Accountability Through and Within Arab Judiciaries
Arab Parliaments: Potentialities and Problems
Nathan J. Brown,
Arab Parliaments: Potentialities and Problems:
The Historical Development of Parliaments in The Arab World:
Yet despite the spread of parliamentary structures throughout the Arab world, Arab parliaments have sometimes grown less effective over time rather than more. The first parliamentary bodies in the Middle East—the Tunisian, Ottoman, Egyptian, and Iranian—often clashed with the head of state over their prerogatives (especially the budget and ministerial responsibility), generally losing these battles. The precedent set in the early period of parliamentary experimentation carried over to the twentieth century. And in countries where presidential regimes replaced monarchical ones (Egypt, Libya, and Iraq), elected parliaments were often dismantled and replaced by far more pliant bodies.
To be sure, there has been some limited movement toward revival of parliamentary life in a few Arab countries in recent years. A general (if limited) trend toward liberalization has modestly enhanced the role of parliaments in several Arab countries (such as Yemen, Jordan, Morocco, and Egypt). One older parliament (the Kuwaiti) has maintained a tradition of activism and at least one new one (the Palestinian) has shown some similar signs.
A recent comprehensive study of Arab parliaments (focusing on Lebanon, Morocco, Jordan, Kuwait, Yemen, and Egypt) ranks them on two dimensions. First, are they institutionally central? That is, are the constitutional framework and the basic rules of politically life well established and accepted? And do they assign the parliament a genuine political role? Second, do Arab parliaments have the institutional capacity to plan an independent role? Do they have sufficient staff, material resources, and expertise? That study argued that centrality and capacity do not always go together; indeed, sometimes increasing one can come only at the expense of the other—an executive might grant more resources to a parliament only if it is assured it will remain politically marginal. While it noted a general trend toward increased centrality and capacity among Arab parliaments, the study found no Arab parliament yet ranks high on both dimensions.
In order to focus on issues of accountability, this report will follow slightly different framework for analyzing the positions of Arab parliaments. First, the constitutional basis for parliamentary authority will be examined. Second, the gaps in existing constitutional systems will be considered. Third, attention will turn to the legal framework and the way that specific legal practices can rob parliaments of the ability to exercise the constitutional authority they do possess. Fourth, parliaments in Egypt, Kuwait, Jordan, and Morocco will receive special attention. Finally, practical steps towards enhancing the role of parliaments in ensuring executive accountability will be considered.
In fact, there are only a few areas in which Arab constitutions show easily identifiable gaps. Perhaps most prominent is the loose way that emergency measures are controlled. While it is common to have to resort to parliament for approval for states of emergency, the system still generally leaves the initiative to the executive and only allows the parliament to react. And many Arab states have lived for extremely prolonged period under martial law or emergency rule, transforming interim measures into a permanent way of conducting political life. Further, when parliament is not in session, executives may issue decrees with the force of law.
Arab states often construct upper chambers of parliament—often through a mixture of election and appointment—and such bodies can act as a check on parliaments. Indeed, in several countries (such as Egypt and Morocco) liberalization in parliamentary life was accompanied by the construction of an upper house as a counterweight to an expected increase in opposition strength in the lower house.
Finally, the strong concentration of authority in the hands of the head of state—nearly universal in the Arab world—makes it more difficult for parliaments to challenge executive action. In most countries, the line between legitimate criticism and sedition is hazily drawn and constantly shifts, especially when it comes to open statements opposing a head of state. Bold Arab parliaments have been willing to challenge ministers and prime ministers, but all have shied away from confrontation from a head of state.
Despite such gaps, however, the constitutional basis for parliamentary authority remains strong in theory. And yet it is rarely exercised. Most Arab parliaments have come nowhere close to removing confidence from a minister or from the entire cabinet. Neither do most parliaments play a dominant role in drafting legislation. To find the weakness of Arab parliaments, it is necessary to look beyond the constitution to the legal framework for executive accountability—a legal framework that, ironically, parliaments have had some role in crafting.
Legal Framework for Executive Accountability:
Legal framework for elections. Most Arab constitutions provide only the most general guidance for parliamentary elections, leaving the definition of electoral procedures to ordinary legislation and administrative regulations. This generally leaves parliament responsible for legislating the basis for elections, though sometimes the basic framework has been laid by decree-law (issued by the executive before a parliament was elected or while parliament was not in session.
Laws governing elections do often provide for some guarantees of free and fair procedures. But they also omit critical safeguards. Elections are generally overseen by the Ministry of Interior. Entrusting democratic procedures to this body often leads to some mistrust because of the Ministry’s traditional emphasis on issues of internal security. And election rules beyond the balloting itself are often tailored to favor specific results. For instance, electoral boundaries are drawn to discourage opposition candidates. Urban areas (where opposition forces are often stronger) are frequently underrepresented. The decision to use single-member districts, multi-member districts or proportional representation often seems to be based on short-term political calculations. Indeed, in some countries the precise rules vary from one election to the next, leading opposition forces to charge that they are tailored to produce a specific result.
In general, parliamentary elections are carried out in the Arab world without substantial international monitoring, and sometimes even independent domestic monitoring is not welcomed. There are some exceptions (such as recent Palestinian and Yemeni parliamentary elections, both subject to international monitoring). More widespread acceptance of such monitoring would likely have significant results, as the sophistication and experience of various monitoring bodies has increased greatly over the past decade.
Perhaps more significant than electoral procedures is the general political climate. Pluralist politics has been the exception rather than the rule in the Arab world, so that voters in parliamentary elections often face a constricted set of choices. Some countries (such as Iraq and Syria) effectively remain one-party states. Other countries (such as Egypt) have moved somewhat away from a single-party system without replacing it with full pluralism. In such countries, a single dominant political party operates with the full backing of the executive and much of the administrative apparatus of the state, but opposition political parties are allowed to operate. Parliament is therefore generally dominated by the governing party, and opposition currents can express themselves but generally with little effect on policy.
Oddly, it is often countries with the weakest parties (or that ban parties altogether) where parliament can be the most independent. The Palestinian, Jordanian, and Kuwaiti parliaments, for instance, are not elected on a partisan basis, and party groupings in the parliament generally operate fairly informally. Yet for this reason, the parliament becomes a little more difficult for the government to dominate: without strong parties to demand loyalty from their members, the government has to negotiate with individual deputies or many small blocs. And members of parliament are dependent for election on their personal standing, sometimes leading to grandstanding and attention-getting behavior.
Parliamentary resources. Even where parliaments are able to establish a degree of independence from the executive, they are generally unable to use it as effectively to control the legislative process. In a formal sense, most legislation does receive parliamentary approval (except in those states, particularly in the Arabian peninsula, where the assembly serves only a consultative role). But it is generally the case that the bulk of drafting and review of proposed legislation takes place within the executive branch. Most legislation proposed in Arab parliaments is initiated by ministers or the cabinet rather than by parliamentary deputies. Individual deputies generally lack the expertise and the resources to draft complex pieces of legislation. In recent years, some Arab parliaments have been successful in augmenting their institutional capacity in research and legislative drafting. To date, most resources are concentrated on the parliamentary level (rather than on the level of the individual deputy), but there is still a general trend towards increased institutional capacity.
Yet despite this recent trend, parliaments generally still play a subordinate role. The budgetary process is perhaps the best example of this. While parliaments must approve the state budget, either according to the constitution or the law (or both), in few Arab countries does review of the budget serve as an effective means of parliamentary oversight of the executive. The budget is submitted with only a short period to review it (for instance, the Palestinian budget law only allows two months for parliamentary review). It is often vague and only intensive work by parliamentarians can reveal many of the proposed budget’s critical features. And few parliaments in the Arab world are well equipped to undertake the kind of review that true oversight would require. The result is that the budget is generally approved with parliamentarians having only a limited influence over the outcome.
It is true that Arab parliaments are not unique in this regard. Even in fully parliamentary systems, the government requires a majority of the parliament in order to rule. Once having secured that majority, however, critical decisions are made in the ministries or the cabinet. In Europe, for instance, the institutional capabilities of parliaments is far greater than in the Arab world, but most legislation is still drafted within ministries and so long as the cabinet remains in office with the support of a loyal parliamentary majority, it is unlikely to cause serious embarrassment. Yet there are still ways in which parliaments elsewhere can play a far stronger role than they do in the Arab world. In general, however, this requires a direct access to the public that Arab parliaments often lack.
First, Arab parliaments, unlike their counterparts elsewhere, often have few direct links to public opinion. Broadcast media in the Arab world are under state control, and most only make available limited and edited showings of parliamentary debates. Print media are often freer but still highly partisan, and dominant newspapers are often careful not to take a line regarded as excessively independent by the government or the head of state. Some Arab parliaments have attempted to establish their own direct links to the public that elected them by launching their own broadcasts or publications, but such efforts are generally still in their infancy.
Second, public hearings are an important parliamentary tool to reach not only the public at large but also selected constituencies interested in a particular topic or draft law. The American Congress has probably shown the most extensive use of such hearings to involve interested groups in the process of drafting legislation, though that is probably an unlikely model for the Arab world. But even European parliaments consult with affected constituencies and groups, using parliamentary committees to forge such links and develop relevant expertise. Arab parliaments are moving only tentatively in this direction, however. Parliamentary committees do exist to allow for specialized examination of laws, but only rarely to they reach out to specific groups or work to play a public role.
Thus, under existing constitutional arrangements, the Egyptian parliament does not lack all tools. It is allowed to nominate the president (whose election still must be confirmed in a popular plebiscite). It may also question ministers, who serve only with its confidence. The constitution also provides that one-half the members of the parliament be workers and peasants, a clause remaining from Egypt’s socialist period that has uncertain meaning in today’s more liberal context.
Yet the independence of Egypt’s parliament is limited by the electoral framework. The constitution makes only the loosest of provisions, insisting on judicial supervision over balloting. But other elements of Egypt’s electoral system have undermined the independence of the parliament. First, Egypt’s party system remains constricted. Even after the disestablishment of the regime’s single party, every parliament has contained a massive majority of deputies from the National Democratic Party (which is headed by the president). Second, full judicial supervision of elections was not fully implemented until the 2000 elections, leaving the Ministry of Interior to oversee most of the process. Even after a decision by the country’s Supreme Constitutional Court resulted in direct judicial supervision of all polling places in 2000, other aspects of elections remained under executive control in the Ministry of Interior and Egypt showed itself hostile to either domestic or international monitoring. Third, the parliament retains control over its own membership: under the country’s constitution the Court of Cassation is to investigate cases of election law violations but can only refer its findings to parliament. Court findings of irregularities in large numbers of races—sometimes amounting to a substantial share of the sitting parliament—have often not even been considered by the body.
It is true that a series of judicial decisions have resulted in a more viable parliament. The Supreme Constitutional Court’s requirement that judges supervise polling has already been mentioned; other judicial decisions have granted legal legitimacy to some opposition political parties and mandated that independents be granted the opportunity to run for election (thus overturning a pure party-list system in which voters selected parties rather than individuals). The result has been to grant voters more options and allowed independents entrance to parliament, thus weakening (but hardly destroying) the dominance of the governing National Democratic Party.
The independence of the Egyptian parliament is thus limited but real. And it has some tools to exercise this independence. The Egyptian parliament has perhaps the strongest support services (in terms of research facilities and trained personnel) of any in the Arab world. The resources are centralized (rather than allocated to individual members) but the parliament’s leadership insists it is responsive to all deputies regardless of affiliation. While access to official media is not unlimited it is granted, and Egyptian television regularly shows peppery parliamentary debates.
Thus, while the overwhelming majorities held by the National Democratic Party make it extremely unlikely that the parliament will bring down a government, it can embarrass ministers with probing questions, bring scandals to political light, and pressure on matters of specific interest. The parliament generally is pliant on matters of great importance to the executive and has even passed controversial laws with little examination when pressed by the government. The speaker’s control of the agenda keeps parliament from becoming too great a challenge. In some ways, the weakening of Egypt’s party system (due partly to the string of judicial decisions) has made parliament a more independent body, difficult for the executive to control. Yet Egypt’s system remains largely presidential, and parliament can ensure a measure of executive accountability only at the margins.
The Kuwaiti constitution seems to provide for a fairly strong parliament. Parliament may question and withdraw confidence from individual ministers. If the parliament and the prime minister (traditionally the crown prince) are unable to cooperate, the amir may either dissolve the parliament or the cabinet. The parliament has the paramount role in issuing legislation, with the amir either promulgating laws passed by parliament or resubmitting them (the parliament may pass a resubmitted law either by mustering a supermajority or by passing it again in the following session).
These provisions have been honored (except during the periods in which parliament has been suspended). Yet the Kuwaiti parliament has not made use of all the powers granted to it. Withdrawing confidence from a minister or passing a law over the amir’s objections are theoretically possible, but the parliament and the executive have always drawn back before such a confrontation actually occurred. Parliamentary relations with the executive are generally more strained than anywhere else in the Arab world, and the Kuwaiti parliament generally keeps a watchful eye on the executive. The explanation for the parliament’s independence and watchfulness lies less in the constitutional tools available to it and more in the basis by which it is elected.
There are several features of Kuwait’s electoral system that grant the parliament greater independence. First, by tradition, members of the ruling Al Sabah family do not enter the elections. Second, parliamentary elections are not officially partisan; indeed, formal political parties do not exist in Kuwait (though the affiliations and inclinations of candidates are widely known). Thus, deputies must show some individual qualifications, a system that rewards either independence or efficiency in meeting constituent needs. Third, executive interference in the balloting is generally quite rare (some gerrymandering has been alleged, but complaints have grown less frequent). Fourth, Kuwait’s small population makes it easy for candidates to reach out directly to their constituencies rather than relying on mass media. Fifth, Kuwait’s relatively free press makes possible open discussion of sensitive political issues. Parliamentary sessions themselves are covered extensively in the press, with verbatim transcripts of sessions often published.
Kuwait’s independent parliament thus has escaped executive domination. In some ways, the parliament’s independence has increased over time, partly because the number of “service deputies”—those dedicated only to serving their constituents and therefore willing to toe the line laid down by the executive—has decreased. And periodic elections have led to shifts of the political balance within parliament (with liberals and Islamists being the two chief ideological polls at present). This independence has had real results in terms of oversight of the executive. Deputies have questioned government expenditures, even probing into sensitive military purchases. They have taken their oversight role of the budget extremely seriously, sometimes resisting fiscal reforms on the grounds that they would harm constituents.
Parliamentary independence has checked but not eliminated executive dominance. Most legislation is still begun in ministries, with parliamentarians generally lacking the support necessary to draft complex laws themselves. The amir himself remains above parliamentary oversight, and critical ministries remain in the hands of the ruling family. Individual deputies have become quite bold in pressing criticism of leading members of the Al Sabah, though the parliament as a whole generally seeks to avoid confrontation. Ministers (most of whom are not elected deputies) sit in parliament, voting on most matters, generally giving the government a majority on crucial votes.
In a sense, the Kuwaiti parliament at its strongest represents the best that most Arab parliaments can hope to accomplish. It does not dictate the composition of the cabinet but it can bend it; it only rarely initiated legislation, but it exercises its independent judgment; it does not completely control the contents of the budget, but it does use the budget-approval process as an oversight tool; and it does not set policy but it does insist that the government rework its policies to meet its concerns
While a Jordanian parliament was first elected in 1928, its authority was limited to approving legislation proposed by the cabinet. Not for two decades did it get the right to initiate legislation; the ability to hold ministers responsible had to wait for the series of constitutional amendments that followed the union between the East Bank and the West Bank. A Senate was created at the same time. With the enlargement of the kingdom, new independent forces gained election to parliament and Jordan seemed to stand on the brink of becoming a constitutional monarchy. However, divisive forces in broader Arab politics and the confrontational attitude between nationalists in parliament and the king led to a constitutional crisis; opposition forces were expelled from parliament and a more pliant body resulted. The 1967 war and the loss of the West Bank led to a disruption of regular parliamentary life, and parliament was finally suspended in 1978 (with a consultative body taking its place). Not until 1988 did the king agree to prepare for elections for a new parliament (without representation from the West Bank) elected. Parliamentary life has been more stable since that time.
Electoral provisions for the Jordanian parliament have been contested because their structure has had great influence on the composition of the body. Indeed, the government has made use of the tool of dissolving parliament and then issuing by decree a new electoral law (as it is empowered to do at times when parliament has not been in session). Opposition forces have bitterly criticized such techniques as designed to favor candidates with local and particularistic followings over those affiliated with broader ideological movements. On some occasions, some opposition parties have boycotted parliamentary elections for this reason. Yet the result has not been a completely subservient body. Since the 1988 restoration, each parliament elected (in 1989, 1993, and 1997) has shown an independent streak, though on critical matters all have bowed in the end to government pressure.
The Jordanian parliament has a similar set of constitutional tools to the Kuwaiti and Egyptian parliament. The head of state generally lies outside of its oversight, but the cabinet is responsible in effect (if not strictly by text) to both the head of state and the parliament. The parliament shies from using the constitutional available to it to bring down the entire government, but individual ministers do come under pressure. And the Jordanian parliament has twice (in 1992 and 2000) moved informally to bring down the government by petition to the king rather than removal of confidence. On neither occasion did the device succeed, but new parliamentary elections were soon scheduled on both occasions.
And as with its counterparts in Egypt and Kuwait, the Jordanian parliament allows the fundamental legislative agenda and the bulk of the drafting to be completed in the cabinet and the ministries. Parliamentary questions directed toward ministers serve as an important tool in bringing issues and policies into public discussion, but do not shape the fundamental policy direction of the country. And support services for parliament as a whole, parliamentary committees, and individual deputies remain underdeveloped.
Thus on the two chief tools of parliamentary oversight of the executive—legislation and ministerial responsibility—the Jordanian chamber generally presents surmountable obstacles. That it is able to do so ensures some level of accountability in the country, but only in a limited way.
Up until 1996, a combination of electoral procedures, the use of indirect elections for some seats, and constricted public debate combined to produce a subservient parliament. When opposition forces decided to compete, they won a substantial share of the vote, but could not form a parliamentary majority. And the authorities of the parliament were only gradually expanded to grant some genuine oversight tools (in terms of ministerial responsibility and parliamentary questioning). The most recent constitution, issued in 1996, re-established an upper house in the Moroccan parliament, a common device used in the Arab world to prepare for liberalization in the lower house. More than any substantive changes, however, the new draft seemed to augur an enhanced role for parliament and increased tolerance of opposition parties. Most notably, perhaps, the government agreed to creation of an electoral commission, removing some aspects of parliamentary elections from the strict control of the Ministry of Interior. And the first elections under the new procedures, conducted in 1997, resulted not in a loyal parliament but a fragmented one.
Thus, the current Moroccan parliament is unusual in several respects. First, it has been elected under procedures negotiated between government and opposition rather than dictated by the government. Second, the party system is relatively strong, and political parties are recognized as legitimate actors both in the broader society and in the parliament itself (the current parliament recognizes ten parliamentary groupings (ranging from 13 to 55 deputies in size in a parliament with 325 members). Third, the election results for parliament influenced the composition of the cabinet: the fragmented parliament necessitated coalition governments rather than one dictated by the ruling party or head of state. And all this has occurred in a generally liberalizing climate.
And it is this final feature that brings Morocco closer than almost any other Arab system to a true measure of parliamentary oversight. The newly enhanced role of the Moroccan parliament has only begun to be reflected in institutional capacity. Should the parliament attain capabilities for legislative drafting, specialized committee work, and substantive research, it may be able to be a stronger force for executive accountability than virtually all its sister institutions in the Arab world.
Elections. In most Arab states, election procedures seem tailored to produce a specific result, and they are often modified for each election according to the result desired. The process of regularly modifying electoral laws must end. More important, impartiality both in the general electoral procedures and in the balloting itself is important. Such goals could be realized with fairly modest steps:
Enhancing parliamentary capacity. Arab parliaments possess significant latent authority, but they are rarely able to use the tools they have because of insufficient expertise and analytical capacity. Some countries have recently taken some significant strides in this area in recent years. In particular, three areas might receive special attention.
 Abdo Baaklini, Guilain Denoeux, and Robert Springborg, Legislative Politics in the Arab World: The Resurgence of Democratic Institutions (Boulder: Lynne Rienner, 1999).