The Parliamentarian 2012 Issue One - Making the Commonwealth a force for good

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TheParliamentarian Journal of the Parliaments of the Commonwealth

2012 | Issue One XCIII | Price £12

TONGA: Tracing the country’s constitutional history

PAGE 44

PLUS Making the Commonwealth a common force for good – now PAGE 18

Developments in the oil and gas sector in Uganda PAGE 32

Political reform: Tonga’s consensus approach to lawmaking PAGE 40

Developing Tonga’s economy PAGE 48

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Calendar of Events

2012 April 16-21

Mid-Year Meeting of the CPA Executive Committee, Nuku'alofa, Tonga

May 2-3

WBI/CPA/Parliament of Zambia: Pilot Programme for Climate Change Resilience (PPCR), Lusaka, Zambia

2-4

Post-Election Seminar, Seychelles

7-9

COMSEC/CPA: Government and Opposition Workshop for East Africa Region, Dar es Salaam, Tanzania

11-18 (TBC) 24-30

37th Conference of the CAA Region, Kingston, Jamaica

Commonwealth Parliamentary Seminar, Samoa

June 11-18

Africa Regional Conference, Gauteng, South Africa

12-15

43rd BIM Regional CPA Conference, Edinburgh, Scotland

TBC

Parliamentary Strengthening: an Executive Programme for Parliamentary Staff, Montreal, Canada

July 15-21

50th CPA Canadian Regional Conference, Quebec, Canada

The publication of a Calendar of CPA events is a service intended to foster the exchange of views between Branches and the encouragement of new ideas. Further information may be obtained from the Branches concerned or the Secretariat. Branch Secretaries are requested to send updates of this material to the Information Officer (pirc@cpahq.org) to ensure the Calendar is full and accurate.

CPA centennial book ad:Different Ads.qxd 11/04/2012 14:56 Page 1

A CPA publication ‘The Evolution of Commonwealth Parliamentary Democracy: The CPA at 100’, is a special publication from the CPA which celebrates a hundred years of the Association.

This commemorative work features articles from prominent Members, former Parliamentarians and experts in Parliament from across the Commonwealth on topics relating to the advancement of Parliamentary Democracy and Good Governance.

Contributors include former Chairs of the Executive Committee, Hon. Dato Seri Mohd. Shafie Apdal, MP, writing on “Growing up with democracy” and Dame Billie Miller on “Expanding public involvement in Parliament and politics”.

Also included are testimonials on the value of Commonwealth inter-parliamentary co-operation and a full reference directory of all 185 CPA Branch details.

“The CPA, through its conferences and delegations throughout the Commonwealth, creates a better understanding of different countries and cultures.” Hon. Graham Gunn, Member of the House of Assembly, South Australia, 1970 to 2010.

To purchase a copy of this book or for more information on the contents please contact CPA Secretariat, Suite 700, Westminster House, 7 Millbank, London SW1P 3JA, U.K. Tel.: (+44-20) 7799-1460 Fax: (+44-20) 7222-6073 E-mail: hq.sec@cpahq.org

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CONTENTS

2012: ISSUE 1

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Journal of the Parliaments of the Commonwealth Vol. XCIII 2012: Issue One ISSN 0031-2282 Issued by the Secretariat of the Commonwealth Parliamentary Association, Suite 700, Westminster House, 7 Millbank, London SWIP 3JA, United Kingdom Tel: (+44-20) 7799-1460 Fax: (+44-20) 7222-6073 Email: hq.sec@cpahq.org www.cpahq.org Publisher: Dr William F. Shija Secretary-General Editor: Andrew Imlach Director of Communications and Research

COMMENT

MAIN ARTICLES

Inside Issues

Parliamentarians must sustain the momentum for Commonwealth reform

Reform or stability – a choice for the Commonwealth?

Page 4

View from the Chair

The role and responsibilities of the Commonwealth Parliamentary Association Page 6

View from the CWP

Making dreams come true: setting and accomplishing goals Page 8

View from the Secretary-General Youth, democracy and development Page 10

Designer and Assistant Editor: Lisa Leaño Front cover Tongan children waving the country’s flag.

Printed in: England by Warners Midlands, PLC; New Delhi by Jainco Art India, and Singapore by Times Printers Private Limited

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Rt Hon. Sir Malcolm Rifkind, MP Page 14

Making the Commonwealth a global force for good – now Sen. the Hon. Hugh Segal, CM Page 18

Self-assessment in the Isle of Man

Hon. Stephen Charles Rodan, SHK Page 22

Benchmarks for the Democratic Legislatures of the Caribbean, Americas and Atlantic Region Page 26

Developments in the oil and gas sector in Uganda Hon. Elijah Okupa, MP Page 32

Maturing democracy in the Falkland Islands Hon. Dick Sawle, MLA Page 36

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50 44

NEWS Political reform: Tonga’s consensus approach to lawmaking

A case for an early return to democratic governance

Tracing Tonga’s constitutional history

An international executive programme for parliamentary staff

Mr Sione Tekiteki Page 40

Dr Sione Vikilani Page 44

Developing Tonga’s economy Ms Seinimili Tu’i’onetoa Fonua

Page 48

Mr Douglas Parnell Page 50

Dr Rick Stapenhurst and Ms Vienna Pozer Page 52

Parliamentary news: New Zealand, Canada, Australia, United Kingdom, India, Quebec and British Columbia.

Page 59

Annual subscription (four issues) UK: £34 post free.

Worldwide: £36 surface post £42 airmail Price per issue UK: £12 Worldwide: £13 surface post £14 airmail Opinions and comments expressed in articles and reviews published in The Parliamentarian are those of the individual contributors and should not be attributed to the Secretariat of the Association.

Promoting sustainable forest management

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INSIDE ISSUES

REFORM OR STABILITY – A CHOICE FOR THE COMMONWEALTH? The Editor’s note

If, as nineteenth century British philosopher John Stuart Mill suggests, stability and reform are necessary to a healthy state of political life, just not in the same political party, then it was never going to be easy merging them in a group of about 50 political party Leaders who gathered in October 2011 to consider the report of their Eminent Persons Group (EPG), A Commonwealth of the People – Time for Urgent Reform.

Commonwealth Heads of Government meeting in Perth, Western Australia, last October agreed a reform programme based on 106 EPG recommendations to make the organization, among other things, a more relevant champion of democracy. But it was a reform programme that has so far been weighted in favour of stability. They agreed to adopt later this year a Charter of the Commonwealth, but one largely embodying the principles laid down by their predecessors at similar meetings since 1971. They agreed to strengthen the Commonwealth Ministerial Action Group, but in ways this group of Foreign Ministers was already moving.

“Unreserved” approval was given to another 30 recommendations from the EPG chaired by former Malaysian Prime Minister Tun Abdullah Ahmad Badawi and including two Parliamentarians

who write here on how Parliaments can now contribute to reform.

Twelve recommendations were agreed but subject to an assessment of the financial implications, 11 were rejected and another 43 were held awaiting further information. Prime among this latter group was the reform widely considered to be the most far-reaching: the establishment of a Commonwealth Commissioner for Democracy, the Rule of Law and Human Rights. This office could make the Commonwealth a more active and outspoken champion of its fundamental principles. It would enable the Commonwealth to investigate “serious or persistent violations of democracy, the rule of law and human rights in member states, and…indicate approaches for remedial action”. It would ensure the Commonwealth is “relevant”.

EPG members Rt Hon. Sir Malcolm Rifkind, MP, of the United Kingdom House of Commons and Sen. the Hon. Hugh Segal of the Canadian Senate each write in this issue on the Group’s recommendations, why it is important – even necessary – to bring them into force and what Parliaments should do to ensure that the balance is tipped back toward reform. The EPG said reform is vital if the Commonwealth is to make a real

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and positive difference in the lives of its people. As that goal is shared by every Parliament and Parliamentarian, parliamentary input into the reform process is necessary for the Commonwealth to achieve and maintain a healthy state of political life.

The state of political life in the Isle of Man is very healthy, albeit very different from all other Commonwealth jurisdictions. This was one of the results of the assessment of how well parliamentary democracy in the island satisfies the Commonwealth Parliamentary Association’s Benchmarks for Democratic Legislatures. The Speaker of the House of Keys, Hon. Stephen Rodan, SHK, chaired a panel of Members and distinguished nonParliamentarians to conduct the Benchmarks assessment and he writes here on the results. He notes that the Manx system predates the Westminster system and comes from different roots, demonstrating that the Benchmarks, like the parliamentary system itself, are adaptable to the diversity of practices found throughout the Commonwealth’s different communities.

We follow the Manx experience with the latest regional version of the Benchmarks. The Commonwealth Parliamentary Association’s Caribbean, Americas and Atlantic

Region sets its own standards.

The new development of a natural resource such as oil can be hugely beneficial for a country if the resulting windfall revenues are managed properly, and this is most likely to happen if Parliament is able to play its full oversight role.

Hon. Elijah Okupa, MP, a senior Member of the Parliament of Uganda, examines here the role his Parliament is playing in investigating allegations against the Prime Minister and two Ministers concerning the awarding of oil exploration and development contracts. A 2010 Commonwealth Parliamentary Association seminar with the World Bank Institute identified mishandling of such revenues as a major source of conflict in some Commonwealth and non-Commonwealth countries. Mr Okupa writes here that the Ugandan Parliament has become caught up in several challenges, including an issue related to contempt of Parliament, a conflict between the oil legislation and the Access to Information Act and the problems all Members experience when Parliament enters into a new, and in this case highly complex and technical, area of law.

Another jurisdiction trying to get a parliamentary grip on new oil development is the Falkland Islands; but Hon. Dick Sawle,

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INSIDE ISSUES

MLA, writes here on how the tiny South Atlantic British Overseas Territory is struggling with another problem far more familiar to Members everywhere: democratic reform. Some of the issues he raises are typical of those faced by small jurisdictions everywhere: What is the best system of representation? Should MPs be paid as full-time “professionals”?

Should a small House have a Chief Minister and an Opposition? But others, such as who should have the right to vote in a small society full of relative newcomers, have a distinctly Falklands character. Mr Sawle writes here in the hope that Members of other Commonwealth Assemblies will offer some insights that will help to strengthen a small democracy living in the shadow of a large and antagonistic nonCommonwealth neighbour.

The Executive Committee of the Commonwealth Parliamentary Association (CPA) meets in April 2012 in another of the Commonwealth’s small island states, Tonga in the southwest Pacific, a nation of 172 islands of which 36 are permanently

inhabited. The committee meets at a time of great sadness as the country mourns the untimely death in mid-March of King Tupou V. Not long after he was crowned in 2006, King Tupou voluntarily relinquished most of his office’s political power to the Members of a Parliament which has since undertaken an extensive democratic reform programme. It is a tribute to Tonga’s and to the late King’s commitment to democratic governance, the CPA and the Commonwealth that the meeting in Nuku’alofa is to proceed.

Hosting this important Commonwealth political meeting is a substantial task at any time for a small Parliament in a country of 100,000 people; during a period of national mourning it takes on even greater significance. To mark Tonga’s contribution to Commonwealth parliamentary democracy through the CPA, we publish here three articles on Tonga by senior parliamentary officials. First, the Clerk of the House, Mr Sione Tekiteki, explains the Tongan version of parliamentary democracy the

“Pacific way”, including parliamentary powers that would be the envy of many Commonwealth Assemblies. Dr Sione Vikilani, Clerk Assistant (Reporting), provides a history of the islands and its political development, while Ms Seinimili Tuionetoa, the Legislative Counsel, examines the country’s economic development plan and notes it is an active participant in international trade arrangements.

From a small Pacific chain of islands we move to an even smaller chain of northern Caribbean islands, the Turks and Caicos Islands, which has been under direct British administration since internal self-rule was suspended in August 2009 following findings of widespread corruption within the elected government. Mr Douglas Parnell, the new Leader of the Peoples Democratic Movement, which was in opposition at the time, has been pressing the British government to restore internal selfgovernment as soon as possible so the overseas territory has a government of local people who will ensure the continued

development of the tourism, financial and other sectors of its economy.

The Turks and Caicos has a long and chequered political history; Mr Parnell argues for a chance for islanders to move into a new era of responsible government, in all meanings of that phrase.

Finally, Dr Rick Stapenhurst will be familiar to many Members from his years with the World Bank Institute’s parliamentary strengthening programme. Now at McGill University in Montreal, Canada, Dr Stapenhurst is leading a new programme offering professional development training for parliamentary staff.

He writes in this issue that the new programme will provide a mix of face-to-face seminars and longer-term virtual mentoring so parliamentary staff have ongoing support, a mix that was recommended by a CPA-WBI study group. If stability and reform are necessary ingredients in a healthy state of political life, so must be a well-resourced and welltrained parliamentary staff.

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VIEW FROM THE CHAIR

THE ROLE AND RESPONSIBILITIES OF THE COMMONWEALTH PARLIAMENTARY ASSOCIATION temptation to withdraw diplomatic contact. We must not repeat the We Commonwealth Parliamentarians want our Association, the CPA, to mistakes of Zimbabwe and Fiji. strengthen parliamentary democracy throughout the Commonwealth. Our The feedback I have received since becoming Chairperson is that the constituents, those who elect us to our Legislatures, regardless of political CPA should and could be doing more to advise and build persuasion expect us to represent them fairly, without the capacity of Commonwealth Parliamentarians in all prejudice, to make just laws and to provide effective their responsibilities. At national or general elections in scrutiny of our executives so that those whom we many of our jurisdictions, the turnover of elected represent may live in peaceful, just and stable members can exceed 70 per cent. To enable Members to societies. undertake the three roles of a Parliamentarian requires: Even now in 2012, as recent events in the support from trained, experienced and empowered Maldives and Mali have shown, democratically elected Clerks, Secretaries and other parliamentary officials; representatives in some Commonwealth and nonproperly resourced induction programmes over a period Commonwealth countries have been hounded by of months for newly elected Parliamentarians, and officials of their state and have been abused, specifically designed follow-up programmes to explore apparently beaten up and worse. Such acts of the work of scrutiny and holding executives to account. violence and intimidation demonstrate an enormous The CPA Secretary-General and I are as one on these disregard for the electoral process by the executives issues. To deliver such programmes, the CPA needs to in such countries and a huge lack of respect for the Rt Hon. Sir Alan Haselhurst, identify and allocate funding for programmes. On CPA’s voters.

MP existing budgetary breakdown we cannot possibly find I know that I speak for all Commonwealth Chairperson of the CPA sufficient funding for programmes unless we reduce that Parliamentarians when I condemn absolutely acts of Executive Committee large slice of the CPA budget currently used to subsidize violence against our democratically elected Members’ travel to our annual Commonwealth colleagues and express outrage at the lack of esteem Parliamentary Conferences and Executive Committee meetings. in which some executives appear to hold their electorates. Ultimately, Additionally, we need to ensure that the CPA international Secretariat is attacking democratically elected Parliamentarians is tantamount to organized and properly resourced to deliver sustainable parliamentary attacking the people they represent. strengthening programmes. At present there is no programme director in These events fly in the face of the Latimer House Principles and human the organization. rights. The CPA should be a guardian of the human rights of those by A determined, motivated and qualified programmes director needs to whom we are elected. It is our duty to ensure proper and effective human be found and appointed quickly, funded from within the Secretariat’s rights legislation in our Parliaments and it is our duty to scrutinize and hold existing budget and with the capabilities to leverage funding by working in our executives to account on the proper implementation of that human partnership with others. rights legislation.

I am honoured and privileged to have been elected Chairperson in July In light of the demands of the Commonwealth Ministerial Action Group, 2011 by the CPA General Assembly. The mandate I have is to modernize there are indications that the government of the Maldives may be the CPA to deliver the programmes required to strengthen parliamentary considering its continued membership of the Commonwealth. I am hopeful democracy throughout the Commonwealth. that the Commonwealth’s newly appointed Special Envoy, Sir Donald I shall be seeking advice and approval from Executive Committee McKinnon, will be able to improve relations. What is certain is that the colleagues at our April meeting in Tonga to deliver that mandate.

Commonwealth and the CPA must continue to engage and resist any 6 | The Parliamentarian | 2012: Issue One

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VIEW FROM THE CHAIR

Street vendors sit by banana stalls in Maldives capital city, Male: The CPA should be a guardian of human rights so situations similar to what has allegedly happened in the Maldives can be prevented in the future.

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VIEW FROM THE CWP

MAKING DREAMS COME TRUE: SETTING AND ACCOMPLISHING GOALS

dad, encouraged me to join in the discussion on issues of the day with Recently events in my life have thrown me into reminiscing mode. I have grown-ups. spent the last few weeks thinking about my youth, oh so long ago, my I recall once when one of Dominica's famous court dreams back then, how I planned and hoped my life cases was going on. It was a land dispute among family would be and how thing actually unfolded. Such members. My father and his friends, among them my introspection is good for the soul and the human godfather who was a lawyer, asked my opinion. I psyche. And so I thank whatever spirit moved me to reasoned it out. My godfather agreed with me and that this very useful point in my life. I have found this was the decision handed down by the court. That was exercise very cathartic indeed, even though there are the first of many occasions I was told I would be a good a few remaining goals in my life I am yet to fulfil. lawyer. But I also bore in mind what my aunt had to say Since I am a firm believer in the maxim “experience about pretty girls not needing to study. is the best teacher”, it was necessary for me to I left for England at the age of 16, studied for a couple undergo this “self-examination” so that I could offer my of years, married at 18 and had my first two children life experiences as they relate to my goals and before I was 21. ambitions and the manner in which I think I have At that stage all goals and ambition regarding studies accomplished these in the hope that at the very least I were placed on hold. But I had to earn a living when I can teach what not to do when attempting to achieve Hon. Alix Boyd Knights MHA found myself a single mom at the ripe young age of 22. one’s goals.

Chairperson of the The first lesson for me was that life must go on, even It was American poet Carl Sandberg who said: Commonwealth Women whilst one is waiting to fulfil their goals. The second was “Nothing happen unless first we dream.” We all have Parliamentarians that there are many times ambition has to make way for dreams. We all wish for things. Some of us wish to responsibility. change our situation. For many of us our wishes I have been blessed with many talents and I have become our goals; but as a wise man once said, a goal never forgotten what someone told me years ago: Our without a plan is merely a wish. And we all know what talents are our gifts from God. How we use them are our gifts for Him. is said about wishes! If wishes were horses, beggars would ride!

During the next 15 years, while my children grew up, I ran my own It is very interesting how we formulate our goals. One does not usually cooking school and catering establishment, as well as doing dressmaking, wake up one day and decide: I want to be a doctor, an engineer, or perhaps flower arranging and cake decorating. I lived in Saint Lucia then. At some a millionaire, a pilot or a model, or businessman/woman or say “I am going point during those years, the University of the West Indies (UWI) to climb Morne Diablotin (Dominica's tallest mountain)”, or “I am going to commenced its distance learning programme for non-campus territories. retire at 60”. I would hazard a guess that most of us formulate our goals UWI has three campuses in the Caribbean, one each in Jamaica (Mona), based on an experience, a book, a movie, someone we admire or even a Barbados (Cave Hill) and Trinidad (St Augustine). The other Englishcombination of some or all of these. I was influenced by an advertisement speaking countries were deemed to be non-campus territories. The Extraput out many years ago by the American United Negro College Fund: “A Mural Department in Saint Lucia, where I then lived, offered courses in the mind is a terrible thing to waste.” social sciences. I enrolled along with about 100 other persons. Only two of I remember as a child growing up in my island of Dominica in the 1950s. us stuck it out and wrote the exams at the end of the year. I attribute my The goal of most of us girls was to grow up, maybe find a job, get married stick-to-it-iveness as being key in my development process. and have a family. By the time I got to Form 3 or 4, I expressed the desire to The following year I took two more courses. I had to drop out of the third study dietetics. My aunt wondered why – I was fairly okay looking, I should year because of pressing family commitments. get married. Only plain-looking girls needed to go away and study...that was A couple of years later, the resident tutor called to tell me that UWI was then! I was considered precocious for my age. My parents, especially my 8 | The Parliamentarian | 2012: Issue One

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VIEW FROM THE CWP

now offering law courses to non-campus territories, that she had enrolled me and that I should come to her office to sign the forms. I had hitherto never divulged, let alone discussed, my burning ambition of wanting to study law with her. Whenever I think back to that time, I cannot help but call to mind the biblical quote in Proverbs 15:22: “Without counsel, purposes are disappointed; but in the multitude of counsellors they are established.”

The resident tutor became more than just a counsellor to me, and I learned another important lesson: In one’s quest to achieve one’s ambitions, one should enlist all the help that one can find. The power of prayer and meditation are also helpful.

I went on to achieve the distinction of being the first student to complete first-year law studies in a non-campus territory. I have the added distinction of being the “poster girl” in a documentary which was made about distant learning.

By the time I made it to UWI entering direct into my second year, both my daughters were at UWI. My first was in her final year at Cave Hill and the second was at St Augustine. My mum died one week after I received my second-year exam results. I could have given up. My counsellors stepped in and urged me to continue. I did and took my eight-year-old daughter with me back to Cave Hill. She also accompanied me to Law School in Trinidad. My dad died the very week I arrived in Trinidad to start my Legal Education Programme studies (equivalent to the U.K. Bar). My last daughter sat her Common Entrance at the same time I wrote my Bar Finals. Thank God, we both did very well. My mum and dad would have been proud.

On completing my law studies, I decided to return to Dominica instead of Saint Lucia. When SHE magazine interviewed me and asked me why, I said because I perceived Saint Lucia to be a male-dominated society and I felt I would be more “at home” in the country of my birth.

Up to now I have never regretted that move but I maintain close links with many people in Saint Lucia, the land I refer to as my second home.

That is where I spent many, many happy years and where I still have so very many good and beloved friends.

I have to admit that being Speaker of the House was never one of my ambitions. But once that position was bestowed on me, I decided to be the best I could be in that very daunting and prestigious role.

I fervently believe that there is nothing like working on a new ambition or goal to give one’s life a renewed sense of purpose. As one moves closer to a long-held goal one also feels that way.

I did mention that looking over my life I have one major goal left unfulfilled. No prizes for guessing what that goal is: to lose weight, of course! That remains the ultimate challenge which I hope to overcome soon.

So my dear friends and colleagues, where does that leave you and your burning ambitions to achieve your goals?

The first thing you have to do is to clearly define your goals and keep them constantly in focus. Do not be deterred if your goals seem overambitious. Know your limits, yes, but never stop trying to exceed them.

Criticism, constructive or even otherwise, plays a huge part in assisting one to reach your goals. Heeding advice along the way also helps to make the road less rocky. We are advised in the Bible through Proverbs 15:32 that “he that refuseth instruction dispiseth his own soul; but he that heareth reproof, getteth understanding”.

Never put yourself down or permit anyone to put you down. In any event, always remember that some of the world's greatest feats were accomplished by people who it seems were not smart enough to know these feats were impossible. Life, essentially, is what we make of whatever is thrown at us.

Once you have identified your goals, and taken the first steps towards them, stride purposefully on. Ralph Waldo Emerson exhorts: “The world makes way for the man who knows where he is going.” Furthermore, if you are not sure where you are going, how will you know when you have arrived? You have to work hard and never give up.

I want to leave you here with the words of the late great Sir Winston Churchill: “Success is not final, failure is not fatal: it is the courage to continue that really counts.”

The Chairperson of the CWP (far right) with fellow delegates at the annual consultation of National Women's Machineries (NWM) meeting in New York in February.

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VIEW FROM THE SECRETARY-GENERAL

YOUTH, DEMOCRACY AND DEVELOPMENT In contemporary times, the youth make up 25 to 30 per cent of the population of many countries. They have varying needs and demands from the democratic process, ranging from education and training to employment, housing and other essential needs.

These demands can only be met in a democratic society where peace and co-operation are the keys to development. Increasingly, therefore, political activity tends to focus on making promises for youth.

The Commonwealth has long recognized that youth have to be involved in the process of strengthening democracy and in improving the living standards of the people. The process of strengthening democracy calls for even-thinking players. Families, political parties, religious leaders, artists, business people and other individuals are all expected to play their parts in improving the living standards of their

Dr William F. Shija Secretary-General of the Commonwealth Parliamentary Association

societies. However, quite often these days, parents and leaders are faced by youth who do not want to work but want to enjoy the “good life”.

In many of our societies today, child pregnancy, drug use, petty and serious crime and the like have engulfed the lives of many youths to the point of individual and societal destruction. Invariably, some of the criminal acts of youth revolve around what they think society is depriving them of. In both developed and developing societies, a good percentage of youth complain of being sidelined by politicians and therefore being left out of development.

As observed earlier, the complaints of youth range from the high costs of education to landlessness, unemployment and general economic and social marginalization. These complaints often result in political tension and violence. The good thing is that, in the

The Secretary-General’s

The Speaker of the National Assembly of Zambia, Hon. Justice Dr Patrick Matibini, SC, MP, (right) signing the visitors book, with the SecretaryGeneral looking on.

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VIEW FROM THE SECRETARY-GENERAL

course of the campaigns, the democratic process has also often provided for political renewal, many times through the electoral process. The electoral process usually brings in players who promise the population, including the youth, that if elected they would deliver the type of services that the people want to make a difference in their lives. Individuals and groups through political parties and political players make several promises to attract potential voters.

The Commonwealth should In response, the youth turn out with champion a new political great hope. culture for the youth and The post-election period, future generations. however, is never without challenges. More often than not, election promises are broken because of factors beyond the control of political parties or individual leaders, particularly Presidents, Prime Ministers, Parliamentarians or councillors.

Global financial turbulences, the rise in fuel costs, unexpected droughts, floods, hurricanes, tsunamis, human and animal health hazards can occur at any time to disrupt the expected normal economic and social process. Therefore, the promises that are made by political players should always be viewed within the context of unforeseen problems.

The disturbing factor, however, is that some political players, individually or through political parties, make and break their own promises. Although political manifestoes are not meant to be sacrosanct, I believe that political players should be faithful to their electorate and frank in their promises,

confessing to the public what they failed to deliver. This approach would reassure the population, particularly the youth, and restore confidence in a leader. The approach would also prevent voter apathy, which has been increasing in recent years in several of our member countries.

Further, besides failing to deliver on promises made during the election campaign process, which greatly discourages the people to the point of despair on development, the youth also often watch new leaders submerge themselves in unethical conduct and corruption.

In view of the current trend in politics and development in the Commonwealth and beyond, I suggest the Commonwealth should champion a new political culture for the youth and future generations.

The new political culture should be based on truth, ethics and equity.

For our youth to inherit useful democracy and development, our elections, accountability and human relations should truly demonstrate transparency and equality.

I also suggest that the education curricula in Commonwealth countries should be revisited to provide for training in ethics and leadership. In an environment of a highly consumer global society, and yet with increased poverty, our youth need to be trained to acquire ethical leadership skills that are devoid of selfishness and corruption. This should be our contribution and service to the youth we currently have and those who will come in the future.

Commonwealth gallery The group of young Commonwealth Day 2012 participants pictured with Dr William F. Shija (bottom row; centre) and the directors from CPA Headquarters, Mr Andrew Imlach (bottom row; left) and Mr David Broom (bottom row; right) .

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VIEW FROM THE SECRETARY-GENERAL

The Secretary-General’s

Above: Mr Shem Baldeosingh (right) left his position as Assistant Director of Communications and Research at the CPA in January to become a full-time advisor to the Prime Minister of Trinidad and Tobago.

The Secretary-General (left) with CPA Executive Committee Member Mr Hugh Bayley, MP, of the United Kingdom.

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Sen. the Hon Timothy Hamel-Smith, President of the Senate, (right) and the Speaker of the House, Hon. Mark Wade, MP, (left) of Trinidad and Tobago with Dr William F. Shija during a visit to CPA in March.

Dr William F. Shija with Ms Julia Keutgen (right) from the United Nations Development Programme.

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VIEW FROM THE SECRETARY-GENERAL

Commonwealth gallery

Above: Former Chairperson of the of CPA Executive Committee, Sir Colin Shepherd, (left) with the current Chairperson, Rt Hon. Sir Alan Haselhurst, MP, (centre) and the Secretary-General (right) in February; Below: Ms Kate Hoey, MP, speaks about being a United Kingdom MP to participants on Commonwealth Day in March.

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STRENGTH OF THE COMMONWEALTH

PARLIAMENTARIANS MUST SUSTAIN THE MOMENTUM FOR COMMONWEALTH REFORM An action plan so Parliamentarians can press their governments to stand up for the Commonwealth’s democratic values is proposed by the United Kingdom Parliamentarian on the Eminent Persons Group which examined the reform of the Commonwealth.

Rt Hon. Sir Malcolm Rifkind, MP, in London Sir Malcolm is a Conservative Member of the United Kingdom House of Commons who has held several Front Bench posts, including serving as Secretary of State for Foreign and Commonwealth Affairs from 1995 to 1997. He was a member of the Commonwealth Eminent Persons Group. A Member of the House of Commons from 1974 to 1997 and then again from 2005 to date, he currently chairs the Intelligence and Security Committee.

Even the most ardent supporters of the Commonwealth, of whom I am one, would acknowledge that a regrettable sense of drift and malaise has begun to set in. Few initiatives have been pioneered in recent years, and the size of the Commonwealth’s Secretariat remains miniscule in comparison to that of other organizations. Most damaging of all, there has been a noticeable deviation from the values-based focus for which the Commonwealth has long been known. Military overthrows in Pakistan and the 2006 coup d’état in Fiji all resulted in a suspension of membership. Yet little has been done to ensure that freedoms are not eroded in a less dramatic fashion.

For instance, the Commonwealth was tragically silent in the face of reports detailing major human rights abuses in Sri Lanka throughout 2009. Whatever the rights and

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wrongs of that conflict, the paltry response was a far cry from the role played by the Commonwealth in denouncing apartheid. The most recent Commonwealth Heads of Government Meeting (CHOGM) in Perth, Australia, was a case in point. Such a summit during the anti-apartheid struggles would have been an event of world importance. On this occasion, only the most interested of observers took a great deal of notice.

Members of Parliament in other Commonwealth countries will no doubt recognize this sad state of affairs.

Standing up for Commonwealth values It need not be this way. After all, the Commonwealth has tremendous potential. The opportunities within a bloc containing two billion people from over 50 countries are limitless, and far more could be done to strengthen trade

Rt Hon. Sir Malcolm Rifkind, MP relationships and cultural exchange. However, the organization must rediscover its unique role in promoting the rule of law and democratic values before such benefits can be realized. That was the central conclusion of the Eminent Persons Group (EPG), a commission of which I was a member and which was chaired by former Malaysian Prime Minister Tun Abdullah Ahmad Badawi.

The EPG made three

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recommendations aimed at arresting the declining adherence to the values that underpin the Commonwealth. Primarily, we urged Heads of Government to agree to the appointment of a Commissioner for the Rule of Law, Democracy, and Human Rights.

Such a figure would provide independent assessments of human rights violations to both the Secretary-General and the Commonwealth Ministerial Action Group (CMAG). Investigating such violations in detail has proven to be too onerous a task for the Secretariat and too sensitive an undertaking for the SecretaryGeneral. Establishing a designated office and appointing a person of reputation and stature to lead it would resolve these problems once and for all.

Likewise, the EPG’s members also encouraged a greater mandate for the SecretaryGeneral, requiring him to draw

attention to serious and persistent violations of human rights and not just intervene when democratic governments are overthrown.

Incumbent Secretaries-General often cite a limited mandate as their reason for pursuing private diplomacy. While this “good offices” role has great value, SecretariesGeneral ought to speak out when constitutional protections are in danger of being undermined. For them to do so, the obligation to call attention to major shortcomings in a member state must be an explicit responsibility.

Lastly, the EPG concluded that the Ministerial Action Group itself was in serious need of reform, in order to transform it from a purely punitive body into one that works with at-risk countries. By adopting a range of responses on a caseby-case basis, rather than maintaining the “all or nothing” reliance on membership suspensions, CMAG can ensure

that violations of Commonwealth principles are averted not just punished.

Faltering steps toward reform All of these recommendations were presented to Heads of Government in person, at the Perth CHOGM. What then, was agreed?

As is so often the case at conferences of this kind, the results were mixed.

Although discussion of the Commissioner dominated many of the exchanges, it proved impossible to garner support from those countries concerned about intervention in their internal affairs.

Accordingly, the Secretary-General and CMAG were tasked to give further consideration to the proposed Commissioner for Democracy, the Rule of Law and Human Rights, and to report back to Foreign Ministers at their September 2012 meeting in New

Sculptures in Cape Town of prominent figures who fought against apartheid in South Africa, including Chief Albert Luthuli and Nelson Mandela.

CHOGM in Perth in 2011 attracted far less international attention than Commonwealth summits when the organization occupied a leading role in the anti-apartheid struggle in South Africa.

York. Heads of Government also agreed to CMAG proposals that were very similar to the EPG’s, which will give the body increased flexibility to work with at-risk countries at an early stage, rather than waiting until it is too late. The adoption of CMAG’s own proposals would also equip the Secretary-General with a broader mandate to draw attention to violations of the fundamental human rights.

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Commonwealth Parliamentarians should not consider these developments to be a final outcome, but the beginning of a process that brings about much-needed reform. While agreement on some of the EPG’s core recommendations has been reached, there is a danger that efforts to bring about reform will falter in the face of institutional lethargy. Symptomatic of this problem was the failure to publish the Eminent Persons Group’s report and recommendations ahead of the Heads of Government Meeting. So while some positive steps have been taken, further progress will be slow and may stall altogether without continual prodding from interested groups.

An action plan for Parliamentarians What more can be done to reaffirm the Commonwealth’s core principals? Parliamentarians from Commonwealth countries have a unique role to play. While they may not be in a position to set government policy, they can act as conduits for public opinion. The EPG’s proposals represented the collective will of Commonwealth citizens and Commonwealth voluntary organizations, both of

which provided an overwhelming endorsement of our report in public and privately. Many of them will have been disappointed that the EPG’s proposals were not implemented in their entirety and will look to Commonwealth Parliamentarians to voice their views.

Four specific steps could be taken in this regard. Primarily, legislators should move to raise awareness of the EPG’s recommendations within their own

countries. Too few are aware that attempts to strengthen adherence to agreed Commonwealth principles forms part of a broader attempt to re-launch the organization as a “Commonwealth of the People”. Ending the limited notion of the Commonwealth as a collection of member states has great appeal amongst Commonwealth citizens. It offers a positive vision of the organization that is attractive to younger people.

In addition, Parliamentarians

“Parliamentarians from Commonwealth countries have a unique role to play. While they may not be in a position to set government policy, they can act as conduits for public opinion.”

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should closely monitor the effectiveness of the reforms that have been agreed. They should regularly request information about CMAG’s efforts to working with “at risk” countries and keep a close eye on the Secretary-General’s use of his new mandate to speak out against serious and persistent violations of agreed principles.

Above all, legislators from Commonwealth countries should press Foreign Ministers to look again at the merits of a Commissioner for Democracy, the Rule of Law and Human Rights.

There can be no doubt that this is an idea whose time has come.

Indeed, a Commonwealth Commissioner on Human Rights was first proposed by Gambia in 1977. As was agreed at CHOGM,

Foreign Ministers will be examining this issue again in September. The next six months should afford plenty of opportunities to persuade them of the idea’s merits.

Lastly, every possible step should be taken to keep rule of law issues on the agenda in the run-up to the next CHOGM. There will be understandable pressure to avoid discussion of such themes, given the sensitivities associated with gathering in Sri Lanka. Yet to do so would be a grave mistake. The Eminent Persons Group had a healthy debate about the nature and contents of its final report; but it was unanimous in its conclusion that the status quo is untenable.

Parliamentary pressure Human rights and rule of law

issues were by no means our only suggestions. The EPG recommended the creation of a Commonwealth Charter, which would codify the Commonwealth’s values within a single document for the first time. This would help connect the organization with a younger generation who find it harder to identify with the institution than do their parents.

Additional proposals to improve the Commonwealth’s role in aid, trade and development will increase the benefits gained from membership.

However, these proposals were relatively straightforward and were largely endorsed at last year’s Heads of Government Meeting. It is the EPG’s recommendations concerning democracy and the rule of law that continue to

Left: The agreement of Heads of Government to appoint a Commissioner for the Rule of Law, Democracy and Human Rights is a primary recommendation of the Eminent Persons Group.

Above: The size of the Commonwealth bloc strengthens its potential. encounter the most resistance and which require the most support from Commonwealth Parliamentarians.

The Eminent Persons Group diagnosed the challenges facing the Commonwealth and identified the remedies. It is now up to Commonwealth governments to act. Parliamentarians should pressure them to do so.

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MAKING THE COMMONWEALTH A GLOBAL FORCE FOR GOOD – NOW The Commonwealth must act now to become an effective network to advance democracy, development and respect for human rights and the rule of law by standing up for its principles, says the Canadian Parliamentarian on the Eminent Persons Group which reviewed the future of the Commonwealth.

Sen. the Hon. Hugh Segal, CM, in Ottawa.

Sen. Segal was a member of the Commonwealth Eminent Persons Group on the reform of the institution and is Canada’s Special Envoy for Commonwealth Renewal. He was appointed to the Canadian Senate in 2005 for the Conservative Party after four decades of public service including serving as Chief of Staff to the Prime Minister of Canada. He is a Member and former Chairperson of the Senate Foreign Affairs and International Trade Committee.

In 2009, the Commonwealth Heads of Governments met in Port-of-Spain for their regular biannual meeting, CHOGM. On the agenda was the discussion of how to move the Commonwealth forward, how to make the organization more relevant and how to have it adapt to the 21st century. It was at this meeting that the Eminent Persons Group (EPG) was mandated by CHOGM “to undertake an examination of options for reform”.

Heads did so because, as was stated in the Affirmation issued in 2009, they were “resolved to make the Commonwealth an even stronger and more effective international organization as (they) look ahead to the rest of the 21st Century”. The challenge recognized in that moment was that the Commonwealth was in serious danger of losing all relevance.

As the Canadian member of the Eminent Persons Group, I signed and vigorously supported all 106 recommendations submitted

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to the next Commonwealth Heads of Government 2011 meeting in Perth last October.

Over 18 months and five meetings, this 10-member Group studied more than 300 submissions, heard from dozens of witnesses together and in our own countries, debated, discussed and sometimes argued the way forward for the Commonwealth.

We were from different faiths, backgrounds, generations, races, professions, geographies and cultures. But in the end, every word of “A Commonwealth of the People: Time for Urgent Reform” was agreed to unanimously.

The diversity around the table spoke to the diversity of the Commonwealth itself and each and every recommendation was thought out and included because we believed it would make the Commonwealth a more relevant organization for the 21st century.

The fear of irrelevance discussed in 2009 in Port-of-Spain was central to the deliberations and debates of the EPG. What we

Sen. the Hon. Hugh Segal, CM

sought was the renewed capacity for the organization to be influential in the global community.

Which is why, in the Concluding Remarks of our Report, the EPG stated: “Now is the time for the Perth CHOGM to authorize the urgent reform this report recommends….There may not be another chance to renew, reinvigorate and revitalize the Commonwealth to make it relevant to its times and people in the future.”

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Engaging the spirit and power of the Commonwealth Around the world, incivility, poverty, genocidal risk, forced marriage, oppression or discrimination are still too much with us. While many Commonwealth countries do better on these fronts than others and have made great strides, there remains work to be done. If we are, as a non-military, voluntary association of 54 states embracing 2.1 billion human beings in the world, to be true to the spirit and purport of Commonwealth core values, we must be true to that

spirit and be a constructive, cooperative, tolerant and engaged force for good in the world.

Beyond some of the excellent work on apartheid, democracy promotion, protection of rights and small states, development and education, there remains much to be done. That is the task ahead and the challenge leaders in Perth took positive steps to address. But much work is left on those 55 recommendations that were either approved in principle pending detailed costing and those requiring further study as determined at the Perth meeting.

The United Nations, as a deliberative body, is where one goes when the dead are already piled like cordwood in the morgues or the streets, or when one country’s tanks have rolled over the border into the sovereign territory of another. And because of the P5 Veto, the Security Council is often impotent and unable to engage.

The Commonwealth has the largest reach, remit and geography in the world and its main and central purpose is to prevent, wherever possible, bad things from happening. As an international and intergovernmental organization of

Promoting democracy: women holding up National Identity Cards to cast their vote in Karachi, Pakistan.

sovereign states in voluntary association, this remit is unique and compelling. The reason Canada and many other countries were so enthusiastic about the Eminent Persons Group Report submitted under the distinguished Chairmanship of Tun Abdullah Ahmad Badawi, the former Prime Minister of Malaysia, is because its recommendations were about –

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and only about – strengthening the real ability on the ground in 54 member countries and in the Secretariat at Marlborough House in London, to do this job well in the future: to address the changes necessary to do so, strengthen the operations essential to this goal and afford the Secretary-General the tools he or she needs to do the job.

A Commonwealth Charter The most compelling prospects for the Commonwealth are about a dynamic meaning for the values of civility that underline the Commonwealth experience. That civility embraces, as Commonwealth leaders have proclaimed on many occasions, the rule of law, democracy, human rights and economic opportunities for all Commonwealth citizens.

Long ago, before it was a fashionable axiom of international development, the Commonwealth proclaimed that development

required democracy to hold governments accountable and democracy required development if people were to have the chance to build lives and societies of civility and opportunity.

A constructively preventive role among sovereign fellow members of a voluntary association with our Commonwealth values and traditions has never mattered more. The proposed Commonwealth Charter, which would encapsulate all the brave declarations made by CHOGM meetings in the 1971 Singapore Declaration, the 1991 Harare Declaration and the 2003 Commonwealth [Latimer House] Principles on the Three Branches of Government, has now been sent to the member states for consultation and discussion.

Canada’s Standing Senate Committee on Foreign Affairs and International Trade has sought and received a reference from the Senate to conduct consultations in

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Canada which started in February.

Sen. the Hon. Raynell Andreychuk, the Committee Chair, herself a former High Commissioner for Canada to Kenya and Uganda, is to be congratulated for this initiative.

Such public consultation would also serve to renew and invigorate interest in, and commitment to, the Commonwealth. It would source the values and aspirations in the will of the peoples of the Commonwealth – something that has not happened with any previous declaration.

For Canada and many of our Commonwealth colleagues, human rights are neither divisible nor geographically eligible for dilution. The right to be a Muslim in Canada is inviolate, as should be the right to be Christian in Pakistan, or Jewish in South Africa or agnostic in Barbados.

The right of people who are infected with HIV/AIDS in Commonwealth Africa to rapid and life-saving treatment cannot be

tenuous because of dated laws that criminalize homosexuality – thereby creating huge risks to selfidentification for those who need treatment. Some have suggested that human rights and the idea of a Commissioner is a new form of old style imperialism. Let me suggest that still enforcing anti-homosexual laws, that in many Commonwealth countries are themselves ancient colonial remnants of other centuries, is a kind of retroactive imperialism of the worst kind. I know of no religious text anywhere in the world that says people whose illness and death could be prevented by timely treatment should be allowed to die. That is not a Commonwealth value, a Muslim, Hindu, Jewish, Buddhist, Sikh or Christian value. Nor should the Commonwealth, as a valuesbased, free association of sovereign states, by silence or inaction, allow human beings to die unnecessarily. That stance would be neither diplomatic nor

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The gay pride flag (left) and a shanty town (right): discrimination and poverty are issues the Commonwealth must address. pragmatic. It would be cruel and inhumane if not insensitive and cowardly.

Every country sets its own laws and makes it own choices. The Commonwealth cannot legislate, nor should it. But it can advocate, promote and advance a view and policy goal against forced marriage, against racism and oppression and against destructive homophobia.

Strong Commonwealth voices Canada was delighted when Heads approved the EPG recommendation number 18 that proclaimed critical declarations made at previous CHOGM meetings on democracy, human rights, development and trade as

"fundamental Commonwealth values" upon which the SecretaryGeneral should be free to speak out without prior consultation. That recommendation was the subject of much discussion at the EPG meeting in Kuala Lumpur in February 2011. The press release after the Malaysian deliberations was entitled "Silence is not an Option" for good reason.

The most contentious of all EPG Recommendations was no doubt the proposal for a Commissioner of Democracy, the Rule of Law and Human Rights.

The Commonwealth Ministerial Action Group (CMAG), which has a rotating membership and chair and no UN-style "permanent five", is really the body that decides on sanctions, other options and good offices assistance to Commonwealth member states in a way that respects the sovereignty of all member states, while protecting the core values of rule of law, democracy and human rights. CMAG's role, along with the Secretary-General, in deploying the proposed Commissioner or High Representative would not be diminished by the proposed new officer in any way.

Nor is the role diminished of the Commonwealth Committee of the Whole or the de facto Board of Directors (made up of High Commissioners in London) in sorting through operational budget decisions based on advice from the Secretary-General and his or her staff.

There is a way forward on this proposal and it is important that we do not let exaggerated fears about this new official, or unjustified angst about a more engaged Secretariat, block that road.

End the dithering There were far more than merely the two recommendations (Charter and Commissioner) that took up so much discussion time in Perth. Many of the 104 remaining recommendations were addressed specifically to and for the small and

less economically wealthy members of the Commonwealth.

These included: • •

•

•

•

Reform of the Commonwealth institutions; Critical development issues such as the overwhelming debt of small states and how to deal with it; Reform of the criteria of the international financial institutions for “graduating” middle-income developing countries from concessionary financing; The threats of climate change to the existence of small island states, and The creation of strategic partnerships to make the Commonwealth effective in delivering benefits to its people.

For those EPG recommendations approved in Perth, we need implementation plans that are granular, detailed and moving ahead as soon as possible.

For those 12 in the costing mode, we need numbers that are reasonable and agreed-to by the Task Force established for that purpose and scheduled to meet early this year.

And for the 43 where more detail is required, we must guard against the long grass of pusillanimous dithering, surely the greatest existential threat the Commonwealth faces.

Too many of our Commonwealth brothers and sisters live in poverty, too much trade opportunity is lost, too many rights and freedoms are, in some Commonwealth countries, undefended.

“Urgent reform is imperative” CHOGM 2011 was a watershed moment for the future of the Commonwealth. I know Canada’s Prime Minister Rt Hon. Steven Harper worked very hard toward

the approval of important EPG recommendations. The determination of our Foreign Minister, Hon. John Baird, to broach a focused discussion on human rights should be seen as a clear statement of Canada's deep commitment to religious freedom, human rights and the rule of law.

Commonwealth values, the protection and support for human rights and for democracy and rule of law, the voluntary consensusbased association of 54 nations encompassing 2.1 billion people and the equal voices of the populous and powerful as well as the small and economically struggling nations are an example for the world and should be embraced as such.

On human rights, the rule of law and democracy the Commonwealth is, can and should continue to be a compelling force for good. This is no time for it to stand down or stand aside. It is time, in an informed and collegial way, to take the Perth recommendations and forge ahead, in a mutually respectful way and in our common spirit, toward the next vital steps.

In the EPG Executive Summary, members stated: “In an era of changing economic circumstances and uncertainty, new trade and economic patterns, unprecedented threats to peace and security, and a surge in popular demands for democracy, human rights and broadened economic opportunities, the potential of the Commonwealth – as a compelling force for good and as an effective network for cooperation and for promoting development – is unparalleled. For that potential to be achieved giving economic, social and political benefit to its 2.1 billion citizens, urgent reform is imperative for the Commonwealth.”

Those words were true when the report was completed in July 2011. They are still very true and relevant today.

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SELF-ASSESSMENT IN THE ISLE OF MAN The Isle of Man’s ancient Parliament applies the Commonwealth Parliamentary Association’s Benchmarks to its system which predates Westminster. The Speaker of the lower Chamber, the House of Keys, reports on the results.

Hon. Stephen Charles Rodan, SHK, in Douglas.

Mr Rodan has been the Speaker of the House of Keys in the Isle of Man since 2006, having been a Member of the House since 1995. He is also the Deputy President of Tynwald. Mr Rodan is a pharmacist

In 2009 the Executive Committee of the Isle of Man Branch of the CPA considered a letter from the Secretary-General of the CPA inviting branches to consider undertaking a form of internal selfassessment against a set of Benchmarks for Democratic Legislatures which originally had been developed by a study group of CPA Parliamentarians. An article from The Parliamentarian about the self-assessment carried out by the Legislative Assembly of the Australian Capital Territory encouraged the branch Committee to set up a similar self-assessment project.

The Executive Committee appointed a panel as a working group to prepare a report. It bore in mind the proposal in the Secretary General's letter that the exercise might usefully involve nonparliamentary participants. The appointees were experienced Parliamentarians, an academic

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• Professor Gerald Watts (the then Director of the Isle of Man International Business School); and • Mr Fred Kissack OBE (former Chief Secretary).

Hon. Stephen Charles Rodan, SHK with an interest in business procedures and a retired civil servant. The panel members included: • Hon. Steve Rodan SHK (Speaker of the House of Keys and Chairman of the Panel); • Hon. Noel Q Cringle OBE MLC (the then President of Tynwald); • Hon. Tony Brown MHK, the then Chief Minister;

The Clerk of Tynwald participated as Branch Secretary and as a source of technical advice.

The panel met four times between 8 Nov 2010 and 7 March 2011. It reported to the branch in March 2011.

The panel felt that the CPA Recommended Benchmarks for Democratic Legislatures had been drafted assuming, as a model, a bicameral or unicameral parliamentary system with Parliamentarians generally being members of political parties and the government being formed from elected members of the majority party or from a coalition of parties.

The general assumption behind the benchmarks was that the

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Castletown Harbour in the Isle of Man.

Parliament would be a Westminster style Parliament, possibly with modifications. The Isle of Man political system, which has Norse origins going back over 1000 years, does not conform to this model.

Unusually for a Commonwealth Parliament, Tynwald’s origins are entirely free of Westminster influence, although modern Westminster practice is often followed. Tynwald consists of three chambers, each with its own functions and responsibilities – Tynwald Court and its two legislative branches, the House of Keys and the Legislative Council.

The Members of the House of Keys, which is popularly elected, are almost all non-partisan Members. There is no such thing as a "Government" party or, indeed, an "Official Opposition". In practice each vote is a free vote and the government must secure approval to its measures by persuasion on a

case by case basis. There are no formal arrangements for dealing with partisan groups or parties within Tynwald. The government does not control the Order Paper for any of the Chambers. All Members are entitled to put down motions for debate, or amendments to Bills, at any time.

They may also seek their colleagues’ approval to introduce a Bill in the House of Keys or Legislative Council. There are no formal time limits on speaking and Members are entitled to expect that any matters which they put down for debate will be taken at the appropriate time and given as much time as necessary. Any business not dealt with by the time that any Chamber rises is deferred until the following sitting.

Individual members have considerable scope and freedom in performing their parliamentary duties and, collectively, they exercise a largely unfettered

authority. The parliamentary budget, the remuneration of members and the level of their facilities and support are determined by the legislators themselves, acting independently.

Alongside their parliamentary responsibilities almost all Members of Tynwald have government responsibilities (there are nine ministers, a Chief Minister, department members and statutory board appointments) and yet they exercise considerable freedom in criticising and voting against government proposals.

Other than the Public Accounts Committee, there are Policy Review Committees of Tynwald which provide a routine oversight of the work of the Executive (this system has altered since the Report was written). In addition there is the facility for Members individually to engage in scrutiny, and Select Committees are appointed to review aspects of the

Executive’s performance as and when Tynwald considers that to be appropriate.

One of the main benefits of keeping to the benchmarks is that the collective experience of the Commonwealth can be better compared. So even though the Panel recognized the obvious difficulties in applying some of the assumptions to the Isle of Man it used the framework provided and inserted comments where applicable.

The report followed the model pursued by the Australian Capital Territory closely but includes an introduction which sets out the main elements of the Manx parliamentary system. This is followed by the benchmarks against which the panel judged that the Isle of Man parliamentary system had: • •

C- complied; P- partially complied;

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• •

N- not complied; or N/A – were not applicable.

Explanations of the assessments are given where it is thought to be of assistance. The full text of the report can be found on the Tynwald website at http://extranet.tynwald.org.im/cpa Despite the differences between Tynwald and the Westminster system, the Isle of Man system of government complies with most of the benchmarks. The structure and organization of Tynwald and its branches mean that parliamentary control of the Executive is very strong. Although the Legislative Council is not popularly elected, its Members are elected by Members of the Keys, who are all popularly elected. Voting rules in Tynwald and the branches mean that the House of Keys can override the Legislative Council, both in relation to legislation and financial or policy motions. Legislative Council can delay a proposal but cannot veto one finally. The absence of rules governing time for debate and the fact that almost all Members sit as independent Members means that parliamentary control over the Executive on the Isle of Man is considerable.

However, in line with other jurisdictions, the continuing status of the Legislative Council as not directly elected remains under question.

Benchmarks There were some areas of "Partial Achievement", which are set out below, next to the relevant benchmark with comments.

1. “Members of the popularly elected or only House shall be elected by direct universal and equal suffrage in a free and secret ballot”. On the Isle of Man, largely for historical reasons, constituencies elect variously one, two or three Members and voters have as many votes as there are Members elected for their

constituency. There is not therefore equal suffrage. This element of the Manx political system has long been debated and, as many readers will instantly recognize, there is never an easy solution to designing a new system of elections. The essential principle that every inhabitant of the island should have the right to vote in a free and secret ballot is, of course, well established. In fact the Isle of Man is one of the first jurisdictions in the world to give 16-year-olds the vote. It is also the first jurisdiction in the world to give (at least some) women the vote in national elections (in 1881).

Possibly it is no coincidence that Mrs Pankhurst's mother came from the Isle of Man! 2. “A legislator may not simultaneously serve in the judicial branch or as a civil servant of the executive branch”. The only query in relation to this benchmark is the position of the Attorney General.

He is a member of the Legislative Council and is in part a servant of the Executive in that he takes instructions from the Executive branch in the preparation and drafting of legislation. However he is not a civil servant and in Legislative Council and Tynwald he has no vote and may thus be seen as an advisor rather than a legislator.

3. “In bicameral systems, only a popularly elected House shall have the power to bring down government”. The vote to remove the Council of Ministers is taken in Tynwald and this includes Legislative Council Members, who are indirectly elected as they are elected by the House of Keys.

4. “There shall be an independent, non-partisan supreme or national audit office whose reports are tabled in the Legislature in a timely manner”.

The Tynwald Auditor General Act 2011 will, when implemented, ensure full compliance.

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5. “Legislatures shall require legislators to fully and publicly disclose their financial assets and business interests”. The Register of Members’ Interest Rules can be found on the Tynwald website at http://www.tynwald.org.im/papers /standing/mir.pdf These do not require the disclosure of all financial assets.

As has been explained above, quite a few of the principles fell into the category of "Not Applicable": 6. “Special measures to encourage the political participation of marginalized groups shall be narrowly drawn to accomplish precisely defined, and time-limited, objectives”. In the

absence of a party system and there being no requirement for a deposit, political participation is very easy. Therefore there is no requirement for special measures.

7. “In a bicameral Legislature, a legislator may not be a Member of both Houses”. The Legislature is tricameral; no Member serves in both Branches but all serve in one of the Branches and Tynwald.

8. “Provisions for the executive branch to convene a special session of the Legislature shall be clearly specified”. There are no special provisions for the executive branch to convene a special session of the Legislature.

However, Members may ask for a special session.

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Despite the differences between Tynwald and the Westminster system, the Isle of Man system of government complies with most of the CPA Benchmarks.

9. “The Legislature’s assignment of committee Members on each committee shall include both majority and minority party Members and reflect the political composition of the Legislature”.

The legislature of the Isle of Man does not operate within a party political system.

10. “Votes of committee shall be in public. Any exceptions shall be clearly defined and provided for in the rules of procedure”. Tynwald committees do not vote in public.

The final report including any recommendations is only published when the committee is agreed or, if not, a memorandum of dissent is attached. The report and recommendation are then voted on

by Tynwald Members in public. A

committee’s evidence hearings are in public, unless there is a good reason to make an exception (for reasons of confidentiality, for example).

11. “There shall be a presumption that the Legislature will refer legislation to a committee, and any exceptions must be transparent, narrowly-defined, and extraordinary in nature”. Legislation is examined in debate by both Branches as a whole rather than by Committees of the Branches. A legislative issue may be referred to a committee but this tends to be the exception rather than the rule.

12. “Committees shall have the power to summon persons, papers and records, and this power shall

extend to witnesses and evidence from the executive branch, including officials”. Council of Ministers papers may be withheld, as confidentiality in government is necessary.

13. “Any restrictions on the legality of political parties shall be narrowly drawn in law and shall be consistent with the International Covenant on Civil and Political Rights”. There are no restrictions, so this is a “Compliance”, but because of the lack of a developed partisan structure it is clearer to register this as a “Not Applicable”.

14. “Criteria for the formation of parliamentary party groups, and their rights and responsibilities in the Legislature, shall be clearly stated in the rules”; “The Legislature shall provide adequate resources and facilities for party groups pursuant to a clear and transparent formula that does not unduly advantage the majority party”; and “The Legislature shall draw and maintain a clear distinction between partisan and non-partisan staff”. There is no recognised party system in the Isle of Man. Parties exist and members of parties have been returned as Members of Tynwald, but always on an individual basis. There are no rules either giving rights to parties protecting their interests or restricting them. No partisan staff are employed.

15. “A chamber where a majority of Members are not directly or indirectly elected may not indefinitely deny or reject a money bill”. “The Legislature shall have the right to override an executive veto”.

“The oversight authority of the Legislature shall include meaningful oversight of the military security and intelligence services”.

The concept of money bills does not exist in the Isle of Man, there is no executive veto and responsibility for military security and intelligence services lies with the United Kingdom.

16. “The Legislature shall have a reasonable period of time in which to review the proposed national budget”. Members receive national budget information approximately a week before the budget debate.

This is not as far in advance as set out in the OECD Best Practices for Budget Transparency, 2001 but the Isle of Man has a small budget and the existing practice is accepted by the Legislature. It may also be worth noting in this context that by law the budget must balance, so there are no considerations about Public Sector borrowing as there would be in most other jurisdictions.

Perhaps the main area of controversy where the Island might be advised to re-consider its arrangements lies in the area of budgetary scrutiny. In February each year the annual Budget is presented to Tynwald and debate and vote take place on the day the Budget is moved. Privately, Members of Tynwald are given an advance briefing with sight of the Budget papers approximately one week before the Budget sitting.

Throughout the review process the Panel kept within the framework provided by the Benchmarks recognising that this provides a basis for comparison across the Commonwealth. Where it was clear to the Panel that the benchmark could not be applied to the Isle of Man because of the unique nature of the Manx political background, with a tricameral Parliament, for the most part elected Members with no partisan affiliation and certainly with no party of government, the reasons were noted.

The process was a very useful exercise in self examination and we unhesitatingly recommend it to other jurisdictions.

In particular we hope that many of the smaller jurisdictions in the Commonwealth will participate and publish their findings in order to broaden the comparative findings available.

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BENCHMARKS FOR THE CARIBBEAN, AMERICAS AND ATLANTIC

BENCHMARKS FOR THE DEMOCRATIC LEGISLATURES OF THE CARIBBEAN, AMERICAS AND ATLANTIC REGION

Introduction Democratic Legislatures of the Caribbean, Americas and Atlantic Region of the Commonwealth Parliamentary Association (CPA), represent to a large extent, emerging democracies which have patterned the structure and functions of their parliamentary institutions from their colonial heritage. However, rapidly developing knowledge-based and technology-driven societies have placed Legislatures under intense scrutiny in the areas of transparency, accountability, effectiveness and fairness and this region is no exception.

Throughout the business environment, the need for greater efficiency and effectiveness has produced various models for measuring organisational effectiveness. Likewise, democratic Legislatures have responded to these external and in some instances internal pressures,

by the development of Benchmarks to assess their effectiveness. This journey commenced in 2004 at the CPA Conference in Canada.

In 2006, Recommended Benchmarks for Democratic Legislatures were formulated by a Study Group hosted by the Legislature of Bermuda on behalf of the CPA and the World Bank Institute.

The Commonwealth and the CPA recognize diversity as strength: different experiences, approaches and attitudes foster variations in practices and policies which stimulate innovation everywhere. This certainly applies to parliamentary democracy where the ways in which parliamentary theories are applied differ throughout the Commonwealth.

The CPA recognizes that no single Parliament is a source of “best practice” in all areas; that all Parliaments can be sources of

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valuable innovations regardless of their size or age; and that in fact there are many forms of “best practice”. Furthermore, the parliamentary system is a dynamic one so that “best practice” today will be surpassed tomorrow as institutions, Members, officials and citizens alike seek ever higher standards.

The development of regional versions of the CPA Benchmarks is one way to contribute to the evolution of this valuable set of standards. Against that background, a representative group of Clerks of the Legislatures of the Caribbean, Americas and Atlantic Region met in Barbados form March 8th to 9th, 2011 and drafted Benchmarks for this Region. This meeting was held under the auspices of the CPA Headquarters Secretariat in partnership with the CPA Regional Secretariat and with some support from the United Nations

Development Programme and the World Bank Institute.

The objectives of the Barbados meeting were to: •

•

Develop Benchmarks based on the unique traditions and parliamentary practices of the Region; and Recognise the dynamic nature of the Legislatures of the Region and the individual nuances of each Legislature in formulating the Benchmarks.

Using the 2006 CPA Recommended Benchmarks as a template, the meeting also considered and studied the recommended benchmarks accepted by: • •

The Pacific Islands Democratic Legislatures; and Asia, India and South East Asia Democratic Legislatures.

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BENCHMARKS FOR THE CARIBBEAN, AMERICAS AND ATLANTIC Participants at the Benchmarks meeting in Barbados, that included the Clerk of the Parliament of Grenada, Mr Adrian Hayes (far left).

A number of additions, omissions and modifications were proposed to the 2006 Recommended Benchmarks. It must be noted that measuring parliamentary effectiveness is a new venture and this exercise would be considered a success once Benchmarks are accepted by the Region.

The Draft Benchmarks for the Democratic Legislatures of the Caribbean, Americas and Atlantic Region were considered and accepted at the 15th Conference of Presiding Officers and Clerks of the Region held in the Cayman Islands during the period April 3 to 6, 2011. They were subsequently approved by the Annual General Meeting of the region when it commenced on 29 June 2011 at the Grenada Grand Beach Resort during the 36th Regional Conference in St. George’s, Grenada.

1.1.2 Legislative elections shall meet international standards for free, fair and transparent elections.

1.1.3 Term lengths for Members of the popular house shall reflect the need for accountability through regular and periodic legislative elections, the date of such elections should, as far as possible be fixed.

1.1.4 An independent Electoral Commission/Body shall be established for the management of the conduct of elections.

1.2 Candidate Eligibility 1.2.1 Restrictions on candidate eligibility shall not be based on religion, gender, ethnicity, race or disability.

1.2.2 Steps should be taken to encourage and promote the political participation of marginalized groups.

General 1.3 Incompatibility of Office 1.1 Elections 1.1.1 Members of the popularly elected or only house shall be elected by direct universal and equal suffrage in a free and secret ballot.

1.3.1 A Member shall be required to confirm his/her allegiance by taking an oath based on his/her own personal religious beliefs or by affirmation, in order to take his/her seat in the

Legislature.

In a bicameral 1.3.2 Legislature, no person shall be a member of both houses.

1.3.3 A Member shall not simultaneously serve in the judicial branch or as a member of the Civil or other Service of the Executive branch.

1.4 Immunity 1.4.1 Members shall have immunity for anything said in the course of the proceedings of the Legislature.

1.4.2 Members must be able to carry out their legislative and constitutional functions in accordance with the constitution, free from interference.

1.5 Remuneration and Benefit 1.5.1 The Legislature shall provide appropriate remuneration and reimbursement of parliamentary expenses to Members for their service, and all forms of compensation shall be allocated on a non-partisan basis.

1.5.2 The remuneration arrangements for Legislative office-holders should sufficiently reflect their considerable role and responsibilities.

1.5.3 A Member shall be provided with his/her salary and additional benefits adequate to require him/her to give priority to his/her parliamentary duties.

1.5.4 In order to maintain a decent standard of living and to upkeep his/her family, a Member shall not be placed in the position of having to sacrifice parliamentary responsibilities in order to pursue a competing career.

1.5.5 Members should not be required to place themselves under any financial or other obligation to outside individuals or organizations that might influence them in the performance of their official duties or might give the impression of so doing.

1.5.6 There shall be provided to non-returning Members an adequate allowance payable, on a prompt basis, to retiring Members so that departure from office does not leave a former Member in dire financial straits.

1.5.7 Members shall be entitled to a lifetime pension or a lump sum depending on their length of service and based on a scheme, as set out in the relevant statute.

1.5.8 Where a Member dies, a pension shall be payable to an eligible partner or eligible child of that Member, in accordance with provisions set out in relevant statute.

1.6 Resignation 1.6.1 Members shall have the right to resign their seats in accordance with the Constitution.

1.7 Infrastructure 1.7.1 The Legislature shall have adequate physical infrastructure to enable Members and staff to fulfil their responsibilities.

1.7.2 Members shall be entitled to have adequate office accommodation, with modern amenities, throughout their term in office.

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BENCHMARKS FOR THE CARIBBEAN, AMERICAS AND ATLANTIC

Left: The outside of the Belize Parliament building in Belmopan; Right: The Parliament of Dominica in Roseau.

1.7.3 Appropriate steps shall be taken to ensure that adequate arrangements are made for differently-able Members in the performance of their duties.

1.7.4 Elected Members shall be provided with state funded offices in their constituencies.

II. Organization of the Legislature

use this knowledge to operate more effectively within the Legislature.

2.4 Agenda 2.2 Presiding Officers 2.2.1 The Legislature shall elect presiding officers pursuant to criteria and procedures clearly defined in the rules of procedure and/or in the constitution.

2.3 Convening Sessions

2. Procedure and sessions 2.1 Rules of Procedure 2.1.1 Only the Legislature may adopt and amend its rules of procedure.

2.12 Legislatures should take steps to ensure that newly elected/appointed Members are assisted in understanding how the Legislature works and its rules of procedure, in order to be able to

have a clear definition of a regular sitting and a special sitting.

2.3.1 The legislature shall meet regularly, at intervals sufficient to fulfil its responsibilities.

2.3.2 The legislature shall have procedures for calling itself into regular sittings.

2.3.3 The Legislature shall have procedures for calling itself into extraordinary or special sittings which shall be clearly specified in the rules of procedure 2.3.4 The Legislature shall

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2.4.1 The legislature shall give Members adequate and specific advance notice of sittings and the agenda for the sitting.

2.4.2 Members shall have the right to vote to amend the proposed agenda for debate in accordance with the rules of procedure.

2.4.3 Members in either house shall have the right to initiate legislation and to offer amendments to proposed legislation except where the Constitution provides otherwise.

2.4.4 The Legislature shall readily set aside adequate time on a regular basis, as prescribed in the rules of procedure, for the discussion of Private Members’ business.

2.4.5 The Legislature shall provide adequate resources for Private or Independent Members to draft legislation or amendments to legislation.

2.46 There shall be an annual parliamentary calendar to promote transparency and planning by Members as well as those outside of the House who are required to provide services to the Legislature, with provisional dates for formal recesses and long adjournments.

2.5 Debate 2.5.1 The Legislature shall establish and follow clear procedures for structuring debate and determining the order of precedence of motions tabled by Members.

2.5.2 The Legislature shall provide adequate opportunity for Members to debate bills prior to a vote.

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BENCHMARKS FOR THE CARIBBEAN, AMERICAS AND ATLANTIC ensure completion of their terms of reference in a timely and effective manner.

3.2 Powers

2.6 Voting 2.6.1 Plenary votes in the legislature shall be public.

2.6.2 The outcome of a vote may be challenged by any Member on a call for a division.

2.6.3 Only Members, entitled to vote, may vote on issues before the Legislature .

2.7 Records 2.7.1 The Legislature shall maintain and publish readily accessible records of its proceedings in a standard and consistent format that is appropriate and sustainable.

2.7.2 The unedited record of the proceedings of the Legislature shall be available to members of the legislature, as far as possible, no later than the day following a sitting.

2.7.3 The Legislature shall

strive towards the establishment of a paperless environment.

3. Committees

3.2.1 There shall be a presumption that the Legislature will consider legislation in detail and/or refer it to a committee and any exceptions must be transparent, narrowly-defined, and extraordinary in nature.

3.2.2 Committees shall scrutinize legislation referred to them and have the power to recommend amendments.

3.2.3 Committees shall have the right to consult and/or employ experts.

3.2.4 Committees shall have the power to summon persons, papers and records, and this power shall extend to witnesses and evidence from the executive branch, including officials.

3.2.5 Only Members appointed to the committee, or authorised alternates, shall have the right to vote in committee.

3.2.6 Legislation shall protect informants and witnesses presenting relevant information to parliamentary committees 4. Political parties, party groups and interest groups

3.1 Organization

where applicable, Members are entitled to choose their own personal staff.

5.1.2 The Legislature shall control a Parliamentary Service, that is separate from the Public Service or any other state service, and determine the terms of employment.

5.1.3 The Legislature shall draw and maintain a clear distinction between partisan and non-partisan staff.

5.1.4 Members and staff of the Legislature shall have access to sufficient research, library, and ICT facilities.

5.1.5 The Legislature shall provide facilities for the care and supervision of children of Members and staff who are required to work long and extended hours.

5.2 Recruitment 5.2.1 The Legislature shall have adequate resources to recruit staff to fulfil its responsibilities. The rates of pay shall be broadly comparable to those in the public service.

The Legislature shall not 5.2.2 discriminate in its recruitment of staff on the basis of race, ethnicity, religion, gender, disability, or, in the case of non-partisan staff, party affiliation.

4.1 Political Parties 3.1.1 The Legislature shall have the right to form permanent and temporary committees.

3.1.2 The Legislature’s assignment of committee members on each committee shall reflect the political composition of the Legislature.

3.1.3 The Legislature shall establish and follow a transparent method for selecting or electing the chairs of committees.

3.1.4 Committee hearings shall be in public. Any exceptions shall be clearly defined and provided for in the rules of procedure.

3.1.5 Once established, Committees shall meet regularly to

5.3 Promotion 4.1.1 The right of freedom of association shall exist for members, as for all people.

Any restrictions on the 4.1.2 legality of political parties shall be narrowly drawn in law and shall be consistent with the International Covenant on Civil and Political Rights.

5. Parliamentary staff 5.1. General 5.1.1 The Legislature shall have adequate professional staff to support its operations including the operations of its committees but

5.3.1 Recruitment and promotion of non-partisan staff shall be on the basis of merit and equal opportunity.

5.4 Organization and Management 5.4.1.

There shall be established a parliamentary corporate board by legislation that shall be responsible for the management of the legislature.

5.4.2 Each Legislature shall have an office of Clerk which should be a permanent and non partisan office, with the principal responsibility to provide advice on

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BENCHMARKS FOR THE CARIBBEAN, AMERICAS AND ATLANTIC rules of procedure to the Presiding Officer and other Members.

5.4.3 Legislation should provide for a Parliamentary Service and establish a corporate body responsible for the recruitment of the Clerk and the determination of the Parliament’s budget as well as for providing general governance over the parliamentary service.

5.4.4 The Administrative head of the Parliamentary Service shall have a form of protected status to prevent undue political pressure.

5.4.5 As the most senior executive staff member in the Legislative branch, the remuneration of the Clerk shall, at the very least, be equivalent to that payable to the most senior executive staff member within the Executive and Judicial branches of State.

5.4.6 The recruitment, promotion and discipline of staff of the Parliamentary Service shall be the responsibility of the Clerk through an open and transparent process, consistent with sound industrial relations practices.

5.4.7 The terms and conditions of Presiding Officers shall not be less than what is applicable to Members of Parliament of Cabinet rank.

5.4.8 Appeals relating to recruitment, promotion and discipline should be referred to the Parliamentary Corporate Board which should have established a clearly defined and articulated appeals process in accordance with sound industrial relations practice.

5.4.9 There should be a properly defined career structure for the profession of Clerkship in order to ensure continuity of procedural services to the Legislature.

5.4.10 All staff of the Parliamentary Service shall be subject to a code of conduct.

5.4.11 Staff of the Parliamentary Service shall have the right to join a union/association of their choice.

Above: The Parliament of The Bahamas and (left) the Bermudian Parliament.

III. Functions of the Legislature

in electronic form for timely distribution to Members. Hard copies of such documents, if required, shall also be transmitted in accordance with the established practice.

6.2

Legislative Procedure

6. Legislative function 6.1

General

6.1.1 The approval of the Legislature shall be required for the passage of all laws, including budgets.

6.1.2 Only the legislature shall be empowered to determine and approve the budget of the Legislature.

6.1.3 The Legislature shall have the power to pass resolutions or other non-binding expressions of its will.

6.1.4 In bicameral systems, only a popularly elected house shall have the power to bring down the government.

6.1.5 A chamber where a majority of Members are not directly or indirectly elected may not indefinitely deny or reject a money bill.

6.1.6 Ministries/Departments shall transmit Bills and other documents for parliamentary action, to the Clerk of each House

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6.2.1 In a bicameral Legislature there shall be clearly defined roles for each chamber in the passage of legislation.

6.2.2 The Legislature shall have the right to override an executive veto.

6.2.3 There shall be adequate time allowed between the first and second reading stages of Bills as provided in the rules of procedure.

Any exceptions must be transparent, narrowly defined, and extraordinary in nature.

6.3 The Public and Legislation 6.3.1 The Legislature shall provide adequate mechanisms to encourage wider consultations and public submissions on Bills introduced.

6.3.2 Information shall be provided to the public in a timely manner regarding matters under consideration by the Legislature.

7.

Oversight function

7.1

General

The Legislature shall 7.1.1 have appropriate legislation or a constitutional provision that clearly determines the minimum size of the cabinet.

7.1.2 The Legislature shall have mechanisms to obtain information from the executive sufficient to exercise its oversight function in a meaningful and timely manner.

7.1.3 The oversight authority of the Legislature shall include meaningful and timely oversight of the military, security and intelligence services.

7.1.4 The oversight authority of the Legislature shall include meaningful and timely oversight of state owned enterprises.

7.1.5 The oversight authority of the Legislature shall include meaningful and timely oversight of compliance with international treaties and obligations.

7.1.6 The oversight authority of the Legislature shall include meaningful and timely oversight of accountability institutions, such as Elections Commissions, Human Rights commissions, Anticorruption Commissions, Ombudsmen, information

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BENCHMARKS FOR THE CARIBBEAN, AMERICAS AND ATLANTIC

commissions and offices of Auditors General.

7.2 Financial and Budget Oversight 7.2.1 The Legislature shall have a reasonable period of time that is clearly specified in the Rules of Procedure in which to review and debate the proposed national budget.

7.2.2 The Legislature shall have clear procedures requiring government to provide timely responses to parliamentary committee reports and recommendations.

7.2.3 Oversight committees shall provide meaningful opportunities for minority or Opposition Members and Independents to engage in effective oversight of government expenditures. The Public Accounts Committee and other oversight committees shall be chaired by a Member of the Opposition or an Independent.

7.2.4 Oversight committees shall have access to records of executive branch accounts and related documentation sufficient to be able to meaningfully review the accuracy of executive branch reporting on its revenues and expenditures.

7.2.5 There shall be an independent, non-partisan Supreme or National Audit Office whose reports are tabled in the Legislature in a timely manner.

7.2.6 All reports of the national audit office shall stand referred to the Public Accounts Committee for further investigation, if necessary, and report.

7.2.7 The supreme or national audit office shall be provided with adequate human and other resources and legal authority to conduct audits in a timely manner.

7.3

No Confidence

7.3.1 The Legislature shall have mechanisms to censure officials of the executive branch, or express no-confidence in the government.

7.3.2 If the Legislature expresses no confidence in the Head of Government, the Head of Government is obliged to offer his/her resignation. If the Head of State agrees that no other alternative government can be formed then a general election should be held.

8. Representational function

demonstrable public safety and work requirements.

9.1.2 The Legislature should ensure that the Media are given appropriate access to the proceedings of the legislature without compromising the proper functioning of the Legislature and its rules of procedure.

9.1.3 The Legislature shall promote the Media’s understanding of the work of the Legislature and its rules of procedure.

9.1.4 The Legislature shall have a non-partisan media relations facility, independent of the Executive branch.

9.1.5 The Legislature shall promote the public’s understanding of the work of the Legislature.

8.1

9.2

Constituent Relations

The Legislature shall 8.1.1 provide each elected Member with adequate and appropriate resources within his/her constituency, to enable him/her to fulfil representational functions.

8.2 Parliamentary Networking and Diplomacy 8.2.1 The Legislature shall have the authority to receive development assistance from legitimate and reputable institutions or organization to strengthen the institution of Parliament.

8.2.2 Members and staff of Parliament shall have the authority to receive technical and advisory assistance from legitimate and reputable institutions or organisation as well as to network and exchange experience with individuals from other Legislatures.

IV. Values of the Legislature 9. Accessibility 9.1 Citizens and the Press 9.1.1 The Legislature shall be accessible and open to citizens and the Media, subject only to

Languages

9.2.1 Where the Constitution or parliamentary rules provide for the use of multiple working languages, the Legislature shall provide for simultaneous interpretation of debates and translation of records.

10. Ethical governance 10.1 Transparency and Integrity 10.1.1 Members should maintain high standards of accountability, transparency and responsibility in the conduct of all public and parliamentary matters.

10.1.2 The Legislature shall approve and enforce a code of conduct, including rules on conflicts of interest and the acceptance of gifts.

10.1.3 Legislatures shall require Members to fully disclose their financial assets and business interests.

10.1.4 There shall be mechanisms to prevent, detect, and bring to justice Members and staff engaged in corrupt practices.

10.1.5 Legislatures should establish a mechanism to oversee the conduct of Members.

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UGANDA’S OIL AND GAS SECTOR

DEVELOPMENTS IN THE OIL AND GAS SECTOR IN UGANDA Petroluem exploration and extraction can inject vast sums of money into a country’s economy. But contracts signed by governments for exploration and mineral rights have caused serious problems for some countries, so the Parliament of Uganda is acting to ensure oil deals are drafted and implemented properly, writes a Member with some of the professional qualifications needed for this specialized and highly technical area of parliamentary oversight.

Hon. Elijah Okupa, MP, in Kampala.

Mr Okupa is a Member of the Parliament of Uganda for the opposition Forum for Democratic Change, the Parliament’s second largest party. He was a government revenue officer prior to entering Parliament in 2001 and has a Master’s degree in economics with added qualifications in taxation and auditing.

Sub-Saharan Africa is the fastest growing oil-producing region in the world, with production having risen by 36 per cent in the past 10 years against a 16 per cent rise worldwide. It is estimated that over US $50 billion, the largest such amount in African history, will be invested in Africa by end of this decade as a result of the oil and gas discoveries. Uganda is one of the African countries that are expected to benefit from increased flow of investment resources.

Uganda has discovered 20 oil fields containing 64 wells of which 59 are productive. This is approximately 2.5 billion barrels.

Between 1 billion to 1.5b barrels is extractable. If the country produced 100, 000 barrels of oil per day, it is estimated the deposit will be exhausted within 30 years.

As such, Uganda’s five year National Development Plan (2010/11-2014/15) cites the Minerals, Oil and Gas Sectors as

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dramatic development failures that have characterized most oil dependent countries could befall Uganda or even result in an oil curse. Among the many institutions that have shown great concerns on the developments in the sector was the Parliament of Uganda, particularly the 9th Parliament.

Hon. Elijah Okupa, MP.

the two key primary growth generators for Uganda’s future. If resources from these sectors are realized and utilized in a professional, prudent, sustainable and transparent manner; the potential for Uganda to become a middle income country in 25 years may be realized. However, developments in Oil and Gas Sector do not reflect best practices to guarantee the desired benefits.

There are fears that the

A brief history Significant oil exploration in Uganda was first done by E.J Wayland, a government geologist who documented substantial hydrocarbon occurrences in the Albertine Graben in the 1920’s.

The Albertine region forms the northernmost part of the western arm of the East Africa Rift System, and is the principle prospective area for oil reserves in Uganda. It stretches from the border with Sudan in the north to Lake Edward in the south, covering an area of 24,000 sq. km, and extends into the Democratic Republic of Congo.

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UGANDA’S OIL AND GAS SECTOR

Uganda is one of the African countries which is expected to benefit from international investments in oil and gas exploration on the continent estimated to total US$50 billion to date.

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UGANDA’S OIL AND GAS SECTOR

Oil exploration in Uganda was interrupted during the Second World War, and resumed more seriously in the early 1980s with the acquisition of aeromagnetic data across the entire Graben region.

In the last decade, Uganda renewed efforts in oil exploration by licensing a number of prospectors. These efforts yielded results with a breakthrough by Hardman Resources Company’s discovery of huge petroleum deposits in the Albertine Graben region, and subsequently other licensed companies. Exploration is on-going in 10 areas including Rhino Camp (Arua District), Pakwach (Nebbi District), Semiliki and around Lakes Albert and Edward. The total oil volume in Uganda is estimated at 6 billion barrels.

The key players in Uganda’s oil and gas sector are Heritage Oil and Gas Limited, Hardman Petroleum Africa (pty), Tullow Oil Plc, Neptune petroleum, Dominion Oil and Alpha Oil. Uganda’s Oil and Gas Sector has attracted the attention of international investors. This is evident through farming-down and farming-up by the existing companies that are exploring the oil in the country.

Uganda is now entering a critical period of commercial production of the oil and gas products, which is expected to take off in the medium term. This is a very critical period with new investors and further huge investments are expected in the sector. Already, big companies like the Italian Oil Company, ENI, Chinese National Offshore Oil Company (CNOOC) and France’s Total from have shown interest in the sector through farming down the interest of Tullow Oil Plc. Despite the country putting in place the Oil and Gas Policy, 2008, there has been no effective implementation. The laws and institutions that were expected to be in place as a result of this policy

Sipi Falls is a series of three waterfalls in Eastern Uganda.

were not, and the transactions arising from the growth of the sector have becoming increasingly complicated to the point of litigation. This has created anxiety amongst Ugandans, including within the Parliament of Uganda and Civil Society Organizations that now believe the country could be headed for a resource curse if corrective measures are not undertaken.

The significance of legislation Like other countries with a vibrant oil and gas sector, Uganda’s Legislature has an important role to play. The country must perform its lawmaking, oversight and representation duties if success in the sector is to be realized. Article 79 (1) of the Constitution of the

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Republic of Uganda gives the Parliament the power to make laws on any matter for peace, order, development and good governance. The oil and gas sector, given the high expectations it will generate and the financial resources necessary to transform and develop the country, is a critical area that should have the necessary laws. However, the same constitution restricts Parliament from making laws that impose a charge on the consolidated fund or any payment or withdrawal from this fund. This has tied the hands of the Parliament of Uganda. Thus, the Members cannot move a private member’s Bill on the oil and gas sector.

Due to these frustrations and constitutional limitations to make

laws for the development of the oil and gas sector in Uganda, the Members of the Parliament in October 2011 moved a motion to convene a special session of Parliament which implored the government to submit all the necessary Bills for the development of the sector for consideration within 30 days from the date of the resolution. The constitution requires of the Speaker to call the House to discuss matters of national interest when one third of the members request him or her to do so. To this effect, about two thirds of members in Parliament signed the petition, which was submitted to the Speaker on 20 September 2011. In this respect, the debate on the matter took place on 10 and 11 October 2011. The motion and

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UGANDA’S OIL AND GAS SECTOR

resolutions of Parliament that were passed implored the government to fast track the oil and gas laws in the areas of revenue collections and management; participation and empowerment of Ugandan’s; and social, environmental and economic aspects of this sector.

Prior to this motion, Parliament had used common methods of passing motions, initiating questions, conducting public hearings, and summoning ministers before committees without success. Most of these tools were used in the 8th Parliament before reaching a climax in the 9th Parliament where the house debated a motion for two days and unanimously passed ten resolutions on improving the performance of Oil and Gas Sector in Uganda. These resolutions, among others: •

•

•

•

•

•

Placed a moratorium on the Executive to execute oil contracts and transactions until the following conditions are instituted: the necessary laws are in place; The government reviews all the production sharing agreements already executed; Accountability of revenues so far received from the sector, covering license fees, signature bonuses, taxes and royalties and any expenditure executed on the same; The government joins the Extractive Industry Transparency Initiative; The removal and desisting from executing contracts in the oil industry with confidentiality clauses or provisions; and An inquiry into the sector.

It is hoped by carrying out their representation function legislators will help shape the sector programmes and make them reflect the interests of all Ugandans. The Legislature is united and very vigilant in ensuring that the sector is run in a transparent manner and in the

interest of the people they represent. It should be noted the work of 9th Parliament on the sector has yielded positive results and changed the perception of the public about Parliament.

Investigating senior MPs An Adhoc Committee on the oil sector investigated the involvement of the Prime Minister, Rt. Hon. John Patrick Amama Mbabazi, MP, the Minister of Internal Affairs Hon. Hilary Onek, MP, and the Minister of Foreign Affairs, Hon. Sam Kutesa, MP, who were alleged to have been comprised while conducting their duties in the oil and gas sector.

According to the terms of reference cited for the committee, it will examine the process for the procurement of all companies involved in the oil sector, including the memorandum of understanding executed between the Uganda Revenue Authority and Tullow Oil in March 2011. They will also scrutinize all revenues so far received by government and where they have been deposited.

One of the pertinent issues being investigated by the Adhoc Committee on oil was how the revenue from the sector had been collected, managed and utilized since 2001. Mrs Maria Kiwanuka, the Minister of Finance, Planning and Economic Development, submitted to the floor of the house that the government had realized a total accumulated capital gains tax plus stamp duty of US $449, 424,960 as of 11 April 2011.

These taxes were collected from Heritage Oil and Gases Limited and Tullow Oil Plc. She also informed that a total of US $3,240,881.40 was realized as oilrelated non-tax revenues credited to the Ministry of Energy and Mineral Development for financial years running from 2006/2007 to 2010/2011. She promised to provide information for the period 2001-2006.

Mr Sam Kutesa, the Minister of Foreign Affairs stepped aside from

the Cabinet as a result of another corruption prosecution in lieu of the Commonwealth Heads of Government Meeting (CHOGM) reports by the Auditor General, the Parliament and the Inspectorate of Government.

However, the Prime Minister and the Minister of Internal Affairs did not step aside nor did the President of the Republic of Uganda act on all resolutions of Parliament.

It was further reported in the media that the President would not respect three out the ten resolutions of Parliament including the one which demanded the three Ministers to step aside.

Most Members in Parliament made it clear they believed that a smooth investigation could take place if the Prime Minister and the Minister of Internal Affairs remained in office. As a follow-up to the resolutions on the oil and gas sector, the Members of Parliament instituted another motion under the Rules of Procedure of the Parliament of Uganda to find the Prime Minister and Minister of Internal Affairs in contempt of Parliament. A controversy arose on what contempt of Parliament meant and the matter was referred to the Standing Committee on Rules, Discipline and Privileges before a final conclusion arrived on the floor of Parliament.

Information was also been received from the Uganda Revenue Authority indicating that total tax revenues realized from oil companies for 2001 to October 2011 was US $487,155,517 as per November 2011 exchange rates.

This was from tax heads of pay as you earn; withholding taxes; stamp duty, fees and licenses; penalties; import duties; and corporation taxes. It is important to note that there were VAT refunds to the oil companies amounting to US $6,035,378. The Adhoc Committee also investigated this matter and is due to report its findings to Parliament.

As a result of the resolutions on the oil and gas sector during the special session of Parliament, the Minister of Energy and Mineral Development submitted to Parliament 10 confidential agreements on the sector.

However, The Speaker of the Parliament of Uganda using the constitution and the Rules of Procedure, issued strict guidelines on how Members of Parliament and Authorised Persons could access these agreements. She also limited wider public access, noting that the Petroleum (Exploration and Production) Act, prohibited disclosure of such information.

This limitation on the access of the agreements contravenes of the Access to Information Act, 2005.

This Article states that every citizen has a right of access to information and records in the possession of the state or any public body except where the release of the information is likely to prejudice the security and sovereignty of the state or interfere with the right to privacy of any person.

In effect, there was a contradiction between the Petroleum (Exploration and Production) Act and the Access to Information Act which needed to be reconciled.

As the Parliament of Uganda moves to ensure that the necessary legislations are in place, and that oversight, transparency and accountability in the Oil and Gas Sector are maintained, it still grapples with a number of challenges which include: •

•

• • •

Lack of knowledge or capacity to address complexities in the oil and gas Sector; Lack of the specialized expertise on oil and gas by the committees; Lack of coordination among Parliamentary committees; Lack of timely access to useful information on the sector; and Limited availability of resource to oversee the sector.

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MATURING DEMOCRACY IN THE FALKLAND ISLANDS Is the electoral system right? Should Parliamentarians be fulltime? Is a ministerial system needed in a small House? These and other questions need to be reconsidered now — and constantly, says a Member of the Falklands’ Legislature.

Hon. Dick Sawle, MLA, in Stanley Mr Sawle, a former teacher and fishing company owner, was first elected to the Falkland Islands Legislative Assembly in 2009. Born and educated in the United Kingdom, he graduated from Liverpool University and did a postgraduate teaching certificate at Westminster College in Oxford. He taught in England and Spain before moving to the Falklands in 1986 to teach Spanish.

British Overseas Territories (OTs) have been in existence for many years and their evolution from former colonies into (in some cases) fully fledged independent democracies has taken many interesting twists and turns. Whilst all OTs have some commonality within their systems of government, as all are based on Westminster democratic principles, each has developed its own particular model to suit its own requirements and to match its progress along the route of democracy. I would like to focus on the Falkland Islands, define where we are in terms of our democracy, briefly discuss what the impediments are to democratic progress, and finally stimulate debate on what changes we should be making for the future in our country. I imagine that our

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particular challenges have been met by other democracies both within OTs and also the Commonwealth.

The Falkland Islands have a population of around 3,000 people from a variety of backgrounds.

There are families that have been in the Falklands for nine generations, and there are those that arrived here and settled in more recent times. Less than 50 per cent of our population is eligible to vote as voting requires the acquisition of Falkland Island Status (FIS) which can only be achieved after permanent residency of seven years or more.

This may well be a point to consider.

We have two constituencies, Camp and Stanley. Camp is the area outside of Stanley, an area almost the size of Wales with

Hon. Dick Sawle, MLA

around 350 people and three seats in the Assembly. Stanley, with a population of around 2,600 people, has five seats in the Assembly. Elections are held every four years, and each elector can vote for up to five candidates within the Stanley constituency. In Camp, the vote is for a maximum of three candidates.

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An elected executive The eight Members elected to the Legislative Assembly then elect three of their number to serve on Executive Council, one of those representing Camp, one representing Stanley and one whose role is to represent both Camp and Stanley. It is therefore a democratic process, where political leaders are chosen by the electorate.

The powers needed to run the country used to be exercised solely by the Governor; but as we have matured, the Governor’s powers have been gradually reduced. Our revised 2009 constitution reduced the powers of the Governor to mean the Governor acting upon the advice of Executive Council.

There are some reserved powers, but the role of the Governor in our territory has changed considerably from what it used to be.

All Members have the opportunity to discuss Executive Council matters and consequently can advise on all Executive Council decisions beforehand in a nonstatutory committee of all

Members. But effectively the authority now lies with three Members of Executive Council rather than the solely with the Governor.

As elected Members, we set our own budget, we make our own laws and we are completely independent from the United Kingdom apart from matters of foreign affairs and defence.

Defence, which is only necessary due to the political stance of Argentina and its sovereignty claim over us, has to be provided by the British forces. As we have no presence in foreign countries, we must rely on the U.K. to deal with foreign policy matters.

The Governor’s role is essentially to ensure good governance.

However, Mr Henry Bellingham, Parliamentary Under Secretary of State at the U.K. Foreign and Commonwealth Office, said in an OT meeting in London in November 2011 that “constitutions are work in progress”, and I agree with him. Our 1986 constitution was amended in

2009 and no doubt there is still room for improvement. Where are the challenges then to maturing our democracy?

A full-time job First, the job of a Member of the Legislative Assembly (MLA) has become far more time-consuming than it ever used to be. If taken seriously, it is a full-time job. It involves town council matters, national strategic planning and international affairs – in short, a very fascinating and interesting political cocktail. I firmly believe that the days of part-time politicians are over in our country. The modern Falklands is moving and developing quickly and our politicians must also quicken their step to keep pace. With increased powers comes increased responsibility and also of course increased accountability. MLAs in the Falklands are paid, but not a living wage. This is a huge impediment to progress. Rather like many small parish councils and even county councils in the U.K., this tends to mean that Members

are those who are of independent means, retired or semi-retired, and usually therefore mature in years.

There are of course those who hold down a full-time job whilst carrying out the role of an MLA, but the pressures on them, their employers and of course their families are great and there is evidence that this is simply unsustainable.

Moreover, whilst there are countries that have cultural, social or even legal obstacles that impede some members of the public from standing for election, we in the Falklands have only this single obstacle: pay and conditions.

Effectively, no Falkland Islander who relies on income from their work to support a family, a mortgage and meet all of the usual financial obligations can afford to leave their job and take up the challenge of political life. This cannot be right. Many who are extremely able and would make excellent leaders simply cannot afford the cost of doing so.

MLAs in the Falklands are paid approximately £350 per month or

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£550 per month if elected to Executive Council. Other allowances for attending meetings, for attending overseas conferences et cetera are also paid, resulting in a total payment (excluding claims for recovery of expenses such as travel) per annum of maybe £15,000 to £20,000. Actual remuneration depends on how active a Member is – arguably a good point!

That a Member who is elected to Executive Council should receive more than one who is not is, in my view, a nonsense. Why attendance at meetings should be paid is equally irrelevant. Either we have full-time MLAs paid a fulltime and adequate wage or we will

continue with an out of date and inappropriate system that is not giving the Falklands the attention the islands deserve. It impedes recruitment of able and intelligent people who are prepared to take the risk of standing for election and becoming professional politicians.

A scrutiny deficit Maturing the democratic process is not simply a matter of paying a decent wage for the job that MLAs carry out. With professionalism and adequate resources comes the requirement to have the ability to deliver political promises.

We have no political parties as the population is too small to reflect large bodies of opinion.

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Consequently all eight elected Members are independent and we rely on consensus politics. The problem with consensus politics is that it tends to stifle debate and leads to the policy of least resistance. The Executive Council has no opposition in practical terms. The remaining five Assembly Members who are not elected to Executive Council are intended to perform the essential democratic task of scrutiny.

However, with the sole exception of forming policy, this is not the case as all Members are involved with equal voting rights in all matters of finance and legislation.

Whilst Executive Council alone forms policy, all Members are

consulted on all policy matters (and indeed all other matters) and it is rare that Executive Council does not reflect the consensus of opinions expressed by all Members.

So where are the real mechanisms of scrutiny? The Governor exercises some scrutiny, ensuring that due process and good governance are maintained.

We also have a Public Accounts Committee (PAC) and a Complaints Commissioner.

However, the PAC has on it two elected Members who then potentially are called upon to scrutinize financial decisions in which they themselves have been fully involved.

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importance than this, is the fact that our democratic but flawed system leads to lack of direction, lack of cohesion and lack of common purpose.

Heading for a more mature democracy How can we advance the current system? There are a number of improvements that can be made and which are now being debated:

Hon. Dick Sawle, MLA, (right speaking to United Kingdom Foreign Office Minister Mr Jeremy Browne, MP (left).

The essential tools for proper scrutiny are therefore, in my view, deficient in our current system.

Effectively, political opposition is led by the public who is the only real and practical challenge to our consensus politics. This in turn leads to constant (and understandable) discontent with political leaders.

Who is the opposition?

Who leads our political system and can be challenged by the public or other elected Members? We have no elected Leader and we have no continuity within the elected Members themselves for various external tasks such as the

Commonwealth Parliamentary Association. This means we lack continuity and do not gain advantage from contacts made and networks established.

Because we also have no ministerial powers, despite all members having portfolio responsibilities, this results in politicians frequently viewing the civil service (who are accountable only to the Chief Executive and who in turn is accountable to the Governor) as the opposition.

In summary, politicians frequently view both the civil service and also the public as the opposition and the result is discontent and dissatisfaction all round. But of far greater

1. Elected Members have to become properly paid professionals with adequate resources to carry out their tasks.

This opens the pool of potential political leaders and thereby expands the potential for more talented Members.

2. With professionalism comes the requirement to have sufficient powers. Members need to move towards a ministerial role. The powers of the Chief Executive need to be reduced. Civil servants need to be accountable to elected politicians and not an appointed Chief Executive.

3. We need to accept the requirement to appoint a Chief Minister or Leader. In a small community such as ours this is difficult, but we should meet this challenge and cope with it. We have to have a focal point of contact for the outside world.

4. We must ensure that with ministerial responsibility, continuity is maintained, especially where this relates to our relationships with overseas bodies.

5. We should have one single constituency. Recently a referendum opposed this idea; but it is no longer acceptable that 10 per cent of the people are represented by nearly 50 per cent of the political leadership.

6. We may well need to have more elected Members as we progress and mature.

7. If we were to effect these changes they would need to be made in a carefully co-ordinated fashion as many of the changes are inter-dependant.

8. Finally, and most importantly of all, we need to have effective scrutiny which is not just formed by formal bodies such as a PAC, but involves some form of formally constituted opposition. This latter point is perhaps the most important part of maturing our democracy. But it may be that, until we grow the population to a far greater extent, allowing for party representation is simply not possible.

Continuing the evolution No democracy is perfect. A cynic might say that democracy is the name we give the people whenever we need them! Each democracy is, as Henry Bellingham said of OT constitutions, a “work in progress”.

What is of great interest to me is how we can achieve what we must in order to mature, develop and keep pace with our progress as a territory.

We have many challenges ahead of us at present. Our Islands have made huge economic progress since 1982.

We have a balance sheet that would be the envy of many nations. We have the prospect of oil exploitation in the near future and of course this brings with it increased pressure from Argentina.

It is time for us to look at our system and accept that it is not perfect and will always require changes and improvements.

Some of the more standard means of scrutiny open to other countries, such as an elected opposition, will not be practical possibilities until we grow the population.

However, there are many things that we can do in the meantime to improve what we already have.

I would welcome views from people and colleagues both within the Falklands and, equally as important, from other countries which have faced similar challenges and overcome them.

Email: Dick.sawle@sawle.org.

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POLITICAL REFORM: TONGA’S CONSENSUS APPROACH TO LAWMAKING Tonga’s Parliament amends budget proposals and changes Bills and regulations in the public interest unfettered by party or even government policies. That is the “Pacific way”.

Mr Sione Tekiteki, in Nuku’alofa Mr Tekiteki is the Clerk of the Legislative Assembly of Tonga.

When I first graduated from the University of Auckland, my perception of democracy was very idealistic and very much influenced

by Westminster ideals. Perhaps, if I had attended a university in the United States, my idea of democracy would have been heavily shaped by congressional ideals. After all, one’s perception is significantly influenced by their surroundings. Democracy does not exist in a vacuum.

By this rationale, it follows that the most important consideration for ensuring peaceful political reform is that it harmoniously merges with the cultural and social fabric of that country. Only then can it be assumed that the political system (and by implication those

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who govern) have the confidence of the people.

As a starting point, it is important to note that culturally, there are distinct differences between Western and Pacific values. Whereas western values can be interpreted as individualist by nature, Pacific values are largely founded on collectivism – where the community is more important than the individual. More specifically in Tonga, the traditional method of solving conflict within the community is based on “talanoa” and “fakalelei”, or dialogue and reconciliation.

This general observation implies that in the Pacific, more emphasis should be placed on politicians working together to

Mr Sione Tekiteki achieve consensus and that it would be counterproductive to adopt a purely adversarial parliamentary model. Moreover, considering that most parliamentary democracies in the Pacific are fairly new and lack the

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established parliamentary practices and conventions of more mature democracies, the idea of working together seems common sense.

There are two examples from Tonga’s experience that supports this idea of a “consensus approach to lawmaking”.

Political parties During the political reform consultation process, neither the National Committee of the Kingdom of Tonga on Political Reform (the first committee commissioned by Parliament on political reform) nor the Constitutional and Electoral Reform Commission (the last body commissioned under legislation by

Parliament on political reform) recommended in their report that there be formal political parties.

Thus, when the reform legislation was debated in the House in late 2009 and again in mid-2010, the issue of establishing formal parties was never discussed or raised.

Therefore, the approved amendments to the constitution and other legislation as a result of the political reform do not recognize political parties.

Moreover, Tonga does not formally recognize “the opposition” or a single person as the Leader of the Opposition.

When elections are held, only the names of candidates are printed on the ballot paper. There are no references in the ballot

paper of candidates’ party affiliation. Furthermore, after the ballot papers are counted and results declared it is not clear who the Prime Minister will be and who out of the elected Members will be in government.

This implies that elected Members must discuss informally amongst themselves their nominations for Prime Minister.

Such discussions will culminate in the official submission of nominations for Prime Minister to the Office of the Legislative Assembly within 14 days of return of writs. Within three days from the last date of receipt of nominations, a special sitting must be called by the Interim Speaker (appointed by His Majesty) where elected

Members of the Parliament of Tonga outside the Parliament building in the capital, Nuku’alofa.

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representatives would formally elect a Prime Minister-designate in accordance with a Schedule to the Act of the Constitution of Tonga.

The Speaker is also elected through a similar method under Rule 4-7 of the Rules of Procedure of the Legislative Assembly of Tonga.

It is also important to emphasize that pursuant to clause 51(2) of the Constitution of Tonga, the number of cabinet Ministers “shall be fewer in number than half of the number of elected Members of the Legislative Assembly excluding the Speaker”. As such, there can never be a majority government in Tonga.

The government will always need the support of non-government Members in order to pass business in the House.

Irrespective of formal recognition, there are still political parties in Tonga. The Democratic Party of the Friendly Islands (DPFI) does have a formal constitution and members are required to sign a Memorandum of Understanding.

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reducing the fees and charges as set out in the schedules of these regulations. The report was passed with the full support of the House.

Rather than interpreting these incidents as a show of “no confidence against the government”, in Tonga amendments were made because the committees and the House reached consensus. The budget and the regulations were not seen as belonging to the government, they were seen as belonging to the country.

Left: A Tongan woman in traditional costume; This page: An idyllic sunset overlookingthe Vava’u group of islands.

Although the DPFI does have a set of guiding principles, it does not a have a policy manifesto.

The government is made up of the Prime Minister, Lord Tu’ivakano, two Nobles’ Representatives, five independent People’s Representatives, two People’s Representatives affiliated to the DPFI and two non-elected Ministers. It also does not have a policy manifesto.

Thus, it would seem that cabinet reaches policy decisions through discussions and consensus as opposed to a predetermined policy direction prior to taking up government.

In 2011 (the first year after the political reform), I have seen Ministers argue a point against other Ministers, a Minister either absenting or voting against the government, or Members abstaining or voting against their affiliated party. It has also been a trend for Nobles’ Representatives to vote on issues based on the merit of arguments rather than

taking a preconceived position on a matter.

These examples are not infrequent in Tonga and demonstrate the nature of the Tongan Parliament at work and why it is important that Members work together.

Ministers as Members of Parliamentary Committees In Tonga, Ministers take an active role in committee proceedings contrary to “best practices” elsewhere. Committee developments since the reform suggests that Ministers’ participation in committee proceedings can be both productive and rewarding for the Parliament and the public.

Prior to the reform in late 2010, the budget was always discussed in the Committee of the Whole House. The year 2011 was the first that the budget was referred to the Standing Committee on Finance and Public Accounts. The Minister of Finance is a Member of the

Committee. Throughout the indepth examination of the budget by the committee, the Minister of Finance was very open to the suggestions of committee Members and was intent on finding solutions to issues raised.

He also directed officials from the Ministry of Finance to work closely with the committee. Evidently, whilst the budget ceiling remained the same, some of the allocations for individual line Ministries were amended.

The year 2011 was also the first for Bills and regulations tabled before the House to be submitted for public consultation. Again after the consultative process, some Bills and regulations were amended and some were rescinded altogether. In one particular case, after public consultation relating to the Traffic Regulation and Immigration Regulation, the Finance and Public Accounts Committee reached consensus and presented a report to the House that recommended

The Pacific way Whilst I have only alluded to positive political developments, it goes without saying that Tonga has experienced its fair share of “bumps” along the way. If anything, the political unrest of 16 November 2006 emphasized why it is important to discuss issues openly and freely without taking predetermined positions.

Tonga’s political reform direction has justifiably been influenced by its cultural heritage and social values.

These core values were at the forefront in Tonga choosing not to formally recognize political parties and in why Ministers are encouraged to participate in parliamentary committee proceedings.

In the CPA Plenary Conference held in London in 2011, I was asked by a colleague why the Speaker had agreed to host the CPA Mid-Year Executive Meeting for 2012. My answer was simple: “It’s the Pacific way”.

There are some interesting landmark issues currently being discussed in the Tongan Parliament. One of those issues is the government motion for the removal of the Auditor General for misconduct, which has perhaps raised the eyebrows of some political observers around the Commonwealth.

It remains to be seen whether this issue will be resolved in the Pacific way.

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LOOKING BACK ON TONGA’S HISTORY

TRACING TONGA’S CONSTITUTIONAL HISTORY Tonga’s current Parliament is its first following extensive reforms which brought in fully representative government. The reforms were implemented when the late King Tupou IV voluntarily gave up the powers traditionally invested in the country’s monarchy. A senior official of Parliament reports on the changes.

Dr Sione Vikilani in Nuku’alofa Dr Vikilani is the Clerk Assistant (Reporting) of the Parliament of Tonga.

Dr Sione Vikilani

Tonga has come a long way from 1875 when Tonga’s constitution was promulgated and Parliament was established in the Westminster system. About 135 years later, Tonga entered a new era when the power to rule was handed over without bloodshed from the King to the people through political reform. The political reform gave the common people more say in who should be their leaders through the ballot box instead of serving leaders appointed by the King.

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Historically, the Parliament that was opened on 16 September 1875 to discuss the newly written constitution for the country seemed to have been ideated and modelled after the earlier Fakataha (meeting of King and his Chiefs) which had been a council of chiefs whose main task was to advise the King. Therefore, the Fakataha met irregularly and it had nominal powers, if at all. It is also true that the idea of a Tongan Parliament was not only necessary for political considerations such as members of Parliament, but also as representatives of the chiefs and the people, meeting regularly as an embodiment of the unity of the whole country. The creation of Parliament, together with the constitution, was also important in order to safeguard Tonga’s sovereignty.

The original Parliament was composed of the: government – the Premier, Treasurer, Minister for Lands and Minister for police; 20 nobles – nine from Tongatapu, five

from Ha’apai, four from Vava’u, one from Niuatoputapu and one from Niuafo’ou – who were appointed by the King for life; and 20 people’s representatives elected along the same regional lines as the nobles.

They were elected by suffrage for a term of five years. The Speaker was also appointed by the King.

Parliament had the power to legislate, impeach, determine the amount of taxes, duties and licences; pass estimates of government expenditure; and discuss amendments to the constitution except in areas where it did not have jurisdiction such as matters to do with succession to the throne. It also had some judicial responsibilities such as the right to determine the number of police courts and the frequency with which they could sit.

In 2010, as part of the process of political reform, a large set of constitutional amendments were approved by Parliament and the King. The reforms were enacted following public consultations in

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LOOKING BACK ON TONGA’S HISTORY

A Tongan dancer bids farewell to New Zealand Prime Minister Rt Hon. John Key, MP, in 2007.

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2009 by the Constitutional and Electoral Commission, which produced a final report and recommendations for consideration.

The political reform amendments were contained in the Legislative Assembly Act (2010), the Electoral Act (2010) and three constitutional amendment Acts which were also passed in 2010. These key documents are listed at the end as a guide for reference, further reading and research.

The constitutional and electoral reforms have now been implemented. Those reforms went further and deeper than any other in Tonga’s constitutional history.

Together, they are intended to have

a profound effect on the shape and form of future governments. The key amendments are discussed below in the various chapters, as they relate to specific powers and functions of Parliament.

Key amendments One of the major reforms of 2010 was to make explicit in Article 31, the separation of powers between the three branches of the government, namely, the Cabinet, the Legislature and the Judiciary.

Separation of powers means that each branch has its own set of independent powers, and in addition, has powers to check the other branches of government. In this context, the simple explanation of the branches is that:

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- The Legislative Assembly (the legislative branch) makes laws and oversees the work of the executive; - The Cabinet (the executive branch) develops and implements national policy, including implementing and administering national laws and the budget; - The Judiciary (the judicial branch) interprets the laws passed by the Legislative Assembly, ensuring in particular that they are not inconsistent with the constitution.

Unlike the United States presidential system, the Tongan system of government does not have a “pure” separation of powers, because the Members of the executive sit inside the Legislature.

This can make the relationships of accountability between the two branches more complicated, because the executive is usually quite dominant in the Legislature.

Nonetheless, the Legislative Assembly does have a range of powers available to oversee the government.

The second part of the clause highlights the fact that the Parliament is actually a Parliament of individual Members, not parties.

In terms of introducing Bills, proposing motions and presenting petitions, this is carried out by the individual Members, whether on behalf of themselves or others.

Following the 2010 reforms, the executive no longer includes His Majesty and the institution of the

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LOOKING BACK ON TONGA’S HISTORY

Left: The Chamber of the Parliament of Tonga; This page: Fishing off Niuatoputapu Island.

Privy Council, as was the case in the past. The executive is now comprised of the Cabinet alone.

Cabinet is headed by the Prime Minister and a number of Ministers that must always be less than half the membership of the Legislative Assembly.

Roles of Parliament The Political Reform on 2010 has given Parliament greater power and new roles.

Traditionally Parliament made laws and did not have any say on who was the Speaker or the Prime Minister. Parliament can now elect the Speaker and the Prime Minister, which were two roles exclusively part of the King’s prerogatives. The executive will

also be appointed from elected Members of Parliament apart from not more than four unelected officials which is within the discretion of the Prime Minister should he want to appoint them as Ministers.

As mentioned above, separation of powers is very interesting in Tonga as Members of the executive are also Members of Parliament but this has been normal practice since Tonga’s constitution was Promulgated.

Following the election of the Prime Minister, the Speaker of the House will be elected in accordance with the constitution.

The Speaker and Deputy Speaker can only be nominated from amongst the nobles’

representatives. If only one noble’s representative is nominated and seconded, he is automatically elected Speaker. If more than one candidate is nominated, then a voting process is undertaken. Rule 5 of the Rules of Procedure describes the detailed process for the voting process for the Speaker and Deputy Speaker.

day. A motion of no confidence will have no legal effect if it is passed by the Legislative Assembly:

Vote of No Confidence The vote of no confidence is a new mechanism for regulating and making government accountable to the Assembly and the people. In essence, it is a vote by Members to clarify whether the majority of Members still have confidence in the leadership of the Prime Minister and the government of the

A vote of no confidence in the Prime Minister cannot be moved unless at least five working days’ notice of the intention to move such a motion was given to the Speaker.

If procedural requirements are met, the Speaker must allow the motion to be debated and voted upon.

- Within 18 months of a general election; - Within six months before the next general election; or - Within 12 months of a previous vote of no confidence.

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THE FUTURE OF TONGA’S ECONOMY

DEVELOPING TONGA’S ECONOMY In common with other Commonwealth countries, Tonga is striving to build its economy through diversification as some traditional sectors struggle to maintain revenue flows, reports a senior officer of the Tongan Legislature.

Ms Seinimili Tu'i'onetoa Fonua, in Nuku’alofa.

Ms Fonua is the Legislative Counsel to the Parliament of Tonga.

Tonga’a National Strategic Planning Framework 2009/10 – 2011/12 highlights the Tongan government’s vision of development which is: “To create a society in which all Tongans enjoy higher living standards and a better quality of life through good governance, equitable and environmentally sustainable private sector-led economic growth, improved education and health standards, and cultural development”. It identified private sector-led growth and global trade partnerships as the key to sustainable economic stability.

The National Strategic Planning Framework (NSPF) identified tourism, agriculture, and fisheries as key sources of economic activity. The exports of tuna to the United States and squash to Asian markets have for the last few decades been the mainstay of Tonga’s economy, though later

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research showed a market decline in these exports.

The particular role of remittances Remittances support consumption and investment in assets and education, as well as significantly improving average incomes of the poorest households. Of all the Pacific economies, Tonga is the largest recipient of remittances per head of population (transfers sent from Tongans overseas). In 2007, remittances per capita stood at U.S.$992, above Samoa (U.S.$640), and Fiji (U.S.$197).

Remittances over the years have acted as Tonga’s safety net mechanisms to its relatively weak economy.

In 2001, remittances represented 37 per cent of Tonga’s GDP, and 19.7 per cent of household monetary income (Tonga statistics department,

Ms Seinimili Tu’i’onetoa Fonua.

2002). By 2009, remittances fell to 22 per cent of GDP as the impacts of the global economic crisis were felt.

A significant decline in remittances, in particular from the U.S. was noted in the aftermath of the global economic crisis. While remittance inflows peaked in 2007/08, the fiscal year 2008/09 saw a decline of 15 per cent.

Studies showed that the costs of

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Squash and tuna make up two of Tonga’s main exports.

sending remittances to Tonga were high by international standards, but the World Bank and the IRC have been working with banks to reduce this cost. For instance, Westpac Bank has created a debit card whereby Tongans in New Zealand can deposit money into an account that can be withdrawn by relatives back home.

A study of the impact of remittances on poverty points out that in Tonga, more than 90 per cent of households receive remittances (although the 2006 Census puts that figure at 82 per cent). Even households without migrants benefit from remittances since remittance recipients make internal transfers to non-migrant households.

Other studies have also concluded that remittances reduce the incidence and depth of hardship. Low-income households in Tonga derived one-quarter of their cash income from remittances (the national average stood at one-fifth, ADB 2003).

Exports According to estimates based on the overseas exchange transactions (OET) reported by the Reserve Bank and commercial banks, the total value of exports fell

by Tonga Paa’nga (TOP)$0.7 million to TOP$30.4 million in 2005/06, largely reflecting lower receipts from agricultural exports, particularly squash.

During the first eight months of the 2006/07 financial year, export earnings amounted to TOP$18.8 million compared with TOP$19.2 million a year earlier. The fall in export receipts largely reflected lower proceeds from squash exports in 2006.

Imports During 2005/06, the value of imports (OET based) rose by TOP$32.2 million to TOP$236.3 million, underpinned by firm growth in remittances and growth in business and household credit.

During the first eight months of 2006/07, import payments were

TOP$138.8 million, compared with TOP$158.2 million in the same period last year. The decline in import payments partly reflected the imposition of credit ceilings on bank lending to the private sector.

New Zealand continued to be Tonga’s largest supplier of imports (35.0 per cent), followed by Fiji (27.0 per cent), and other countries (14.6 per cent).

Activities helping to increase the economy Tonga is a member of regional partnership trade agreements with the European Commission (EC) and other trading partners such as Australia & New Zealand. The region’s Pacific ACP – European legal text on trade agreement – has been finalized and submitted to the ECfor their consideration.

The exportations of kava and tuna from Tonga and seven other Pacific islands to the EC are the key exports in these trade negotiations.

New labour markets have

opened in New Zealand and Australia under the Recognised Seasonal Employment Scheme (RSE) and Pacific Seasonal Worker Pilot Scheme (PSWPS) respectively, for Tonga’s laborers.

These seasonal workers can work in farms in New Zealand and Australia for up to seven months in any 12-month period.

They remit money back home benefitting their families and broader communities.

Offshore mineral exploration is another area for economic growth, where work is undertaken by an overseas mining company (Nautilius Minerals Inc) in the exclusive economic zones and the territorial waters of Tonga for sulphide, copper, gold, zinc and silver.

Apart from international trade strategies, Tonga strives to improve its economy by prioritizing private sector-led economic growth, health and education in its 9th National Strategic Planning Framework 2009 – 2012.

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CONSTITUTIONAL TALKS IN T&C

A CASE FOR AN EARLY RETURN TO DEMOCRATIC GOVERNANCE The Leader of one of the Turks and Caicos Islands’ political parties argues that the rapid resumption of internal self-government for the United Kingdom’s northern Caribbean territory is essential for its development.

Mr Douglas Parnell in Grand Turk Mr Parnell is the Leader of the People’s Democratic Movement, which was in opposition when the British government suspended internal selfgovernment for the Turks and Caicos Islands in 2009.

The Peoples Democratic Movement stands for political and constitutional advancement of the people of the Turks and Caicos Islands. We believe in a system that is democratic and accountable and therefore cannot support any measure that will cause regression of the Turks and Caicos people and our rights. We submit that the aims of improving integrity in public life, more efficient arrangements for government, an improved justice system, achieving a Parliament representative of the people, better public financial management and promoting an inclusive community are not at odds with constitutional advancement, however the draft constitution now being proposed to return the Islands to internal selfgovernment does not accomplish this for our people.

In the spring of 2009 the three main political parties in the U.K. decided through consensus to intervene and partially suspend our constitution because there was deemed to be a high probability of systemic corruption in the government of the Turks and

50 | The Parliamentarian | 2012: Issue One

Caicos Islands (T.C.I.). Most persons felt that the real purpose of the suspension of the constitution was to provide an opportunity for the British government to fight corruption and bring to justice those who were accused of criminality in government without local interference.

However, it was our system of government and way of life that has also been put on trial and the measures to correct a system deemed inappropriate by Her Majesty’s Government are being imposed against the will of the people. Out of a sense of love, compassion and duty to our people we have made efforts at home and in London to alter this approach but have been met with resistance on the part of the United Kingdom Foreign and Commonwealth Office (FCO) and the Islands’ interim government who favour forging ahead with an agenda to correct a system that has not been proven to be the problem. To the contrary, our Public Accounts Committee in 2007-2009 helped

Mr Douglas Parnell.

to uncover wrongdoing by the old government.

Getting back to democracy It was not our 2006 constitution or its organs that failed, but those elected by the people and the decision-makers at the FCO who failed to act appropriately on behalf of the people. In fact, in a paper entitled “Governance in the U.K. Overseas Territories: The Case of the Turks and Caicos Islands”, this point about U.K. government neglect is well argued. It states: “But the U.K. government can be blamed for not

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CONSTITUTIONAL TALKS IN T&C

doing enough to pre-empt the collapse in governance in the T.C.I. in the first place. There had been strong indications for several years that there were deep-rooted problems in the T.C.I. Numerous studies were undertaken that highlighted issues of concern….

After the last report, the Governor of the T.C.I. expressed serious concerns about what was happening and even suggested a Commission of Inquiry into Crown Land deals should be established (T.C.I. Commission of Inquiry 2009: 94-95). However, despite these reports, only limited action was seemingly taken by the U.K. authorities. The FCO was certainly aware of some of the problems in the T.C.I.” Since our focus is the restoration of our constitution to aid a swift return to a democratically elected government and Legislature, it is important to note that there are very flawed and dangerous arguments that underpin the proposed changes which have been put forward by some Turks and Caicos Islanders, who I maintain have used our

political misfortunes as an opportunity to push a political agenda of obtaining power in the guise of improving society.

The false arguments are: 1. That our political parties are insular and control a monopoly on the government and elections process; 2. That there are individuals who have a contribution to make to the advancement of the government and deserving people are being denied because they cannot climb the ranks of these political institutions; 3. That our community is not open enough to allow residents a right to participate in the direction of the country; that transactional politics have corroded a system of free and fair elections; 4. That some islands and people in the Turks and Caicos Islands are unrepresented in Parliament and deserve special status at any cost; 5. That the political parties must be regulated because they

cannot be trusted to put measures in place to police themselves, and; 6. That the political parties have no greater mandate than those appointed by the British government.

Throughout our history, though not perfect, our people have sought to advance constitutional measures to protect the rights of individuals, improve the checks and balances in the administration of government and, most importantly, promote the institution of integrity in public life.

The proposed draft constitution is an overreaction to correct an anomaly in our history. The underlying assumptions of the draft constitution are flawed.

Call to the U.K. government Effectively, our plea is for the U.K. government to reconsider its approach and enact a constitution that gives the people of the Turks and Caicos Islands greater autonomy over our destiny, the government the right and power to govern while giving the opposition

and the people of the country the opportunity to check the government. We will address this situation through outlining our views on critical provisions of the draft including: a) Belonger-ship; b) House of Assembly including its size (including committees), its functions and limitations and how it is made up (voting system); c) Powers of the Governor vs. 2006 constitution; d) Public Finance and the Watchdog Institutions; e) Proposed constitutional Silence on trial by Jury; and f) Constitutional amendments that would give greater authority and responsibility to the electorate, the Legislature and the Executive including referendum provisions and delegation of certain reserve powers.

Most observers to these talks including the international community, the U.K. Parliament, the T.C.I. people, Caricom and our brothers and sisters in the other Overseas Territories are watching carefully to see if the U.K. government continues to listen or whether they amount to a rubber stamping of a rejected proposal.

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PARLIAMENTARY PROGRAMME FOR COMMONWEALTH STAFF

AN INTERNATIONAL EXECUTIVE PROGRAMME FOR PARLIAMENTARY STAFF Ongoing professional development courses are fully recognized in other occupations, even to the point of being a requirement for continued work in some jobs. Professional development courses for parliamentary staff are, however, less common. A new parliamentary staff course combining face-toface training with continuing virtual support has begun at a Canadian university, writes the course’s leader.

Dr Rick Stapenhurst and Ms Vienna Pozer Dr Rick Stapenhurst is a Professor of Practice at McGill University and Parliamentary Advisor to the World Bank Institute Ms Vienna Pozer is a senior undergraduate student at McGill University.

Recognizing that parliamentary staff are the “corporate memory” and procedural experts of Parliaments, the Commonwealth Parliamentary Association (CPA) and the World Bank Institute (WBI) have, both individually and collectively, organized a variety of training courses for parliamentary staff across the Commonwealth.

Topics have included Committees, Parliament and the Budget, and Poverty Reduction and Financial Oversight, among others. Four years ago The Parliamentarian reported the substantial training programmeme expansion gained through the use of web-based learning courses (R. Stapenhurst and B. Prater, The Parliamentarian, 2008, issue four, p.337). Feedback from participants in both the traditional (face-to-face) and webbased courses has been positive, with staff welcoming tailor-made courses designed to assist them to carry out their work within

52 | The Parliamentarian | 2012: Issue One

Dr Rick Stapenhurst.

Parliament. There has been a growing demand from staff, however, for a global, universitycertified, executive-level training programme…a programmeme that would combine the personal aspects of face-to-face training with the flexibility of web-based courses and which would be certified by a top class Commonwealth university. In this article, we describe the process which CPA and WBI have followed to launch such a programme.

1. Ensuring success through consultations To ensure the success of such a programme, CPA and WBI recognized the importance of obtaining substantial input from the potential users of the programme, the parliamentary staff, at the design and conceptualization stages. Guidance from the Clerks and Secretaries General was essential to ensure that the programme curriculum and its delivery would be in line with the contemporary needs of the parliamentary staff. As a result, a three-stage process has taken place, involving regular briefings to Commonwealth Clerks and Secretaries General, a survey mailed out to Clerks and Secretaries General across the Commonwealth and la Francophonie and a WBI-CPA study group which gathered in depth views from parliamentary staff of both Communities.

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PARLIAMENTARY PROGRAMME FOR COMMONWEALTH STAFF

programme to succeed, it would have to have a strong base and should build on CPA and WBI successes and strengths. It was determined that the programme should be structured in such a way to allow for changes and growth in areas such as curriculum, delivery modalities, and admission requirements so as to meet the evolving needs of Parliaments. This would require rigorous evaluations

by WBI’s Evaluation Group and by the participants’ own evaluations on the quality and relevancy of courses and their effectiveness. It was thus recommended:

convenience and flexibility to participants as it enables them to develop essential information and communication skills.

Study group participants suggested that the programme should only be available to midlevel parliamentary staff who have demonstrated a potential to reach the highest levels of parliamentary management. Applicants to the programme, it was believed, should possess a bachelor’s degree or equivalent work experience.

Results of the questionnaire indicate that the vast majority (82 per cent) Clerks and Secretaries General favored the programme targeting Chamber or Committee procedural staff while 50 per cent thought the programme should be offered to administrative staff involved in the corporate governance of Parliament. Some 26 per cent felt that research staff mostly from Parliamentary libraries and political caucuses would also benefit from such a programme. In short, it was generally felt that all mid-level staff, no matter their areas of their responsibility within Parliament, would benefit from the programme. However in order to ensure professional academic standards, it is recommended,

q that the programme be structured to allow future changes and growth to permit other languages, and other groups such as staff of the executive and judicial branches of the government to participate

q that the minimum requirements for admission to the programme be a bachelor’s degree or equivalent work experience and that a competitive and highly selective administrative process be adhered to.

Accessible: study group participants proposed that such a programme should be built on the existing WBI/CPA E*Learning modules, which were proving to be highly successful, with a substantial uptake, particularly by African parliamentary staff. This method of delivering training courses has proven to be effective and its success would serve as a model for the programme.

E*Learning, it was noted, allows for increased access, cost efficiency,

It was proposed that the programme would be offered initially in English and subsequently in French. Moreover, it was thought that the programme would be developed for parliamentary staff only and not be offered to Members, as such a joint programme (to both staff and Parliamentarians) would result in a curriculum that would be too loaded, and most probably, with conflicting goals. It was therefore recommended:

Qualified parliamentary staff are essential to all Parliaments.

CPA and WBI have briefed Commonwealth Clerks and Secretaries General at the annual Society of Clerks at the Table meetings, held concurrently with CPA’s annual conferences and of the Association of Secretaries General of Francophone Parliaments (ASGPF). Through such consultations, both organizations were able to obtain useful feedback in terms of the need for, and parameters of, such a programme.

In addition, a questionnaire, designed to obtain specific feedback on existing programmes within each parliamentary jurisdiction, on the utilization and experience of the WBI/CPA webbased E*Learning courses and on the proposed university-certified programme itself, was sent to more than 150 Clerks/Secretaries General from the Commonwealth and la Francophonie. A total of 36 per cent (for the Commonwealth) and 41 per cent (for La Francophonie) Clerks and Secretaries General responded, providing useful feedback and providing a general endorsement to proceed with the development of the proposed programme.

Thirdly, in order to tailor the programme specifically to the needs of high-potential, mid-level parliamentary staff, CPA and WBI convened a Study Group in May 2009 which was held in Dhaka,

Bangladesh. Those in attendance included: Bangladesh (Mr Ashfaque Hamid, Secretary of the Parliament and Mr Pranab Chakraborty, additional secretary); Burkina Faso (Mr Alphonse Nombré, Secretary General of the National Assembly); Cambodia (Mr Oum Sarith, Secretary General of the Senate and Mr Sotkun Chhim); India (Mr P.P.K. Ramacharyulu, Director, Rajya Sabha Secretariat); New South Wales (Mr Russell Grove, Clerk of the Legislative Assembly); and South Africa (Mrs Sesh Paruk, Human Resources Executive). Also present at the meetings were representatives from the WBI (Dr Rick Stapenhurst and Mr Niall Johnston) and from the United Nations Development programme (Mr Warren Cahill). Mr Paul Belisle, former clerk of the Canadian Senate acted as facilitator and rapporteur. The participants reviewed and endorsed the results of the questionnaire and made significant recommendations to WBI and the CPA. Nature of the programme Participants in the study group noted that, for the executive training programme for parliamentary staff to succeed, it would need to be adaptable, accessible and unique.

Adaptable: study group participants believed that, for the

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PARLIAMENTARY PROGRAMME FOR COMMONWEALTH STAFF q that the development of a similar programme for Members of Parliament be considered in the future

Unique: Study Group participants argued that the programme should offer a unique training and capacity building plan for mid-level parliamentary staff. It should combine a theoretical and a practical approach, use a blended learning methodology of face-toface training, a web-based learning and possibly videoconferencing for its delivery. In order to safeguard its uniqueness, the programme should be structured in a way so as not to compete with existing training efforts. Study group participants recommended: q that a review of university

curricula be undertaken to ensure that the programme not compete with existing efforts of universities

Curriculum content Study group participants noted that, if the main objective of the programme is to strengthen the capacity of Parliaments by having better trained staff, the course content would have to reflect this objective. They recommended: q that the course be designed to concentrate on how Parliaments work with participants focusing on their local needs

Study group participants and respondents to the questionnaire offered advice on curriculum development. They proposed that WBI and CPA carefully review their existing courses and that they both strengthen those which should become part of the new programme and develop new courses, as necessary. It was felt that the current split between parliamentary governance, core parliamentary functions and contemporary global (development) issues was appropriate, but that the courses

under core parliamentary functions needed to be expanded, to include: q three new courses: i) in parliamentary procedures and practices (including privileges and immunities of Members, rules of debate and parliamentary documents); ii) parliamentary management (including leadership training); and (iii)possible courses of a more specific nature such as information technology, research and legislative drafting.

Other courses were also recommended, including federal/provincial/ local relations, Hansard reporting, information management, parliamentary diplomacy and international affairs.

For this reason, the study group recommended that a data bank of courses be created to orient staff in disciplines that would not be offered by the programme. As an example, a course in (say) Hansard-reporting, which would be too technical to be offered within the constraints of the proposed programme, could be identified. It was thus recommended that: q that WBI create a data bank of courses and act as the conduit to institutions for participants who may wish to specialize in specific areas not offered by the programme

It was further believed that participants of the programme should also have the opportunity to customize part of their programme by choosing elective courses from the list of modules listed in the

development series that would meet their individual interests and career goals. Thus, the study group recommended: q that the compulsory courses, be supplemented with preapproved elective courses selected from the development series.

Study group participants and survey respondents stressed that the pedagogical approach also had to include a practical facet. This would permit staff to address specific regional/local concerns of their legislative institution and/or to develop skills and abilities that they need in their current or future jobs within Parliament.

It was believed that the programme should entail opportunities or integrative mechanisms to complement the theoretical and practical courses.

Case studies of personal or local interest, a study trip to another Parliament or an in-house research assignment were possibilities that it was felt would enrich the programme.

Such opportunities would be pre-approved by the director of the programme in consultation with the participant’s supervisor. It is recommended: q that integrative mechanisms of practical nature be built into the programme to complement the theoretical component.

Study group participants further felt that staff participating in this programme would benefit from a

“...The programme should...combine a theoretical and a practical approach, use a blended learning methodology of face-to-face training, a web-based learning, and possibly videoconferencing for its delivery.”

54 | The Parliamentarian | 2012: Issue One

professional mentoring relationship with experienced practitioners. This would give the participants the advantage of working with someone who he/she has established a good working relationship, in an environment that is more conducive to discussing the theories and applying them to local issues. Thus, it was recommended: q that a mentorship programme be developed to assist participants in the learning process

To maximize results, a model for a comprehensive learning programme was proposed for consideration. See Diagram 1.

Curriculum modalities The study group further considered the duration of the programme, financial considerations and faculty.

Duration: Even though the focus group recommended a strict time frame of nine to twelve months to complete the programme, respondents to the questionnaire felt this to be too restrictive. Smaller jurisdictions stated that they could not afford to have essential staff concentrate on a full course-load at the expense of their parliamentary work. More than a third (39 per cent) raised concerns of the time-cycle being too limited.

For this reason, it was felt prudent to address these valid concerns with a more liberal timeframe. To be too restrictive may result in students abandoning courses or a high drop-out or failure rate.

Study group participants suggested that consideration could be given to accepting requests for extensions when substantiated by justifications and with the authority of a superior of their institution. However a time limit up to possibly three years should be established.

Consequently, it was recommended:

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PARLIAMENTARY PROGRAMME FOR COMMONWEALTH STAFF Diagram 1: Comprehensive Learning Model (Study Group Recommendations)

Building Capacity

Knowledge of democratic principles

Knowledge of how Parliament works

Skills in managing in a parliamentary setting

E* Learning Courses (compulsory)

E* Learning Courses (compulsory)

E* Learning Courses (compulsory)

One week residency: practical and theoretical components (mentorship; peer learning; practical research projects

Elective E* Learning Integrative mechanisms 1) Case study of personal or local interest 2) Study trip to a Parliament or relevant institution 3) On-going mentorship

q that the programme follow a nine to twelve month cycle but in the event that circumstances do not permit students to complete the programme within that time frame, consideration for extensions for up to three years be granted.

Financial considerations: Cost was a key driver in the discussions by the Clerks. The results of the questionnaire showed that financial resources for staff training are not increasing and for smaller jurisdictions it is almost inexistent. For this reason, it was

stressed that the programme be affordable. (Pursuant to its mandate, WBI would facilitate the development and assist in the oversight of the programme but it cannot fund individuals or universities). Sources of funding for enrollment would have to be provided by participating Parliaments with possible financial assistance from donors partners.

The study group recommended: q that selection of partners and funding modalities be explored and determined in accordance with

WBI`s past funding experiences, policies and procedures.

A rough estimate indicates that annual programme delivery would cost approximately Can. $150,000. Assuming an initial enrollment of 25 participants, fees of approximately Can. $6000 per participant would be necessary to ensure financial self-sustainability..

Faculty: The Study Group believed that the programme, bringing together theoretical thinking and practical experience, local experiences and international

perspective, would be inspired by a team of experts. These experts would have to combine theoretical and practical skills and should represent a high level of expertise in Parliament and its role in democratic governance.

Programme designers, it was recommended, should recognize the necessity for the courses to address the local/regional concerns of Parliaments. It considered important that, even though the programme would have a “home-base” at a recognized university:

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PARLIAMENTARY PROGRAMME FOR COMMONWEALTH STAFF Table 1: draft agenda for June 2012 residency programme 9.00-10.30

10.30-11.00

11.30-13.00

13.00-14.00 14.00-15.30

15.30-16.00

16.00-17.30

Sunday and

Arrival

Registration welcome reception

Monday

Programme overview

Tea/coffee break

Parliamentary Democracy-1

Lunch

Parliamentary Democracy-2

Tea/coffee break

Government Accountability

Tuesday

Core Functions of Parliament – Legislation

Tea/coffee break

Core Functions of Parliament – Oversight

Lunch

Core Functions Tea/coffee of Parliament break – Representation

Participant Presentations Discussion

Wednesday

Research Projects – Overview

Tea/coffee break

Corporate Lunch Management of Parliaments-1

Corporate Management of Parliaments-2

Parliamentary Procedures

Thursday

Tea/coffee break

Visit to Canadian Parliament with Briefings (to be confirmed)

Friday

Introduction to Mentors-1

Saturday

Farewell breakfast

q that the programme faculty be knowledgeable of Parliament and its role in democratic governance, and q that when possible, these instructors/facilitators be selected from different countries

2. An international executive programme for parliamentary staff McGill University’s Institute for the Study of International Development has offered to pilot an executive development programme for parliamentary staff reflecting the above principles on a cost-recovery (no profit) trial basis.

Willing to work with partners, it has also offered to help find sponsors to help reduce tuition costs, especially for participants from developing countries.

The programme broadly mirrors

Tea/coffee break

One-on-One Meeting with Mentors

Research projects Tea/coffee Presentation break of Proposals

Introduction to E Learning

Departure

the recommendations from the study group and takes into account many of the suggestions from survey respondents (see Diagram2). It comprises three elements: i) a one-week intensive residence programme, to be held at McGill University’s main campus in downtown Montreal (scheduled to take place in June 2012); see Table 1. ii) five of eight e*Learning courses on democratic principles, how parliament works and particular skills required by parliamentary staff; and iii) two elective e*Learning courses on contemporary development issues.

Three unique features of the programme are a required case study or applied research project

56 | The Parliamentarian | 2012: Issue One

Lunch

by participants on their own Parliament; on-going mentorship by experienced parliamentary staff

“Programme designers...should recognize the necessity for the courses to address the local/regional concerns of Parliaments.”

and other practitioners throughout the programme and the possibility of a short-term attachment to another Parliament.

The programme is summarized in Diagram 2: Tuition costs of the programme have been set as low as possible, and currently are Can. $ 5,995 (plus applicable taxes). Special team savings of $500 per person are available when two or more people from the same organization register at the same time. In addition, tuition bursaries (of up to $1,000) are available to highly qualified applicants from developing countries.

In the spirit of inclusiveness, CPA, WBI and McGill are reaching out to other parliamentary strengthening organizations to partner in the programme.

To date, the Parliamentary Centre and the State University of New York (SUNY-CID) are

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PARLIAMENTARY PROGRAMME FOR COMMONWEALTH STAFF Diagram 2: International Executive Programme for Parliamentary Staff

Building Capacity

Knowledge of democratic principles

Knowledge of how Parliament works

E Learning Courses* 1. Parliamentary governance

E* Learning Courses 2. Public financial mgt., the budget and Parliament 3. Committees

Skills in managing in a parliamentary setting

E* Learning Courses 4. Corporate management 5. Communications 6. IT 7. Research 8. Leg. draft

One week residency: practical and theoretical components Parliamentary democracy; government accountability; core functions of Parliaments – legislation, oversight representation; corporate management of Parliament; parliamentary procedure; plus guest speakers

Two Elective E* Learning courses on contemporary issues from: 9. Parliament and the media 10. Controlling corruption 11. Climate change 12. Extractive industries

Integrative mechanisms Case study/research project of personal or local interest On-going mentorship Short-term attachment to another Parliament

partners and discussions are ongoing with the University of

Laval and the Centre for Democratic Institutions in Australia.

For further information contact Rick Stapenhurst at

Frederick.Stapenhurst@McGill. ca.

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Stapenhurst ad:3-col feature 11/04/2012 14:43 Page 58

An international Executive Programme for Parliamentary Staff

THE EXECUTIVE PROGRAM

T

he World Bank Institute and McGill University, in collaboration with the international partners, have developed a prestigious 18-month university-based Executive Development Program for parliamentary staff. Designed in close collaboration with senior parliamentary staff from Africa, Asia, Australasia, Europe and North America, the Program is uniquely designed to meet the professional development needs of parliamentary staff in the 21st. century One week Residency From June 11th to 15th 2012 Topics will include the following:Parliamentary Democracy, Accountability, Legislation, Oversight, Representation, Corporate Management of Parliaments, Parliamentary Procedure.

E-Learning Courses (July 2012 Dec. 2013): Parliamentary Governance, Public Financial Management, Committees, Corporate Management, Communications, IT, Research, Legislative Drafting, Parliament & Media, Controlling Corruption, Climate Change and Extractive Industries Key Features:Unique program, combining theory and practice Highly qualified teaching team, combining high-level, practical parliamentary experience and world class subject-matter experts - One-on-one mentoring - Possibility of short-term parliamentary attachments - Global partners and associated institutions McGill University Certificate, on successful completion of the program

Information on Registration: Tuition is Can. $5,995 (plus applicable taxes). All course related fees and materials are included. Bursaries to partially offset tuition costs are available to qualified applicants, especially those from developing countries.

Invoice billing options are available and payments by cheque should be made to McGill University: Institute for the Study of International Development. Attention: executive Programs Suite 238, 3460 McTavish Street Montreal, Quebec, H3A 1X9 Canada For Further Information please call (+1) 514 398 3257 or email frederick.stapenhurst@mcgill.ca.

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Parliamentary Report NEWS AND LEGISLATION FROM COMMONWEALTH PARLIAMENTS INDIA: The Damodar Valley Corporation (Amendment) Bill, 2011 Page 69

AUSTRALIA: Human Rights (Parliamentary Scrutiny) Act 2011 Page 71

BRITISH COLUMBIA: Freedom of Information and Protection of Privacy Amendment Act, 2011 Page 75

QUÉBEC: Cultural heritage Page 76

QUÉBEC: Financing of political party leadership campaigns Page 77

KEVIN RUDD RESIGNS – PRIME MINISTER GILLARD CALLS LEADERSHIP BALLOT Page 71

SCOTLAND HEADS TO INDEPENDENCE REFERENDUM Page 60

DISCUSSING BLACK MONEY IN THE LOK SABHA Page 65

GOVERNMENT USES NEW MAJORITY TO RECOVER LOST BILLS Page 74

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PARLIAMENTARY REPORT

UNITED KINGDOM

SCOTLAND HEADS TO INDEPENDENCE REFERENDUM Scottish First Minister to hold referendum on Scotland’s independence In May 2011, elections to the Scottish Parliament produced

Rt Hon. Alex Salmond, MSP

an overall majority for the Scottish Nationalist Party (SNP). The party, which seeks independence for Scotland from the rest of the United Kingdom, had previously operated a minority government. The question following the referendum result was, therefore, when would a referendum on independence take place?

On 25 January 2012 the Scottish First Minister, Rt Hon. Alex Salmond, MSP, presented a consultation document to the Scottish Parliament setting out the terms on which he intends to hold a referendum. Mr Salmond told the Scottish Parliament that he intended to hold the referendum in 2014, with a question of “Do you agree that 60 | The Parliamentarian | 2012: Issue One

Scotland should be an independent country?”

Commending his statement and the consultation document to the Parliament, Mr Salmond said: “Independence, in essence, is based on a simple idea: the people who care most about Scotland—that is, the people who live, work and bring up their families in Scotland— should be the ones taking the decisions about our nation’s future. No one else is going to do a better job of making Scotland a success. No one else has the same stake in our future. The people of Scotland should be in charge.”

Responding to the First Minister, the Leader of the Scottish Labour Party, Ms Joanna Lamont, MSP, called for him to engage in talks with

Ms Joanna Lamont, MSP

other Scottish political parties and defended Scotland’s membership of the United Kingdom: “Does the First Minister

recognize that those of us who wish to stay in the United Kingdom want Scotland to be a strong country? Why does he belittle Scots—and generations of Scots—by saying that we are not equal partners with the other nations in the United

Rt Hon. Michael Moore, MP

Kingdom? Indeed, why does he assert as fact that we all wish to be independent of each other when we all know, as families and communities, that we want to come together in partnership and co-operation?”

However, the legal basis of a referendum on independence has been questioned by the Westminster government. Two weeks before Mr Salmond made his statement to the Scottish Parliament, the Secretary of State for Scotland, Rt Hon. Michael Moore, MP, (Lib Dem) had made a statement to MPs on “Scotland’s Constitutional Future.”

In his Statement, Mr Moore

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UNITED KINGDOM

set out his own consultation on how a referendum on Scottish Independence might operate.

He told the House of Commons: “To legislate for a referendum on independence, the Scottish Parliament must have the legal power. It is this government’s clear view that the Scottish Parliament does not have that legal power.”

Ms Margaret Curran, MP

Both he and the Shadow Scottish Secretary, Ms Margaret Curran, MP, (Lab), accepted that, following the election result, a referendum would take place. Mr Moore went on: “It is in everyone’s interests that the two governments take on board the needs of Scotland and the opinions of its people, work together, and deliver the legal, fair and decisive referendum that is in our common interests.”

However, the Leader of the

Mr John Thurso, MP

SNP in the House of Commons, Mr Angus Robertson, MP, questioned why the government was attempting to “dictate terms” over how the referendum would be held. He wanted to know why the Scottish Government’s proposal that 16 and 17 yearolds should be able vote in the referendum was being resisted by the Westminster government and why Westminster was, in his view, trying to exercise control over the date and question.

Responding to Mr Robertson’s points, Mr Moore denied that the government was attempting to set the date.

He said that the referendum had to be legal and argued he was offering the Scottish government a way to achieve that. On the franchise he observed that there was a

Mr James Clappison, MP

William Cash, MP, (Con), Mr James Clappison, MP, (Lab) and Mr Chris Bryant, MP, (Lab) asked questions about the potential relationship between an independent Scotland and the European Union, whilst Mr Ben Wallace, MP, (Con) asked about whether service people based in Scottish regiments would be able to vote in any referendum. Democratic Unionist Party MPs, such as Mr Ian Paisley, MP, urged the government to be strong in its defence of the Union.

The debate over the referendum is likely to continue throughout the year, and it remains to be seen how through which Parliament and what way the legislation to establish the referendum will proceed.

Mr Angus Robertson, MP

legitimate argument about the age of voting in general but did not consider it appropriate to change the franchise for a specific vote on a specific issue.

Fifty-seven backbench MPs questioned the Secretary of State on his statement. Mr John Thurso, MP, (Lib Dem), argued that uncertainty over the constitution was impact on business in Scotland, whilst Mr Stewart Hosie, MP, (SNP), pointed to figures on North Sea investment to suggest there was no such impact. Mr

Health and Social care Bill The Health and Social Care Bill has been one of the dominant features of this, the first session of Parliament since the May 2010 election. Introduced in the House of Commons by the Secretary of State for Health, Rt Hon. Andrew Lansley MP, (Con) on 19 January 2011, few pieces of legislation have attracted quite so much public comment, or taken up so much parliamentary time. As the session draws to a close, with the Queen expected to open the second session in early May, the Bill is nearing the end

of its parliamentary progress.

The Bill received its second reading in the House of Commons on 31 January 2011.

The Secretary of State opened the debate by describing its aims: to place patients’ individual needs above all else, to ensure that decisions taken within the National Health Service (NHS) would be locally taken, introducing a “relentless” focus on quality and, finally, encouraging NHS staff to deliver services through social enterprises, charities, private companies and providers to

Mr Ben Wallace, MP

create a “vibrant social market for health care.”

From the start, much of the Bill faced strong opposition from the Labour party; with the then-Shadow Secretary of State for Health, Rt Hon. John Healey, MP, (Lab), telling the House that “the more those in the NHS see [of the

Rt Hon. John Healey, MP

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government’s plans], the more worried they become and the less they find to support.”

Despite this, the Bill passed its Second Reading by 321 votes to 235 and began its Committee stage in the House of Commons for line by line scrutiny. The Committee held its first hearing on 8 February 2011. Over the next two months it became the longest running Committee in the Commons since 2002, holding a total of 28 hearings with one hundred divisions (votes), before concluding on the 31 March 2011.

Lord Owen

On 4 April, the Secretary of State made a statement to the Commons. He acknowledged significant concerns about the Bill and offered to “take the opportunity of a natural break in the passage of the bill to pause, to listen and to engage with all those who want the NHS to succeed.” On 21 June 2011, following a period of further consultation, the government tabled a motion – passed after a short and heated debate – to re-commit parts of the Bill to Committee for further amendments.

The Bill received a further 12 sittings in Committee, beginning on 5 July 2011 and concluding on 14 July 2011; followed by two days debate on the Report Stage and finally passing its House of Commons Third Reading on 7 September.

UNITED KINGDOM

The Minister of State, Rt Hon. Simon Burns, MP, (Con) remarked that “the Bill has been scrutinized for a total of over 100 hours, and has been the subject of 40 Committee sittings—more sittings than there has been for any public Bill between 1997 to 2010.”

It was against this background that the Bill arrived in the House of Lords on 8th September, receiving a two-day Second Reading debate on 11th and 12th October before 15 days of consideration in Committee.

On 8 February 2011, the Bill began the first day of debate on its report stage. The former deputy Leader of the Social Democratic Party, Lord Owen (Crossbench), noted that many of the measures proposed in the Bill were already being implemented. Citing concerns from practitioners that the failure of the Bill could create a “no-man’s land” whereby measures that had been undertaken had to be subsequently undone, he argued: “We [the House of Lords] should not feed the idea that legislation can reach us but we cannot do anything about it because it has already been

Lord Patel

pre-empted. Whatever our views on the Bill, and it is controversial, it is important on democratic grounds that we maintain the position that

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legislation does not have full authority until it has gone through all its processes.”

Responding for the government, the Parliamentary Under-Secretary of State, Earl Howe (Con), argued: “It has been the practice of successive governments, once a Bill has passed through the other place, to do as we have done and make preparations for that

Earl Howe

Bill's implementation. The previous government did it on a number of occasions and we are doing so as well.

Furthermore, we are doing so in a measured and structured way. It is not an overnight process-it never could be. It is being done over a period of years. It in no way pre-empts the will of this House, which has made its views, to which the government have listened very carefully, known on a number of issues.”

The most high-profile vote of the two days of Report stage that has taken place so far was on an amendment to emphasise that importance of mental health in the NHS. Opening the debate Lord Patel (Crossbench), noted that the government’s mental health strategy, No Health without Mental Health, had aimed to introduce a parity of esteem between mental health and physical health services.

However, he argued that mental health services were

significantly less well funded than physical health services.

His amendment “would place an explicit duty on the Secretary of State to promote parity of esteem between mental and physical health services”.

Speaking for the Opposition, Baroness Thornton (Lab), supported the amendment, saying: “Legislation should be the expression of policy and this amendment flows from important policy commitments by successive governments about the parity of policymaking at all levels of the system to consider mental health alongside physical health.”

Responding for the government, Earl Howe, observed that the Bill already defined “illness” as encompassing both physical and mental disorders, set out a length the measures that the government was undertaking to achieve a cultural parity between mental health and physical health services and concluded: “Illness" is already defined in the Act and, for me, these words are not only legally superfluous, they also suggest that there is a divide between mental and physical illness rather than a convergence.”

Winding up, however, Lord Patel said that he could not “say that I can accept that it would create difficulties if we included mental illness with physical illness” and pushed the amendment a vote, whereupon it was passed by 244 votes to 240.

With a likely six further days for the Bill to be considered on Report, followed by the process of “ping-pong”, whereby Lords and Commons attempt to reach agreement on the text of the final Bill, the parliamentary passage of the Health and Social Care may be in its final stages, but it is not over yet.

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NEW ZEALAND

NEW ZEALAND GENERAL ELECTION: FINAL RESULTS Negotiations between political parties resulted in Prime Minister Rt Hon. John Key, MP, being able to form a National-led government with a majority in the House on confidence and supply.

National signed confidence and supply agreements with the ACT Party, the Maori Party, and the United Future Party.

Rt Hon. John Key, MP

On 10 December 2011 the final results of New Zealand’s General Election were published, after the counting of special votes. The National Party’s share of the vote decreased, resulting in a drop to 59 seats, from a total of 60 on election night. As expected, the Green Party gained a seat, giving it a total of 14, and bringing Ms Mojo Mathers into the House, as the New Zealand Parliament’s first Deaf Member.

The Labour Party retained its election-night total of 34, a significant reduction from its total of 43 in the last Parliament. The New Zealand First Party, under the leadership of Rt Hon. Winston Peters, MP, returned to the House after three years’ absence, and the Maori Party lost a member, returning with three. Returned to Parliament with one Member each were Hone Harawira’s Mana Party, Hon. Peter Dunne’s, MP, United Future, and the ACT Party, with Hon. John Banks.

Opening of the 50th Parliament and address in reply debate On Tuesday 20 December, the 50th New Zealand Parliament was summoned to meet at 11 am. The main business was the swearing in of Members, and the election of the Speaker. Dr the Rt Hon. Lockwood Smith, MP, was re-elected unopposed.

On the following day of the State Opening, the GovernorGeneral His Excellency Lieutenant General the Rt Hon Sir Jerry Mateparae, MP, delivered the Speech from the Throne in the Legislative Council Chamber, setting out the government’s intentions, following which a Deputy Speaker and two Assistant Speakers were appointed.

Two new National Members, Mr Alfred Ngaro and Mr Paul Goldsmith respectively, then moved and seconded the motion that a respectful address be presented to the Governor-General in reply to his speech.

Leading off the Address in

Reply debate for the Labour Party, Mr David Shearer, having been elected as the new Leader of the Opposition after the resignation of Hon. Phil Goff, MP, promised that “Labour will be different in the coming three years. We will turn a page. We have a new, fresh, energised team, which I am immensely proud of. But it is a bigger change than these fresh faces before us. Labour will listen, we will learn, and we will act…. I acknowledge that we must earn the right to lead this country in government in 2014, and that is exactly what we are going to do. To do this, we will change our focus and put our energies into our vision for a New Zealand that we can all aspire to. Just as Labour will embrace good ideas when we see them, I urge the government to do the same.

The reason I profoundly disagree with this government’s direction is that it is just drifting along. People have become so disillusioned that as a result they are leaving New Zealand in record numbers. It turns out that National’s big idea boils down to three short words: sell it off. New Zealanders know in their heart of hearts that sell it off is the last resort of a government that has simply run out of ideas. We cannot get rich by selling our inheritance. It only leaves us worse off. And once those assets are gone, they are gone. This government has no vision. On Treasury’s

own figures more people will be out of work in 2014 than when National took office. That is a searing indictment.” Mr Shearer moved an amendment expressing no confidence in the government.

The Prime Minister commented that “the year 2011 has been a pretty challenging year for New Zealand. Families have faced some significant challenges, but…we are all very proud of the way that our fellow New Zealanders have responded to those challenges.

Whether it was the Christchurch earthquakes, whether it was other situations like the [running aground of, and consequent pollution from, the container ship] Rena, New Zealanders across the country have come out and supported their communities, supported one another…we have a huge number of challenges in front of us in 2012, but this government is committed to making…changes, to making New Zealand a stronger country. If the Labour Party wants to work with us on those changes, on the things that really make a difference, then it is going to be a very interesting 2012, but I suspect from the speech from Mr Shearer there will not be a lot of support coming for the very good ideas that are coming out of the National government”.

According to Dr Russel Norman (Co-Leader—Green) “values of love, generosity, and

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reverence for nature should not sound so out of place in this Parliament, but talk in here is dominated by a different kind of worship: one of economic growth at all costs. We heard this mantra yet again today in the Speech from the Throne.

Today the government said that ‘A strong economy in turn provides the resources necessary to protect the

Hone Harawira

vulnerable and the environment. But compassion and sustainability cannot be conditional. The protection of the vulnerable and the environment are necessary preconditions for a successful, fair, and sustainable economy.

We still have a virtually universal agreement in this House that mindless economic growth is the overriding purpose of government, if not the purpose of society itself.

The way we have treated our rivers and lakes betrays [a] poverty of values when it comes to modern industrial farming and its methods. No government to date has been courageous enough to stand up against these destructive practices that are killing our rivers. I believe we can have a country with a smart economy that protects our natural capital and shares our prosperity fairly.

Our work towards this vision of a compassionate yet highly dynamic economy is only just beginning”.

NEW ZEALAND

Rt Hon. Winston Peters, MP, (Leader—New Zealand First) asked “what happened to ‘One law for all’ from the ACT Party? What happened to ‘No privatisation of water’ from United Future? What happened to ‘No sale of strategic assets’ from the Maori Party? Without these three parties selling out their principles this government would not exist. Those three parties, of course, are finished, and the next election, whenever it is, even before 2014, will prove that. You cannot sell out the people and get away with it like that. But there is some good news—we are back, in the nick of time. And although we are but eight, lined up against the faces of irresponsible capitalism, remember that in the bold, old days a Roman soldier, Horatius, held the bridge with only two others.

Eight is enough to make a real difference here”.

Te Ururoa Flavell (Maori Party) explained that the Maori Party had “entered into an arrangement—a relationship accord—with the National government that represents in its widest sense a solid commitment to whanau, hapu, and iwi [familes, subtribes, and tribes] to make tangible steps forward in achieving progress towards a successful and prosperous future. All of the promises and the pledges made throughout the election campaign amount to nothing if we choose to throw away the best opportunity to make a difference. So we have secured an agreement that focuses on addressing the things that matter: building warm homes, improving educational achievement, eliminating disease of poverty, investing in our rangatahi [youth] through the provision of jobs and skills training, and giving due attention to lifting water quality.

The past has meant that parties

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with only the confidence and supply agreement are pretty much bound down. The Maori Party appreciates the relationship accord, which changes the tone of that relationship to give us the freedom that we have to vote where we want to and how we want to, except on those issues of finance, and we look forward to a strong, robust three years ahead”.

However, Hone Harawira, (Leader—Mana), referring to Mr Flavell’s speech, said: “it is true that the relationship the Maori Party has with the National government is that it will vote for every single Budget that destroys Maori people in health, in education, in welfare, and in every other activity. If this government decides to raise GST (Goods and Services Tax) the Maori Party will vote for it again because it is part of the Budget. The Maori Party should be very, very clear: you do not get to be at the table and then sneak off when you cannot stomach what is happening there. You are either at the table or you are not, and you are at the table. Do not forget that.”

Hon. John Banks, MP, described ACT’s agenda for the

50th Parliament as “a commitment to the values that underpin the time-honoured values of the ACT Party. These values are timeless: freedom, choice, and personal responsibility. These are the pillars of a modern, successful democracy that pays its way and earns its keep; a society where young have hope, where families are strong, and the vulnerable are cared for”.

Hon. Pete Dunne, MP, (Leader—United Future), said “in the last 12 months we have had just about every form of natural disaster that could befall a country.

“As if that is not bad enough, we also stand against a backdrop of the worst international economic crisis since the Great Depression.

The outlook in many senses could not be bleaker or more challenging. I agree with the concept that just about every speaker in this debate has advanced so far, that things have to change. The old ways are not going to be good enough”.

After the adjournment of the Address in Reply debate and a brief Adjournment debate, the House rose for the year until 7 February 2012.

Correction The person designated as Hon. Jim Anderton in The Parliamentarian, Issue Four: p353 was in fact Mr Kevin Campbell, the Alliance Party candidate in the 2011 election. We apologize for this error and publish the correct photographs here.

Mr Kevin Campbell

Hon. Jim Anderton

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INDIA

DISCUSSING BLACK MONEY IN THE LOK SABHA Opposition to FDI in multibrand retail On 28 November 2011, the proceedings in both the Houses of Parliament were disrupted over the Cabinet’s decision to allow 51 per cent Foreign Direct Investment (FDI) in the multi-brand retail sector.

The Cabinet, in its meeting on 25 November, decided to allow liberalization in multi brand retail. In a letter released to the leaders of major political parties, the Commerce Minister, Shri Anand Sharma tried to explain why FDI could be just what the Indian economy needed. The Minister had argued that in the absence of adequate cold chain infrastructure, logistics and transportation, the post-harvest losses remained unacceptably high while a complex chain of middlemen had a cascading impact on supply inefficiencies and prices. As a result, farmers were unable to secure remunerative prices for their produce, while consumers ended up paying more than five times the price secured by the farmers. The Minister assured that the mandatory provision of 30 per cent sourcing from small industries would encourage local value addition and manufacturing. Since India had a federal structure of government the FDI policy was an enabling framework and it remained the prerogative of the states to adopt it, wrote the Minister.

Almost every major political party expressed its anger over the FDI decision. Even allied parties like the AITC and DMK asked the government to reverse the decision on the ground that it would hurt farmers and traders. The Leftwing parties and the BJP insisted on discussing the policy in Parliament under an adjournment motion which would end with a vote. The government rejected this. It was ready for a debate, but not for a vote.

The Finance Minister, Shri Pranab Mukherjee, MP, called a meeting of all parties that ended without a breakthrough.

The Opposition decided not to allow Parliament to function till the government withdrew its decision. Parliament remained in a state of paralysis for the seventh day in a row on 30 November and both Houses were adjourned by noon. The government was also not willing to change its stand to allow FDI in the retail sector. On 7 December 2011 morning, in an all-party meeting Shri Mukherjee read out a statement announcing the suspension of the government's decision, resulting in the Opposition agreeing to allow Parliament to function.

Shri Mukherjee said the decision to permit 51 per cent FDI in multi-brand retail trade was suspended till a consensus was developed

importance might be made with the consent of the Speaker. The Speaker disallowed all the notices of adjournment motion observing that after the statement made by the Leader of the House, there was no element of urgency in the matter.

Welcoming the decision, the Leader of the Opposition in Lok Sabha, Smt. Sushma Swaraj said the government bowed to the wishes of the people and bowing before the will of the people was not a defeat; it was a big victory for democracy.

through consultation amongst various stakeholders. Further clarifying the matter, he said that stakeholders included the Chief Ministers of the state governments and political parties because without the involvement of the state Chief Ministers, this could never be implemented. The government would take a decision after a

Shri Pranab Mukherjee, MP

consensus was developed through the process of consultations amongst all stakeholders.

The Speaker, Smt Meira Kumar, had received notices of adjournment motion from several members belonging to different political parties regarding the government’s decision to allow the FDI in retail. The Rules of Procedure and Conduct of Business in Lok Sabha provided that a motion for an adjournment of the business of the House for the purpose of discussing a definite matter of urgent public

House business adjourns to discuss black money On 14 December 2011, the Lok Sabha, under an adjournment motion, discussed the situation arising out of money deposited illegally in foreign banks and action being taken against the guilty persons. Moving the motion, the veteran BJP leader and former Deputy Prime Minister, Shri L.K. Advani was baffled to see that the black money deposited in foreign banks had increased after the liberalization of the Indian economy. He was worried because the money was being used as a channel for financing terrorist activities. He urged the government to make public the names of the people whose names were in the list of having black money in foreign banks.

Even though the Supreme Court of India termed the black money as a theft of national

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money and plunder, the government was not able to bring back the black money deposited in foreign banks and punish the offenders. He wanted the Finance Minister to explain in detail about the money being deposited illegally in foreign banks and take action in the matter. While advocating for making an effective law to deal with the issue, Shri Advani demanded a White Paper on black money.

All MPs, MLAs and those who were candidates in elections had to disclose their foreign bank accounts. Shri Manish Tewari (INC) said the shadow economy or the parallel economy no doubt sapped the vitality of the nation, but it was not that easy to get information from a particular country about black money especially when it had laws providing protection to the capital. Efforts were on to dismantle these rigid structures. He rejected the charge that the entire problem of black money originated because of the UPA Government, he said under the tax information exchange agreements signed with the tax haven countries hundreds of requests were sent to the concerned country to seek information about the names of

Shri Basudeb Acharia

Indians who had accounts abroad. He asked the opposition not to politicize the issue especially when a global

INDIA

consensus was being generated to bring back the black money.

The leader of the Samajwadi Party, Shri Mulayam Singh Yadav, was shocked to learn that the quantity of black money was double of the total foreign debt of the government of India. If the government was able to bring this money back, the foreign debt of the country would be wiped out as well as provide two square meals a day to the poor people. He also asked the government to unearth the huge amount of black money amassed by unscrupulous bureaucrats. Shri Dara Singh Chauhan (BSP) wanted to know if the government was proposing to bring any amnesty scheme for tax evaders who had plundered money and stashed it away in foreign countries. Shri Sharad Yadav (JD-U) regretted that there was no accurate figure of black money deposited in tax haven countries. Even though a huge amount was deposited in Switzerland and despite the fact that black money had been used for terrorism throughout the world, information regarding the money could not be obtained due to the secrecy act of that country.

Shri Basudeb Acharia (CPIM) observed that even while the policy of liberalization pursued since 1991 facilitated the proliferation of black money, no serious steps were taken to quantify the black money or action was taken against the persons responsible for stashing money in foreign banks. If the United States and some European countries could force the government of Switzerland to disclose the names of the persons who had deposited money in the Swiss banks illegally, why could the government of India could not take such action? Shri Bhartruhari Mahtab (BJD) said

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that India needed to change domestic laws and curtail trade mispricing to tackle black money. It was also essential to have automatic cross-border exchange of tax information on personal and business accounts.

The Shiv Sena member, Shri Anant Gangaram Geete said the black money belonged to the nation and should be

Shri H.D. Devegowda

brought back and utilized for the development of the country.

The JD-S member and former Prime Minister, Shri H.D. Devegowda considered mines and lands as two major areas generating the black money.

Shri Asaduddin Owaisi (AIMIM) asked the government to ban the Non-Profit Organizations that did not file tax returns and abolish stamp duty on real estates. Dr Tarun Mandal (Independent) said the government should not show any leniency towards the black money holders and requested political parties not accept any money from any big business house, industrialist, multinational or corporate company. Dr Shashi Tharoor (INC) said publishing the names foreign bank account holders by the government was not that easy as under the IndoSwiss Agreement, information on Swiss bank deposits could not be revealed by them until the evidence of criminality was provided. However, there was

progress in the last two years due to many tax information agreements. India also ratified the U.N. Convention against corruption which established “asset recovery” as a fundamental principle as long as ownership could be proven.

Shri Mukherjee said according to the Global Financial Integrity, 213 billion US dollars had been lost by India since gaining independence to 2008. Three important Indian institutes had been asked to make an independent assessment about the black money.

Detailing the measures taken by the government he said Double Taxation Agreements were signed with 60 countries and 15 were in the process of negotiation. Agreement with Switzerland was completed but no country was able to get information from Switzerland, through the legal treaty, retrospectively. The publication of information received from foreign countries might be treated as violation of international agreements. To deal with dirty money relating to drug trafficking, etc. the Narcotics and Psychotropic Substances Bill was introduced in the 2011 monsoon Session of Lok Sabha. A Criminal Wing in the Income Tax Department was set up to curb black money. Declaring the black money as a national asset would not be of much help as such money could be brought only through the tax agreement and international agreements.

Rejecting the charge that the government was protecting the holders of black money, Shri Mukherjee promised to bring a White Paper on the subject. He made it clear that no MP’s name was there in the list of foreign accounts received by the government. The Finance Minister went on to reiterate that there was no urgency to

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INDIA

discuss the black money issue under an adjournment motion as it did not involve immediacy and gross failure on the part of the government.

Shri Advani was not happy with government’s reply and asked the government to include the inputs it received from the three institutions mentioned by the Finance Minister in the White Paper on

Shri L.K. Advani

black money apart from the other steps that the government had taken to find out its whereabouts and how they could get it back. He believed that those people who had money stashed abroad were not just tax evaders; they had made money though corruption, especially after the economy’s liberalization.

At the end of the debate, the motion was negative by the House.

Strengthening the Cooperatives In India, the co-operative sector has made significant contribution to various sectors of its national economy and achieved voluminous growth.

With a view to bringing about the necessary reforms, it sought to incorporate a new part in the constitution of India so as to provide for certain provisions covering the vital aspects of the working of cooperative societies, and a new article was to be inserted in

Part IV of the constitution (Directive Principles of State

Policy) for the States to endeavour to promote

voluntary formation, autonomous functioning,

THIRD READING: INDIA The Constitution (Scheduled Tribes) Order (Amendment) Bill, 2011 Article 366, Clause (25) of the Constitution of India defines “Scheduled Tribes” which means such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under article 342 to be Scheduled Tribes for the purposes of the constitution.

Article 342 of the constitution of India provides that(1) The President may with respect to any state or Union Territory, and where it is a state, after consultation with the Governor thereof, by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this constitution be deemed to be Scheduled Tribes in relation to that State or Union territory, as the case may be.

(2) Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under clause (1) any tribe or tribal community or part of or group with any tribe or tribal community, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.

The first list of Scheduled Tribes in Manipur was notified of the constitution (Scheduled Tribes) (Part C States) Order, 1951. It had further been notified through the Castes and Scheduled Tribes Lists (Modification) Order, 1956 and the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 2002. At present, there are 33 communities appearing in the list of the Scheduled Tribes in Manipur. To fulfill a longstanding demand for considering a grant of Scheduled Tribes status to the Inpui, Rongmei, Liangmai, Zeme, Thangal and Mate communities in the State of Manipur, the entries at 8, 9 and 10 of the Scheduled Tribes list in Manipur had to be amended and a new entry 34 was to be inserted to include these six communities.

Before its creation as a state, Arunachal Pradesh was part of the State of Assam, “Galong” was listed as the Scheduled Tribes in the State of Assam by the constitution (Scheduled Tribes) Order, 1950. After the

creation of the Arunachal Pradesh as a state the “Galong” community was mentioned in the list of the Scheduled Tribes in Arunachal Pradesh at entry 5 by the North Eastern Areas (Reorganisation) Act, 1971.

At the relevant point of time 16 members of communities existed in the list of Scheduled Tribes in Arunachal Pradesh including “Galong”. It had been recommended for a while that the Government of Arunachal Pradesh substitute the name “Galo” for “Galong” in the list of Scheduled Tribes in the State since “Galong” is a distorted version of the original word “Galo”. To achieve these objectives the the Constitution (Scheduled Tribes) Order (Amendment) Bill, 2011 was brought forward to further amend the Constitution (Scheduled Tribes) Order 1950 to modify the list of Scheduled Tribes in the States of Manipur and Arunachal Pradesh.

Amendments included: •

•

The Amending Bill brought an amendment in Part X regarding Manipur, in the Schedule of the Constitution (Scheduled Tribes) Order, 1950 *(Parent Act). As per this amendment for entries said Schedule “8, Kabui, Inpui, Rangmei” were inserted; and The amending Bill also amended Part XVIII relating to Arunachal Pradesh, where “ Galo” was also substituted.

The Bill was welcomed by all sections of both Houses of Parliament. The members while supporting the Bill raised matters regarding some other long pending demands by communities for accord of status of Scheduled Tribes.

The Minister in-charge of the Bill explained the set procedure, which was: firstly a request through a memorandum made by concerned communities to concerned authorities to the related states; followed by the states’ clearance of the requests; clearance from the Registrar General of India; and lastly clearance from the National Commission of Scheduled Tribes.

The Bill was passed by Lok Sabha on 19 December 2011 and by Rajya Sabha on 22 December 2011.

The Bill as passed by both Houses of Parliament was assented by the President of India on 8 January, 2012.

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democratic control and professional management. The constitution (One Hundred Eleventh Amendment) Bill, 2009 introduced in Lok Sabha on 30 November 2009 sought to achieve these objectives.

The Minister of Agriculture and Minister of Food Processing Industries, Shri Sharad Pawar, MP, moving the motion for consideration of the Bill in the Lok Sabha on 21 December 2011, said since the matter of cooperative societies was a state subject under the constitution, states had enacted their own Cooperative Societies Acts for incorporation, regulation and winding up of cooperative societies within their territorial jurisdiction. The cooperatives were heavily dependent on financial support from the government, leading to intervention in their day to day functioning. The government of India had been trying to evolve an appropriate policy and legislative framework to create an environment conducive to the healthy and sound growth of cooperatives. A view had emerged to incorporate certain provisions in the constitution to provide protection to cooperatives and to insulate them from avoidable political and bureaucratic interference.

The provisions in the Bill would not only ensure the autonomous and democratic functioning of cooperatives, but enhance the public faith in these institutions and also ensure the accountability of management to the members and other stakeholders and provide deterrence for violation of the provisions of the law.

Participating in the debate, Shri Anto Antony (INC) requested the government to exclude the Primary Agriculture Credit Societies (PACS) engaged in the promotion of agricultural activities from the

INDIA

ambit of income tax. He asked the government to ensure the representation of employees in the Board of Directors of Cooperatives. Shri Jagdish Sharma (JD-U) wanted the government to enact a model cooperative societies Bill. He

Shri Sharad Pawar, MP

pleaded for changing the government’s loan waiver scheme under which loan of only those farmers were being waived who had defaulted in the repayment of their loans while those who had paid even a single installment of their loan were deprived of this facility.

Shri Ramashankar Rajbhar (BSP) suggested that if a cooperative society of a state wanted to do business in any other part of the country, it should be allowed to do so and other basic facilities should be provided to it. The participation of the members belonging to the scheduled castes, scheduled tribes, other backward classes, women and minorities should be ensured in the cooperative societies as most of the cooperative societies were controlled by a few influential people. Shri Anandrao Adsul (Shiv Sena) welcomed the provisions that would restrict the number of Board Directors to 21 and having two representatives from women and one representative from the Scheduled Caste or Scheduled

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Tribe. Shri R. Thamaraiselvan (DMK) said the provisions in the Bill would not only ensure the autonomous and democratic functioning of the cooperative societies, but also would ensure the accountability of management to the members and other stakeholders. He thought the provision of reservation of one seat for the Scheduled Castes or the Scheduled Tribes and two seats for women on the Board of every cooperative society were too few. Shri Prabodh Panda (CPI) said the Bill was a blow to the very concept of the autonomous aspect of the cooperative sector. As cooperatives was a subject under the jurisdiction of the state governments and listed in the State List, the Bill constituted an encroachment on the rights of the states. Shri P.K. Majumdar (RSP) emphasized on the need to have proper vigilance and monitoring to streamline the performances of the cooperatives. He was against central interference in the functioning of the states so far as the cooperatives were concerned. Shri Arjun Ram Meghwal (BJP) said although the short term nonperforming Assets (NPAs) came down, there was an increase in the long term NPAs due to the wrong policies of the government.

Replying to the debate, Shri Pawar informed that an overwhelming majority of about 600,000 cooperatives were registered under the respective State Cooperative Societies Acts. Only about 600 MultiState Cooperative Societies were registered in the country under the Multi-State Cooperative Societies Act, 2002, which was a central Act. Therefore, it was for the states to take steps to strengthen the cooperatives in the country and

the government of India was always prepared to guide and support the states in this endeavour. He said the right to form cooperative societies would be made a Fundamental Right under Article 19(1) (C) of the Constitution as recommended by the Standing Committee on Agriculture. This would give boost to the cooperative movement and encourage people to actively participate in the cooperative as a matter of right. The Bill provided for functional Directors, who would be the employees of the society, on the Board of a cooperative society to utilize their experience and expertise for improving its functioning. The power to supersede or suspend the Board of a cooperative society would be used only in exceptional circumstances. The constitutional amendment also provided for mandatory conduct of elections within six months of such supersession by an independent authority.

The amendment would not only

Shri Prabodh Panda

ensure the autonomous and democratic functioning of the cooperatives but enhance the public faith in these institutions.

The Minister expected that the cooperative movement would be further strengthened by this amendment and be able to serve the members particularly

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those from economically weaker sections much better.

At the end of the debate, the motion was carried by a majority of the total membership of the House and by a majority of not less than two-thirds of the members present and voting. The Bill, as amended, was passed by the majority in accordance with the provisions of article 368 of the

Smt. Pratibha Patil

constitution. It was passed by the Rajya Sabha on 28 December 2011 and assented to by the President on 12 January 2012.

Checking river pollution On 19 December 2011, the Lok Sabha had a discussion regarding the threats posed to the river Ganga and the Himalayas due to its ruthless exploitation. Initiating the discussion, Shri Rewati Raman Singh (SP) said construction of several dams on the river Ganga, overexploitation of its waters and discharge of untreated sewage posed serious threats to the existence of the river. The construction of dams over Ganga also affected the free flow of water as well as posing a threat to the downstream area due to seismic activities in the Himalayas. The Ganga was a holy river and symbolized Indian culture and civilization. A population of around 500 million who were dependent

upon the Ganga for their mainstay and the people living

in the four States along the banks of the Ganga might lose

their livelihood. Shri Singh pleaded for allowing the river to

THIRD READING: INDIA The Damodar Valley Corporation (Amendment) Bill, 2011 The Damodar Valley Corporation Act, 1948 was enacted to provide for the establishment and regulation of a corporation for the development of the Damodar Valley in the states of Bihar (now Jharkhand) and West Bengal. The functions of the corporation under the Act, inter alia, provided for the promotion and operation of schemes for irrigation, water supply and drainage, the generation, transmission and distribution of electrical energy, the promotion and control of navigation in the Damodar River and its tributaries and channels, afforestation and control of soil erosion, promotion of public health and the agricultural, industrial, economic and general well-being in the Damodar Valley and its area of operation.

Under the Damodar Valley Corporation Act, 1948, the corporation consists of a chairman and two members, appointed by the Central Government after consultation with the concerned State Governments. Over the last sixty plus years, the role and expectations from Damodar Valley Corporation had changed significantly due to industrial development in the valley area. The demand for power by industry, especially coal, steel, railways and other consumers had gone up considerably. Thus the Damodar Valley Corporation had grown into a large generating company with its own transmission and sub-transmission network.

The Administrative Staff College of India recommended restructuring of the corporation to make it more broad-based and professional so that it might discharge its responsibilities more effectively and efficiently.

Based on the inter-ministerial consultations, a Bill namely “the Damodar Valley Corporation (Amendment) Bill, 2007 was introduced in the Lok Sabha on 4 May, 2007, and the same was referred to the standing Committee on Energy which gave its report on 7 September, 2007. The said Bill, inter alia, provided that the Damodar Valley Corporation would consist of (i) a whole time Chairman; (ii) a whole-time Member Technical ; (iii) a whole-time Member Finance; (iv) one representative from the Central Government, as part-time Member; (v) two

representatives one each from the State Governments of Jharkhand and West Bengal, as part-time Members; (vi) three independent experts one each from the field of irrigation, water supply and generation or transmission of electricity as parttime Members. The committee supported the amendments proposed in the aforesaid Bill and also recommended that the Secretary of the organization should be made be full-time Member of the Board to enhance the functioning capabilities of the organization as has been recommended by the Administrative Staff College of India. However, the Damodar Valley Corporation (Amendment) Bill, 2007 lapsed with the dissolution of the Lok Sabha.

With a view to bring about the changes in the Damodar Valley Corporation, the government brought forward the Damodar Valley Corporation (Amendment) Bill, 2011.

The amending Bill provided for the following amendments in the Damodar Valley Corporation Act, 1948 (Principal Act): For existing sub section (i) of section 4 of the Principal Act, a new sub section was substituted providing that the Damodar Vallry Corporation would consist of (a) a Chairman, (b) a Member (Technical) and a Member (Finance); (c) one representative each from the Central Government; (d) two representatives – one from the State Government of Jharkhand and West Bengal; (e) these independent experts one each from the field of irrigation, water supply and generation or transmission or distribution of electricity; and (f) a Member Secretary.

It was also provided that the chairman and members would be appointed by the Central Government in consultation with State Governments. The general administration and business development of the corporation would be carried out by the Member Secretary.

The measure met unanimous support from members of both Houses of Parliament.

The Bill was passed by Lok Sabha on 7 December 2011 and by Rajya Sabha on 19 December, 2011.

The Bill as passed by both Houses of Parliament was assented to by the President of India on 8 January 2012.

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flow uninterrupted and for checking the sewage being discharged in to it. Shri Satpal Maharaj (INC) suggested establishing sewerage treatment plants and using state-of-the-art technology for power generation that did not require the construction of a dam.

Despite the constitution of the Central Ganga Authority (CGA) and the Ganga Project Directorate in 1985, the river remained polluted. He urged the government to formulate an action plan for its protection.

Participating in the discussion, Shri Hukmadeo Narayan Yadav (BJP) alleged that the campaign of the government to cleanse the Ganga remained only on paper.

He asked for strict action against industries that discharged industrial waste in the river.

Shri Sharad Yadav (JD-U)

Shri Sharad Yadav

said even though a number of rivers including the Ganga originated from the Himalayas, the government had been bleeding the Himalayas by constructing tunnels and dams.

He asked the Government of India to stop all activities that were harmful to the environment immediately.

Sk. Saidul Haque (CPI-M) regretted that the river remained sullied despite a large investment of money in

INDIA

the Ganga Action Plan between 1985 and 2000.

Dr Kirit Premjibhai Solanki (BJP) said climate change had resulted in the melting of glaciers in the Himalayas leading to a shift in the originating point of Ganga. He suggested appropriate measures for protecting the sanctity and purity of the Himalayas and the Ganga.

The CPI member, Shri P. Lingam requested the government to think in terms of nationalizing all the rivers of the country to save them from pollution and to increase food production. He advocated for linking the southern rivers to give life to the river systems there.

Shri Thirumaavalavan Thol (VCK) said mining activities near the rivers caused enormous pollution. Illegal quarrying of sand was harming the smooth flow of river and its capacity to purify the water by itself. He urged the government to nationalize all rivers to save them from pollution and take up the inter-linking of rivers projects including linking of river Ganga in the north with river Cauvery in south to address the water scarcity problem.

While Shri Arjun Ram Meghwal (BJP) wanted the government to create awareness among the people to save the Ganga, Shri A.T. Nana Patil (BJP) asked for stopping dam construction on river Ganga.

Shri Ramashankar Rajbhar (BSP) requested the Ministry of Environment to take stringent action against those responsible for polluting the river Ganga.

Shri Sanjay Dhotre (BJP) also asked the government to strictly enforce the laws and rules to stop pollution of the river.

Smt. Annu Tandon (INC)

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said construction of several dams on the Ganga in the state of Uttarakhand would create problems for environment. Shri R.K. Pandey (BJP) said the schemes formulated by the government were not being implemented properly and suggested for inter linking of rivers.

Shri Kapil Muni Karwariya (BSP) said water treatment

Smt. Jayanthi Natarajan

plants installed in some cities were working far behind their capacity. He requested the government to issue directions to state governments to stop construction of dams on the river to increase the flow of water.

Shri Jagdambika Pal (INC) said the union and state governments had to work collectively to save the Ganga.

He pointed out that the construction of expressways on the banks of the Ganga in Uttar Pradesh and development of big townships would pose a threat to the very existence of the Ganga river.

Shri S.K. Bwismuthiary (BPF) asked the government to take stringent action to save the Ganga and also set up the Brahmaputra River Basin Authority to help preserve the river Brahmaputra.

Shri Pradeep Tamta (INC) wanted a national level assessment to quantify the water in all the rivers flowing from the Himalayas and

whether this water was enough to meet the drinking water and irrigation requirements. Shri Ganesh Singh (BJP) wanted the government to keep a close watch on the industries located along the banks of river Ganga and take strong action against polluting industries.

Replying to the debate, the Minister of State of the Ministry of Environment and Forests, Smt. Jayanthi Natarajan said the government was committed and dedicated to maintaining the purity and the flow of the river Ganga. The government would ensure that no dam was allowed to be built which might create some problem in a seismic zone, create any lack or lessening of the flow in the river Ganga or create any problem for the lower riparian State of the Ganga.

The Pollution Control Boards of the states along the Ganga were required to monitor the compliance of effluent discharge standards by the industries and take action against the defaulting industries. It was important to ensure that water was efficiently used and the urban local bodies and the state governments should work hand in hand along with the central government in this regard.

The Minister reiterated that the central government could only supplement the efforts made by the state governments and the Urban Local Bodies.

She requested all the members of the House to urge their state governments to make sure that there was no underutilization of the sewage treatment plants.

The government also intended to set up a dedicated cell under the Central Pollution Control Board for inspecting and monitoring of industrial units discharging effluents into the river Ganga.

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AUSTRALIA

KEVIN RUDD RESIGNS – PRIME MINISTER GILLARD CALLS LEADERSHIP BALLOT I can promise you this: there is no way – that I will ever be party to a stealth attack on a sitting prime minister elected by the people”.

Ministers supporting the Prime Minister claim that Mr

Hon. Kevin Rudd, MP

On 22 February, the Minister for Foreign Affairs, Hon. Kevin Rudd, MP, resigned amid rising leadership tension in the government. In June 2010 Mr Rudd resigned as Prime Minister after his then Deputy Hon. JuliA Gillard, MP, asked Mr Rudd for a leadership ballot which Mr Rudd did not contest.

Since that time there has been simmering tension between Prime Minister Gillard and Mr Rudd.

Mr Rudd indicated that he was shocked and disappointed at the tone and vicious personal attacks directed at him. Mr Rudd stated that “in recent days, Minister Simon Crean and a number of other faceless men have publicly attacked my integrity and therefore my fitness to serve as a minister in government. When challenged today on these attacks, Prime Minister Gillard chose not to repudiate them”. He further commented that “Australia must be governed by the people, not by the factions. But

Rudd had been undermining Ms Gillard and the government since he was removed as Prime Minister. The Treasurer, Hon. Wayne Swann, MP, commented that “for too long Kevin Rudd has been putting

his own self-interest ahead of the interests of the broader labour movement and the country as a whole, and that needs to stop. The party has given Kevin Rudd all the opportunities in the world and

THIRD READING: AUSTRALIA Human Rights (Parliamentary Scrutiny) Act 2011 The Human Rights (Parliamentary Scrutiny) Act establishes the Parliamentary Joint Committee on Human Rights. The legislation sets out the powers, proceedings and functions of the committee. In addition, the legislation provides for the requirement for statements of compatibility on human rights to be prepared for all bills and disallowable legislative instruments.

The then Attorney-General, Hon. Robert McClelland, MP, commented that “essentially the implementation of these two measures—that is, statements of compatibility on human rights and the establishment of a new Parliamentary Joint Committee on Human Rights—establishes a dialogue between the executive, the parliament and ultimately the citizens they represent”.

In relation to the first measure, the AttorneyGeneral noted that the requirement of statements of compatibility on human rights will establish a dialogue between the executive and the Parliament whereby members and senators will be able to consider the impact of proposed legislation on the citizens they represent”. Mr McClelland noted that “when Parliament comes to consider bills and legislative instruments, statements of compatibility will alert parliament to the relevant human rights considerations and will assist in informing parliamentary debate”.

Mr McClelland commented that “the new parliamentary committee will establish a dialogue between the parliament and its citizens whereby the members of the committee can canvass the views of the public, including affected groups, as to how they will be affected by proposed legislation”. Mr McClelland advised that “the reference point for the committee will be the rights and freedoms recognized or declared by the seven core United Nations human rights treaties as they apply to Australia”.

Mr McClelland concluded that the measures in the legislation “will deliver improved policies and laws in the future by encouraging early and ongoing consideration of human rights issues in the policy and lawmaking process and informing parliamentary debate on human rights issues”.

The Shadow Minister for Justice, Customs and Border Protection, Mr Michael Keenan, MP, commented that while the legislation “reflects coalition policy, there are serious concerns about a broad definition of ‘human rights’ being derived from seven international instruments and the possible introduction, by the back door, of those instruments into Australian domestic law. The coalition supports in principle the establishment of the parliamentary committee; however, it holds concerns about the balance of the legislation, particularly in the definition of human rights”.

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he wasted them with his dysfunctional decision-making and his deeply demeaning attitude towards other people, including our caucus colleagues. He was the party’s biggest beneficiary then its biggest critic; but never a loyal or selfless example of its values and objectives”.

On 23 February Prime Minister Gillard made a formal statement in response to Mr Rudd’s resignation. Ms Gillard advised that there would be a leadership ballot on 27 February to resolve the leadership question “once and

for all’ so that the party can move forward united. Ms Gillard indicated that she would nominate for the position of party leader and, if she was unsuccessful, she would move to the backbench and not contest the leadership again.

She asked that Mr Rudd also give this commitment. Mr Rudd commented that “if Julia is returned, then she will have my unequivocal support between now and the next election’. Ms Gillard noted the significant policy challenges she has delivered including placing a price on carbon, introducing a

Minerals Resource Rent Tax, means testing the private health insurance rebate, and creating a strong economy with low unemployment, low inflation, and solid growth.

Ms Gillard, in a convincing victory, won the ballot 71 votes to Mr Rudd’s 31 votes. Mr Rudd commented that “the caucus has spoken. I accept the caucus verdict without qualification and without rancour”. Ms Gillard concluded that “Australians have had a gutful of seeing us focus on ourselves. Today I want to say to Australians one and all, this

issue, the leadership question, is now determined. I can assure you this political drama is over”.

Fair Work Investigation into the Health Services Union The Senate Budget Estimates conducted between 13-17 February provided another opportunity for Senators to scrutinize executive government over its performance.

A range of government agencies were scrutinised by various Senate committees about the Health Services Union (HSU) investigations and

THIRD READING: AUSTRALIA Parliamentary Service Amendment (Parliamentary Budget Officer) Act 2011 The Act establishes the Parliamentary Budget Office (PBO) and the position of Parliamentary Budget Officer to provide independent and non-partisan analysis of the budget cycle, fiscal policy and the financial implementation of proposals.

The Treasurer, Hon. Wayne Swann, MP, commented that the legislation “will enhance the credibility and transparency of Australia’s already strong fiscal and budget frameworks”. The functions of the PBO will include: preparing election policy costings upon request of authorised party representatives and Independent members of Parliament; preparing policy costings outside of the caretaker period upon request of individual senators and members of parliament; preparing responses to budget-related non-policy costing requests of individual senators and members of parliament; initiating its own work programme in anticipation of client requests, including research and analysis of the budget and fiscal policy settings; and providing formal contributions on request to relevant parliamentary committee inquiries.

The Treasurer noted that the “the Joint Committee on Public Accounts and Audit will have oversight of the officer and the Parliamentary Budget Office in respect of its annual work plan, draft budget estimates and annual report”. Mr Swan advised that “Independent members of Parliament and parties with less than five members in the Parliament will be able to have their policies costed by the Parliamentary Budget Office, both during and outside of caretaker periods”.

The Shadow Treasurer Hon. Joe Hockey, MP, firstly criticized the government for the delay in introducing the legislation. He noted that there was funding in the budget for the PBO but it was unlikely that the PBO would be operating by Christmas, six months into the financial year.

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Mr Hockey commented that “the government has only got to this point because the opposition introduced its own PBO bill”. Mr Hockey stated that “establishing a PBO has been an objective of the coalition since 2007, when my colleague and friend the member for Wentworth announced coalition policy in this regard”.

Mr Hockey criticized the government’s legislation because the PBO “cannot prepare economic forecasts or budget estimates”. He noted that “how, then, does the government expect the PBO to prepare longer term analysis of the impact of government policies on the budget?’ In addition, Mr Hockey noted that the PBO can only use the economic and fiscal forecasts prepared by the Treasury and the Department of Finance and Deregulation. Mr Hockey noted that this “means it cannot use any thirdparty data or refer to that third-party data at crucial moments”.

A further concern raised by Mr Hockey relates to the information gathering powers of the PBO. He noted that “the PBO must enter into an agreement with relevant departments to determine what information they can get and when they can get it”.

Mr Hockey argued that “the PBO will have to negotiate an arrangement with every single government department and agency from which it requires information”. Mr Hockey concluded that “the arrangements which are finally made will be structured to be in the interests of the government departments and agencies, not in the interests of the PBO”. Mr Hockey concluded that “the government's bill misses the mark in establishing a truly independent PBO which would have the powers that it needs to do its job”. Mr Hockey noted that “under our bill, the Parliamentary Budget Office would be powerful, it would be critical of governments—and, should we go into government, it would be critical of us”.

During the consideration in detail stage of the Bill, Mr Hockey introduced 12 amendments which were all defeated.

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the affairs of the Member for Dobell, Mr Craig Thomson, MP. Mr Thomson was the former Secretary of the HSU before being elected to parliament in 2007. He is being investigated for alleged inappropriate use of his HSU corporate credit card. The Australian Government agency Fair Work Australia (FWA) is undertaking an inquiry into the

Sen. the Hon. Eric Abetz

HSU. However, this inquiry has been underway for over three years and has been criticized by the opposition for taking too long.

When the FWA appeared before the Senate Education, Employment and Workplace Relations Legislation Committee, the FWA was scrutinised over the time taken to undertake the HSU inquiry.

The Acting General Manager of the FWA, Ms Bernadette O'Neill, reported on the progress of investigations into the HSU. There are two concurrent investigations. The first is investigating the HSU Victoria Branch and the second is investigating the HSU National Office.

In response to public criticism over the time taken to conduct the inquiries, Ms O’Neil stated that “I acknowledge that on the face of it the inquiries and subsequent investigations have taken an unreasonably long time, raising legitimate

questions. The staff involved in the investigations are senior and experienced and I have confidence that they have acted in good faith at all times”.

Ms O’Neil commented that “as I indicated in my opening, these investigations are unprecedented in terms of size, scale and complexity.

Sen. the Hon. Eric Abetz noted that “the Watergate investigation was unprecedented as well, and they were able to complete that a bit quicker than this investigation”.

Ms O’Neil also responded to claims that there had been political interference in the investigations with the comment that “I have absolutely no reason to conclude that there has been any such interference in the investigations”.

She advised that the first investigation had concluded and found “25 contraventions of the registration and accountability of organizations schedule and/or the rules of the Health Services Union”.

She indicated that the General Manager of the FWA may do all or any of the following things.

“Firstly, issue a notice to the reporting unit requesting that specified action be taken within a specified time to rectify the matter.

“Secondly, may apply to the Federal Court for an order under part 2 of chapter 10 of the act, which has a range of civil penalty provisions; or, thirdly, refer the matter to the Commonwealth Director of Public Prosecutions for action in relation to possible criminal offences.

“I anticipate being in a position to make decisions as to the action that I will take shortly. I also anticipate that notices of contravention will shortly be issued to the relevant persons.”

Ms O’Neil advised the committee that she has decided not to publish the investigation report because the “report contains material in respect of the individuals concerned that may be considered to be defamatory”.

On these grounds, she declined to provide a copy of the report to the committee.

In relation to the risk of defamation proceedings, the Senate Procedural Information Bulletin stated that “while committees should be careful about receiving such material and should not do so without applying the adverse evidence procedures in Privilege Resolution 1, the publication of the report to the committee, being proceedings in parliament, could not of itself give rise to an action for defamation”.

Senator Abetz and Sen. the Hon. Michael Ronaldson scrutinized the FWA about when the report on the HSU National Office would be concluded.

The FWA advised that this would be during March.

Senator Abetz noted that “all of a sudden things started to speed up, it would appear, once people started agitating about the length of time this had taken”.

As part of the investigations, the FWA has sought legal advice from the Australian Government Solicitor (AGS) and a private legal company. Senator Abetz while asking questions on the Senate Legal and Constitutional Affairs Legislation Committee established that the AGS fees and disbursements amounted to $912,562.

Senator Abetz noted that “without being too extravagant, one could basically round that up to a $1-million legal bill that

will be incurred by the taxpayer if not more, because one assumes you will continue to be briefed in relation to this matter”.

The cost of inquiries into the conduct of ADF personnel In March 2011 the Australian Defence Force Academy (ADFA) was rocked by a sex scandal when a female cadet was filmed without her knowledge having consensual sex with a fellow cadet. The cost of various inquiries into this matter, among other issues, was the subject of scrutiny by the Senate Foreign Affairs, Defence and Trade Legislation Committee.

Senator David Johnstone examined representatives of the Australian Defence Force (ADF) over the number and cost of the various inquiries into the Skype incident at ADFA. The ADF reported that the Kirkham inquiry examined the adequacy of ADFA management into the incident. In addition, there were a range of cultural reviews including a review by the Sex Discrimination Commissioner which focused on the treatment of women in ADFA and the wider ADF. Following questioning by Senator Johnstone about the estimated cost of the reviews, Air Marshall Mark Binskin commented that “the costs are broken down at the moment in direct costs to date and indirect workforce costs to date.

“As of—and I will find the exact date we have in there— we are running $10.518 million total for all the reviews, including DLA Piper, as direct costs and in indirect workforce costs that add to that, a cost of $1.445 million.

So that is the cost to date of that”.

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CANADA

GOVERNMENT USES ITS NEW MAJORITY TO RECOVER LOST BILLS The Conservative government, now nearing the end of its first year as a majority government, has continued working to pass legislative initiatives which had been raised unsuccessfully during minority Parliaments as well as introducing new legislation.

Bill C-10, short titled the Safe Streets and Communities Act, was introduced in the House of Commons on 20 September 2011, and adopted in the House on 5 December 2011. The Senate adopted it quickly with only a few amendments. Bill C-10 would amend, among other Acts, the Criminal Code, the State Immunity Act, the Controlled Drugs and Substances Act, and the Youth Criminal Justice Act. This Bill proposes to enhance the safety of the public, the accountability of offenders and the role of victims in the criminal justice system. Critics, however, have expressed concerns that it may lead to excessively punitive measures, high costs, and greater rather than lesser recidivism. Bill C-10, a compendium of nine previous crime-related bills which the Government had been unable to pass during minority Parliaments, elicited a great deal of debate in Parliament, the media and among the Canadian public.

On 15 February 2012, the House of Commons read for a third time Bill C-19, ending the long-gun Registry Act, and the 74 | The Parliamentarian | 2012: Issue One

Bill was introduced in the Senate. Throughout the lifespan of Bill C-19, as was the case with its predecessors which were debated at length but never adopted, the question of whether or not to remove the requirements to register firearms that are neither prohibited nor restricted, and to destroy existing data regarding registered firearms, has been a controversial one.

On 27 October 2011, Bill C20, the Fair Representation Act, was introduced in the House of Commons. On that day, the Hon. Tim Uppal, MP, Minister of State for Democratic Reform, said in the House of Commons: “Mr. Speaker, today I introduced Bill C-20, the fair representation act. The Bill would deliver a principled and reasonable update to our seat allocation formula, providing fair representation for Canadians living in Ontario, British Columbia and Alberta. It delivers on our commitment to maintain the seat counts of smaller provinces and ensure that Quebec is proportionately represented. Canadians rightly expect fair and principled representation in their democratic institutions. The fair representation act would deliver on this expectation.”

Bill C-20 was adopted quickly by both Houses of Parliament, in time for the current seat redistribution

process which began in February 2012.

Bill C-11, an Act to amend the Copyright Act, was introduced on 9 September 2011. Short titled the Copyright Modernization Act, the Bill proposed to update Canada’s Copyright Act and ensure that its provisions are clarified and updated for the digital age. Bill C-32 proposes to introduce new rights and exceptions for users, to bring Canada’s protections for copyright owners into line with international standards, to

Hon. Tim Uppal, MP

clarify Internet service providers’ liability for copyright infringement and to make the enabling of online copyright infringement itself an infringement of copyright. The Bill also seeks to enhance the lawful uses which consumers, businesses, educational institutions and libraries may make of digitized copyrighted materials, to expand the rights

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CANADA

THIRD READING: BRITISH COLUMBIA Freedom of Information and Protection of Privacy Amendment Act, 2011 The legislative changes to the province’s public sector access and privacy law are based on the recommendations of an all-party special committee that reviewed the Act in 2010, input from the Office of the Information and Privacy Commissioner for British Columbia, and submissions from key stakeholders. Over the past year, BC Stats also conducted province-wide focus groups and surveys to help the provincial government gain a better understanding of the public's expectations regarding on-line access to government services.

At first reading, the Minister responsible for Bill 3, Hon. Dr Margaret MacDiarmid, explained the purpose of the sweeping legislative changes to the Freedom of Information and Protection of Privacy Act (FIPPA). “The act we have today came into force 19 years ago in 1992.

These amendments modernize the act by aligning it with modern technology, while ensuring that we do so in a way that maintains and enhances privacy.”

Concerning information rights, the legislative amendments contain new requirements for public bodies to implement routine proactive release of electronic records regarding government programs. Explicit statutory recognition of routine disclosure had long been recommended by FOI advocates and legislators.

Significant legislative amendments were made to the privacy provisions in Part 3 of the FIPPA, including the addition of a new division, Data-linking Initiatives. The key changes here are: allowing citizens to consent to have their personal information collected to facilitate improved service delivery; paving the way for digital ID cards to facilitate secure online access to government services; and making it easier for government to share citizens’ information where programs cut across a variety of ministries, with appropriate oversight of datasharing by the province’s Information and Privacy Commissioner.

During her second reading speech, Minister MacDiarmid explained that the addition of consent provisions would make such tasks as applying for programs or updating an address across multiple ministries or programs much simpler for citizens. However, Opposition Critic, Doug Routley, was concerned that there was inadequate protection for citizens’ personal information in data-sharing projects.

The Act will come into force on the date of Royal Assent. The new oversight responsibilities for the Information and Privacy Commissioner are unique in Canada. The legislation makes explicit provision for the Commissioner to be involved in the development of regulations for data-linking and data-sharing initiatives of government ministries and the health sector.

Teachers Act The Teachers Act, which received Third Reading on 1 November 2011, establishes new certification and discipline processes for public and independent school teachers by creating a new BC Teachers’ Council

that will have eight seats for teachers and seven seats for other provincial education stakeholders, as well as one non-voting government appointee. The Council will set standards for teachers with respect to conduct, competency and certification, and will approve teacher education programs for certification purposes.

The Act repeals the Teaching Profession Act and dissolves the BC College of Teachers (BCCT). The legislation was introduced in response to the findings of “A College Divided”, a report by a former deputy minister of education that raised concerns about the credibility and independence of the college and proposed that the college be replaced by a new certification board.

The Act also establishes a new nine-member Disciplinary and Professional Conduct Board which will include three teachers. The Board will deal with complaints and reports about alleged teacher misconduct and certification appeals. Disciplinary hearings will be open to the public and decisions, as well as the written reasons, will be made public. The administrative functions of the former college will be assumed by the Ministry of Education.

Family Law Act The new Family Law Act, which received Third Reading on 23 November 2011, supports the non-court resolution of family disputes (where appropriate) through agreement, mediation, arbitration, and parenting coordination. The legislation also emphasizes putting children first in family disputes. The Act expressly states that the best interests of the child must be the only consideration in making decisions involving the child.

The Act is the product of a comprehensive and collaborative review (more than 500 groups and individuals were consulted) of the Family Relations Act, in place since 1978. The Act clarifies when and how agreements may be set aside and establishes a comprehensive scheme to determine a child’s legal parents, including situations where reproductive technology has been used. It also emphasizes responsibilities to children and promotes cooperation by replacing divisive concepts such as “custody” and “access” with “guardianship”, “parental responsibilities” and “contact with a child”. The range of remedies and consequences for non-compliance with agreements and court orders are increased.

The new property division regime clarifies how property is divided when couples separate and includes a category of excluded property, such as pre-relationship property and inheritances. Property and pension division provisions will now include unmarried couples who have lived together for two years in a common-law relationship.

The Family Law Act passed through the House without division and was endorsed by all Members. Implementation is expected to take 12 to 18 months to allow sufficient time to bring the Act into force by regulation and to inform the legal profession and family service providers regarding the scope of the legislative changes.

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THIRD READING: QUÉBEC Cultural heritage The National Assembly passed Bill 82, the Cultural Heritage Act, on 19 October 2011. This Act, which came into force on 19 October 2012, replaced the Cultural Property Act, passed 40 years ago. The new Act promotes knowledge of cultural heritage and the protection, enhancement and transmission of that heritage, in the public interest and in a sustainable manner. It places Québec at the leading edge in the field of cultural heritage by redefining the concept to include not only heritage documents, immovables, objects and sites, but also heritage cultural landscapes, intangible heritage and historic figures, events and sites. It allows the government to designate heritage cultural landscapes at the request of local communities and broadens the powers of municipalities to bring them more in line with those of the Minister. As a result, in addition to recognizing immovables and sites, a municipality will be able to recognize the interior of a heritage immovable or the immovable property that it owns. Municipalities will also be authorized to identify intangible heritage and historic figures, events and sites.

The Act also introduces a significant preventive measure that allows the Minister as well as municipalities to make an order to prevent a threat to property that may have heritage value. It establishes the Conseil du patrimoine culturel, which may make recommendations on any matter relating to knowledge, protection, enhancement or transmission of cultural heritage.

Resale of admission tickets The National Assembly passed Bill 25 – an Act to prohibit the resale of tickets at a price above that authorized by the producer of the event – on 20 October 2011. The Act prohibits a merchant from selling tickets at a price above that announced by the authorized vendor. It is intended to put an end to the practice of certain merchants who, to the detriment of consumers and without any ties to the producers, resell tickets at a much higher price than the original. According to a study, each increase in ticket price reduces consumer demand.

Seniors’ residences The National Assembly passed Bill 16, An Act to amend various legislative provisions concerning health and social services in order, in particular, to tighten up the certification process for private seniors’ residences, on 29 November 2011. Intended to improve seniors’ safety and quality of life, this Act introduces new operating rules for such residences, including the obligation to hold a temporary certificate of compliance to begin operating one.

The provisions relating to maintaining or renewing a certificate of compliance are amended. Health and social services agencies are granted the power, in certain circumstances, to evacuate and relocate persons lodged in a private seniors’ residence following a specific procedure.

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Financial markets The National Assembly passed Bill 7, an Act to amend various legislative provisions mainly concerning the financial sector, on 30 November 2011.

This Act amends the Act respecting the Autorité des marchés financiers (AMF) to provide that persons who report a failure to comply with an Act administered by the AMF will incur no civil liability for doing so. It also amends the Act respecting the distribution of financial products and services to allow other persons beside the AMF to ask the compliance board known as the Bureau de décision et de révision to impose a sanction on a representative, a firm or an independent partnership for a breach of that Act. Practices in the construction industry On 2 December 2011, the National Assembly passed Bill 33, an Act to eliminate union placement and improve the operation of the construction industry. Under the Act, union placement in the construction industry is eliminated. Henceforth, all labour referrals in the industry must go through the labour-referral service administered by the Commission de la construction du Québec. Union associations and employer associations that wish to refer employees must do so through that service, after obtaining a licence to that effect. It is prohibited and constitutes an offence to force or attempt to force an employer to hire specific employees or a specific number of employees.

In the same vein, the Assembly passed Bill 35, an Act to prevent, combat and punish certain fraudulent practices in the construction industry and make other amendments to the Building Act, on 8 December 2011. Under the Act, a person convicted of an offence under a fiscal law or of an indictable offence must now file any declaration, information or document required by the Régie du bâtiment du Québec, Québec’s construction board, concerning the offence. In addition, requirements concerning the contractor’s good moral character, competence and integrity are added to the conditions for the issue and maintenance of a licence. As well, the licence of any contractors convicted of certain offences under a fiscal law in the last five years will be restricted for the purposes of bidding for a public contract. Fines under the Building Act are substantially increased, including those that may be imposed on any person for acting as a contractor without holding a licence, on a contractor for the illegal transfer of a licence and on any person for using the name of a licence holder for the purpose of carrying out construction work.

Pharmacists’ activities Also on 8 December 2011, the National Assembly passed Bill 41, an Act to amend the Pharmacy Act. To enable pharmacists to better meet the needs of patients, the Act adds to the activities reserved to pharmacists the renewal of prescriptions for a determined period, the adjustment of prescriptions and the substitution of another medication in the case of a

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CANADA

of photographers (to be in line with other creators), and to ensure that the Act remains technologically neutral.

Bill C-11 is a reintroduction of Bill C-32, which was introduced in the 3rd Session of the 40th Parliament but died on the Order Paper. As of this writing, Bill C-11 has been referred to a legislative committee of the House of Commons.

Given the wide variety of industries, practices, institutions and stakeholders which the Copyright Act may affect, the C-11 committee faces a busy and exciting few weeks of hearing testimony from witnesses in many sectors of Canadian industry and society.

Bill C-30, an Act to enact the

Investigating and Preventing Criminal Electronic Communications Act and to amend the Criminal Code and other Acts, was introduced by the Minister of Public Safety on 14 February 2012.

Short titled the Protecting Children from Internet Predators Act, the Bill proposes to require internet and other telecommunication service providers to put in place mechanisms enabling the interception of information transmitted through their services.

The Bill would also require telecommunication service providers to provide basic information about their subscribers to police services, including the Royal Canadian Mounted Police, the Canadian

Security Intelligence Service, the Commissioner of Competition and any provincial police service.

Additionally, Bill C-30 proposes to amend the Criminal Code to ensure that police can exercise necessary investigative power in relation to computer crime.

Bill C-30, however, has drawn criticism from a variety of stakeholder groups. Criticisms have focused in particular on the extent of information telecommunications companies would be required to divulge, the potential costs of the bill, and the need for judicial oversight. The Government has said that it is open to amendments.

One other recent and noteworthy proposal is Bill C-

THIRD READING CONT...: QUÉBEC complete disruption in the supply of the prescribed medication in Québec. It also allows pharmacists to administer medication to demonstrate proper usage and prescribe certain medications when no diagnosis is required.

Pension plan The National Assembly passed Bill 39, an Act to amend the Act respecting the Québec Pension Plan and other legislative provisions, on 9 December 2011. The Act is part of a series of measures, including a progressive increase in contributions collected by the Régie des rentes du Québec, intended to capitalize the plan and make it sustainable. To encourage workers to prolong their participation in the labour market, the Act allows them to qualify for a retirement pension at age 60 without concluding a work reduction agreement with their employer. The Act also provides for the payment of an additional amount for disability after retirement.

Other amendments are made which affect the payment of retirement pensions. For persons

over 65 years of age who are entitled to a retirement pension but have not applied for it, the maximum period for the retroactive payment is reduced from 60 to 12 months.

Financing of political party leadership campaigns On 9 December 2011, before adjourning until February 14, 2012, the National Assembly passed Bill 120, an Act respecting political party leadership campaigns, thus closing the last chapter of a major electoral reform of the Election Act that began in the fall of 2009 and led to the passage of four other bills.

The Act fills an important void in electoral legislation, which did not regulate political party leadership campaigns at the provincial or municipal level. The Act provides new rules, modeled after those relating to the financing of political parties, with respect to the solicitation and payment of contributions, loans and sureties, and expenses incurred by candidates and the party. Penal provisions were also introduced.

32, An Act to amend the Civil Marriage Act. The Bill, short titled the Civil Marriage of Nonresidents Act, proposes to amend the Civil Marriage Act to provide that marriages performed in Canada which would be valid if the spouses were domiciled in Canada are valid for purposes of Canadian law even if one or both spouses did not have the capacity to enter into the marriage in their domicile. The Bill would also establish a new divorce process allowing Canadian courts to grant divorces to couples who are not Canadian residents and who cannot divorce in the state in which they reside because their marriage is not recognized as valid there. Bill C-32 responds in particular to concerns of nonresident same sex couples who traveled to Canada to be married and now cannot be divorced in their home states, where they are not recognized as married. If adopted, the Bill’s provisions would apply equally to both same sex and opposite sex couples.

Bill C-32 amends the Civil Marriage Act in order to provide that all marriages performed in Canada between nonresidents, whether they are of the same sex or of the opposite sex, that would be valid in Canada if the spouses were domiciled in Canada are valid for the purposes of Canadian law even if one or both of the non-residents do not, at the time of the marriage, have the capacity to enter into it under the law of their respective state of domicile.

It also establishes a new divorce process that allows a Canadian court to grant a divorce to non-resident spouses who reside in a state where a divorce cannot be granted to them because that state does not recognize the validity of their marriage.

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CPA CENTENNIAL GIFTS

CPA Centennial Globe: £30 each plus £7.50 postage and handling. Total: £37.50

CPA Centennial Mirror: £12 each plus £7.50 postage and handling.. Total: £19.50

The CPA Centennial Post it Note Holder: £8 each plus £7.50 postage and handling: Total: £15.50

The CPA Centennial pin specially designed to mark the 100 years milestone: £5 each plus £2.50 postage and handling. Total: £7.50

The CPA Centennial globe and post-it holder in their boxes

CPA souvenirs are available for sale to Members and officials of Commonwealth Parliaments and Legislatures by contacting the CPA Secretariat by email at: hq.sec@cpahq.org or by air mail at: Suite 700, 7 Millbank, London SW1P 3JA, United Kingdom

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CPA CENTENNIAL GIFTS CPA pens

This superb limited-edition medal celebrating the centennial of the Commonwealth Parliamentary Association is now for sale on a ‘first come, first served’ basis.

Approximately 4.5 centimetres in diameter, the medal features a map of the world listing each of the nine Commonwealth regions on the obverse and, on the reverse, the ‘winds of change’ centennial logo.

Each medal is beautifully presented in an individual presentation box and comes complete with a numbered certificate of authenticity personally signed by the retiring Chairperson, YB Dato’ Seri Mohd. Shafie bin Hj Apdal, MP and the Secretary-General, Dr William F Shija.

Only 150 of these rare medals will ever be made and they are for sale at £40 plus £7.50 postage and handling (total £47.50). Please send your payment and delivery address to the Commonwealth Parliamentary Association, Suite 700, Westminster House, 7 Millbank, London SW1P 3JA, United Kingdom.

Queries regarding the medal can be emailed to hqsec@cpahq.org

Book ad - Parliamentary African Reform:Different Ads.qxd 11/04/2012 14:59 Page 80

Available to Members and Officials of the CPA for purchase from the CPA•Secretariat, Suite 700, Westminster House, 7 Millbank, London SW1P 3JA, U.K. Tel.: (+44-20) 7799-1460 Fax: (+44-20) 7222-6073 E-mail: hq.sec@cpahq.org Also available to members of the public from booksellers.

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CPA SHOP CPA pens

CPA silver-plated cardholders

Silver-plated photoframe, clock and pen in holder

CPA souvenirs are available for sale to Members and officials of Commonwealth Parliaments and Legislatures by contacting the CPA Secretariat by email at: hq.sec@cpahq.org or by air mail at: Suite 700, 7 Millbank, London SW1P 3JA, United Kingdom

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