An Effective Opposition – The Constitutional Right
The quality of democracy should be measured by the means available to the Opposition (the parliamentary minority) to accomplish its tasks. One of parliament’s primary functions is to legislate. The constitution of a country usually gives the right to their members or parliamentary groups to table legislative proposals and the right to comment on proposals tabled by the Government. Rights of the parliamentary Opposition can be found at different levels of the legal hierarchy and are often detailed in the parliament’s Rules of Procedure.
A constitution guarantees a number of rights to the Opposition. Constitutional protection of the Opposition’s rights can be either implicit, granting rights to all parliamentarians, or explicit, i.e. granting rights to the Opposition. However, explicit rights are rarer, though there are some countries which protect the Opposition’s rights by explicitly referring to the term ‘Opposition’ in the constitution. Portugal, Morocco and France, for example, lay down specific rights available to the Opposition.
Portugal’s Constitution in Article 114.2 determines that “minorities have the right to democratic opposition, as laid down by this Constitution and the law”. Similarly, Article 10 of Morocco’s Constitution, grants the opposition “air time at the level of the official media, proportional to its representation”. The French Constitution in Article 48, grants the Opposition the right to set the agenda on one day of sitting per month.
The decision to include Opposition’s rights as constitutional provisions requires careful consideration and should be a unique process for every state. To make Opposition’s rights effective, it is essential that the parliament’s majority should not be able to block the Opposition from exercising its rights by simple majority. Oversight by parliament is a crucial check-and-balance of the democratic process, but it is particularly important for the Opposition, which often does not support the Government and has a greater incentive to investigate misconduct.
A functioning Opposition is indispensable for pluralism because it offers views and policies different from those of the Government. It provides a wider range of voices, essential for the generation of ideas. The importance of a functioning Opposition and pluralism has been widely recognized around the world. Various governments, and international organizations have stressed, on different occasions, the importance of a functioning Opposition for pluralism.
In April 2012, the UN Human Rights Council adopted a resolution that emphasized the crucial role played by the political Opposition and civil society in the proper functioning of a democracy. The European Conference of Presidents of Parliament (June 2010) recognized that the defining difference between democracies and authoritarian systems was that the former recognized political Opposition on equal terms with the Government whereas the latter did not.
However, recognition of the Opposition is only one part. An Opposition must be entitled to a number of concrete rights to function effectively and offer an alternative to the majority. In general, these rights include the equal treatment of parliamentarians and the freedom of expression. More specifically, the Opposition’s rights include the right to supervise Government, the right to speak in parliament, and the right to fully participate in the legislative processes.
With a few exceptions, constitutions and laws of states do not define the role of the Opposition, but do acknowledge their rights. This is not to suggest that constitutions should regulate every detail of the functioning of parliament. Details of Opposition’s rights are usually left to the Rules of Procedure or other legislation because the need for flexibility in certain provisions cannot be ignored so that the same remain adaptable to changing circumstances in order to enable effective opposition. The rights of the Opposition should also not be subject to changes by the majority.
The equal treatment of all Members of Parliament (MPs) is a fundamental principle from which most rights of the Opposition are derived. According to this principle, Opposition members should be able to exercise their mandate under the same conditions granted to the MPs sitting on the Treasury benches. Furthermore, all MPs should have an equal number of rights whether they are part of a big group, a small group or not aligned with any group at all.
International law, to some extent, also recognizes a number of rights of the parliamentary Opposition. Human rights treaties guarantee the freedom of speech and the freedom of assembly and also accord the elected with effective powers of governance. In addition, there are political commitments that secure rights of the Opposition. Resolution 1601 (2008) of the Parliamentary Assembly of the Council of Europe, for example, provides detailed guidelines on the rights of the Opposition. This Resolution constitutes a political, legally non-binding commitment.
To conclude this brief piece of writing I would say that a functioning Opposition is an essential mechanism of holding the Government accountable, through committees of inquiry and questioning its actions. There is no denying of the fact that unless an effective Opposition comes to the fore, incumbents lacking both zeal and vision would continue to rule the masses.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.
