-and-could-indonesia-go-back-to-separatelegislative-and-presidential-elections/. 56 https://www.lowyinstitute.org/the-interpreter/mind-boggling-challenge-indonesian-electionlogistics. 57 https://rri.co.id/1455-pemilu-2019/672637/600-petugas-kpps-meninggal-mer-c-bentuktim-investigasi; https://tirto.id/kpu-cukup-sekali-pemilu-serentak-seperti-ini-dmYe, https:// mediaindonesia.com/read/detail/230839-kpu-akan-evaluasi-pemilu-serentak, https://www. hukumonline.com/berita/baca/lt5cdef3179f31b/dilema-sistem-pemilu-serentak/. 58 ht t ps://f i na nce.det i k.com / ber it a- ekonom i-bisn is/d- 4 485687/a ng g a ra n-pem i lu-2019 capai-rp-25-t-kok-bisa. 59 ‘Matters related to the financial balance between the central government and the regions’ are included among the areas covered by the powers to submit bills and debate in Articles 22D(1) and (2) but not those covered by the supervisory and reporting power in 22D(3). The other powers in 22D(3) are probably wide enough to prevent this from being a material restriction. 60 Donald L Horowitz, Constitutional Change and Democracy in Indonesia (CUP 2013) 126. 61 Article 19(1), 2011 Lawmaking Law. The list can be reviewed and amended annually by a plenary sitting of the DPR: Arts 20–22, 2011 Lawmaking Law. See generally Articles 16–23 of the Lawmaking Law. 62 Molly Lesher, ‘The OECD Regulatory Reform Review of Indonesia Market Openness’ (OECD 2012) 8. See also Arts 19(1), 19(2) and 43(4), 2011 Lawmaking Law. 63 Art 19(3), 2011 Lawmaking Law. The academic study must meet formal requirements that are set out in Schedule I of this Law. Such studies are not required for legislation concerning the national budget, interim emergency laws, for annulling legislation or interim emergency laws or for implementing regulations (Art 43(4), 2011 Lawmaking Law). 64 According to the Constitutional Court, if a statutory norm is unclear because a statute was not accompanied by an academic draft, a judge can ‘give meaning to it through legal interpretation’. Alternatively, if the norm is ‘multi-interpretable’, the Constitutional Court can clarify it or invalidate the statute for breaching the constitutional guarantee of legal certainty (Constitutional Court Decision 34/PUU/VIII/2010, para [3.14.9]). 65 See Constitutional Court Decision 92/PUU-X/2012. 66 They can also take place in legislative agency meetings, budget agency meetings or other special committee meetings. The Badan Musyawarah (Deliberative Body) decides who will deliberate particular bills and where they will be deliberated. This will usually depend on: the body or individual proposing the bill; the expertise required to deliberate or draft the bill; whether the issues covered in the bill fall within the scope of a given body or commission; and the number of bills already being handled by the relevant legislative body or commission (see Art 132, Law No 1 of 2014 on DPR Procedural Rules). The Badan Musyawarah is an executive committee appointed by the DPR at the start of its term that includes the leadership of the DPR and a number of members who must total 10% of the total number of DPR members but need not reflect party numbers. 67 See Arts 132 and 145, 2014 DPR Procedural Rules. Under Article 96(1) of the 2011 Lawmaking Law, members of the public have the right to make submissions, either orally or in writing, about laws and regulations under deliberation. Consultations may take place via public hearings, working visits, seminars, workshops and discussions (Art 96(2), 2011 Lawmaking Law). Lawmakers must ensure that community members can easily access bills or draft regulations to facilitate the consultation process (Art 96(4)). 68 The DPD is also permitted to present views and participate in debates if the bill relates to regional affairs (Constitutional Court decision 92/PUU-X/2012). 69 Art 69(2), 2011 Lawmaking Law. 70 Simon Butt and Tim Lindsey, The Indonesian Constitution: A Contextual Analysis (Hart 2012). 71 Arts 90(1), 2011 Lawmaking Law. If the laws relate specifically to regional autonomy issues or regional-centre relations, the DPD can be given the task of dissemination.

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Simon Butt and Tim Lindsey 72 This is consistently confirmed in domestic and international surveys, including those produced by Transparency International. See www.transparency.org. 73 Abi Sarwanto, ‘Setahun Bekerja DPR Hanya Hasilkan Tiga Undang-Undang’, CNN Indonesia (online, 1 October 2015) . 74 Dani Prabowo, ‘Ini 40 RUU Dalam Prolegnas Prioritas 2016’, Kompas (online, 22 January 2016) ; ‘Sepanjang 2016, 22 RUU Telah Sah Jadi UU’, Hukumonline (online, 27 December 2016) .

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13 THE JAPANESE DIET Shigenori Matsui

13.1 Introduction Japan is not a federal state. Instead, it is a highly centralized nation regulated by the Constitution of Japan, 1946.1 Although often portrayed as a constitutional monarchy, Japan is a unique republic in which the Emperor is considered a “symbol of the state and of the unity of the People.”2 The government is composed of three branches, each established and empowered by the Constitution. The national legislative branch is called the Diet. It is characterized as “the highest organ of state power” as well as “the sole law-making organ of the state.”3 In this chapter, we will examine the history and organization of the Diet, the powers of the Diet, the legislative process in Japan, the relationship between the Diet and other branches of the government, and the political realities of the Diet’s operation.

13.2  History and structure of the Diet 13.2.1 History Throughout Japan’s long history leading up to the Meiji Restoration in 1868, there was no representative body vested with legislative power in Japan. Even after the Meiji Restoration, Japan’s leaders had no intention of establishing a representative branch of government. The Restoration was meant to return political power from the Shogun, the military leader, back to the Emperor. The leaders wanted to re-establish the old governmental regime in which the Emperor governed the country with the assistance of senior advisors. However, following the outcry of the frustrated public calling for the establishment of a representative body, the government was pressured to create a representative branch. Establishing this new branch required the enactment of a constitution. After a survey of existing foreign constitutions, the government leaders were most impressed by the Prussian Constitution,4 where the King was granted especially strong powers. Its system was regarded as most suitable for the Meiji government because the Meiji leaders wanted to build a modern Japan under the strong powers of the Emperor. As a result, the Meiji Constitution, formally known as the Constitution of the Empire of Japan,5 modelled after the Prussian Constitution, DOI: 10.4324/9781003109402-15

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was enacted in 1889. The Meiji Constitution granted all government powers to the Emperor,6 and he was assisted by the legislative, executive, and judicial branches. The Japanese Imperial Diet was thus established as an assisting organization for the Emperor.7 The Imperial Diet consisted of the House of Representatives (HR) and the House of Peers.8 Although the public elected the HR members,9 the House of Peers consisted of unelected imperial family members, nobles, and other persons nominated by the Emperor.10 Although the Imperial Diet could pass bills, the Emperor had the final veto power.11 The Emperor also had independent legislative powers, including the exclusive jurisdiction over armed forces12 and the ability to enact emergency imperial prescript instead of legislation.13 Moreover, the Emperor had strong emergency powers, which enabled him to suspend the normal operations of government.14 The strong Japanese Army and Navy seriously exploited these powers and the Emperor was urged to engage in military expansion and invade other Asian countries, which ultimately led to the Pacific War. After Japan’s devastating defeat and surrender after the Second World War, Japan was placed under occupation by the Allied Powers. The Allies were convinced that a total overhaul of the constitutional system was necessary for Japan to restart as a liberal democracy. They pressured the Japanese government into radically revising the Constitution. Having found that the Japanese government was extremely reluctant to engage in any substantial redrafting of its Constitution, the Allies decided to draft a new constitution for the Japanese leaders’ consideration. Although the Allies did not officially force them to accept the draft, every indication suggests that the Japanese government had practically no choice but to begin constitutional reform.15 The draft was intended to follow the British Westminster model of the legislative branch, which was already established in Japan during the Meiji era, but the draft proposed a unicameral legislature instead of a bicameral one.16 Japanese leaders strongly opposed this proposal, and the occupation forces eventually accepted the Japanese leaders’ call to keep a bicameral legislature. However, since there was no longer peers,17 members of the upper House needed to be elected, which radically revamped the structure of the upper House. Beyond these changes, the overall design of the legislative branch remained largely unchanged.

13.2.2  Constitutional status Under the current Constitution of Japan, the Emperor is no longer sovereign. The Constitution officially declares the Emperor to be “the symbol of the state and of the unity of the People, deriving his position from the will of the people with whom resides sovereign power.”18 It expressly stipulates that he has no political power.19 He is only supposed to perform the ceremonial functions specified in the Constitution.20 Moreover, the lessons learned by the Japanese people from past experiences are now deeply ingrained in their minds. The government and the overwhelming majority of the public want to separate the Emperor from politics as much as possible. Instead, the Constitution establishes the Diet as a legislative organ, the Cabinet as an executive branch and the judiciary under the Supreme Court of Japan (SCJ), and the Diet is declared to be “the highest organ of state power, and shall be the sole law-making organ of the state.”21 There are some questions on what exactly “the highest organ of the state power” means. The people of Japan are sovereign, and they enacted the Constitution. This would suggest that the Diet cannot have a higher status than the people of Japan. As a result, most academics tend to view this phrase as only deeming the Diet as the highest branch within the government. 222

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However, some try to draw practical implications, for example, by arguing that there is a presumption in favour of the Diet when a dispute arises between the branches of government. Since the Diet is the “sole law-making organ of the state,” no other branch of the government can legislate or override the Diet, subject to the constitutional review of legislation by the SCJ. The executive branch (the Cabinet) cannot enact any legislation other than to enforce a law passed by the Diet.22 Furthermore, any government regulation that is inconsistent with the Diet’s legislation is ultra vires and invalid. The Constitution of Japan also provides for local governments.23 There are currently 47 prefectures, each with a governor and a local assembly. However, since Japan is not a federal state, the division of power between the central and local governments is not clearly demarcated. It has been accepted that local governments can exercise control only on matters of local concern and only with the authorization of the Diet.24 Therefore, no power can be exercised exclusively by the local assembly. Education and health care, which can be exercised only by the states or provinces in other countries, are all within the central government’s power in Japan. Indeed, local government officials are only enforcing national laws enacted by the Diet under delegation by the central government. They are, in that sense, agents of the central government.

13.2.3 Bicameralism The Diet consists of the HR and the House of Councillors (HC).25 In this sense, the Japanese Diet follows the tradition of bicameralism. However, the difference between the HR and the HC is somewhat more obscure. Both Houses consist of elected members, “representative of all the people,”26 but aside from the different terms of office, there is not much substantive difference in powers between members of the HR and the HC. Both Houses act independently. Each House appoints its officials and establishes its own rules.27 Bills can be introduced by either the HR or the HC, except for the budget approval bill submitted by the Cabinet, which must be presented to the HR first.28 Bills must be passed by both Houses to become law. But on some occasions the HR can overrule the HC in the Diet. For instance, if there is a disagreement in the choice of Prime Minister, the decision of the HR is decisive.29 Art. 67 of the Constitution stipulates that: [t]he Prime Minister shall be designated from among the members of the Diet by a resolution of the Diet. This designation shall precede all other business. If the House of Representatives and the House of Councillors disagree and if no agreement can be reached even through a joint committee of both Houses, provided for by law, or the House of Councillors fails to make designation within ten (10) days, exclusive of the period of recess, after the House of Representatives has made designation, the decision of the House of Representatives shall be the decision of the Diet. When the HC and the HR disagree over legislation, the HR can ask HC for a joint conference among their members to come up with a compromise. However, the HR can override opposition from the HC with a two-thirds majority in the HR.30 Art. 59 thus states that: [a] bill becomes a law on passage by both Houses, except as otherwise provided by the Constitution. A bill which is passed by the House of Representatives, and upon which the House of Councillors makes a decision different from that of the 223

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House of Representatives, becomes a law when passed a second time by the House of Representatives by a majority of two-thirds or more of the members present. The provision of the preceding paragraph does not preclude the House of Representatives from calling for the meeting of a joint committee of both Houses, provided for by law. Failure by the House of Councillors to take final action within sixty (60) days after receipt of a bill passed by the House of Representatives, time in recess excepted, may be determined by the House of Representatives to constitute a rejection of the said bill by the House of Councillors. This override sometimes happens. However, the ruling party knows there are risks associated with invoking this power. If the HR ignores the objection of the HC, minority parties in the HR and members of the HC may be deeply upset and refuse to cooperate with any discussions on the remaining agenda, thwarting the prospect of smooth passage of other bills. Moreover, the public might view the use of the override power as an indication of arrogance on the ruling party’s side and could retaliate in the next election. As a result, the ruling party needs to carefully decide, in view of these risks, whether a bill is worth passing by overriding the HC. The power of the HR to override the HC is also seen in the approval of budgets and treaties. Art. 60 thus specifies that: Upon consideration of the budget, when the House of Councillors makes a decision different from that of the House of Representatives, and when no agreement can be reached even through a joint committee of both Houses, provided for by law, or in the case of failure by the House of Councillors to take final action within thirty (30) days, the period of recess excluded, after the receipt of the budget passed by the House of Representatives, the decision of the House of Representatives shall be the decision of the Diet.31 Art. 61 stipulates the same procedure will also apply to the Diet’s approval for the conclusion of treaties.32 As illustrated in these articles, the Joint Committee of both Houses needs to be convened when there is a disagreement between the two Houses over budget approval and treaty approval.33 The Joint Committee consists of 20 members, 10 from each House, and it can reach a tentative agreement with a two-thirds majority. The decision needs to be approved, however, by each House. A Joint Committee is also sometimes convened when there is a disagreement over legislative bills. Other than these joint meetings, there is no official permanent system of joint sessions of the HR and the HC.

13.3  How legislative members are chosen Members of the Diet must be elected by the public. All members are “representatives of all the people.” 34 This means that elected members are not representatives of an election district and, therefore, constituents cannot dismiss Diet members elected from their district. Elected members of the Diet are not supposed to think about the interests of the election district or its constituents alone, but rather the interests of all of the people of Japan. 35 Therefore, even if elected members break campaign promises and betray voters’ expectations, there is nothing the public can do except to vote them out in the next election. 224

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The Constitution does not fix the number of members of each House, but rather, it is left for the Diet to decide.36 The Public Office Election Act, which regulates the election, stipulates that the total number of HR members is 465,37 while the total number of members of the HC is 248.38 This figure has been subjected to frequent changes. The term of office for the HR members is four years,39 while the term of office for members of the HC is six years (and half of the HC members need to be elected every three years).40 Since the HR may be dissolved for early elections,41 the actual average term of office for HR members is far shorter. The Constitution guarantees the right to vote and universal suffrage. Thus, it provides that “the people have the inalienable right to choose their public officials and to dismiss them”42 and that “[u]niversal adult suffrage is guaranteed with regard to the election of public officials.”43 The Constitution provides that “[t]he qualifications of members of both Houses and their electors shall be fixed by law. However, there shall be no discrimination because of race, creed, sex, social status, family origin, education, property or income.”44 Furthermore, art. 14 of the Constitution guarantees the equality right by stipulating that “[a]ll of the people are equal under the law and there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status or family origin.”45 As a result, all adult citizens are equally entitled to the right to vote, and discrimination is not permissible.46 On the other hand, non-citizens do not have right to vote. Although some claim that the long-time residents such as resident Koreans should have a right to vote, the SCJ has held that these residents do not have a constitutional right to vote even if they have been long-time residents. Indeed, many academics argue it is against the Constitution to allow non-citizens to vote in national elections.47 It has been also assumed that the right to vote necessarily implies the right to run for election. Therefore, every Japanese citizen is entitled to run for election.48 Some citizens are temporarily denied their right to vote. For instance, if they are convicted of violating the Criminal Code and are imprisoned or received a suspension of the execution of imprisonment, they are not entitled to vote.49 As well, some citizens could be disenfranchised if they are convicted of violating election laws.50 The SCJ has suggested that the disenfranchisement due to election law violations are justified,51 although there are some objections to denying voting right to prisoners.52 Citizens living abroad used to be excluded from voting altogether since they do not have a registered residence in Japan. Because of public criticism, the Diet came to allow them to vote for the lawmakers constituted by proportional representation. But still, the Diet was reluctant to allow citizens living abroad to vote in district elections. Nevertheless, the SCJ determined that such exclusion was unconstitutional.53 The SCJ held that the right to vote is an important right of all Japanese citizens. It should not be deprived unless there is a compelling reason. The government claimed that allowing citizens living abroad to vote was administratively difficult and thus there was a reasonable ground to exclude citizen living abroad. But the SCJ was not convinced. As a result of the court’s ruling, all citizens living abroad are now allowed to vote for both district elections as well as for the lawmakers constituted by proportional representation. The details of electoral system will be explained below. Voting is totally voluntary. There is no mandatory voting system, so sometimes the voter turnout can be extremely low. Basically, voters need to go to a polling station on voting day to vote in person.54 It is also possible to vote in advance.55 But such requirements impacted persons with severe physical disabilities. They are legally eligible to vote, but they are physically unable to go to the polling station to cast their vote. In the past, these individuals were allowed to cast ballots at home, but this at-home voting system was later abolished and has 225

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not been re-enacted. Some voters with serious physical disabilities challenged this system as unconstitutional. The SCJ rejected the claims for damages, holding that legislators do not hold any legal obligation towards individual citizens, and since there is no explicit constitutional mandate to create an at-home voting system, that the Constitution has left the decisions on voting methods and other election matters to the discretion of the Diet by art. 47.56 The same rules on denial of voting right apply to one’s right to run in an election as codified in the Public Office Election Act.57 Additionally, those who were convicted of an election offences stipulated in the Public Office Election Act do not have a right to run for political office for certain period of time even after serving the sentence or pardoned.58 Moreover, in Japan, no public officials are allowed to run for election.59 If a public official officially run for election, that official is deemed to have resigned.60 The selection of the election system is also left to the Diet to decide.61 Currently, the election for members of the HR and the HC is a combination of district elections and the use of proportional representation. For the HR, among the 465 members to be elected, 289 members are elected in district elections, and 176 are elected by proportional representation.62 For the HC, among the 248 members of the HC, 148 members are elected in district elections, while the remaining 100 are elected based on proportional representation.63 The election system is rather complicated. For the election of members of the HR in district elections, all election districts are single-member districts and the first-past-the-post rule is followed: the candidate who gets the most votes in the election district will win the election. For the election of HR members based on proportional representation, each voter casts a second vote for the political party or political organization he or she supports. The election is divided by seven regions all around Japan, and the political party gains seats in proportion to the votes received. The candidates endorsed by each political party or organization are already published, and the candidates are ranked in the order assigned by their political party or organization. The candidate can typically only run either for the district or proportional representation seats. However, there is an exception to this rule: certain candidates endorsed by the political party can run for both the district and proportional representation seats in the HR. Then, even if the candidate loses the district election, he or she can still be elected based on proportional representation.64 For HC seats, basically all prefectures are allocated a number of seats that correspond to their relative population: 12 for Tokyo and only 2 for the smallest prefecture.65 In any district, there can be one to six seats up for election. The voter will cast one vote for this district election. If only one seat is allocated, the candidate who has the highest vote will be elected. If several seats are allocated, the corresponding number of candidates with the highest votes will be elected. For members of the HC who are to be elected based on proportional representation, political parties and organizations publish the list of candidates they endorse. Then, the voter can cast the second vote, in addition to their vote in the election district, for their preferred political party or organization or a particular candidate. All ballots for the proportional representation seats are tallied and assigned nationwide. Political parties and organizations are assigned electoral seats in proportion to their national support. The parties/organizations allocate the seats among their candidates according to the number of personal votes these candidates received. Since anyone can run for election districts, there is no official screening process. But unless one is endorsed by a major political party, the chance of winning is slim. A political party follows no established selection process in selecting the candidate it endorses in districts or on the list of candidates for proportional representation. The choice of candidate is usually left 226

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to the decision of the local boss. But increasingly, the leader of the political party has played an influential role. Currently, the ruling Liberal Democratic Party (LDP) has the most of number of seats in the Diet. The breakdown of the seats in the HR is as follows: LDP 277 seats, Constitutional Democratic Party (CDP) 114 seats, Komei Party 29 seats, Japan Communist Party ( JCP) 12 seats, Japan Restoration Party ( JRP) 11 seats, and 20 for others.66 The breakdown of the seats in the HC is as follows: LDP 112 seats, CDP 45 seats, Komei Party 28 seats, JCP 13 seats, JRP 16 seats, and 11 for others.67 The LDP Party and Komei Party are currently coalition partners and they control more than two-thirds of the HR and at least half of the HC. According to the voter’s support for each political party in the latest 2019 HC member proportional representation election, LDP has 35.4% support, CDP has 15.8% support, Komei Party has 13.1% support, JRP has 9.8% support, and JCP has 9% support.68 Apparently, LDP is enjoying a disproportionately large number of seats inside the Diet compared with the actual support rate from the voters, thanks to their strength in district elections. Once the new Diet is constituted after the general election, the chairpersons of the HR (speaker of the HR) and HC (speaker of the HC) are chosen by the vote of each House.69 The chairperson of the HR is likely to be selected from the ruling party. By custom, the vice-chairperson will be elected from the leading opposition party. The chairperson and vice-chairperson will customarily leave the political party they used to belong to, and each chairperson will preside over their plenary sessions of the House. While serving in the Diet as Diet members, the Diet members are entitled to certain privileges. First, members of both Houses receive an appropriate annual payment from the national treasury in accordance with the law.70 Except in cases provided by law, members of both Houses are exempt from arrest while the Diet is in session. Any members arrested before the opening of the session must be freed during the term of the session upon demand of the House.71 Members of both Houses are not held liable outside of the House for speeches, debates or votes cast inside the House.72

13.4  Powers of the Diet The most important power of the Diet is the power to legislate. However, the Diet is also granted the power to administer national finances, including the power to impose taxes and to approve international treaties. The power to administer national finances is exercised as determined by the Diet.73 No new taxes are to be imposed or existing ones modified except by law or under such conditions as the law may prescribe.74 Also, no money shall be expended, nor shall the state obligate itself, except as authorized by the Diet.75 The spending needs are to be based on the budget prepared by the Cabinet and to be approved by the Diet.76 There are several limitations on spending,77 but otherwise, it is left for the wide discretion of the Cabinet. The power to approve international treaties is a very important limitation on the power of the Cabinet to conclude a treaty. The Cabinet has the power to manage foreign affairs and conclude treaties. However, the Cabinet shall obtain prior or, depending on circumstances, subsequent approval of the Diet for the treaty.78 The treaty approval bill has to be submitted prior to the ratification of the treaty as far as possible. If the bill is submitted and rejected after treaty ratification, the government will be forced to renegotiate, abolish, or modify the treaty. The Diet also supervises the government. The Diet has an investigative power over the government and can summon anyone to the Diet.79 By exercising this power, the Diet can investigate any problems in the government. Although there is a limit on what the Diet can 227

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and should do, this power is generally construed flexibly and liberally so that the Diet can investigate almost anything inside the government. When the HR is not happy with the Cabinet, it can pass a vote of non-confidence, and the Cabinet will be forced to resign en masse or dissolve the HR to call for a general election.80 Since the Prime Minister is selected from the ruling party with the relative majority support, this does not happen often. Nevertheless, in the history of the Constitution of Japan, there are at least four times when the non-confidence vote was passed, leading to the dissolution of the HR. The House can also pass a non-confidence vote against any individual Ministers of State. Although it is only a non-confidence vote of the HR against the Cabinet that could trigger the resignation of all Cabinet members en masse or dissolution of the HR, the non-confidence vote against individual Ministers of State by the HR or by the HC could be a powerful political tool for the Diet to express their dissatisfaction with the Cabinet or its individual members. When such non-confidence vote is ignored, the opposition party will most likely refuse to cooperate with the government or ruling party on the remaining legislative agenda or simply refuse to participate in the sessions, thereby slowing down the legislative process. Unlike the United States Congress, the Japanese Diet does not have any power to confirm the appointment of senior officers of the government or judges.81 Although the Diet has the power to impeach judges,82 there is no power of impeachment against the Prime Minister or any of the Ministers of the State. Finally, a constitutional amendment has to be approved by the people in a national referendum. According to art. 96, “[a]mendments to this Constitution shall be initiated by the Diet, through a concurring vote of two-thirds or more of all the members of each House and shall thereupon be submitted to the people for ratification, which shall require the affirmative vote of a majority of all votes cast thereon, at a special referendum or such election as the Diet shall specify” and “[a]mendments when so ratified shall immediately be promulgated by the Emperor in the name of the people, as an integral part of this Constitution.”83 However, since it was enacted in 1946, the Constitution of Japan has never been amended. As a result, there are many unresolved procedural issues, e.g. whether the government is allowed to submit the bill for a constitutional amendment, whether the bill needs to be examined as a package or individually, what is the quorum for discussion, what does “vote of two-thirds or more of all the members of each House” or “affirmative vote of a majority of all votes cast thereon” mean. The National Referendum Act for Constitutional Amendment was enacted in 2007, but there are still many questions left unclarified.84

13.5  Legislative process Legislation needs to be enacted by the Diet. The legislative bill could be either introduced by the member of each House (private bill) or by the Cabinet (Cabinet bill). In order to submit a private bill, the support of more than 20 in the HR or more than 10 in the HC is needed for the bill to be introduced in each House. A bill that will affect the budget needs the support of more than 50 lawmakers in the HR and more than 20 lawmakers in the HC.85 Moreover, there is an informal requirement that the bill needs to be endorsed by the political party of those supporting lawmakers in the HR. This is intended to prevent a bill from being introduced by a rebelling faction within the party. Once introduced, private bills and Cabinet bills are passed in the same way. Japan has not adopted the three readings system practised in Westminster systems. Once the bill is 228

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introduced, the bill will be transferred to the committee review. Most likely, the bill will be subjected to review by one of the standing committees. These committees, consisting of members chosen by major political parties based on the number of their seats they hold in the House, are where the most intense review will take place. Even when the committee disapproves of a bill, the committee’s decision can be subject to the final decision of the plenary session. Therefore, theoretically, the plenary session can pass the bill even when the bill had been rejected by the committee. But this is highly unlikely in practice. After the committee passes the bill, it will be transferred for plenary review. The decision of the committee and plenary sessions needs to be made by a majority of the participants. There is also room for filibuster. The most famous violent filibuster occurred in 1954 when there was a physical occupation of the chairperson’s seat by the opposition members trying to prevent the chairperson and ruling party members from passing a disputed bill. But such a violent physical filibuster is rather rare in Japan.86 Once, the opposition members had adopted the so-called ox walk strategy: slowing down the passage of a bill by calling for the recorded votes, with each member of the opposition moving from their seats and casting their votes extremely slowly. Sometimes this kind of strategy can successfully prevent the timely passage of a bill before the end of the term. There are several important procedural considerations for the review of legislative bills. First, the regular session of the Diet, an ordinary session, is convened once a year.87 The Cabinet may decide to convene extraordinary sessions of the Diet. When the HR is dissolved, there must be a general election of its members within 40 days from the date of dissolution, and the Diet must be convened within 30 days from the date of the election.88 This session is generally called a special session. The Japanese Diet operates in individual sessions. As a result of the adoption of the session system, the general rule is that the bill is not automatically carried over to the next session and dies at the end of the session unless it is specifically authorized. Business cannot be transacted in either House unless one-third or more of the total membership is present.89 In each House, all matters are decided by a majority of those present, except as elsewhere provided in the Constitution. In the case of a tie, the presiding officer (chairperson) will determine the issue.90 Deliberation in each House is public. However, a secret meeting may be held where a two-thirds majority of members present passes a resolution in support of it.91 Each House keeps a record of proceedings. This record is published and given general circulation, except the parts of the proceedings that were conducted as secret sessions. Upon demand of one-fifth or more of the members present, votes of the members on any matter will be recorded in the minutes. When a bill is passed by one House, it will be sent to another House for review. Roughly the same kind of procedure is followed. When the second House passes the bill approved by the first House, the bill becomes a law. Since the Diet is the sole law-making organ of the State, no additional procedure is required. When a bill passed by the HR is modified and passed by the HC, the modified bill needs to be sent back to the HR for review. If the HR agrees with the revised bill, the bill is passed and becomes law. The Prime Minister and the responsible Minister of the State need to sign the bill in order to acknowledge their responsibility for enforcing the law.92 There is no discretion to refuse, and there is no veto power conferred on the Prime Minister. In order for the law to be implemented, it needs to be published in the official gazette in the name of the Emperor.93 Once again, the Emperor does not have any discretion or veto over the law passed by the Diet. 229

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13.6  Relationship between the Diet and the Cabinet and the Supreme Court Japan adopted the U.K.’s Westminster model of parliamentary government. The key difference between Japan and the U.K. is the fact that everything is stipulated in the Constitution. Therefore, with respect to the selection of the Prime Minister, the Constitution stipulates that the Prime Minister needs to be selected from the Diet members by the members’ vote.94 There is no explicit rule mandating the Prime Minister to be a member of the HR rather than drawn from the HC. However, by custom, the Prime Minister has been selected from the HR. The candidate who obtained the highest support will be chosen. There is no run-off election. If there is a disagreement between the HR and the HC, the decision of the HR is decisive.95 In this sense, so long as a candidate has majority support from the HR, the candidate has secured the job of Prime Minister despite any objection from the HC. Once the candidate is selected, he or she will be officially appointed as the Prime Minister by the Emperor.96 The Emperor does not have any discretion and has no freedom to choose or veto a candidate. The official appointment is merely ceremonial. The Cabinet consists of the Prime Minister as its head and other Ministers of State97 chosen by the Prime Minister.98 There is no requirement to appoint Cabinet members from the Diet members. The Constitution merely mandates that “a majority of their number must be chosen from among the members of the Diet.” As a result, there are several non-Diet members in the Cabinet, although the overwhelming majority of Cabinet members are Diet members. The Prime Minister has total discretion to remove the Ministers of State as he or she wishes.99 In Japan, Cabinet ministers, even appointed from the Diet members, will keep their concurrent appointments as Diet members. Unlike the U.K., the executive power is vested in the Cabinet by the Constitution.100 The Cabinet is a collegiate body, and it is very important to note that the executive power is granted to this Cabinet and not to the Prime Minister. The Cabinet, in the exercise of executive power, is collectively responsible to the Diet.101 Since the Cabinet needs to act as a body, the Prime Minister cannot dictate the Cabinet’s decision even though he or she is the head of the Cabinet. If the HR passes a non-confidence resolution or rejects a confidence resolution, the Cabinet will resign en masse unless the HR is dissolved within ten days.102 The Prime Minister, representing the Cabinet, submits bills, reports on general national affairs and foreign relations to the Diet, and exercises control and supervision over various administrative branches.103 The Constitution explicitly allows the Cabinet to submit the budget104 and treaty105 to the Diet for approval. While the Constitution is silent on whether the Cabinet can submit legislative bills to the Diet, in actual practice, most of the bills submitted and passed by the Diet are Cabinet bills. To this extent, in Japan, the Cabinet dominates the legislative process, in addition to executing its laws. The Supreme Court and judiciary are independent.106 The function of the judiciary is to interpret the law and to apply it to specif ic cases or controversies. The SCJ is vested with the rule-making power under which it determines the rules of procedure, practice, and matters relating to attorneys, the internal discipline of the courts, and the administration of judicial affairs.107 Nevertheless, legislation passed by the Diet is generally viewed as preceding over the rules adopted by the SCJ. On the other hand, the judiciary has the power of constitutional review. The Supreme Court is the court of f inal resort with the power to determine the constitutionality of any law, order, regulation, or off icial act.108 230

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13.7  Political reality of the Diet The Diet is officially the highest organ of the state and the sole law-making organ of the state. But this official status is hardly a reality in practice. Despite having the exclusive power to legislative, in actual practice, the most important parts of legislating are performed by the executive branch rather than the Diet. The executive bureaucrats initiate, negotiate, amend, and craft bills to be submitted to the Diet. Since most of the bills submitted and enacted are Cabinet bills, the individual legislators do not have sufficient skills or resources to craft these bills. Moreover, the private bills are not subjected to the same kind of vigorous scrutiny as the Cabinet bills by the Cabinet Legislation Bureau. Since the executive bureaucrats craft all these Cabinet bills, they are usually framed in broad and imprecise language, which gives much latitude to the executive branch for enforcement purposes. Arguably, the carte blanche delegation of legislative power to the executive department is impermissible. Nevertheless, the SCJ has never struck down any legislation on the ground that there has been an excessive broad delegation to the executive without sufficient guidelines.109 Since Cabinet bills are submitted to the Diet with the prior ruling party’s approval, and there is not much room for revision during the Diet review, there is grave doubt as to whether the Diet as a whole is closely supervising the legislative process. It may look like the Diet is simply rubber-stamping the drafts prepared by bureaucrats. It is no wonder that there is a heated controversy over who is dictating the government policy: the politicians (legislators) or bureaucrats.110 Since the Prime Minister and the Cabinet are supported by the ruling party inside the Diet, the Diet apparently has no strong interest in supervising the conduct of the Cabinet. It has been reluctant to investigate any possible problems or scandals. As a result, it looks like there is no one inside the government that is actually watching and keeping an eye on government affairs. The Diet is hardly “the highest organ of the state power” or the “sole lawmaking organ of the state.”

13.8 Conclusion Japan has a history of more than one century of parliamentary democracy. The current Diet, working under the liberal democratic political system of the Constitution of Japan, is and should be really the highest organ of the state power and sole law-making organ of the state. But this chapter highlighted some of the deeply troubling aspects of parliamentary democracy in Japan. It is an appropriate time to rethink the general assumptions shared by many as to the status, organization, power, and relationship between the Diet and Cabinet.

Notes 1 Nihonkoku kenpō [Constitution of Japan], promulgated in 1946. 2 See generally Shigenori Matsui, Constitution of Japan: A Contextual Analysis (Hart Publishing 2011). 3 Constitution of Japan, art. 41. 4 Constitution of the Kingdom of Prussia, 1850. 5 Dainihon teikoku kenpō [Constitution of the Empire of Japan], 1889, https://www.ndl.go.jp/ constitution/e/etc/c02.html. (Meiji Constitution) 6 art. 4 of the Meiji Constitution.

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Shigenori Matsui 7 art. 5 of the Meiji Constitution. Although the English translation provides that “the Emperor exercises the legislative power with the consent of the Imperial Diet,” the original Japanese version is much clearer that the Imperial Diet merely assisted the Emperor in exercising legislative power. 8 art. 33 of the Meiji Constitution. 9 art. 35 of the Meiji Constitution. 10 art. 34 of the Meiji Constitution. 11 art. 6 of the Meiji Constitution. 12 art. 11 of the Meiji Constitution. 13 art. 8 of the Meiji Constitution. 14 art. 14 of the Meiji Constitution. 15 For a legislative history leading to the enactment of the Constitution of Japan, see Koseki Shoichi (translated by Ray A. Moore), The Birth Of Japan’s Postwar Constitution (Routledge 1998); Ray A. Moore and Donald L. Robinson, Partners for Democracy: Crafting the New Japanese State Under MacArthur (Oxford 2002). 16 Draft of the Constitution prepared by General MacArthur, art. 41, https://www.ndl.go.jp/constitution/shiryo/03/076a_e/076a_etx.html. 17 Constitution of Japan, art. 14(2), by providing for the equality rights, made clear that “[p]eers and peerage shall not be recognized.” 18 art. 1. 19 art. 4 (The Emperor shall perform only such acts in matters of state as are provided for in this Constitution and he shall not have powers related to government). 20 The Constitution lists several functions of the Emperor, which are relevant to the politics: promulgation of amendments of the constitution, laws, cabinet orders, and treaties, convocation of the Diet, dissolution of the House of Representatives, and proclamation of general election of members of the Diet. Ibid, art. 7. However the Emperor is supposed to perform all of these functions, “with the advice and approval of the Cabinet,” and there is no room for discretion for the Emperor. 21 art. 41. 22 art. 73 (The Cabinet is authorized to enact cabinet orders in order to execute the provisions of this Constitution and of the law. However, such cabinet orders cannot include penal provisions unless authorized by the law in question). 23 Constitution of Japan, chapter VIII Local Self-Government. 24 art. 94 (Local public entities shall have the right to manage their property, affairs, and administration and to enact their own regulations within law. The bylaws to be enacted by these local governments are generally called “local ordinances.” These local ordinances can be passed only within the laws passed by the Diet and cannot violate them.) 25 art. 42. 26 art. 43(1). 27 art. 58 (Each House shall select its own president and other officials. Each House shall establish its rules pertaining to meetings, proceedings, and internal discipline and may punish members for disorderly conduct.…). 28 art. 60 (The budget must first be submitted to the House of Representatives). 29 art. 67. 30 art. 59. 31 art. 60. 32 art. 61. 33 The Joint Committee needs to be convened also when there is a disagreement between both Houses over the designation of the Prime Minister. 34 art. 43. 35 This raises a somewhat complicated issue when the members chosen based on proportional representation later leave their political party or are kicked out from the political party that selected them. The current understanding is that all members of the Diet, even when they are elected based on proportional representation, are representatives of all the people and they should not lose their status as members of the Diet even if they leave the political party or are kicked out from the political party that had selected them. In 2000, the Public Office Election Act was amended to prevent the candidate elected, based on proportional representation pursuant to the list endorsed by a political party, from becoming a member of other political parties that contested the same election. Public Office Election Act, art. 99-2. However, this does not prevent these elected members from becoming

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The Japanese Diet independent lawmakers or becoming members of a new political party that had not participated in the election. 36 Constitution of Japan, art. 43(2)(The number of the members of each House shall be fixed by law). 37 Koushoku senkyohōenkyoho senkkof Japan, art. 43(2)(The number of the member 38 art. 4(2) of the Public Office Election Act. 39 Constitution of Japan, art. 45. 40 art. 46. 41 art. 45. 42 art. 15(1). 43 art. 15(3). 4 4 art. 44. 45 art. 14(1). 46 The Public Office Election Act stipulates that every Japanese citizen over the age of 18 has a right to vote in election for the members of HR as well as HC. Public Office Election Act, art. 9(1). The voting age used to be fixed at the age of 20 for a long time. But finally, it was lowered to 18 in 2015. 47 SCJ, 2nd petty bench, Feb. 26, 1993, 167 Shumin 579. 48 In order to run for election for members of the HR, the person needs to be Japanese citizen over the age of 25, while in order to run for election for members of the HC, the person needs to be Japanese citizen over the age of 30. Public Office Election Act, art. 10. As a result, non-citizens are not allowed to run for election and the SCJ sustained this exclusion. SCJ, 2nd petty bench, Mar. 13, 1998, 187 Shumin 409. 49 Public Office Election Act, art. 11. 50 Public Office Election Act, art. 252. 51 See SCJ, grand bench, Sep. 14, 2005, 59:7 Minshu 2087. 52 Recently, the Osaka High Court held that the blanket denial of the right to vote to those who are serving prison sentence cannot be justified. Osaka HC, Sep. 27, 2013, https://www.courts. go.jp/app/hanrei_ jp/detail5?id=84058. But the Hiroshima High Court disagreed. Hiroshima HC, Dec. 20, 2017, https://www.courts.go.jp/app/files/hanrei_ jp/412/087412_hanrei.pdf. 53 See SCJ, grand bench, Sep. 14, 2005, 59:7 Minshu 2087. 54 Public Office Election Act, art. 44(1). 55 art. 48-2 (casting vote in advance) and art. 49(1) (absentee ballot) of the Public Office Election Act. 56 SCOJ, 1st petty bench, Nov. 21, 1985, 39:7 Minshu 1512. 57 art. 11 of the Public Office Election Act. 58 art. 252 of the Public Office Election Act. 59 art. 89 of the Public Office Election Act. 60 art. 90 of the Public Office Election Act. 61 Constitution of Japan, art. 47 (“Electoral districts, method of voting and other matters pertaining to the method of election of members of both Houses shall be fixed by law”). However, no one is allowed to become members of both houses at the same time. art. 48. 62 Public Office Election Act, art. 4(1). 63 art. 4(2) of the Public Office Election Act. 64 art. 86-2(4) of the Public Office Election Act. 65 Some prefectures with small population are combined together with the neighbouring prefectures to create one district. This has caused serious discontent among local residents. 66 HR, Kaihamei oyobi kaihabetsu shozokugiinsu [Names of the Factions and the Number of Their Affiliated Representatives], https://www.shugiin.go.jp/internet/itdb_annai.nsf/html/statics/shiryo/ kaiha_m.htm. 67 HC, Kaihabetsu shozokugiinsu ichiran [Number of Affiliated Members of Each Factions], https:// www.sangiin.go.jp/japanese/joho1/kousei/giin/204/giinsu.htm. 68 NHK, HC Election in 2019, https://www.nhk.or.jp/senkyo/database/sangiin/2019/00/hsm12. html. 69 Constitution of Japan, art. 58 (“Each House shall select its own president and other officials”). 70 art. 49. 71 art. 50. 72 art. 51. 73 art. 83. 74 art. 84.

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Shigenori Matsui 7 5 art. 85. 76 art. 86 (“The Cabinet shall prepare and submit to the Diet for its consideration and decision a budget for each fiscal year”). 77 art. 88 (All property of the Imperial Household shall belong to the State. All expenses of the Imperial Household shall be appropriated by the Diet in the budget) and art. 89 (No public money or other property shall be expended or appropriated for the use, benefit, or maintenance of any religious institution or association, or for any charitable, educational, or benevolent enterprises not under the control of public authority). 78 art. 73. 79 art. 62 (Each House may conduct investigations in relation to government and may demand the presence and testimony of witnesses, and the production of records). 80 art. 69 (If the HR passes a non-confidence resolution or rejects a confidence resolution, the Cabinet shall resign en masse, unless the HR is dissolved within ten days). 81 The Cabinet has a power to administer the civil service, in accordance with standards established by law. art. 73. This includes the power to appoint its officers. 82 art. 64. The Diet shall set up an impeachment court from among the members of both Houses for the purpose of trying those judges against whom removal proceedings have been instituted. Matters relating to impeachment shall be provided by law. 83 art. 96. 84 Nihonkoku kenpo no kaiseitetuduki nikansuru hōritsu [Act on National Referendum on Constitutional Amendment], law no. 51 of 2007. 85 Kokkaihō [Diet Act], law no. 79 of 1947, art. 56(1). 86 The chairperson has the power to maintain order by using guards and the police. Shugiin Kisoku [HR Rule], art. 208, and violent lawmakers can be excluded from the floor and face disciplinary action by the house. 87 Constitution of Japan, art. 52. 88 art. 54. When the HR is dissolved, the HC is closed at the same time. However, the Cabinet may in time of national emergency convene the HC for an emergency session. Measures taken at such emergency session shall be provisional and shall become null and void unless agreed to by the HR within a period of ten days after the opening of the next session of the Diet. 89 art. 56(1). 90 art. 56(2). 91 art. 57. 92 Constitution of Japan, art. 74. 93 art. 7. 94 art. 67(1) (“The Prime Minister shall be designated from among the members of the Diet by a resolution of the Diet”). 95 art. 67(2). However, the Joint Committee of both Houses needs to be convened to seek a compromise within ten days. 96 art. 6(1) (“The Emperor shall appoint the Prime Minister as designated by the Diet”). 97 art. 66(1). 98 art. 68 (“The Prime Minister shall appoint the Ministers of State”). No confirmation is needed. 99 art. 68. 100 art. 65. 101 art. 66(3). 102 art. 69. 103 art. 72. 104 art. 86. 105 art. 73. 106 art. 76(3). 107 art. 77(1). 108 art. 81. 109 SCJ, 1st petty bench, May 1, 1958, 12:7 Keishu 1272. 110 Maurice Wright, ‘Who Governs Japan?: Politicians and Bureaucrats on the Policy-making Process’ (1999) 47 Political Studies 939; Michio Muramatsu and Ellis S. Krauss, ‘Bureaucrats and Politicians in Policymaking: The Case of Japan’ (1984) 78:1 SPSR 126. In the past, each of the executive departments has its own vested interest and bureaucrats in each department have their own

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The Japanese Diet independent interests. The personnel decisions inside the department, including the appointment of the vice secretary generals, were left for each department. This allowed bureaucrats inside the executive departments to behave independently from the politicians. Yet, recently, we have come to see an increasing control of the Prime Minister over the career bureaucrats especially as the Cabinet Personnel Bureau now has a power of selection of the most senior bureaucratic positions. Tomohito Shinoda, ‘The Policymaking Process in Japan’, in Robert J. Pekkanen and Saadia M. Pekkanen (eds), Oxford Handbook of Japanese Politics (Oxford 2020), https://www.oxfordhandbooks. com/view/10.1093/oxfordhb/9780190050993.001.0001/oxfordhb-9780190050993-e-13.

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14 THE PARLIAMENT OF MALAYSIA Wong Chin Huat

14.1 Introduction Malaysia provides an interesting case study of how Executive Dominance was built into the political system against the background of one-coalition dominance under the National Front (BN) government, but mitigated by the sudden emergence of fluid multiparty competition since 2020, following the electoral defeat of the BN government in 2018. This chapter introduces the evolution of Malaysia’s political and party systems. This is followed by an assessment of the various powers held by Members of Parliament (MPs), ending with a reflection on MPs’ real functions as providers of constituency services and electors of the PM. Before the conclusion, we examine the legislative process and MPs’ ability to enact laws.

14.2 Structure This part offers an overview of the political system, i.e. the constitutional arrangement and the composition of Parliament, eligibility of candidates, voter franchise and evolution of the electoral and party system.

14.2.1  Constitutional arrangement and parliamentary composition Nominally federal but more centralized than some unitary states, Malaysia places most of the legislative powers with the Federal Parliament with few legislative powers retained by the 13 State Legislative Assemblies. Eleven of the 13 States first gained independence from the United Kingdom in 1957 as the Federation of Malaya. In 1963, Malaya merged with three neighbouring British territories: the self-governing state of Singapore and the colonies of Sabah and Sarawak on the island of Borneo, to form Malaysia. The three new states were given more powers than the Malayan ones. This will be detailed in Section 3.1. Singapore was expelled two years later when its ruling party, People’s Action Party (PAP), attempted to form an opposition coalition to electorally challenge the Federal Government led by United Malays National Organisation (UMNO). As per Article 44 of the Federal Constitution, the Parliament consists of the Federal Monarch (Yang diPertuan Agong), the Senate (Dewan Negara) and the House of Representatives (Dewan Rakyat). The Parliament’s term is based on the term of the elected lower house. 236

DOI: 10.4324/9781003109402-16

The Parliament of Malaysia

As per Article 45, the Senate has 70 appointed seats, with a three-year term – starting from the date of the Senators’ appointment that is not tied to the Parliament’s term – and each Senator has a two-term limit. Two Senators are technically elected by each of the 13 State Legislative Assemblies, but they are effectively appointees of the respective State Government. The remaining 44 are Federal Government appointees to be chosen from amongst those who ‘in [the Federal Monarch’s] opinion have rendered distinguished public service or have achieved distinction in the professions, commerce, industry, agriculture, cultural activities or social service or are representative of racial minorities or are capable of representing the interests of aborigines’ [Article 45(2)]. Four of them are to specifically represent the three Federal Territories which have neither state-level governments nor local councils: two for Kuala Lumpur and one each for Putrajaya and Labuan. Interestingly, Articles 45(4) and 120 allow Parliament to make the Senate fully elected, up to three members per state elected from statewide constituencies, but this has not been done. In reality, the Senate is mostly filled by political have-beens, defeated candidates or groomed talents of the federal or state ruling parties. As ministers and deputy ministers must be parliamentarians, the Senate becomes a convenient route for the appointment of unelected politicians and non-politicians to join the Executive. As the Federal Government wants the flexibility to reward party loyalists and appoint Executive members whenever necessary, the Senate is almost never filled up fully. As per Article 46, the House of Representatives consists of 222 elected members. The seats are assigned to the 13 States and the three Federal Territories, not fixed by any formula reflecting demographic proportionality but freely decided by the Parliament itself based on the recommendations of the Executive-controlled Election Commission (EC). Also, the number of parliamentarians has cyclically increased from 144 in 1965 – upon Singapore’s expulsion – to 222 by 2005. These two unusual features in electoral representation are key to the maintenance of electoral authoritarianism in Malaysia, which will be discussed in Section 2.3. Since 1964, Article 57(1A) allows the appointment of an unelected Speaker to head the lower House, adding to it another MP who cannot vote. The Malaysian parliamentary speaker has for most part been an unelected member with a legal background. The last speaker, Azhar Azizan Harun, resigned as the EC chairperson to take up the job after the fall of the first non-UMNO-led government in 2020. Malaysia has a written Constitution, and the Federal Constitution can generally be amended only with a two-third majority from both Houses [Article 159]. The Senate, however, becomes insignificant when it comes to the making of ordinary laws. While bills may be generated by either House and the approval of the other House is required for passage [Article 66(1)], the Senate can only delay a money Bill by the House of Representatives by a month and any other Bill by a year [Article 68(1)–(2)]. This makes the Senate an ineffective checkand-balance on the House of Representatives. Parliament’s power to amend the Federal Constitution is partly constrained by the requirement of royal consent on certain provisions [Article 159(5)]. Malaysia has nine constitutional monarchs, mostly titled Sultan, representing nine Malay states which were nominally only protectorates and not colonies under the British rule. During colonial rule, the Rulers retained absolute control on Islamic affairs and Malay customs and became the symbol of Malay power. After Independence, they form the Conference of Rulers and rotate to assume the Federal Monarchy for a five-year term. The Malay Rulers and UMNO have a relationship which is often complementary yet competitive, and the relationship changes with personalities and circumstances. In 1994, Prime Minister Mahathir Mohamad amended Article 66(4) and inserted Article 66(4A). Under the new clauses, a bill shall become law within 30 days 237

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after being presented to the King ‘as if he had assented thereto’, thereby removing the royal veto power on lawmaking, which previously allowed the King to decline or delay assent. Nevertheless, as per Article 159(5), provisions related to citizenship [Part III], Conference of Rulers [Article 38], precedence of Rulers [Article 70], right of a Ruler in the Constitution of his State [Article 71(1)], the national language [Article 152], the special position of the Malays and natives of Sabah and Sarawak [Article 153] and restriction to prohibit questioning of Part III, Articles 152, 153 and 181 (Rulers’ sovereignty) [Articles 10(4), 63(4) and 72(4)] still cannot be amended without the consent of the Conference of Rulers. All the State Legislative Assemblies are modelled on the Parliament except that they are unicameral. For the four former colonies without hereditary Malay Rulers, i.e. Sabah, Sarawak, Penang and Malacca, Governors are appointed by the King after consultation with the Chief Minister [Section 19A, Eighth Schedule].

14.2.2  Eligibility and disqualification of MPs and franchise Article 47 imposes a minimum age requirement for parliamentarians – 18 for the lower House and 30 for the Senate, while Article 48 lists the grounds of disqualification: he is and has been found or declared to be of unsound mind; or he is an undischarged bankrupt; or he holds an office of profit; or having been nominated for election to either House of Parliament or to the Legislative Assembly of a State, or having acted as election agent to a person so nominated, he has failed to lodge any return of election expenses required by law within the time and in the manner so required; or (e) he has been convicted of an offence by a court of law in the Federation (or, before Malaysia Day, in the territories comprised in the State of Sabah or Sarawak or in Singapore) and sentenced to imprisonment for a term of not less than one year or to a fine of not less than two thousand ringgit and has not received a free pardon; or (f ) he has voluntarily acquired citizenship of, or exercised rights of citizenship in, any country outside the Federation or has made a declaration of allegiance to any country outside the Federation. (a) (b) (c) (d)

One can stand as an independent candidate but having a credible party label is electorally advantageous. Registration of parties is controlled by the Registrar of Society (ROS) who reports to the Home Minister. The obvious conflict of interest has led to the ROS’ arbitrary decisions in rejecting applications by new parties and in deregistering opposition parties. Article 119 grants every citizen aged 18 and above the right to vote. Up until 2019, the eligibility age was 21, and eligible citizens would have to register themselves at their resident constituency. Under the Alliance of Hope (PH) government, Parliament lowered the voting age and introduced automatic voter registration (AVR). Both reforms came into force on 15 December 2021, and it had increased the pool of voters by nearly 40% when the last election was held in November 2022.

14.2.3  Electoral system Malaysia adopts the Single Member Plurality (SMP), commonly known as First-Past-ThePost (FPTP), electoral system for both the Federal and State elections. The systemic choice is stipulated partially by the Federal Constitution and partially by a parliamentary act. Articles 115 and 116 determine that the Federal and State elections must adopt single-member 238

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constituencies, but the plurality method is stipulated only in Section 13(1) of the Election Act 1958. Technically, Malaysia can switch to the French-style Two-Round System or the Australian-style Alternative Vote system without a constitutional amendment. While FPTP elections are known to amplify the winner’s majority as an inherent feature, the seat-vote disproportionality is exceptional in Malaysia. In the most extreme example of the 1986 parliamentary election, BN won 83.62% of parliamentary seats with only 57.28% of votes, while the second largest opposition Pan-Malaysian Islamic Party (PAS) won 15.50% of votes but only 1 out of 177 (0.56%) parliamentary seats. Hence, a BN voter was overrepresented by 1.46 times, while a PAS voter had only 0.04 times of her warranted representation, meaning that a vote for BN was equivalent to 40 votes for PAS. Such disproportionality helped eliminate BN’s rivals especially UMNO’s nationalist splinters and leftist parties whose supporters were not geographically concentrated. It improved only after 2008 when the Opposition parties won many ethnically mixed constituencies, which in the past contributed to their under-representation. See Table 14.1. The excessive under-representation of the Opposition is the product of five decades of malapportionment and gerrymandering of constituencies. Under Article 113 and the Thirteenth Schedule, the constituency delimitation process is administered by the EC – conventionally filled with retired senior civil servants – and approved by ‘no less than one-half of the total number of members of the [House of Representatives]’. While the process gives state governments, local councils and affected voters two opportunities to raise objections to the EC’s recommendations in hearings, such hearings are mere formality in practice. Two greater and idiosyncratic flaws are found in the allocation of parliamentary seats. Normally, parliamentary seats are apportioned between states based on their demographic or electorate size. Over time, these seats will be reapportioned such that seats would be taken away from states with slower or negative population/electorate growth and given to Table 14.1  Imbalance of vote values between the ruling coalition and largest opposition parties (by vote share) 1955–2018 Votes to match

Votes to match

Largest 1 vote for Second largest Elections opposition party ruling coalition opposition party 1955 1959 1964 1969 1974 1978 1982 1986 1990 1995 1999 2004 2008 2013 2018

PN PAS SF PAS DAP DAP DAP DAP DAP DAP PAS PAS PKR PKR BN

Infinity 2.34 12.25 3.39 4.52 2.72 4.75 2.27 2.10 3.33 1.45 8.15 1.63 1.91 1.07

PAS SF PAS DAP SNAP PAS PAS PAS S46 S46 DAP DAP PAS DAP PAS

1 vote for Third largest 1 vote for ruling coalition opposition party ruling coalition 2.54 2.31 2.47 1.79 1.37 7.03 6.30 40.41 4.48 4.22 3.28 2.58 1.72 1.16 2.36

Source: Wong (2020: Table 11.11)1

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Votes to match

NAP PPP UDP Gerakan Pekemas Pekemas PSRM PSRM PAS PAS PKN PKR DAP PAS STAR

Infinity 2.25 6.65 1.81 11.39 Infinity Infinity Infinity 2.28 2.59 6.11 26.08 1.38 1.98 0.45

Wong Chin Huat Table 14.2  Inter- and intra-state malapportionment of parliamentary constituencies in the 2018 election State/Federal territory Perlis Kedah Kelantan Terengganu Pulau Pinang Perak Pahang Selangor Kuala Lumpur Putrajaya Negeri Sembilan Melaka Johor Labuan Sabah Sarawak Malaysia

Electorate 150,221 1,146,492 1,049,527 736,632 945,627 1,510,864 823,981 2,415,074 847,793 27,306 607,793 494,662 1,817,999 28,356 1,117,337 1,220,960 14,940,624

Parliamentary seats 3 15 14 8 13 24 14 22 11 1 8 6 26 1 25 31 222

Constituency size Average

Largest

Smallest

L/S ratio

50,074 76,433 74,966 92,079 72,741 62,953 58,856 109,776 77,072 27,306 75,974 82,444 69,923 28,356 44,693 39,386 67,300

55,938 112,577 110,924 107,593 91,595 107,763 88,899 178,790 88,482 27,306 110,168 126,848 138,299 28,356 62,415 81,856 178,790

46,096 42,697 47,470 73,487 49,586 29,752 32,048 40,863 61,598 27,306 48,522 51,441 40,356 28,356 28,509 19,592 19,592

1.21 2.64 2.34 1.46 1.85 3.62 2.77 4.38 1.44 1.00 2.27 2.47 3.43 1.00 2.19 4.18 9.13

Source: Election Commission of Malaysia (circa 2018)3

states with rising residents or voters, while the total number of seats remained unchanged. This would result in inter-state equal apportionment, which further facilitates intra-state equal apportionment. In Malaya, the mathematical formula that rigorously guided inter-state apportionment [Article 116 (3) and (5)] was repealed in 1962. When Malaysia was formed the following year, Article 46 was amended to spell out the seats allocated to Singapore, Sabah and Sarawak in the expanded Parliament, so as to deliberately under-represent Singapore and over-represent the Borneo states for ethno-religious reasons.2 In the aftermath of the 1969 Sino-Malay riot, which saw UMNO tightening its grip over the country, Article 46 was further amended in 1973 to determine the number of parliamentary seats for each of the Malayan States, removing any demographic/electorate constraint, and to increase seats for some states without reapportionment. Reapportionment is manifestly disruptive for the ruling coalition as some incumbents will lose their jobs and may turn nasty. With the cyclical and arbitrary increase of seats for the States, the Parliament has grown in size while inter-state and intrastate malapportionment worsens. By the last election in 2018, the nation’s largest constituency had nine times as many voters as the smallest one. See Table 14.2.

14.2.4  Party system The combination of Malaya/Malaysia’s plural society and the FPTP electoral system has resulted in the formation of permanent coalition governments until the collapse of the PH government in 2020 when coalition governments became more fluid. The plural society gave birth to communal or regional parties while the presence of multiethnic constituencies under FPTP incentivized these parties to build multiethnic coalitions to pool votes and share power. Although UMNO and its junior partners had ruled Malaya/Malaysia without disruption for 240

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61 years till 2018, it might be useful to treat Malaya/Malaysia for having two different party systems, before and after 1990, and that Malaysia is in a transitional stage. The first party system had only one permanent coalition, i.e., which was originally known as the Alliance, consisting of UMNO, the then Malayan Chinese Association (MCA) and the then Malayan Indian Congress (MIC). It won a 98% legislative landslide in Malaya’s first national election in 1955 and successfully negotiated her independence from the British. In the aftermath of the 1969 ethnic riots, it was expanded into BN in 1974 by co-opting both its allies in Sabah and Sarawak and communal/regional opposition parties. The Alliance relied on elite-level compromises to resolve thorny issues of ethnic rights and languages, underlined by their distrust of the masses and agitative politicians. In the more authoritarian BN era, decision-makers were senior ministers and top civil servants trusted by them. The Alliance model was characterized by Arend Lijphart (1977)4 as ‘consociational’ mainly for having a grand coalition and parallel communal institutions. However, in Lijphart’s original examples of Austria (1945–1966), Belgium (1918–1963) and Netherland (1917–1967), grand coalitions resolved post-election tensions by bringing electoral rivals together to share power. In Malaysia, as the grand coalition included only electoral partners, their excluded electoral rivals – PAS and non-Malay-based opposition parties like Democratic Action Party (DAP) – would attack UMNO and its non-Malay partners from both ends of the communal spectrum. Horowitz5 illuminates the dynamics with this insight: ‘In an environment of ethnic conflict, there is room for only one multiethnic party or alliance. After one such party establishes itself, all the electoral opportunities are located on the ethnic flanks’. In this way, the first party system may be better characterized as ‘sandwiched consociationalism’. See Figure 14.1. From 1990 onwards, BN often faced the challenge from a multiethnic opposition coalition due to a series of schisms within UMNO. Splinter groups from UMNO like Spirit’ 46 Party (S46), People’s Justice Party (PKR) and Malaysian United Indigenous Party (Bersatu) offered their leaders – former Finance Minister Razaleigh Hamzah, former Deputy Prime Minister Anwar Ibrahim and former Prime Minister Mahathir Mohamad respectively – as credible Prime Minister candidates. This incentivized PAS – and after 2015, its moderate splinter, National Trust Party (Amanah) – and DAP to forego the communal flank positioning and compete with BN for the political center. As the communal spectrum shrinks, a second ‘Democracy versus Authoritarianism’ political contest also emerged. This produced a ‘Twocoalition System’, with some resemblance to the British two-party system. However, as the political mellowing of PAS and DAP was motivated by the prospect of winning federal power, their failure to win would immediately lead them to return to their original flank position and end their coalition. In the last political breakup in 2015, PAS moved towards UMNO and acted as the spoiler to pull away the Opposition PH’s conservative Malay votes in 2018. But the new PH coalition – consisting of PKR, DAP, Bersatu and PAS’s moderate splinter,

Figure 14.1  Malaysia’s First Party System – Sandwiched Consociationalism (1959–1990).

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Figure 14.2  Malaysia’s Second Party System – Two-Coalition System (1990–2015).

National Trust Party (Amanah) – also announced Bersatu leader Mahathir, former Prime Minister from UMNO, as its prime ministerial candidate. See Figure 14.2. The 2018 election ended UMNO’s undisrupted rule but also the Two-Coalition system, as inter-party competition took on a series of unprecedented realignment. After losing power, the multiethnic BN disintegrated and was effectively reduced to UMNO. UMNO and PAS formalized their cooperation and attacked the multiethnic PH government as a monoethnic opposition block. But the PH government collapsed in February 2020 following the toxic rivalry between Mahathir and PKR leader Anwar. Joined by a dissident faction of PKR, Bersatu left PH, and its president Muhyiddin Yassin formed a bare-majority monoethnic government with UMNO, PAS and ex-BN regional parties. Muhyiddin called his government National Alliance (PN), but this would eventually become a small coalition driven by Bersatu and PAS only.6 By August 2021, UMNO-Bersatu rivalry forced Muhyiddin to resign. UMNO’s Ismail Sabri who succeeded Muhyiddin as the new Prime Minister for the same loose coalition signed a ‘Memorandum of Understanding on Transformation and Political Stability’ (MOU)7 with PH, effectively a ‘confidence and supply agreement’ (CSA) to stay afloat in the de facto hung parliament. Ismail promised a series of reforms that would to some extent level the playing field for the opposition, including parliamentary reform, anti-hopping law, equal constituency allocation and a ten-year term limit for Prime Minister, in exchange for his survival on confidence and budget votes until July 2022.

14.3  Powers of Parliament and parliamentarians This part introduces the former power of Malaysia’s Parliament in amending the constitution, making laws, appointing and dismissing Prime Minister, approving government budgets and providing legislative oversights. We argue that with so little power, many MPs’ real functions are in providing constituency service and electing the PM.

14.3.1  Power to amend the constitution and make laws Parliament may exercise its power to make laws by having Bills passed by both Houses and assented by the King. A bill may originate in either House and will become law in 30 days after being presented to the King. If a Bill is not assented to by the King, it shall become law at the end of the 30-day period ‘in the like manner as if he had assented thereto’ [Article 66]. 242

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Parliament may make laws for ‘the whole or any part of the Federation and laws having effect outside as well as within the Federation’, while the Legislature of a State may make laws ‘for the whole or any part of that State’ [Article 73]. The Federal List, State List and Concurrent List in the Eighth Schedule to the Federal Constitution demarcate the domains over which level of government may make laws, as summarized in Table 14.3 [Article 74].

14.3.2  Power to appoint and dismiss Prime Minister The appointment of a Prime Minister from amongst the MPs based on their confidence in the appointee is the essence of parliamentary democracy. The Prime Minister must resign or seek re-election if a majority of the Members lose confidence in him. On appointment, Article 43 (2)(a) stipulates that the Yang di-Pertuan Agong shall first appoint as Perdana Menteri (Prime Minister) to preside over the Cabinet a member of the House of Representatives who in his judgment is likely to command the confidence of the majority of the members of that House. On dismissal, Article 43(4) provides that If the Prime Minister ceases to command the confidence of the majority of the members of the House of Representatives, then, unless at his request the Yang di-Pertuan Agong dissolves Parliament, the Prime Minister shall tender the resignation of the Cabinet. Note that the subjective language used in Article 43(2)(a) ‘in his judgement’ implies that the Federal Monarch does not need to rely on objective evidence of a PM candidate enjoying the confidence or his/her fellow parliamentary colleagues. However, if the King’s judgement is incorrect or overtaken by events, then the Parliament can overturn this by expressing a lack of confidence in the Prime Minister, and the Prime Minister will have to resign or seek re-election. By Westminster convention, a Prime Minister is considered to have lost his/her confidence in the House in any of these circumstances: 1 a motion of no-confidence in him is passed by the House; 2 a motion of confidence in him is rejected by the House; 3 the motion to accept a Royal Address – prepared by the Government and to represent the view of the Government, not the King’s – is rejected; 4 a Budget is rejected; and 5 a bill to introduce/amend a key legislation is rejected, if and when the legislation is seen to be solidly backed by the Government. However, the Malaysian Parliament does not provide any guarantee for motions of no-confidence or confidence to be tabled and voted upon.8 Further, if the House is not already in session, it is the Prime Minister who decides when Parliament sits and for how long. But Article 55(1) prohibits Parliament from not sitting for six months ‘between the last sitting in one session and the date appointed for its first meeting in the next session’. This, however, can be circumvented if the Prime Minister resorts to Proclamation of Emergency 243

Wong Chin Huat Table 14.3  Existing legislative competency of the Federal and State Governments as per the Eighth Schedule to the Federal Constitution List I – Federal List (1) External Affairs; (2) Defence; (3) Internal Security; (4) Civil and criminal law and procedure and the administration of justice; (5) federal citizenship and naturalization; aliens; (6) the machinery of government; (7) finance; (8) trade, commerce and industry; (9) shipping, navigation and fisheries; (10) communication and transport; (11) federal works and power; (12) surveys, inquiries and research; (13) education; (14) medicine and health; (15) labour and social security; (16) welfare of the aborigines; (17) professional occupations; (18) holidays; standard of time; (19) unincorporated societies; (20) control of agricultural pests; protection against such pests; prevention of plant diseases; (21) newspapers; publications; publishers; printing and printing presses; (22) Censorship; (23) Theatres; cinemas; cinematograph films; places of public amusements; (25) Co-operative societies; (25A) Tourism; (26) prevention and extinguishment of fire; (27) all matters related to the Federal Territories. List IIA – Supplement to State List for States of Sabah and Sarawak

List II – State List (1) Islam; (2) Land; (3) Agriculture and forestry; (4) Local Government; (5) other services of a local character; (6) State works and water; (7) Machinery of the State Government; (8) State holidays; (9) Creation of offences related to the State List or the State law; (10) Inquiry for State purposes; (11) Indemnity related to the State List or the State law; (12) Turtles and riverine fishing; (12A) Libraries, museums, ancient and historical monuments, and records and archaeological sites and remains.

(13) Native law and custom; (14) Incorporation of authorities and other bodies set up by State law; (15) Ports and harbours; (16) Cadastral land surveys; (18) In Sabah, the Sabah Railway.

List IIIA – Supplement to Concurrent List for States of Sabah and Sarawak

List III – Concurrent List (1) Social welfare; social services; protection of women, children and young persons. (2) Scholarships; (3) Protection of wild animals and wild birds; National Parks; (4) Animal husbandry, prevention of cruelty to animals; veterinary services; animal quarantines; (5) Town and country planning; (6) Vagrancy and itinerant hawkers; (7) Public health, sanitation and the prevention of diseases; (8) Drainage and irrigation; (9) Rehabilitation of mining lands and land which has suffered soil erosion; (9A) Fire safety measures and fire precautions; (9B) Culture and sports; (9C) Housing and provisions for housing accommodation; improvement trusts.

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(10) Personal law; (11) Adulteration of foodstuffs and other goods; (12) Shipping under 15 registered tones; (13) water power and electricity generated by water power; (14) Agricultural and forestry research, control of agricultural pest, and protection against such pest; prevention of plant diseases; (15) Charities and charitable trusts and institutions in the State; (16) Theatres; cinemas; cinematograph films; places of public amusements;

The Parliament of Malaysia

[Article 150] to avoid his/her own dismissal from the House. As consent to Proclamation of Emergency is not one of three listed matters where the King has discretionary power, the King may have to act according to the Prime Minister’s advice. Nevertheless, Malaysia has established an alternative pathway to oust a head of government since 2019. Since Article 43(2)(a) and similar provisions in State Constitutions require a Prime Minister or Chief Minister to enjoy the confidence of only ‘the majority of the members of [the legislature]’ and not necessary the legislature as whole, this has been construed that the question of confidence may be determined outside the House.9 Since 2019, six state governments have been replaced or brought down by their rivals without going through a vote in the Legislature, but by merely presenting lawmakers or statutory declarations to that effect, to the State Palaces. The events that unfolded since February 2020 underlined the complication of this pathway. The appointment of Muhyiddin as PM by the National Palace in March 2020 has always been disputed by the Opposition including Mahathir. Muhyiddin’s legitimacy was increasingly called into question after the third wave of Covid-19 in September 2020 and Anwar’s claim that he had the support of unidentified MPs to give him a majority to form the next government. In October, Muhyiddin sought to proclaim a State of Emergency to combat the Covid-19 health crisis. Instead of acting on the Prime Minister’s advice, the King convened a special meeting for the Conference of Rulers, and the Rulers declined Muhyiddin’s request. In January 2021, Muhyiddin Yassin successfully sought the King’s consent to proclaim an Emergency, which suspended Parliament and State Legislatures, until 1 August 2021. The pressure mounted for Parliament to be reconvened when the number of Covid-19 cases continued to rise. Upon the King’s ‘advice’, Muhyiddin reluctantly convened the Parliament on 26 July 2021. To deny the Opposition any opportunity to turn any parliamentary vote into a vote of no-confidence, no motions were allowed during this special meeting. Nevertheless, UMNO parliamentarians withdrew their support for Muhyiddin after his Law Minister incorrectly suggested that the monarch had assented to revoking the Emergency Ordinances. When Muhyiddin finally resigned, the Palace asked every MP to nominate one person as PM and Ismail Sabri from UMNO defeated Anwar by 114–105 votes.

14.3.3  Power to approve budgets By Westminster convention, Parliament can dismiss a government by simply rejecting its budget. In reality, this is impossible if the Government has a solid majority. Up until 2020, what the Finance Minister unveiled on Budget Day would be passed at the end of the parliamentary meeting without any amendment. Procedurally, the Minister shall table a Supply Bill containing the estimated financial requirements for all heads of expenditure for the next financial year. The debate shall resume after an adjournment of not less than two days to focus on the general principles of Government policy and administration in relation to the Supply Bill and both the Ordinary and Development Estimates. A maximum of 13 days, including not less than 2 days set aside for ministerial replies, shall be allotted for the debate on the second reading of the Bill and the motion relating to the Development Estimates. This will be followed by the meeting of Committee of the whole House which may take up to 20 days for both the Supply Bill and the Ordinary and Development Estimates [SO66]. A 2012 study by Hassan, Aslam and Tan10 suggested that Government backbenchers could influence the budgeting process as they were consulted by the Ministry of Finance, but Opposition parliamentarians were simply excluded from the consultation. 245

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For the 2022 budget, the Finance Ministry releases a pre-budget statement for the public’s viewing and consulted the representatives of the PH parties on the budget as per the MOU.

14.3.4  Power to scrutinise government Parliamentarians may perform oversight over the government through parliamentary questions and debates on motions or bills. Questions allow parliamentarians to obtain important official information, while debates can be used to influence policies and affect government’s control over legislative agenda.11 However, the effectiveness of both methods in Malaysia is hampered by the unchecked power held by the Speaker and his deputies to decide on what are allowed and not allowed in debates. Malaysian MPs may put forward up to 10 oral questions and 5 written questions – not more than 40 words in Malay – to Ministers in any one meeting. The questions must be put forward at least ten working days ahead [SO22(2)]. However, under SO22(5), a Member may also submit three oral questions at least seven working days in advance. In practice, the House Secretary will set and announce the deadlines for submission of various questions.12 On average, 70–100 oral questions would be submitted for a day but only 10–15 may be answered. Written answers are provided for undisposed questions and published on Parliament’s website at www.parlimen.gov.my.13 Since 2016, Minister’s Question Time (MQT) is held for 30 minutes from 10.00 to 10.30 am on every Tuesday and Thursday, immediately before the Question’s Time. Parliamentarians may ask oral questions with just a one-day notice. Each question is allocated a maximum 10 minutes and supplementary questions may be asked within the time slot [SO24A].14 On debates, opportunity to speak and floor time differ for parliamentarians based on their status. In practice, the Malaysian Speaker will first ascertain the number of parliamentarians who wish to participate in a debate and the reply time needed for the Minister and then decide on the speaking order and time allotted to each speaking Member. Normally, cabinet ministers would be prioritized over government backbenchers and party leaders over the junior members. Members may seek to interrupt during others’ speaking slot by seeking the latter’s permission or raising points of order to the Speaker.15 Malaysia’s Parliament provides no room for filibusters as any Member may propose a closure motion at any point of time during a debate. If the motion is permitted by the Speaker, it would be voted on without further amendments or debates. This, however, is rarely used and not in recent memory.16

14.3.5  Real functions of private members The limited roles of Private Members in making laws, shaping policies and scrutinizing government raise questions on what parliamentarians really do in Malaysia, especially before the limited parliamentary reform just introduced by the MOU. The answer appears to be providing constituency services and facilitating local development, especially for less developed constituencies. This makes being in government – federal or state – a great advantage, in that one can have access to more resources or influence in decision-making process. Voters who would prize legislative oversight over constituency interests are likely limited to urban dwellers who are more educated or more affluent or those who are staunchly anti-establishment. Hence, executive dominance over the legislature is translated into incumbency advantages for those in the government’s camp that can distort electoral competition. One clear manifestation 246

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of such uneven playing field is constituency allocation – funding provided to the elected representatives to aid constituents’ need for welfare aids or small-scale infrastructure works. Conventionally, this is given to only government lawmakers. This lopsided game of Malaysian-style ‘pork barrel’ helps to swing not just voters towards the government parties in election, but also opposition lawmakers after election. While this financial discrimination against opposition lawmakers was condemned by the Opposition, they did not eliminate it but only reduce it – giving some to their rivals but more to their own – when they came into power at the state and later the federal levels. For example, while an opposition MP was given RM 100,000 a year throughout the 22 months of PH government, the aid that went to a PH parliamentarian had rose from RM 800,000 in 2018 to RM 3.8–4.3 million by 2020. When a lawmaker’s political career is determined, not by her work in the legislature, but by the largesse she brings back to her constituency, an elected representative or her voters may just choose one patronage machine over another depending on which machinery is in power. Unsurprisingly, after the changes of government in both 2018 and 2020, many federal and state lawmakers switched sides to join the new governments and justified their moves with the pretext to ensure development in their constituencies. However, with greater awareness by both citizens and politicians about how financial marginalization of opposition constituencies can induce party-hopping, there has been a move towards equal constituency development fund to all lawmakers regardless of party affiliation in the past two years. As a result of a CSA between UMNO and PH, the UMNO-led Perak in December 2020 became the first state to do so. UMNO has declared the same policy for the states of Malacca and Johor in November 2021 and March 2022. The same had also been implemented federally under the MOU, but it excluded parliamentarians from minor Opposition parties which were not a party of the MOU.

14.4  Legislative process This part examines how laws and policies are made in Malaysia and to what extent lawmakers get to play a meaningful role.

14.4.1 Stages Legislative process in Malaysia is similar to that in other Westminster systems. When a Bill is presented by a Minister in the House of Representatives, it is considered to have been read for the first time and stand for Second Reading in the next or subsequent sitting [SO48]. In the second reading, the general merits and principle of the Bill will be debated. Any amendment would require at least one day’s notice in writing [SO53]. A Bill may be committed to a Select Committee before its second reading. Alternatively, it shall stand committed to a Committee of the Whole House after the second reading unless the House on motion commits it to a Select Committee. Such motion requires no notice but must be made immediately after the second reading [SO54]. The Select Committee for which a Bill is committed to can only discuss its details if the Bill is committed to it after the second reading [SO55]. The House may proceed to the third reading of the Bill, after the Committee Stage, or when a Bill has been reported from a Select Committee and the House approves its report [SO60]. In the third reading, amendments are confined to the contents of the Bill [SO61]. The passed Bills will be sent to the Senate for passage and subsequently the Federal Monarch for his assent, or deemed to that effect after 30 days. 247

Wong Chin Huat Table 14.4  Parliamentary special select committees under different governments (2004–2021) Government

BN

Prime Minister Abdullah Badawi Years of PSSC 2004–2006 operation MPs per PSSC 7–11 Chair from the 0 Opposition bench Responsibility Unity and of the PSSC National Service Reviewing of Penal Code and Criminal Procedure Code

BN

PH

PN-Led

BN-Led

Najib Mahathir Razak Mohamad 2011–2012 2019–2020

Muhyiddin Yassin Ismail Sabri 2020–2021

2021–2022

6–9 0

7 1

7 1

9 4

Electoral Reforms

Consideration of Bills

Security

Security

Education

Education

Budget Lynas Advanced Materials Plant (LAMP)

Rights and Gender Health, Science Equality and Innovation Major Public Fundamental Appointments Liberty and Constitutional Rights Defence and Home Finance and Affairs Economy Federal-State Agriculture and Relations Domestic Trade Election Infrastructure and Development Human Rights and Women, Children Constitutional and Social Affairs Development International Relations and Trade Science, Innovation and Environment

Agencies under the Prime Minister’s Department.

Health, Science and Innovation Fundamental Liberty and Constitutional Rights Finance and Economy Agriculture and Domestic Trade Infrastructure and Development Women, Children and Social Development Agencies under the Prime Minister’s Department. International Affairs

Sources: Parliament of Malaysia, Hassan and Kathirvelu (2021)17

In practice, with very few exceptions, laws are made without consideration by Select Committee and rushed through the Committee of the Whole House. This implies that laws intended by the Cabinet or Ministers, who may be influenced by senior civil servants, and prepared by the Attorney-General’s Chambers (AGC) will be passed often without amendment in Parliament, making Parliament a rubber stamp of the Executive. 248

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14.4.2 Committees The Malaysian Parliament has five standing committees. They are the Public Accounts Committee (PAC), Selection Committee, House Committee, Standing Orders Committee and Rights and Privileges Committee. Four parliamentary special select committees (PSSCs) were set up in BN’s last two decades to study specific issues. The PH government formed ten PSSCs, mostly issue-based or functional and three covering clusters of ministries. These were replaced by nine PSSCs under the Muhyiddin Government, with all but one shadowing ministries or cluster ministries, but ten portfolios, including foreign affairs and human resources, were excluded. After signing the MOU with PH, the Ismail Government set up one more PSSC on international affairs and expanded the number of parliamentarians for each PSSC from seven to nine, hence involving more private members to oversee the Government. See Table 14.4. Also, committee leadership is now more equally distributed. Notwithstanding the positive changes brought under the MOU, the PSSCs under the Ismail Sabri Government remained gravely inadequate. First, nine ministries remain excluded from the nine departmental PSSCs, and some of these departmental PSSCs included too many ministries to be possibly effective. For example, the PSSC on infrastructural development covered four important ministries: Works, Transportation, Housing and Local Governments and Rural Development. Second, more than half of opposition parliamentarians were deliberately left out from the PSSCs and the Standing Committees as the Government wanted to ensure a majority of its parliamentarians in every committee. As the government had a slim majority of 114 versus the Opposition’s 105, and a bloated frontbench with 61 parliamentarians, it was left with a small delegation of government backbenchers, which in turn disincentivized the government from setting up more PSSCs.

14.4.3  Private member’s bills In theory, private member’s bills may be introduced but the process is ‘laborious, ambiguous and subject to the discretionary power of the Secretary and Speaker of the House of Representative’.18 In the first stage, a private MP must apply for leave of the House to present her bill but the Secretary and Speaker have broad interpretive discretion to approve or reject the motion for non-compliance with the Standing Orders and the Federal Constitution [SO49(2)]. However, as government business takes precedence, even an accepted motion may not get to the floor for a vote. In the second stage, if the private MP is given a chance to move her motion for leave and if a majority of MPs are in support of it, then the bill is considered to have been read for the first time. It will then be turned over to the Minister in-charge of the subject matter. No further proceedings shall be taken upon such Bill until the Minister reports to the House on it. After that, the general procedures for bills starting with the second reading will take place, and the initiating MP may not have ownership of it.19 In reality, no Private Member’s bill has reached second reading. In October 2021, Government backbencher and former de facto Law Minister Azalina Othman Said managed to get on the legislative agenda her motion to table a bill to introduce recall for parliamentarians who cross the floor. However, Government business took precedence till the end of the meeting. In May 2016, the BN Government fast-tracked PAS president Hadi Awang’s motion to present a private member’s bill to amend the Syariah Courts (Criminal Jurisdiction) Act 1965 [Act 355]. The Government deliberately assisted this controversial bill to split the multiethnic opposition, but it was not pushed through due to strong opposition from UMNO’s non-Muslim partners. The meeting ended before Hadi’s motion got voted on. 249

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14.5 Conclusion By sidelining both opposition MPs and government backbenchers, Malaysia’s Parliament has Executive dominance built in due to the one-coalition dominance under UMNO-BN. Decisions were made by senior ministers and the top civil servants they trusted. Not only were opposition MPs denied real power to make laws and shape policies, Government backbenchers were also conditioned to deliver constituency development more than running the country before they became senior enough to be co-opted into the Executive. This built-in Executive Dominance was only moderately reduced under the reformist PH government but is now undergoing a more aggressive dismantling, as fluid multiparty competition forces the Executive to concede to a more level playing field, manifested by the MOU.

Notes 1 Wong, Chin-Huat, ‘Malaysia’s First-Past-The-Post (FPTP) Electoral System: Malpractices and Mismatch’, in Meredith L. Weiss and Faisal H. Haziz (eds), Towards a New Malaysia? The 2018 Election and Its Aftermath (NUS Press 2020) 211–245. 2 Ibid, Table 11.1. 3 Election Commission of Malaysia. (circa 2018). Pilihan Raya Umum ke-14. https://dashboard.spr. gov.my/pru14/#!/home 4 Lijphart, Arend, Democracy in Plural Societies: A Comparative Exploration (Yale University Press 1977). 5 Horowitz, Donal, Ethnic Groups in Conflict. 2nd Edition (University of California Press 2000) 410. 6 Wong, Chin-Huat, ‘Parliament as Prime Minister’s electoral college: the defection game in Malaysia’s democratic backsliding’ (2020) 109(5) The Round Table: The Commonwealth Journal of International Affairs, 586–607. https://doi.org/10.1080/00358533.2020.1819631 7 ‘Memorandum Persefahaman Transformasi dan Kestabilan Politik’, https://www.parlimen.gov.my/ images/webuser/bkk/MOU.pdf 8 Balakrishnan, Maha. (2021). Parliament in Government Formation: Enhancing Stability and Accountability Through Protocols on Confidence and Dissolution. Bersih, pp 20–21. https:/www. bersih.org/download/parliament-in-government-formation/ 9 Balakrihsnan, ‘Parliament in Government Formation’, p 17. Also, Dato’ Seri Ir Haji Mohammad Nizar bin Jamalauddin v Dato’ Seri Zambry bin Abdul Kadir (Attorney General, intervener) [2010] 2 MLJ 285, pp 306–308. 10 Gulam Hassan, Mohamed Aslam and Tan Yee Shin. (2012). Political Economy of the Budgetary Process in Malaysia. MRPA Paper No 37873. https://mpra.ub.uni-muechen.ed/37873/ 11 Balakrishnan, Mah, ‘Parliamentary Questions and Debates’ in Mohamad Ariff Md Yusof, Roosme Hamzah and Shad Salleh Faruqi (eds), Law, Principles and Practice in the Dewan Rakyat (House of Representatives) of Malaysia (Sweet & Maxwell 2020) 293. 12 ibid 280. 13 ibid 289. 14 ibid 289. 15 ibid 294. 16 ibid 301. 17 Muhamad Sayuti Hassan and Sahanah Kathirvelu. (2021). Parliamentary Select Committee (PSC) Reforms. Bersih. https://www.bersih.org/download/parliamentary-select-committee-reforms/ 18 Balakrishnan, Maha. (2021). A Framework for a Shadow Cabinet in Malaysia. Bersih, p 39. https:// www.bersih.org/uploads/2021/02/Bersih-Policy-Research-A-Framework-For-A-ShadowCabinet-In-Malaysia/pdf 19 ibid 39–40.

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15 THE LEGISLATURE (PYIDAUNGSU HLUTTAW) OF MYANMAR Richard Roewer and Han Htoo Khant Paing

15.1 Introduction The Pyidaungsu Hluttaw (Assembly of the Union) was the bicameral legislature of the Republic of the Union of Myanmar. The authority of the Assembly of the Union is enshrined in the 2008 Constitution.1 Following the coup d’état on 1 February 2021, the Assembly of the Union was dissolved by the military-appointed President Myint Swe. The newly formed State Administration Council (SAC) under the leadership of Commander-in-Chief of the Defence Services Min Aung Hlaing has declared a state of emergency for one year. In this period, all legislative powers of the Assembly of the Union have been transferred to the commander-inchief. It is, however, highly unlikely that the SAC will reinstate the Assembly of the Union in its previous form or initiate any democratic policies. In this chapter, we thus analyse the structure and composition of a parliament of the past. We do so based on the conviction that it is important to remember Myanmar’s recent semidemocratic past with its benefits and flaws.2 Between 2010 and 2020, Myanmar experienced an unparalleled democratic opening that featured a parliament not limited to rubber-stamping legislation, mostly free and fair elections, and a citizenry that sought to play an active role in the political development of its country. Classic markers of the exclusively authoritarian period, such as pre-publication censorship, were abolished, and sanctions on the country were lifted. In the face of the recent reversion to total authoritarian control, it might seem appropriate to characterise these last ten years as a democratic period. In reality, however, Myanmar’s democratic achievements went hand in hand with starkly authoritarian elements. The military retained control of the key ministries of home affairs, borders, and defence and the ability to appoint a vice president, effectively granting it a veto power at the National Defence and Security Council, which enjoys broad powers in military affairs and during a state of emergency. The military also held 25% of parliament seats by default, effectively granting it a veto power over constitutional amendment. Critical voices, whether in the media or online, were silenced, often by suing for defamation under the infamous article 66(d) of the Telecommunications Law. Protests occurred more frequently and openly, but the democratic rights of protestors were not always protected with arrests taking place frequently. Possibly most strikingly in an ethnically heterogeneous country like Myanmar, ethnic minorities gained little during the past ten years as the military continued to wage campaigns in several DOI: 10.4324/9781003109402-17

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areas of the country. Hundreds of thousands of Rohingya had to flee the military’s scorchedearth campaign to Bangladesh. The National League for Democracy’s (NLD’s) support for the campaign left no room for illusions over the importance of democratic values in the erstwhile democratic opposition party that sought to establish democratic rights for everyone in Myanmar. The past ten years were no democratic golden age in Myanmar, and yet, it was the freest period the country experienced since the 1962 military coup d’état that brought the military to power. Hence, it is important to understand the place of democratic institutions, like the parliament, in this complex time of democratic and authoritarian hybridity.

15.2  The 2008 Constitution in the context of Myanmar’s transition The structure and processes of Myanmar’s parliament are largely based on the 2008 Constitution. To understand the significance of the Constitution beyond the individual sections, it is necessary to examine it in the context of Myanmar’s recent political transformation. Although the 2008 Constitution functioned as a cornerstone of Myanmar’s brief semi-democratic period from 2010 to 2021, its purpose was never to introduce, let alone consolidate, a purely democratic form of government. As Melissa Crouch put it, ‘Through the Constitution, the Tatmadaw3 lays claim to political authority.’4 Indeed, the drafting of a new constitution was first announced to some surprise in August 2003 by General Khin Nyunt as one phase of the Roadmap to Discipline-Flourishing Democracy.5 Yet, the idea of a new constitution was not novel. When the military retook control over Myanmar in September 1988, following the 8888 Uprising,6 the State Law and Order Restoration Council (SLORC) seemingly gave in to the broad call for democratic elections. However, in the run-up to the 1990 elections, the military backtracked and – contrary to its initial statements – claimed that the elections were never meant to form a new government. Instead, the military argued that elections were organised to form a constitutional convention that would draft a new constitution.7 The NLD won with a considerable majority with 59.87% and 392 out of 492 seats. When the military refused to initiate a transfer of power,8 the NLD was forced to decide whether the party would remain in direct opposition to the military and risk dissolution or join the National Convention and work on a new Constitution that would perhaps provide the basis for new democratic elections. The NLD leadership opted for the latter option and joined the National Convention when it first convened in 1993. However, the military blocked the NLD’s advances for democratic provisions in the Constitution. Thus, after three years, the NLD boycotted the convention, leading to its suspension.9 When the National Convention was reconstituted in 2004, in line with the military’s road map to democracy, the NLD refused to join the process. The 2008 Constitution was approved by popular vote in a national referendum, five days after cyclone Nargis killed an estimated 140,000 people in the country. The circumstances rendered broad protests impossible and the NLD refused to accept the Constitution as legitimate. The NLD boycotted the 2010 general elections because its most prominent members were barred from standing for election. Senior NLD leaders also voiced their concern over legitimising the 2008 Constitution by participating in an election. The military-allied Union Solidarity and Development Party (USDP) won a comfortable majority with 77.7% of the elected seats in the Pyidaungsu Hluttaw.10 Yet, observers and constituents were uncertain as to whether the new government would make Myanmar more democratic. A series of reforms, such as the abolition of pre-publication censorship, and the release of political prisoners gradually increased confidence in a nascent democratisation process. 252

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Considering the broad political liberalisation that took place in Myanmar between 2010 and 2015, researchers sought to understand the military’s motivation for the transfer of power. The most popular explanation stipulates that the military sought to safeguard itself against opposition movements, who, if successful, might place the military under civilian oversight, would strip it of its assets, and subject it to transitional justice mechanisms. Through the 2008 Constitution, the military found a way to consolidate its place in Myanmar’s society and safeguard its extensive influence.11 The military’s continued control over the ministries of home affairs, border affairs, and defence, as well as 25% of military-appointed lawmakers, effectively made it impossible to curtail the influence of the military. Moreover, the Constitution also mandates that any constitutional amendments require 75% of votes from both houses of parliament. Melissa Crouch points out that ‘broadly speaking, many people in Myanmar see the Constitution neither as truly federal nor as fully democratic, and most acknowledge the almost impossibility of formal constitutional change.’12 Indeed, though the NLD vigorously pursued constitutional change together with ethnic political parties between 2016 and 2020, it proved an impossible goal. This context matters because this chapter analyses a legislature that existed pursuant to a highly controversial constitution, the legitimacy of which was long contested by prodemocracy parties in Myanmar. The military coup on 1 February 2021 might tempt us to view the last decade through the lens of democratic institutions and processes alone. But it is important to remember that, despite the many democratic achievements, Myanmar remained a hybrid regime at best. The legislature we analyse in this chapter is testament to the political hybridity that existed in Myanmar’s political institutions in the past decade. As such, examining it allows us to illuminate examples of democratic practice, but it also forces us to analyse the authoritarian elements that have shaped Myanmar over the past two decades.

15.3  Structure and composition of the Assembly of the Union The Assembly of the Union of Myanmar is often considered a bicameral legislature. The legislature consists of the Pyithu Hluttaw, the lower house (House of Representatives), and the Amyotha Hluttaw, the upper house (House of Nationalities). While most representatives in both houses are elected directly through Myanmar’s first-past-the-post (FPTP) electoral system, the 2008 Constitution ensures the military’s right to appoint 25% of legislators in both houses.13 The lower house of the Assembly of the Union consists of 440 members.14 A total of 330 of these members are directly elected in each of Myanmar’s 330 townships, while the military appoints the remaining 110 members. The upper house has 224 members.15 A total of 12 members are elected by each of Myanmar’s 14 states and regions, including 1 representative from each self-administered zone.16 Only two states have self-administered zones: Shan State (four self-administered zones and one self-administered division) and the Sagaing Region (one self-administered zone).17 Consequently, the electoral districts in Shan State and the Sagaing Region are designed so that self-administered zones and divisions form their own electoral districts for the upper house. The remaining 56 members of the upper house are appointed by the military. There is no publicly available information on the process for the appointment of military officers to the legislature. The appointment is the prerogative of the commander-in-chief who provides a list of suggestions to the president who must approve them. A look at the military-appointed legislators reveals, however, that their ranks generally range between major general and captain. 253

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However, characterising the Assembly of the Union as bicameral is misleading. Melissa Crouch notes, the ‘Pyidaungsu Hluttaw acts as the dominant and pre-eminent legislative institution. The system is distinct from other bicameral systems because the joint sittings of the Pyidaungsu Hluttaw are not extraordinary but very common, and the sittings occur frequently.’18 While meetings of the Pyidaungsu Hluttaw are not as frequent as those of the lower and upper houses, they are still substantial in number. Furthermore, the role of the Assembly of the Union is not limited to ceremonial or symbolic procedures as is often the case in bicameral legislatures. Instead, it plays an active role in the making of legislation, for example, through its own parliamentary committees that include members of both houses. Consequently, while Myanmar’s legislature might seem like a bicameral system, it is in fact tricameral. Notably, the Presidential Electoral College (PEC) within the parliament elects the President of Myanmar and two vice-presidents.19 The PEC consists of three groups: (a) 330 elected members of the lower house, (b) 168 elected members of the upper house, and (c) 166 military appointees from both houses of parliament. Each of these groups first elects a vicepresident. Presidents and vice-presidents must be citizens of Myanmar and loyal to the union. They must be at least 45 years old and know the country’s politics, administration, economy, and the military. Moreover, they must have lived in Myanmar for at least 20 consecutive years,20 and their parents, spouses, and children must not be foreign citizens. Lastly, the president and the vice-presidents have to meet the qualifications for nomination to the parliament. The PEC elects one of the vice-presidents as President of Myanmar, and the other two remain vice-presidents. As per the 2008 Constitution, the president and the vice presidents represent the Union.21 However, between 2015 and 2020, the role was effectively relegated to a ceremonial, representative position by the NLD, then the ruling party. The 2008 Constitution contains a clause that stipulates that no Myanmar national with children who hold a foreign nationality can become the president of Myanmar.22 This clause was intended to bar Aung San Suu Kyi from assuming the highest political office. To circumvent this provision, the NLD created the role of state counsellor, which Aung San Suu Kyi assumed, and which effectively superseded the role of President of Myanmar.2324 The structure and composition of the Assembly of the Union is mandated by the 2008 Constitution. The Law Relating to Pyidaungsu Hluttaw of 2010 expanded on the provisions articulated in the Constitution relating to the union legislature.25 The position of state counsellor constitutes the only notable exception as it was created through the State Counsellor Law of 2016.

15.4  The relationship between national and regional legislatures Myanmar has seven states and seven regions. Each of the states or regions has its own parliament. The size of the parliament depends on the number of townships in the relevant state or region. Each township elects two members of parliament using single member districts, dividing every township into two constituencies. Townships in self-administered zones also elect two MPs each.26 In the states and regions, any national race27 that has a population equivalent to – or over – 0.1% of the total population of the union residing in the particular state or region and that does not have a self-administered zone in the region can elect a parliamentary representative to take care of the affairs of that national race. Whether a national race fulfils these criteria is ‘determined by authorities,’ but these authorities are not specified in the Constitution.28 Those elected as ethnic affairs representatives in parliament for their ethnic 254

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group are appointed as ethnic affairs ministers by the chief minister of the state or region when the state or region government is formed. Thus, one might say that their election qualifies them to become MP and minister. Notably, since several ethnic minorities can meet the aforementioned requirements, there are often several ethnic affairs ministers. The cabinet of the state or region government is formed by the chief minister who can appoint parliamentary representatives as well as citizens who are not members of parliament. Unlike the union level, ministers remain members of parliament when they become members of the chief ministers’ cabinet. The military can appoint members of the state or region parliament. The number of military appointees is equivalent to one third of the total number of elected members of the region or state parliament.29 Since the size of the state and region parliaments depends on the number of townships, these parliaments vary significantly in size. The largest state and region parliament, the Shan State Parliament, has 137 MPs, whereas the Kayah State Parliament (the smallest parliament) has only 20 MPs, including the military appointees. The small size of some of these parliaments is significant because it leads to extensive overlap between the legislature and the executive. In Kayah State, for example, most elected MPs are also part of the chief minister’s cabinet (2015–2020). Both the national and sub-national legislatures are popularly elected. The terms are symmetrical.30 Their law-making competencies are detailed in Schedules 1 and 2 of the Constitution. Schedule 3 enshrines the law-making competencies of the self-administered zones. The schedules reveal overlaps in the competencies of the Assembly of the Union, the state or region parliaments, and the self-administered zones. Section 198 of the Constitution clarifies the order of effect of the three levels. The Constitution prevails in all cases of inconsistencies with the union level (Pyidaungsu Hluttaw), state or region level, and the selfadministered area level (division and zones). When inconsistencies arise between the union level and state or region level or self-administered area level, the union level prevails. For inconsistencies between the state/regional level and the self-administered area level, the state or regional level prevails. According to Section 98 of the Constitution, residual power lies with the union level legislature. On this basis, the Assembly of the Union enacted the Law Relating to the Region and State Hluttaws, detailing the rights of state and regional parliaments, their meeting frequencies, their committee structures, procedures, and the protocols that govern the relationship between state and region parliaments and the president, and between state and region parliaments and the chief ministers.31

15.5  The election of members of the legislature Members of the Pyidaungsu Hluttaw can be separated into two groups: elected members and military-appointed members. Elected members of parliament are selected through general elections which take place every five years on the first Sunday of November. By-elections serve to fill vacant seats after incumbents resign; become president, vicepresident, or union-minister; or when members pass away. 32 During Myanmar’s last government term, by-elections were held in 2017 and 2018. Members are elected by a simple majority in a FPTP electoral system, disadvantaging smaller political parties. Notably, Myanmar’s electoral districts for the Pyithu Hluttaw and Amyotha Hluttaw as well as State and Region Hluttaws are vastly unequal in size since the districts for all Hluttaws are drawn based on townships. 33 This leads to considerable differences in the way candidates must organise their election campaigns. 34 255

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The head of the legislature is referred to as ‘chairperson’ in Burmese, but the official English translation of the 2008 Constitution uses the term ‘speaker.’35 Thus, the leaders of the lower and upper house are called the speakers and deputy speakers of the Pyithu and the Amyotha Hluttaw. The speaker and the deputy speaker of each house are elected by the members of their respective houses during the first parliament session of the term. This first session is led by a chairperson appointed by the party that won the largest number of seats in the election. Following their election, the speaker and deputy speaker of the upper house will serve as the speaker and deputy speaker of the Assembly of the Union for the first 30 months of the parliament’s term – half of the five-year term. The speaker and deputy speaker of the lower house subsequently serve as the speaker and deputy speaker of the Assembly of the Union for the second half of the parliament’s term.36 Members of the executive cannot be members of the legislature.37 If a member of the legislature is elected to become a member of the executive, her seat in parliament will remain vacant until the next by-elections.38 The PEC, consisting of elected representatives and military appointees, elects the president of Myanmar and two vice-presidents. The president and the vice-presidents are responsible to the Pyidaungsu Hluttaw.39 The president nominates cabinet ministers, and the Pyidaungsu Hluttaw approves them. The Pyidaungsu Hluttaw can reject a nominee only on the grounds of disqualification. However, this has never happened as of 2021. Union ministers have to meet the same qualifications as chief ministers of states or regions, but they must be at least 40 years old.40

15.6  Eligibility for candidacy and nomination Citizens who wish to stand as candidates for the Pyithu Hluttaw or Amyotha Hluttaw must fulfil a set of criteria.41 They must be qualified to cast their vote in national elections (see elaboration below). They must have Myanmar citizenship and have been born to parents who both also hold Myanmar citizenship. Those seeking candidacy must have resided in the country for at least ten consecutive years prior to the election.42 Representatives of the Amyotha Hluttaw must be at least 30 years old, and those of the Pyithu Hluttaw must be at least 25 years old. Citizens currently serving prison terms are ineligible to stand as candidates for the legislature. The following individuals are also excluded: citizens of ‘unsound mind’; persons who have been declared insolvent by a court; persons who owe allegiance to a foreign governments; subjects of a foreign government; citizens of a foreign country; persons who are entitled to enjoy the rights and privileges of subjects of a foreign government or citizens of a foreign country; persons working for an organisation owned by a foreign country; persons working for an organisation that abets the act of inciting, through speech or by issuing a declaration, the decision to vote or not based on religion for political purposes; members of religious orders; civil servants; and persons who have committed electoral offences.43 The Union Election Commission (UEC) decides on and publicises the timeframe for candidacy submissions. In this period, citizens who meet the criteria may nominate themselves at the respective district election sub-commission (most constituencies), the self-administeredzone election sub-commission, or the union territory election sub-commission. A candidate cannot submit her or his nomination in more than one constituency.44 Following the nomination period, the responsible district election sub-commission determines whether the nominee meets the eligibility criteria and accepts or rejects the nomination. During this review period, other nominees from the same constituency can file a complaint questioning a nominee’s eligibility if he or she has proof.45 If a nominee is not satisfied with the decision of 256

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the district election sub-commission, she or he can appeal to the election sub-commission of the state or region. Should the state or region election sub-commission confirm the decision, no further appeals are possible.46

15.7  Voting eligibility The 2008 Constitution stipulates that every citizen over the age of 18 (on election day) is eligible to vote.47,48 Myanmar does not have a naturalisation process. Furthermore, voters must be registered on the voter list of their constituency. Even eligible citizens cannot vote unless their name is on the final voter list, the information on the voter list is correct, and they can present an identification card. Voter lists are prepared by the UEC and the General Administration Department. First renditions of the voter lists are displayed at the office of the ward or village election sub-commission, allowing residents to submit amendments. This allows voters to be added to the list, to make corrections in relation to existing voters on the list, and to remove voters from the list. After a round of amendments, a corrected voter list is displayed for a second round of revisions. After this second round of amendments, the final voter list is displayed.49 Despite this process, voter lists cause problems during general elections. 50 In the general elections of 2015 and 2020, as well as in the by-elections of 2012, 2017, and 2018, the initial voter lists were substantially f lawed, despite technical assistance from organisations like the International Institute for Democracy and Electoral Assistance (International IDEA) and the European Union. The problem of inaccurate voter lists is exacerbated by a generally low level of public awareness that amendments might be needed. Voters can also cast their ballot abroad at respective embassies of Myanmar, meaning the embassy in your country of residence or in a neighbouring country in the case there is no embassy in your country of residence. 51 Voting, whether in Myanmar or abroad, is not mandatory.

15.8  Myanmar’s electoral system Myanmar uses a FPTP system for all of its elections.52 In general elections, citizens normally cast three ballots: one for the lower house, one for the upper house, and one for the state or region parliament. In state or regions where a certain ‘national race’ is eligible to elect a representative for ethnic affairs, citizens belonging to this race can cast an additional ballot for the position of minister of ethnic affairs for the relevant state or region. Since not all citizens in a state or region are eligible to elect a minister of ethnic affairs – i.e., if their ethnic group constitutes less than 0.1% of the population of the state or region in question – a separate voter list is developed. Ultimately, casting the vote is dependent on the citizens’ name being featured on the relevant voter list, even if the voter’s identification card affirms their ethnic identity. Myanmar’s FPTP electoral system favours a two-party system. Officially, 93 political parties are registered with the UEC.53 A total of 48 of these parties are associated with an ethnic minority group and can be deemed ethnic political parties as their political agenda is chiefly focused on ethnic affairs. Some of the remaining 45 parties try to be programmatic and are active in several areas of the country. Several parties are chiefly associated with the Bamar, Myanmar’s majority ethnic group and are only active in Bamar majority regions. Most of them, however, are niche parties who have never won a single seat in an election. The FPTP system favours the two dominant political parties, the USDP and the NLD. 257

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The NLD has been able to reap the benefits of the FPTP system, securing landslide victories in the 2015 and 2020 general elections. In 2014, the USDP, together with the bloc of military appointees in parliament, sought to change the electoral system to a proportional representation system. As the second most popular political party, the USDP would have been the major beneficiary from such a change, although it would arguably also have increased the chances of ethnic parties to secure seats. The move followed the 2012 by-elections where the NLD had won 43 out of 44 contested seats and some members of the USDP, most importantly Thura Shwe Mann, then speaker of the Assembly of the Union, viewed a proportional representation system as a means to garner more seats for the USDP in the 2015 general elections. After some heated debates, the undertaking was abandoned rather quietly and mysteriously. Thura Shwe Mann explained the shift in plan by referring to a consultation from the Constitutional Tribunal, which allegedly had concluded that a change of the electoral system would be unconstitutional.54

15.9  Elections 2010–2021 Myanmar experienced a brief semi-democratic period that lasted from 2010 to 2021. Prior to the 2010 general elections, Myanmar was ruled by the military State Peace and Development Council (SPDC), initially called SLORC (1988–1997). In 2003, the junta announced the Roadmap to Discipline-Flourishing Democracy that introduced a seven-step process aiming to reintroduce a variant of democracy in Myanmar that would protect the army, its interests, and its assets. When the Constitution borne from this road map was approved in a controversial national referendum in 2008, it enshrined the role of the military, ensuring its permanent control over the ministries of home, border affairs, and defence.55 More importantly, the 2008 Constitution stipulates that any amendments to the Constitution require 75% of votes from the Assembly of the Union while allocating 25% of parliament seats to the military by default.56 The first general election under the new Constitution was held in 2010. It was boycotted by the major opposition party, the NLD, since the party’s leader, Aung San Suu Kyi, remained under house arrest, and many of its most prominent members were political prisoners. Many major ethnic political parties also boycotted the 2010 elections, including the Shan Nationalities League for Democracy (SNLD) and the Arakan League for Democracy (ALD).57 The election was substantially flawed according to international observers,58 but voter turnout was high at 77.3%.59 With no meaningful opposition, the military-backed USDP won a clear majority with 78.7% of all contested seats in the Pyidaungsu Hluttaw.60 The Shan Nationalities Democratic Party (SNDP) won 4%, and the National Unity Party (NUP), a proxy of the Burma Socialist Programme Party, won 3.4% of the seats, respectively. Six days after the election, Aung San Suu Kyi was released from house arrest.61 Thein Sein became president of Myanmar, ushering in unprecedented reforms and spearheading economic liberalisation. Pre-publication censorship was abolished, and a large number of political prisoners, among them many senior NLD members, were granted an amnesty and released from prison. The NLD decided to participate in the 2012 by-elections and won 43 out of 44 seats it contested.62 The SNLD continued their demands for the implementation of the 1990 election results and boycotted the by-elections. Although irregularities were found, the election process was considered transparent and credible. International observers, from ASEAN and the EU, were present and did not find systematic election fraud. The 2012 by-election marked a milestone in Myanmar’s democratic transition. The election was followed by a major pardon 258

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of political prisoners, including many from the NLD,63 and led to the lifting of economic sanctions by the EU and the US. The 2015 general elections was one of the most significant moves towards democracy in Myanmar’s recent history. Compared to earlier elections, the 2015 general election was considered substantially free and fair. International election observation missions from the EU, the Carter Center, and the Asian Network for Free Elections (ANFREL) were present and reported that the election process was well conducted and exceeded expectations.64 The NLD as well as major ethnic political parties such as the SNLD and the Arakan National Party (ANP) contested in these elections. Public awareness was high, spurred by extensive media coverage, ultimately leading to a voter turnout of 69%.65 The NLD won a landslide victory with 79.4% of the elected seats in the Assembly of the Union. Despite being the only other party that operated nationwide, the USDP won only 8% of the contested seats. The NLD, thus, managed to secure a majority in both houses of parliament even though the USDP had the support of the 25% of military appointees in each house. The election was followed by a period of uncertainty over the transfer of power, which ultimately went over smoothly. Expectations for the new government were extremely high in Myanmar and abroad. The EU and the US were hoping for closer engagement that would move Myanmar away from China, which was and is Myanmar’s most important trading partner. Soon, however, many observers were wondering whether the NLD government would bring meaningful change and manage to democratise Myanmar further. It became apparent that the NLD had moved away from core points of its political agenda in favour of appeasing the military with which it continued to share power. The close political connection to EU countries and the US was soon broken when the NLD rushed to defend the military’s scorched earth campaign that led to the exodus of nearly 730,000 Rohingya to Bangladesh.66 However, despite concerns over the government’s stance on human rights and a perception that the NLD administration was slow to implement policies, the popularity of the NLD within Myanmar remained exceptionally high. Due to concerns over the COVID-19 epidemic some parties, most importantly the USDP, sought to postpone the 2020 general elections.67 However, the UEC decided to hold the elections as planned, on 8 November 2020. Ethnic party mergers and the formation of ‘third parties’ gave rise to speculations over the NLD’s vote share in the 2020 election. Yet, none of the third parties managed to win a single seat in the Assembly of the Union and merged ethnic parties failed to improve their performance too. The NLD managed to secure an even larger landslide victory than in 2015 with 83% of the elected seats in the Assembly of the Union. The USDP’s vote share decreased to only 7% of elected Assembly of the Union seats.68 The 2020 elections were held in the middle of the COVID-19 crisis and an armed conflict between the military and the Arakan Army (AA). Controversially, the UEC decided to cancel the elections in 56 townships in Rakhine State, Kachin State, Shan State, Mon State, and the Bago region. The cancellation affected 15 entire townships and over 500 village tracts in other townships. The UEC argued that armed conflict had led to high security risks that made elections in these townships impossible to conduct and declared that this decision was suggested by the Ministry of Home Affairs69 and local governments.70 The cancellation deprived roughly 1.5 million people of their right to vote.71 In Rakhine state, home to the most cancelled elections, 73% of the state’s eligible voters lost their right to vote.72 In stark contrast to the UECs suggestions, many townships where the vote was cancelled had a relatively low security risk while townships where extensive fighting occurred, such as Paletwa, were spared from electoral cancellation.73 259

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The elections were held successfully in the remaining 95% of constituencies. Following the NLD’s landslide victory, the USDP alleged that there had been more than 90,000 instances of election fraud.74 The military supported these allegations and demanded the final voter list from the UEC for cross checking.75 The UEC declared that there had been no election fraud and denied the military’s request.76 Despite these issues, the ANFREL concluded that ‘the results of the 2020 general elections were, by and large, representative of the will of the people of Myanmar.’ 77 However, tensions over the election outcome festered as the military and the USDP continued to fan the flames of alleged vote fraud. On 1 February 2021, the day new legislators were to be sworn-in, the military staged a coup d’etat, arresting the leaders of the NLD government elect, including President Win Myint, State Counselor Daw Aung San Suu Kyi, and the ministers of the states and regions. The military announced a state of emergency for the duration of one year after which new elections should be held. The military subsequently formed the SAC, chaired by the Commander-in-Chief Min Aung Hlaing. In the months after the coup, millions of protestors took to the streets all over Myanmar. Elected NLD lawmakers formed the Committee Representing Pyidaungsu Hluttaw (CRPH) as a representational body. The CRPH was followed by the formation of a National Unity Government that advocates for a return to democracy from a position of internal exile. However, a new democratic dawn remains illusive. Six months after the coup d’etat, on 2 August 2021, the junta formed a caretaker government with Min Aung Hlaing as the Prime Minister and vowed to hold elections in August 2023, thereby reneging its initial promise to hold them within a year of the coup.78

15.10  Powers of the legislature Apart from the power of legislation, the Pyidaungsu Hluttaw also has several other powers in relation to the executive and the judiciary. Moreover, the Assembly of the Union has the power to amend the Constitution. These powers, in the form of checks and balances, include the power to impeach the president and the vice-president, the union ministers, the attorney general of the union, the auditor-general of the union, the chief justice of the union and the judges of the supreme court, the chairperson and the members of the Constitutional Tribunal of the Union, and the chairperson and the members of the UEC. Impeachment charges against the president and the vice-presidents can be initiated by the lower or the upper house.79 Any charge needs to be submitted to the speaker of the relevant house with the signatures of at least one fourth of the total number of parliamentarians in the house. However, the impeachment process will only proceed if two thirds of all members of the relevant house are in favour. If the required number of parliamentarians supports the impeachment charge, an investigative body is formed to proceed with the case. If the lower house brought the charge, the investigative body will be formed by the upper house and vice versa. During this stage, the impeached president or vice-president can defend themselves by refusing the charge in person or through a representative at the investigative body. After the investigative body has presented its findings to parliament, a vote is held immediately. At least two thirds of the total number of representatives of the house in which the investigation has been conducted is required to substantiate the charge that the impeached incumbent is not fit for office. The Hluttaw that has substantiated the charge then submits the resolution to the speaker of the Pyidaungsu Hluttaw to remove the impeached incumbent. Immediately after receipt of the submission, the speaker of the Pyidaungsu Hluttaw declares the removal of the impeached incumbent.80 260

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The process is the same for the impeachment of union ministers, the attorney general of the union, the auditor general of the union, the chief justice and the judges of the supreme court, the chairperson and the members of the Constitutional Tribunal, and the chairperson and the members of the UEC.81 The president can also impeach officials: for example, members of the Supreme Court and Constitutional Tribunal, but any charges are subject to substantiation through the Hluttaw. Importantly, the Pyidaungsu Hluttaw has the power to approve and adjust the union budget. The union budget bill is submitted to the Pyidaungsu Hluttaw by the union president or a person authorized by the president. The Hluttaw can discuss the budget bill but cannot refuse or make adjustments to the salary and allowance of the heads and members of union level organisations, such as the union government and Supreme Court of the Union. The Hluttaw may also discuss these organisations’ expenditures, the debts and liabilities of the union, any expenditures needed to satisfy judgements of the courts and tribunals, and expenditures which are required by any existing laws or international treaties but cannot adjust them. Apart from these positions, the Pyidaungsu Hluttaw can approve, refuse, or adjust the rest of the union budget bill82 with the consent of a simple majority of the Hluttaw and pass the Union Budget Law.83 The Pyidaungsu Hluttaw can also decide whether to approve ratifactions, annulations, or revocations of international, regional, or bilateral treaties and agreements that the president has suggested. It may also give the president the power to do such things without the approval of parliament.84 The Pyidaungsu Hluttaw also has the power to determine whether to approve ordinances issued by the union president.85 If it approves an ordinance, it can determine the duration for which it remains in effect. In the Burmese version of the Constitution, an ‘ordinance’ is described as ‘executive orders which are of equal power as a law.’ The president may issue ordinances for administrative matters, but not to alter the union budget. If the Hluttaw does not approve an ordinance, its effect will cease from the date of the vote. The Hluttaw may also conclude that the ordinance touches on matters that the Hluttaw is not entitled to approve under the Constitution. In this case, too, the ordinance immediately ceases to have effect. Furthermore, the Constitutional Tribunal can rule that an ordinance is unconstitutional.86 Lastly, representatives of the Pyidaungsu Hluttaw, Pyithu Hluttaw, and Amyotha Hluttaw can ask questions relating to the matters of Union Level Organizations and invite those organisations to give clarifications before parliament.87

15.11  The legislative process Members of both the lower and upper houses can initiate bills.88 Apart from parliament, other union level organisations can also submit bills if they are related to their competency. Some legislation, like the union budget bill and bills relating to taxation, can only be submitted to the Assembly of the Union by the union government.89 Bills that can only be submitted by the union government must be vetted in the joint sitting of the upper and lower house bill committees. Following this vetting process, bills are submitted to the Assembly of the Union, together with findings and remarks by the joint bills committee.90 Constitutional amendment bills constitute another exception to the rule as they can only be submitted to the Assembly of the Union by 20% of the total number of Assembly of the Union representatives.91 Bills must be submitted to either the Pyithu Hluttaw or Amyotha Hluttaw by a union level organisation or an individual member of that Hluttaw, at least 30 days before the relevant Hluttaw session. The speaker of the Hluttaw may allow a bill to be initiated even if it is submitted after this period.92 Bills sponsored by union level organisations are initially submitted 261

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to the Pyidaungsu Hluttaw. The speaker of the Pyidaungsu Hluttaw may then decide to forward the bill to the Pyithu Hluttaw or the Amyotha Hluttaw.93 The speaker of the relevant Hluttaw then forwards the bill to the bill committee and to all the members of that Hluttaw.94 If the bill is submitted by an individual member of the Hluttaw, the Hluttaw must first decide whether to discuss the bill further. If it decides that the bill should be discussed further, the bill will be forwarded to the bill committee.95 Once the bill committee has compiled its report, a representative of the concerned union level organisation or the concerned member of Hluttaw (the member who submitted the bill) reads the bill to the Hluttaw, and the chairperson of the bill committee reads the committee’s report to the Hluttaw.96 Thereafter, members of the Hluttaw who wish to discuss the bill on the floor can register their interest with the speaker.97 Individual members can also propose amendments to the bill as long as they submit their amendments at least three working days before the floor discussion.98 During the floor discussion, the Hluttaw can vote on the bill if there are no amendment proposals. If there are amendment proposals, the speaker may set a later date to discuss the bill again, but only in regard to the amendments.99 All Hluttaws, including the Pyidaungsu Hluttaw, pass bills and resolve other matters with majority votes unless the Constitution says otherwise. For instance, impeachment cases and constitutional amendment bills require more than a simple majority.100 The speakers cannot vote unless the first vote results in a tie.101 The speaker has a special power to decide on which voting method to use in each instance from three methods allowed by the by-laws: electronic voting by pressing a button; casting a paper ballot into the ballot box; and voting by standing up.102 Once the bill has been passed in one house of parliament, it moves on to the other house where it undergoes the same process. If the second Hluttaw sends the bill back to the Hluttaw that initiated the bill with amendments, the amendments are disseminated to all the members of Hluttaw. Members who wish to discuss the amendments must register at least three days before the floor discussion. During the discussion, suggestions cannot be made on matters unrelated to the amendments made by the second Hluttaw.103 If the Hluttaw decides to agree with the amendments, the bill is considered passed in both Hluttaws with these amendments.104 If the Hluttaw votes not to agree with the amendments, a member of the Hluttaw makes a motion to submit the bill to Pyidaungsu Hluttaw for its resolution. The bill is then submitted to the Pyidaungsu Hluttaw.105 In cases where the second Hluttaw disapproves of the entire bill, the initiating Hluttaw informs the Pyidaungsu Hluttaw of the disagreement in order for the bill to be resolved at a session of the Pyidaungsu Hluttaw.106 In such sessions, the representatives of the Pyidaungsu Hluttaw cannot discuss matters of the bill aside from the points of disagreement between the two houses.107 In case the second house does not agree with the bill, the Pyidaungsu Hluttaw will consider amendments and vote on the amendment. Then, the Pyidaungsu Hluttaw will vote on the entire bill. If the Hluttaw that initiated the bill does not agree with the amendments made by the other Hluttaw, the Pyidaungsu Hluttaw will note only the differences between the drafts of each Hluttaw.108 After a bill is approved by the Pyidaungsu Hluttaw or both the Pyithu Hluttaw and Amyotha Hluttaw, the president must sign and promulgate the bill into law within 14 days of receiving it. However, the president can also send the bill back to the Pyidaungsu Hluttaw with comments within 14 days. If the president neither signs the bill nor sends it back to the Pyidaungsu Hluttaw within 14 days, the bill automatically becomes law.109 262

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The speakers of the Pyidaungsu Hluttaw, Pyithu Hluttaw, and Amyotha Hluttaw have the right to invite members representing other union level organisations to ‘explain, converse and discuss’ bills and matters relating to their entities.110 The two houses of parliament are almost identical in terms of their responsibilities, structure, procedures, and powers. However, the Pyithu Hluttaw tends to be the dominant house since its size affords it a considerable voting advantage in joint sittings.111 Similar to the rules governing the voting process in the Pyithu and Amyotha Hluttaw, the speaker of the Pyidaungsu Hluttaw shall not vote unless the first round of voting results in a tie.112 Pyithu Hluttaw and Amyotha Hluttaw each have four permanent committees: the bill committees, the public accounts committee, the Hluttaw rights committee, and the government’s guarantees, pledges, undertaking vetting committee.113 Both Hluttaws may also form other ad hoc committees as needed for a limited time.114 The Hluttaws can also form joint committees with equal numbers of members from both Hluttaws.115 The Hluttaw laws and by-laws limit filibusters. Pyithu Hluttaw, Amyotha Hluttaw, and Pyidaungsu Hluttaw by-laws give the speakers an extensive range of powers, allowing them to control the focus, agenda, and timing of all Hluttaw proceedings. While members of the Hluttaw have the right to discuss bills, speakers can set time limits, such as 5 minutes, 6 minutes or 10 minutes. Consequently, speakers can also reprimand parliamentarians when their time is up or switch off their microphones. There is, however, no provision in the Constitution, laws, or by-laws, that allows the speakers to limit the number of people who can discuss a bill. When too many MPs register for the discussion of a bill, the speaker may opt to coordinate with the respective party whips. Yet, he or she cannot ultimately prevent an MP from joining the discussion. MPs cannot, however, register for multiple time slots.

15.12  Judicial decisions The Constitutional Tribunal has the highest power in arbitration, vetting, and interpretation of the Constitution. The tribunal consists of the chairperson and eight other members who are chosen by the president, the speaker of the Pyithu Hluttaw and the speaker of the Amyotha Hluttaw (each can suggest three members of the tribunal). The term of the chairperson and the members of the tribunal is aligned with the terms of the parliament and the president (a five-year term). Makino Emi rightly points out that the short and concurrent term is likely related to the politically motivated nature of the appointments and the wish to influence tribunal members.116 The tribunal only decides on the constitutionality of promulgated laws, and not of bills, rules, or regulations. The tribunal does not practice actio popularis meaning that members of the public cannot initiate cases at the tribunal. Only the president, the speaker of the Assembly of the Union, the speaker of the Pyithu Hluttaw, the speaker of the Amyotha Hluttaw, the chief justice of the union, and the chairperson of the UEC, chief ministers of the states and regions, the speaker of a state or region Hluttaw, the chairperson of a leading body of a self-administered area and groups consisting of at least 10% of representatives in the Pyithu Hluttaw or Amyotha Hluttaw can seek an interpretation117 from the tribunal.118 The decision of the tribunal is ‘final and conclusive.’119 The tribunal’s most notable case took place in 2012. President Thein Sein asked it to rule on whether committees and commissions formed by the Pyidaungsu Hluttaw, the Pyithu Hluttaw, and the Amyotha Hluttaw, should retain the status of union level organisations. The Constitution refers to union level organisations in several places but does not provide a clear definition of the term. In this absence, the Law Relating to Pyidaungsu Hluttaw, passed by 263

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the State Peace and Development Council prior to the 2010 general elections, served as the basis to define union level organisations. The law states: Union Level Organization means the Union Government, National Defence and Security Council, Financial Commission, the Supreme Court of the Union, the Constitutional Tribunal of the Union, the Union Election Commission, the Auditor-General of the Union and the Union Civil Services Board formed under the Constitution and the committees, commissions and bodies formed by the Pyidaungsu Hluttaw, the Pyithu Hluttaw and the Amyotha Hluttaw.120 The tribunal established that union level organisations are those for which the president nominates members who are subsequently approved by parliament. Since committees and commissions formed in the houses of parliament are formed by parliament alone, the tribunal ruled that it would be inconsistent with the Constitution to give them the status of union level organisations.121 However, the ruling was controversial since the Law Relating to Pyidaungsu Hluttaw had been passed in October 2010 and Section 443 of the Constitution states that ‘the preparatory work done by the State Peace and Development Council, before this Constitution comes into operation, to bring the Constitution into operation, shall be deemed to have been carried out in accord with this Constitution.’122 The Pyithu Hluttaw responded to the ruling by forming an investigative committee, which concluded that the ruling was itself unconstitutional. Consequently, it suggested impeaching members of the Constitutional Tribunal. Although government and military representatives opposed it, all the tribunal’s members were impeached. In September 2012, the entire Constitutional Tribunal resigned voluntarily to avoid impeachment. The impeachment process was generally regarded as a risk for the independence of the tribunal and raised questions regarding the power of the legislature over the judiciary.123 Following the resignation of tribunal members, the parliament asserted its role in designating the chairperson of the tribunal by passing the Constitutional Tribunal of the Union Law. The law requires that the president must consult with the speakers of the Pyithu and the Amyotha Hluttaws in the process of nominating the chairperson of the Constitutional Tribunal.

15.13  Constitutional amendments Efforts to amend the Constitution were undertaken in each of the last two (and first two) terms of parliament. In 2013, when the military-allied USDP dominated the parliament, the Assembly of the Union formed a 109-member Joint Parliamentary Constitution Review Committee. Ultimately, the committee compiled 28,247 suggestions on what should be amended in the Constitution and what should remain intact.124 Controversially, the committee noted that three key provisions should not be amended and claimed that this decision was based on an (unverified) petition of 106,102 people. The petition insisted that the following provisions be retained: (a) the role of the military in Myanmar politics; (b) the provisions barring Aung San Suu kyi from becoming president because of her children being foreign citizens; and (c) Section 436.125 The subsequent process for the amendment of the Constitution unsurprisingly proved extremely ineffective. In February 2014, the Assembly of the Union formed the Constitutional Amendment Implementation Committee, which was tasked with drafting a constitutional amendment bill based on the suggestions of the Joint Parliamentary Constitution Review Committee.126 264

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In June 2015, the committee submitted two constitutional amendment draft bills. One bill pertained to the amendment of articles that require over 75% of parliamentary votes and a referendum127 (as per Section 436 (a)). The other pertained to the amendment of articles which required over 75% of parliamentary votes but no referendum (as per Section 436 (b)). When the Pyidaungsu Hluttaw voted on these bills in June 2015, only one amendment of the first bill was successful. It mandated changing the word ‘military’ to ‘defence’ in Section 59 (d) under the ‘qualifications of the President and the Vice-presidents’ which read: 59. (d) shall be well acquainted with the affairs of the Union such as political, administrative, economic and military; The Pyidaungsu Hluttaw subsequently postponed the referendum because the UEC suggested that a referendum for such a minor change would be too costly.128 Therefore, the minor amendment never came into effect. Two amendments from the second bill were successful, granting some marginal legislation and taxation powers to the states and regions. The amendment allows the 14 states and regions to collect taxes on tourism, private schools and hospitals, and extractive industries.129,130 In February 2019, the NLD initiated a constitutional amendment process with the aim to further democratise Myanmar and curtail the power of the military. Amending the undemocratic articles of the Constitution had been one of the major election promises of the NLD in 2015. Major amendments proposed by the party included Section 436 which requires the consent of more than 75% of the MPs in the Pyidaungsu Hluttaw and a referendum, and Section 59 (F) which barred Aung San Suu Kyi from becoming president because her sons are foreign citizens. The military parliamentary bloc strongly opposed the process. The NLD formed a Joint Parliamentary Committee for Constitutional Amendment, which included all the parties represented in the Hluttaw. Each party was asked to submit amendment proposals to the committee but, unlike in 2014, the public was not allowed to submit suggestions. By the end of the submission period, the committee had received over 3000 amendment proposals. The SNLD submitted over 1200 proposals, while the NLD proposed 114 amendments. The 114 amendments suggested by the NLD were the only ones which were subsequently included in the constitutional amendment bill drafted by the committee. When discussed and voted on in the Hluttaw, only three very minor amendments were passed, changing words for disabled people in the Burmese language.131

15.14 Conclusion The Pyidaungsu Hluttaw of Myanmar played an important role during the country’s liberalised period from 2010 to 2021. Despite scepticism over the performance of Hluttaw, the capacity of its members and its independence from the executive branch, the Hluttaw became a place of vital debate and oversaw important legislative reforms like the Anti-Corruption Law (2013) and the Myanmar Companies Law (2017). Thus, the Hluttaw became an important democratic institution that provided a functioning checks-and-balances mechanism for the government. The Hluttaw effectively consists of three houses: the Pyithu Hluttaw, the Amyotha Hluttaw, and the Pyidaungsu Hluttaw. Legislation can be initiated at both the Pyithu Hluttaw and the Pyidaungsu Hluttaw. Among other things, the Pyidaungsu Hluttaw deals with special 265

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legislation such as the Union Budget Bill and constitutional amendment bills. The joint sitting also serves to resolve matters of disagreement over bills between the Pyithu Hluttaw and the Amyotha Hluttaw. All elected seats in the Hluttaws are filled through a FPTP single-member district electoral system and serve a five-year term that is concurrent with that of the executive branch. Apart from the power of legislation, the Hluttaws enjoy a range of other powers such as the appointment of the President and Vice-Presidents through the PEC and the power to impeach officials from the executive and judiciary branches. However, the Hluttaw always carried a strong limitation to its democratic capacity within itself. The 25% of military-appointed lawmakers and the subsequent inability to herald constitutional change that would have been necessary for the further democratisation of the country and the Hluttaw itself severely limited the parliament’s capacity. These safeguards against further democratisation were, however, not sufficient to deter a new military takeover, evident in the coup in February 2021. In the aftermath of the coup, the future of the parliament in Myanmar is unclear. It is likely that a reconstitution would go hand in hand with more excessive limitations to its capacity and an unfree and unfair election process for its lawmakers. Despite its flaws and its dissolution, the democratic value of the Hluttaw became clearly apparent after the coup when elected lawmakers formed the Committee Representing Pyidaungsu Hluttaw to oppose military rule and to form a parallel government that would represent those citizens who had voted against military-affiliated parties and, thus, endorsed a more democratic future for the country. Rather than a single political party uniting the opposition, it was several lawmakers who took charge of finding a political response to the military coup.

Notes 1 In this text, we cite the official English translation of the Constitution of the Republic of the Union of Myanmar (2008) (hereafter 2008 Myanmar Constitution). 2 Although the Assembly of the Union has been dissolved, we will refer to it in the present tense throughout the chapter. We use several terms interchangeably. We use upper house/Amyotha Hluttaw, lower house/Pyithu Hluttaw, Assembly of the Union/Pyidaungsu Hluttaw, and Myanmar armed forces/Tatmadaw interchangeably. 3 Tatmadaw is one term used to refer to the Burmese Armed Forces. 4 Melissa Crouch, The Constitution of Myanmar: A Contextual Analysis (Hart 2019). 5 The Roadmap to Discipline-Flourishing Democracy, announced on 30 August 2003, outlined a seven-step process that was supposed to reintroduce democracy to Myanmar. 6 The 8888 Uprising was a series of nationwide demonstrations between March and September 1988. The 8888 Uprising is a critical juncture in Myanmar’s political history as it is synonymous with the formation of a broad political movement that sought a change of government, in favour of democracy. It caused the resignation of Dictator Ne Win and the subsequent reorganisation of military power brokers that would led to the military coup by the State Law and Order Restoration Council (SLORC). The 8888 Uprising also inspired the formation of the National League for Democracy that would become the primary opposition party to the military in the following decades. 7 The 1974 Constitution had been suspended by the SLORC upon taking power. Myanmar would remain without a constitution for 20 years (1988–2008). 8 The military’s refusal to initiate a transfer of power has inspired the term ‘stolen election,’ often used in Myanmar to refer to the 1990 elections. 9 For a detailed timeline of the constitutional convention, see ‘Myanmar: Chronology of the National Convention,’ Reliefweb accessed 15 April 2021.

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The Legislature (Pyidaungsu Hluttaw) of Myanmar 10 Humanitarian Information Unit, Burma Elections 2010 and 2012 (US Department of State 2012) accessed 21 November 2022. 11 For more details, see Marco Bünte, ‘Burma’s Transition to Quasi-Military Rule: From Rulers to Guardians?’ (2013) 40(4) Armed Forces and Society. 12 Crouch (n 4) 244. 13 2008 Myanmar Constitution, s 109 (b), 141 (b). 14 ibid s 109. 15 ibid s 141. 16 ibid s 141 (a). 17 ibid s 56. 18 Crouch (n 4) 82. 19 2008 Myanmar Constitution, s 60. 20 Official stays in a foreign country with the permission of the government also count. 21 ibid s 57. 22 ibid s 59 (f ). 23 Although it did not technically supersede the president. 24 Law Relating to the State Counsellor of Myanmar (2016). 25 Law Relating to Pyidaungsu Hluttaw (2010). 26 Region and State Hluttaw Election Law (2010), s 3 (a). 27 The term national race (taingyintha) is used as a general category for the 135 distinct ethnicities that the Myanmar government officially recognises as belonging to Myanmar. It is a highly problematic term that has fuelled significant conflict in the country and is used to discriminate and disenfranchise ethnic minority groups like the Rohingya. For more information, see Nick Cheesman, ‘How in Myanmar ‘National Races’ Came to Surpass Citizenship and Exclude Rohingya,’ (2016) 47 Journal of Contemporary Asia 461–483. 28 2008 Myanmar Constitution), s 161 (b), (c). 29 ibid s 161 (d). 30 ibid s 168. 31 Law Relating to the Region and State Hluttaw (2013). 32 Legislators passing away before their term ends happens frequently in Myanmar due to the relatively old age of many lawmakers. 33 The electoral districts of the Amyotha Hluttaw were formed in accordance with the Amyotha Hluttaw Election Law. 34 Consider, for example, the two electoral districts Hlaingthaya and Cocokyun. In 2015, the former had 451,564 registered voters, while the latter only had 1466. 35 We use the terms in the English translation throughout to avoid confusion. 36 2008 Myanmar Constitution, s 76 (a). 37 ibid s 232 (i). 38 ibid s 62, 63, 232 (i). 39 ibid s 203. 40 The age limit for chief ministers, on the other hand, is 35. 41 ibid s 120, 151. 42 Periods of residence in another country with the permission of the state are counted as residence in Myanmar. The criteria was established to ban those who sought political exile without the permission of the state from seeking candidacy. 43 ibid s 121. 4 4 ibid s 393. 45 Pyithu Hluttaw Election Law (2010), s 25. Amyotha Hluttaaw Election Law (2010), s 25, Region and State Hluttaw Election Law (2010), s 25. 46 Pyithu Hluttaw Election Law (2010), s 27. Amyotha Hluttaaw Election Law (2010), s 27, Region and State Hluttaw Election Law (2010), s 27. 47 It must be noted that citizenship is a complex issue in Myanmar. Laws such as the 1982 Citizenship Law make it impossible for many people to claim citizenship even though they were born in Myanmar and their families have lived in the country for generations. Internally displaced people, too, are often barred from exercising their rights as citizens if, for example, they have lost their Citizenship Scrutiny Card (GSC). For more information, see Myo Min, ‘The Socio-Economic Struggles of Cyclone

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Richard Roewer and Han Htoo Khant Paing Nargis’ Migrants in Yangon’ TeaCircle (30 March 2020) accessed 21 November 2022; Ashley South and Marie Lall (eds), Citizenship in Myanmar (ISEAS 2017). 48 2008 Myanmar Constitution, s 391. 49 Pyithu Hluttaw Election Law (2010), Chapter 6; Amyotha Hluttaaw Election Law (2010), Chapter 6; Region and State Hluttaw Election Law (2010), Chapter 6. 50 Kyaw Lwin Oo and Thin Thiri, ‘Voter Lists Still Incomplete Ahead of Myanmar General Election Nov. 8’ Radio Free Asia (2 November 2015) accessed 21 November 2022. 51 Pyithu Hluttaw Election Law (2010), s 47; Amyotha Hluttaaw Election Law (2010), s 47; Region and State Hluttaw Election Law (2010), s 47. 52 Pyithu Hluttaw Election Law (2010), s 49; Amyotha Hluttaaw Election Law (2010), s 49; Region and State Hluttaw Election Law (2010), s 49. 53 Union Election Commission, List of Existing Political Parties (2021). 54 Jonah Fisher, ‘Why has Myanmar dropped proportional representation plans?’ BBC (21 November 2014) accessed 21 November 2022. 55 2008 Myanmar Constitution, s 232 (b). 56 ibid, s 436. 57 Thomas Fuller, ‘Main Opposition to Boycott Myanmar Election’ New York Times (29 March 2010) accessed 21 November 2022. 58 Trevor Wilson, ‘The significance of Myanmar’s 2010 election’ New Mandala (15 December 2020) accessed 21 November 2022. 59 Toshihiro Kudo, ‘Results of the 2010 Elections in Myanmar: An Analysis’ IDE-JETRO ( January 2011) accessed 21 November 2022. 60 ibid. 61 McVeigh Tracey, ‘Aung San Suu Kyi released from house arrest’ Guardian (13 November 2010) accessed 21 November 2022. 62 Tin Maung Maung Than, ‘Myanmar’s 2012 By-Elections: The Return of NLD’ (2013) Southeast Asian Affairs 204. 63 Aung Hla Tun, ‘Myanmar says 302 political prisoners freed in amnesty’ Reuters (14 January 2012) accessed 21 November 2022. 64 Carter Center, Observing Myanmar’s 2015 General Elections accessed 21 November 2022; ANFREL, General & Local Elections Myanmar 2015 accessed 21 November 2022. 65 ANFREL (n 64) 11. 66 Richard Roewer, ‘The Political Dynamics of Myanmar Facing the International Court of Justice’ OxPol (16 December 2019) < https://blog.politics.ox.ac.uk/the-political-dynamics-of-myanmarfacing-the-international-court-of-justice/> accessed 21 November 2022. 67 Phyu Phyu Khine, Aung Theinkha, Wai Mar Tun and Soe San Aung, ‘Main Opposition Party Wants Myanmar Election Postponed, Citing Coronavirus Concerns’ Radio Free Asia (14 September 2020), accessed 21 November 2022. 68 Nyein Nyien, Nan Lwin, San Yamin Aung and Zaw Zaw Htwe, ‘Myanmar’s 2020 General Election Results in Numbers’ Irrawaddy (11 November 2020) accessed 21 November 2022. 69 The Ministry of Home Affairs is one of three ministries controlled by the Tatmadaw. 70 Khine and others (n 67). 71 Among them an estimated 60,000 Rohingya. 72 ANFREL, The 2020 Myanmar General Elections: Democracy Under Attack: ANFREL International Election Observation Mission Report (2021) 48 accessed 21 November 2022.

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The Legislature (Pyidaungsu Hluttaw) of Myanmar 73 Phyu Phyu Khine, Wai Yan Moe Myint, Thiha Tun, Min Thein Aung, ‘Anger, Confusion After Myanmar Election Authorities Cancel Voting in 56 Townships Over Security Fears’ Radio Free Asia (20 October 2020) accessed 21 November 2022. 74 Hein Myat Soe, ‘USDP Releases Alleged Lists of Poll Fraud’ Myanmar Times (20 January 2021). 75 AFP, ‘Tatmadaw raises prospect of coup after voter-fraud claims’ Frontier Myanmar (27 January 2021) accessed 21 November 2022. 76 Sebastian Strangio, ‘Amid Coup Fears, Myanmar’s Election Commission Rejects Army Election Fraud Claims’ Diplomat (29 January 2021) accessed 21 November 2022. 77 ANFREL (n 72) 6. 78 Kay Johnson, ‘Myanmar Army Ruler Takes Prime Minister Role, Again Pledges Elections’ Reuters (1 August 2021) accessed 21 November 2022. 79 2008 Myanmar Constitution, s 71. 80 ibid s 71. 81 ibid s 233, 238, 243, 302, and 334. 82 For example, the parliament can make cuts to the budgets of the various ministries. 83 2008 Myanmar Constitution, s 103. 84 ibid 108. 85 A decision on the ordinance must be made within 60 days. 86 2008 Myanmar Constitution, s 104; Law Relating to the Pyidaungsu Hluttaw, s 52, 53, 54, 55. 87 2008 Myanmar Constitution, s 80 (h), 127 (g), 175 (h), and 77 (c). 88 Single members can submit bills too. 89 2008 Myanmar Constitution, s 100 (b). 90 ibid s 102. 91 ibid s 435. 92 By-Law Relating to Pyithu Hluttaw (2010), s 150; By-Law Relating to Amyotha Hluttaw (2012), s 183; By-Law Relating to Pyidaungsu Hluttaw (2010), s 78. 93 By-Law Relating to Pyidaungsu Hluttaw (2010), s 80. 94 ibid s 151 (a); By-Law Relating to Amyotha Hluttaw (2012), s 184 (a). 95 By-Law Relating to Pyithu Hluttaw (2010), s 151 (b); By-Law Relating to Amyotha Hluttaw (2012), Sub-section 184 (b). 96 By-Law Relating to Pyithu Hluttaw (2010), s 154 (a), (b); By-Law Relating to Amyotha Hluttaw (2012), s 187 (a), (b). 97 By-Law Relating to Pyithu Hluttaw (2010), s 151, 156; By-Law Relating to Amyotha Hluttaw (2012), s 188, 189. 98 By-Law Relating to Pyithu Hluttaw (2010), s 157 (b); By-Law Relating to Amyotha Hluttaw (2012), s 190 (b). 99 By-Law Relating to Pyithu Hluttaw (2010), s 158; By-Law Relating to Amyotha Hluttaw (2012), s 191. 100 Law Relating to Pyithu Hluttaw (2010), s 44; Law Relating to Amyotha Hluttaw (2012), s 42; Law Relating to Pyidaungsu Hluttaw (2010), s 23. 101 Law Relating to Pyithu Hluttaw (2010), s 45; Law Relating to Amyotha Hluttaw (2012), s 43; Law Relating to Pyidaungsu Hluttaw (2010), s 24. 102 By-Law Relating to Pyithu Hluttaw (2010), s 17(p); By-Law Relating to Amyotha Hluttaw (2012), s 19(p); By-Law Relating to Pyidaungsu Hluttaw (2010), s 8(p). 103 By-Law Relating to Pyithu Hluttaw (2010), s 162; By-Law Relating to Amyotha Hluttaw (2012), s 195. 104 By-Law Relating to Pyithu Hluttaw (2010), s 163; By-Law Relating to Pyidaungsu Hluttaw (2010), s 196. 105 By-Law Relating to Pyithu Hluttaw (2010), s 164; By-Law Relating to Amyotha Hluttaw (2012), s 197. 106 By-Law Relating to Pyithu Hluttaw (2010), s 165, 166. By-Law Relating to Amyotha Hluttaw (2012), s 198, 199. 2008 Myanmar Constitution, s 95 (b).

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Richard Roewer and Han Htoo Khant Paing 1 07 By-Law Relating to Pyidaungsu Hluttaw, s 83 (b), (c). 108 By Law Relating to Pyidaungsu Hluttaw, s 84 (a), (b). 109 2008 Myanmar Constitution, s 105. 110 ibid s 77, 140, 160. 111 Renaud Egreteau, Parliamentary Development in Myanmar: An Overview of the Union Parliament, 2011–2016 (Asia Foundation 2017) 6 < https://asiafoundation.org/publication/parliamentarydevelopment-myanmar-overview-union-parliament-2011-2016/> accessed 21 November 2022. 112 2008 Myanmar Constitution, s 86. 113 ibid s 115 (a), 147 (a). 114 ibid s 115 (c), 147 (c). 115 ibid s 116, 149. 116 Makino Emi, ‘Evaluation of the Attitudes Between the Constitutional Tribunal and the Parliament in Myanmar’ 5 Nagoya University Asian Law Bulletin (March 2020) 75. 117 Interpretations constitute binding decisions. 118 2008 Myanmar Constitution, s 326. 119 ibid s 324. 120 Law Relating to Pyidaungsu Hluttaw (2010), s 2 (f ). 121 Constitutional Tribunal of the Republic of the Union of Myanmar, Tribunal Proceedings of 2012 (2013), Submission 1/2012, accessed 21 November 2022. 122 Interestingly, the chairperson of the Constitutional Tribunal who resigned following the submission 1/2021 had served as the chairperson of the Union Election Commission and oversaw the deeply flawed 2010 general elections. Following the 2021 coup, he was reappointed as the chair of the Union Election Commission by the State Administration Council. 123 Emi (n 116) 74. 124 Joint Committee for Reviewing the Constitution, ‘Press release on suggestions received from departments, associations, political parties and persons regarding the Constitution 2008’ New Light of Myanmar (1 January 2014) accessed 21 November 2022. 125 Section 436 of the 2008 Constitution effectively requires the consent of all elected MPs and at least one military-appointed MP for any constitutional amendments. 126 MNA, ‘Pyidaungsu Hluttaw forms implementation committee for constitutional amendment’ New Light of Myanmar (4 February 2014) accessed 21 November 2022. 127 Notably, the referendum requires more than 50% of votes – not of people who have voted, but of people who are eligible to vote, effectively constituting a very high threshold. 128 MNA, ‘Pyidaungsu Hluttaw votes to postpone constitutional referendum’ Global New Light of Myanmar (22 July 2015) accessed 21 November 2022. 129 Tinzar Htun and Mael Rynaud, Schedule Two of the 2008 Constitution: Avenue for Reform and Decentralization Steps Towards a Federal System (Konrad Adenauer Stiftung 2008) 52 accessed 21 November 2022. 130 Law Amending Union of Myanmar Constitution (2015), s 2 and 3. 131 Zulueta-Fülscher, Kimana, ‘Looking back at the Myanmar Constitution amendment process’ International IDEA (8 April 2020) accessed 21 November 2022.

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16 THE PARLIAMENT OF PAKISTAN Mariam Mufti

16.1 Introduction Since its inception on August 14, 1947, Pakistan’s political development has followed a turbulent trajectory. It has experienced four military coups (1958, 1969, 1977, and 1999), the ratification of three constitutions (1956, 1962, and 1973) that have experimented with both parliamentary and presidential forms of government, and a constant struggle between the military-bureaucratic and political elites over control of the state’s resources. Due to direct and indirect military interventions, Pakistan’s Parliament has either not been in place or it has been short-lived and dysfunctional because of constitutional provisions such as Article 58(2b), which empowered the President to dissolve the National Assembly at their discretion.1 The Parliament has often been described as a weak institution that rubberstamps military policies instead of playing a significant oversight role.2 During periods of civilian rule, an activist judiciary has repeatedly encroached on parliamentary prerogatives, while the executive branch has tended to dominate the governance agenda and has often opted to legislate through ordinances. In 2008, Pakistan embarked on a democratic transition. However, Pakistan’s Parliament is still trying to restore its sovereignty and develop its institutional identity. For this reason, little research has been done on the Parliament, and scholarly understanding of its structure and function is lacking.3 Today, Pakistan comprises four federating units—Punjab, Sindh, Balochistan, North West Frontier Province (renamed Khyber Pukhtunkhwa, KP in 2010);4 a federal capital territory; the previously semi-autonomous Federally Administered Tribal Areas (FATA) that merged with KP in 2018;5 and the self-governing administrative territories of Azad Kashmir and Gilgit Baltistan that are governed by the 1973 Constitution. According to this document, Pakistan is a federal, Islamic republic with a parliamentary system of government similar to the UK model of Westminster-style democracy. Although the 1973 Constitution has had considerably more longevity than the previous two constitutions, it has undergone significant amendments. The most recent of these, and arguably the most impactful, was the Constitution (Eighteenth Amendment) Act, 2010 (hereinafter referred to as the Eighteenth Amendment). This Amendment restored the supremacy of the legislature over the executive by undoing Article 58(2b). It also reaffirmed the principle of federalism by devolving powers to the provinces and mandating that each provincial government install a system of local governance.6 DOI: 10.4324/9781003109402-18

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This chapter seeks to fill a gap in the scholarship on Pakistan by shedding light on the legislative branch of government. It explains how the Constitution envisions the role of the legislature in governance, but also how the legislature has performed in reality. The following three sections will focus on the structure and composition of the legislature; the powers of the legislature; and the legislative process.

16.2  Structure and composition of the legislature Pakistan’s federal legislature is a bicameral Parliament (Majlis-e-Shoora) comprising the President and the two houses—the National Assembly (Lower House) and the Senate (Upper House).7 Each province has its own legislative body known as the Provincial Assembly.8 National Assembly: The Constitution (Twenty-Fifth Amendment) Act passed in 2018 amended Article 51 to reduce the number of seats from 342 to 336 seats in the National Assembly. Of these, 266 seats are directly elected single-member districts allocated to each federating unit on the basis of population (see Table 16.1).9 Additionally, 60 seats are reserved for women and 10 seats for non-Muslim minorities. These seats are elected using closed list proportional representation. Members of the National Assembly are elected for the duration of the House (five years).10 However, the tenure of a member may come to an end if the Assembly is dissolved by the President (on the advice of the Prime Minister) under Article 58. The National Assembly may also be dissolved if no member commands the confidence of the majority of the members.11 Senate: The Senate’s powers and structure is enumerated in Article 59. The TwentyFifth Amendment Act has decreased the number of senators from 100 to 96 members. Each Provincial Assembly elects 23 senators from their respective province, including 14 members on general seats, 4 women, 4 technocrats (including ulema, clergy), and 1 nonMuslim. The National Assembly serves as an electoral college to elect the remaining four senators from the Federal Capital territory (of which one must be a woman and one a technocrat). The Senate was envisioned as a ‘demos-constraining’ institution that gives each federating unit equal representation.12 This was intended to quell the resentment of the smaller provinces against the demographically preponderant province of Punjab (which makes up 53% of the single-member districts in the Lower House). Unlike the National Assembly, which is vulnerable to dissolution, the Senate is a permanent legislative body symbolizing continuity in the legislative process. One half of its members are elected every three years, and mid-term vacancies are filled through electoral colleges. Table 16.1  Breakdown of seats in the National Assembly after the Twenty-Fifth Amendment Act General seats

Reserved seats for women

Reserved seats for minorities

Total no. of seats

Balochistan Khyber Pukhtunkhwa Punjab Sindh Federal Capital Territory

16 45 141 61 3

4 10 32 14 0

Total:

266

60

– – – – – 10 10

20 55 173 75 3 10 326

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16.2.1  Members of Parliament Article 62 of the Constitution lists the eligibility criteria for members of Parliament. This constitutional provision was revised by General Ziaul Haq’s military regime to include not just basic requirements for candidacy, including age, residency requirements, and lack of a criminal record, but to also include subjective morality clauses based on Islam. According to this Article, an individual must be a citizen of Pakistan and 25 years or older for the National Assembly or 30 years or older for the Senate. Individuals must be of ‘good character’, which is further elaborated in Article 62(f ) as being ‘sagacious, righteous, non-profligate, honest and ameen (loyal and true-hearted).’13 Members of Parliament should also not have committed any acts against the integrity of Pakistan or opposed the ideology of Pakistan. These provisions are highly subjective and, in their current form, necessary prerequisites on which there is no real consensus. Disqualifications for membership in Parliament were also substantially revised and are enumerated under Article 63(1) of the Constitution. This is a much longer list, but the most commonly cited provisions are: 63(1a), being of unsound mind; 63(1b), undischarged insolvent; 63(1c), having dual nationality; 63(1h), committing an act of moral turpitude; and 63(1o), defaulting on payment of government dues and utility expenses.14 The run-up to the 2013 election highlights the problem with some of these criteria. Returning Officers of the Election Commission of Pakistan (mostly judicial officers) used Articles 62 and 63 to ‘impose their own moral footprint as cleansing instruments to disqualify (even publicly embarrass) candidates.’15 Criteria that are dichotomous or binary in nature can be easily ascertained and require little investigation. For example, whether an individual possesses a dual nationality is easily ascertained. However, determining whether an individual is of sound moral character is harder to judge. The concern raised by legal and human rights scholars, however, is related to those qualifications that are open to judicial interpretation and, therefore, likely to infringe upon the fundamental right to contest an election. But it also tips the checks and balances of Pakistan’s parliamentary system in favour of the judiciary. Prior to an election, political parties undertake the process of candidate selection to determine which of the persons legally eligible to hold public office will be designated on the party’s ballot. Candidates are selected at the level of the electoral district either by a group of members that constitute a parliamentary board or by the central office of the political party. The decisions of this selectorate are subject to the approval of the party leader. Political parties invite applications from persons wishing to contest an election on a party’s ticket once the election date is announced. These applications are usually submitted with a non-refundable application fee. Once shortlisted by the parliamentary boards, candidates may be interviewed before the final selections are made.16 A parliamentary system encourages political parties to calculate electoral success in terms of the number of seats won in the National and Provincial Assemblies. Winning two thirds of the seats allows a party to form a single-party majority government and actively pursue a legislative agenda without the fear of veto. Thus, beyond the state-level candidacy requirements listed under Articles 62 and 63, political parties select candidates by assessing their ability to win. In general, political parties seek candidates who are locally influential and maintain a personal support base by establishing individualized links with voters through the delivery of patronage.17 This practice has further reinforced the mindset of viewing constituency service as more important for legislators than law-making or policy deliberation. Political parties seek personal credibility in their candidates, which they measure through personal qualities like honesty and integrity. However, political parties, especially the larger mainstream 273

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ones like Pakistan People’s Party (PPP), Pakistan Muslim League-Nawaz (PML-N), or Pakistan Tehrik-e-Insaaf (PTI), do not place high value on loyalty to the party or strong party affiliations. This is evident in the ease with which politicians switch party affiliations prior to an election.18 Most importantly, parties (with the exception of the Muttahida Quami Movement and Jamaat-e-Islami) look for candidates who can entirely finance their own electoral campaigns.19 This has resulted in a candidate-centred political system in which candidates are politically autonomous and not reliant on political parties to help sustain their careers. Consequently, the typical social profile of a member of the National Assembly as described by is that of an ‘immensely wealthy’ repeat candidate, who is ‘ill-informed of social and economic facts about Pakistan’ and ‘not internet-savvy.’20

16.2.2  Parliamentary leadership The Speaker and Deputy Speaker are elected in the first session of the National Assembly immediately after the members have taken their oath and prior to the transaction of any other business.21 This first session is usually presided over by the outgoing Speaker.22 The Speaker of the National Assembly is the highest office-holder in the National Assembly. In the Warrant of Precedence, the Speaker occupies fourth place after the President, Prime Minister, and Chairman of the Senate.23 The roles and responsibilities of the Speaker can be broadly divided into two areas. First, as the principal spokesperson of the House, the Speaker is expected to maintain the authority of the House and to protect its rights and privileges. The Speaker must maintain relations with the rest of Parliament and with other branches of government. As a representative of the House, the Speaker is responsible to the House and its members—and not to the Executive, from which the House must preserve its independence. Second, the Speaker also fulfils a procedural role, which is to preside over the National Assembly sessions and ensure that they are conducted in an orderly manner. The Speaker interprets and applies the Rules of Procedure and Conduct of Business and responds to members’ points of order and rules on procedure, when necessary.24 If the Speaker is absent or unable to perform these functions, the Deputy Speaker acts as the Speaker. Likewise, in the Senate, a Chairman and a Deputy Chairman are elected from among the members of the Senate by secret ballot for a term of three years.25 Apart from being a spokesperson of the Senate and serving a procedural role of maintaining Senate business, the Chairman is first in the line of succession to the President. If the Senate Chairman is also unable, then the Speaker of the National Assembly would assume the Presidency.26 The Prime Minister is the Leader of the House in both the National Assembly and Senate. After the election of the Speaker and Deputy Speaker, the National Assembly proceeds to elect the Prime Minister, who must command a majority of the total membership of the National Assembly.27 This individual is usually the leader of the political party winning a plurality of seats in the National Assembly and which forms the government. The Prime Minister serves at the pleasure of the President as long as the latter is satisfied that the former commands the confidence of the Lower House.28 The Prime Minister’s counterpart is the Leader of Opposition, who leads a majority of the members sitting in opposition to the government. The Speaker declares the Leader of the Opposition soon after the Prime Minister is elected.29 Executive authority is exercised in the name of the President by the federal government led by the Prime Minister who is the chief executive.30 Article 91(1) provides for the formation of a cabinet of ministers, with the Prime Minister as its head, to aid and advise the President in the exercise of his functions. Mufti explains that a change in the cabinet usually 274

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brought about by a Prime Minister can be distinguished from a change in Prime Minister, or the dissolution of the National Assembly and the holding of a fresh election.31 There are two levels of ministers in Pakistan: federal ministers (in charge of a ministry) and ministers of state ( junior minister). The President selects ministers from among the members of Parliament on the advice of the Prime Minister, with the proviso that senators cannot exceed one-fourth of the total number of ministers in the cabinet.32

16.3 Elections Pakistan has a mixed electoral system (parallel), whereby voters elect representatives every five years through a combination of first-past-the-post (FPTP, or plurality) and closed list proportional representation. In 2002, a delimitation exercise increased the number of seats to 272 single-member constituencies in the National Assembly. Of these, 12 seats were allocated to FATA and were contested on a non-party basis until 2013.33 In 2018, the Twenty-Fifth Amendment Act merged FATA with KP in an attempt to further integrate these territories into mainland Pakistan. This Amendment also reduced the number of single-member districts to 266 seats. The breakdown of seats in the National Assembly for the next general election is shown in Table 16.1. In addition, 60 seats are reserved for women and 10 seats for minorities in the National Assembly. Elections for the 266 general seats in the National Assembly are FPTP contests in singlemember districts in which the plurality formula determines the winning candidate.34 Since this is a parallel electoral system, reserved seats for women and minorities are non-compensatory and are decided according to closed list proportional representation. Members are elected to the reserved seats for women through a proportional representation system from a political party’s list of candidates on the basis of the total number of seats won by each party in the National Assembly from the province concerned.35 Members to the ten seats reserved for nonMuslims shall be elected through a proportional representation system from a political parties’ list of candidates on the basis of the total number of general seats won by each political party in the National Assembly.36 The total number of seats won by any party would include the independent returned candidate(s), who may duly join such political party within three days of the publication in the official Gazette of the names of the returned candidates. Any Pakistani citizen, 18 years or older and of sound mind, is eligible to vote if their name is on an electoral roll.37 On Election Day, voters are handed two ballots. They select a candidate each for the Provincial Assembly and the National Assembly from their electoral district. In an FPTP system, a new political party faces the challenge of having to finish ahead of all the established parties; therefore, it is incentivized to select the strongest candidate. It may take several elections to build levels of support that will allow a party’s candidates to finish first in a significant number of constituencies, and voters may lose patience with a party that appears unable to get candidates elected. On the other hand, parties with support concentrated in a smaller number of constituencies are more likely to succeed because FPTP promotes a strong linkage between the voters and the representative.38 For this reason, smaller parties—those that promote regional issues—tend to survive. Cases in point include the Baloch nationalist parties in Balochistan, the Awami National Party (ANP) in KP, and Muttahida Qaumi Movement (MQM) in urban Sindh. These characteristics of the electoral system have prompted larger, well-established parties to also cultivate regional areas of strength; for example, PPP in Sindh and PML-N in North and Central Punjab. If a party succeeds in establishing a strong plurality within a particular region, it may become the only party sending representatives from that region to the legislature. The failure 275

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of parties with other ideologies to reach the Parliament has further reinforced the regional dimension of politics. Moreover, National Assembly seats are apportioned to provinces on the basis of population as follows: Punjab (53%), Sindh (23%), KP (17%) and Balochistan (6%). Electoral success at the national level in Pakistan therefore requires a strong political base in the Punjab. FPTP electoral competition has produced in Pakistan the semblance of a two-party system to the extent that power has alternated between two major parties: PPP and PML-led alliances.39 From 1988 to 2013, these two parties have comprised, on average, 71% of the vote share and 73% of the seats in the National Assembly. In 2018, a third political party, the PTI, emerged as the largest party in Parliament. It won an outright majority of 116 seats and 32% of the vote share.40 PTI’s electoral victory was also significant because this was the first time in 48 years that neither the PML nor the PPP formed the government. Pakistan held its first general elections in 1970, nearly a quarter century after independence from the British in 1947. In the 51 years that followed, more than two decades have been under military rule, 11 years of which were under martial law. Since that first general election, ten more universal franchise elections have been held (1977, 1985, 1988, 1990, 1993, 1997, 2002, 2008, 2013, and 2018). All of these elections have been partisan, except for the 1985 election. The legitimacy of these elections have been called into question due to allegations of pre-poll and post-poll manipulations. These include practices, such as the incomplete preparation of electoral rolls, falsification of information in candidate nomination papers, intelligence agencies coercing political parties to field certain candidates, and the underhanded use of state resources to support certain electoral campaigns. On Election Day, allegations of ballot-box stuffing, bogus voting, and the use of violence to scare of voters are also common.41 Apart from electoral rigging and poor election management, these contests have resulted in woeful under-representation of women and minorities. Although this was rectified through the inclusion of reserved seat quotas and a delimitation of seats exercise in 2002, the intent behind both moves is dubious as they were made by Musharraf ’s military regime. Was delimitation meant to reflect changes in the national census or did it have more to do with redrawing constituencies to insure the victory of political parties supporting Musharraf? Despite the flawed nature of the electoral process in Pakistan, public support for elections has seen an upward trend. Gallup Pakistan reported that 80% of those surveyed thought that their vote was effective in 2008, and 72% deemed the election to be fair.42 This is probably due to the fact that elections in Pakistan are generally competitive, multi-party contests that result in the alternation of power. For the most part, elections are seen as the only legitimate procedures for elite succession, and the results are widely accepted, albeit with protests from the opposition. The 2008 election resulted in the first democratically elected government that led to Musharraf ’s ouster. There was much optimism at the time due to the cooperation of PPP and PML-N to form a national unity government under the Charter of Democracy. In 2013, political power was transferred peacefully from one civilian government to another after the completion of a full five-year term for the first time. This exercise was repeated in 2018.

16.4  Functions and powers of the Legislature Pakistan’s Parliament gains legitimacy and acquires power from two structural sources. First, the Constitution of Pakistan (1973) ascribes formal, legal status to the legislature and provides the ground rules for its work. Second, the Rules of Procedure and Conduct of Business in the National Assembly, 2007 provide the operational principles to guide the day-to-day work of 276

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the Lower House. A similar document exists for the Senate. Since these documents are not static, the Parliament too has evolved and undergone changes in the nature and scope of its functions. Bhattacharya highlights internal and external influences on the Parliament.43 Internally, a parliament in the execution of its responsibilities is impacted by the behavioural orientation and experience of its members, expertise of support services such as from the parliamentary secretaries, the competence of the committee system, and the nature of inter-party competition. Externally, the Parliament has been impacted by the electoral and party system (discussed in part II), political culture, and regime changes brought about by military intervention. In Pakistan’s case, the military’s intervention in politics has had an outsized impact on the salience of the Parliament, as it has constitutionally empowered the executive at the expense of the legislature.

16.4.1 Legislation Pakistan’s Parliament is empowered to legislate and make laws. However, it cannot make laws that are repugnant to the injunctions of Islam as laid down in the Holy Quran and Sunnah (sayings and actions of the Prophet Muhammad)44; repugnant to any provision of the Constitution; violate or contravene any fundamental rights45; or are not in consonance with the Principles of Policy.46 Legislative powers in the 1973 Constitution were allocated in two lists: the Federal Legislative List over which the central government exercises authority and a Concurrent List of 47 subjects over which both the central and provincial governments have jurisdiction. All other subjects were termed residuary and placed under provincial jurisdiction. This arrangement led to significant duplication of effort, permitting the federal government override the provincial governments in legislation and policymaking. In 2010, the passage of the Eighteenth Amendment Act upheld the principle of federalism, which had long been contested since the dismemberment of Pakistan in 1971.47 It abolished the concurrent list and devolved the responsibility for 17 federal ministries to the provinces. Therefore, under Article 70, a bill relating to any matter on the Federal Legislative List contained in the Fourth Schedule may originate in either the National Assembly or Senate. Table 16.2 provides a comparative snapshot of the legislative output of the 13th , 14 th , and 15th National Assemblies to date. The only exception to this rule is Money Bills, including the Finance Bill containing the Annual Budget Statement, which is the sole prerogative of the National Assembly.48 Although the Finance Bill is typically transmitted to the Senate for feedback and recommendations, the National Assembly is under no obligation to incorporate these recommendations prior to presenting the Bill to the President for assent.49 Table 16.2  Legislative performance from 2008 to 201350

Government Bills Introduced Government Bills Passed Private Member Bills Introduced Private Member Bills Passed Acts of Parliament

2008–2013

2013–2018

2018–till present

– 116 146 19 103

– 182 237 23 161

95 95 220 4 50

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The detailed definition of a Money Bill is provided in Article 73(2). Any provision related to taxation, loans, financial obligations, Federal Consolidated Fund, Public Accounting, and auditing of the federal and provincial governments are included in a Money Bill. A bill is certified as a Money Bill by the Speaker of the National Assembly, and his decision is considered conclusive.51 The President is empowered to issue a Proclamation of Emergency if Pakistan’s security is threatened on account of war, external aggression, or by internal disturbances beyond the power of the provincial government to control.52 Both Houses of Parliament must approve the Proclamation within ten days.53 If an emergency is proclaimed, Parliament holds the authority to extend the term of the National Assembly.54 If the President proclaims an emergency in any province, the power to legislate for that province is vested in the Parliament.55 But the bills passed by Parliament during the State of Emergency shall cease to be in force six months after the Emergency is lifted. Nevertheless, actions taken under these Acts remain valid.56 Parliament is also empowered to make laws of indemnity. Parliament can make any law indemnifying any person in service of the Federal or Provincial Government, or any other person, if they have been involved in any act connected to the maintenance or restoration of order in any area of Pakistan.57

16.4.2 Oversight Various tools provided in the Rules of Procedure and Conduct of Business in the National Assembly and Senate enable the two Parliamentary Houses to conduct oversight and hold the government accountable. These tools also serve as a check on the Executive. Mechanisms of oversight that are most commonly used in Parliament include Questions, Calling Attention Notices, and the Committee System (see Table 16.3). The purpose of asking questions is to elicit information about matters relating to the official responsibility of a cabinet minister, requesting administrative intervention in the case of grievances, and to seek redress. The first hour of every session is reserved for questions,58 though there is no question hour on Tuesday. There are two types of questions: starred and unstarred. Table 16.3  Oversight performance in the 13th and 14th National Assembly65 13th National Assembly

Questions

Calling Attention Notices Motions under Rule 259 Adjournment Motions Resolutions

14th National Assembly

2008–2013

Response

2013–2018

Response

16,178 Starred: 7,164 Unstarred: 9,014 573

78% received a response

13,192 Starred: 8,718 Unstarred: 5,194 533

79% received a response

408

76% received a response –

329

80% received a response 14% discussed

55

60% were discussed

–

–

530

16% were adopted by the House

464

45% were adopted by the House

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The former require a written reply by a minister, which is read out during the session. The latter receives a written reply but is not read out. A major limitation to this oversight mechanism is the length of the notice (15 days) that must be given in writing prior to being able to ask a question.59 Nearly one-fifth of all questions asked do not receive a response because very often ministers are not present or prepared to deliver a response. There is only one day (Tuesday) for dealing with private members’ business. Allowing for more days would certainly ameliorate Parliament’s oversight and agenda-setting functions. Members of the National Assembly and Senate can also draw attention to matters of public importance by using adjournment motions and calling attention notices (CANs). An adjournment motion is a motion moved to request the Speaker to adjourn the normal business of the House to discuss a matter of urgent public importance.60 The discussion on an adjournment motion must not exceed two hours.61 On the other hand, CANs enable members to draw the attention of a minister to a matter of public importance and request that action be taken. These do not require more than a day’s notice to appear on the agenda.62 The Parliament can also express its opinion, make recommendations, or convey a message on an important issue in the form of non-statutory resolutions that are not mentioned in the Constitution.63 However, statutory resolutions in pursuance of a provision in the Constitution are often more drastic oversight measure; for example, resolutions for the removal or impeachment of the President (Article 47), resolutions for the vote of no-confidence against the Prime Minister (Article 95), and resolutions for the disapproval of ordinances (Article 89).64 The purpose of the parliamentary committee system is to fulfil the responsibility of making laws, supervise the administration, and pursue its obligations to the electorate. Due to the increased complexity of legislative work, there is limited time available for in-depth deliberation and scrutiny. Therefore, legislative bills and other important issues are often referred to the committees for further examination. Moreover, the possibility of evolving consensus among a smaller group of individuals within the committee is far greater. The committee system in Pakistan’s Parliament as it stands today is based on the amended and improved Rules of Procedure and Conduct of Business that was adopted in 2007. Rules 198–245 regulate the working of the committees in the National Assembly. There are two types of committees—Select and Standing Committees. Standing committees are permanent committees corresponding to each ministry of the government. Members of standing committees are required to be elected within 30 days of the Prime Minister’s election.66 Standing committees are responsible for examining all bills referred to them by the House. Committees will submit a report within 30 days from the date of reference with suggestions and recommendations on a bill, subject, or matter referred to them by the House or the Speaker.67 But apart from legislation, these committees are also empowered to oversee and monitor the work of the relevant ministry, including examining its expenditures, administration, public petitions, and policies. Committees can invite or summon any member or any person having a special interest or expertise in a matter that is under consideration.68 Sub-committees may also be appointed to conduct deeper enquiries or investigations. These are essentially ad hoc fact-finding committees that cease to exist after they have discharged their duties. Apart from the departmental standing committees, there are two non-departmental committees: the Public Accounts Committee and the Committee on Government Assurances; and three domestic committees: the Committees on Rules of Procedure and Privileges, House and Library, and Business Advisory. In addition to Standing Committees, the Assembly can constitute Select Committees on Bills and Special Committees to carry out functions specified in the relevant motion.69 279

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Select Committees are ad hoc committees constituted to consider bills. These usually comprise the Minister-in-charge of the Ministry to which the bill relates, the Chairman of the Standing Committee concerned with the bill, the member-in-charge, the Minister for Law and Justice, the Minister of Parliamentary affairs, and other members elected by the House. Special committees are appointed by the Assembly to carry out functions that are laid out in the motion. The motion also specifies the composition of such committees. The performance of the committee system in Pakistan’s Parliament has improved tremendously since uninterrupted democratic rule has been in place. However, the performance of the committees is uneven and largely depends on the leadership of the committee chairmen. Chairmen from the opposition benches tend to be more assertive and dedicated to the task of holding the ministries accountable compared to those from the treasury bench.70 Another deficiency pertains to the lack of adequate staff, office space, and technical resources to aid in reporting on legislation. Members-in-charge of a bill use Rule 122 to bypass the committee stage in passing of bills because it is cumbersome and time-consuming.71 Finally, the committee system ought to check the bureaucracy. Due to the long-standing crisis of democracy in Pakistan, committees are widely seen as dysfunctional, and elected officials are viewed as incompetent and lacking experience. For example, the Ministry of Defence and the Election Commission of Pakistan have repeatedly defied committees and refused to submit themselves to parliamentary scrutiny. Parliament’s ongoing inability to hold nonelected bodies, such as the military and intelligence agencies, to account is perhaps the most glaring deficiency of parliamentary oversight.72 Financial Accountability: Pakistan, like India and Bangladesh, does not have a budgetmaking legislature. But Parliament does exercise a certain degree of influence over the budget (Bhattacharya 2020). There are three ways that the National Assembly exercises oversight over the financial affairs of the government. First, it has the power to consider and approve the budget. Second, the Public Accounts Committee examines government expenditures, annual finance accounts, and the reports of the Auditor General. Third, the National Finance Commission, which decides the division of monies allocated to the federal and provincial governments, has been obliged, under the Eighteenth Amendment, to provide biannual reports to Parliament and the provincial assemblies.73 However, the National Assembly’s power to control the budget was significantly eroded by other practices that have long been in place. The Zia regime [1977–1988] introduced discretionary development funds for each legislator to weaken party loyalties and to instead cement loyalty towards the military establishment. This undermined the Parliament’s authority to control expenditures. Legislators, in turn, were incentivized to focus on spending these development funds in their constituencies on public projects like gutters, sewerage systems, and roads instead of focusing on legislation and national policy. The practice of providing legislators with equal-access, federal, constituency-development funds (CDF), a program that ran from 1988–2013 and one that has been recently reinstated, prevents the Parliament from using regular budgetary allocation processes for development work in constituencies.74 The 13th and 14th National Assemblies have made some improvements to this practice. Amendments to the Rules of Procedure have strengthened Parliament’s role in the budget formulation process. First, during the 13th National Assembly, an amendment to the Assembly’s Rules of Procedure empowered standing committees to have input on the national budget. Each ministry must now submit its budgetary proposals relating to Public Sector Development Program (PSDP) to the relevant standing committee, which then makes its recommendations and endorses the ministry’s budget.75 Second, the 14th National Assembly reinforced the reforms of the previous Assembly by making it compulsory for ministries to inform standing 280

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committees when incorporating their recommendations in the final budgetary proposals. Moreover, the composition of the Public Accounts Committee has now been changed to include representation from the Senate, thereby balancing the increased policy scope of the National Assembly when it comes to financial matters.76

16.4.3  Relations with other branches of government In the traditional separation of powers, the legislature is one of three organs of state along with the executive and judiciary. As the most representative of these institutions, the Parliament represents the citizens of Pakistan in their dealings with other branches of government. It also interacts with various international and sub-national bodies. The Presidency: The members of both Houses of Parliament and the provincial assemblies elect the President for a term of five years.77 However, the President may also be removed from office or impeached through a resolution passed by at least two-thirds of the total members of Parliament in a joint sitting of the two Houses convened for this purpose.78 If the office of the President becomes vacant, the Chairman of the Senate, or if he is unable, the Speaker of the National Assembly assumes the role until a new President is elected.79 The Constitution (Eighth Amendment) Act, 1985 passed during the tenure of General Ziaul-Haq, introduced Article 58(2b) to the 1973 Constitution. This provision empowered the President to dissolve the National Assembly at their discretion if ‘a situation has arisen in which the Government of the Federation could not be carried out in accordance to the provisions of the Constitution and an appeal to the electorate is necessary.’ Not only did this provision elevate the role of the President from a symbolic, titular role to a much more substantive role at the expense of the Prime Minister and cabinet, but it also directly undermined the parliamentary framework envisioned by the Constitution. During the 1990s, no democratically elected government completed its full term in office, as this power was exercised four times (1988, 1990, 1993, and 1996) to dismiss the governments mid-term. The burden of proof for the dismissal of the government, however, came to be placed on the shoulders of the civilian President. But Presidents typically had the backing of the military, which continued to exercise its tutelary influence.80 Furthermore, the Parliament ceased to be sovereign. Instead, the judiciary has ‘legislated by default over the issue of making and breaking of governments.’81 Although Parliament repealed this article through the Thirteenth Amendment Act in 1997, it was revived by General Pervez Musharraf to centralize authority in the executive through the Constitution (Seventeenth Amendment Act), 2003. It was finally repealed by the Eighteenth Amendment Act in 2010. Presidents have also asserted themselves in Pakistan’s parliamentary system through their powers to promulgate ordinances and their power under Article 89 of the Constitution, to ‘make rules for the allocation and transaction of the business of government.’82 Both these powers have been regularly misused to bypass Parliament. The Eighteenth Amendment has imposed limitations on Presidential ordinances and has transferred the rule-making authority under Article 89 to the federal government. However, pursuant to Schedule Four of the government’s Rules of Business, unelected bureaucrats continue to retain the authority to make and execute orders and other instruments in the name of the President.83 Executive: After the election of the Speaker and the Deputy Speaker in the National Assembly, or if the office of the Prime Minister falls vacant, the Assembly, prior to any other business, must ascertain which one of its members commands the confidence of a majority of its members.84 A Prime Minister can be removed from office by members of the National Assembly according to the procedure laid in Article 95. A resolution for a vote of no-confidence must be moved by at least 20% of the total membership of the 281

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National Assembly. If the resolution is passed by a majority of the members of the National Assembly, the Prime Minister must relinquish his powers.85 The cabinet is made up of ministers appointed by the President, on advice of the Prime Minister, from the members of the National Assembly and Senate. Standing Committees that correspond with each ministry are responsible for holding the ministries accountable. And, in order to do this, they have the power to take evidence. They may summon any member of Parliament, Minister, or any person having a special interest in the matter under consideration and hold a public hearing. Judiciary: Article 68 clearly states that the Parliament must not engage in any discussion regarding the conduct of any Judge of the Supreme Court or a High Court in the discharge of their duties. By the same token, Article 69 states that courts cannot inquire into the proceedings of Parliament. Article 69(1) specifies that the validity of parliamentary proceedings cannot be questioned on the grounds of procedural irregularity. Moreover, courts do not have the jurisdiction to question a member of Parliament in the exercise of the member’s powers of ‘regulating procedure, conduct of business or maintaining order in Parliament.’86 The Eighteenth Amendment Act made appointments to the superior judiciary more transparent and subject to parliamentary scrutiny and approval. A Parliamentary Committee confirms the nominations made by a Judicial Commission for vacancies on the Supreme Court, High Court, and the Federal Shariat Court.87 Chief Election Commissioner: The Prime Minister, in consultation with the Leader of the Opposition, shortlists three candidates for consideration to be Chief Election Commissioner.88 A parliamentary committee comprising 12 members from both the Treasury and opposition benches, with at least one-third of the members being Senators, considers the short list to appoint the Chief Election Commissioner.89 Parliament may also extend the term of the Chief Election Commissioner for a period not exceeding one year.90 International Relations: While not constitutionally mandated, both the National Assembly and Senate endeavour to develop mutually beneficial relations with other Parliaments from around the world through the exchange of parliamentary delegations, setting up parliamentary friendship groups, and participation in several parliamentary fora to represent Pakistan. The Pakistani Parliament has promoted multi-lateral relations with other parliamentary democracies through the Inter-Parliamentary Union, the Commonwealth Parliamentary Association, and the SAARC (South Asia Association for Regional Cooperation) Speakers Forum.

16.5  The legislative process The National Assembly and the Senate work together to fulfil the primary function of Parliament, which is to legislate and make laws. The legislative procedure for the introduction and adoption of Bills is laid down in Articles 70–77 of the Constitution, the Rules and Procedure of the National Assembly (2012), and the Rules of Procedure of the Senate (2020). Any bill, the subject matter of which relates to the Federal Legislative list, can originate in either of the two Houses, except for a Money Bill, which is the sole prerogative of the National Assembly. For a bill to become law, it must receive the President’s assent after it has been passed by both Houses (FAFEN 2014).91

16.5.1  Types of bills There are two ways to classify bills. The first typology is based on a bill’s content. These include: Original Bills about new proposals, ideas, or policies; Amending Bills that seek to 282

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modify amend, or revise existing Acts; Consolidating Bills seek to consolidate existing law on a particular subject; Expiring Laws or Continuance Bills to continue an expiring Act; Bills to replace Ordinances; Constitutional Amendment Bills; and Money Bills.92 The last two type of bills are different from the others procedurally. Constitutional Amendment Bills must be passed by the votes of no less than two-thirds of the total membership of both the National Assembly and Senate in their separate sittings. Thereafter, it is presented to the President for assent. Money Bills are introduced and considered by the National Assembly. These Bills may be sent to the Senate for a review. When a Bill is read clause by clause, Senate recommendations may be considered. Once passed by the National Assembly, a Money Bill is submitted to the President for assent.93 Second, bills may also be classified based on who introduces them. Private Member Bills are sponsored by private members of Parliament. In order to present a technically sound bill, private members may request a ten-day leave before introducing the bill.94 Government bills are introduced by cabinet ministers from the relevant ministry.95

16.5.2  How a bill becomes law When a bill is received in the National Assembly or Senate secretariat, it is scrutinized to ensure that it conforms with various constitutional rules and procedures. If the bill meets these requirements, it is given a Bill number. All bills upon introduction are referred to the Standing Committee concerned with the subject matter of the bill.96 There is an option to dispense with this provision if the member-in-charge of the bill moves a motion requesting this.97 When a bill is received from the Standing Committee, or if the time allotted to the Standing Committee to send it back has expired, or a bill is deemed to have been received due to the suspension of Rule 122, the bill is included in the orders of the Day for consideration. The member-in-charge is empowered to move any one of the four motions: (1) the bill should be taken into consideration at once; (2) that it be taken into consideration on a later fixed date; (3) it be referred to a Standing Committee; or (4) it be circulated to elicit opinion from other members.98 Before any of these motions are made, however, if any member in the House raises the objection that the bill is repugnant to the Injunctions of Islam, the Assembly may pass a motion supported by no less than 40% of its membership to refer the objection to the Council for Islamic Ideology for advice.99 The Council for Islamic Ideology, or the Islamic Council, is a committee of persons knowledgeable in the principles and philosophy of Islam. It is appointed by the President.100 Article 227 of the Constitution stipulates that ‘a]ll existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah, in this Part referred to as the Injunctions of Islam, and no law shall be enacted which is repugnant to such Injunctions.’ The Islamic Council makes recommendations for bringing existing laws into conformity with Islamic teachings.101 If the advice of the Council is that the law is indeed repugnant to the injunctions of Islam, the member-in-charge must move to have the law reconsidered within seven days of receiving this advice. There have also been instances where the Assembly has deemed a bill’s speedy enactment to be a matter of public interest and has chosen to proceed without the advice of the Council.102 For example, the Islamic Council has repeatedly declared monetary interest un-Islamic and suggested that it be replaced with a system of profit-sharing between banks and their depositors, and by investing in businesses that are not financed by interest-based loans. 283

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However, successive governments have repeatedly deemed such advice to be impractical and have not acted upon it. A bill goes through a number of readings before it becomes and act: First Reading: The first reading is a general discussion of a bill when it comes up for consideration.103 This discussion is limited to and should not go beyond detailing the principles and general provisions of the bill. Amendments to the bill cannot be introduced at this stage. However, the member-in-charge may request that the bill be circulated to elicit opinion or that the bill be referred to a Select Committee. The Assembly is empowered to form a Select Committee and instruct it to consider the bill as a whole, or to discuss certain clauses or amendments or to make additional provisions to the bill.104 The Select Committee usually presents its report to the Assembly after concluding its deliberations. Once the discussion of the bill has concluded, a motion for consideration of the bill is put to the House. Second Reading: If the motion for consideration is adopted, the bill is read more thoroughly clause-by-clause. At this stage, amendments to the bill can now be moved.105 Each clause including any amendments, are put to the House and adopted by majority rule.106 Third Reading: After the clause-by-clause consideration of the bill, the member-incharge of the bill can move a motion that the bill be passed. At this stage, the debate is limited to arguments either in support of the bill or its rejection, without referring to any details of the bill. These ‘verbal amendments’ are considered ‘formal and consequential.’107 To pass bills other than Constitutional Amendment bills, a simple majority of members present and voting is necessary.108 The presiding officer, in this case, the Speaker, will not vote unless it is to break a deadlock. A Constitutional Amendment requires a majority of no less than two-thirds of the total membership of both Houses in their separate sittings.109 Bills become law through parliamentary votes. In parliamentary parlance, this is referred to as Division: dividing the House to decide a matter by majority vote. The Speaker of the House formulates a question on a motion to pass a bill made by the member-in-charge. Rules 276 and 277 provide for two different methods of voting in the House. The first method is a voice vote. In response to the Speaker’s question, members are invited to respond ‘aye’ if they are in favour of the bill or ‘no’ if they are against the motion. The Speaker has the discretion to determine which side is in majority and declare the result. The opinion of the Speaker may be challenged. If this happens, the Speaker will order that the lobby be cleared and after 2 minutes have lapsed ask the question again. If the decision is challenged once more, then the Speaker may decide that votes ought to be recorded by division in the manner set out in the Fifth Schedule of the Rules of Procedure in the National Assembly or by operating an automatic vote recorder.110 Once a bill has passed in one House of the Parliament, it is transmitted to the other House for agreement. The legislative process in the Senate is quite similar to that followed in the National Assembly.111 Finally, before a bill becomes an Act of Parliament (and obtains the status of law), it must receive Presidential Assent within ten days.112 With the exception of a Money Bill, a bill may be returned for reconsideration. This is usually undertaken in a joint sitting of both Houses. If the bill is passed again, with or without amendment, the President is obligated to not withhold assent.113 284

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Upon receipt of the Presidential Assent, the Parliamentary Secretary will publish the bill in the Gazette as an Official Act of Parliament. This process is known as promulgation.114

16.6 Conclusion Parliamentary democracy in Pakistan has taken almost four decades to take root since the ratification of the 1973 Constitution. Although strides have been made to strengthen the legislature, streamline the legislative process, and institutionalize procedures for oversight, there is still room for improvement. The Parliament is entering a new era in which it needs to consolidate the gains it has made during the last two democratically elected governments. But in order to steer its democratic course, ruling and opposition parties as well as non-elected bodies, such as the military, bureaucracy and judiciary, need to recognize and accept the salience of Parliament as a forum for legislation and oversight.

Notes 1 The Eighth Amendment introduced Article 58, Section 2b to the 1973 Constitution of Pakistan (hereafter ‘1973 Constitution’), which gave the President the power to dissolve the National Assembly if, in his or her opinion, ‘a situation has arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary’. 2 International Crisis Group, Parliament’s Role in Pakistan’s Democratic Transition (Asia Report 249, International Crisis Group 2013); Mohammad Waseem, ‘Dynamics of Electoral Politics in Pakistan’ in Subho Das and Suranjan Das (eds) Electoral Politics in South Asia (KP Bagchi and Company 2000). 3 Except for scholarship such as International Crisis Group (n 2); Tariq Ahmad, National Parliaments: Pakistan (Library of Congress 2017); Harihar Bhattacharya. Parliaments in South Asia (Routledge 2020). 4 The Constitution (Eighteenth Amendment) Act, 2010. 5 The Constitution (Twenty-fifth Amendment) Act, 2018. 6 1973 Constitution, art 140A. 7 ibid art 50. 8 ibid art 106. 9 Previously FATA was allocated 12 seats out of the 342 seats in the National Assembly. With the passing of the Twenty-fifth Amendment Act, FATA has been merged with KP, and consequently, the number of seats in the National Assembly have been reallocated. 10 1973 Constitution, art 52. 11 ibid art 58 s 2. 12 Alfred Stepan, ‘Federalism and Democracy: Beyond the US Model’ (1999) 10 Journal of Democracy 4, 19. 13 1973 Constitution, art 62. These characteristics were added by General Zia-ul-Haq in 1985. 14 The Eighteenth Amendment Act to the 1973 Constitution, while removing the clauses added to Article 63 under the Legal Framework Order introduced by Musharraf, has left Zia-ul-Haq’s clauses untouched. 15 Saad Rasool, ‘Distilling Eligibility and Virtue: Articles 62 and 63 of the Pakistani Constitution’ (2014) 1(1) LUMS LJ 39. See also Farahnaz Ishpahani, ‘Elections 2013: The Pakistan establishment strikes back’ First Post (6 April 2013)< https://www.firstpost.com/world/elections-2013-thepakistan-establishment-strikes-back-688647.html> accessed 21 November 2022. 16 Mariam Mufti and Mohammad Waseem, Political Parties in Pakistan: Organization and Power Structure (Asia Foundation 2012). 17 Hasan Javid and Mariam Mufti, ‘Candidate-Party Linkages: Why Do Candidates Stick with Losing Parties’ in Mariam Mufti, Niloufer Siddiqui and Sahar Shafqat (eds) Pakistan’s Political Parties: Surviving between Dictatorship and Democracy (Georgetown University Press 2020). 18 Andrei Zhirnov and Mariam Mufti, ‘Electoral Constraints on Inter-Party Mobility of Candidates: The Case of Pakistan’ (2019) 51(4) Comparative Politics 519.

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Mariam Mufti 19 Mariam Mufti, ‘Elite Recruitment and Regime Dynamics in Pakistan’ (PhD Thesis, Johns Hopkins University 2011). 20 Akbar Zaidi, ‘Elected Representatives in Pakistan: Socio-Economic Background and Awareness of Issues’ (2004) 39 Economic and Political Weekly 45, 4935, 4941. 21 1973 Constitution, art 53. 22 Rule 9(2) and Rule 10. Rules of Procedure and Conduct of Business (RPCB) in the National Assembly 2010. 23 See National Assembly of Pakistan, Handbook for Members 17. 24 Rule 14, RPCB in the National Assembly 2010. 25 Rule 9, RPCB in the Senate, 2012 (Amended till 27 January 2020). 26 1973 Constitution, arts 49(1), 49(2). 27 ibid arts 91(3), 91(4). 28 ibid art 91(7). 29 Rule 39, RPCB in the National Assembly 2010. 30 1973 Constitution, art 90. 31 Mariam Mufti, ‘Pakistan: Ministerial Turnover in the Federal Cabinet’ in Keith Dowding and Patrick Dumont (eds) The Selection of Ministers around the World (Routledge 2015). 32 1973 Constitution, art 92. 33 On August 12, 2011, the Political Parties Order (2002) was extended to FATA allowing political parties to legally operate in the tribal areas for the first time. 34 1973 Constitution, art 51 s 6a. 35 ibid art 51 s 6d. Note that this tier is based on the number of seats won and not votes, which is not how a parallel mixed member system works in the usual sense. See also Mariam Mufti and Farida Jalalzai, ‘The Importance of Gender Quotas in Patriarchal and Clientelistic Polities: The Case of Pakistan’ (2021) 42 Journal of Women, Politics and Policy 2, 107. 36 1973 Constitution, art 51 s 6e. 37 ibid art 51 s 2. 38 IDEA (Institute for Democracy and Electoral Assistance), Electoral System Design: The New International IDEA Handbook (IDEA 2005). 39 Note that PML contested the 1988 and 1990 elections as part of a PML-led alliance, Islami Jamhoori Ittehad (IJI). The dominant faction led by Nawaz Sharif ’s PML-N contested elections in 1993 and 1997. In 2002, PML-Q, a faction that split off from PML-N won the election. 2008 and 2013 elections have been contested by both PML-N and PML-Q. 40 Hasan Javid and Mariam Mufti, ‘Electoral manipulation or astute electoral strategy? Explaining the results of Pakistan’s 2018 Election’ (2020) Asian Affairs: An American Review, DOI 10.1080/00927678.2020.1855033. 41 Ijaz Shafi Gillani, A Dispassionate Analysis of How Elections are Stolen: Reflection on the Electoral History of Pakistan 1970–2008 (PILDAT 2008). 42 Gallup Pakistan. Exit Poll – Election Day Survey. Election 2008 (Gallup Pakistan 2008). 43 Bhattacharya (n 3). 4 4 Article 229, 1973 Constitution, Rule 125, RPCB in the National Assembly. 45 1973 Constitution, art 8. 46 ibid art 30. 47 Katharine Adeney, ‘A Step towards Inclusive Federalism in Pakistan? The Politics of the 18th Amendment’ (2012) 42 Publius 4, 539. 48 1973 Constitution, art 73(1). 49 ibid art 73 (1a). 50 Free and Fair Election Network (FAFEN). The Performance of the 13th National Assembly 2008–2013 (FAFEN 2014); Free and Fair Election Network (FAFEN). The Performance of the 14th National Assembly 2013–2018. (FAFEN 2018). See also National Assembly of Pakistan accessed 1 July 2021. 51 1973 Constitution, art 73(4). 52 ibid art 232. 53 ibid art 232(1). 54 ibid art 232(6). 55 ibid art 232(2a). 56 ibid art 232(5).

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The Parliament of Pakistan 5 7 ibid art 237. 58 Rule 69, RPCB National Assembly. 59 ibid Rule 70. 60 ibid Rule 109. 61 ibid Rule 117. 62 ibid Rule 91. 63 See also ibid Chapter XV. 64 See also ibid Chapter XVI. 65 FAFEN (n 50). 66 Rule 200, RPCB National Assembly. 67 ibid Rules 201, 235. 68 ibid Rule 227; RPCB Senate, Rule 165. 69 RPCB National Assembly, Rule 244. 70 ICG (n 2). 71 FAFEN (n 50). 72 ICG (n 2); FAFEN (n50). 73 1973 Constitution, arts 160(3b), 160(5). 74 Rabia Malik, ‘(A)political Constituency Development Funds: Evidence from Pakistan’ (2019) 51 British Journal of Political Science 3, 963. 75 FAFEN (n 50). 76 ibid. 77 1973 Constitution, arts 41(3), 44(1). 78 ibid art 47(8). 79 ibid arts 49(1), 49(2). 80 Mariam Mufti. ‘The Years of a Failed Democratic Transition 1988–1997’ in Roger Long (ed) The History of Pakistan (OUP 2015). 81 Waseem (n 2) 131. 82 An ordinance has the same force an effect as an act of Parliament. When promulgated it takes immediate effect for 120 days. From August 1973 to 2019, some 1774 ordinances have been promulgated by Presidents. 83 ICG (n 2) 25. 84 RPCB National Assembly, Rules 32, 35. 85 1973 Constitution, art 95. 86 ibid art 69(2). 87 ibid arts 175(9), 175(12). 88 ibid art 213(2A). 89 ibid art 213(2B). 90 ibid art 215. 91 See also National Assembly of Pakistan, Handbook for Members 73–77. 92 See National Assembly of Pakistan, Procedural Manual 25. 93 1973 Constitution, art 75. 94 RPCB National Assembly, Rule 118. 95 ibid Rule 120. 96 ibid Rule 122. 97 ibid Rule 122. 98 ibid Rule 124. 99 ibid Rule 125. 100 1973 Constitution, art 228. 101 ibid arts 230(1c), 230(1d). 102 ibid art 230(3),. 103 RPCB National Assembly, Rule 126. 104 ibid Rule 244. 105 ibid Rule 130. 106 ibid Rule 133. 107 ibid Rules 137,138. 108 1973 Constitution, art 55. 109 1973 Constitution, art 239; RPCB National Assembly, Rule 156.

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Mariam Mufti 1 10 RPCB National Assembly, Rule 277. 111 RPCB Senate, Chapter XII. 112 1973 Constitution, art 75(1). 113 ibid art 75(2). 114 RPCB National Assembly, Rule 153.

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17 THE CONGRESS OF THE PHILIPPINES Bryan Dennis G Tiojanco and Ronald Ray K San Juan

17.1 Introduction The Philippine republic is a unitary presidential democracy. All governmental authority emanates from the sovereign Filipino people whose popularly ratified 1987 Constitution vests the legislative, executive, and judicial powers separately in three co-equal departments of government.1 The legislative power, except to the extent reserved to the people, is vested in the Congress of the Philippines. Part I of this essay discusses the structure and composition of Congress; Part II discusses its powers; Part III explores the legislative process; and Part IV concludes.

17.2  Structure and composition of Congress 17.2.1  In general Congress is a bicameral body comprising a Senate and a House of Representatives.2 While either House may on its own exercise some congressional powers,3 the Constitution generally requires both Houses to act together to exercise legislative or non-legislative functions.4 The Senate’s structure and composition are constitutionally prescribed. The Senate comprises 24 senators elected nationwide, 12 at a time, every 3 years.5 A senator’s term of office is six years, and no senator may serve for more than two consecutive terms.6 The composition of the House of Representatives is fixed by law.7 At present, it comprises 299 house representatives.8 The Constitution prescribes a 4:1 ratio of district to party-list representatives. District representatives are elected from local legislative districts. Congress is constitutionally required to reapportion these districts every three years in accordance with the republican principle of equal representation (it has not diligently complied with this task; for example, Pasig City, with a population of 755,300, has only 1 district, while Marikina City, with a population of 531,128, has 2 districts).9 Each city with a population of at least 250,000 and each province is entitled to at least 1 district representative.10 As far as practicable, each district should comprise a contiguous, compact, and adjacent territory.11 The present 18th Congress has 238 district representatives elected from 243 districts (5 are deceased).12 Nine new legislative districts have been created for the 2022 national and local elections.13 DOI: 10.4324/9781003109402-19

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The remaining 61 house representatives14 (20% of house membership) are elected though the party-list system.15 House representatives are elected for three-year terms; none of them may serve more than three consecutive terms.16 The Senate elects its President by a majority vote of all its Members; the House of Representatives elects its Speaker by a similar vote.17 The Constitution allows each House to choose such other officers it deems necessary.18 The Senate, for example, has a President Pro Tempore, Secretary, and Sergeant-at-Arms who are all elected by a majority vote of all its Members.19 Similarly, the House of Representatives elects Deputy Speakers, a Secretary General, and a Sergeant-at-Arms.20 Various congressional committees assist each House.21 These committees, referred to as ‘little Congresses’ due to their outsized role in the legislative process, often determine the fate of proposed bills or resolutions and petitions. There are two main types of committees. Standing committees have jurisdiction over measures relating to the general welfare and that require continuing or comprehensive legislative attention.22 Special committees address either special or urgent measures requiring immediate legislative action, or needful measures that the standing committee concerned could not immediately undertake.23 Standing committees may create sub-committees.24 The Constitution requires Congress to convene for its regular session every year beginning on the fourth Monday of July.25 The regular session continues until 30 days before the opening of the next regular session, except on Saturdays, Sundays, and legal holidays.26 The President may call special sessions between regular sessions.27 Each House may temporarily adjourn from time to time when there is a lack of quorum 28 or for a period of three days or less;29 it needs the consent of the other to adjourn for a longer period.30 Daily sessions normally start at three o’clock on weekdays (only Mondays to Thursdays for the House).31

17.2.2  Membership and qualification A senator must be a natural-born Philippine citizen, at least 35 years old on election day, literate, a registered voter, and a Philippine resident for at least two years preceding election day.32 A house representative must be a natural-born Philippine citizen, at least 25 years old on election day, and literate.33 A district representative must also be a registered voter in the district where he is running and a resident of that district during at least the year preceding election day.34 A party-list representative must also be a registered voter, a Philippine resident during at least the year preceding election day, and a bona fide member of the party or organization he seeks to represent for at least 90 days preceding election day; a youth-sector representative must be below 30 years old on election day.35 In 2008, the Supreme Court invalidated a statutory drug-test requirement for elective public office, explaining that the ‘right of a citizen in the democratic process of election should not be defeated by unwarranted impositions of requirement not otherwise specified in the Constitution.’36

17.2.2.1  Disqualifications and other prohibitions The Constitution makes certain Members of Congress ex officio Members of constitutional bodies—viz., the Judicial and Bar Council and the Commission on Appointments.37 Outside of these, senators and House of Representatives forfeit their congressional seat by accepting any other government office or employment (this rule covers government-owned or controlled 290

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corporations or subsidiaries).38 They are also constitutionally barred from being appointed to government offices which were created or whose emoluments were increased during their term of office.39 Members of Congress are also barred from personally appearing as counsel before any court of justice or before the electoral tribunals, quasi-judicial, and other administrative bodies.40 They are also prohibited from having direct or indirect financial interests in any government contract, franchise, or special privilege entered into or granted during their term of office.41 They are also barred from intervening in any matter before any government office for their pecuniary benefit or where they could have a conflict of interest due to their congressional office.42

17.2.2.2  Parliamentary privileges While Congress is in session, the Constitution privileges its Members from arrest for all offenses punishable by not more than six years imprisonment.43 The Constitution also protects them from questioning or liability outside Congress for any speech or debate in Congress or in any of its committees.44 Forcing, intimidating, threatening, or defrauding a senator or house representative to prevent him or her from attending or otherwise participating in official meetings of Congress or constitutional commissions is a felony.45 While Congress is in session, it is also a felony to arrest or search a senator or house representative for offenses punishable by not more than six years imprisonment.46 These parliamentary privileges do not prevent either House from punishing its Members for disorderly behavior in accordance with its power to determine the rules of its proceedings.47 The Constitution limits this power in two ways: first, it requires a two-thirds supermajority of all Members from either House to suspend or expel a Member of that House; second, it prohibits penalties of suspension that exceed sixty days.48

17.2.3  How elected Since 1992, the regular election of senators and house representatives are held on the second Monday of May of every third year.49 Twelve senators are elected in every election.50 Each voter is entitled to twelve votes.51 Votes nationwide are tallied, and the twelve candidates with the highest number of aggregate nationwide votes win.52 For the election of house representatives, each voter has two votes: one for district representative and another for a party-list organization.53 A voter may vote only for a district representative in his or her district of residence.54 The candidate with the highest number of votes within the district wins the district representative seat. In the party-list system, it is the party-list organizations, not their individual nominees, that are elected from the list of organizations registered with and certified by the Philippine Commission on Elections (COMELEC).55 Votes are tallied at-large,56 and parties with at least 2% of the votes tallied are guaranteed one House seat.57 Additional seats are allocated based on the formula provided by the Supreme Court in BANAT v. COMELEC (see below).58 The constitutional right of suffrage is enjoyed by all Philippine citizens not otherwise disqualified by law who are at least eighteen years old and who have resided in the Philippines for at least one year and in the place they plan to vote for at least the six months preceding the election.59 No literacy, property, or other substantive requirement may be imposed on the exercise of suffrage.60 As a procedural requirement, a citizen must first register with the 291

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COMELEC before he or she is allowed to vote.61 In compliance with the Constitution, Congress in 2003 passed the Overseas Absentee Voting Act, which allows qualified citizens abroad who are at least 18 years old on election day to vote for the president, vice-president, senators, and party-list representatives.62

17.2.4  Multi-party system The third Philippine Republic (1946–1972) featured a formal two-party system.63 The Nacionalistas and the Liberals dominated Philippine politics during this period.64 This was displaced by an authoritarian dominant-party system during the dictatorship of President Ferdinand Marcos.65 After the restoration of democracy in 1986 and the enactment of the 1987 Constitution, the Philippines has seen the rise of many and diverse political parties. Currently, the Senate comprises Members from 10 different political parties, while in the House more than 70 political and sectoral parties are represented. Without real dominant political parties, parties form coalitions for expediency and convenience depending on the dominant political figure running for presidency at the time. For instance, in the latest 2019 Senate elections, political parties and figures joined the Hugpong ng Pagbabago coalition formed by Davao City Mayor Sara Duterte to support the remaining term of his father, President Rodrigo Roa Duterte. Due to President Duterte’s popularity, nine out of the twelve elected seats are members of this coalition.66 No candidates from the Liberal Party, the biggest opposition party, won a seat. Contrast this with the 2016 elections, when President Duterte had not yet consolidated his power, where 5 out of 12 seats were won by the Liberal Party.67 In the House, the PDP-Laban Party, the main party supporting President Duterte, won 82 out of 243 congressional district seats; the Liberal Party won only 18 seats. Members of Congress are not traditionally grouped by political parties but by blocs: majority, minority, and independents. In the House of Representatives, the majority are those Members who voted for the winning candidate for Speaker; those who did not constitute the minority. The majority elects a Majority Leader from among themselves; the minority also elect a Minority Leader.68 Any Member may request to transfer to either the majority or minority; if the Majority or Minority refuses the request, the Member becomes an independent.69 The Senate also recognizes a Majority Leader, who is second in command to the President, and a Minority Leader, who is often called a ‘shadow president.’ 70 In the 18th Congress, the Senate comprises 20 senators (83.33%) in the majority bloc and 4 (16.67%) in the minority. The House comprises 270 house representatives in the majority (89%), 28 in the minority (9%), and 6 independents and unassigned or vacant seats (2%).

17.2.5  The party-list system The party-list system was introduced by the 1987 Constitution to democratize political power by giving political parties that cannot win in legislative district elections a chance to win seats in the House.71 The Party-List System Act provides the mechanism by which party-list organizations are registered and elected based on proportional representation.

17.2.5.1  Who can participate There are three types of parties or organizations that can vie for party-list seats: national, regional, and sectoral.72 Sectoral parties represent those sectors that are either economically marginalized and underrepresented or lacking well-defined political constituencies—for 292

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example, labor, peasants, fisherfolk, urban poor, professionals, women, or youth.73 A majority of the members of these parties must belong to their identified sector, and their nominees must either belong to this sector or possess a track record of advocating for it.74 Major political parties, i.e., those that field candidates for legislative district elections, cannot participate in party-list elections except through their sectoral wings. The aim of this limitation is to nudge these parties to work assiduously in extending their constituencies to the ‘marginalized and underrepresented’ and to those who ‘lack well-defined political constituencies,’ thereby giving them a voice in Congress.75 National or regional parties under the party-list system are political parties that do not field candidates for legislative district elections. They need not be organized along sectoral lines and need not represent the ‘marginalized and underrepresented.’76 A national party has constituency that is spread over the territory of more than half of the regions. A regional party has a constituency that is spread over the territory of more than half of a region’s cities and provinces.

17.2.5.2  Registration and nomination Within 90 days before an election, a party or organization wishing to register under the party-list system must file with the COMELEC a verified petition stating its desire to participate.77 The COMELEC publishes these petitions in two newspapers of general circulation.78 Those already registered need not register anew but must file a manifestation of its desire to participate within the same period.79 The COMELEC, after due notice and hearing, may allow or refuse registration based on grounds provided for in the law.80 In a case filed by an organization representing LGBTs, the Supreme Court declared that moral disapproval alone is not a sufficient ground to justify exclusion from participation in the party-list system.81 The COMELEC prepares a certified list of the registered party-list organizations allowed to participate.82 Each registered party must then submit at least five names from which partylist representatives will be chosen if the party obtains the required number of votes.83 Failure to timely submit this list of nominees is a ground to cancel the party’s registration.84

17.2.5.3  Election and allocation of seats The voters cast votes for the party or organization, not the nominees. The law caps the number of seats to three per party-list organization and guarantees one seat each for those which garnered at least 2% of the total votes cast for party-list.85 The COMELEC follows the guidelines formulated in BANAT v. COMELEC in allocating seats for party-list representatives. First, the parties are ranked from highest to lowest based on the number of votes they garnered during the election. Second, those receiving at least 2% of the total votes cast for the party-list system are entitled to one guaranteed seat each. Third, those garnering enough votes according to the ranking are entitled to additional seats in proportion to their total number of votes until all additional seats are allocated. And fourth, each party is entitled to no more than three seats. To illustrate,86 assume that there are 220 district representatives at the time of the election. To compute the total number of required party-list seats, the following formula should be followed:87

( Number of district representatives / 0.80 ) × 0.20 = Number of party-list seats (220 / 0.80) × 0.20 = 55seats 293

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Assume further that the total number of votes casted for all party-lists is 15,950,900. The party-list organizations will then be ranked according to the total number of popular votes each garnered. Those that garnered at least 2% of the total votes cast for party-lists will each get one guaranteed seat (see Table 17.1). In this example, 17 parties garnered at least 2% of the total votes cast for the party-list. These parties are guaranteed one seat each. BANAT declared unconstitutional the 2% Table 17.1  Hypothetical Allocation of Seats Based on Votes Garnered

Rank Party 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 Total

Votes garnered

Party A 1,169,234 Party B 979,039 Party C 755,686 Party D 621,171 Party E 619,657 Party F 490,379 Party G 466,112 Party H 423,149 Party I 409,883 Party J 409,160 Party K 385,810 Party L 374,288 Party M 370,261 Party N 339,990 Party O 338,185 Party P 328,724 Party Q 321,503 Party R 310,889 Party S 300,923 Party T 245,382 Party U 235,086 Party V 228,999 Party W 228,637 Party X 218,818 Party Y 217,822 Party Z 213,058 Party AA 197,872 Party AB 196,266 Party AC 188,521 Party AD 177,028 Party AE 170,531 Party AF 169,801 Party AG 166,747 Party AH 164,980 Party AI 162,647 Party AJ 155,920

Additional seats (votes garnered in Total Votes garnered over total votes cast Guaranteed % × remaining Additional seats number available seats) in whole integer of seats for party list (%) seat 7.33 6.14 4.74 3.89 3.88 3.07 2.92 2.65 2.57 2.57 2.42 2.35 2.32 2.13 2.12 2.06 2.02 1.95 1.89 1.54 1.47 1.44 1.43 1.37 1.37 1.34 1.24 1.23 1.18 1.11 1.07 1.06 1.05 1.03 1.02 0.98

1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 17

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2.79 2.33 1.80 1.48 1.48 1.17 1.11 1.01