Westminster Legacies: Democracy And Responsible Government in Asia And the Pacific

Edited by

The book examines the ways the Westminster system has been adapted in the light of local cultures and traditions, and considers how Westminster remains important for understanding political institutions and practices. It also looks at the conditions under which Westminster legacies have taken root and endured, and those conditions that have eroded or significantly changed its influence. Some of the countries surveyed have teetered on the edge of becoming ‘failed states’ (especially in terms of legitimate democracies), while others remain robust adversarial democracies.

UNSW PRESS

W EST MI NST ER LEG ACIES

Westminster Legacies examines the ways in which the Westminster system has been influential in shaping responsible government and democracy across Asia, Australasia and the Pacific. It devotes chapters to India, Pakistan, Nepal, Singapore, Malaysia, Australia, New Zealand, Papua New Guinea, Fiji and the smaller Pacific island nations.

Patapan Wanna Weller

WESTMINSTER LEGACIES Democracy and Responsible Government in A sia and the Pacific

Edited by Haig Patapan John Wanna Patrick Weller

UNSW

PRESS

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WESTMINSTER LEGACIES

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ANZSOG Program on Government, Politics and Public Management The Australia and New Zealand School of Government (ANZSOG) is a network initiative of five jurisdictions (the Australian and New Zealand governments, New South Wales, Victoria and Queensland) and nine universities. Established in 2003, ANZSOG represents a new and exciting prospect for the development of world-class research and teaching in the public and community sectors. ANZSOG has announced an extensive research program that promotes innovative and cutting-edge research in partnership with academia and the public sector (). In association with UNSW Press, ANZSOG has undertaken to publish a series of books on contemporary issues in Australian government, politics and public management. Titles in this program will promote high-quality research on topics of interest to a broad readership (academic, professional, students and general readers) and will include teaching texts relevant to the ANZSOG consortia in the areas of government, politics and public management. Series editors are Professor John Wanna and Professor R.A.W. Rhodes, Research School of Social Sciences, Australian National University, Canberra. Recent titles include: Terms of Trust: Arguments over ethics in Australian government by John Uhr Yes, Premier: Political Leadership in Australia’s States and Territories, edited by John Wanna and Paul Williams.

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WESTMINSTER LEGACIES Democracy and Responsible Government in Asia and the Pacific

Edited by Haig Patapan, John Wanna and Patrick Weller

UNSW PRESS

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A UNSW Press book Published by University of New South Wales Press Ltd University of New South Wales Sydney NSW 2052 AUSTRALIA www.unswpress.com.au © UNSW Press 2005 First published 2005 This book is copyright. Apart from any fair dealing for the purpose of private study, research, criticism or review, as permitted under the Copyright Act, no part may be reproduced by any process without written permission. While copyright of the work as a whole is vested in UNSW Press, copyright of individual chapters is retained by the chapter authors. Inquiries should be addressed to the publisher. National Library of Australia Cataloguing-in-Publication entry Westminster legacies: democracy and responsible government in Asia and the Pacific. Includes index. ISBN 0 86840 848 4. 1. Representative government and representation - Asia. 2. Representative government and representation - Pacific Area. 3. Legislative bodies - Asia. 4. Legislative bodies Pacific Area. 5. Asia - Politics and government. 6. Pacific Area - Politics and government. I. Patapan, Haig, 1959– . II. Wanna, John. III. Weller, Patrick, 1944– . IV. Title. 321.8 Cover design Di Quick Cover image Simon Fieldhouse Print BPA

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CONTENTS

1

Preface and Acknowledgments

vii

Contributors

ix

Westminster transplanted and Westminster implanted: Exploring political change R.A.W. Rhodes and Patrick Weller

2

India’s Westminster system Robert W. Stern

3

13

The Westminster model and Pakistan: A continuing mirage Samina Ahmed

4

1

36

Transplanting Westminster to Nepal: The stuff of dreams dashed Patrick Weller and Bishnu Sharma

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Westminster implanted: The Malaysian experience Deborah A. Johnson and Anthony Milner

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Westminster in Singapore: Now you see it, now you don’t Garry Rodan

7

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109

Australia: The Westminster model as tradition R.A.W. Rhodes

129

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New Zealand’s Westminster trajectory: Archetypal transplant to maverick outlier John Wanna

9

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Papua New Guinea’s brand of Westminster: Democratic traditions overlaying Melanesian cultures Henry Okole

10

Democracy in Fiji: Westminster or something else? Margaret Palmer

11

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Westminster in the Pacific Islands Peter Larmour

12

186

224

The Westminster legacy: Conclusion Haig Patapan and John Wanna

242

References

256

Index

272

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Preface and Acknowledgments

The idea for this book grew out of two intellectual inspirations: first, to track empirically the various ways Westminster notions of government had been transplanted into the Asia-Pacific region and how those self-governing polities had further adapted any introduced features; and second, to explore the beliefs and ideas local political actors maintained about their own system and what similarities and differences emerge in a comparative analysis. These inspirations helped guide the project and were enthusiastically embraced by the invited collaborators. We wish to acknowledge the regional expertise of the authors and their willingness to participate in the endeavour. The chapters in this collection were first presented and discussed at a workshop at University House, Australian National University, on 12 and 13 November 2003. We are grateful to the following discussants and participants for their generous, thought-provoking contributions: A. J. Brown, Peter Chen, Brian Galligan, Robert Jackson, Robin Jeffrey, Debra Johnson, Tony Low, Ian Marsh, Elizabeth McLeay, Tony Milner, Henry Okole, Margaret Palmer, Rod Rhodes, Roland Rich, Garry Rodan, Roger Scott, Bishnu Sharma, Bill Standish, Robert Stern, Elaine Thompson, John Uhr and George Winterton. We would also like to thank Tanya Liebrecht for research assistance, and for organising, with Mary Hapel, the ANU workshop. Tracey Arklay was more than proficient in completing the final edits and preparation of the final manuscript.

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This book, the first of two separate studies, was made possible by the generous financial assistance and support of an Australian Research Council Discovery Grant. The book is the third to appear in the Australian and New Zealand School of Government (ANZSOG) series, Politics, Government and Public Management. The editors and contributors wish to thank John Elliot from UNSW Press, for his support and enthusiasm for the project.

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Contributors

SAMINA AHMED is Project Director for South Asia in the International Crisis Group. She is the co-editor of Pakistan and the Bomb: Public Opinion and Nuclear Choices (1998), and has authored a number of articles in academic journals and books, including ‘The United States and Terrorism in South West Asia: September 11 and Beyond’, in International Security (2001/2002). DEBORAH A. JOHNSON completed doctoral studies at the Australian National University in Canberra in 2002. Her research focuses on intellectual and political developments in Malaysia. She was a Research Fellow at the Malaysian National University (UKM) in 2004 and is currently located at the Humboldt University in Berlin. She is also the editor of the Asian Analysis web journal and a contributor to the SBS World Guide. PETER LARMOUR is a Senior Lecturer in the Asia Pacific School of Economics and Government at the Australian National University. He has recently completed a book called Foreign Flowers: Institutional Transfer and Good Governance in the Pacific Islands, and is currently working with Professor Barry Hindess in a research project on Transparency International, the anticorruption NGO based in Berlin. ANTHONY MILNER is the Basham Professor of Asian History and Dean of Asian Studies at the Australian National University. He is a specialist on South-East Asian history and Australia–Asia relations. A member of the

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Australian government’s Foreign Affairs Council, he is co-chair of the Australian Committee of the Council for Security Cooperation in the Asia Pacific. His publications include The Invention of Politics in Colonial Malaya (1995 and 2002); and Australia in Asia (1996–1998). He is a Fellow of the Academy of Social Sciences in Australia. HENRY OKOLE is a Lecturer in Political Science at the University of Papua New Guinea, where he teaches courses in international relations, comparative politics and international political economy. He has conducted researches in political and economic reforms, elections and party politics, national parliament, and foreign affairs of Papua New Guinea. His latest publication is ‘Enhancing Nation Building through the Provincial Government System in Papua New Guinea’, in Kavanamur, D. et al. (eds) Building a Nation in Papua New Guinea (2003). MARGARET PALMER was a Research Fellow at the Key Centre for Ethics, Law, Justice and Governance at Griffith University from 2000–2004. She is coauthor of Dare to Call it Treason: Deterring and Defeating Coups d’état (forthcoming) and worked on an ARC-funded project on the ethics of international intervention for humanitarian, pro-democratic and anti-terrorist reasons, and the means of regulating such interventions. She is now at the Cape York Institute for Policy and Leadership. HAIG PATAPAN is Senior Lecturer in the Department of Politics and Public Policy, Griffith University. His research interests are in political theory, comparative constitutionalism and philosophy of law. He is the author of Judging Democracy (CUP 2000) and co-editor of Globalisation and Equality (2004). R.A.W. RHODES is Professor of Political Science and Head of Program in the Research School of Social Sciences, Australian National University, and Emeritus Professor of Politics at the University of Newcastle, UK. He is the author or editor of 20 books, including Transforming British Government Volume 1. Changing Institutions. Volume 2. Changing Roles and Relationships (2000) and Interpreting British Governance (2003). He has been editor of Public Administration since 1986. He is President of the Political Studies Association of the United Kingdom. GARRY RODAN is Director of the Asia Research Centre and Professor of Politics and International Studies at Murdoch University. He has written

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extensively on the political economy of Singapore and on political regime directions in East and South-East Asia, and the political significance of new electronic media. His most recent book is Transparency and Authoritarian Rule in Southeast Asia: Singapore and Malaysia (2004). BISHNU SHARMA is Senior Lecturer in Management at the University of the Sunshine Coast in Australia. He holds a Masters degree in Industrial Management from the Cranfield Institute of Technology, UK, and received his PhD in Management from the University of Technology, Sydney. He has published research articles in the UK, Canada, Thailand, India, New Zealand and Australia. ROBERT W. STERN is a Senior Research Associate in the Department of Politics and International Relations at Macquarie University. His most recent book is Changing India, 2nd edn (2003). JOHN WANNA holds the inaugural Sir John Bunting Chair of Public Administration at the Australian National University. He is also Professor in Politics and Public Policy at Griffith University. He has written extensively on public management, government budgeting and Australian politics. His most recent edited book is Yes, Premier (2005). PATRICK WELLER is Professor of Politics and Public Policy at Griffith University, Brisbane. He has studied life at the top in Australia and other parliamentary countries for the past 25 years. Among his books are Can Ministers Cope?; First Among Equals: Prime Ministers in Westminster Systems; Malcolm Fraser PM, Dodging Raindrops; John Button, A Labor Life; and Australia’s Mandarins: The Frank and the Fearless.

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Westminster transplanted and Westminster implanted:

1

Exploring political change R.A.W. Rhodes and Patrick Weller

‘The Westminster model? Haven’t you read the Hutton report? It doesn’t exist any more’. Comedian John Clark, 7.30 Report, ABC TV, 4 March 2004.

overnments and international agencies have long sought to improve the ability of developing nations to manage their economies effectively by the adoption of Western democratic systems of governance. Yet, the characteristics of good governance they are aiming for can vary. For example, the World Bank’s (1992) definition includes an expert public service, an accountable administration, a pluralistic political system and respect for law. Even if those characteristics are accepted, there are several ways to organise these structures. What system is likely to prove the most compatible with local conditions? The historical record suggests that, among previous transplants, Westminster systems are among the most enduring and stable institutions.1 However, even they are not always successful. In some countries, they have been adapted. In others, they have failed. There is then a basic practical problem: what is the likely interaction between local traditions and the imported political arrangements? What determines the resilience of the model? There has been little basic comparative research seeking to answer this question.

G

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This book has three objectives.

• to understand how and why countries that began with a shared set of ideas develop different practices and interpretations of the same institutions • to understand how these constitutional ideas interacted with local structures of power and local political traditions and elites • to determine what conditions provided the most fertile ground for transplanting the Westminster model, which parts of the arrangements determine its resilience and what lessons can be learnt for future application. Why Westminster systems? Because they share a British heritage, yet they have developed and are developing independently in different ways. Practitioners often use the term ‘Westminster model’ normatively to define the way their government ought to work. They appeal to some long-lost ‘golden age’. Such appeals are little more than rhetoric. We reject the notion of an idealised Westminster model as of limited analytical value. Yet there is a common heritage; many of the institutions bear the same names and work in similar ways. Each is an adaptation of the original (even Britain has now changed). The Westminster model does not tell politicians how to behave. It describes how government might be organised. It provides a set of beliefs and a shared inheritance that creates expectations, and hands down rules that guide and justify behaviour. The practices of Westminster systems have shown remarkable resilience, surviving under different regimes and in different circumstances across the world. These assumptions about how executive government should be organised interacted with local approaches and traditions and thus necessarily altered the way they were practised. The phrase ‘governmental tradition’ refers to a set of inherited beliefs and practices about the institutions and history of government. It includes such features as the inherited power structure, attitudes to authority, women, class and caste, race and family, and accepted practices. These beliefs vary across countries and we will explore whether they account for the receptivity of the country to imported political practices. There are two groups of countries where these phenomena can be explored. First, there are the transplanted Westminster systems where settler societies without prior local traditions other than indigenous cultures

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adopted the structures, but then began to adjust them to local conditions. There are two examples in this book: Australia and New Zealand. Second, there are the implanted Westminster systems where, post-1945, the former colonies inherited British constitutional arrangements as part of decolonisation and winning independence. The inheritance either came directly (India, Pakistan, Malaysia or Fiji), indirectly through a secondary colonial master (Papua New Guinea courtesy of Australia) or by deliberate imitation (Nepal). They then had to adjust those practices to local traditions and beliefs. We will look for comparisons within and between the experiences of these two groups of countries. We will seek to show the following.

• • • •

•

How the ideas and practices were interpreted and mediated by the responsible politicians and administrators. How some countries were more or less receptive to the adoption and evolution of the practices. How new practices emerged that allowed a democratic ‘Westminster’ system to flourish, albeit in a different form. How later challenges or crises continued this process of adaptation, determining which practices were worth preserving, which needed change. Why Westminster systems have become resilient democracies despite different origins and backgrounds.

The book confronts questions that lie at the heart of the debate about the validity of comparative politics. What can we learn by contrasting the development of similar institutions under different conditions? The comparison of countries with similar starting points and sets of political institutions but different cultures allows us to develop an approach to comparative politics rooted in the analysis of traditions. If inherited rules and practices create expectations and shape action (see March and Olsen 1989), how and why have such imported traditions as cabinet government and collective responsibility, beginning as shared ideas and a common language, become markedly different? What impact have local ideas had on the way executive government is organised and run? By analysing the historical development of the various Westminster systems, we will develop explanations about the way governments are shaped and structured. By concentrating on nations with a common heritage we avoid some of the

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definitional problems of multi-country comparisons of executives (see, for example, Blondel 1982 and 1985, and the critique in Rhodes 1993). Many argue that Westminster systems are more resilient and effective than presidential or European-consensual systems (Pinto-Duschinsky 1999). The book will also allow us to ask whether the critiques of Westminster both from the right (it is ineffective and indecisive) and the left (it is a representative sham) are justified by contrast to those other systems (see, for example, Linz 1994 and Lijphart 1992). The book starts from a historical event: the acceptance, whether by transplant or implant, of Westminster structures and conventions by governments as they became independent of Britain. We then seek to explain the resulting changes in political practices, nationally and comparatively. We will focus on the core institutions of Westminster systems.

Beliefs and the Westminster model The first step is to review the literature and provide a systematic list of the beliefs said to constitute the Westminster model. Table 1.1 attempts such a summary (and it would take redundancy to ridiculous lengths to add more references). TABLE 1.1

The Westminster model: A summary statement Beliefs

Sources The constitutional framework

A unitary state No separation of powers and, therefore, no judicial review of constitution

Gamble 1990: 407; Lijphart 1999: 3. Jaensch and Teichmann 1987: 143; Jaensch 1996: 217; Jaensch 1997: 98

A bicameral parliament

Carey 1980: 227; Evans 1990: 31; Lucy 1985: 3.

The doctrine of parliamentary sovereignty

Campbell and Wilson 1995; Verney 1991: 637; Gamble 1990: 407; Jaensch 1997:102; Jupp 1982; Mahler 1997: 46; Marchant 1999: 5; Richards and Smith 2002: 48; Weller 1989: 6

Flexible constitutional conventions

Emy and Hughes 1991: 268; Gamble 1990: 407; Jaensch 1997: 102; Verney 1991: 637; Weller 1989: 5.

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Beliefs

Sources The parties

A two-party system based on single member constituencies

Campbell and Wilson 1995; Derbyshire and Derbyshire 1989; Evans 1990: 30; Lijphart 1999: 3; Mahler 1997: 43-44; Verney 1991: 637.

Majority party–government control of parliament

Campbell and Wilson 1995; Jupp 1982; Mahler 1997: 40; Reid and Forrest 1989: 316; Thompson 1980: 37; Verney 1991: 637; Watson 1975: 400.

Institutionalised opposition

Verney 1991: 637; Gamble 1990: 407; Weller 1989: 6.

Accountability through elections

Davis 1997: 45; Davis et al., 1993: 131; Emy and Hughes 1991: 252; Gamble 1990: 407; Hawker 1981: 23; Lucy 1985: 4; Parker 1978: 353; Thompson 1980: 37; Richards and Smith 2002: 48; Weller 1989: 7. Sources

Beliefs The executive The head of state and the head of government are two separate roles.

Jaensch 1997: 102; De Smith; 1961: 3; Thompson 1980: 33.

Majority party control of the executive also described as the fusion of the legislature and the executive – with ministers drawn from the parliament.

De Smith 1961: 3; Emy and Hughes 1991: 348; Evans 1990: 61; Gamble 1990: 407; Lijphart 1999: 3; Lucy 1985: 133; Mahler 1997: 46; Thompson 1980: 34; Watson 1975: 400; Wilson 1994: 190-93; Reid and Forrest 1989: 316; Richards and Smith 2002: 48.

Concentration of executive power in prime minister and cabinet

De Smith 1961: 3; Emy and Hughes 1991: 360; Gamble 1990: 407; Lijphart 1999: 3; Richards and Smith 2002: 48; Verney 1991: 637; Weller 1989: 5.

Individual ministerial and collective cabinet responsibility to parliament.

Butler, 1973: chapter 7; Campbell and Wilson 1995: 11; Carey 1980: 228;

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Davis et al., 1993: 214; De Smith 1961: 3; Emy and Hughes 1991: 350; Evans 1990: 70; Hawker 1981: 82; Jaensch 1997: 152 and 145; Lucy 1985: 3 and 6; Parker 1978: 351; Reid and Forrest 1989: 303; Thompson 1980: 34; Watson 1975: 132-8; Richards and Smith 2002: 48; Weller 1989: 5.

Partnership between ministers and neutral officials in which ministers have the last word.

Parker 1978: 352; Davis et al, 1993: 73; Emy and Hughes 1991: 419-21; Jaensch 1997: 178; Weller 1989: 19.

Beliefs

Sources Outliers

An unicameral parliament

Lijphart 1999: 3.

Pluralist, competitive interest group

Lijphart 1999: 3.

system Central bank dependent on the

Lijphart 1999: 3.

executive The assumption that minorities can

Verney 1991: 637.

find expression in one of the major parties.

It would be amazing if these characteristics could be reduced to a single model. But even if we avoid that dead end, how do we find some coherence in this mix? As Rhodes (chapter 7 below) points out in his review of the Australian literature, the phrase ‘Westminster model’ can refer to a political science model, to a normative guide to constitutional design and to denote a tradition. Similarly, Jackson (1995: 5) scathingly dismissed the contribution by Australian political scientists to the debate about Westminster as ‘a beginning, a muddle and an end … characterized by definitional tangles and tautological difficulties.’ It matters little whether we agree with Jackson’s analysis in every detail. His general argument is valid. To debate whether a state conforms to the Westminster model is likely to be sterile simply because there is no agreed definition of that model. As Table 1.1 shows all too clearly, there is no single, essentialist definition on which we can all agree and it will be futile to try.

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Comparing Westminster So, how do we define the Westminster model in this book? We needed to have some agreement on which of its several features will be the basis of our comparisons. We follow Wittgenstein (1972) and argue that concepts such as Westminster often cover diverse contents connected by family resemblance rather than a single, essential idea. We think the notion of Westminster institution refers to a set of ideas with strong family resemblances. No definition excludes the executive, its organisation and its relationship to the legislature and the civil service (see, for example, Table 1.1 and Parker 1979, Weller 1989, Wilson 1992 and Rhodes 1997). So, we use the notion to refer to the executive parts of the model. To be precise, our use of the term covers five components: 1 2 3 4 5

The concentration of political power in a collective and responsible cabinet. The accountability of ministers to parliament. A constitutional bureaucracy with a non-partisan and expert civil service. An opposition acting as a recognised executive in waiting as part of the regime. Parliamentary sovereignty with its unity of the executive and the legislature.

This is a minimalist definition, but it is operational. These characteristics exist (in varying degrees) in all Westminster systems. They are our starting point from which we can explore the early intentions of political and administrative elites as well as later changes. Our approach allows for variations such as multi-party systems, federal structures and written constitutions that have emerged with these executive arrangements over the last 150 years as part of the explanation for why those core features have changed. These core features are the source of debate for both academics and practitioners. We will use them to structure the systematic comparative analysis of several countries. We want to explore how political and administrative elites (that is, the proximate decision-makers who determine how political power is organised and exercised) understand the notions of the Westminster model. What impact did these understandings have on decisions about their application and how did they evolve? That will make up our basic data. We use that lens to focus on how and why countries

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developed differently and how Westminster practices have mutated without changes in terminology or nominal constitutional significance.

Core questions For each theme we explore the following questions. 1

2

3

4

5

The concentration of political power in a collective and responsible cabinet. How is cabinet organised? Who is a member? Are they collectively and individually responsible and do they accept such unwritten conventions? What roles and functions does cabinet serve in the polity? What are its relations with the national leader? Is it part of a larger core executive? What are the differences between the countries; do they matter and to whom (Weller 1985)? The accountability of minister to parliament. What roles do the ministers play? How are they held to account (for example, Woodhouse 1994)? Does ministerial membership of the legislature assist or impede accountability? A constitutional bureaucracy of non-partisan and expert civil servant. Is there a career civil service? What roles does it play? Have those roles changed? What are the conditions of employment? Has it been politicised (Aucoin 1995; Boston et al. 1996)? The existence of a recognised opposition as an executive in waiting. Does the opposition enjoy a legitimate status? Is it incorporated within the system? Does its presence ease a change of government? Is it based on mutual understandings of the way the system works? Parliamentary sovereignty grounded in the unity of the executive and the legislature. What is the constitutional position of parliament? How effectively does the executive control parliament? Can parliament hold the government to account? To what extent is parliament regarded as sovereign? Does a written constitution have an impact on the way the executive and legislature interact?

There are many ways these questions can be examined. We seek to provide an account that explicitly relies on the views and actions of key actors, reflected in what they said, wrote and did. In examining the beliefs and preferences of political and administrative elites, we will explore:

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the meaning of these institutions when set up the extent to which they are political symbols and practical vehicles for governance elite beliefs about how the government works their explanations for the causes and extent of change differences between the first and present-day systems and their effects.

We selected countries that explicitly adopted the Westminster model and have a history of representative democracy. Of course, there are great differences in size (from India to the Pacific nations), structure (federations or unitary systems), electoral competitiveness and stability. The time at which the system was transplanted is also crucial (Hartz 1964). Thus, we expect elites from the old pre-democratic empire to have different ideas to those from the post-1945 generations. In earlier times, there was a readiness to rely on mutually accepted understandings of what was proper. Later circumstances required understandings to be spelled out, often in a formal constitution that laid down the rules. Canada and Australia, for example, comprised self-governing colonies, already Westminster variants in their own right, but became federations, each with an agreed constitution. Although the federal state and the written constitution are major variants on any extant version of the Westminster model, nonetheless, in both countries, political elites understand their governmental practices system as a species of Westminster. The later the transition, the greater the detail in many of the constitutions, as its authors sought to prescribe how national government should work. In other places, there were different traditions of government to be absorbed, particularly in the post-1945 constitutions. Often the process was dynamic, as Malaysia and Singapore combined and then split. Our selection reflects this variety. 1

2

Transplanted Westminster – In the pre-1945 empire, settlers, mainly of European heritage, took for granted the benefits of the British approach to government. They adapted and adjusted it to their own conditions and beliefs. This book includes two examples: Australia and New Zealand. Implanted Westminster – The departing colonial power imposed institutional arrangements on a local community with its prevailing customs and traditions. They were then made to work, even if mutating to meet local conditions. There are several sub-groups in this category. First, there is

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India, Malaysia and Singapore, where there was and remains some antipathy to ‘Western’ values. Second, there is Pakistan and Nepal, where the attempt to make democracy work has failed, although efforts continue. Finally, there is Fiji, PNG and the Pacific islands where micro-politics imparts a distinctive twist to the operations of the political system. The traditional argument against case study or idiographic comparative studies is that local conditions will determine what happens. The emphasis falls on the particular and the unique, and it is not possible to generalise. Yet, even a cursory glance at most of the nations here will show that most are still, in one sense or another, functioning democracies and most illustrate the robustness and longevity of the Westminster concepts. The core characteristics are identifiable in most nations and the terms adopted mean similar things even if practices vary. So the research will not only seek to explain how and why the several countries differ, but also which Westminster practices persist and how these characteristics underpin the system’s resilience.

Tradition We do not seek to write another series of national studies of government. Rather, for each nation and comparatively across all countries, we explore how political elites adapted and used, rhetorically and practically, the five concepts at the heart of the Westminster model. We are interested in the history of the political ideas that drive political action and the uses to which they are put. Our historical analysis will be built around the notions of received traditions and their relationship to the governmental practices. As mentioned above, the phrase governmental tradition refers to a web of learned beliefs and practices about the institutions of government (see Davis 1998: 158 and Perez-Diaz 1993: 7). It is a set of understandings someone receives during socialisation. Although tradition is unavoidable, it is a starting point, a first influence on people. Traditions only ever influence, as distinct from govern, the nature of individuals and are thus products of individual agency. Just because individuals start out from an inherited tradition does not imply that they cannot adjust it. When we confront the unfamiliar, we have to extend or change our heritage to encompass it, and as we do so, we develop our heritage. Every time we try to apply a tradition, we have to reflect on it and we have to try to understand it afresh in today’s circumstances. By reflecting on it, we open it to innovation. Thus, human

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agency can produce change even when people think they are sticking fast to a tradition they regard as sacrosanct. A particular relationship must exist between beliefs and practices if they are to make up a tradition. For a start, the relevant beliefs and practices must have passed from generation to generation. Such socialisation may be intentional or unintentional. The continuity lies in the themes developed and passed on over time. But as beliefs are passed on, they are adapted and extended. We must be able to trace a historical line from the start of a tradition to its current finish. However, the developments introduced by successive generations might result in beginning and ending having nothing in common apart from the links over time. Nonetheless, an abstract set of beliefs and practices that were not passed on would be a summary at one point in time, not a tradition. As well as suitable links through time, traditions must embody suitable conceptual links. The beliefs and practices a teacher passes on to a pupil must display minimal consistency. A tradition could not have provided someone with an initial starting point unless its parts formed a minimally coherent set. Traditions cannot be made up of purely random beliefs and actions that successive individuals happen to have held in common. Although the beliefs in a tradition must be related to one another, both temporally and conceptually, their substantive content is unimportant. Because tradition is unavoidable, all beliefs and practices must have their roots in tradition. They must do so whether they are aesthetic or practical, sacred or secular, legendary or factual, pre-modern or scientific, valued because of lineage or reasonableness. This idea of tradition differs, therefore, from political scientists who associate the term with customary, unquestioned ways of behaving (Oakeshott, 1962: 123 and 128–9) or with the entrenched folklore of pre-modern societies. At the heart of our notion of tradition are individuals using local reasoning consciously and subconsciously to reflect on and modify their contingent heritage (see Bevir and Rhodes 2003; Bevir, Rhodes and Weller 2003a; and Bevir, Rhodes and Weller 2003b). The Westminster model is a tradition that provides a map, language and historical story of government that capture, for instance, those essential features of the Australian system which, through sheer longevity, form the conventional or mainstream story. For some, Westminster is a fantasy (Hughes 1998: 328), but it isn’t. It is better seen as a myth. A myth does not take hold without expressing many truths – misleading truths, usually, but important ones: truth for one thing, to

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the needs of those who elaborate and accept the myth; truth to the demand for some control over complex realities; truth to the recognition of shared values (however shakily grounded those values may be in themselves). Even the myths that simplify are not, in themselves, simple (Wood 1997).

Although, the ostensible subject matter here is John Wayne, this account of the status and function of a myth applies just as well to the Westminster tradition, even down to its ‘heroic’ quality!

Conclusions We are interested in how traditions shape the exercise of power in the Westminster institutions. Why did practices change? How were the traditions reformulated to take account of the new conditions? We can translate this general approach into a series of more concrete propositions and questions. We start with the proposition that traditions define responses to crises or pressure. So, change in the executives of Westminster systems, and the outcomes of those changes, stem from the dilemmas posed by competing local traditions. We will ask how national elites understood executive arrangements. What stories are told about the changes and their causes? We will seek to explain the different outcomes by examining the competing governmental traditions. There are several key questions:

• • •

What are, or were, the dominant national tradition(s)? Who challenged Westminster practices? Why? How did the different traditions respond differently to crises? How did the executive change in response to crises? Did these changes have unintended consequences? Do local traditions help to explain these consequences?

In short, our purpose is to show how the local traditions interacted with the transplanted or implanted beliefs and practices of the Westminster model to provide the present-day form of government.

Note 1

We use the phrase ‘Westminster model’ to refer to the beliefs and practices of the Westminster tradition and the phrase ‘Westminster systems’ to refer to the countries studied in this book.

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India’s Westminster system

2

Robert W. Stern

n a series of five acts of ‘constitutional reform’, from 1861 to 1935, the British government brought the Westminster model to provincial India. The councils established by the reforms were meant to provide prudent and limited responses to the political demands of wise, wealthy and well-born Indians. They wanted to be recognised not merely as subjects of the Empire but stakeholders in it. From act to act, over the decades, provincial councils changed from consultative bodies to legislatures. Their majorities changed from British-appointed officials to elected Indians. Indian participation in their ministries changed from handfuls of government-selected notables in charge of minor portfolios to front benches of elected politicians. The franchise became increasingly less restricted. For the provincial elections of 1937, about one-fifth of the adult population was entitled to vote. The Congress Party contested the elections, and formed ministries responsible to it in the majority of provincial legislatures.1 The 1935 act, devolved provincial government to Indian politicians while retaining a plenary veto on provincial legislation for the Governor-General at the Centre2 and his provincial governors. That was Britain’s scheme to stay on. World War II and the Congress’s ‘Quit India’ movement put paid to it. Post-war, the Raj was succeeded by a Congress Party-dominated

I

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Westminster model parliamentary democracy. It has endured for more than half a century now, and in an improbable place. In the sections of this chapter, I address both the durability and the improbability. I do this by weaving together in my narrative some suggestions about India’s adaptations to and of parliamentary democracy’s Westminster model.

A society and a polity of fragments Parliamentary democracy, like its European Christian ideological foundation, assumes a fundamental, intrinsic, underlying human equality. No such ideological foundation is extant in India. It has been for millennia home to one of the world’s most well-articulated and widely practised systems of human inequality. Most emblematic of this are India’s innumerable and ubiquitous caste systems. But there is more to Indian inegalitarianism than caste. Emergent from Hinduism, the abiding Indian conception of humankind has been accurately characterised by Louis Dumont as homo hierarchicus (Dumont 1970). And if that were all of it, parliamentary democracy more than likely would not have endured. But it isn’t all of it. Indeed, in spite of it, India’s adaptation to parliamentary democracy’s Westminster model has been remarkably durable. Why? The durability of parliamentary democracy in India has little to do either with any widespread rejection of the popular belief in homo hierarchicus or any general commitment to a democratic ideology. It has more to do with Indian society’s tolerance for ambiguity and a serendipitous fit between parliamentary democracy and a society of fragments. Perhaps, a better phrase than ‘tolerance for ambiguity’ might be capacity for compartmentalisation. It stems, from the overlay of enclave modernisation that began with British imperialism on a famously absorptive Hindu civilisation. Thus, across a landscape of dirt roads travelled by lumbering bullock carts, the Raj built railways. It established English-medium universities in cities surrounded by countrysides in which English was unknown. Though less now than during the days of the Raj, the separation between the ways of the village and of the ways of the city persist, and the enormous growth in urbanisation and in the use of mass transport and the consumption of mass media, have only broadened the usages of compartmentalisation. Thus, villagers observe their castes’ commensal rules at home, but abandon them in town. Castes whose customary occupations assume regular contact with

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death or human excreta – leather-workers and sweepers, for example – are still regarded by their village neighbours as untouchable. But no such stigma attaches to the Brahmin practitioners of Western medicine, although they are in regular contact with death and human excreta. Repairing shoes in a village lane is work that only an untouchable mochi (leather-worker) will do. Making shoes in a Kolkata (Calcutta) factory is work for anyone who can get the job. While upwardly mobile farmers seclude their wives because that is the way of respectable villagers, they send their daughters to university because that is the way of making them marriageable to medical doctors. Humankind is, as ever, homo hierarchicus. Parliamentary democracy is a workable way of doing political business. It is a way in which castes do their political business. Most Indians identify themselves and are identified by their castes, and castes and their fragments have become the basic units in Indian politics. It is most famously in caste systems that the Indian conception of a hierarchic humankind is articulated. But, there is neither an India-wide caste system, nor are there India-wide castes. The largest castes are regional and some exist in no more than a cluster of villages. There is no state in India, with the possible exception of one of the small ‘tribal’ states of the north-east, in which any one group dominates. The largest castes in most states are rarely more than 15 per cent of their populations; and the larger and more powerful the caste, the more likely it is to be riven by sub-caste and regional rivalries, the ambitions of its great men and so forth. Even within a region, district, or village there is often no one caste hierarchy. Frequently, there is no consensus among castes on any particular hierarchy, and where there is such consensus, there is often contention among castes as to their relative positions. Although caste hierarchies are nominally ‘sacred’, ordained by God, castes have long used secular assets – wealth, position and organisation – either to challenge or secure their rankings in any particular hierarchy or to affirm or reject it. In recent years, the various mixes of economic development and parliamentary democracy have produced virtual cornucopias of secular assets, and castes have readily stocked up on them: political office, government jobs, university education, electricity, roads and postal money orders. These have been applied by castes not only to existing hierarchies, but to the establishment of new hierarchies centred in state legislative assembles and local government bodies. In these hierarchies, the determinant of how castes are placed is political muscle, and by its exercise castes

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have become both competitive political players and institutions of civil society. Their organisation, based on kinship, humankind’s strongest tie, is particularly durable. It is a particular Indian paradox that the fundamental institution of homo hierarchicus should energise and be energised by parliamentary democracy. The fragmentation of Indian society does not end with caste. There are larger collections of fragments into which castes roughly fit. From locality to nation, India is a collection of fragments. More populous than Europe, it is at least as ethno-linguistically, religiously, historically, economically and politically diverse and fragmented. It may be that parliamentary democracy is particularly workable in a polity of fragments, in political arenas in which no one group can aspire to take the whole loaf, but only some slices of it, and only if it arranges to do so with other groups. In India’s polity of fragments there are no permanent majorities and minorities: neither of caste, nor religion, nor party, nor ethno-linguistic group. Everywhere, at every political level, majorities are transient coalitions of minorities. As often as not, arrangements between them are temporary, shifting and dependent on the quality and quantity of slices on offer.

Religious fragmentation and Hindu nationalism But what of this apparently recent upsurge in Hindutva – Hinduness, ‘Hindu nationalism’? Does it threaten to unite into a permanent political majority those 82 per cent of the fragments that identify themselves as Hindu? And the remaining fragments, most of which identify themselves as Muslim: does it threaten to exclude them from equal citizenship? In a word, is parliamentary democracy in India imperilled by Hindutva? I don’t think so. Indian Hindus are, in Benedict Anderson’s wonderful phrase an ‘imagined community’ (Anderson 1991). Its ‘other’, the community of Indian Muslims, is no less ‘imagined’. In ordinary politics as in day-to-day life, there are thousands of localised Hindu and Muslim communities: of castes, subcastes, quasi castes, tribes, lineages, clans, sects. From time to time, and place to place, and generally in response to some perceived outrage that opposes ‘us’ to ‘them’, some Hindus and some Muslims will coalesce into two mutually hostile communities. This has been happening for as long as anyone can remember. Most recently and horribly, it happened in the state of Gujarat. There, in 2002, an exchange of gruesome atrocities between Hindu and Muslim gangs produced a political victory for Hindu thuggery and bigotry.

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The long-running temple–mosque dispute in the north Indian town of Ayodhya provoked murderous communal violence in the recent past and may again. Communal violence may erupt almost anywhere and at any time. It may influence or shade ordinary politics. But it is not ordinary politics. In such politics, the units are the thousands of localised Hindu and Muslim fragments, their communities. And claiming to represent them, there are hundreds of provincial parties and their factions. To be sure, the leader of the coalition that ruled at India’s Centre from 1998 to 2004, the ‘Hindu nationalist’ BJP (Bharatiya Janata Party – Indian peoples’ party), rode to power on a ‘Hindu wave’: a sometimes violent confrontation between the Hindu ‘us’ and the Muslim ‘them’. The BJP is the political wing of a pariwar (family) of Hindu organisations whose spokespersons proclaim their commitment, some times violently, to a variously defined Hindutva. But when it comes to ordinary politics, the BJP works to put and hold together majorities from transient coalitions of minorities, fragment by fragment, and in much the same ways as do selfproclaimed ‘secular’ parties. Except in those rare instances where the lines of political battle are ‘us’ versus ‘them’, as in Gujarat, the BJP plays the caste rather than the Hindu card. In the ordinary politics of three state elections in 2003 the BJP triumphed. In the ordinary politics of the parliamentary election of 2004 the BJP’s coalition was defeated by a coalition led by the Congress Party. From all accounts, in none of these elections was Hindutva a significant issue: either as an ideology to affirm or reject.3 In the hustings, ideology in general, is usually irrelevant. At the Centre, it would have been politically suicidal for the BJP to press its Hinduism on its coalition’s 20-odd junior partners. Virtually all of them are provincial parties with provincial concerns and many have Muslims in their constituencies. Their guiding ‘-ism’ at the Centre was opportunism. And so it is with the provincial parties cobbled together in the Congress’s coalition. In the foreseeable future, cobbling and holding together such coalitions will continue to be the art of the possible for either the BJP or Congress. A society of fragments has produced a fragmented party system.

‘One-party dominance’ For a while it seemed otherwise. The fragments – or many of them – were collected under the Congress Party’s banner. I referred above to the Congress’s hegemony. Rajni Kothari (1970) and W. H. Morris-Jones (1964) dubbed it

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‘one-party dominance’. It was a product of history, in part; and in parts, of a first-past-the-post electoral system and the nature of the Congress. Founded in 1885, the Indian National Congress was the oldest, largest, most popular, widespread and best organised political movement-cum-party in British India. It led the ‘freedom struggle’. It was the party of its giants – Mahatma Gandhi, Jawaharlal Nehru, Vallabhbhai Patel – and its local heroes. Throughout the early 1940s, Congress negotiated for Indian independence with viceroys and committees of the British parliament. When the Raj finally departed in 1947, its viceroy turned the Government of India over to the Congress. It formed the provisional government under Nehru’s leadership, organised the drafting of the 1950 constitution, held India’s first adult suffrage elections in 1952 for parliament and state legislative assemblies, and won them. Then, Congress won the next five elections for parliament and most state elections most of the time until 1967. It was briefly unseated at the Centre from 1977 to 1979 and from 1989 to 1991, but it returned to power from 1980 to 1989, and from 1991 to 1996. In sum, for 44 of the first 49 years of India’s independence, the Government of India was a Congress Party government. This was one-party dominance. ‘Free and fair’ elections were held regularly, but Congress always, or almost always, won them. From elections to elections, Congress usually tallied about 70 per cent of seats in the Lok Sabha, parliament’s lower house. Never, however, in parliamentary elections, and hardly ever in state elections, did Congress win a majority of the popular vote. In constituency after constituency, Congress’s candidates came first-past-the-post with 40 per cent or less of the popular vote. The majority of votes was usually scattered among opposition party and independent candidates. Thus, Congress’s dominance was tenuous. First, there was always the possibility that an ordinarily disunited and fragmented opposition would become an electoral ‘united front’ on a popular issue, allocate constituencies among its parties and thereby consolidate its majority of the popular vote. Second, the hold of Congress leaders on the party’s rank-and-file was unsure. Like India, Congress was a patchwork of fragments. Nicknamed ‘the Syndicate’, a group of provincial Congress bosses and their lieutenants put and held the patchwork together: state by state, constituency by constituency, caste and faction by caste and faction. What held Congress’s fragments together at the bottom had little to do with the political agendas of its leaders at the top, and most to do with the prospect of electoral

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victories and their spoils. When these prospects were dimmed by opposition united fronts, the prospect that loomed was of Congressmen jumping ship. So, in order to retain its dominance Congress had to be responsive to inter- and intra-party opposition. For Kothari (1970) and Morris-Jones (1964), that responsiveness distinguished India’s one-party dominant parliamentary democracy from one-party authoritarians. As Congress was India’s one-dominant party, so the Nehru–Gandhis were the Congress’s one-dominant family. For 37 of the 44 years of Congress rule at India’s centre, the office of prime minister was held by Jawaharlal Nehru (1947–64), his daughter, Indira Gandhi (1966–77 and 1980–84) and her son Rajiv (1984–89). Nowadays still, and even in the person of an Italian-born daughter-in-law, the dynasty assumes the Congress gaddi (throne) as its birthright. But by no such birthright did the Nehru–Gandhis rule India. The inherent tenuousness of Congress’s dominance put its limits on dynastic charisma. Nehru apparently understood and appreciated this. He was the party’s one-of-one, certainly, and while it ultimately depended on his leadership, he was no less dependent for his leadership on the votes of the fragments that made up the party. He retained the Syndicate, and relied on it to fit the party’s fragments into the mosaic of dominance. Unwisely, Indira departed from the ways of her father. Shortly after she became prime minister, she disbanded the Syndicate. Her ambitions were to centralise Congress under her command and to disable the opposition from compelling Congress’s responsiveness to it. To these ends, she filled her ministries with Indira loyalists. She sacked Congress chiefs with political roots in their provinces rather than in her court, and put her placemen in their offices. Her agents meddled in the affairs of opposition parties in order to destabilise them, and she used and misused her constitutional powers to unseat non-Congress state governments. In 1975, fearful of being overwhelmed by a uniting opposition, she declared her infamous ‘emergency’; and in effect, established for two years a one-party authoritarian regime. ‘India is Indira’, proclaimed one of her toadies,4 and ‘Indira is India’. But it wasn’t so. She called parliamentary elections in 1977, and much to her astonishment she lost them. The winner and the republic’s first nonCongress government was a rag-tag coalition. Opposition to Indira’s ‘emergency’ – and little else – had brought its fragments together. It called itself the Janata (people’s) Party, and its government disintegrated after

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two-and-a-half years. Nonetheless, it was a landmark in the course of India’s parliamentary democracy. Even at the Centre, one-party dominance was vulnerable to the ‘united front’ of a fragmented opposition. In 1989, Congress led by Rajiv Gandhi lost the ninth parliamentary elections to yet another rag-tag coalition of fragments that called itself the National Front. It campaigned on the issue of corruption inside the Congress. In the Indian ‘folklore of corruption’, the Congress had come to occupy first place (Myrdal 1972). This was particularly true after Mrs Gandhi’s assassination in 1984 and her succession by Rajiv. Most damaging to him was the involvement of close associates of his family in a kickback scandal over the Indian government’s purchase of Swedish artillery pieces. The issue of corruption inside the Congress, along with Rajiv’s blatant attempts to recapture Congress’s Muslim ‘vote bank’, gave some impetus to the ‘Hindu wave’ that was then gathering force. When corruption discredits secular politics, and not only in India, that old-time religion beckons. In the states, Mrs Gandhi’s authoritarianism furthered the growth of provincial parties. Local heroes had no place in her Congress, so champions of the farmers and the folk, caste leaders and movie stars, for example, put together their own parties and established their own dynasties. At the Centre and in the states, the mosaic was breaking into its fragments.

Departures from Westminster at the Centre During the years of one-party dominance, neither government nor opposition at India’s Centre fit the Westminster mould. While Congress governments were certainly responsive to parliamentary opposition, they were in no way responsible to parliament. Congress governments were responsible to Congress. In no way was the fragmented parliamentary opposition an alternative government, an ‘executive in waiting’. In opposition, neither the Janata Party nor the National Front had a parliamentary presence. Both were originally anti-Congress electoral alliances among minor parties – some created for the occasion – and Congress Party splinters and defectors.5 Both were galvanised by a single anti-Congress issue: the ‘emergency’ and corruption. In government, both were imploded by their factions. What remained of the Janata Party government, was succeeded in the parliamentary elections of 1980 by a Congress government led by Indira Gandhi. Though both had been discredited, the Indian electorate apparently understood that only Indira’s

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Congress was capable of governing at the Centre. The National Front government lasted for one-and-a-half years from 1989. In 1991, it, too, was succeeded by a Congress government: the first since 1966 and the second in the republic’s history to be led by a prime minister who did not belong to the Nehru–Gandhi dynasty.6 That government remained in power for a full fiveyear parliamentary term. Have things changed since 1989? Yes and no! Had the BJP’s leaders not gone to the polls early for India’s fourteenth parliamentary elections and lost them, their party’s National Democratic Alliance (NDA) would have served the Centre with its first coalition government to have survived a full five-year term. Emergent from the 2004 elections as the Lok Sabha’s largest party, Congress is cobbling together a United Progressive Alliance coalition government. For how long will the coalition last? We can only guess at the answers. But we know this much: the coalition’s the rub. It was for the BJP and it is for the Congress. In whichever coalition forms the Union government, stability and longevity will depend largely on the balance of power between its leading party and its junior partners. If the defection of one or two junior partners can bring down the coalition, its government is unlikely to be either stable or long-lived. Moreover, since virtually all available junior partners are provincial parties, provincial issues are likely to determine their fate at the polls and, thus, their value to the coalition and it to them. On a provincial issue in 1999, for example, the BJP-led coalition’s junior partner from Tamilnadu defected. It had the requisite number of seats in the Lok Sabha to destroy the coalition’s majority, and its government fell. On a provincial issue in 2001, the NDA’s junior partner from West Bengal defected. It lacked the requisite number of seats to destroy the coalition’s majority, and its government survived.7 In this political balancing act, Congress in 2004 is less well poised than was the BJP after the parliamentary elections in 1999. For a majority in the Lok Sabha, the government must command a minimum of 272 seats. Congress itself holds about 145 seats compared to the 182 or so held by the BJP in 1999. Thus, the survival of Congress’s coalition will be considerably more dependent on the steadfastness of its junior partners than was the BJP’s; and my impression is that among the United Progressive Alliance’s junior partners a crucial and contentious few hold more seats than they did in the NDA.8 And what of the NDA now? The BJP itself holds only seven

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seats fewer than the Congress. Thus, it survives the fourteenth parliamentary elections as a serious contender for the leadership of a coalition government at the Centre. But what of the NDA? Its survival as a coalition in opposition is at best problematic and largely dependent on the opportunities available to its erstwhile junior partners. Thus, one-party dominance has been succeeded both in government and in opposition by multi-party instability: by the political fragmentation that Congress’s ‘one-party dominance’ once held in check. The NDA’s survival in government may presage increasing coalition stability and longevity at the Centre, or it may have been a fluke.

Parliamentary democracy at the grassroots While India’s society of homo hierarchicus displays no particular commitment to democracy as an ideology, it is nevertheless amenable to being fitted with parliamentary democratic institutions. Two means by which such institutions have been fitted are adult suffrage and land reform. A third, provincial and local self-government, is the subject of the section that follows. The connection between parliamentary democracy and adult suffrage is self-evident. It is worthy of mention, however, that the Indian constitution extended the franchise to an electorate whose majority was illiterate; and even now, are in substantial part illiterate. Since 1952, there have been 14 parliamentary and hundreds of state elections. They are administered and supervised by a staunchly independent electoral commission; and by international standards, they are ‘free and fair’. From elections to elections, about 55 per cent of the Indian electorate votes. I do not believe that they are any less well-informed or any more gullible than voters elsewhere; and like voters elsewhere, they are likely to be best informed and least gullible about things that directly affect them. And these things – agriculture, education, small business, and ‘law and order’ – are, as we shall see, the grist of provincial politics. The relationship between land reforms and parliamentary democracy is, perhaps, less evident. In the 1950s, land reforms were legislated throughout India by Congress Party state governments. With appropriate local adjustments, state land reform laws adhered to the same national Congress Party template. In a nutshell, where there were cultivating proprietors, their landownership was confirmed. Where there were non-cultivating landlords, their land ownership was transferred to their

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tenants-in-chief, who thus became cultivating proprietors.9 Indian agriculture was made the preserve of tens of millions of cultivating proprietors. Critics are quite correct in asserting that land reforms in India favoured the interests of ‘rich peasants’ at the expense of poor sub-tenants, sharecroppers and landless labourers. But that is only part of the story. Another part is that land reform enabled parliamentary democracy in the states. It did this first, by freeing a critical mass of peasants from the political, economic, physical and ideological direction of their former landlords; and second, by setting in train the competitive dynamic that inheres in parliamentary democracy. Parliamentary democracy can only be a charade in a peasant society dominated by landlords. There, in effect, adult suffrage enfranchises a landlord’s tenants to vote for him or her or according to his or her instructions. This is the situation in much of Pakistan, where, in effect, there have been no serious land reforms, and the national and provincial assemblies are dominated by landlords and industrialists who have adopted the elan of ‘feudal’ landlords. By confirming and conferring land ownership on cultivating proprietors, land reform legislation in India enabled about half of its ‘peasants’ to use parliamentary democracy to serve their own interests. And this they have done to:

• • • •

protect themselves from further land reforms create universities and bureaucracies that credential their sons and employ them arrogate to themselves state grants and loans, and enjoy licit and illicit subsidies insure that ‘law and order’ serves their interests.

Few of India’s ‘rich peasants’ are rich. Most are only better off than their neighbours, and rich only in comparison to the village poor. Nor are they ‘peasants’ if we accept Eric Wolfe’s definition of peasants as ‘subject cultivators’ (Wolfe 1969). Land reform legislation has turned India’s ‘rich peasants’ into farmers who are no more subject to the direction of landlords or other non-cultivating elites than are their counterparts in Nebraska or New South Wales. During the first two or three decades of India’s independence, and largely through their caste connections to the Congress Party, better off farmers of higher castes dominated politics in most states. But, in the last

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two or three decades, parliamentary democracy’s competitive dynamic has kicked in. ‘Backward classes’ of less well-off farmers of ordinary castes have become major players in provincial politics. They learned how to organise and play the game from their betters. The demonstrable rewards of political success inspired them. They marshalled their caste numbers in local politics. Increased opportunities for urban employment and the benefits of Green Revolution technology encouraged them. Their preferred vehicles were the provincial political parties that began to overtake the Congress in the late 1960s. Of these, the most successful are those representing thousands of unrelated, quite ordinary, mostly ‘peasant’ castes, known as Other Backward Classes (OBC). These OBC’s have, in general, replaced or joined their betters in the domination of politics at the provincial level and as forces to be reckoned with in New Delhi.10 Not yet closing in on them, but certainly in the race, are another agglomeration of unrelated castes that, nowadays, people like us call Dalits, the oppressed. For three brief and tumultuous terms since 1995, Mayawati – a former schoolteacher and, nowadays, one of India’s most combustible firebrands – was chief minister of the largest state in India, Uttar Pradesh. She is a Dalit and leads a Dalit party. Before their politicians and litterateurs renamed them, Dalits were (and still are) known as ‘scheduled castes’ (originally, by the British), Harijans (God’s people, by Mahatma Gandhi) and, most hatefully and still (by many of their neighbours), achhut, untouchable. What has the competitive dynamic of parliamentary democracy done for Dalits? An extensive program of ‘compensatory discrimination’ – affirmative action – has over the past half-century produced a large Dalit professional and public-sector middle class. Some of its members, like Mayawati, have built a political career on the support of their Dalit castes. Others, as civil and police officers, have served to affirm the ordinarily ignored and denied civil and human rights of Dalits in the countryside. Among these rights, of course, is the right to vote; and particularly in constituencies where Dalits are concentrated, no politician, whatever his or her caste, can afford to ignore them. In recent years, parliamentary democracy’s competitive dynamic has produced an unprecedented assertiveness among Dalits. For the present, their principle demand is to be treated by their neighbours with ordinary civility rather than customary abuse. They are increasingly assertive in pressing that demand, and increasingly prepared to meet its violent rejection with violent retaliation.

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Provincial and local self-government in India’s quasi-federal union The major institutions of provincial and local self-government are state legislative assemblies and panchayati raj (rural self-government) institutions They are incorporated in a quasi-federated union of states and territories. Unlike pre-existing colonies in Australia and Canada, India’s provinces did not themselves federate into a new union. Rather, the Government of India, in the early 1950s, annexed 500-odd British client principalities and merged them with the provinces of British India. The lot was then divided into ‘unilingual’ states and incorporated into the Indian Union. As they now are, no state of the Union existed at the time the constitution was promulgated. All are the creations of parliament. It has the power to create, abolish, alter borders and change states’ names.11 Except with regard to the constitution’s basic structure, parliament alone has the power to amend it – and has frequently done so. Under the constitutional provision known as the ‘President’s Rule’, parliament may declare a state government incapable of governing and place its administration in the hands of the Centre. President’s Rule was most often used by Prime Minister Indira Gandhi to dismiss state governments ruled by parties in opposition to her Congress. But it has also been used by other prime ministers, including the BJP’s Atal Bihari Vajpayee. By ‘advising’ the president to proclaim an emergency, the Union government has the constitutional power to displace all state governments. This was done in 1962 during the Sino–Indian war and from 1975 to 1977 during Mrs Gandhi’s war with a unified and determined opposition. For their income, the states are largely dependent on grants from the Centre. The upper house of parliament, the Rajya Sabha (house of the states) is elected by state legislative assemblies. It has no power over money bills. If on other bills, the Rajya Sabha opposes the will of the Lok Sabha, the constitution provides for their joint sitting. With twice the number of members, the Lok Sabha is meant to prevail. In contrast to the states and provinces in the Australian and Canadian federations, then, the states of the Indian quasi-federation are defeasible creations of the Centre and exist in complete constitutional subordination to it. But by no means are India’s states satrapies of New Delhi. The powers delegated to the states by the constitution are both substantial and particularly close to their residents’ interests: the regulation of all aspects of agriculture and agricultural land rights, education at all levels, local

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government, law and order and justice, small business. The Centre has the constitutional authority to over-ride the states’ exercise of these powers: either wholly or in part, either by law or constitutional amendment, or through its residuary constitutional powers. But it would be a foolhardy government in New Delhi – particularly a coalition government – that attempted to use that authority. The states are the largest collections of Indian society’s fragments. They are India’s basic and essential political arenas: the seats of its parliamentary democratic politics. There is a history here. In 1920, that extraordinary lateral thinker, M. K. Gandhi, mahatma, barrister-at-law and Congress Party supremo, successfully organised long-lived subcontinental provincialism in support of nascent Indian nationalism. In effect, he placed an ethno-linguistic overlay on the British map of provincial India and reorganised the Congress Party accordingly. Virtually all the provinces in the overlay were ‘unilingual’ and Gandhi put them in the keeping of ‘unilingual’ Pradesh (provincial) Congress committees. The overlay and the reorganisation were meant to vindicate Congress’s contention that India was a multilingual nation of ‘unilingual’ provinces. To say more than ‘unilingual’ would have conceded too much to the British contention that India was ‘a geographical expression’ defined by the steel-frame of empire: a subcontinent of many nations; that is, of many ethno-linguistic groups. So, for the next 28 years, Congress’s promise, reiterated any number of times, was to reorganise independent India as a national union of ‘unilingual’ provinces. But ‘unilingual’ is a mask. Independent India is a union not of ‘unilingual’ but of ethno-linguistic states. This is not a quibble. Nor, as we shall see, are we required to accept the British definition of India as correct. In the ‘unilingual’ provinces in Gandhi’s overlay and what have become states of the Indian Union, the majority populations not only use the same languages, they share to varying degrees a package of cultural traits that identify them as ethno-linguistic groups. Thus, for example, most people in the state of West Bengal not only speak, read and write Bengali, they share to varying degrees a Bengali history; literary, musical and artistic traditions; religious customs particular to Bengal; peculiarities of diet, dress and deportment; self-perceptions and stereotypes, castes and quasi castes. In a word, Bengalis are an inclusive ethno-linguistic group, as are Hindi-speakers in the north, Tamils in the south, Maharashtrians in Maharashta, Gujaratis in Gujarat, Telegu-speakers in Andhra Pradesh and so on.

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Behind the ‘unilingual’ mask this is the reality. The Congress ‘high command’ confronted it in 1948. It understood the bloody partition of the subcontinent, the creation of Pakistan, as the work of a secessionist movement among Muslims whose ‘sub-national’ ties to their religion were stronger than their ties to India. In an India divided into ethno-linguistic states, was it not fearfully possible that other well-established and longlived ‘sub-nationalisms’ might be consolidated and politicised and strangle Indian nationalism in its cradle? Was there not, even in the Hindu fold, among non-Brahmin Tamils of South India, an ethno-linguistic-based secessionist movement? Congress leaders decided to postpone the reorganisation of India on ‘unilingual’ lines. They were not successful. Popular movements emerged all over India to challenge the decision and, by doing so, to threaten Congress’s hegemony. Nehru believed that chaos was the most likely alternative to that hegemony. Congress gave way. By 1966 most Indian states had been reorganised on ethno-linguistic lines. Variations on those lines – ‘unilingual’, ‘tribal’ and ‘regional’ – define all 28 Indian states today. India’s essential political arenas are in its ethno-linguistic provinces. Here, long before there were states in an Indian union, people who literally and figuratively speak the same languages, provincial folk, were dealing with one another over such political matters as communal conciliation, caste precedence, factional conflict, economic advantage and influence at various seats of power from the thana (police station) to the raj. Since the establishment in independent India of state legislative assemblies and panchayati raj, provincial political arenas have been expanded, redefined and multiplied. State resources have been made available to them, new patron–client ties have been created and old ones have been linked into them, old enmities and alliances and new ones have been brought to the political surface. India’s states have become the grassroots of a bare-knuckle parliamentary democracy. They have not become the hotbeds of secessionism.12 But why not? I address that question in my discussion of the Centre.

Panchayati Raj In the late 1950s, panchayati raj was established in the Indian countryside as a three-tiered scheme of local self-government. The scheme was mandated by Congress at the Centre, but placed under the jurisdictions of the states. New Delhi hoped that panchayati raj would democratise village government and

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make public development funds available to those in need. Those hopes were dashed by the realities of village India. There, social and economic relationships were (and to a lesser extent, still are) characterised by patron–client ties. So, panchayati raj’s powerful headships were usually captured by well-to-do farmers who were patrons to dependent clients, and the scheme served largely to enhance the patronage of patrons and to enrich them. In order to correct this apparently unintended bias in favour of the well-to-do, the constitution was amended in 1993. The amendment created one national scheme of panchayati raj, and placed it more or less under the Centre’s jurisdiction. Direct elections were mandated at all the institution’s tiers and a percentage of headships in all of them were reserved for ‘scheduled castes [and tribes]’ and women. Given impetus by the amendment and reflected in it, parliamentary democracy’s competitive dynamic had already, and continues, to incline panchayati raj to serve the interests of less-well-todo villagers of ordinary caste and even poor villagers of low caste. The loosening of patron–client ties in favour of agricultural wage-labour, the benefits of Green Revolution technology to small farmers and sharecroppers, the emergence of new opportunities for urban employment, and the general politicisation of ‘backward classes’ have enabled erstwhile clients to outvote their old patrons. Unamended or amended, panchayati raj institutions are unloved by state politicians and bureaucrats. They tend to regard panchayati raj heads as venal, unco-operative, competitive, spoiling, intimidating, vindictive, meddlesome and uneducated dehatis (bumpkins). Or, seen from another angle, panchayati raj institutions have served grassroots democracy by connecting parish-pump politics to the politics of state legislative assemblies.

The Centre holds In so many places, in the old world and the new, the ethno-linguistic segments of multi-ethnic states have become the hotbeds of secessionism. Why in India, in general, have they not? The short answer is that the Indian Centre has held. The longer answer follows. First, from the Raj’s aptly named ‘transfer of power’ in 1947, independent India has had a government capable of governing and committed to parliamentary democracy. If ever in the republic’s history there was an ‘executive in waiting’, ‘a loyal opposition’ – not to the Empire, certainly, but

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to its Westminster ideal of parliamentary democracy – it was the Congress Party in 1947. Particularly, the Nehru government was capable of making good its inheritance of a competent, India-wide civil bureaucracy and military establishment, and subordinating both to the elected government of a popular and disciplined party. By contrast, the Muslim League in Pakistan was incapable of governing in 1947. A military coup followed. In response to a repressive West Pakistani government of generals and bureaucrats, Pakistan’s Bengali-speaking eastern province seceded in 1971. It became Bangladesh. But it’s major party, the Awami League, was incapable of governing and a military coup followed in 1975. When in both Pakistan and Bangladesh, party government failed, an alliance of military and civil bureaucracies took over. In neither place has that alliance produced a successful nation-state or a promising parliamentary democracy. The India-wide civil service inherited by the Nehru government was a first-rate imperial, meritocratic and elite ‘command and control’ bureaucracy: the Indian Civil Service (ICS). The Indian government changed its name to the Indian Administrative Service (IAS), but preserved its bureaucratic supremacy and expanded and extended its powers. Command positions at the Centre and in the states are reserved for the IAS. Today, its approximately 5000 officers preside over lesser bureaucracies and a public-sector sprawl that combines to employ about 30 million people. Second only to consolidating its political authority, economic development topped the Indian government’s agenda in the 1950s. The model was statist. In effect, the IAS was put in command of a state-controlled and directed program of economic development. At development’s ‘commanding heights’, the public sector – in control of energy resources, steel and armament production, banking and insurance, and transport and communications – was brought under state ownership and bureaucratic management. The private sector, including agriculture, was in virtually its every operation – production, location, expansion and contraction, and access to raw materials and foreign exchange – subjected to bureaucratic oversight and regulation. At the heart of the statist model was an importsubstitution strategy of development that subjected India’s producers of goods and services to bureaucratic regulation in their every interface with the outside world – currency exchange rates, import and export licenses and permits, and tariffs and quotas. In India, the bureaucracy set prices for

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‘essential’ and ‘non-essential’ goods’ and determined who would and would not receive government subsidies. This practice was known to those who suffered it as ‘license-permit raj’. There is general agreement nowadays that it condemned India to one of the slowest economic growth rates in Asia – the ridiculed ‘Hindu rate of growth’, which was 3.5 per cent annually. From the 1990s, state ownership and control of the economy has been gradually – and by much of the bureaucracy that profited from it, grudgingly – dismantled, disinvested, privatised and liberalised. In addition to its economic cost, a legacy of ‘license-permit raj’ has been a substantial erosion of the IAS’s reputation for non-partisanship and probity. For the first decades of India’s independence, a one-party dominant Congress and an elite bureaucracy worked hand in glove. Where there was only one governing party, the question of bureaucratic partisanship or nonpartisanship was apparently moot. This began to change in 1967. In several states, the general elections of that year brought non-Congress governments to power. From their perspective, the bureaucracy had been for 20 years a wing of the Congress. The concept of a non-partisan bureaucracy was further undermined by Indira Gandhi’s unintended encouragement, post1967, to the growth of provincial parties: through her attempts to destroy non-Congress state government, bring the Congress Party under her autocratic control and, finally, by her use of a bureaucracy apparently loyal to her as enforcers of the 1975–1977 ‘emergency’ (Das 1970, Chapter 11). Nowadays, politicians, in general, want to be served by bureaucrats that are ‘loyal’ to them. Wholesale transfers of bureaucrats routinely attend the change of state governments. Corruption and dysfunction are by-products of bureaucratic partisanship. Its manifestations in a variety of settings are nexuses of politicians, bureaucrats and businesspeople. Within the bureaucracy itself, for example, a bureaucrat bribes to secure a posting that will position him to receive bribes. Postings that bring bureaucrats in contact with the rich are sought, postings that bring them into contact with the poor – rural development, for example – are shunned. A politician on the board of a public-sector firm is bribed by a businessmen to favour him or her as a supplier. A bureaucrat facilitates the deal. A businessman uses his black money to pay for bureaucratic favour or to fund the electoral campaign of a friendly politician. And so forth. In India, where executive positions in both public and private sectors are filled from the same middle classes, but where

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public-sector executive salaries are far less than those in the private sector, bribery bridges the gap. In Transparency International’s annual Corruption Perception Index, compiled since 1995, India consistently appears in or on the margin of the quartile of the most corrupt. It is the only major economy to merit that distinction. 13 It is a distinction to which the bureaucracy is a major contributor, and the experiences of ordinary citizens and the occasional revelations of corruption spectaculars appear to validate the folklore. Clerical staff in government offices routinely demand bakshish from their clientele to access their ordinary citizens’ entitlements. Customs and excise officials at Indian ports are notoriously corrupt. In 2001, their boss, the chairman of the Central Board of Excise and Customs, India’s premier revenuecollecting agency, was arrested on charges of massive corruption. In 2002, the chairman of the Punjab Public Service Commission was arrested on the charge of having enriched himself by selling public-service jobs. He is probably not as rich, however, as a former vice-chairman of the Dehli Development Authority who amassed a considerable fortune in exchange for his favours to builders. In sum, there is no question but that the IAS, in particular, and other elite Central bureaucracies,14 have made crucial contributions to the Government of India’s capacity to govern. But this has come at a price, both to India and to its elite bureaucracies. Under the Raj, the Indian Army was subordinate in India to a government of the Indian Civil Service. It bequeathed that subordination to Congress, and Congress retained its bequest. Well begun, the military’s subordination to civilian government survives the demise of ‘one-party dominance’, and the generals are no more threatening to their political masters than they were during its heyday. Secessionist movements have never threatened the Indian state. But when they have troubled it – in Punjab, briefly, in Kashmir and the north-east, perennially – the army (and the paramilitary police) has remained firmly under the Centre’s command. Second, the Centre has never represented any one of India’s ethnolinguistic minorities. Again, there is no ethno-linguistic majority. The Hindispeakers of the north are about 40 per cent of India’s population. But they are unimaginable as a community. They are 400 million souls dispersed among nine states; hundreds of groups whose first languages are different and sometimes mutually unintelligible ‘mother tongues’; thousands of castes, quasi castes and their fragments; and tens of thousands of villages

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and their particular patron-client relationships. While most prime ministers have come from the Hindi-speaking north, most presidents, including the incumbent, have been southerners. The President of India is the ceremonial head of state. Ordinarily, he or she is meant to act politically on the ‘advice’ of the prime minister. But as long as there is an unstable multi-party system in India, and thus the real possibility from elections to elections of a hung parliament, there is an opening for decisive presidential discretion in choosing a government or ordering fresh elections. The president has a national presence. He is selected by a college that includes all elected members, both of parliament and of all state legislative assemblies.15 All prime ministers but one – the incumbent, Congress’s Manmohan Singh, a Sikh – have been Hindu. There have been Muslim, Sikh and Christian presidents. When it was dominant, Congress was a pan-Indian party and it still is: now as the governing party at the Centre, or a party in the governing coalition in almost half of India’s states, from Cape Comorin to the Himalayas. The BJP is strongest in northern India, but the provincial parties in its National Democratic Alliance were from all over the country. A comparison with Pakistan is irresistible. Until Bangladesh seceded, Pakistan’s Punjabi and émigré elites feared that any parliamentary democratic system would be dominated, and to their disadvantage, by Pakistan’s Bengali majority. Ergo, parliamentary democracy was out of the question. From 1971, Punjabis have become Pakistan’s majority. And nowadays the country’s ethno-linguistic minorities – Sindhis, Balooch, Pathans and Muhajirs (North Indian émigrés) – are, in general, no friends of a central government and its army, both, dominated by Punjabis. Third, what I have referred to elsewhere as ‘bourgeois revolution’ in India – the development in tandem of capitalism and parliamentary democracy – has, indeed, been a revolution of, by and for ever-expanding middle classes (Moore 166; Stern 1993 and 2003). Over the past 30 years, embourgeoisement in India has been widespread, rapid and profound in its social significance. Recent figures are consistent with those that have been tallied since the early 1970s and speak for themselves. The market for washing machines was 228 times larger in 2001 than it was in 1991; for personal computers, 13.5 times larger; for cars 8 times larger; and for television sets, 5.4 times larger.16 As India is rooted in its provinces, so is its bourgeois revolution, and that revolution has provided the Centre with pan-Indian, socially broad-based middle classes.

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There are now 275 Indian universities and institutions ‘deemed-to-be universities’. Of these, all but 15 are state institutions and the vast majority are post-Independence creations of state legislative assemblies. In most state universities, the media of instruction are their states’ ‘official [Indian] languages’ and English. Most students in state universities are the children of their state’s middle classes. While few Indian state universities are academically distinguished, they are notable for their contributions to bourgeois revolution. They have broken the monopoly over higher education and university-educated employment that was enjoyed in British India by small self-perpetuating, upper caste, urban middle-class elites of Anglophones.17 Because they are Indian citizens, the better graduates of state universities enjoy an Indian market for their labour: much larger and more diverse than the labour markets at home. And increasingly, as Indian-credentialed graduates, they enjoy an international labour market. What is true of the market for labour is equally true of the market enjoyed by Indian producers of goods and services. In a word, as a result of India’s success as a nation-state, its provincially based middle classes have developed interests in being Indian. And in India, as elsewhere, where interests are served, loyalty usually follows. Finally, there is no doubt but that the Indian state in 1947 was the legatee of the Empire’s ‘steel frame’ and its instrumentalities: bureaucracies, army, post and telegraph, roads and railways, port cities, and infant industrialisation. The Westminster system was another legacy of empire. But the Indian nation was not. Again, Mahatma Gandhi’s provinces were not merely ‘unilingual’. However, nor was the India that enclosed them merely a geographical expression. Unlike the Dutch East Indies, for example, the British Indian Empire was not an imperial accretion of parts, many of which were culturally unrelated to one another. In many ways personified by Gandhi, there is a cultural likeness among the parts that he designated as ‘unilingual’. It is a likeness the sum of whose parts is, as Europe’s, a civilisation. Clumsily stated, the likeness is between a Hinduism into whose numerous and various manifestations a Sufi-influenced Islam has been synthesised, particularly in North India. Examples of this abound: in art and architecture, music and popular culture; in the ubiquity of castes and caste systems, among non-Hindus as well as Hindus; in the veneration by Hindu worshippers of the dargahs (tombs) of Sufi saints; in the persistence of ‘polytheism’ in the worship of ordinary Muslims; in the recognition by Indians of

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others as Indians, although they may differ in physiognomy, religion, language, caste, dress, diet and deportment. In sum, the Indian republic’s programs of state- and nation-building via political, economic and social development have built on a pre-existing likeness among India’s parts. An Indian civilisation is the ancestor of the Indian nation-state.

Notes 1

The ominous exceptions were the Muslim majority provinces of Bengal and Punjab. 2 ‘Centre’ is the short form used in imperial and now in independent India for the ‘Government of India’. 3 For example, re the December elections in Rajasthan, Madhya Pradesh and Chattisgarh: from The Times of India Online (5 December 2003): ‘The most striking feature of the campaign was that it was not about the BJP’s core issues – Ayodhya, Hindutva, and so on. It was about development.’ And, as usual, about caste. The results of the parliamentary elections, announced from 13 May are available in detail and in English in the online editions of all major Indian daily newspapers. 4 D. K. Barooah, a Congress Party president at the time 5 The Janata Party’s and the National Front’s most prominent prime ministers, Morarji Desai and V. P. Singh, had been Congress chief ministers and cabinet ministers in Congress governments at the Centre. 6 P. V. Narasimha Rao, the first was Lal Bahadur Shastri, from June 1964 to his death in January 1966. 7 Both the Tamilnadu and Bengali parties rejoined the NDA. Opportunism takes the edge off hard feelings. 8 Something else to guess at: How will the ordinarily factious Congress manage with a prime minister, Manmohan Singh, who is not the party leader, and a party leader, Sonia Gandhi, who has become the matriarch of a dynasty to which the prime minister does not belong? 9 Landlords were compensated, usually in negotiable bonds, for their losses in rent. 10 Incidentally, one reason for the stubborn persistence of a gender hierarchy, particularly in the countryside, is that women unlike castes have no separate group identities or collective bases. Women are members of families, and families are the smallest units of castes and factions. 11 Most recently, in 2000, Parliament carved three new states from three existing ones. 12 Genuine secessionist movements in India have appeared only among Muslims in Kashmir and sections of the population – mostly ‘tribal’ people – in states of the north-east. The primary supporters among Sikhs for the ‘Khalistan’ movement in the 1980s were lumpen youth and middle-age émigrés. But for Indira Gandhi’s meddling in Sikh communal politics the movement might never have materialised. It no longer exists.

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13 With the exception of Russia in the 2002 survey. Transparency International’s home site is www.transparency.org/index.html/ 14 The Indian Police Service, Diplomatic Service and a number of specialised Central services. 15 The following formulas are applied: First, total population of each state by total number of elected member of its legislative assembly  1000 equals the number of votes allotted to each elected member of each legislative assembly. Then: total number of votes of all members of all state legislative assemblies/total number of elected members of both houses of parliament = number of votes allotted to each elected member of parliament. A preferential voting system produces a president elected by an absolute majority of the votes polled. 16 India Today, 11 August 2003, p. 30. 17 In 1950, there were 28 universities with about 250,000 students. Today, more than six million students are enrolled in Indian universities. Commonwealth University Handbook 1997–98 and 2001–2002.

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The Westminster model and Pakistan: A continuing mirage

3

Samina Ahmed

akistan would appear to have little in common with the Westminster tradition. After a succession of coups, the last in October 1999 led by General Pervez Musharraf, and a succession of military-led governments, any semblance of Westminster inherited from its colonial days seems nonexistent. Yet there is a marked dichotomy in the manner in which the State is governed and the domestic legitimacy attached to the Westminster model of government inherited by Pakistan from its former British colonial masters. For most of Pakistan’s post-independent existence (from 1947), the military has either ruled the State directly or exercised power indirectly. Unrepresentative governments, dominated by the military, with the civilian bureaucracy acting as equal or subordinate partner, have attempted to gain legitimacy through a variety of means, including constitutional distortions. Ostensibly aimed at achieving ‘good governance’, the military’s experiments have radically distorted the constitutional/conventional frameworks based on Westminster or have replaced parliamentary democracy altogether by equally distorted federal models. Despite the military’s constitutional or extra-constitutional experiments, aimed at legitimising the usurpation of power from elected government, popular support for, and acceptance of, parliamentary democracy remains intact.

P

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Pakistan’s colonial legacy is partly responsible for this glaring contradiction between military rule and its inherited tradition of Westminster-style parliamentary democracy. While the British had given their Indian Empire a taste of Westminster democracy, participation in legislative bodies was limited, in terms of franchise and with regards to governance. The state apparatus, the civil and military bureaucracies that buttressed the ‘steel frame’ of the British Indian Empire, was responsible for ensuring the control of the British Crown. Yet, even limited participation in self-governance during the British Raj and familiarity with the traditions of Westminster government shaped the preference of many of Pakistan’s political leaders and elected governments for parliamentary democracy. The tussle between authoritarian rulers and the political elite, the former for legitimacy and the latter for Westminster democracy, continues unabated. Since Pakistan’s formation, political bargaining and competition has also been conducted along ethnic and regional lines. As a result, federal features have been incorporated into the country’s Westminster inheritance. Since military regimes are characterised by the centralisation of power and authority, the division of power between the centre and the periphery has become another bone of political contention, amid regional demands for political, legislative, administrative, and fiscal devolution. Six decades and four military regimes later, interspersed by democratic interludes, Pakistan’s implanted Westminster model of government has fared badly. The democratic functioning that characterises the model continues to elude Pakistan and military rule appears the norm. Nevertheless, General Musharraf and his fellow army commanders, like their military predecessors, have yet to attain to their goals of regime stability and consolidation. At the heart of the political impasse confronting the Musharraf regime is the military’s failure to attain regime legitimacy. And that legitimacy will remain illusive until it successfully creates an alternative model of government with greater popular resonance than the adapted Westminster model sanctified by Pakistan’s 1973 constitution.

Bypassing the Westminster model 1947–58 Pakistan’s first military coup took place in 1958, but the departure from Westminster has a much longer history and can be dated back to before the

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State’s independence from colonial rule. In ex-colonial India, Westminster traditions of majority rule and democratic functioning appealed to its nationalist leadership, struggling for self-determination through a political party, the Indian National Congress, which had an impressive local support base. The champions of independent Pakistan, the All India Muslim League, were begrudgingly granted a country by a colonial ruler anxious to abandon its Indian Empire. Unlike their Indian National Congress counterparts, Muslim League leaders, many of whom were even unfamiliar with the languages spoken in the territory that became Pakistan, found themselves overnight ruling a people whose loyalties they mistrusted. Not surprisingly, Muslim League governments viewed Westminster traditions with unease. It would be incorrect, however, to assume that democratic functioning had little appeal to Pakistan’s newly independent citizens. Self-rule had raised expectations of self-governance, including the devolution of power and authority. But the new state was ruled under a provisional constitution, the India Act, 1935 (amended in 1947), which gave it, at best, a ‘controlled parliamentary form of government’ (Shafqat 1997: 24.S). Inheriting the powers of the viceroy, the governor-general had inordinate powers while the legislature was dependent on the executive’s goodwill for survival. Pakistan’s first governor-general and founder, Mohammad Ali Jinnah, could appoint, overrule and dismiss prime ministers and their cabinets and legislate at will. He presided over, but was not accountable to, the federal legislature, the Constituent Assembly (Waseem 1994: 90–1).1 The governor-general also appointed judges of the superior courts. Although Pakistan was formally a federation, the governor-general, through his appointees the provincial governors, could form or dissolve provincial governments and impose direct rule over the federating units by invoking a state of emergency. Popular demands for democratic governance saw the ranks of the opposition to the Muslim League grow, while the party itself splintered into many rival groups (Waseem 1994: 117).2 The geography of the new State lent itself to this popular support for democratic governance. Physically divided into two separate wings, a thousand miles apart, and internally divided along ethnic and regional lines, political bargaining in Pakistan soon occurred along ethno-regional lines. Ethno-regional demands and grievances were, nonetheless, articulated in democratic terms, and focused on

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the need for participatory democracy. The majority Bengali population were understandably in the forefront of this struggle for a representative system.3 Given their familiarity with the democratic practices of Britain, this oppositional group to the Muslim League called for the establishment of a Westminster-style democracy but with a twist. Bengalis supported the political and fiscal devolution of power, with the support of ethno-regional minorities in the west-wing, particularly the Sindhis and the Baluch. Anxious to retain power and lacking a popular base, Muslim League governments resisted these demands that would have resulted in the loss of power and privileges for its leaders. As the confrontation between the ruling party and its increasingly assertive political opposition grew more acrimonious, Muslim League leaders fell back upon another familiar legacy of colonial rule, reliance on the civil–military bureaucracies for regime survival and consolidation (Noman 1990: 9). Pakistan’s inherited bureaucratic apparatus, the ‘steel frame’ of the British colonial empire, was more than ready to assist a floundering political leadership. The willingness to rebut popular demands for democratic governance was itself an inheritance of colonial rule. The bureaucrats who joined the civil service and armed forces were as suspicious of the Pakistani political elite as they had been of a restive native population chaffing under colonial rule. If the civil–military bureaucracies were unfamiliar with the precepts of democracy, viewing political competition and demands with suspicion, they also looked on the weak and inept ruling party with contempt. The growing dependence of Muslim League governments on the civil and military bureaucracies was to prove their undoing. In the first years of independence, as the ruling party found innovative ways of postponing the constitutional process, fearing that its political opposition would opt for parliamentary democracy, the bureaucracy moved to control the Muslim League governments. The military acted as a junior partner, indirectly and then openly. As the ruling party became a tool of the bureaucrats, the latter created and dismissed governments at will.4 Resisting popular support for the decentralisation of political, administrative, and fiscal power, the politically dominant civil–military bureaucrats merged the three units of the west into one, named West Pakistan, in 1955. Aimed primarily at counter-balancing the political weight of the more populous east wing, named East Pakistan, this ‘one unit’ policy created its own stresses and strains on the body polity – resisted by both the east wing and

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west-based minority provinces of Sindh, Balochistan and the North West Frontier Province (NWFP). However, it served the interests of an ethnically non-representative military, where recruitment patterns inherited from colonial days favoured the Punjab to the detriment of East Bengal, Baluchistan and Sindh. During the 1950s, Pakistani governments lacked any attribute of democracy. There were no national elections, legislatures were little more than rubber stamps and the judiciary was subservient to the executive. The executives of the civil and military bureaucracy controlled the State. In 1956, nine years after its independence, Pakistan finally had its first constitution, based neither on the Westminster nor federal model. Modelled on the Government of India Act, 1935, the 1956 constitution ‘was not a symbol of legislative dominance’ since its ‘true architects … were Civil Servants’, and ‘cabinet government required the cultivation of an electoral system’ (Noman 1990: 11). An electoral college composed of members of a unicameral federal legislature, the National Assembly, and the two provincial legislatures of East and West Pakistan, chose the head of state, the president. The president appointed the prime minister from the National Assembly, who could in the president’s estimation command a majority in the National Assembly. The president was empowered to dismiss a prime minister if in his estimation the prime minister no longer enjoyed a parliamentary majority. The prime minister and cabinet could ‘aid and advise the president’, who could chose to either accept or reject that advice (Khan 2001: 173–4). The provisional constitution could not ameliorate domestic unrest. Not surprisingly when elections were called on the basis of parity and not ‘one man, one vote’, the more populous east was offered the same number of seats as the west in a unicameral parliament (Shafqat 1997: 69). By the mid1950s, opposition to the ruling order was on the increase in both the east and west wings. However, the president and his civil service allies soon faced a far more serious challenge as a restive military leadership decided to put a swift end to the democratic facade. The first signs of the military’s political ambitions were evident soon after the country’s independence. Pakistan’s first Commander-in-Chief, General Mohammad Ayub Khan, even joined the government in 1954.5 Conscious that the ruling civil bureaucrats were unlikely to survive political challenges without their assistance, and empowered by an alliance with the

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United States at the height of the Cold War and the accompanying large-scale military and financial assistance used to expand the armed forces,6 the military at first manipulated governments dominated by the civil bureaucracy and finally cast out the civil bureaucrats from the portals of power in October 1958.

Authoritarian rule and democratic impulses 1958–73 Martial law was first imposed on 7 October 1958. The military’s decision to discard the democratic facade that had served it well enough for almost a decade was dictated as much by the military high command’s contempt for civilians, including their allies in the civil bureaucracy, as by concerns over rising demands for, and expectations of, democratic governance. The country’s first national elections were due in February 1959. The military, however, was aware that elections, held on the basis of plurality, would result in the transfer of power to political parties representing the Bengali opposition. Transfer of power to the Bengali political elite would have challenged the West Pakistani, Punjabi-dominated military’s hold over power and its attendant benefits. Having ruled indirectly, controlling key areas of policymaking, and intervening intermittently to pre-empt civilian threats to the political status quo, the generals believed they were far more capable of governing effectively than their civilian counterparts (Rizvi 1976: 75). Realising, however, that the coup would face civilian resistance, the military chose to justify the intervention through democratic rhetoric of sorts. Citing civilian ineptitude as the justification for the coup, General Ayub Khan vowed to restore democracy (Rizvi 1976: 313–17).7 Soon after the coup, the military set about transforming governing structures to further institutionalise its interests. Co-opting politicians into government, yet refusing to share power with civilians, the military high command created yet another facade of democracy, based on a quasi-presidential system. This presidential model, with strongly centralised attributes, reflected the military’s institutional preference for ‘unity of command’. Opting to marginalise the political parties, General Ayub Khan devised a system of local government, called Basic Democracy, which was meant to serve multiple goals. Established in 1959 and elected on a non-party basis, the ‘local

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bodies’ were meant to sideline the political parties and offset growing domestic unrest and demands for direct elections. Bypassing the middle tier of government, the federating units of East and West Pakistan, the local bodies were also created to broaden the regime’s support base through the establishment of patron-client relations. In addition, Ayub was to use the local bodies to legitimise his rule by using them as an electoral college, electing him president for a five-year term through a referendum in 1960 (Noman 1990: 27–8).8 The referendum also gave him the authority to frame a constitution. Belying its democratic rhetoric, the military’s intention to retain direct power was evident in the model of government contained in General Ayub Khan’s 1962 constitution. Not surprisingly, the constitution vested enormous powers in the president, Ayub himself. Ayub became Supreme Commander of the Armed Forces, promoting himself to a newly created post of Field Marshal and appointing a new handpicked army chief. There were no checks on the president’s authority. The president had the power to summon and prorogue the unicameral legislature, the National Assembly and also declare a state of emergency imposing direct rule (Waseem 1994:148).9 Cabinet members were selected by and accountable to the president, and were not members of the legislature. The president exercised more fiscal and legislative powers than the National Assembly, which could not amend the constitution without the president’s consent. The president, however, could veto legislation passed by the National Assembly. Although the constitution ensured security of tenure for the judiciary, the president could, either independently or on the advise of a Supreme Judicial Council, appointed by him, dismiss judges of the Supreme or High Courts (Khan 2001: 276). The tussle between authoritarian rule and democratic aspirations failed to subside. On the contrary, the absence of participatory institutions of governance fuelled demands in both wings of the State for parliamentary democracy, combined with devolved fiscal, legislative and administrative authority. The military’s attempts to subdue political opposition forcefully, especially in the east, only increased the popularity of the Muslim League’s chief opponent, the Awami League, headed by Sheikh Mujibur Rehman. The Awami League’s six-point program called for the establishment of a parliamentary democracy, and the decentralisation of power, with the centre’s jurisdiction limited to foreign affairs and defence. In the west, too, agitation against the Ayub government assumed the shape of widespread demonstrations.

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As a counter to these threats, the military high command removed Ayub, replacing him with army chief, General Yahya Khan in March 1969. To defuse domestic unrest, the military government abrogated Ayub’s constitution, declaring that elections would be held under the Legal Framework order of March 1970, by which all political parties would agree to devise a democratic constitution ‘that would ensure periodic elections on the basis of population and guarantee fundamental rights and independence of the judiciary’. The proposed constitution would also provide ‘maximum autonomy’ to the federating units (Shafqat 1997: 69). The military government dissolved the west’s ‘one unit’ into its components parts, easing domestic pressures for devolution, and in December 1970 held Pakistan’s first national elections on an adult franchise. The Awami League proved victorious but the military refused to transfer power to their civilian Bengali opponents. Subsequent attempts to curb the agitation in the east fuelled demands for separation, resulting in an all-out civil war. Indian support for the East Bengali separatists and military intervention resulted in the dismemberment of Pakistan and the creation of Bangladesh. Pakistan’s military suffered a humiliating defeat at Indian hands, but not before its operations in East Pakistan resulted in the deaths of millions of Bengalis. In the new truncated Pakistan, the military was no longer able or willing to retain direct power and transferred government to civilian hands (Cloughley 2000: 239–40).10 Facing the urgent tasks of reviving state legitimacy and recreating credible national institutions, the political leadership opted for democratic and constitutional governance. In 1973, representatives of all major political parties, elected in the 1970 polls, adopted a constitution by consensus in the National Assembly. Drawing on its colonial heritage, Pakistan’s political elite opted for parliamentary democracy adapted to suit the country’s internal dynamics, merging the Westminster model with federal features to accommodate demands for decentralisation.

The 1973 constitution and the resort to a modified Westminster system The 1973 constitution, Pakistan’s longest lasting and current constitution, contains many attributes of the Westminster model of government. It created a parliamentary democracy, with a responsible cabinet, accountability to parliament, the fusion between the executive and legislature, and democratic

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regime change, based on periodic elections. There were, however, also a number of departures. The constitution attempted to meet popular demands for decentralisation and provide scope for political competition, bargaining, consultation and participation in a multi-ethnic, multi-regional country.11 In a deviation from Westminster, Pakistan became a federal parliamentary democracy with power divided between the central government and four federating units. An indirectly elected president was incorporated to represent the federation. Moreover, fundamental rights of citizens were included in the constitution’s preamble. Among other rights, citizens were entitled to equality before the law; the right to life and liberty; freedom from discrimination; freedom from slavery or forced labour; religious freedoms and access to education; prohibitions against illegal detention or torture; as well as the fundamental rights of speech, expression, press, assembly, association and movement. The Westminster construct was therefore adapted to suit local conditions (Khan 2001: 486).12 Representative and participatory avenues for political expression and party activism appeared to give the new political order stability and legitimacy, while restoring the confidence of citizens in the State. Clear mechanisms for regime change were provided through periodic elections and a recognised role for an opposition. National elections were held on the basis of universal adult franchise with results determined on the principle of first-past-the post for general seats in the National Assembly, the lower house of parliament. Political parties were able to contest general elections and be represented in parliament through their elected representatives. They also contested provincial elections, forming government and the opposition in provincial legislatures. Non-governing parties had a legitimate role as the loyal opposition both inside and outside parliament, representing a government in waiting. The strong emphasis on parliamentary sovereignty was evident in the roles and responsibilities vested in the executive, legislature and judiciary. Based on the principles of responsible government, the constitution provided for the fusion of the executive with the legislature. The head of government, the prime minister, was elected by majority vote in the National Assembly, and selected a cabinet accountable to the central legislature. Interestingly, the constitution allowed for a president elected by two-thirds majority in a joint sitting of the bicameral parliament, but the president’s job was symbolic and ceremonial. The president had no powers

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to dismiss the National Assembly, overrule legislation, or to select a prime minister. The head of state acted only on advice from the prime minister and cabinet, and could be dismissed by parliament. The concept of ministerial and hence collective responsibility was enshrined in the constitution, and the prime minister and his cabinet were accountable to the National Assembly.13 Yet, considerable power was vested in the office of prime minister. In an adaptation of Westminster, the prime minister enjoyed a separate status and identity from cabinet, with special powers and responsibilities (Khan 2001: 493). The head of government appointed cabinet ministers from the parliament (not the head of state acting on the prime minister’s advice), although the president formally made other key appointments on the PM’s advice, including military chiefs, judges of the superior courts and governors of provinces. In the bicameral legislature, the principle of parliamentary sovereignty was evident in the powers vested in the lower house, the National Assembly, which was directly elected for a five-year term. The executive was derived from and accountable to the lower house. However, the 1973 constitution placed some constraints on the Assembly’s powers to dismiss a prime minister (given recent experience with successive governments dismissed in the 1950s).14 Hence, a successful vote of no confidence against a prime minister required that another candidate demonstrate his ability to command a majority in parliament (Khan 2001: 492–3). In another departure from the Westminster tradition, the upper house, the Senate, representing the federating units of the State, was given special powers.15 Legislative power was divided into two categories: federal subjects that were the sole domain of the lower house, and concurrent subjects of special interest to the federating units such as mineral resources and transportation. While the Senate could not withhold its consent over money bills, it could refuse consent over legislative matters falling under the second category. Should that occur, the bill would only pass by a majority vote in a joint sitting of both houses (Khan 2001: 498). The Senate also formed part of the electoral college for the president and participated in the constitutional amendment process. In accordance with the federal principles contained in this adapted version of the Westminster model, four provincial executives and legislatures were established. Provincial elections were held on the basis of first-past-the post. Political parties participated in provincial elections and

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played a legitimate role in regime change. The provincial head of government, the chief minister, maintained majority support in the legislature, and provincial cabinets were likewise accountable to these bodies. While provincial governors were able to dismiss provincial legislatures on the chief minister’s advice, provincial legislatures could remove chief ministers and their cabinets through a vote of no confidence. Despite this tilt towards a federal model, the 1973 constitution placed constraints on the devolution of power, with the federal government responsible for overseeing security and ensuring provincial governments exercised their authority in accordance to the constitution and the laws of the land. The federal government could also impose a state of emergency to extend central control over any provincial government and, in such circumstances, the federal parliament had the power to legislate for the province. While provincial parliaments were able to make laws on subjects that fell outside the federal and concurrent jurisdictions, federal laws took precedence over and could overrule provincial legislation (Khan 2001: 499). Because of this centralisation of power and authority within federal institutions, the division of responsibilities in the federation still resembled more a Westminster than a truly federal model. There was no provision for judicial review of the 1973 constitution, and the constitution could only be amended through a two-thirds majority in the lower house and a majority in the upper house of parliament. The highest court, the Supreme Court had the power to interpret the constitution, but could not violate its basic character. The independence of the judiciary was given constitutional status and judges were empowered to protect fundamental rights. The Supreme Court was responsible for the enforcement of fundamental rights, providing judicial recourse to abuses of executive authority. The chief justice appointed other judges of the Supreme Courts, who were given fixed tenures, and could only be removed by the president on the advice of the Supreme Judicial Council, consisting of the chief justice, two senior Supreme Court judges and two chief justices of the provincial high courts. The civil and military bureaucracies, in accordance with the Westminster model, were meant to be politically neutral, working under the federal government’s control. To ensure neutrality, the 1973 constitution did not permit civil and military bureaucrats to stand for public office until at least two years had elapsed since their retirement from service. The

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constitution did not guarantee civil servants security of tenure, leaving them prone to executive interference. Since the 1973 constitution was devised against the backdrop of military interventionism and the disintegration of the regime in 1971, it contained provisions to prevent a recurrence of intervention in the political process. Civil and military bureaucrats had to swear allegiance to the constitution and pledge they would refrain from engaging in politics. According to Article 6, any attempt to subvert the constitution was tantamount to high treason. 16 Article 245 also placed limits on the military’s domestic role, making it subservient to civilian authority, and decreeing that the military’s functions were to ‘defend Pakistan against external aggression or threat of war, and, subject to law, act in aid of civil power when called upon to do so’ by the federal government. The constitution codified Westminster convention, by defining the spheres of responsibility for the civil and military bureaucracies, and by placing the military firmly under civilian control.

A brief fling and the slide back into oblivion 1973–78 After the 1973 elections, the ruling party, the Pakistan People’s Party (PPP), led by Prime Minister, Zulfikar Ali Bhutto, with its emphasis on populist rhetoric, raised public expectations unrealistically, with its supporters believing that a social, political and economic revolution was around the corner. The PPP’s brand of politics met public approval, echoing as it did longstanding aspirations for democratic liberalism (Shafqat 1997:59).17 Since the military stood discredited, the new prime minister could also assert civilian control over an overgrown and hitherto unaccountable security apparatus. As constitutional restrictions combined with emergent democratic norms, it seemed that the military no longer had the ability, if not the desire, to uproot parliamentary democracy. The democratic transition, however, faltered and the co-mingled norms of Westminster democracy and federalism were soon to take backseat to political illliberalism. Yet, Bhutto failed to understand that his government’s survival depended on strengthening the emergent democratic institutions and norms. Bhutto’s intolerance of opposition slowly eroded the parliamentary democracy enshrined in the 1973 constitution. By weeding out critics

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among fellow PPP leaders (even founder members), Bhutto heightened internal schisms and weakened the party (Jones 2003: 450). The prime minister also ignored the importance of consensus-building in parliament. Cabinet responsibility to the legislature was replaced by ministerial accountability to the chief executive himself. The political neutrality of the civil service was eroded as it was used to further the government’s interests and the executive repeatedly infringed on the independence of the judiciary. Despite Bhutto’s violation of democratic norms, the arrangements put in place by the 1973 constitution could still have survived had he not chosen to strengthen the Pakistani military, the chief opponents of democratic governance. The prime minister’s misguided belief that national security needed a strong army was to lead to his downfall. In 1973, at a time when 90 000 prisoners of war remained in Indian custody and the memories of the military’s attacks on Bengali civilians were still fresh, the political elite had imposed stringent constitutional restrictions on the military’s functioning. To ensure civilian control over the military, Bhutto also took a number of other steps. He dismissed a number of key military figures, including the chiefs of the army and air force; fixed tenures for service chiefs; and created para-militaries to avoid using the army in internal security operations (Shafqat 1997: 174–5). But the contradictions of Bhutto’s personality undermined these essential first steps to establishing firm civilian control over the state apparatus. Under Bhutto’s patronage, the military was again expanded and strengthened. But resentful of Bhutto for his attempts to assert civilian control over the military, this support did little to change the military’s animosity towards his party and suspicions of his government (Siddiqui 1996: 225).18 The Generals’ belief that they were more competent to run the country and their contempt for civilian politicians took on a dangerous shape when Bhutto undermined yet another integral part of the constitution, the federal provisions for political decentralisation. Unwilling to accept the opposition-controlled Balochistan provincial government, Bhutto used his constitutional powers to dismiss the elected government in Balochistan.19 When this disruption of the democratic process fuelled anti-government sentiments in both Balochistan and the NWFP, Bhutto’s use of the armed forces to quell Baloch alienation increased his reliance on the military, while the military’s expanded authority encouraged its political ambitions (Noman 1990: 67–8).

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Confident they could depose a civilian ruler for whom they had little more than contempt, the military high command was given an opportunity to intervene in mid-1977. The prelude to that intervention was a national election, held in March 1977. Opposition accusations of electoral rigging were accompanied by political protests, spearheaded by the religious right at the military’s behest.20 On 5 July 1977, Army Chief General, Mohammad Zia-ul-Haq, ousted the elected government and imposed martial law. Pakistan’s brief fling with Westminster was over.

Discarding Westminster again 1977–88 Ousting an elected government was the simplest of tasks for the military. A more daunting challenge lay ahead: gaining popular acceptance for the coup. Zia, like Ayub, attempted to justify the coup and to legitimise military rule on the grounds of civilian ineptitude and democratic reform. ‘My sole ambition’, Zia declared, ‘is to organise free and fair elections which would be held in October this year [1977]. Soon after the polls, power will be transferred to the elected representatives of the people’ (Rizvi 1976: 240). Since Zia, unlike Ayub, had ousted a democratically elected government, his justifications were greeted with scepticism and demands, particularly by the ousted PPP, for new elections and a restoration of representative government. Moreover, unlike the 1950s, the legitimacy of government was now measured against notions of Westminster parliamentary democracy as expressed in the 1973 constitution. To neutralise civilian opposition and ensure regime survival, Zia had little choice but to retain the 1973 constitution. Although the constitution was not abrogated after the coup, certain sections were held in abeyance. According to Zia, the military had only intervened out of necessity and would restore elected rule within the constitutionally defined timeframe of 90 days (Hussain and Hussain 1993: 4–5). At the same time, the military regime pressured a compliant superior judiciary, irked by Prime Minister Bhutto’s infringements of its autonomy, to provide legal cover to the coup. Although the Supreme Court sanctified the coup on the basis of the law of necessity, the judgement added: … the court would like to state in clear terms that it has found it possible to validate the extra-constitutional action of the chief martial law administrator not only for the reason that he stepped in to save the country at a time of a grave national crisis … but also

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because of the solemn pledge given by him that the period of constitutional deviation shall be as short a duration as possible and that during this period all his energies shall be directed towards creating conditions conducive to the holding of free and fair elections leading to the restoration of democratic rule in accordance with the dictates of the constitution (Noman 1990: 123).

Zia directed his energies instead at consolidating military rule, and to this end sought domestic legitimacy for continued rule. Hoping to appeal to Islamic sentiments to justify military rule, Zia shifted his rhetoric from the secular to the religious. He now emphasised that his primary mission was to replace Westernised democracy with an Islamic system of government, the Nizam-e-Mustafa (Rizvi 1976: 247–9).21 Zia also decided to eliminate his chief civilian opponent, Zulfikar Ali Bhutto, at the same time formally coopting the religious right, who had already served an invaluable service by spearheading the revolt against the PPP government. In April 1979, Bhutto was executed, after the Supreme Court judged him guilty in a concocted murder case. The execution of Pakistan’s first elected prime minister by a Punjabi-dominated military sparked popular dissent, particularly in Bhutto’s home province, Sindh. Even thought the majority province of the Punjab remained calm, there too the PPP had an impressive support base. The external environment, however, was more than conducive to direct military rule as the United States and other influential external powers rewarded the Pakistani military for services rendered in the war against the Soviet forces in Afghanistan. As military and economic assistance poured into Pakistan, the army chief could be confident of the continued support of the armed forces (Hussain and Hussain 1993: 71–2). Yet external support alone could not ensure regime stability. With mounting concerns over the spread of popular unrest, Zia was forced to fall back upon democratic rhetoric and constitutional manipulations to ensure regime consolidation. Like Ayub, Zia devised a non-party local government system with the dual objectives of gaining a civilian clientele and dividing and ruling his political opponents (Asia Report no. 77, 2004: 3–4). Violating the constitutional procedure for presidential elections, Zia held a rigged referendum in December 1984 to extend his self-assumed post of president for five years. At the same time, he retained the post of Chief of Army Staff. In February 1985, the military regime held party-less elections for the central legislature.

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Following the elections, Zia promised to transfer power to civilian hands but only after parliament approved a number of amendments to the constitution and indemnified all acts of the military government. A total of 67 of the constitution’s 280 articles were amended, drastically distorting the principle of parliamentary sovereignty and transferring power to the president from the prime minister. The most significant amendment, Article 58-2(b) gave the president the power to dismiss elected governments and to dissolve parliament. The concept of a responsible and collective cabinet, accountable to parliament, became irrelevant since the cabinet worked at the president’s behest. To ensure his continued control of the military, the president took upon himself the power to appoint the military chiefs. Judicial independence ceased as the president assumed powers not just to appoint judges of the superior courts, but also to determine the assignments of judges of the high court and to dismiss them if they rejected his instructions. The president assumed the power to appoint provincial governors who could then appoint provincial chief ministers and dismiss provincial governments, at the president’s behest (Kennedy 1996: 1). The head of state was now the fountainhead of all power, emasculating the prime minister and rendering the parliament ineffective. Since Zia’s parliament was elected on a non-party basis, another attribute of parliamentary democracy was absent. Although parties penetrated parliament through proxies, the non-party nature of parliament made for patron–client relations, with a new generation of politicians dependent on the military’s support for their political survival (Shafqat 1997: 214). Parliament was dependent on presidential sanction for its own existence and reduced to a rubber stamp. But even the existence of this partially representative forum, with politicians who had per force to respond to the demands of their civilian constituents, set the stage for confrontation with the military. Prime Minister Mohammad Khan Junejo attempted to test the limits of his authority by playing an active role in foreign policymaking, questioning the military-dictated policy towards Afghanistan and supporting parliamentary enquiries into defence expenditure. When Junejo launched an enquiry into an explosion at a military depot in Rawalpindi, the army’s headquarters, which had resulted in several civilian casualties, President Zia already irked by the parliament’s budding political activism, clamped down. Using his new

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constitutional powers, Zia dissolved parliament in May 1988, and, as in the past, promised elections by November 1988, but these too would be held on a non-party basis (Akhund 2000: 16–17). However, before the military leadership could again devise a new political order, Zia and a number of his senior generals were killed in a mid-air explosion in August 1988, bringing an end to the longest reigning military regime in Pakistan’s political history.

A further distorted transition to Westminster 1988–99 If parliamentary democracy was sidelined during Zia’s rule, the durability of Westminster norms was demonstrated by the revival of a democratic transition in the 1990s. Although this transition was to stall a decade later, and democratic principles were often ignored by elected civilian governments, the revival of Westminster traditions and institutions demonstrates the extent to which this model of government has popular support and domestic legitimacy. Zia’s abrupt departure triggered a debate within military circles on the pros and cons of retaining direct power. In 1988, the internal and external environments were no longer as conducive to direct military rule. The end of the Cold War resulted in a rethinking among US policy circles of the merits of supporting military regimes. Since the military’s erstwhile Western patrons projected democratic governance as the only desirable form of government, retaining direct power would have strained that relationship (Hussain and Hussain 1993: 38–9). More significantly, domestic conditions were even less conducive. Over a decade of military rule had adversely affected the army’s standing among a civilian population who were no longer willing to accept continued military control. Retaining direct power would have only further eroded public confidence in, and increased popular opposition towards, the military. The military high command opted for a tactical withdrawal and a democratic transition, but safe in the knowledge that Zia’s constitutional distortions provided them a veto over any civilian government. The first step towards the democratic transition appeared to revive Westminster parliamentary traditions. In November 1988, national elections were held on the basis of universal franchise and first-past-the-post voting. The legitimacy of a civilian successor to military rule was thus ensured since regime change was seen as legitimate. But, unwilling to risk

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an erosion of their dominance the military decided to load the electoral dice. With a preference for conservative political parties and the religious right, Zia’s successor, General Aslam Beg, used the military’s intelligence services to create and subsequently strengthen a rightist alliance. Both the Pakistan Muslim League (PML) and the Islamic Democratic Alliance (IDA) were sponsored and financed by the military (Rais 1989: 203). Given the extent of popular resentment of over a decade of military rule, the high command did not resort to all out electoral manipulation. Yet, despite selective rigging and sponsorship of conservative parties, the PPP, the military’s longstanding civilian nemesis, now headed by Bhutto’s daughter, Benazir Bhutto, won a plurality of National Assembly seats. Conscious that overriding PPP’s claim to government would undermine the legitimacy of the electoral exercise, but equally motivated by the desire to retain indirect control over the new system, the military high command delayed the transfer of power to civilian hands. To ensure the PPP government could be firmly controlled and that policymaking would remain in the military’s ambit, Bhutto was told to accept a number of pre-conditions. The military’s demands included acceptance of its institutional autonomy and control over sensitive areas of policymaking including security policy. The military high command also demanded the retention of General Zia’s Senate Chairman, Ghulam Ishaq Khan, as president.22 Only after she accepted these preconditions was Bhutto allowed to form government. The military now claimed to have fully transferred power to civilian hands. Bhutto’s acceptance of the military’s demands was based on the belief that attaining power would enable her government to assert its control incrementally over the military and help the party expand its support base. This was, however, wishful thinking since the military’s preconditions were to distort the system of parliamentary democracy even before it was fully restored. The elected government’s inability to check the military’s interventionist policies towards neighbouring India and Afghanistan deprived the politicians of an opportunity to curb defence expenditure. The government’s acceptance of the military’s internal autonomy also violated a basic precept of parliamentary democracy, civilian control over the military. Bhutto’s fatal mistake, however, lay in her acceptance of the military’s candidate for the post of president – a person who could dismiss her government under the new constitutional amendments. Bhutto was also unable to

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revive the former constitution since any constitutional amendment required a two-thirds parliamentary majority (Akhund 2000: 75 and 129).23 With a hostile president and facing an equally hostile opposition in parliament, the PPP government was doomed to fail. Although Bhutto abided by the terms of her agreement, public memories of the brutalities of military rule gradually receded and the military regained a measure of domestic legitimacy. The high command became increasingly impatient with their behind-the-scenes control. Guided by their animosity towards Bhutto’s PPP, the military first encouraged the PML-led opposition to challenge the government and then ousted her by presidential decree in 1990 (Shafqat 1997: 230–1). There was little popular dissent, partly because of Bhutto’s failure to deliver on electoral promises, such as the provision of basic services. Establishing a shadow military government, headed by an ally, President Ghulam Ishaq Khan, the military once again assisted their preferred civilian parties, the PML and IDA, to gain a parliamentary majority by clamping down on the PPP (Richter 1993: 25–7). Westminster norms were thereafter ignored as successive civilian governments were dismissed before they completed their terms of office, with each dismissal engineered by the military, using presidents willing to do their bidding. Parliaments became ineffective with all meaningful decision-making lying outside their control. Divide-andrule tactics served successive military chiefs well, while the oppositional parties were not a government-in-waiting, but more than willing to undermine democratic principles for crumbs at the military’s table. There is little doubt that the political parties at the central and provincial levels shared a large portion of the blame in this distortion of Westminster. If the PML was responsible for assisting the military in dismissing the PPP government in 1990, the PPP was more than willing to pay its opponent in kind by siding with the military in dismissing the PML government in 1993. In 1996, the PML retaliated again by conniving with the military in the dismissal of the second Bhutto government. Although elected to power, these governments ignored some of the main conventions of Westminster: cabinet collective responsibility to parliament, civilian control over the armed forces, respect for political opposition, judicial independence and the neutrality of the civil bureaucracy. Parliamentary sovereignty was challenged by the president’s power to dismiss elected governments and legislatures, at least until the two

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mainstream political parties, the ruling PML government and its opposition finally joined hands in parliament in April 1997 to remove 58-2 (b) from the constitution. Thiteen amendments also empowered the prime minister by making his advice binding on the president in the appointment of governors, removing the powers of governors to dismiss provincial parliaments and vesting in the prime minister the power to appoint the heads of the three branches of the armed forces (Zafar 2001: 4). Military interventions, short-term governments and successive elections contributed to public apathy about regime change. Corruption, ineptitude and political intolerance characterised the behaviour of the two dominant parties both in power and in opposition. Yet the democratic transition could have consolidated had it not been for the military’s interventions and the superior judiciary’s acceptance of these interventions. Responsible government could have emerged if the parties had been committed to achieving it, if governments had been allowed to finish their full terms of office, and if regime change had then taken place through free and fair elections. The military leadership, however, summarily dismissed successive governments, stifling democratic institutions and thwarting efforts to impose civilian authority over the military. The judiciary appeared complicit: more often than not providing sanction for the military’s actions, maligning ruling politicians as corrupt and criticising civilian governments for their failure to control domestic unrest (Patel 2000: 180–94).24 By 1999 the democratic transition seemed to be gathering momentum. There was growing pressure for party reform. Ruling parties grew more conscious of the importance of retaining electoral support as voters switched loyalties to punish incumbents for not delivering on their electoral pledges. Despite the distortions, the democratic transition had gained popular support. The legitimacy of elected representatives was not in doubt. After the 1997 constitutional amendments the elected government now exercised ‘supreme constitutional authority’ (Waseem 1998: 2). The judiciary too became increasingly protective of its independence, unwilling to accept executive infringements on its authority (Ahmed 1997: 422–3). A genuine two-party system seemed to emerge even though party leaders were unwilling to allow internal democracy within their parties (Rais 1989: 9). And parliament was beginning to be willing to question military policies – a stance that would soon bring the democratic transition to an abrupt end.25

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The return of the man on horseback In October 1999, General Musharraf imposed martial law. The botched Kashmir episode formed the coup’s backdrop. Condemning the misadventure in parliament, opposition politicians demanded accountability. The prime minister disavowed full knowledge of the operation, laying the blame squarely on the military’s shoulders. Since the high number of casualties and the unconditional withdrawal from the Indian-administered sector had also created discontent within military circles, the high command decided to oust the civilian government. The military’s justifications of the coup focused on the threat to national security posed by Prime Minister Nawaz Sharif, citing his alleged attempts to hijack Musharraf’s plane and to subvert the armed forces as evidence.26 The coup did not result in public demonstrations and protests. Instead, some prominent opinion-makers chose to join hands with the coup-makers. While public apathy and limited support for the coup can be attributed to the failure of the elected government to deliver good governance, it would be incorrect to attribute it to domestic support for military rule (Sattar 2001: 406). Quite the reverse, Pakistanis displayed strong public support for legitimate regime change through free and fair national elections.27 Well aware that the absence of legitimacy could threaten regime survival, Musharraf quickly changed the thrust of his justifications for the coup from national security threats to the absence of good governance. Targeting both his main civilian opponents (PPP and PML), Musharraf pledged to restore democracy and deliver good governance (Sattar 2001: 406).28 It was this rhetoric that allowed the United States to justify its support for the military government after the terrorist attacks of 11 September 2001, giving unqualified support to Musharraf for services rendered in the war against terrorism (Jones 2002: 3). Following General Zia’s footsteps, Musharraf did not abrogate the constitution but held it in abeyance, pledging the restoration of true democracy. He then took measures that were the antithesis of democracy. These included the creation of a sham local government system used to consolidate military rule and undermine the previous federal framework. Non-party and indirect local elections were used to weaken the main parties and to create a local clientele dependent on the military regime. Musharraf also held a referendum to extend his self-assumed position as president.

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Knowing the military ruler lacked popular support, the military government resorted to massive rigging in an exercise that was boycotted by the vast majority of the electorate (Abbas 2002: 30). Although Musharraf claimed to have received a popular mandate for a five-year extension of his presidential office, legitimacy continued to elude the military ruler. Although elements of the judiciary legitimised the coup and gave Musharraf the right to amend the constitution, this judicial sanction itself lacked legitimacy since the chief justice and a majority of the bench had refused to swear an oath of allegiance to the junta, and were removed from their posts as a consequence.29 The court’s conditional approval of the 1999 coup, was made contingent on the restoration of democracy within a threeyear period. And although Musharraf was given permission to amend the constitution, the court attached preconditions. These included the retention of the democratic, parliamentary and federal framework of the 1973 constitution (Khan 2001:937).30 The court’s efforts to retain at least an appearance of independence were soon thwarted by Musharraf, who proceeded, like his predecessors, to distort the spirit and the substance of the law. In August 2002, Musharraf enacted a Legal Framework Order (LFO), amending 29 articles of the 1973 constitution. Claiming judicial sanction, Musharraf declared his constitutional amendments were ‘essential to introduce real democracy in Pakistan’ which was moving ‘from democratic dictatorship to elected essence of democracy’ (Asia Report no. 40, 2002: 21). Validating all actions of the military government, the LFO also included a five-year extension of his presidential term and the retention of the dual posts of president and chief of army staff.31 Above all, the LFO again shifted power from the prime minister to the president – in effect reestablishing General Zia’s changes to the constitution. The ease with which civilian governments can be ousted and the constitution distorted, is sufficient proof that the locus of power resides with the military bureaucracy. But military governments have also been forced to concoct torturous mechanisms to ensure regime survival and legitimacy, evidence of deeply rooted and popularly internalised notions of Westminster government. With his legitimacy in doubt, Musharraf reluctantly opted for national elections. Taking no chances, however, the military government first carefully prepared the grounds for a manipulated and controlled contest. The military chose to use the issue of corruption and accountability as a means to eliminate its political opponents, while exempting itself and

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pro-government politicians from investigation. The military had already eliminated prime ministers Sharif and Bhutto from the electoral process, the former exiled through a deal struck with the military, the latter in self-exile, unwilling to face charges of corruption in partisan courts.32 With their leaders removed and other party operatives threatened, the PPP and PML appeared increasingly incapable of posing a political challenge. Musharraf’s bag of tricks contained other surprises, including an education disqualification clause that eliminated almost half of the members of the 1999 parliament who did not have the equivalent of a bachelor’s degree. He allowed supportive political parties to campaign freely, and patronised the religious right while curbs were placed on the mainstream oppositional parties. Degrees from religious seminaries were made the equivalent of formal education, allowing the mullahs enormous latitude in choosing their electoral candidates (Asia Report no. 49, 2003: 16–17). But Musharraf was in for an unpleasant surprise. In the 2002 poll the PPP gained the largest percentage of the popular vote (from a low voter turn-out). Using carrots and sticks, the junta shored up a pro-military majority in parliament with defections from other parties, particularly the PPP, and, using divide-and-rule tactics, formed coalition governments in Sindh and Balochistan. The capture of central government by the proMusharraf forces, led by Prime Minister Jamali, did not easily translate into legitimacy for the military-run government. The electoral manipulation resulted in international observers describing the election as ‘deeply flawed’, further discrediting the regime (Asia Report no. 49, 2003: 15). Moreover, the military’s failure to successfully erode the popular base of its political opposition continues to challenge regime consolidation. Although Musharraf has managed to have his LFO included in the constitution, military rule remains fragile. For the military there appears no exit strategy in sight, especially now it has United States support in return for its role in the war against terrorism.33 On the contrary, Musharraf appears bent on creating a military-dominated system, pushing through a bill in parliament for the creation of a military-dominated National Security Council in April 2004, formally legitimising the military’s political role for the first time in Pakistan’s history.34 Although Musharraf has pledged to step down as army chief by the end of 2004 in return for the extension of his presidency to 2007, his decision to do so will depend on the military high command’s assessment of the

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particular costs and benefits. If Musharraf is perceived to deliver external goods to the armed forces, as at present, senior commanders might support yet another extension of his term of office. Yet, despite attempts to perpetuate the military’s political dominance, regime survival remains far from certain, given the absence of popular legitimacy for authoritarian rule in Pakistan.

The way forward Pakistan’s model of government is anything but democratic or parliamentary, and a crisis of legitimacy appears to have reached breaking point. In the three decades since the 1973 constitution came into being, the military has repeatedly subverted it. Aside from the coups of 1977 and 1999, when elected governments were ousted and replaced by direct military rule, the military has subverted the democratic process repeatedly, removing government after elected government during the democratic transition of the 1990s. The tussle between proponents of authoritarian rule and democratic governance is now stalemated, with the former capable of retaining power but lacking domestic legitimacy, and the latter, retaining a credible, popular support base but incapable of asserting effective control over the military. Distrust is rife. Moreover, there is no evidence to support arguments made by Musharraf’s domestic supporters and external benefactors that the current political set-up is a halfway house, somewhere between military rule and civilian governance, and that it will ultimately transform into a fully representative system. Musharraf’s machinations have at best created a civilian facade to justify its hold over power – but the veneer is fast wearing thin. Centralised authoritarian rule and the absence of checks and balances characterise the present political system. The president, whose own election has little constitutional validity, has become all-powerful; the prime minister and his cabinet is hostage to presidential whims while the judiciary plays at best a subordinate role to executive authority. Civil bureaucrats serve as a subsidiary arm of the military government; the military bureaucracy rules supreme. There is little doubt that Pakistan’s political future remains fraught, and regime stability remains contingent on a return to an unadulterated democracy and the adaptation of Westminster contained in the 1973 constitution. Today, dissenting voices within the politically peripheral and fiscally

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disadvantaged units of the federation believe that even the constitution’s restoration in its true form is insufficient if the federation is to survive. Ethno-regional Sindhi, Baloch and Pashtun political parties support a reopening of the constitution debate, demanding changes in the distribution of power and resources between the centre and the federating units. Most favour a constitutional formula that would grant equal rights to the units. While this would require a further expansion of federal features in the 1973 constitution, there is still an underlying consensus among Pakistan’s political elite that the Westminster model of parliamentary democracy, adapted to local conditions, best serves the country’s governmental needs. It is yet to be seen whether this political consensus is embraced by the powerful military decision-makers. The longer the democratic transition is stalled and the more constitutional distortions are introduced to legitimise and prolong military rule, the more likely that the crisis of governance in Pakistan will become an endemic feature of its political landscape.

Notes 1 2

3

4

5

6

7

The Constituent Assembly was also given the task of framing Pakistan’s first constitution. These included the East Bengal-based Jinnah Awami Muslim League (later known as the Awami League), which was to become the Muslim League’s main opposition. As early as 1954, Bengalis, who made up 55.4 per cent of Pakistan’s population, agitating for the decentralisation of power, voted for the ruling Muslim League’s opposition, the United Front, in provincial elections in East Bengal, the League’s first defeat in an electoral contest. In 1953, for instance, Governor General Ghulam Mohammad, a former bureaucrat, dismissed Prime Minister Khwaja Nazimuddin. At the governor-general’s behest, the central legislature, the constituent assembly appointed Muhammad Ali Bogra prime minister. In 1954, Ghulam Mohammad, having previously dismissed the prime minister and dissolved the constituent assembly, responsible for drafting what would have been Pakistan’s first constitution, created a ‘Cabinet of Talents’, giving Army Chief Ayub Khan the post of defence minister. General Ayub Khan had played the lead role in Pakistan’s entry into two Cold War alliances, the Central Treaty Organisation and the South-East Asia Treaty Organisation. Disavowing any political ambitions on the part of the military, Ayub claimed that ‘there was no alternative’ to military rule except the disintegration and complete ruination of the country’ because of ‘self-seekers, who in the garb of

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political leaders, have ravaged the country or tried to barter it away for personal reasons’. General Ayub Khan’s first broadcast to the nation, 8 October 1958. See also Devolution in Pakistan: Reform or Regression?, Asia Report, no. 77, International Crisis Group, Brussels, 22 March 2004: pp. 3–4. The president also had the power to dismiss provincial governors who in turn could appoint or dismiss provincial executives in both East and West Pakistan. Provincial legislatures had only limited legislative and fiscal powers. Resentment against the high command was rife in the military, sections of which were on the verge of mutiny when the decision was taken by the Army’s General Headquarters to transfer power to civilian hands. The federation is composed of four units: the provinces of Balochistan, Punjab, Sindh and the North West Frontier Province (NWFP). The ruling Pakistan People’s Party’s main opposition in parliament, the National Awami Party, strongly supported autonomy for the provinces in the consultations that led to the adoption of the 1973 constitution. Article 90, 1973 Constitution. Seven prime ministers were dismissed from office between 1947, Pakistan’s independence, to 1958, when the military took over direct power. The 1973 constitution provided for an upper house that was indirectly elected, with seats allocated equally to the four provinces, Balochistan, the NWFP, Punjab and Sindh, with the objective of ensuring that the smaller federating units would have a means of checking the power of the Punjab, where a majority of Pakistan’s population resided. Article Six states: ‘Any person who abrogates or conspires to abrogate the constitution by use of force or show of force or by other unconstitutional means shall be guilty of high treason’. The PPP’s four basic principles were ‘Islam is our faith; democracy is our polity; socialism is our economy; all power to the people’. A good example of the military’s perceptions of Bhutto is a former military officer’s description of the prime minister. ‘Noted for his vindictiveness and inordinate passion for fixing up individuals and institutions’, the Prime Minister, says Brigadier A. R. Siddiqi ‘picked the military establishment as his prime target’ (1996: 225). The NWFP government, also controlled by a National Awami Party–Jamiat Ulema Islam coalition resigned in protest. The Pakistan National Alliance, led by the religious right, was patronised by the military. Zia’s Islamisation agenda included the creation of a body of Islamic legislation and parallel Islamic courts. As Senate Chairperson Khan had assumed the post of president after Zia’s death, but contrary to the spirit of the 1973 constitution, the Army chief made that appointment. Asked if she would reduce the defence budget, Prime Minister Bhutto replied, ‘Not unless we want the army to take over again’. For a critique of the superior courts’ judgments on the dissolution of elected governments during the democratic transition of the 1990s, see former

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Supreme Court justice Dorab Patel’s Testament of a Liberal. 25 For example, in 1999 following an abortive misadventure across the line of control dividing Pakistan and Indian-administered sections of Kashmir, parliamentarians were strongly critical of the military-led action in the National Assembly, demanding answers from the military leaders. The fall-out from the so-called Kargil conflict was a significant precursor to the coup of 1999. 26 Musharraf had overseen the October 1999 coup from mid-air, flying back to Pakistan from a visit to Sri Lanka, following his dismissal by the prime minister and replacement as army chief. 27 The lack of public acceptance of the coup was demonstrated during Musharraf’s presidential referendum when most citizens showed their disapproval by boycotting it. Independent observers placed the turnout at between 5 to 10 per cent. 28 This, Musharraf said ‘is not martial law, only another path towards democracy’, pledging that the military would restore power to civilian hands. 29 The regime had asked all judges of the superior courts to accept the Provisional Constitution Order, which disallowed them from challenging any of Musharraf’s orders. 30 The Supreme Court ruling said, ‘No amendment shall be made in the salient features of the constitution, i.e. independence of the judiciary, federalism, parliamentary form of government blended with Islamic provisions’. 31 Text of Legal Framework Order 2002 in Dawn, 22 August 2002. 32 The military government claimed that Sharif had accepted self-exile in Saudi Arabia for 10 years, under a deal reached in December 2001, in return from his release from prison, facing a case of hijacking General Musharraf’s plane. 33 The Bush administration has announced a five-year $3 billion aid package for Pakistan, half of which would be allocated for defence. ‘US, Pakistan to discuss $600 million package’, Dawn, 17 March 2004. 34 Headed by the president, its members including the chairman, joint chiefs of staff committee and the three heads of the armed forces, the NSC’s mandate includes ‘matters of national security including the sovereignty, integrity, defence, security of the State and crisis management’. In this military dominated Council, the opinions of civilian members can be easily dismissed. They include the prime minister, the chairman of the senate, the speaker and the leader of the opposition in the National Assembly, and the chief ministers of the provinces. Text of NSC bill in the News, 3 April 2004.

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Transplanting Westminster to Nepal: The stuff of dreams dashed

4

Patrick Weller and Bishnu Sharma1

n 1934 five young Nepalese men, led by Tanka Prasad Acharya, met to form the country’s first political party, the Nepal Praja Parishad (NPP). Nepal was ruled by the despotic Ranas, a family who had made the prime ministership hereditary, had hidden the monarch from public view as a mystical deity beyond common touch, and had kept the country backward, poor, isolated and uneducated. The five idealists wanted to overthrow the Ranas and introduce a democratic and parliamentary system. Some of them had been students of Durbar High School, the only high school in the country. There they had been taught British history. As Ram Hari Sharma, the only surviving member of that group, explained in 2003, they were taken with the image of prime ministers who had to stand up in parliament to answer questions about the government’s actions and explain how the budget would be spent. The Ranas had to do neither. So, they advocated the introduction of British constitutional monarchy and parliamentary government; it was the only model they knew.2 Forming a political party under the Rana’s regime was dangerous. Political activities had to be conducted underground. In 1940, Tanka Prasad Acharya published four pamphlets advocating the overthrow of the

I

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Rana regime. They also made contact with the estranged king to let him know what they were planning. The party leaders were hunted down and arrested. Five ringleaders, including two of the original five, were tortured and executed. They were not forgotten; the martyrs’ memorial is prominent in the middle of Kathmandu. Tanka Prasad Acharya and Ram Hari Sharma survived only because they were Brahmins and the Ranas could not execute members of that caste. They spent a decade in prison. They were released only after the king and the parties in exile combined to overthrow the Ranas in 1950. But by then there was a rival political organisation; namely, the Nepali Congress party (NC). Faced with this challenge, the NPP never gained extensive support, although Tanka Prasad Acharya was prime minister for a period from 1956–58. Their dream survived. As democratic institutions rose and fell, debate continued for the next 40 years about how, and whether, a multi-party parliamentary democracy could be created and be made to work in a traditional society so very different from Britain.

The exigencies of successive constitutions Even if the original dream was of government based on the Westminster model, the country’s successive constitutions moved only gradually from royal prerogative to democratic control. This process occurred despite many setbacks and reversals, until the current constitution of 1990 eventually incorporated many of the traditional principles of Westminster. Nepal has had five different constitutions so far. The first constitution was proclaimed by the Rana Prime Minister, Padma Sumsher, in 1948, giving all power to the prime minister. King Tribhuvan proclaimed the second constitution as the Interim Government of Nepal Act in 1951 after the overthrow of the autocratic Rana regime that lasted 104 years. The replacement constitution awarded supreme executive, legislative and judicial powers to the king, who exercised his executive authority with the advice of the council of ministers appointed by him. The king had final authority to approve or disallow any legislative measure. The task of introducing a democratic political system in a country with no democratic tradition or experience was not easy. However, in 1959, King Mahendra promulgated the third constitution under which general elections for a national assembly were held. Sir Ivor

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Jennings was a consultant in drafting the constitution. He was the great historian of British government with multi-edition tomes on Cabinet Government (1936), Parliament (1939) and The British Constitution to his credit. He also had been Vice-Chancellor of the University of Colombo in the 1950s and was well aware of the particular conditions in which he was advising. The 1959 constitution vested executive power in the king, who was advised and assisted by a council of state (Raj Sabha) and a council of ministers (cabinet). The council of state had an advisory role to the king on legislation and also had the responsibility of handling the details of regency and succession in the event of his death or disability. The council of ministers, headed by a prime minister, had the responsibility of providing the general direction and control of the government. They were required to command a majority in the lower house of parliament. The king remained an integral part of the legislative arm of the government. The parliament consisted of the king, the House of Representatives (109 popularly elected members) and the National Council (36 members of whom half were elected by the house and half were nominated by the king). To become law, bills required approval from the two houses, followed by the assent of the king. The constitution granted the king wide latitude to invalidate the parliamentary system. The king could suspend the operation of the cabinet and perform its functions himself if he determined that no person could command a majority in the house as prime minister. In the event of a breakdown of the parliamentary system or of any one of a number of emergency conditions, the king could suspend either or both houses of parliament and assume their powers. The first general elections for the House of Representatives were then held in February 1959. The Nepali Congress (NC) won an absolute majority. B. P. Koirala became the first elected prime minister of the country. However, in December 1960, King Mahendra invoked the emergency powers to dismiss the NC government on the grounds it was not acting in the interests of the people. The 1959 constitution was then abolished and a fourth constitution reestablished the crown as the real source of authority. The 1962 constitution was amended several times to increase the power and prerogatives of the monarchy against the increasing popular demand for liberalisation of the political institutions and processes. Parties were outlawed and elections were held for local councils (Panchayats) that had no real authority and

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through which the monarch’s absolutism was expressed. Following political demonstrations and general unrest, in May 1979 King Birendra announced his intention to call a nationwide referendum to determine the future form of government. The referendum offered two choices – a continuation of the party-less Panchayat system with some prospects for further reform, or a multi-party system. The referendum was held in May 1980 – at this stage the verdict favoured the continuation of royal rule through the Panchayat system with 54.7 per cent endorsement. Following the 1980 referendum, King Birendra decided to retain the 1962 constitution but to liberalise the political system by providing for direct popular election of the National Assembly. The government also then permitted illegal political parties, such as the NC, to operate subject to some minimal constraints. Elections were formally still held on a party-less basis, but many candidates now ran informally and openly as members of political parties. However, these moves neither satisfied the supporters of a multiparty constitutional monarchy nor several radical leftist factions. In February 1990, a coalition of centrist and leftist opposition forces began a campaign demanding basic political reforms and forcing the king to promulgate the fifth constitution in 1990.

Brave hopes: The constitution of 1990 Following the demise of the Panchayat system, King Birendra appointed an independent ‘constitution drafting committee’ on the recommendation of the interim government of 1990. It was chaired by the Chief Justice of the Supreme Court, Biswa Nath Upadhyaya. All the major groups were represented, like the NC and the communists, and the body was supplemented by a number of independent people from legal backgrounds. The committee was entrusted with the responsibility for preparing a new constitution to accommodate the demands of wide range of people/groups. The committee members consulted widely in search of a consensus among the democratic forces of the country, along with the religious and social groups. Contentious issues related to the power and authority of the king, whether Nepal should be a Hindu kingdom, what emergency powers should exist, and who should command the army. These issues divided the main protagonists, generating several rounds of heated discussion. At one stage the prime minister was given a draft constitution developed in the palace; it was ostentatiously ignored.

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Although Nepal had never been a British colony, the political foundations of the constitution were heavily influenced by Westminster practice. The committee looked back to the Jennings-inspired constitution of 1959; after all, democracy was being ‘restored’, not created. But now for the first time in Nepal’s history, the constitution vested sovereignty in the people, rather than the monarch. Extraordinarily, it declared Nepal as a multiethnic, multilingual, democratic, independent, indivisible, sovereign, Hindu, constitutional monarchical kingdom! The precise terminology was considered important. For instance, a long debate ensued on whether Nepal should be a ‘Hindu, constitutional monarchical kingdom’ or a ‘Hindu constitutional monarchical kingdom’. The comma was a matter of dispute; in the end it was agreed to leave it ambiguous. Although Nepal is officially regarded as a Hindu kingdom, the constitution gives religious and cultural freedom to other religious groups such as Buddhists, Muslims and Christians. The constitution was designed to legitimise and strengthen the political parties and prevent any repetition of the Panchayat royal rule. It also provided the right to own property; the right to conserve and promote one’s language, script, and culture; the right to education in one’s mother tongue; freedom of religion; the right to manage and protect religious places and trusts; and the right to receive information about matters of public importance. Among other things, the constitution stated that all citizens were equal before the law, and that no discrimination could be made on the basis of religion, race, sex, caste, tribe or ideology. The constitution also guaranteed fundamental political rights to citizens which included: freedom of thought and expression; freedom to assemble peacefully and without arms; freedom to form unions and associations; freedom to move and reside in any part of Nepal; freedom to carry out any profession, occupation, trade or industry; and free press and printing. The constitution gave directives in matters of political, economic and social development, and foreign policy. These policy directives were intended to promote conditions of welfare on the basis of the principles of an open society. The constitution emphasised the people’s participation in governance. It guaranteed a parliamentary system of government and multiparty democracy. It also aimed to establish an independent system of justice with a view to transforming the concept of the rule of law into reality. The constitution was able to be amended by a majority of two-thirds in each

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house of parliament. However, such amendments cannot violate the spirit of the preamble of the constitution that recognises the Nepalese people as the source of sovereign authority. Constitutional amendments must pass both houses of parliament and receive royal assent. The framers of the constitution attempted to limit the authority of the king by prescribing how governments were to be chosen. It was intended to leave no scope for royal initiative, defining who should be called to form a government in all circumstances. But, as the next section shows, even limited scope for emergency powers could be dangerous when the spirit was willing. In November 1990, the king promulgated the new constitution ending almost 30 years of absolute monarchy in which the palace had dominated every aspect of political life and in which political parties were banned. Nepali Congress (NC) won a majority in the first parliament, but after internal divisions the prime minister called an early election in 1994. The new parliament was divided. Initially, the Communist Party of Nepal (United Marxist-Leninist) formed a minority government. After it fell there were a procession of unstable coalitions until the next election in 1999 gave the NC a working majority. It was assisted by the fact that both its major opponents were split and each fraction ran a candidate in most electorates. However, NC’s majority was in parliament, not among the people. Even so, internal rivalry brought changes of leader and later the expulsion of incumbent prime ministers while a Maoist insurgency made the process of government difficult in many of the regions. In 2002, NC Prime Minister Sher Bahadur Deuba asked the king to dissolve parliament. But when, with the support of the other party leaders, he asked the king to postpone the election, on the grounds that it could not be held in the face of national instability, the king sacked him on 4 October 2002 and installed his own prime minister. The king has since ruled without parliament, but in the face of constant demonstrations in 2004 as the parties campaigned for the restoration of parliamentary government.

The king’s enhanced significance and manipulation It is useful to explore the position of the different actors in this nominally constitutional monarchy. Nepalese kings can be far more influential than any British counterpart has been for centuries.

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The Shah dynasty came into power when Prithivi Narayan Shah, the ancestor of the present king conquered Kathmandu valley and laid a foundation for the unification of the country in 1768. However, from 1846 the Rana prime ministers exercised power with the king as a nominal figurehead. King Tribhuvan then joined the people in ending the Rana regime in 1950 and allowing an embryonic democracy to emerge. This is a unique example in world history of a king joining a popular movement to overthrow a tyrannical regime (Raj 2003: 114). However, while the democratic journey of Nepal has faced several obstacles, the significance of the king has increased under the guise of a constitutional monarchy. Article 35(1) of the 1959 constitution declared ‘the executive power of the Kingdom of Nepal shall, pursuant to this Constitution and other laws, be vested in His Majesty and the Council of Ministers’. The king retained the power to declare an emergency if a ‘grave crisis’ arose, but that required endorsement of the parliament within three months. By one account the king was ‘only sharing power formally’ even though the constitution appeared to transfer political power ‘from the hands of the king to those of the elected representatives of the people’ (Kraemer 2000). The written constitution also emphasised real checks and limitations on the royal prerogative. It stated: ‘the powers of His Majesty under this Constitution shall be exercised upon the recommendation and advice and with the consent of the Council of Ministers. Such recommendation, advice and consent shall be submitted through the prime minister’ (Article 35(2)). King Birendra honoured the contract made with the parties in 1990 when the new constitution was brought into being. Not all members of his family were as convinced that royal power should be ceded so readily. Thus, a senior member of the royal family told an international delegation that ‘the Constitution should have provisions for “emergency powers” exercised by the King when politicians are not capable of managing the affairs of state’. [It does, but it still requires approval by a vote of two-thirds of parliament within three months]. The delegation reported that ‘the member of the Royal family whom the team met would prefer the King to have emergency powers on an exclusive basis, not sharing it with the legislature as the Constitution currently stipulates. But this was a private view. No member of the Royal family has formally or publicly demanded any constitutional review to the team’s knowledge’ (IIDEA 1997: 15). It may have been a private view then, when that ‘senior member’ was

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distant from the throne. But in 2001 the crown prince murdered his father, mother, brother and several of his relatives before committing suicide. Thus, the royal massacre brought the king’s brother into power and he exercised the powers he believed he should have. Following the 2001 declaration of a state of emergency, and the dissolution of parliament in May 2002, the king has ruled through a number of puppet prime ministers. In 2002, the king appointed Lokendra Bahadur Chand, a representative of the National Democratic Party or Rastriya Prajantantra Party (RPP), and a carryover from the old Panchayat period. Chand’s party won no seats in the 1999 election. In May 2003 he dismissed Chand and appointed Surya Bahadur Thapa, another RPP leader, who in turn resigned in the face of mounting public protest in May 2004. Both Chand and Thapa had been prime ministers during the Panchayat period.

Party instability Parties play a crucial role in Westminster governments by providing cohesion and direction to government. In Nepal the lack of cohesion in parties has undermined their ability to direct the political machine and has brought endemic instability and distrust in the political system. The constitution has allowed all legitimate political organisations or parties that register with the Election Commission to publicise and broadcast for the purpose of securing support and co-operation of the general public towards their objectives and programs. According to the constitution, a political party is ineligible for registration unless at least 5 per cent of its candidates are women and it obtains at least 3 per cent of the total votes cast in the previous election to the House of Representatives. Originally, political parties were effectively organised underground or from outside Nepal. The Nepali Congress leaders fled to India after the royal coup of 1960. The Communist Party of Nepal (CPN) proved to be highly unstable. It broke into nine or ten CPNs. Indeed, the CPN–UML in 1989 was an uneasy alliance of those fractions. There was always a section that preferred the gun to the ballot box, leading an armed revolt in the 1970s and breaking away from constitutional means in 1995 when their party was refused registration. Its leaders took to the countryside and started the Maoist revolt that has paralysed much of the kingdom. Current-day political parties are organised around families and leaders.

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For most of its 50 years the NC has been led by three Koirala brothers and a senior party leader, Bhattarai. There is no clear means of succession as the septuagenarian leaders seek ways to pass on the baton to their family members. When Deuba, as representative of the next generation of NC leaders, was twice prime minister, they sought successfully to undermine his governments. The first parliament after 1990 ended prematurely because of internal NC divisions. After the 1999 election the NC had a majority but no stability; Koirala, Bhattarai and Deuba successively headed NC governments that collapsed through internal division. A common complaint was that even if the parties demanded democracy for the country, they did not extend that desire to the internal activities of the parties. They were not prepared to put the leadership up to election or to allow internal party democracy. The leaders of the ‘democratic parties’ were not prepared to listen to the interests of the diverse groups and accommodate their interests in their process of governance. The leadership’s abuse of authority within the party was extensive. Leaders made and often ignored their own rules. When Koirala expelled Prime Minister Deuba from the NC, he did not follow the rules of his own party. Parties are not subject to the normal legal provisions on organisations.

Disputed legitimacy through the electoral process The electoral system was intentionally kept simple. Nepal enjoys universal, equal and direct suffrage and secret voting. Every Nepali citizen who is 18 years of age or over and a permanent resident of a constituency has the right to vote. Every voter is entitled to vote only in the constituency where his or her name is registered. Voting is optional. Missing names or inclusion of the same name on several lists are some of the problems of the Nepal’s electoral processes. The introduction of voting cards, important for better controlling and fairer elections, has only just begun. The lower house is elected by a plurality system in single-member constituencies. The elections are conducted, supervised, directed and controlled by the Election Commission appointed by the king on the recommendation of the constitutional council. The constitutional council consists of the prime minister, the chief justice, the speaker of the House of Representatives, the chairman of the National Assembly and the leader

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of the opposition (that is, the head of the oppositional party with the greatest number of seats). Election commissioners must not be members of any political party. The turnout has been quite high, with between 61 and 67 per cent of the 13.4 million voters turning out in each of the three elections to date. Given the high level of illiteracy, the electorate shows an understanding of the political circumstances. Before the 1999 election both the CPN–UML and the RPP split. The CPN–UML contested 195 seats and its splinter, the CPN–ML, 197. Not a single CPN–ML candidate was elected. The RPP was divided into the RPP and the RPP (Chand); the two sections contested 195 and 184 of the 205 seats. The RPP (Chand) was wiped out, too. Voters have apparently punished splinter groups of both the left and right. After the instability of the 1994–1999 parliament, the electorate gave the NC a strong majority with 111 seats, to CPN–UML’s 71 and RPP’s 11. But the first-past-the-post electoral system has not discouraged fragmentation, and splits among the NC created the internal instability that led to the rejected request for another election in 2002. The process of winner-take-all has created problems of legitimacy. The diversity of this small country is marked: there are over 40 languages and 100 ethnic groups. Many of these are consequently unrepresented in the parliament and disengaged in the political system. Politics is often seen as the prerogative of high castes and the Kathmandu elite. Yet, under the new constitution the electoral system was not a matter of discussion. It was taken for granted. Only more recently has debate started about whether other electoral systems might provide better representation that reflects the national diversity. The MMP, system used in New Zealand and Germany, or some system of proportional representation, was mentioned as a means by which the minorities and regional groups might find voice in the political system. Another proposal was to re-engineer the electorates to ensure representation of minority groups. Since the commencement of the Maoist revolt in 1995, the holding of elections in many regions of the country is now problematic, if not impossible. The Maoists believe they could achieve nothing through parliamentary means and were prevented from gaining adequate representation. Their revolt adds to the perceived illegitimacy of the present electoral process.

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The legislature Parliament retains many of the features adopted from Westminster. The constitution provides for a bicameral legislature. Parliament consists of the king, the House of Representatives (Pratinidhi Sabha) and the National Council (Rashtriya Sabha). The parliamentary term for the 205-member House of Representatives is five years unless dissolved earlier. On the recommendation of the prime minister, the king may dissolve the house, but elections should be held within six months. Administrative districts are the election districts; and each district’s allocation of seats is proportional to its population. The National Council has 60 members consisting of 10 nominees of the king; 35 members elected by the House of Representatives by means of a single transferable vote (including at least three women); and 15 members elected by the electoral college comprising the voters, including the chair and deputy chair of the village and town and district committees of various regions. The National Council is a permanent body; one-third of its members must retire every two years. Council members serve six-year terms. With the exception of finance bills, introduced only in the lower house, bills may be introduced in either house. Bills must pass both houses before receiving royal assent. Where a bill is rejected by the National Council, the House of Representatives has the authority to override that decision. If the king refuses to give assent, a joint session of parliament can again pass the bill that should then receive royal assent within thirty days. The king may, when both the houses of parliament are not in session, promulgate ordinances, which are not effective unless approved by both the houses when reconvened. Financial procedures are laid out in the constitution, which states that taxes cannot be levied, money spent or loans raised except in accordance with the law. One innovation, adopted from India, was the ‘zero hour’ debate before government business begins each day. Any member is allowed to speak briefly on any subject. The rhetoric of parliamentary procedure sounds familiar to those acquainted with the Westminster procedures. The speaker presides, there is regular question time, and bills must pass through three stages and may be considered in committee. Parliament can make and unmake ministries; during the hung parliament of 1994–99, it did so several times. However, each government was faced with attempts by the opposition to buy votes from their supporters before motions of no confidence. Indeed, the

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parliament passed an anti-defection act to seek to prevent MPs elected for one party from changing sides too easily. There have been comments that the level of participation is low. Given that the members of parliament have little administrative support and the party whip seeks to marshal votes, the parliament is not seen as a chamber for constructive debate. Party support in parliament is unstable. In 13 years Nepal has had 12 governments. That instability reflects two factors. First, the parties are factionalised. The largest, the NC, has been riven by personal rivalry between Koirala and Bhattarai. A compromise choice, Sher Bahadur Deuba, has twice been prime minister but has never managed to unite the parties. The CPN–UML, a social democratic party, was able to hold office in 1994–95 but split in 1998. The National Democratic Party (or RPP), the old Panchayat royalist rump, was divided between the factions led by Chand and Thapa. A list of prime ministers since 1990 indicates the frequency with which the leadership changed hands within a party, partly because of internal divisions, partly to maintain coalition governments. After Bhattarai headed the interim NC government in 1990, Koirala became prime minister in the first parliament. After an early election led to a hung parliament, Adhikari (CPN–UML), Deuba (NC), Chand (RPP), Thapa (RPP) and Koirala (NC) succeeded each other as prime minister in the second parliament. Three NC leaders – Bhattarai, Koirala and Deuba – were prime ministers before the third parliament was dissolved, and then Chand and Thapa again held the office by royal appointment. In some cases there were coalitions between the most unlikely allies of convenience: the NC and RPP; and even between RPP and CPN–UML.

The legitimacy of opposition Chronic instability in the government has had consequences for the political opposition. Despite clear party labels, the parties have been unable to enforce discipline on members who were more associated with the individual leaders than with the party as a whole. Factional leaders competed for power within and across party structures.3 None were prepared to cede power to internal rivals. An anti-defection bill in 1997 did not solve the problems of party indiscipline. Instability is put down to what was oddly called a lack of ‘sportsmanship’. Since the political battle is about winning and about bringing rewards

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for supporters, relegation to opposition was not a condition to be accepted. Rather, as soon as any leader loses office, they start to work out how to win again, whether by displacing their own leader or an incumbent from another party. Such intense instability was particularly noticeable in the 1994–99 parliament where the political scene was not structured by elections, but by governments on an ever-speeding roundabout. Opposition itself is not repressed or overly restricted. Indeed, the fact that governments changed regularly after party and parliamentary votes with a lack of drama seemed to bode well for the acceptance of parliamentary processes. But the constant intrigue, the accusations of vote-buying, and the occasional artifice to keep in power, led to a heightened cynicism about politics that was widespread.4 By 2003 this cynicism was rampant: politicians were seen as self-interested and corrupt; they had failed the country and not tackled any significant problems. Consequently, the dismissal of the prime minister and the suspension of democratic forms did not immediately lead to the demonstrations and street violence that had heralded the introduction of democracy in 1990. Everyone knew a compromise would be needed between the king and his nominated and unrepresentative government, and the other political parties, and the Maoists – no one seemed able to chart a way ahead that would satisfy them all. But after 18 months of royal rule even the conservative RPP has taken to the streets demanding the restoration of party government.

The partisan public service In the Panchayat period, the loyalty of the civil service was to the crown. Departmental secretaries played a significant role over a long period of time. Civil service employment was an established and respectable career. There was never a need to consider the transfer of loyalty, or a substantial switch to new policy directions, because the principal emphasis was on continuity. This inheritance may have been hard to change. An adversarial political system requires a commitment to aiding the elected government in developing and implementing policy, and then an equal ability to do the same for a new government. But there are some requirements for self-restraint, to deliver service without the need to have a personal commitment to the party in power. Civil servants serve the NC or CPN–UML governments because they are the government, not because they necessarily share an ideological position.

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The civil service inherited in 1990 by the democratic governments was already regarded as riddled by corruption. Further demoralisation was caused by the decision in 1991 to retire all officers who were 58 years old or more, or who had served for 30 years. By one account some 13 000 were retrenched. The purpose was clear: to remove those officers who had become too entrenched and comfortable under the Panchayat system and who might therefore be opposed to the newly elected government. The blanket change of conditions of employment may have been politically necessary, but it raised the civil service’s distrust of governments because the act was seen as arbitrary. Many public servants believed they served their country well and that they were now being victimised for actions that were beyond their control. Some senior officials have made the transition, serving all governments in a manner that has gained widespread acclaim. But there remain numerous problems that mean the public service in practice differs from the more normal expectations of a non-partisan organisation. There has been extensive debate on the need for administrative reform, but little apparent action, and hence widespread scepticism that anything would happen. An administrative review commission (ARC), chaired by the prime minister, had proposed a series of substantial reforms in 1991. It sought to separate the new democratic regimes from the past and to create a civil service that was efficient and responsive to an elected government while maintaining the best qualities of the former administration. Chapter 13 of the ARC report provides an eloquent account of the proper relationship between the minister and senior civil servants. Its proposals included essential elements of a modern civil service: a clear demarcation of administrative responsibilities, including a rationalisation of departments; proper planning and development processes; criteria for performance evaluation; simplification of procedures; and an argument for downsizing by about 25 per cent. Some changes needed specific approval by cabinet; others could have been advanced within agencies. Cabinet duly approved the report, but the consensus was that little had changed. Although a monitoring committee was established, it was starved of resources and commitment to the reform agenda was waning. As the secretary to the ministry of General Administration made clear, responsibility for implementing the reforms was divided so there was no cohesive push, even in departments where secretaries had been members of the ARC.

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Senior public officials are now faced with a dilemma. Once they are appointed to head a ministry for a five-year term, the option is either higher ‘up or out’. Up means appointment to the position of chief secretary and a further three-year appointment. But there is only one chief secretary. Therefore, bright and effective civil servants, appointed a head of department in their early 40s, will finish their career before they are 50. It is a perverse system that discourages some from seeking to reach the top. The problems however are more widespread. Ministers still often regard the public service as their personal empire and instrument: the popular term was ‘Aphno Manchhe’, literally ‘my person’. The involvement of ministers in the transfer of staff to different regions, apparently by way of political reward and in anticipation of political benefit, was constantly mentioned as a problem, both because it acted as a disincentive for good practice and because it encouraged sycophants. Chief district officers, who might be able to assist in the compilation of electoral rolls and who might assist one party in elections were particularly susceptible to being shifted to more distant districts after a change of government. The process could work the other way too. Civil servants were said to approach new ministers, to seek to join their party and then to ask for favourable transfers. Further, ministers sought to employ supporters on short-term contracts (to bypass Public Service Commission regulations) that could be rolled over. Such a spoils system, often used whimsically, is detrimental to good practice. Again there has been recognition of this problem. In its report, the ARC argued that to make a system of delegation work, ‘the minister should delegate to the secretary powers relating to all matters except those that have to go to the Council of Ministers together with policy matters’ (ARC 1991: 15.3.3a). Nor did ministers appreciate ‘frank and fearless advice’. A constant view was that ministers expected their policies to be implemented without any questioning, even when they were ill-considered and impractical. There is always a problem in finding the right balance between sound warnings and obstruction. The situation has been exacerbated by the transfer of some secretaries to a ‘reserve pool’. Their entitlements may be safe, but they are left without responsibilities and duties. Often these decisions are made on the basis of rumour and political scuttlebutt, from within the civil service or from within the ranks of an opposition political party. There are two substantial public service unions, organised by the NC

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and CPN–UML, with a smaller one planned by the RPP. The consequence is that most staff below the gazetted level are identified with one political party or another. Such a circumstance that both identifies partisanship and divides the service, tends to encourage members of a political party’s union to work for that union rather than for the civil service as an organisation or the government as the elected body. After all, their personal future, in terms of promotion, will be tied to the success of the party, particularly where ministers may be involved in the distribution of positions through transfers.

Political reform agendas Following the sacking of the last elected prime minister in October 2002, the country faced some serious constitutional dilemmas, crystallising in a series of conflicts between the king and the political parties. There are frequent demands for further reforms to the constitution to prevent abuses and engender greater stability. The demands are wide and varied. One observer (Rana 2003: 102) has provided a typical list of proposals:

• Nepal should be a secular state but with a Hindu monarch in due recog-

• • • •

• •

nition of the multi-ethnic, multi-religious and multilingual fabric of society political parties need to be bound by due process of the rule of law and not function as extra-constitutional bodies the system of castes, outcastes and gender inequality imbibed in traditional customs must be re-engineered by the constitution it must be the prerogative of the prime minister to test the people’s will whenever he or she deems it necessary for the stability of the regime representative democracy must protect and promote human rights, as well as ensure the fullest participation of all citizens in the development of the nation the body politic must be cleansed of corruption and appropriate punishment given for the abuse of authority the electoral system, weakened by intimidation, money-power and the invisible hand of the mafia must be strengthened and made legitimate.

They are symptomatic of the more general malaise. During our interviews every person we spoke to had a similar series of proposals they regarded as necessary for better government. They were conscious that

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Nepal has accepted the trappings of a constitutional monarchy, but the practice and conventions have still to be devised in such a way that the politics is seen as widely acceptable.

Westminster as aspiration To the founding fathers of Nepal’s transition to democracy, Tanka Prasad Acharya and Ram Hari Sharma, Westminster may have been a dream. In formal terms it was almost achieved. The king is described as a constitutional monarch who can only act on advice. There is universal suffrage. Elections are first-past-the-post in single-member electorates. The House of Representatives, presided over by a speaker and with familiar practices, can make and unmake ministries and scrutinise government activity. The leader of the opposition stands across the chamber from the prime minister. There are only two major parties likely to win a majority. Ministers make decisions in a cabinet that has regular meetings. Prime ministers preside. They are all served by a somewhat partisan public service that still can offer frank and fearless advice. The only principal variation from Britain is the written constitution that describes how the system should work and restricts the discretion of the king. Nevertheless, Nepalese politics do not conform to that stereotyped model. The king does not accept the limitations on his power and has used the emergency powers to establish daily and personal rule without parliament: the last British kings to do that were Charles II and James II in the 1680s. Although the king is supreme commander, the constitution declares that he should work through the defence council. But the army sees its loyalty to the king. As one former minister of the 1990 interim government said, the motto of the army was: ‘King plus army equals hero; King minus army equals zero’. The electoral system does not allow representation of diversity. The winner-take-all attitude in a unitary system provides no alternative access to state resources for those who lose. Party leaders desperately hold on to ‘their’ party and choose to split rather than concede to their internal rivalry. Public servants sometimes are closely identified with the parties. Institutions by themselves do not create democratic politics. Westminster attitudes and conventions are not necessarily imported with Westminster institutions. Intolerance of defeat, a lack of self-restraint in the use of the public service, and a desire for personal benefit from government

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positions can undermine the workings of any institution. Although the 1990 constitution was widely welcomed at the time in the belief that it would usher in democracy, now its flaws are more apparent. For democracy to work it will need a change in approach of all parties and an adaptation of Westminster to reflect better the realities of Nepal today. This is one implant that was welcomed with celebrations but has so far refused to graft.

Notes 1 2

3

4

The authors would like to thank Dr Anjani Kumar Sharma for setting up appointments and for interviews. This chapter is heavily based on interviews undertaken in Kathmandu in December 2003. In all some 24 interviews were undertaken, including with founding fathers, constitutional drafting members, serving and former prime ministers, other ministers, the speakers of the parliament and other MPs, senior media editors, and a range of senior officials/scholars. Among the more significant interviewees were: Ram Hari Sharma (the ‘living martyr’); members of the constitutional drafting committee, Nilamber Acharya and Biswa Nath Upadhyaya (also former chief justice); prime minister Surya B. Thapa, Sher B. Deuba (former prime minister); the Speaker of the House of Representatives Taranath Ranabhat, former speaker Daman Nath Dhungana; editors Kunda Dixit (Nepali Times) and Shyam Shrestha (Socialist Movement); Achyut R. Regmi (interim minister); Padma Ratna Tuladhar and Jhal Nath Khanal (both former CPN–UML minister); Dr Bhekh B Thapa (ambassador-at-large); Pashupati SJB Rana (President, RPP); Dr Bimal Koirala (Chief Secretary); Dr Keshar Jung Rayajhami; Dr Dwarika Nath Dhungel; Dr Meena Acharya; Dr Poorna Kant Adhikari; and Subodh Raj Pyakurel. For a time CPN–UML seemed more cohesive, but it split before the 1999 election after the death of the elderly but respected leader Man Mohan Adhikari. His most obvious successor had died in a suspicious car crash in 1993. For instance, in 1996 at a dinner of political scientists at Tribhuvan University, the consensus of opinion was that Nepalese politicians were only after their own interests and that the democratic experiment had not succeeded.

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Westminster implanted: The Malaysian experience

5

Deborah A. Johnson and Anthony Milner1

his chapter will examine the manner in which the Westminster parliamentary system and ideal was implanted into the Malayan context and the ways in which it has been either maintained or adapted since Malaya2 gained its independence from Great Britain on 31 August 1957. It will indicate that the basic elements of such a system have survived, in part, because they accorded well with the prevailing political culture and realities preceding and following national independence – realities which facilitated the process of its implantation and localisation. Significantly, the Westminster system in the Malaysian setting ensured a central role for the executive – enabling successive Malaysian prime ministers (like the Malay rulers of pre-colonial and colonial times) to marshal substantial political instruments in support of their continued rule. While the prime minister and his government must continue to be responsive to ‘the people’, national elections themselves have so far never led to the removal of the party that first obtained independence. The bicameral parliament has largely served as a mechanism for processing, rather than shaping or generating, legislation. While it has to be said that ‘strong leadership’ by the cabinet and by the person of the prime minister has ensured effective governance and a climate of political and social stability, this has been

T

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at the cost of some judicial and media independence, and with the continued operation of laws that can be used to temper dissent. After describing the circumstances prevailing when the Westminster system was implanted into Malaya, we will describe the essential elements of that system as it developed in Malaysia. This will include discussion of:

• the role of the king, prime minister and cabinet • the role of the parliament, the accountability of ministers to parliament • •

and the functioning of elections the status of the opposition the civil service.

The political culture and individual motivations that have operated will also be explored. Importantly, the Westminster system began in Malaysia in a setting that gave strong emphasis to the executive. The many changes made over time have generally served to strengthen the hand of the executive, which nonetheless has a vested interest in continuing to foster the ‘traditions of the parliamentary ideal’.

Malayan independence and the implantation of the Westminster system As the first Malay translation of the constitution (Perlembagaan Persekutuan Tanah Melayu, 1963)3 makes clear, Malaya in the early 1960s was understood by Malays as a Federation of Malay Lands (Tanah Melayu).4 The initial proposal formulated by the British cabinet committee on Malaya and Borneo under Prime Minister Clement Attlee sought to bring together Britain’s diverse colonies in the region5 into what was known as the Malayan Union. The plan failed because it did not take account of Malay sensitivities concerning the position of their rulers and concerning the issue of citizenship for non-Malay ‘immigrants’. Special representative, Sir Harold MacMichael, was able to get the signatures of Malay rulers (who feared British reprisals for their ‘collaboration’ with the Japanese during World War II) on ‘an Agreement which … grants full jurisdiction in each State to His Majesty [the King of England]’ (HMSO 1946: 3). This agreement effectively removed the sovereignty of Malay rulers as well as state rights. While centralising power, it gave ‘barely even a cursory nod towards a modern, democratic system of government or self-government … there was no recommendation for elections’

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(Harding 1996: 23–5). Ere the ink was dry on the agreement, ordinary Malays took to the streets across the country and in protest against the proposal. This was the first peninsula-wide display of Malay political protest and it shook the British establishment. Consequently, soon after the much criticised Malayan Union came into force on 1 April 1946, a working committee was set up comprising six British officials, four representatives of the rulers and two from the United Malays National Organisation (UMNO, the major Malay political party) to formulate a new federal plan. The resulting proposal was, therefore, the product of negotiations between the British and Malay elites. Though a consultative committee was set up, no real public consultation took place. Specifically, alternative ‘People’s Constitutional Proposals’ put forward by the Pusat Tenaga Rakyat (Centre of People’s Power) and the Pan-Malayan Council for Joint Action (PUTERA–PMCJA), an umbrella coalition of various Malay and non-Malay groups and political parties, was not accepted.6 This proposal advocated a common citizenship and the sovereignty of the people, both of which were not features of the plan adopted. The revised Federation of Malaya came into existence on 1 February 1948. Significantly, from June 1948 (until officially 1960, but not settled until December 1989), Malaya was embroiled in the ‘Malayan Emergency’, seeking to deal with communist insurgency targeted at bringing down British rule and influence. (Many on the left of politics saw the newly independent government of Malaya under Prime Minister Tunku Abdul Rahman as also serving to perpetuate British influence and interests.) The war-like setting demanded an effective, centralised command structure as per that headed by General Sir Gerald Templer, British High Commissioner and Commander-in-Chief from 1952 to 1954. The presence of both communist insurgency and an active, left-inclined, grassroots political movement were also significant factors impelling the rapid move towards independence. The longer the process dragged out, the greater might be the opportunity for communists and others to gain a foothold and destabilise the existing political order. The political elite (drawn from the upper, mostly English-educated echelons of Malay and non-Malay society) knew that to achieve independence they would have to demonstrate (to the British) the ability to lead Malaya’s diverse population in the conduct of democratic elections. As Mahathir

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later asserted ‘we had to have a democracy as a condition of independence … even though … [we] had had no experience of democracy under British colonial rule’ (Mahathir 1986: 161–2). Thus, the formation of political parties, the forging of the Alliance coalition of communal parties, and successful legislative council elections in 1955 paved the way for independence. The Malay political elites, in particular, were imbued with a political culture (as presented in Malay classics such as the sixteenth-century Malay Annals), which was premised on loyalty and obligation to a ruler. The Raja or Sultan, whose rule depended upon the obeisance of his subjects and on the profits from trade that passed through his coastal-based realm, was the font of societal order; learning; culture; and individual identity, status and meaning. Such a political culture has resonance today. Importantly, the Malay (and non-Malay) elites prior to independence were keen to learn from their British mentors. The scions of Malay royalty received an English education in Malaya and many went on to study in England. As law students in England, Tunku Abdul Rahman, Tun Abdul Razak (and Lee Kuan Yew), among others, deliberately set out to observe the actual workings of British politics and to cultivate leading politicians. Steeped in British legal and political thought, they would be the ones who would facilitate the smooth transition of power from British to local rule. The (independent) Reid commission, which drew up Malaya’s constitution, was comprised of legal experts from Britain (2), Pakistan (1), Australia (1) and India (1).7 Significantly, it had no local representation, thus the constitution has often been seen as a foreign rather than a locally generated document.8 A subsequent working party – comprising two British officials, four rulers and four Alliance coalition members – was appointed to consider the Reid commission’s report published in February 1957. The Federation of Malaya Agreement 1957 was duly adopted in August of that year. The constitution has since undergone numerous amendments in keeping with the changing local social and political realities.9 At independence on 31 August 1957, Malaya (now Peninsular Malaysia) was a federation of miscellaneous sultanates, states and territories under Malay-led (Alliance coalition) rule. The Federation of Malaysia (that is, Malaya, plus Sabah, Sarawak and Singapore) was formed on 16 September 1963. Singapore left the federation on 9 August 1965, resulting in Malaysia as we know it today.

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In most peninsular Malaysian states, there are hereditary titular rulers (known as the Sultan, or Yang di-Pertuan Besar) and an executive chief minister or Menteri Besar. In the former British crown colonies of Penang, Malacca, Sabah and Sarawak, there is a titular governor (known as the Yang di-Pertua Negeri) and an executive chief minister. While up until 1957, Malay rulers had the power to select and dismiss their chief ministers, the role of titular rulers today has been described as ‘essentially to assist the democratic process to work’ (Abdul Aziz 2002: 19–20). The federal constitution limits the powers of state governments. However, under the terms of the federation, Sabah and Sarawak retain certain constitutional prerogatives, and have a greater representation in the federal parliament than other states. (Sabah holds 25 seats in the House of Representatives while Sarawak holds 28 seats. This is in contrast to Johor with 26 seats and the smallest state, Perlis, with just three seats.) Thus, Malaysia’s federal structure contains within it elements of check and balance on the federal government. However, because in practice the ruling party leadership (and not the state ruler) has picked chief ministers in those states where the government has control of the state legislatures (Abdul Aziz 2002: 23), and because state funding comes from the federal government, the federal government (and the prime minister) has (have) enormous sway over developments in the states.

Basic elements of Malaysia’s Westminster system Malaysia is officially defined as a constitutional monarchy, which is nominally headed by the Yang di-Pertuan Agong (paramount ruler) – customarily referred to as the ‘King’. The Malaysian political system is premised on a theoretical separation of power between the executive (symbolically vested in the king, actually vested in the prime minister and cabinet), legislature (federal parliament) and judiciary. The king is also supreme commander of the Malaysian armed forces. Unlike in many of its South-East Asian neighbours, the military in Malaysia has remained a professional force with an ethos of refraining from political involvement. This has been facilitated by the involvement of the royal elites in the leadership of the military engendering a respect by the rank and file for the leadership, and by the close relations between the royal and political elites whose separate interests are served by maintaining the status quo. At the apex of the judicial branch is the Federal Court. The king

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appoints the judges on the advice of the prime minister. The federal court reviews decisions referred to it from the court of appeals; it has original jurisdiction in constitutional matters and in disputes between states or between the federal government and a state. Peninsular Malaysia and the East Malaysian states of Sabah and Sarawak each have a high court. Significantly, in the terms of reference for the Reid constitutional commission, there was no mention of judicial independence or fundamental rights for citizens; hence, both came to be weakly protected in the constitution. Later legislation has further eroded the rights of freedom of speech, assembly and association by effectively placing them beyond judicial scrutiny. Further, the judiciary was seen to be relatively independent of the executive until 1988, though according to Lee (1995: 2), ‘it traversed the path of strict legalism or literalism’. However, since then and particularly as demonstrated by the trials in 1998–99 in which former Deputy Prime Minister, Datuk Seri Anwar Ibrahim, was found guilty of abuse of power and sodomy, the independence of the judiciary has been seen as having been significantly compromised.10

Constitutional monarch, prime minister and cabinet Yang di-Pertuan Agong (King) At the symbolic apex of power in Malaysia is the Yang di-Pertuan Agong (king). The authority of the Crown is vested in the King, but the executive power of the monarch is exercised by the Prime Minister and his Cabinet. … The King is the Head of State, and all Government acts are carried out in his name, and by his authority (Abdul Rahman, 1977: 205–6).

Tunku Abdul Rahman is indicating that ‘the Throne, the symbol of kingship, is never empty of influence in the Malay context’. The King carries the aura (and authority) of the Malay ruler, or Raja, predating British constitutionalism and rule (Milner 2003: 169–94). He serves to symbolically unite all Malaysian citizens (independent of race and religion) in his realm. He is a source of Malay (and Malaysian) identity. The king, who serves for a five-year term, is selected by (and from among) the council of rulers, comprising the rulers of nine peninsular states.

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The king has limited executive powers. His decisions must be in accordance with the advice of the prime minister or cabinet. Article 40(2) of the constitution states that the Yang di-Pertuan Agong may act in his discretion in the performance of the functions of appointing the prime minister; in withholding consent to a request for the dissolution of parliament; and in the requisition of a meeting of the Conference of Rulers concerned solely with the privileges, position, honours and dignities of their royal highnesses (DC Legal Advisers 2003: 22–3). In addition, the king is the leader of the Muslim religion in Malaysia, in his own state, in the states of Penang and Malacca, and in the three federal territories. In other states (except Sabah and Sarawak where there is no head of Muslim religion per se), the state ruler is the head of the Muslim religion. During Dr Mahathir’s term in office, the king’s powers were further reduced, as will be discussed later in this chapter. Although the prime ministership is modelled on the British Westminster system, it also inherits some aspects of the political culture of pre-modern Malay polity, including elements of the roles of Raja, chieftains and senior court officials. (The office of prime minister has its origin in the office of chief minister, which came into being some time after the first elections in 1955.) Early prime ministers were either princes (in the case of Tunku Abdul Rahman from Kedah) or the sons of chieftains (in the case of Tun Abdul Razak, and Tun Hussein Onn, associated with the royal houses of Pahang and Johor, respectively). Their royal status or connections gave them political credibility and legitimacy. The fourth prime minister, Tun Dr Mahathir Mohamad, was the first non-royal; but he also continued to exemplify the characteristics of the traditional Malay Raja (for example, in terms of the political norms he expected people to follow). By contrast, the present Prime Minister, Datuk Seri Abdullah Ahmad Badawi, who took over power on 31 October 2003, traces his lineage to a line of recognised Islamic scholars and has thus far projected himself as a leader with a common touch. Focusing on bureaucratic efficiency, his softly spoken, courteous demeanour and Islamic credentials, perhaps more than his predecessor, accords with the behaviour expected of traditional rulers.

The prime minister Executive power in Malaysia is vested in the cabinet led by the prime minister. The Malaysian constitution stipulates that the prime minister must be a member of the lower house of parliament who, in the opinion of the Yang

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di-Pertuan Agong, commands a majority in the parliament. Thus, as in other Westminster parliamentary democracies where the prime minister is head of both the legislature and the executive, there is no real separation of powers between these two arms of government. The prime minister as the head of the cabinet is responsible also for the selection of cabinet ministers. He advises the king of his selection, who then officially appoints the ministers. In practice, though, ministers are directly accountable to the prime minister. In Malaysia, the prime minister has to date also been the president of the ruling United Malays National Organisation (UMNO) and the ruling National Front (Barisan Nasional, BN), a coalition in which UMNO is the dominant party. (UMNO has held power in coalition with other parties since independence in 1957). The BN is a coalition of around 13 parties, including UMNO, the Malaysian Chinese Association (MCA), the Malaysian Indian Congress (MIC) and other smaller, mostly ethnically based parties. The BN was formed in the period from 1971 to 1973, and officially replaced the ruling Alliance coalition (1957–1969) in 1974. It is said to operate on the basis of the concept of power-sharing ‘whereby all policies and decisions are made after taking into consideration views of all the component parties, no matter how small they are’ (The Star 2003). BN and UMNO party meetings (and especially UMNO party elections) are important arenas in which national politics is played out under the guiding hand of the prime minister. Indeed, it is often said that UMNO party elections, in particular, are actually more important than national elections, because they determine the future leaders of the country. The presidency of UMNO has on occasion been challenged from within the party – especially in 1987 when Dr Mahathir narrowly survived a leadership challenge. However, Dr Mahathir has since been able to secure his position in the party as UMNO President by making the positions of president and deputy-president non-contestable. It is the party president (and prime minister) who selects his deputy and guides party (as well as national) affairs.11 Abdullah Badawi’s selection in January 2004 of Datuk Seri Najib Tun Razak – one of the three vice-presidents of UMNO and the son of Malaysia’s second prime minister, Tun Abdul Razak – helped to settle speculation and internal party factionalism in the lead up to the 2004 general elections. That the BN can be an equally lively political arena is borne out, for example, by an announcement in August 2003 by then Secretary-General

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Tan Sri Mohamed Rahmat. He indicated that the BN was drafting a set of rules to prevent BN-elected representatives from crossing over to another party within the coalition. The move to prevent party-hopping was to ‘strengthen the coalition and end internal feuding among component members’ (Hah and Lam 2003). Because of the personalised nature of Malaysian politics, one’s relationship with the prime minister (or party leader) is often crucial to one’s political (and often economic) advancement; and there can be considerable jockeying for position to secure leadership favours.

The cabinet The prime minister chooses his cabinet from among members of both houses of parliament. Presently, the cabinet is comprised of 33 ministers, including the prime minister and deputy prime minister. This is a rather large cabinet compared with the first 1955 cabinet of 10 ministers or the 1961 cabinet of 13 ministers. Significantly, each ministry is represented by just one minister, except for the finance ministry (currently headed by the prime minister and a second finance minister) and the Department of the Prime Minister, which is represented by six ministers plus the prime minister and deputy prime minister12 – highlighting the relative importance of these particular ministries. Occupying the central position in the country’s administration, the cabinet frames and approves policies to do with home and foreign affairs, and co-ordinates the policies of the various ministries.13 The cabinet normally meets once a week (on Wednesdays) in the office of the prime minister. Attendance at cabinet takes precedence over all other ministerial duties. Cabinet discussions are secret. No record of discussion or of the reasons for decisions is kept – only the decisions are minuted. Cabinet papers are highly confidential and protected by Official Secrets Act (OSA) regulations. Only cabinet ministers attend the meetings along with the Deputy Secretary-General (Cabinet) of the Prime Minister’s Department and the Chief Secretary to the Government. The latter organises the agenda, records the minutes and reports (as head of the civil service) to the bureaucracy to implement cabinet decisions, and reports back to cabinet on progress (Ahmad Sarji 1996: 147). The prime minister will generally hold a press conference after cabinet to announce any significant decisions. A principle of collective responsibility applies. All ministers are equally and jointly responsible for every decision by government – both decisions

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taken in cabinet and by cabinet committees. Behind the closed doors of the cabinet, ministers are expected to speak frankly and express their opinions, but once the decision is made they are expected to defend that decision in public. Ad hoc cabinet committees are set up to facilitate the transaction of government business, but the most important and critical issues are discussed in the cabinet itself. According to former Chief Secretary to the Government, Tan Sri Ahmad Sarji Abdul Hamid, ‘the Cabinet is the centre of activity where the vital decisions that affect the lives and interests of just about everybody in the country are made’ (1996: 149). In his selection of ministers (and deputy ministers and parliamentary secretaries), the prime minister must carefully balance the political interests of those in his own party (UMNO) and those in the ruling National Front (BN) coalition. There is a formula agreed upon by the coalition parties with regard to the allocation of positions in the cabinet so that each member party gets certain representation. However, a minister must be chosen on the basis of his or her competence – there is no Yes Minister or ‘cult of the amateur minister’ situation in Malaysia, according to Ahmad Sarji. Ministers are expected to practise ‘hands-on management’ and know as much as the permanent civil servants (1996: 159). However, within the scope of the agreed formula, all kinds of political calculations go into the selection of ministerial candidates – such a position can be seen as a reward for loyal service, as a means of furthering particular political agendas and as a means of dealing with potential rivals (give them lesser portfolios). After a cabinet reshuffle in June 2003, newly appointed Transport Minister, Datuk Chan Kong Choy (the new MCA deputy president), was quoted, as expressing his gratitude to the prime minister and saying that ‘the first thing he would do is meet the prime minister to get some guidance’ (Foong Pek Yee 2003) – highlighting the relationship and accountability of ministers to the prime minister. The different prime ministers have brought to the cabinet their own personal leadership styles and emphases (as indicated in the distribution of portfolios and creation of ministries). Nonetheless, they have all expected loyal service. Tunku Abdul Rahman had a more collegial style and tried to meet with his ministers in more relaxed and unofficial settings (Abdul Rahman 1977: 162, 167 and 184). Nonetheless, he saw himself as the centre around which all activity took place;14 and, like the feudal leaders of

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old, according to Mahathir (1971: 8), he was prepared to wield his authority. When in the 1960s, Agriculture Minister Dato’ Abdul Aziz Ishak pursued a policy that cabinet objected to, the Tunku sacked him and he was subsequently arrested under the Internal Security Act (ISA). Second Prime Minister, Tun Abdul Razak, is described as beginning cabinet meetings by stating his stand and then going around the table seeking reasoned contrary opinion; his successor, (Tun) Hussein Onn, in the course of cabinet meetings methodically sought of the relevant minister’s views on the issue raised; while Dr Mahathir’s is described as having a much more dominating presence over cabinet proceedings (Pillai 2003a). However, prime ministers did not always consult cabinet when making important decisions. Tun Abdul Razak was accused of being too close to certain advisers – some of whom were regarded as ideologically suspect and who were not even elected MPs, let alone cabinet members. Dr Mahathir has been accused of excluding even the Deputy Prime Minister, Musa Hitam, from his consultations with business associates or his ‘kitchen cabinet’ (Gale 1982). In 1965, Tunku Abdul Rahman was able to get the bill to separate Singapore from the federation through both houses of parliament in four hours, without having beforehand consulted the cabinet (Means 1970: 354). The reality remains that in the Malaysian parliamentary system, as in parliamentary systems elsewhere, final executive decisionmaking rests with the prime minister.

The accountability of ministers to parliament Ministers have a fair degree of autonomy from parliament, but they are expected to keep parliament informed. This is usually done via the one-hour question time held from 10.00 to 11.00 a.m. during parliamentary sittings. In this regard, sub-cabinet deputy ministers and parliamentary secretaries also serve an important role in informing MPs of cabinet decisions and ministry policies. However, there has been criticism of the Speaker who ‘seems to believe his task is [to] protect the government and its officials from questioning by the House’; and of parliament as merely being a ‘rubber stamp for government decisions’ (Pillai 2003b; MASSA 2004c: 26 and 28). Various prime ministers have also been described as having rather peremptory and even dismissive attitudes towards parliament. Dr Mahathir once criticised Tunku Abdul Rahman’s government indicating that:

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… in the main, Parliamentary sittings were regarded as a pleasant formality which afforded members opportunities to be heard or quoted, but which would have absolutely no effect on the course of Government. The general feeling was that whether or not the Parliament sat, the Government would carry on. The sittings were a concession to a superfluous democratic practice (1970: 11).

Each of the prime ministers has been able to push his agendas through both houses. It can seem that often the more important the legislation, the greater the hurry in getting it through parliament without due consultation and discussion. Tunku Abdul Rahman, as cited above, was able in 1965 to get the bill to separate Singapore from the federation through both houses of parliament in four hours (Means 1970: 354). On 16 September 1966 he called an emergency session of parliament to pass legislation enabling amendments to the Sarawak Constitution to restore law and order and to end a power struggle in that state (Abdul Rahman 1984: 76–7). Furthermore, the personality and leadership style of individual prime ministers has had a bearing on the actual operation of Malaysian parliament (as also cabinet), partly because of the prominent role accorded political leaders and partly because of the way the institution of parliament itself has been structured.

The structure and role of parliament The federal (bicameral) parliament in Malaysia is comprised of an elected lower house (Dewan Rakyat or House of Representatives) and an upper house or Senate (Dewan Negara), which is not popularly elected. Parliament has the power to legislate on federal, concurrent (relevant to both the state and federal spheres) and state issues (where a common law is necessary and with the agreement of the states). It has authority over external affairs, defence, internal security, justice (except civil law cases among Malays or other Muslims and other indigenous peoples, adjudicated under Islamic and traditional law), federal citizenship, finance, commerce, industry, communications, transportation, and other matters. The states have their own elected state legislative assemblies and state executive councils headed by a Menteri Besar (or in the case of Sabah and Sarawak, cabinets headed by a chief minister).

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Representatives of the Dewan Rakyat are elected from single-member districts by universal adult suffrage on a first-past-the-post basis. The 219 members of the House of Representatives (MPs) must be over 21 years of age and are elected for maximum terms of five years. A speaker is elected either from the elected members or from outside the House. TABLE 5.1

Composition of the Dewan Rakyat 1999

2004 *

143

165

Sabah

21

25

Sarawak

28

28

1

1

193

219

Peninsular states and Territories

WP Labuan Total (plus the speaker if elected from outside) *

The increase in seats in the Dewan Rakyat – seen as favouring the BN government – was as a result of an electoral re-delineation exercise in 2003.15

Following the 2004 election, there were 196 men and 23 (or 10.5 per cent) women MPs, compared with 173 men and 20 (10.4 per cent) women for the 1999 election (Amree Ahmad 2004: 18–20). Significantly, the ruling National Front (BN) coalition in 2004 won just 63.8 per cent of the vote, but gained 90.4 per cent of seats in parliament (compared with 56.5 per cent of the vote and 76.7 per cent of the seats in 1999) (MASSA 2004b: 6–7). This indicates the ability of the government through the electoral commission to influence election outcomes. The Dewan Negara (Senate) comprises 26 members appointed by the 13 state legislatures (two from each state), and 44 members appointed by the king on the advice of the prime minister, for a total of 70 members (though some seats may be vacant at any point in time). Significantly, the number of senate appointees has risen over the years, while the number of state-elected members has remained the same.16 This clearly allows the prime minister to have a strong influence over the composition of the senate. Senate members are chosen on the basis of having ‘rendered distinguished public service or having achieved distinction in the professions, commerce, industry, agriculture, cultural activities or social services or are representatives of racial minorities or are capable of representing the interests of aborigines’ (MDC Legal Advisers 2003: 28). Members of the senate

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elect both the president and deputy president from among their number. The life of the senate is not affected by the dissolution of parliament. Each senator holds office for three years and cannot serve longer than two terms. The Dewan Negara (upper house) may initiate legislation (other than financial bills). However, its role is primarily that of a ‘house of review’, serving as an ‘auditor’ examining the legislative activities of the Dewan Rakyat (lower house) with a view to improving the legislation it enacts. For the most part its role is limited – it has restricted powers of veto and may delay the passage of a bill only for a limited time. However, it has been a useful way for the prime minister to get his appointees into the cabinet even though they may not have been elected in general elections.17 It is not uncommon for several bills to be passed in the senate in a single day without substantial debate. Thus, DAP leader Lim Kit Siang has on several occasions described the Dewan Negara as a ‘rubber stamp’ of the Dewan Rakyat, which is a rubber stamp of the executive; as a ‘dumping ground for political “rejects” or defeated candidates of Barisan Nasional component parties’; and, ‘a sham, totally irrelevant and a White Elephant which had failed its constitutional purpose … to review the legislation enacted by Dewan Rakyat’ (1997).18 On the other hand, the Dewan Rakyat is described in official government publications as a forum for public criticism and expression of opinion through debate. ‘Parliament keeps the Government policies and actions in conformity with the wishes and aspirations of the people’ (Govt, nd: 31). Other than passing legislation, its main functions are debating important matters of the day and controlling government finance, including taxation and the budget. ‘It is the main forum for the explanation and defence of government and opposition views and policy, and for the ventilation of grievances’ (Harding 1996: 82). Thus, MPs tend not to regard a parliamentary session as ‘an opportunity to make major public decisions’; rather, it is seen as ‘a chance to gain information on government policy, to identify current policy priorities that may make resources available to the home district, to raise questions publicly in the interests of constituents, and possibly to help shape the general priorities of the government in a way that is more beneficial to MP’s constituencies’ (Musolf and Springer 1979: 108). To this end the most important activity is the one-hour question time when ministers respond to questions. While government MPs were reported as emphasising the chance to gain information

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from the government and ministries, opposition MPs have seen it as an opportunity to introduce the issues and problems of their constituencies through their questions (Musolf and Springer 1979: 109). The important meetings in a parliamentary session are the first in the year at which the Yang di-Pertuan Agong opens the session with a royal address (prepared by the government and which outlines the government’s agenda for the coming year). The other is the budget meeting, which can last for several weeks.19 However, parliament is not always well attended, as indicated by reforms in 2004 directed towards ensuring that at least half of the MPs are present at any sitting. The wheeling and dealing in the corridors outside of the sittings is often regarded as more important for ordinary MPs.

The status of the opposition There are currently three opposition parties with seats in parliament: the Parti Islam SeMalaysia (PAS), the Democratic Action Party (DAP) and the National Justice Party (KeADILan). Following the 1999 general election, PAS had the majority of opposition seats in the federal parliament and, thus, Datuk Seri Haji Abdul Hadi Awang (replacing Dato’ Haji (Ustaz) Fadzil Mohd Noor after his death in 2003) was the leader of the opposition. (Hadi Awang was the PAS leader and also the chief minister of the state of Terengganu, where PAS had a majority of seats in the state assembly). However, in the March 2004 elections, Hadi Awang lost his seat in parliament and PAS lost their majority of opposition seats (27 in 1999 to just seven seats in 2004). Thus, the leadership of the opposition was returned to Lim Kit Siang (of the DAP, with 12 seats, up two seats from 1999). He had been opposition leader for many years (1973–1974; 1975–1999), following Dr Tan Chee Khoon, who became known as ‘Mr Opposition’ for his pioneering and principled role as opposition leader. The post of leader of the opposition was officially created in 1971 for the opposition MP whose party has the most number of seats in the parliament. He was to receive ‘a special salary, office facilities and a salaried political secretary’.20 Opposition parties have never been able to win power and take over the government at a federal level. However, PAS has controlled the state legislatures in the northern predominantly Malay states of Kelantan (1959–1977; since 1990) and Terengganu (1959–61; 1999–2004). The Gerakan Party won control of the Penang legislature in 1969; however, it

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subsequently became a member of the BN coalition. In Sabah the opposition Parti Bersatu Sabah (PBS) ousted the ruling (and BN) Berjaya Party in the 1985 elections. After winning elections again in 1986 it was admitted into the BN coalition (Means 1991: 157–65). In 1990, two overlapping alliances of opposition parties organised by Tengku Razaleigh Hamzah,21 and in 1999 an Alternative Front (Barisan Alternatif) opposition coalition22 were formed to challenge the ruling coalition. However, in both instances the opposition failed to gain sufficient votes to bring about a change in government (or even to threaten the BN’s two-thirds majority in parliament). Nonetheless, in terms of actual votes won, many seats were only marginally won by BN candidates. Further, PAS in 1990 was able to regain power in Kelantan, and in 1999 also in Terengganu (though UMNO reasserted control in the latter in 2004). The coalitions themselves were fragile entities due to the range of interests and ideologies represented by the component parties. In each instance they began to unravel after the election. On both occasions there was widespread disenchantment with the government, and a more evenly based electoral system might have seen different results. Generally, there is agreement on the part of the government, opposition and the electorate as to the political rules in operation. There is also general acceptance of the need for an opposition. It is seen as part of the machinery to make the government answerable to parliament. Many opposition leaders have persisted in opposition politics (despite poor electoral showings) out of a conviction that there is a need for an alternative political voice. This is in spite of the doubts frequently expressed from within the ruling coalition about the need for an opposition.23 Although the conduct of elections is generally regarded as free and fair, the system has in the past been weighted towards the rural Malay population. Also, the government has inordinate powers to ensure that it is re-elected; for example:

• • • •

the use of the electoral commission to draw electoral boundaries favourable to the ruling coalition the calling of snap elections with little time for campaigning restrictions on media access and public assembly, particularly affecting the opposition24 a raft of regulations that can be used to silence opposition figures, for example, by detaining them under the Internal Security Act.

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While the opposition has always sought to maximise its opportunities in parliament, this to a large extent depends on the individual abilities of those on the opposition bench and of their leader, in particular.

The civil service The civil service has the task of implementing and administering policy legislated by parliament. According to former Chief Secretary Ahmad Sarji, ‘responsibility for the central, strategic management of the civil service resides with the Prime Minister who is the Minister in charge of the Civil Service’ (1996: 159–61). Reporting to the prime minister is the chief secretary, who is the head of the civil service responsible for its organisation, effectiveness, efficiency, staffing and discipline; and who is also the administrative head of the prime minister’s department. As prime minister, Dr Mahathir took a very hands-on approach with regard to the civil service – insisting that all public servants up to the prime minister clock on and off at the office, and wear name tags so as to be accountable to the general public for their performance and efficiency. He supported the provision of clear guidelines and instructions for implementing agencies, strongly advocated the use of work flow charts to improve efficiencies, insisted on a ‘work culture of excellence’, and on the monitoring of performance, along with (in 1992) the introduction of total quality management practices. He also insisted that ministers and senior public servants ‘lead by example’. Dr Mahathir, thus, reinforced the ‘hands-on approach’ long expected of ministers in the leadership of their various ministries. Deputy Prime Minister Tun Razak, for example, would be often photographed in the 1960s visiting a remote village (kampung) and checking up on the progress of a particular development project. Likewise, Tun Sardon Jubir’s biographer describes his numerous activities as minister for transport and then from May 1969 as minister for health. He visited every hospital in the country to follow up on the problems of medical staff shortages (Tan 1986: 70). Significantly, civil servants have not been expected to be ‘neutral’ in the conduct of their duties. Because of recruitment quotas (first imposed by Britain’s General Templer in the 1950s) of 4:1 in favour of Malays, the civil service is Malay dominated. The service is expected to be a vital instrument working in support of pro-bumiputera policies (favouring Malays and other

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indigenous natives). Indeed, as distinct from the experience in many other previously colonised countries, UMNO as a nationalist party working towards independence was formed by Malay civil servants employed by the British. Six of the seven Malay members of the first cabinet in 1957, including the Prime Minister, were former civil servants (Crouch 1996: 132–3). Tengku Razaleigh Hamzah once remarked in an address to civil servants that officers and other government employees ‘should support and defend government policies’ (Crouch 1996: 133). Until the early 1990s, civil servants were very active in party politics. Some 272 Group ‘A’ civil servants were found in 1989 to hold leadership positions in various government and even opposition party organisations (Crouch 1996: 133). According to general orders (Chapter ‘D’), 19(2), 1980, ‘An officer in group “A” is prohibited from taking part in or carrying on political activities or wearing any emblem of a political party’. As a consequence of the Semangat 46 challenge to UMNO Baru in the late 1980s, moves were made in 1990 to ensure that civil servants complied with this regulation (Ahmad Sarji 1996: 247–50). Nonetheless, more junior civil servants are still permitted to be involved in political activities if they have prior written approval from the government. This is subject to certain conditions. Prime Minister Abdullah Badawi, with his long career in the civil service, exemplifies the close links between it and government. He understands the system and how it works. Significantly, one of the first moves he made when he became prime minister was to seek to cut red tape and improve the efficiency of the civil service. The subsequent prosecution of cases by the anti-corruption agency against both civil servants and MPs has been aimed at reasserting professionalism and transparency of the civil service and targeting abuse of power for personal financial gain. The tendering process for government contracts has been re-examined and many large projects either postponed or cancelled. It remains to be seen though, whether such measures flag substantive and evenly applied changes.

Tracking power accumulation by the prime minister The key role played by the executive in Malaysia’s parliamentary system (in the cabinet, parliament and civil service) has been amply described above. The origins of this executive dominance in many ways derived from the

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basic structures of a colonial government operating under emergency rule that then came to form the framework for the independent Malaya. Before independence in 1957, a federal executive council was ‘presided over by the British High Commissioner, the highest-ranking officer. As the representative of the British sovereign and the Malay rulers he had the power to act in opposition to the advice of the council’ (Abdul Aziz, 2002: 15). A ‘strong central government’ was one of the terms of reference of the Reid commission, and its intentions have more than been fulfilled. However, as a consequence of the various crises that Malaysia has experienced, successive prime ministers have been able to enhance their power, while curbing checks and balances on it, through amendments to the federal constitution, enhanced regulatory powers, and (in the case of Dr Mahathir) reductions in the independence of the judiciary and in the powers of the king and state sultans. Some of these crises and their causes and consequences will now be briefly examined. The 13 May 1969 racial riots were followed by a suspension of parliamentary democracy and the imposition of emergency rule in the form of the National Operations Council under Deputy Prime Minister Tun Abdul Razak. It was basically a Malay (and UMNO) reassertion, which led to the institutionalisation of Malay dominance, a curtailing of public discussion of ‘sensitive issues’, and the redistributive ‘New Economic Policy’ seeking to redress economic and social imbalances so as to improve the lot of Malays. With the return of parliament early in 1972, Tun Razak sought to institute new curbs on democratic freedom, but in doing so he argued that the changes were actually intended to strengthen democracy. The amendments are intended to restrict public discussion of sensitive subjects so that parliamentary democracy may function smoothly. … [The] amendment aims at prohibiting anyone from making statements which can stir the sensitive feelings of the communities in our country … by giving the power to Parliament to pass laws which prohibit acts of … questioning … the special rights of the Malays … and the valid interests of the other communities and … the sovereignty of the Malay rulers (Shariff 2001: 150).

The fact that he employed such argument suggests the continuing prestige of the ‘parliamentary democracy’ ideal. Also as a consequence of the 1969 racial riots, the Sedition Act and the Official Secrets Act were strengthened to place further limits on what could be discussed in the public arena. In

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1971, the Printing Presses and Publications Act was amended to allow the revoking of newspaper licences if they published material that aggravated national sensitivities. Later in 1983, the Societies Act was amended to allow the minister to deregister a society, without his decision being able to be contested in the court. This raft of regulations continues to hang like a ‘Sword of Damocles’ over individuals and organisations speaking out in the public arena. The regime’s justification for such curbs on freedom of expression is that Malaysia cannot afford another 13 May 1969. A further consequence was the expansion under (Tun Razak) of the former ruling Alliance coalition by the co-optation of opposition parties into a National Front coalition.25 ‘Politicking’ was thereby removed from the public arena to within the BN, which led to comments from some quarters that the opposition was an unnecessary (and at times a dangerous) luxury (Pillai 1974: 26). By the 1970s, a demographic shift had been taking place within UMNO, such that it was no longer the party of rural Malays, but it was becoming increasingly the party of the educated, urban Malay middle class. Tensions arose between an ‘old guard’ coalescing around Prime Minister Hussein Onn opposing those advisers, who had been close to deceased Prime Minister Tun Razak. A number of the latter (such as A. Samad Ismail, Abdullah Majid and Abdullah Ahmad) were detained under the Internal Security Act (ISA) to vitiate the factionalism within the party. Also the Universities and University Colleges Act (UUCA) 1971 was amended in 1975 to eliminate student demonstrations. (Students had been taking on the government after political opposition had been curtailed by the expansion of the BN.) Thus, in the decade following the 1969 riots, the government (and ultimately the prime minister) strengthened its (his) hold and displayed signs of increasing authoritarianism. The constitutional crises of 1983–84 and 1992–93 saw Dr Mahathir curtail the powers of the rulers and further secure his executive power. The problem arose when the Yang di-Pertuan Agong refused to grant royal assent to a series of constitutional amendments (Constitutional (Amendment) Bill, 1983), included in which was a clause that if a bill was not assented to by the king within 15 days of it being presented to him, he would be deemed to have assented to it. In another amendment the prime minister sought to strip the king of his power to declare a state of emergency and to vest those powers solely in himself. The outcome in 1984 was

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an amendment extending the period in which the king was to give his assent to a bill to 30 days. Apparently, this came with a verbal undertaking to the prime minister that royal assent would not be withheld. Also, the power to declare a state of emergency was restored to the Yang di-Pertuan Agong, but on the understanding that he would always follow the prime minister’s advice (Crouch 1996: 145–6). Seeking to make royalty accountable to the law, in January 1993 the government put forward legislation to amend the constitution so as to limit a ruler’s immunity from prosecution and the king’s power to bestow royal pardons. After an active public campaign led by the prime minister, this constitutional amendment bill was finally passed in March 1993 (Crouch 1996: 146–7). A challenge for the UMNO leadership by Tengku Razaleigh in 1987 was narrowly defeated by Dr Mahathir in a somewhat contentious manner. Thereafter the validity of the party election was challenged in the courts, which upheld the challenge. UMNO was deregistered and UMNO Baru and Semangat 46 were reconstituted out of the two main factions in UMNO. In the process, Dr Mahathir was able to rewrite the UMNO Baru constitution in his favour limiting contestation for the leadership within the party. Also as a result of this episode, several judges were subsequently sacked and the judiciary was weakened at the expense of the executive. As evident in the four crises just described, when the social order (interpreted as perceived threats to the position of Malays) or when social and political stability is threatened, the Malaysian government has not hesitated to intervene. Party factionalism within the ruling party UMNO can sometimes spill over into the public arena with unsettling consequences. Also, responses to perceived threats to the ruling party or coalition, to the regime or to the personal authority of the prime minister, have resulted in the enhancement of executive power at the expense of democracy.

A responsive and responsible executive While Malaysia’s pro-active leaders have strengthened their power and roles, having the form of a Westminster parliamentary democracy has been important domestically and internationally. It provides a suitably vague and fluid template and ideal, while also serving to accord legitimacy to the Malaysian government and its leaders. Not all, however, have been as convinced of the efficacy and relevance of (so-called) ‘Western democracy’ for the

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Malaysian situation. Instead, some have advocated ‘Asian values’, ‘sustainable good governance’ and ‘consensual’ rather than ‘confrontational democracy … of the western kind’ (Ghazali 1993: 20). Such ideals are also borne out in practice – while democratic elections have been regularly held in Malaysia, there has been no change of government since independence. Nonetheless, the basic forms of the Westminster parliamentary system have survived. The (Westminster) parliamentary system has survived partly because it could be readily manipulated and adapted to ensure elite continuance in power, and Malay dominance in general. After the threat to its majority posed by the 1969 general election outcome, the BN government has since always been able to win the two-thirds majority in parliament it needs to pass amendments to the constitution. Malaysia’s political system is one which allows some competition (though within circumscribed limits) and gives some sense of general participation. Elections every five years are keenly fought and serve to provide some ‘feedback’ to government from the electorate. Dr Mahathir, for example, was critical of the emergency rule arrangements under the National Operations Council (NOC) (1969–1972), which did not allow for ‘dialogue with the people’. He saw NOC rule as unsustainable, because such governments eventually suffered a lack of ideas and lack of feedback from the governed (Mahathir, 1969: 286). However, indicating his authoritarian and elitist tendencies, he supported the need for ‘superior skill at the helm of Government … [which was] able to feel the pulse of the people [and] … interpret it correctly’ (Mahathir 1993; Johnson, 2002: 185–91). His emphasis was on the quality of the leader rather than on the efficacy of the institutions. Indications are, though, that Prime Minister Abdullah Badawi may seek to reverse this emphasis. While many commentators have dismissed the ‘Asian values’ debate in the early 1990s as authoritarian leaders seeking to justify their rule on the basis of relativist cultural claims, this debate does signal a change in attitudes from the 1970s when Tun Razak was still seeking to justify his political moves on democratic terms. In the Asian values debate, Dr Mahathir is much less concerned with ‘democracy’ and was more interested in ‘other’ models and ideologies that had roots in local (rather than Western) cultures and traditions. A cursory survey of official documents will confirm that in Malaysia the term ‘Westminster’ is infrequently attached to the descriptive ‘parliamentary democracy’ to characterise the system of government. Interestingly, it is the legal profession, who are well

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versed in Malaysian constitutional history and have a vested interest in seeking to reduce politicisation of their role, who make more frequent reference to the term. In certain areas, there are signs of a symbiosis between earlier Malay political culture and the Westminster system as practised in Malaysia. Malay culture is centred on the royal courts and the person of the ruler (or executive as in the Westminster system). There is a fascination for the subtleties and nuances of elite politics and its factionalisms and intrigues. Partly because of the lack of transparency in the largely government-dominated media, Malaysians today have a keen ear for the latest political gossip with sidewalk cafes abuzz with speculation and rumour. Ordinary Malaysians are well skilled at ‘reading between the lines’. However, they are expected to be a rather passive audience watching what is largely an eliteenacted drama. Loyalty to one’s political superiors is emphasised. Within political parties, and to the public at large, the business of government is fused with the institution of kingship. The word for government is ‘kerajaan’ – a term which, of course, highlights the centrality of the Raja. Malays are expected to emulate the classical Malay Hero, Hang Tuah, who was said to have been exemplary in his loyalty to his ruler. Active ‘politicking’ among ordinary Malaysians is discouraged – the government takes the view that citizens elect their leaders, but then should allow them to get on with the business of governing without interference. In Malay (and Malaysian) politics, a relationship with the person in power is crucial. Politicians in Malaysia have been accused of playing ‘money politics’. Dr Mahathir’s policy of ‘Malaysia Inc.’ specifically encouraged close links between government and business. The New Economic Policy of the early 1970s and later Mahathir’s Privatisation Policy, in particular, encouraged the cultivation of a wealthy Malay entrepreneurial elite and the acquisition by UMNO of immense business interests. While such developments might be seen as corruption or conflicts of interest of the highest order, it must be remembered that in traditional Malay politics, the ruler was the one who dispersed patronage as rewards and acknowledgment of status which he granted. Obviously, he was thereby able to command loyal service and to order his court and relations within it. Patronage within contemporary politics has served similar purposes – it can buy votes in UMNO party elections; it is a tool whereby leaders can assert their power and influence.

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While, on the one hand, the prime minister has taken on some of the authoritarian characteristics of the old institution of the Sultan, the grassroots support given to the rulers during the constitutional crises in the early 1980s and 1990s is an indication that the earlier ‘feudal’ political tradition continues to have potency. Rulers cannot be simply dismissed as mere constitutional monarchs – as mere symbols of power. They remain, at least potentially, as alternative bases of power in Malaysian politics, despite their limited constitutional roles. In addition, Malaysia’s plural society continues to be an important feature of political and social reality. So much of the political system has had to be built around accommodating the various communal elements in Malaysian society. It is communal politics of a high order. Most political parties are communally organised. Even newspapers, because they target specific language readerships, help to reinforce the communal ordering of society. This has both curbed democracy (with emphasis given to Malay ‘special rights’, the position of Malay rulers and to other ‘sensitive issues’ that cannot by publicly discussed) and been a pressure for greater democracy – so as to allow a wider forum in which all can participate (irrespective of race or class) on the basis of a more level playing field. Finally, there is yet another model vying with the Westminster system – that of the Islamic state. The ruling Malay party, UMNO, has had to contend with the opposition party, PAS, which is an Islamist party led by a Muslim clergy committed to living according to the tenets of the Qur’an and Hadith and, therefore, to setting up an ‘Islamic state’. While they are currently working within a democratic political system and claim they would continue to do so if they came to power, many Malays are sceptical of their commitment to a ‘secular democracy’. Actual and proposed changes in the PAS-controlled states of Kelantan and Terengganu have not always been acceptable even to moderate Malay Muslims. In order to satisfy their Muslim constituents, a PAS leadership may well be placed in the position of needing to implement more and more outwardly Islamic institutions and symbols so as to compete with UMNO (and vice versa). To a large extent, what the future holds will depend on the performance of the present prime minister. His 2004 election campaign was premised on a platform seeking transparent and corruption-free government and moderate and progressive Islam, termed ‘Islam Hadhari’. He has indicated his commitment to greater public accountability by introducing a National

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Integrity Plan and announcing plans to rejuvenate the institution of parliament. MPs are now required to follow a code of ethics, to make a declaration of their assets, and to submit a three-monthly report card on their activities to the prime minister. Measures have been taken to improve attendance in parliament, to make more use of select committees, and to give sufficient time to debate bills. However, there are no plans as yet to do a direct television or radio broadcast of parliamentary proceedings, to appoint an opposition MP to chair the Public Accounts Committee, or to provide extra research assistance and library facilities for MPs – as called for by the opposition leader (MASSA 2004c: 25–41). Furthermore, the government continues to have a formidable array of instruments with which to sustain its power and Abdullah Badawi has as yet given no indication of any intention to revoke the legislation that enables such instruments. Though in his pronouncements and actions Abdullah Badawi has thus far struck the right chords with the electorate that gave him such an overwhelming majority in the 2004 election, these same voters are closely scrutinising his performance – expecting real changes in the direction of a strengthened democracy and more accountable governance. Malaysia’s system of government based on the Westminster system is well entrenched, despite it being less democratic and more leader-focused than those who framed the Constitution may possibly have intended. The opposition would seem to have an uphill battle on its hands if ever it were to challenge UMNO’s power and institute any alternative vision (including that of an Islamic state or of a more civic and less race-based politics) for Malaysia. In contrast with many other Westminster parliamentary democracies where the principal symbol of government is the parliament house building, central prominence in Malaysia is today given to the person and institution of the prime minister. This is clearly affirmed in the layout of the new administrative centre of the federal government of Malaysia, known as Putrajaya (conceived by Tun Dr Mahathir and named after Malaysia’s first prime minister, Tunku Abdul Rahman Putra al-Haj). Here the focus is not parliament house, but the Perdana Putra building (or Prime Minister’s Office). Despite the moves to revitalise parliament, there are no plans to relocate it physically to Putrajaya. The present parliament house was refurbished in 2003–04 (at a cost of some RM50 million) primarily to cater for an increased number of seats in parliament following the 2003 electoral redelineation exercise, but also apparently to forestall calls to relocate it.

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Putrajaya’s focus on the institution of the prime minister would seem to be a clear architectural statement of the ongoing realities of power and government in contemporary Malaysia – realities that have evolved from traditional Malay polity and the (emergency) colonial government, as well as Westminster frameworks.

Notes 1 Thanks must also go to Liew Chin-tong for his reading of the text and suggestions. 2 The Federation of Malaya existed from 1948 until 1963, when the Federation of Malaysia came into existence. 3 It was only in 2001 that the Constitution was amended to include Article 160B, which provides for the king to stipulate that the version in the national (Malay) language is the valid text. The king launched the official Malay version of the Federal Constitution on 30 September 2003. 4 This was despite the fact that roughly 50 per cent of the population were nonMalays. In 1957, the population was comprised of 49.8 per cent Malays, 37.2 per cent Chinese, 11.3 per cent Indians and 1.8 per cent others, according to official sources (Means 1970: 12). 5 At that time these included the Federated Malay States of Perak, Selangor, Negri Sembilan and Pahang; the Unfederated Malays States of Kelantan, Trengganu, Perlis, Kedah and Johore; the Straits Settlements of Penang, Malacca and Singapore; the Borneo states of Sarawak and North Borneo (Sabah); and the island of Labuan (and also the Cocos Keeling and Christmas Islands, and the Sultanate of Brunei). 6 The PMCJA was renamed the All Malaya Council for Joint Action (AMCJA) in August 1947 (see Pusat 1947). 7 Lord Reid, an eminent Scottish judge, led the Commission, which also comprised Sir Ivor Jennings (a Cambridge jurist), Sir William McKell (a former governor-general of Australia), Justice B. Malik (an Indian judge) and Justice Abdul Hamid (a Pakistani judge). All were appointed by their respective governments (see Fernando 2002). 8 Abdullah Ayub in his 1961 text (1st edn) – in English translation entitled The Method of Government of the Malay Lands (1957–1963) – makes direct comment that it was a Western (UK) model of government, which was copied in Malaya (Tanah Melayu). He argues that to understand government in Tanah Melayu, one must understand something about the principles of Western government, which he then goes on to explain (Abdullah Ayub 1978: 1). 9 Between 1957 and 2003, some 45 constitutional amendments were passed, each often containing various individual amendments (MDC Legal Advisers 2003: List of Amendments). 10 The constitution (under Art. 125) enables the prime minister to recommend to the Yang di-Pertuan Agong that a judge of the Supreme Court be removed from

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11

12

13 14

15

16

17 18 19

office, providing that certain provisions are fulfilled (MDC Legal Advisers 2003). The outcomes of the ‘Anwar’ trials seemed to the general public to have been inevitable, and thus a travesty of justice. Also during the 1990s, the government and its associates used the legal system to deal with people who had been critical of the regime – a number of ‘mega’ (million dollar) defamation suits were brought against people such as economist Jomo K. S. and journalist M. G. G. Pillai. The government subsequently had to work hard to try and restore public confidence in the legal system, which it sought to do with the appointment of Chief Justice Tun Mohamed Dzaiddin Abdullah on 20 December 2000. Dr Mahathir was once critical of PM Tunku Abdul Rahman for his authoritarian role as UMNO president: ‘Tunku Abdul Rahman’s first act on assuming the presidency of the UMNO was to seek to amend the party’s constitution giving the President the right to choose his own Secretary-General and nominate six other members of the Executive Council. This amendment decisively gave the President complete control over the party … The drift back to unabashed feudalism culminated in the President naming his successor in true feudal fashion.’ (Mahathir 1971: 8) The Department of the Prime Minister has in addition two deputy ministers and two parliamentary secretaries (a total of 12 senior positions). There are in total 28 ministries (including the Department of the Prime Minister) with some 38 deputy ministers and 22 parliamentary secretaries. Of the BN’s 198 elected MPs, some 93 have senior ministerial positions, leaving 105 government backbenchers and just 21 opposition MPs. In practice, it is most often civil servants who frame the policies, which the ministers then approve. He writes: ‘I used to have an open-house whereby my colleagues or high government officials and others could come and discuss important party and state matters over lunch. Then I had only 13 members of Cabinet … it was easier to do that as the numbers were not so numerous’ (Abdul Rahman 1984: 228–9). No new parliamentary seats were allocated in Kelantan, Terengganu and Kedah, the states where PAS was strongest at the time. Amendments to the Elections Act 1958 in 2002 made it no longer possible to mount a legal challenge to the accuracy of the electoral rolls. It allowed the Election Commission (EC) to raise the ceiling of election deposits. Further amendments to the Election Offence Act 1954 raised the ceiling of electoral spending by candidates from RM30 000 to RM100 000 for a state seat and from RM50 000 to RM200 000 for a parliamentary seat, which also favoured the better resourced major parties in power (Lim Hong Hai 2003). For example, in 1968 there were 32 appointed (and 26 state-elected) senators for a total of 58 members (Jabatan 1968: 30) – compared to 44 appointed senators (and total of 70 members) at present. Following the 1999 general elections, there were a total of eight senators who were also ministers (4), deputy ministers (3) and parliamentary secretaries (1). See also Chong 2003 and MASSA 2004a: 34–7. The first meeting in the 2004 parliamentary session was from 17–31 May (14

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20

21

22 23

24

25

days); the budget meeting was scheduled for 1 September–14 December (41 days). (Barraclough 1988: 43–4) This position was created under section 2 of the Members of the Administration and Members of Parliament (Pensions and Gratuities) Act 1971. In mid-1989, Semangat 46 established the Angkatan Perpaduan Ummah (APU, or Muslim Unity Movement) with PAS and two smaller Islamic parties, Berjasa and Hamim. In 1990, just before the election, it formed a second alliance called the Gagasan Rakyat (People’s Concept) with the DAP, PRM and a small party of MIC dissidents. This was a coalition forged by KeADILan with PAS, DAP and PRM. For example, see Subky Latiff 1977: 162–3. Deputy PM Anwar Ibrahim was reported as saying, that ‘the people can do without the opposition as the Barisan Nasional is able to play “the Opposition’s role” effectively’. The opposition only created issues and confused people. Instead, the people should cooperate with the government to ensure continued progress and unity (NST 1995: 4). See also MASSA 2004c: 28 and Salleh Buang 2004: 53. The mainstream media is owned and controlled by parties in the ruling coalition. All publications must regularly apply for publication licences, which can be denied by the government. ‘Co-optation involves the absorption into the ruling political party of individual opponents in order to contain or eliminate both their motivation and capacity to oppose the former’ (Barraclough 1988: 22).

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Westminster in Singapore: Now you see it, now you don’t

6

Garry Rodan

lthough the characteristics of the Westminster system may vary, they are usually now premised on the foundations of a practising liberal democracy. Westminster is regarded as a particular way of structuring and practising democracy. Singapore’s experience of Westminster differs from this pattern – and British beliefs about Westminster were but a brief interlude in its political history. Yet this has not prevented many of the appearances of that system persisting in the beliefs of many current political actors. Accordingly, Singapore is an example of a major transformation of Westminster rather than adaptation, with formal political institutions often operating as an adjunct to, rather than as a constraint against, the authoritarian regime. The adoption in the first place of a Westminster model of sorts and its emasculation thereafter invites various questions. How was the initial British project of implanting Westminster possible? Why did it not encounter resistance from the outset? And how do we explain the subsequent rapid demise of the initial model and liberal democracy in general? Was it simply that the embodied ideas did not resonate with the prevailing political culture? Or were there other factors at least as, if not more, important?

A

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In addressing these questions, the analysis below is grounded in a theoretical conception of institutions as arrangements forged by, and reflective of, social and political conflict. These arrangements, and the ideas presented in defence or opposition to them, must be examined in the context of wider power structures and the competing interests defining them. Institutions offer a means by which interests can be advanced or blocked. Viewed in this way, the establishment, reproduction and transformation of institutions can all be seen as legacies or expressions of political conflict. These points are demonstrated by the Singapore case. In the trajectory to self-government, political institutions fostered by the British colonialists were intended to contain conflict, especially to limit the spread of communism, and preserve British interests. Yet they were, in time, transformed by other conflicts and competing interests. Struggles between Lee Kuan Yew’s English-educated nationalists on the one hand, and Chinese-educated nationalists and leftists on the other, were played out through modifications to the political institutions after self-government in 1959. Liberal democratic institutions and ideas that served the interests of Lee’s faction in the struggle against colonialism soon became a threat to the consolidation of power once he took office in 1959. Aspects of Westminster-style government such as accountability of ministers to parliament, a non-partisan public bureaucracy and the tolerance of a loyal opposition were all casualties in the ensuing establishment of a virtual one-party state by the ruling People’s Action Party (PAP). Paradoxically, though, appearances of at least some aspects of Westminster remain important to the ideological defence of the political system. In particular, notions that regular and free elections and the fundamental importance of constitutional processes prevail in Singapore are actively promoted by the ruling party and considered vital to its political legitimacy. Although neither substantively exists, continued insistence to the contrary by PAP leaders reflects both the deliberate practice of trying to harness historically liberal institutions to authoritarian ends in Singapore, as well as revealing internal contradictions characterising PAP ideology. Over time, the institutional means by which the authoritarian system is reproduced have undergone refinement and modification, as have the different ideas by which it is rationalised. Although these changes reflect some of the tensions and challenges facing the regime, they do not point to any imminent democratisation or substantive revival of Westminster government.

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Institution building and self-government Initial moves towards the development of political institutions in Singapore in the face of post-war nationalist sentiment occurred in 1948 with the establishment of a legislative council that included six elected members. However, the advent of the Rendel Commission in November 1953 marked the genuine beginning of a dynamic process towards the building of democratic institutions within which political parties representing the masses were to emerge (Yeo 1973). By this time, the British colonial government had made progress in the jungle war against the Malayan Communist Party (MCP) and felt more comfortable about lifting constraints on civil society. Indeed, the cultivation of institutions fostering political participation became a central part of the strategy to contain the influence of the MCP and to embed political moderation. A selective version of Westminster became the route through which the decolonisation process occurred.1 Accordingly, in 1954 the authorities accepted the recommendations of the Rendel Report calling for a more significant transfer of power from the colonial government to a Legislative Assembly consisting of 32 members, of which 25 were to be popularly elected with an additional three ex-officio ministers and four nominated non-officials. However, foreign affairs, defence, internal security and finance remained in British hands, and the Governor could exercise the power of veto on any proposed law. The number of eligible voters was also expanded through automatic registration. Among the new political parties to surface prior to the 1955 elections were the Labour Front Party, launched by Lim Yew Hock, David Marshall and Francis Thomas, and the PAP. However, the PAP’s distinctive strategy was selectively to contest the 1955 and subsequent elections prior to selfgovernment on the basis that the British retained considerable powers under the Rendel Constitution. The PAP thus championed itself as the only untainted anti-colonial party and consistently argued throughout the 1950s for an accelerated and more substantive implementation of representative government and transfer of power. Importantly, the PAP was constituted through a marriage of convenience between two groups that, at least temporarily, complemented each other in the quest for power. Lee Kuan Yew and his English-educated, middle-class cohorts gave the PAP the appearance of respectability and moderation in British eyes, while Chinese-educated leftists and nationalists

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such as Lim Chin Siong and Fong Swee Suan gave the party access to trade union, student and cultural organisations that could be harnessed to mass political mobilisation. It was an uneasy but powerful alliance, ultimately bringing the PAP to victory in the 1959 polls. Along the way, though, there were stresses and strains as the competing factions schemed to create conditions conducive to their respective dominance after self-government. One of the legacies of this process concerned party structure. At the 1957 party congress, Lee’s faction instituted a Leninist cell system.2 Four categories of membership were created (probationary, ordinary, probationary cadres and full cadres). From this point on, regular PAP members could not elect the members of the party central executive committee (CEC). Instead, the CEC would be chosen by a select group of cadre members who would in turn be appointed by the CEC. Rank and file members of the PAP were thus unable to hold their leaders directly to account. This system was consolidated after the party split in the 1961. Indeed, for decades, the appointment of cadres was effectively under Lee’s exclusive control. Yet simultaneous with such an anti-democratic initiative, Lee was also a robust rhetorical champion of liberal democracy in his campaigns for selfgovernment. His legal training at Cambridge University had ensured he was well acquainted with the liberal philosophical bases of Britain’s own political and civil institutions.3 For instance, in 1955 he attacked the Emergency Regulations for their incursions on human rights and free expression. ‘We either believe in democracy’, he proclaimed, ‘or we do not. If we do not, then we must say categorically, without qualification, that no restraint from any democratic process, other than by the ordinary law of the land, should be allowed’ (quoted in Josey 1974: 121). He elaborated that ‘if you believe that men should be free, then they should have the right of free association, then they should have the right of free speech, of free publication. Then no law should permit those democratic processes to be set at nought and no excuse, whether of security, inconvenience to traffic, or inconvenience to police officers, should allow a government to be deterred from doing what is right, and what it must know to be right’ (quoted in Josey 1974: 121). However, on the eve of self-government Lee was already adjusting his position. In October of 1958 he declared that if his party won the elections the Emergency Laws would be retained (Josey 1974: 127). This about face necessarily alarmed Lee’s PAP factional opponents who feared the Internal Security Council (ISC) under the new Constitution

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accompanying self-government, which included representation from Malaya, Britain and Singapore. The point was that Lee had from the outset been trying to play both ends against each other: criticising the British where it was functional for the alliance with the Chinese-educated nationalists and leftists, yet exploiting the constitutional talks and executive control over the PAP to try and ensure their containment and marginalisation at the same time. This was a dynamic process that necessarily produced tensions and contradictions in Lee’s positions. Apart from the contentious powers and composition of the ISC and the British retention of foreign affairs and external defence, the State of Singapore Act (1958) that translated the colony into a self-governing state accorded control over all domestic affairs to a 51-member legislative assembly. The components in the selective Westminster variant embodied in this Act included:

• a widening of the franchise on the basis of adult suffrage by all • • •

Singapore citizens a first-past-the-post system that produced inflated parliamentary majorities an executive fusion with the legislature, mediated through the cabinet, which was selected by the prime minister a chief of state, also selected by the prime minister and whose role, at this stage anyway, was purely ceremonial.4

There was no dissension from the notion that a unicameral legislature was appropriate for the small city-state of Singapore – either by the British or the nationalists. As we will see below, though, there were various respects in which even this particular variant of the Westminster model was substantially compromised once the PAP came to government and this was compounded thereafter with the establishment of an authoritarian regime.

Victory and the showdown begins The PAP swept to office in the 1959 polls, winning 43 of the 51 seats and capturing 53 per cent of the total votes. However, the control Lee’s faction exerted over the party leadership was more seriously tested in government now that the initial strategic purpose of helping the party to victory had been achieved. The early years of PAP government were racked with internal

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friction as it became increasingly clear to Lee’s factional opponents that both their access to power and policy agendas were being systematically blocked. The centralisation of power in the executive was projected to the public by the PAP leadership as entirely consistent with the urgent tasks of implementing reforms to arrest unemployment, generate investment and to mobilise Singapore’s limited resources (Thio 1997: 102). As the relationship deteriorated (accelerating the formal parting of ways), Lee cleverly exploited factional differences over the proposed merger with the Federation of Malaysia, something that was part of the PAP manifesto when it went to the polls in 1959. The left’s fear of merger related to the potential for the pretext of internal security to be exercised by a rightwing government in Kuala Lumpur to attack its grassroots leadership. In mid-1961, the left of the party and affiliated trade unions thus issued a series of demands on the PAP leadership that expressed deep concerns about the merger issue.5 Subsequently, Lee’s government narrowly survived a confidence motion in parliament (put by the prime minister). Thirteen PAP members of the Assembly who abstained from voting were expelled from the PAP. They quickly formed their own party – the Barisan Sosialis (BS) – and took with them the comprehensive network of grassroots organisations that had hitherto formed the basis of the PAP’s social power. Thus, by mid-1961, the PAP was but a shell of a party. This forced a major rethink on the part of Lee and his colleagues about political strategy in general and the role of the party in particular. In this strategic reassessment, the PAP leadership was able to consolidate the party’s hold on power through exploiting its executive power systematically to obstruct its opponents, embedding the party within the structures of the State, and building a new electoral base through social and economic reforms. In particular, both the formal political institutions through which political competition was channelled, as well as the broader civil society institutions needed to render that competition meaningful, were to undergo major modification. Repressive laws to block free expression and curtail independent collective organisations engaged in political activities combined with various initiatives to build up extensive structures of political co-option that saw a naked merging of state and party (Rodan 1993). It is useful to examine in detail how quickly and comprehensively key features of Westminster government were undermined as a result, and how these developments were rationalised by PAP leaders.

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Politicisation of the civil service One of the first respects in which the political system of Singapore was significantly to depart from Westminster concerned the politicisation of the civil service. Almost immediately upon taking office Lee looked to the civil service as a political ally in the struggle to swiftly implement a reform agenda that would generate popular support and undercut the appeal of more radical alternatives. In a speech at the opening of the Civil Service Political Study Group in 1959, the establishment of which was itself a political exercise, Lee (1998b: 319) cautioned: ‘And let us never forget that the communists are only too ready to offer the people more drastic alternatives in social revolution than the democratic system of government. It is our duty to see that the people are never confronted with such an alternative of despair’. Not only did conservative civil servants come to appreciate the antileftist stance of the PAP under Lee, they quickly understood that the government’s policies of social and economic intervention significantly enhanced their power. The establishment of various para-statal bodies such as the Housing Development Board (HDB), the Economic Development Board (HDB) and the Public Utilities Board (PUB) afforded considerable influence to bureaucrats, as did the dissolution of the City Council and the transfer of powers to the civil service early in Lee’s tenure. Following the party split, the shift of power to the public bureaucracy gathered considerable momentum, not just because development plans and social reforms were stepped up to position the PAP at the polls, but also because the PAP looked to the civil service, not the party, to bolster its policy-formation capacity. No less significantly, the PAP also deployed state bureaucracies in building new organisational structures for political co-option and propaganda, including the establishment of Citizens’ Consultative Committees (CCCs) in Singapore’s 51 constituencies (Seah 1973; Chan 1978).6 Chan’s concept of the ‘administrative state’ captured much of what was transpiring (Chan 1989). This referred to a political system where there was, first, a depoliticisation of the citizenry and, second, a significant increase in the power and role of bureaucrats. The depoliticisation involved the institutionalisation of the notion that public policy issues were technical matters best handled by a technocratic elite and guided by goal-oriented values of efficiency and effectiveness, rather than ideological objectives.7 Through this process there was, according to Chan (1989: 78), ‘an enlarged

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ambit of decision-making placed in the hands of the bureaucrats’ within which ‘meaningful’ political power was shifting from the political executive to the bureaucracy. Indeed, the distinctions between the two were becoming blurred (Chan 1975: 51), a point also symbolised at another level as the civil service and statutory bodies became the chief recruiting grounds for electoral candidates to be fast-tracked into ministerial positions.8 Chan’s concerns in the mid-1970s about the lack of accountability of the rapidly developing power of the civil service applied particularly to government-linked companies (GLCs), which enjoy considerable autonomy. However, these have since proliferated in both number and significance, as Worthington’s (2003) recent comprehensive study of Singapore’s governance system indicates. His study also details for the first time the extent, nature and dynamism of a contemporary core executive, its relations to the different arms of the state and the power it exercises. He argues there are not just inadequate structures of accountability and transparency overseeing that power, but a political culture that is hostile to these concepts (Worthington 2003: 230-1).9 To illustrate just one dimension of the accountability shortfall, the operations of the government’s investment arms have been, for the most part, shielded from any detailed public record or scrutiny, despite the enormous scale and importance of the capital involved. Singapore’s Government Investment Corporation (GIC), for example, which was established in 1981, manages more than S$100 billion of taxpayers’ money in overseas investments. Its sister firm, Temasek Holdings, established in 1974, has a global portfolio of S$90 billion (Mellor 2005:54).10 Yet Singapore’s legal and regulatory regimes exempt both from routine external reviews of operations. The GIC is especially secretive, with no requirement to report to parliament. It reports only to its board, which is chaired by Lee Kuan Yew. The actual composition of that board wasn’t publicly revealed until 2001. Temasek is also only required to report to the finance minister and a small parliamentary budget committee (Vennewald 1994). GLCs may be escaping parliamentary scrutiny, but they are attracting increasing critical comment from interests within the international financial community seeking a dismantling of the developmental state in Singapore. Possibly it was no coincidence that in early 2001 a document authored by a so-called ‘Tan Boon Seng’ (2002), entitled ‘Why it might be difficult for the government to withdraw from business’, was widely circulated to

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international journalists by email. It provided an in-depth listing of the extensive involvement in GLCs by:

• present and former cabinet ministers and their relatives • active and retired senior military personnel • serving and former members of the PAP in GLCs. This included some 50 senior government officials holding ‘key appointments’ while still in government. There were no allegations of corruption, but the clear inference was that a host of material and political interests were now intermeshed and embedded in the GLCs that would take some shifting.11 The development of these structures has been carefully nurtured through systems of patronage over which Lee Kuan Yew has exerted paramount influence. They are a critical dimension of networks through which Lee has continued to shape the exercise of state power long after handing over the mantle of Prime Minister to Goh Chok Tong in 1990. Consequently, they are also a strategic site of internal tension if any serious PAP factionalism were to develop (see Worthington 2003). Incidentally, the dominance of the GLCs in part reflects the suspicion and distrust historically developed between the PAP and the ethnic Chinese-dominated domestic bourgeoisie. In the 1960s, the PAP’s Englisheducated middle-class leaders had been regarded by many within this class as a threat to Chinese language and culture, and insufficiently sympathetic to their business interests. Consequently, elements of the domestic bourgeoisie ended up supporting the Barisan Sosialis. The PAP’s subsequent promotion of export-oriented industrialisation (EOI) was thus conducted through foreign investment, GLCs and statutory bodies. This has not entirely excluded personal links between political elites and individual business figures, or their occasional co-option into the policy process (Hamilton-Hart 2000). Indeed, over time the mechanisms for the co-option of business have been extended and refined. However, the increasing importance of the state sector, and hence dependence on it by domestic business, has served to further ensure that it is concerted co-option and not interest representation to government (as per political pluralism) that is involved.12 Importantly, the intimate and strategic melding of the PAP with the civil service does not necessarily mean that civil servants in Singapore do not occasionally – either expressly or obliquely – attempt to depict either their

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own positions or the system’s broader workings with reference to Westminster. These beliefs underline the power of the ruling party’s ideology internalised by state functionaries. It also helps obscure for officials the distinction between serving an elected government and being harnessed to party-political ends. However, in the South-East Asian context, where corruption and crony capitalism have often substantially compromised the integrity and reliability of civil services, concepts of Westminster are also useful in attempts to positively project the Singapore system to outsiders and to distinguish it from others in the region.

Parliament and opposition None of the above is to suggest that the political executive is not firmly in control. PAP governments have chosen to transfer progressively executive functions to various boards, GLCs and the civil service – a form of powersharing on the political executive’s terms. Yet it is unlikely that a reversal of this would, of itself, make much difference to the scrutiny of power within parliament. This is because the acute concentration of power in the political executive of the ruling party combines with an equally acute parliamentary dominance and discipline by the PAP. Given the systematic constraints on opposition and civil society, that parliamentary dominance is not likely to change in the foreseeable future. The only time the PAP’s parliamentary power has faced anything like a check was after the party split in July 1961 that produced 13 BS opponents. By 1966, though, the BS had become so frustrated with the way the political system impaired genuine competition for power that they indefinitely boycotted elections, leaving the PAP to a monopoly in parliament until 1981 when a lone MP – the Workers’ Party leader J. B. Jeyaretnam – broke through in a by-election. Since then, the capture of four out of 81 seats in the 1991 election is the best result opposition parties have been able to achieve, even though they have averaged around 30 per cent of the vote. The disintegration of the BS certainly did not result in any relaxation of PAP curbs on political competition. Instead, the PAP leadership turned its attention to ensuring that social transformations accompanying Singapore’s rapid economic development, including the emergence of one of the most sizeable middle classes in Asia, would not pave the way for new oppositional groupings or alliances.

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Throughout the long period of almost absolute political ascendancy by the PAP, parliament has long ceased to be a serious debating forum, let alone an avenue through which government power was scrutinised. Attempts by Jeyaretnam to alter that led to a sustained and ruthless political persecution (Lydgate 2003). Less combative individuals whose ideological differences with the PAP were more blurred have been able to avoid this wrath, but precisely because they represent no force in parliament for serious critical engagement. It should be remembered that Lee’s attitude to democracy, and by implication opposition, was put frankly as early as 1962 when he observed: ‘if I were in Singapore indefinitely, without having to ask those who are governed whether they like what is being done, then I have not the slightest doubt that I could govern much more effectively in their own interests. That is a fact which the educated understand, but we are all caught in this system which the British … export all over the place, hoping somewhere it will take root’ (Lee 1998b: 367). But Lee managed to break free of this system by two means: first, by suffocating civil society (Rodan 1993); and, second, by deploying administrative laws and other procedures and regulations through the State to increase the difficulty of electoral success by opponents (Jayasuriya 1999). The rationalisations for this were to vary over time. Much was made in the 1960s, for example, of the failure of merger with Malaysia and the imperatives this represented for political and economic survival. Above all else this demanded the internalisation of a new set of attitudes and beliefs that embodied self-sacrifice for the ‘national interest’ – which the PAP proclaimed the sole right to interpret. Lee emphasised that ‘our best chances lie in a very tightly organised society’ (quoted in Chan 1971: 51). Eventually he was to rationalise the authoritarian system in culturalist terms with proclamations about so-called ‘Asian values’ that emphasised Chinese and Confucian heritage (Zakaria 1994), but this was very much after the event. The implications of the PAP’s hostility to civil society for political opposition are neatly encapsulated in the Societies Act. This act bars political engagement by organisations not specifically registered (with the Registrar of Societies) for that purpose. It not only has the effect of curtailing public debate and discussion, but also militates against the formation of interest and pressure groups so essential to the social base of political parties. Its application, however, is in practice exclusively directed at non-PAP affiliated organisations.

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Moreover, for opposition parties that contest elections in spite of such impediments, there is a host of further problems with which to contend. They reflect how deeply the PAP’s interests are protected through seemingly independent administrative and bureaucratic processes of the State. Electoral gerrymandering is one such problem. Every three years boundaries are reviewed and can have variances within plus or minus 30 per cent. The Electoral Boundaries Review Committee responsible for this is part of the civil service, not an independent statutory authority. Troublesome electorates where there have been government defeats or close calls have regularly disappeared. Recently, this has taken the form of absorption into multi-constituency electorates – Group Representation Constituencies (GRCs). The timing of announcement of boundary changes is also a strategic political resource. For instance, on 17 October 2001, the Elections Department announced new boundaries. The next day, Prime Minister Goh Chok Tong declared that a general election would be held on 3 November. Again there were major changes to boundaries, leaving virtually no time for comprehensive constituency-level campaigns.13 Significantly, in 2003 the government’s Remaking Singapore Committee, established to consult widely and make recommendations on social and political reforms, did not endorse public submissions calling for an independent electoral commission and routine advance notice of boundary changes. Attempts by opposition parties to hold public rallies also encounter difficulties with the authorities. Permit applications from police to legally hold rallies routinely experience lengthy delays in a city-state that is otherwise renowned for efficiency. Often meetings have to be cancelled because approval has not arrived in time to advertise in advance of rallies. It was repeated frustration over difficulties involving administrative procedures that ultimately led the secretary-general of the Singapore Democratic Party (SDP), Chee Soon Juan, to deliberately breach the Public Entertainment and Licensing Act by speaking in a public place without a permit, leading to his imprisonment on two separate occasions: in 1999 and 2002. The tight control that the government exerts over the media further reduces the capacity of the opposition parties to compete effectively at the polls. Domestic media are dominated by GLCs, whose editors are in general unapologetically pro-government. International media are also extremely cautious to avoid direct and indirect financial penalties – either by fines through the courts or circulation cuts – for ‘engaging in domestic politics’

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(Seow 1999; Rodan 1998). Attempts by opposition parties to use the Internet to explain and promote their programs have also met with new legislative constraints (Rodan 2003). As if these difficulties were not enough, the PAP has demonstrated a preparedness to enact and threaten political persecution in order to discourage serious opposition. The PAP’s propensity for litigation against political opponents is unparalleled, with the courts routinely obliging by awarding astronomical damages (Lydgate 2003; Seow 2005 forthcoming). As well as making examples of the more determined and capable adversaries, Goh Chok Tong also used threats at the last two ballots that electorates returning opposition candidates would be last to receive upgrading to public housing – in which 86 per cent of Singaporeans live – and risk becoming slums (Suh and Oorjitham 1997; Restall 2001). Goh’s stance on opposition for the most part mirrored that of his predecessor Lee, explicitly rejecting the idea that opposition per se is either functional or desirable. In 1996, for example, he stated that he had never believed in opposition politics, ‘certainly not the type we have in Singapore’ (quoted in Straits Times 1996). Goh explained that: ‘I do not believe in constant bickering and struggling for power’ (quoted in Straits Times 1996). Indeed, he went so far as to describe the Singapore Democratic Party’s Chee Soon Juan’s combative style of politics as a ‘cancerous cell’ and a potential ‘infection’ that he did not want to afflict on parliament (Straits Times Interactive 1996). According to Goh (1986: 16), if two parties ‘represent opposing ideas, then the country will zigzag like the other democracies’. He has also contended that Singapore’s small size means it cannot afford to spread its talents thinly through competing parties (Goh 1986: 16). Goh has, however, played a particularly important role in articulating the PAP’s ideological position, which places great store in concepts of consensus, participation and consultation. These ideological beliefs have translated into significant constitutional reforms and initiatives in recent decades. This includes the Non-constituency Member of Parliament (NCMP) scheme,14 the Nominated Member of Parliament scheme (NMP), expanded use of parliamentary committees and the Feedback Unit run out of the Ministry of Community Development. The most successful and important of these is the NMP scheme, introduced through an amendment to the constitution in 1990. Initially, this provided for up to six non-elected MPs to be appointed, each

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for a potentially renewable two-year term and with limited voting rights. This was extended to nine MPs following the 1997 election when the opposition won two seats. The president makes NMP appointments on the advice of a special parliamentary select committee and approved by the prime minister. The official rationale for NMPs was to bring individuals with expertise and ability to parliament, not to represent any constituency or interests. However, they have tended to incorporate functional representation including from labour, local business, ethnic, women’s and environmental groups. The scheme constitutes a new form of political cooption, a pre-emptive measure to encourage these groups to channel their grievances through a PAP-controlled institution, rather than through independent organisations that might seek to compete with the PAP.

The constitution and checks on the political executive The PAP’s parliamentary dominance has clearly translated into extensive legislative and constitutional initiatives and reforms directed at constraining political opponents and critics. In such a climate, the nature of the constitution and the capacity and inclination of the courts to act as a check on the power of the political executive in the light of that constitution becomes even more important under Westminster. Parliamentary supremacy, although fundamental to Westminster, is to be guided by constitutionalism. However, in their different ways, analysts have expressed serious concerns about the judiciary as the custodians of the constitution in Singapore. Crane, Gillen and McDorman (1998: 189) observe, for example, that in Singapore there was ‘a high degree of judicial deference to the will of Parliament and the executive in cases with political echoes’, such as prosecutions of government opponents and of media organisations, as well as challenges to legislations intended to curb civil society. Tremewan (1994), Jayasuriya (1999) and Seow (2005 forthcoming), by contrast, were more blunt in contending that rule of law simply becomes rule through law in Singapore when the interests of the PAP are involved. The International Commission of Jurists, Amnesty International, Britain’s Privy Council, and the US State Department are among the bodies to have levelled serious criticisms of judicial processes in Singapore. The Singapore constitution contains provisions declaring that laws inconsistent with the constitution are invalid. It also contains numerous

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provisions concerning the maintenance of the independence of the judiciary from interference from the executive or legislature. However, through a number of high-profile cases where attempts have been made to test the constitutionality of the executive’s actions and legislation, the government has made its hostility to the concept of constitutional supremacy abundantly clear and judges have tended to yield to that view. As Crane, Gillen and McDorman (1998: 187) have pointed out, ‘the courts have affirmed the view that the judiciary will not question the nature or sufficiency of evidence relied upon by the Executive in the exercise of discretion’. These cases include challenges over the absolute discretion of the executive to grant licenses to hold public meetings, over restraining orders and detention orders made by the Minister of Home Affairs under the Maintenance of Religious Harmony Act and the Internal Security Act respectively, and over discretion open to the Minister for Information and the Arts in interpreting what constitutes ‘interfering in the domestic politics of Singapore’ by international newspapers circulating in Singapore. The record of the judiciary in defamation cases against the PAP’s political opponents is also one of exceptional sensitivity to the views, prescriptions and logic submitted by, and on behalf of, PAP leaders (Seow 2005 forthcoming). The processes by which the judiciary are appointed and the structural conditions under which the judiciary operates certainly make influence from the political executive possible (Worthington 2002). Importantly, the PAP’s parliamentary dominance is such that it can easily alter the constitution. At the time of independence in 1965, constitutional changes required a two-thirds majority of parliament. This was soon altered to require only a simple majority of parliament. Later, in 1979, the requirement was changed again to require a two-thirds majority. But at no time has there been any prospect of constitutional initiatives being blocked in the legislature, and there have been some major changes. These not only include the NCMP, NMP and GRC initiatives referred to above, but also the transformation of the hitherto ceremonial presidency into an elected position with significant powers. Amendments to the constitution in 1991, which came into effect two years later, meant that the people of Singapore now directly elect the president for a six-year term. This represented a major shift away from the traditional Westminster-model ceremonial head of state. However, the powers that came with the amendment were partial and custodial, with no

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provision for initiatives. The president’s most significant custodial discretionary powers are over the financial reserves and appointments to the public service. In particular, they enable the president to disapprove a budget that draws on reserves accumulated by a previous government. The PAP leadership argued the need for the amendments as a safeguard against a freakish electoral result that produced an irresponsible government with designs on squandering the nation’s hard-earned resources (Thio 1997: 101). The surmised ‘irresponsible government’ the amendments were designed to constrain was clearly aimed at any future non-PAP party or parties that might, against all the odds described above, somehow break through at the polls. In effect, the head of state position has become a hybrid between a purely ceremonial and an executive presidency. This constitutional reform underlined the PAP’s deep resentment at even the possibility of it losing power and its determination to hamstring any successor. The detailed list of qualifications that presidential candidates must meet to be eligible to contest the post is further evidence of this, including having to have held one of a series of listed offices and to be determined ‘a person of integrity, good character and reputation’ by the Presidential Elections Committee (PEC). Almost by definition, for the foreseeable future the position is only available to someone who is part of the PAP establishment. Thus, claims by the PAP government that its amendment was designed to check the power of the parliamentary executive were disingenuous. As Thio (1997: 134) has argued, if this were the real motivation, then releasing the constraints on parliamentary opposition would do much more towards that goal. Rather, while the other constitutional changes were designed to inhibit genuine opposition under the pretext of enhancing minority rights and political participation, this measure provides a potential mechanism to ensure the PAP still has considerable indirect blocking power if it were out of office.

Conclusion: The merging of party and state The demise of liberal democracy and key features of Westminster government in Singapore was in the first instance the outcome of a power struggle within which Lee Kuan Yew and his factional colleagues in the PAP took full advantage of their strategic control of the political executive. In particular, they used this position not just to block and contain their internal and external political

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opponents, but also to establish a power base independent of the party. Over time, this culminated into a comprehensive and systematic merging of state and party, with the independence of the civil service but one casualty. The capacity and inclination of the judiciary to exert independent scrutiny of the way that executive power is exercised and the tenability of opposition per se – whether through formal political channels or broader civil society activities – were also adversely affected by the birth of the de facto one-party state. The embrace by Lee of liberal democratic ideas in the 1950s coincided with his contemporary interests. These ideas were functional in both exerting greatest pressure on the British for a serious transfer of power and in forging an alliance with forces capable of bringing his group to office. But with self-government, Lee’s peroccupation changed from how to grab power to how to retain it, and new conflicts surfaced. Although Lee may have been ambivalent about democracy from the outset, it is also likely the party split and the predicament this placed the PAP in crystallised many of his reservations. In other words, it acted to accentuate Lee’s anti-democratic dispositions. This is different from invoking cultural determinist arguments about Confucianism to explain the transition to authoritarian rule in Singapore, which is effectively what Lee Kuan Yew and his admirers eventually attempted through the ‘Asian values’ discourse. After all, the necessity of such drastic measures by Lee was a testament to the vibrancy of civil society and the promising start that democracy had made in the citystate. There were competing interests who understood the utility of democratic processes to their causes, which applied no less to many of Lee’s ethnic-Chinese opponents as it did others; just as Lee understood the threat these processes posed to the interests he sought to advance. There certainly was no inevitability that either Lee’s faction, or its preferred form of political system, would prevail. Having embedded itself in power, though, the PAP has in recent times embarked on a concerted attempt to update the ideological rationalisation of its dominance. Concepts of consensus, participation and consultation loom large in this, all premised on the idea that the way forward for everyone is to work with the PAP, not against. These concepts, as we have seen, are increasingly backed by attempts to promote new political institutions. Yet there remains a curious sensitivity on the part of PAP leaders to criticisms that Singapore’s system departs from liberal democratic practice. They are at pains to convince international audiences in particular that the

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political system is fair and competition is unimpeded, that the legal system is absolutely independent, that the civil service is likewise apolitical. This defensiveness and insecurity is not consistent with the idea that the PAP’s political ideas flow naturally from some deeply embedded Chinese cultural heritage, as enunciated through official rhetoric about ‘Asian values’. It also suggests a lack of confidence by the PAP leadership that Singaporeans are sufficiently inclined towards a similarly dismissive attitude to liberal democratic ideas as their own. Paradoxically, elections have become an important part of the legitimisation of the authoritarian regime in Singapore. Electoralism, if not democracy, is likely therefore to endure and selective appearances of Westminster government, if not the substance, can play a role in this.

Notes 1

2

3

4

5

Apart from the chair, retired British diplomat Sir George Rendel, the commission comprised: Attorney-General E. J. Davies; the President of the City Council, T. P. F. McNiece; five nominees of the non-official members of the Legislative Council, including Tan Chin Tuan (Straits Chinese British Association), Ahmad Bin Mohammed Ibrahim (Naval Base Fire Brigade Union), C. C. Tan and N. A. Mallal (both of the Singapore Progressive Party, which was essentially a party dedicated to the protection of domestic mercantile business interests and whose aspirations for self-government were limited) and Lim Yew Hock (General Secretary of the Singapore Clerical and Administrative Workers’ Union); and C. J. Smith, a European non-official nominated by the Governor, who was at the time the senior partner of the Singapore Law firm Donaldson & Burkinshaw. The concept of an elite ‘vanguard’ of the party that enjoyed tight control over, but insulation from the scrutiny of, members has attracted critical attention from both commentators and scholars. See Rosett (1990) and Chung (1999). For analyses of Lee’s experiences at Cambridge and the significance of his time in Britain for his political development, see Minchin (1990), Barr (2000) and Lee (1998a). When Singapore became independent in 1965, it adopted the 1963 constitution prepared for membership of the Federation of Malaysia, which was derivative of the 1958 constitution. In 1980, though, the Singapore government produced a consolidated constitution of Singapore that has thereafter been deemed the authentic text of the Singapore constitution (Crane, Gillen and McDorman 1998: 178–9). On 2 June 1961, the ‘Big Six’ trade union leaders and the party’s left wing issued a statement that demanded genuine self-government for Singapore and the abolition of the ISC. Then on 12 June, the ‘Big Six’ widened the attack on the PAP leadership, raising concerns about: the failure of the government’s

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representatives on the ISC to secure the release of political detainees arrested before 1959; the abuse of civil liberties, such as freedom of speech and the press, through the Preservation of Public Security Ordinance; the failure of the government to unify the trade union movement; the deprivation of citizenship rights for left wing anti-colonialists; the restrictions on Chinese education; the PAP’s attempts to control the Singapore Trades Union Congress; and the absence of intra-party democracy. Appointments to these grassroots organisations were made by the Permanent Secretary in the Prime Minister’s Office and were intended to neutralise or minimise political dissent by, first, favourably presenting government policy and, second, steering disaffection through government-controlled institutions. According to Chan (1989: 78), an administrative state ‘seeks to establish linkages between government and the wider political arena in the form either of party branches or grass-roots institutions to guide the implementation of goals and the delivery of political goods and services’. This was, however, a deeply political and ideological exercise, but one that was concealed. Ho (2003: 289) was to later argue that Chan’s concerns about the possibility of bureaucrats accruing power at the expense of the political executive didn’t eventuate. Instead, he contended that: ‘The importance of mutual confidence and loyalty between the Singapore bureaucracy and the PAP political leadership cannot be overemphasised’. For Ho, ‘because of the tremendous involvement of the one party state in society, bureaucrats have considerable influence over public policy, either on their own or in concert with the government actors’ (Ho 2003: 288). He reported that interview respondents from within the core executive seemed to find ‘the idea of having parliament or any genuinely independent person or body which can hold the core executive to account for its actions is repugnant and dismissed as irrelevant’ (Worthington 2003: 230–1). Temasek holds substantial stakes in a range of GLCs, including public-listed companies such as: Singapore Telecommunications (SingTel), Singapore Airlines (SIA), Development Bank of Singapore (DBS), property company CapitaLand, shipping and logistics groups Neptune Orient Lines and SembCorp Logistics, rail operator SMRT Corp., defence industries group ST Engineering, and technology group Chartered Semiconductor Manufacturing. Unlisted investments include Singapore Power and Port of Singapore Authority Corp. (PSA). Significantly, at no time did the government attack the factual accuracy of the document, something that it is generally quick to do when seeking to dismiss or deflect critical scrutiny. International capital has also been increasingly brought into institutionalised forms of interaction with state instrumentalities, such as the International Advisory Council (IAC), comprising the heads of leading transnational corporations involved in manufacturing and the International Advisory Panel (IAP), which is the counterpart for the finance sector. Opportunities exist to influence policymakers in Singapore, but again this is largely a state-controlled process rather than an exercise in political pluralism.

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13 Opposition parties and candidates have taken punts on the retention of certain constituencies but it can be fruitless. The eradication of Kampong Glam in the 2001 redrawing of boundaries, for example, put paid to two years of campaigning by Sebastian Teo. 14 The NCMP scheme provided for up to three of the highest polling opposition candidates being offered a seat in parliament with limited voting rights. Lee explained the move along the lines that: ‘Younger PAP leaders need opposition members in parliament as sparring partners to keep them fit and agile … I have come to the conclusion that we might need to ensure that several better and more intelligent opposition members are in parliament’ (quoted in Asia Research Bulletin 1983). Yet in the parliamentary speech introducing the bill he also ridiculed parliamentary democracies elsewhere, where oppositions played a prominent role (see Rodan 1989: 171). A likely factor behind this initiative was the fact that Lee’s political persecution of Jeyaretnam was serving only to generate public sympathy for him. In any case, opposition parties were mostly hostile to the scheme and were more intent on having the obstacles to open political competition being removed so they could have full voting rights and a mandate from the people.

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Australia: The Westminster Model as tradition

7

R. A. W. Rhodes

t would be a brave person to venture into such well-trodden territory as Australia’s Westminster model of government in the hope of saying something new. It would also be foolish to seek to arbitrate in a long-running Australian dispute about the relative importance of Westminster and federalism as lenses for viewing Australian government. Here, I seek to be both brave and foolish. In this chapter I examine the Australian experience of the Westminster model, exploring how the country developed its distinctive governmental beliefs and practices. In the first section, I identify two uses of the phrase ‘Westminster model’ – as historical description, as normative guide to constitutional design – arguing that each has manifold defects. In the second section, I look at the Westminster model as an Australian governmental tradition. I argue that, from federation, the Westminster model was but one, variously understood tradition among several in Australian government. Finally, I conclude it is alive and well among the Australian political elite because it provides a legitimating myth justifying the Commonwealth’s search to centralise political power.

I

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Uses of the ‘Westminster Model’ In most of the Australian government literature the phrase ‘Westminster model’ has two uses: as a descriptive-historical account of Australian government and as normative guide to constitutional design.

Descriptive historical Perhaps the most comprehensive attempt to characterise Westminster systems is Lijphart (1999). His version of the Westminster model is modernist–empiricist; that is, institutions such as legislatures, constitutions and civil services are treated as discrete objects that can be compared, measured and classified (Bevir 2000: 478). The model has the following characteristics: one party controls the power of cabinet, cabinet dominates parliament, a two-party system, the government is formed from the party with the majority in the lower house, interest groups exert pressure on government in a pluralist fashion, government is unitary and centralised, legislative power is concentrated in one house, conventions allow government to be flexible, judicial review is absent, and central banks determine monetary policy. Using this model Australia does not qualify as a Westminster system! Indeed, Lijphart finds only three countries that approximate to his version of the model: Barbados, New Zealand and the United Kingdom. At best, the latter two are but approximations. For example, with devolved governments in Scotland and Wales and membership of the European Union, it is arguable the UK is either unitary or centralised let alone both. R. J. Jackson (1995: 5) identifying nine models, scathingly dismissed the contribution by Australian political scientists to the debate about Westminster! He is overly critical. Rather than nine models, it is more economical to talk of three dominant models: responsible government and its variants, federalism and its variants, and those models built around the ‘dilemma’ of reconciling the other models. Also, some of these ‘models’ are dignified by that term. For example, Butler’s (1973) Westminster variant is more a series of remarks on Australia’s Westminster system than a model.1 Nonetheless, as the Table 1.1 of this volume clearly shows, Jackson is correct to stress the lack of agreement on how best to characterise the system, the confusion of descriptive and normative strands in many models, and the inappropriate use of foreign analogies.2

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Normative models A great many uses of the Westminster model are prescriptions for reforming or preserving the constitution purporting to be descriptions of the system. Marchant (1999: 31–2) provides a wondrously eccentric version to justify his rejection of constitutional reform:

• • • • • • • •

the system is based on freedom of the individual church and state are separate parliament is sovereign the monarch is head of the State all citizens must abide by the laws passed by parliament an independent judiciary separation of powers, legislature, executive and judiciary the public service is independent.

I have no idea why the separation of church and state is uniquely Westminster. But it is not my wish or intent to criticise. I want only to record the normative strands in the debate surrounding Westminster, which is marked in accounts of federalism. This strand is all too apparent in the views of the Australian Labor Party about federalism. It sees it as a conservative form of government. Even the Liberal Prime Minister Malcolm Fraser (1975: 25) conceded that: ‘A federal system of government offers Liberals many protections against those elements of socialism that Liberals abhor’. Equivalent views are easy enough to find among academics also. Sawer (1969: 152) notes that Englishspeaking countries consider it as a ‘weak, conservative and legalistic form of government’.3 Wilenski (1983: 82–7) argues that Australia is characterised by ‘regional unity rather than by its diversity’ and that Labor wants to increase Commonwealth powers because it seeks radical change and equates federalism with ‘weak and conservative governments with a minimal interventionist role. … Federal constitutions make difficult those changes desired by a majority of electors but resisted by minorities in the smaller constituent states. That is the price paid by the majority to the smaller constituents for their entry into federation’ (Wilenski 1983: 84). It was a ‘frustration with the obstacles in the path of their programs to improve social conditions … that led Labor leaders to support a philosophy of centralism’ (Wilenski (1983: 85). So, ‘The rhetoric of State rights … is

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usually the rhetoric of the right’ (Wilenski (1983: 86). Even less politically aligned critics see non-decisions where others see conservative bias. Thus, Spann (1975: 65) argues ‘the main effect of federal rivalries in Australia has been not in what is decided, but what is not decided … in widening the area of government non-decision making and non-policymaking’. Wilenski is correct to observe that constitutions are not value-free, but Labor criticisms of federalism are laden with irony. It doesn’t slow down Labor initiatives only. As a centralising Howard government implemented its program of radical change – a program in no way progressive – the Laborcontrolled states constrained it. Against the backcloth of the past decade, ‘conservative’ can be seen as a pejorative label. Federalism is one of the checks and balances in the Australian governmental system. It affects all governments, not just Labor (and on how the ALP reconciled itself with federalism see Galligan 1995). So, both the descriptive and the normative uses of the phrase ‘Westminster model’ encounter severe problems. Neither will detain us further. Rather, I treat the Westminster model as a tradition and focus on two questions. What traditions shape Australian governance? How do these traditions shape our understanding of executive government in Australia? In answering these questions, I argue that the Westminster model has many, contradictory strands. Which characteristics observers stress depends on the spectacles they choose to wear. There are several traditions in Australian government and each stresses different facets of the Westminster model.

Traditions of Australian governance Many agree with Weller and Fleming’s (2003: 14) assessment that: The founders of the Commonwealth Constitution accepted, almost without dispute, the British system of parliamentary government for the new Commonwealth, a system which had already been adapted to the needs of Australians as the Australian colonies gained self-government after 1850.

It prompts several reflections. It is still rare for commentators to admit that federal theory has deep roots in Australian constitutional design. Even before the Federal Conventions of the 1890s, there were debates about territorial decentralisation and the Convention debates clearly show that the

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smaller states insisted on a system of checks and balances as a counterweight to responsible government. So, to go with its ‘Westminster’ system, Australia has a written constitution with judicial review and separation of powers – between head of state (governor-general) and head of government (prime minister); between the Commonwealth and states (Federalism); and between the House of Representatives and the Senate. Australia has both a British (responsible government) and an American (federal) heritage (Galligan 1995: 46–51). That said, there are three responses to this inheritance. First, many commentators pass over federalism. Thus, Butler (1973: 5) notes that Australia combines parliamentary government with federal government, describes Australia as a pioneer but then ignores federalism for rest of the book; for example, there are a mere three entries in the index and no chapter on the topic (or even the states). Second, they treat federalism as an unwelcome distortion of the Westminster model. Thus, Reid (1981: 312–16) talks of the ‘three distorting influences’ (emphasis added) that federalism exerts on responsible government; namely, legalism, an elected senate and a formal division of powers. Finally, they treat the two government structures as incompatible. Lucy (1993: 292) claims that ‘Australian Federalism is incompatible with responsible party government’ (see also Sharman 1990). When such commentators grapple with federalism, the result is usually a call for constitutional reform. Here, I want to adopt a different tack. I want to argue that presentday Australian government is the heir to several traditions and each tradition constructs the structure of government differently. So, there is not one Westminster model but several because each tradition constructs it differently. There are at least four traditions in Australian government: the colonial heritage, responsible government, federalism and neoliberalism. The meaning of Westminster depends on the spectacles, or tradition, through which you look at it (see Table 7.1). None are dead traditions. My account is not a chronology. Each of these governmental traditions influences the beliefs and practices of present-day politicians; for example, their understanding of Westminster. Of course, these are not the only traditions in Australian government. Other examples include Benthamism, socialism and feminism. I cannot cover every tradition. I chose these traditions because they were the most relevant for answering my two questions.

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TABLE 7.1

Traditions of governance in Australia

Traditions

Colonial

Source of legit- Governor-inimacy Council

Responsible government

Federalism

Neoliberalism

Parliamentary

Popular sover-

Liberal-market

sovereignty

eignty

economy

Party govern-

A federal

ment

republic

Centralisation Notion of

States’ rights

executive government Public service

Managerialism Concurrent fed-

Fragmentation – statutory

Neutral, perma- eralism

Examples

bodies

nent

(i) Academic

Finn 1987;

bureaucracy

(ii) Practit-

Brown 2003

ioner

Kelly 1994; Galligan 1995;

Watson 2001

Official Record Parker 1976,

1986

1978, 1980a; Menzies 1967 Note: The table draws on Davis 1998, Wanna and Weller 2003 and the citations in the text.

The tradition of colonial self-government It is not my intention, or within my capacity, to write a history of colonial Australia. For my purposes, I need to identify those aspects of nineteenthcentury government that exert an influence today and for that exercise I can rely on secondary sources (see especially Finn 1987, Hancock 1930 and Wanna and Weller 2002). Australia was a settler society. Holland (2003: 637) notes that Australia ‘comprehensively ignored’ that ‘crowning charter of dominionhood’, the 1931 Statute of Westminster. He argues ‘the politico-constitutional experience with regard to the “colonies of settlement”’ fed into ‘the later management of change in the dependent empire’ (Holland 2003: 645). Australia’s political and constitutional development helped to shape constitution-making for the other Westminster systems in this book and the incremental, pragmatic nature of that development was influential. As Finn (1987: 2) shows, ‘the colonies assumed their own character,

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had their own relatively isolated economies, had systems of administrative government which differed at least in their balances and emphases’. There was a ‘blending of regional variations and British dependency’. He argues there was an important and distinctive ‘indigenous contribution made to the development of Australian law and government’. There were two major differences with Britain. First, in the colonies the forces at work were ‘“centrifugal” so citizens looked to the central [colonial] governments for the satisfaction of needs’. Second, ‘the raw conditions of the colonies … impelled governments into activities without counterpart in Britain’ (Finn 1987: 3 and 6). Finn uses phrases ‘imperfect imagining’ and ‘distorted local mirroring’ to capture the difference (Finn 1987: 81, 160 and 165). So what shards of this imperfect image were handed down to future generations? It is source of six strands in present-day traditions.

Monarchy The influence of the monarchy can be traced through the prominence of the governor-in-council to the continuing constitutional role of the governorgeneral (see Butler and Low 1991, Finn 1987 and Low 1988). The head of state has three functions. First, in Low’s (1988: 22) memorable phrase, constitutional heads of state are the ‘chief ribbon bestowers and chief ribbon cutters’. The importance of such ceremonial should not be underestimated; it burnishes the myth. Second, there is also the formal public role, for example, opening parliament and receiving foreign dignitaries. Finally, there is their contribution to the everyday working of the polity, which is frequently mundane. At times, however, the head of state can become embroiled in political controversy, as in 1975 when Governor-General Sir John Kerr dismissed Prime Minister Gough Whitlam (see Low 1988 and Winterton 1983 for a bibliography on the crisis). The key points here are the continuing role of the head of state and, as Butler (1991: 8) concludes in his survey of governor-generals, the simple fact is that ‘every country is a special case. Each Governor-General operates under special rules or customs, developed in response to some special local situation or by mere chance.’ Australia is no exception. Opaque is one possible summary of much British ‘constitutional theory’.4

States’ rights The belief in states’ rights in the nineteenth century has been well documented, especially in recent years (see Galligan 1995, Bach 2003: chapter 5,

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Sharman 1990 and Uhr 1998: 77–81). Brown (2003: 15) is the most recent contribution and an important challenge to conventional accounts of the origins of federal ideas, arguing British policymakers were ‘thinking actively’ about federal ideas and using them as a colonising strategy. American ideas were current in Australia from 1822, long before the proposals for intercolonial union in the 1840s and the federation debate of the 1880s and 1890s. He argues there are two federalisms. The first federalism dates from the 1820s and called for an active program of territorial decentralisation. The second federalism dates from the 1840s and is a non-theoretic pragmatic, or utilitarian, federalism associated with partial centralisation. It may well be true that the authors of federation were not theorists but practical men defending their interests. Nonetheless, ‘Australians seem always to have been in search of both a high level of national unity and serious political decentralization’ (Brown 2003: 31 emphasis in original).5

Collective responsibility Finn (1987: 45) argues that the ‘two political principles of ministerial responsibility, the collective and the individual, coexist uneasily’. ‘Local circumstances were to accentuate the importance of collective responsibility’. The effect was that ‘Coalition ministries called upon collective responsibility as a cement to their union’ and faction leaders used it to control their administrations. In short, ‘In its devaluation of individual ministerial responsibility in favour of the collective, it suggests an adherence to principles of political responsibility which to this day accord with Australian parliamentary practice’ (Finn 1987: 53). ‘Cabinet and ministerial government was the prize of the colonial constitutions. But lacking an environment of the country of its breeding, it evolved and was practised in ways foreign to that of “Westminster”’. The consequences were ‘heightened use of the Governor-in-Council’ as ‘public administration’s supervisory body’ (Finn 1987: 164), and collective rather than individual ministerial responsibility.

Pragmatism There was a willingness to change institutions to fit local needs and the best example is the widespread use of statutory bodies. Administrative government was characterised by ‘fragmentation’ and ‘a plethora of [a “fashion” for] administrative boards arose to mar the symmetry of the governmental

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landscape’ (Finn: 1987: 4, 14, 81 and 161). Compared with Britain at the same time, there were weak imperatives to a departmental system of administration, and a fashion for statutory boards, that eclipsed local government and individual MPs (paraphrased from Finn 1987: 161). As Wettenhall (1987: 1) observes, ‘If Australia’s public enterprise system has an ideological foundation it is because pragmatism has been erected into an ideology in its own right’. He further states: It was to be expected that the governors of Australia would use administrative forms with which they were familiar. Hence Boards concerned with small segments of administration appeared also on the Australian scene. Responsible government ‘was not accompanied by any immediate revolutionary change in administrative forms … With typical Australian pragmatism, this had to await some good practical stimulus’ (Wettenhall 1987: 7 and 12).

However, as Finn (1987: 163) cautions: … there is a temptation … to emphasise the purely practical; to explain the evolving administrative systems in terms of the use of known forms in essentially practical ways, with inherited constitutional and administrative ideas and practices providing some constraints upon purely idiosyncratic action. One can likewise emphasize the urgent demands made upon the architects of government, the often reactive responses to immediate problems, the limited materials with which, the unprepared foundations upon which, to build. A loosely constrained pragmatism is thus given pre-eminence. Pragmatism doubtless played its part. But to emphasize pragmatism alone is to run the risk of using British assumptions to judge Australian actions.

Interventionism Individualism was partnered with collectivist trends. Ward (1980: 244–5) notes the coexistence of individualism and collectivist tendencies in which the bushman’s dislike of authority goes with economic co-operation because the frontier settlers were wage earners. So, in sharp contrast to America, ‘the conditions of the Australian frontier produced mateship, unions, a collectivist ethos’ (D. Watson 2001: 28). And the roots of this collectivism lie in the colonial governments. Finn (1987: 160) notes the varied

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responsibilities of colonial governments and argues that ‘Local exigencies, the rural economy, pragmatism, some would assert a Benthamite utilitarianism, contributed to this’. Hancock (1930) famously argued that egalitarian and collectivist strands underpinned Australian state socialism. Wanna and Weller (2003: 68) talk of ‘beliefs about state developmentalism … couched within a dirigist statism’ that were shared ‘across the party spectrum’. In short, Anthony Trollope (1967) [1873] was correct, Australia was liberal in thought and socialist in deed.

Two-party system As Chapter 1 makes clear, a two-party system delivering majority party control of parliament and the government of the day lies at the heart of Australia’s version of Westminster-style responsible government.6 Labor parties existed in most of the colonies at the time of federation and in 1899 Queensland had the first ever Labor government, albeit for a mere six days. The ALP was founded in 1901, but its roots lie in earlier decades with members of the Labor movement elected to state governments from 1859. It is the oldest Australian party. Competition between Labor and nonLabor parties dates from the first decade of federation. Although the modern Liberal Party was not created until 1944, its roots lie in the fusion of anti-Labor groups in 1910, originally calling themselves Liberal but changed to National in 1917, and then to the United Australia Party in 1931. The labyrinthine twists and turns of Labor and Liberal history matter not for present purposes. The simple, brute point is that ‘It is appropriate to consider the political parties first amongst the institutions of Australian government, because they are the first bodies which occur to the Australian when he [sic] thinks of “politics”, and they are inextricably woven into the fabric of government’ (Miller 1959: 63).

The tradition of responsible party government Both R. S. Davis (1995: chapter 4) and Uhr (1998: 77–80) argue that the idea of responsible government was imprecise and had various meaning when the constitution was debated. Little has changed. Uhr (1998: chapter 3) usefully distinguishes between responsible parliamentary government (with its roots in the work of J. S. Mill) and responsible party government (with its roots in Dicey).

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Robert Parker is perhaps the most influential recent apologist for the notion of responsible parliamentary government. Parker (1980b: 118) argues that Australia incorporated the ‘essential elements of “the Westminster model”’ and, more controversially, he adds three contentions: … that most of the political institutions of Westminster were successfully and lastingly transplanted to Australia; … that Australian political culture was only one of the influences tending to modify the operation of Westminster institutions in this continent – geography, historical accident, institutional interactions and short-term political expediencies were at least as important … Whatever the differences Australian factors have made to the working of the Westminster system, they are probably less important in their impact on the system than developments that have affected Australian and British government alike and reduced the alleged differences between them to relative insignificance. … It is indeed arguable that Australia has moved a smaller distance from the original than has Britain (Parker 1980b: 130).

One of the ‘essential elements’ is individual and collective ministerial accountability and it lies at the heart of Parker’s ‘Westminster syndrome’ (see Parker 1976, 1978 and 1980a). There are four elements to the syndrome (see Parker 1978: 349–53 and summary diagram on 354). The first ‘essential’ part is the doctrine of individual and collective ministerial responsibility. The second part is the need for officialdom. The third part concerns ‘the “proper” relations between ministers and officials’. Parker is not resurrecting the age-old distinction between policy and administration. He simply wants to insist that ‘in all decisions … the elected minister should have the last word’ (emphasis in the original). Finally, ‘the lines of accountability of the whole administration run from the lowliest official up through the minister to the cabinet, the parliament and ultimately – and only by that circuitous route – to the elector’. This view of Westminster has achieved textbook status. The idea of responsible party government is illustrated by the work of Richard Lucy (1993: 3), for whom ‘The term “responsible party government” is taken to mean the Cabinet is more responsible to the governing party than it is to the Lower House of parliament or, indeed, to any other group or institution’. For Lucy the defining characteristic of Australian government is the struggle between responsible party government and the

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separation of powers, the ‘twin eaglets model’ of Australia’s government (Lucy 1993: 325). The tradition of responsible government is not just a notion of academics. Politicians and public servants share it. Thus, as one example only, Sir Robert Menzies is seen as ‘deeply imbued with the traditions of parliamentary responsible government than with federalism’ (Galligan 1995: 49). Thus in his 1967 lectures, Menzies bemoans the limits imposed on the Commonwealth by federalism: … how true it is that as the world grows, as the world becomes more complex … it is frequently ludicrous that the National Parliament, the National Government, should be without power to do things which are really needed for the national security and advancement (Menzies 1967: 24).

In effect, for believers in responsible government, federalism is a historical curio and potential encumbrance.

The federal tradition As Galligan (1995: viii) comments, federalism is both opposed as antidemocratic and neglected in the study of Australian government.7 ‘Party responsible government’ is the ‘conventional wisdom’ and ‘Westminster concepts and their variations’ are ‘taken for granted by Australian political scientists’ (Galligan (1995: 5–6). And yet from its birth Australia was a federal republic: The Australian people are sovereign and have constituted themselves in a federal polity under a constitution that controls the other institutions of government, including parliaments and executives with their monarchic form and responsible government practices. For this reason, Australia is properly a federal republic rather than a parliamentary democracy: the people rule through a constitution that is the basic law of the regime and incorporates the checks and balances of such a constitutional system with a federal division of governments and powers (Galligan 1995: viii and 1).

So, the framers of the constitution deliberately combined federalism with parliamentary democracy, knowing it would create tensions. The favourite quote is by John Winthrop Hackett from Western Australia, who warned

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of this unworkable construction: ‘either responsible government will kill federation, or federation … will kill responsible government’ (cited Galligan 1995: 6; and Davis 1995: 80–1 and 83). Galligan (1995: 7) argues ‘There is a “hierarchy of institutional design” – it is the federal Constitution that specifies a bicameral parliamentary legislature and, albeit obliquely, a responsible government executive as two of the three branches of the Commonwealth government’. The constitution is primary – ‘constituting and limiting the institutions of politics and shaping political processes’. The High Court can strike out Commonwealth and state laws. So, ‘parliaments are not in any sense supreme’ because the federation was ‘the sovereign people of the colonies constituting a federal system of national and State governments’ (Galligan 1995: 9, 13 and 14, emphasis in original). Popular sovereignty is the cornerstone of the Australian constitution. Galligan adduces that two key arguments support this interpretation. First, delegates were elected to the federation convention. Second, the people voted to approve the draft in a series of referendums. Federalism was copied from the American model and ‘was designed specifically to prevent government, and in particular central government, from prescribing and promoting the common good’ (Galligan 1995: 45). It was a pragmatic merger of the incompatible. The purpose of responsible government is to unify and consolidate political power whereas that of federalism is to fragment and circumscribe its exercise. Responsible government presupposes undivided sovereignty. … [It] derives from the English tradition of parliamentary sovereignty in which there were considered to be no legal limits on the sovereignty of parliament (Galligan 1995: 47).

‘A solid phalanx’ of small states insisted on a strong Senate. Samuel Griffiths (Leader of the Convention) ‘regarded a powerful federal Senate as a necessary condition of the smaller States’ acceptance of federation and saw such an institution as being incompatible with traditional responsible government’. It was a check on the more populous state of NSW and Victoria (Galligan 1995: 75, 78, 79, 68 and 69). However, the ‘Senate is an integral and virtually coequal part of the national legislature’. It is not restricted to protecting states rights. Galligan denies that Senate has only a states’ rights function. It is ‘a national parliamentary institution with multiple purposes of governance’. It is ‘not at odds with parliamentary responsible government but can be seen as an

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institutional means of ensuring broader responsibility of governance’ (Galligan 1995: 69 and 89). The Senate ‘provides a powerful institutional check on the executive as well as the legislature in ways that are quite different from either the British or the American constitutions’ (Galligan 1995: 87). For Galligan (1995: 244), federalism is not a hierarchy but a complex ‘mixing and blending’ of agencies from both levels of government. It is ‘essentially untidy’, with ‘governments and parts of governments competing for a share of the action’. It is best understood as ‘a policy matrix in which no government has a monopoly or complete authority’; as ‘a communications network rather than a chain of command’.

The neo-liberal tradition The 1980s and the 1990s saw the ascendancy of neo-liberal ideas in many advanced industrial democracies. Although commonly told as a story of economic change, the rise of neo-liberal ideas is also the story of changing beliefs about government. Kelly (1994) tells the economic story for Australia.8 I add a brief account of the attendant changing beliefs about government. Kelly documents the collapse of the ‘Australian Settlement’, which is defined as white Australia, protectionism, wage arbitration, state paternalism and imperial benevolence. Both parties supported this settlement and the real divide was not between Labor and Liberal, but between ‘internationalist rationalists’ and the ‘sentimentalist traditionalists’. Under the impact of the internationalisation of the world economy, and weakened imperial ties with America and Britain, Australia underwent a ‘decade of creative destruction’, which saw the ascendancy of free market reforms. Competition was the new mantra (Brennan and Pincus 2002: 68–70). Labor under Hawke and Keating juggled pragmatism with economic rationalism to create its new model of governance (Kelly 1994: 19). Although some compromises with Labor’s factions and the unions were inevitable, Hawke and Keating were committed to financial deregulation, free market economics, a federal budget surplus, restraint on union claims, lower taxation, private-sector restructuring, less protection, and the reform of the public sector (Kelly 1994: 31). An open economy, free markets and competition were now as much part of the Labor canon as equity or social justice. The Liberal Party renounced defence of the status quo for radical

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free market reforms and supported Labor. So, ‘By 1991 it was beyond question that the five ideas of the Australian Settlement were in irreversible stages of collapse or exhaustion’ (Kelly 1994: 661). The traditionalists were in retreat. Labor sought to balance market reform with a continuing but redefined role for state intervention. Not that Labor had come to the end of its reforms. As D. Watson (2002: 86) concedes, the Keating government was up for ‘a push of one kind or another’ on the labour market. The Liberals were gung ho for more radical market reforms and with their election in 1996, the neo-liberal agenda was pushed even further by the Howard government (Brennan and Pincus 2002: 68). Managed labour markets went the way of all the rest. The recognition that Australia now lives in a global free market economy drives the policy agenda of both parties. But the trick now was to internationalise the economy and protect the oldest Australian beliefs in social justice (Kelly 1994: 686). Or as Watson (2002: 675) comments, ‘in Australia we might in ways unique in the world weld the good economy to the good society’. That was the dream of the ‘bleeding hearts’, but those hearts became harder and bled less under the Liberals. As Castles (2002: 41 and 49) concludes, the neo-liberal agenda of Labor and Liberal governments in the 1980s and 1990s reshaped Australia’s economic institutions, leaving Australians less well protected from the exigencies of capitalism and reducing their welfare. Along with the neo-liberal economics came a distinctive set of beliefs about government, federalism and the public service. For Yeatman (1996: 285), ‘the new contractualism represents a neo-liberal politicisation of public management’. In other words, citizens are no longer members of a political community but part of a chain of principal-agent contracts. Electors become individualised consumers of public services and the defining characteristics of this relationship are individual choice and competition (Yeatman 1996: 291). Thus, Liberalism has always derived its power … by counterposing the integrity of individual rational choice against some form of paternalism which denies integrity to the individual. … Currently, this … binary appears again; either as the paternalistic bureaucratic state, or governance as a cascading series of contracts Yeatman (1996: 292).

No neo-liberal government worth its salt believes the public services do it better than the private sector. So, government services were out-sourced.

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Of course, the neo-liberal belief in efficiency and markets is not new. It has Benthamite roots (Collins 1985 and 1987). Similarly, anti-bureaucratic sentiments are as old as bureaucracy. But the neo-liberals belief in the private sector, markets and efficiency mounted a concerted challenge to Australia’s other traditions. Its belief in strong leadership, leads to the centralised decision-making associated with the responsible government tradition; it goes with the neo-liberal grain. Ministerial, especially, prime ministerial, control is the order of the day With its focus on efficiency, it is less than tolerant of the negotiative muddle that is federalism, stressing both the cost and the access problems of client. With thanks to A. J. Brown for the provocative phrase, neo-liberals favour ‘collaborative centralism’, a notion espoused by no other tradition. Similarly, with its emphasis on central political control, it has little time for the ‘frank and fearless advice’ of the responsible government tradition and favours short-term contracts for top officials.

Traditions and the executive What does this analysis tell us about the power of the executive in Australia? I answer this question under five headings: the concentration of political power in a collective and responsible cabinet, the accountability of minister to parliament, parliamentary sovereignty grounded in the unity of the executive and the legislature, a constitutional bureaucracy of nonpartisan and expert civil servants, and an opposition acting as a recognised executive in waiting. My comments are brief, focusing on the distinct interpretations of each tradition.

Political power in a collective and responsible cabinet The power of the executive is a contested notion, varying over time and between traditions. Thus, Wanna and Weller (2003: 78–9) distinguish between the limited state (1901–1930s), the state triumphant (1940s–1970s) and the restructured state (1980s–2001). For believers in the responsible government, this history is one of defensible centralisation. So, Wilenski (1983: 86) claims ‘Those who seek great powers for central government do so … to try to overcome some of the limitations on reform through government action that are imposed by the conservative nature of federal constitutions’. And on the Liberal side, Menzies (1967: 152) similarly defends centralisation. He praises the ‘liberal interpretations’ of the constitution that

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make it a ‘living instrument for generations and centuries to come’. He claims that ‘the remarkable, and, I think, unanticipated growth of central power in Australia, illustrates the truth of these views’. Latterly, this centralisation led to the presidentialisation thesis in which the prime minister is no longer first among equals (if he ever was) but a president in all but name. Weller (2003) cogently shows that the argument there has been a decline in cabinet government and the rise of all-powerful prime ministers fails to specify either the criteria for ‘proper’ cabinet government or the conditions under which it thrives. No matter, although the label may vary, the trend to dominant prime ministers is the new conventional wisdom for many Westminster systems (Elgie 1997, Mughan 2000 and Savoie 1999).9 Others acclaim the dilemmas posed by the separation of powers, seeing federalism as an important safeguard of democratic freedoms. As with the changing power of the Commonwealth, the relationship between the Commonwealth and the states evolved. Again Wanna and Weller (2003: 78–9) identify three stages in the evolution of federalism; from coordinate federalism with its separation of jurisdictions to coercive federalism in the 1940s–1970s to today’s collaborative federalism. For Galligan (1995: 244), collaborative federalism is a system of ‘divided and diffused sovereignty’; of ‘complex and diffuse power centres with an intermingling and overlapping of jurisdictional responsibilities and policy activity’. So, criticisms of the states are often misplaced. R. S. Davis (1995: 149) defends the states against charges of inefficiency, bloody-mindedness, failure to agree and costliness. He points out that the system should not be judged by the few, exceptional failures, but by the ‘daily relationship of sharing and cooperation’; and by the ‘commonplace, the usual and the normal’. On this interpretation of Australian government, the history of federalism is not a story of uniform centralisation and centralisation is not defensible; it is an anathema.

The accountability of minister to parliament To identify different traditions is not to deny there is also a shared heritage. The colonial tradition bequeaths us, as Finn (1987) demonstrates, collective responsibility, with individual ministerial responsibility a poor second. As Thompson and Tillotsen (1999: 56) conclude: Ministerial responsibility remains alive at the cabinet collective level. If ministers cannot publicly support a cabinet decision or the general direction of government policies, they resign.

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If individual ministerial responsibility ever meant that ministers were expected to resign for major policy blunders or for serious errors of maladministration by a government department, it is dead.

For those wearing federal spectacles, the key difference between it and the responsible government tradition lies in federal Australia’s broader concept of accountability. It is not limited to collective cabinet responsibility to the lower house. It also encompasses government accountability under the constitution and through the High Court, the role of the Senate, and the division of powers with the states and consequent need to negotiate with them. For a federalist, the government is interdependent, not dependent, and called to account in various ways by many actors. Davis (1995: 103) provides a convenient summary of this take on responsible government: It is in many important respects [similar] to Westminster, Washington, and others, it is also unlike any of these systems. It is in a political and constitutional class of its own. The idea of responsible government is fundamental to our society, but to give a realistic idea of responsible government in Australia, it must be eased from its monogamous uni-centric Westminster roots, and brought closer to the polycentric circumstances of Australian politics.

So in the federalist tradition, responsibility is not offended because a government has to negotiate. Rather, they would argue that the accountability of the executive to the parliament (as distinct from the lower house) is strengthened, not weakened. The notion that shared responsibility is weakened responsibility is a responsible government notion that finds little resonance in the federalist tradition.10

Parliamentary sovereignty – the unity of the executive and legislature Parliament, a term often confined to the House of Representatives, is not sovereign. The constitution is beyond its remit requiring a referendum for any amendments. The High Court adjudicates on legislation. The Senate divides the executive and legislature. Nonetheless, there are cries of outrage if the Senate (or the High Court or the states), frustrate the executive. The government will appeal to its electoral mandate, accuse the opposition of being

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‘unrepresentative swill’ (Paul Keating, House of Representatives, 4 November 1992) and otherwise behave as if the lower house should have the decisive, indeed sole, voice. This view of the role of the lower house belongs to the responsible government tradition. Those who hold dear the beliefs of the federalist tradition see the actions of the Senate (or the High Court or the states) as legitimate in a federal republic. Of course, there is a longstanding debate about the role of the Senate. As Reid (1981: 52) argues, prime ministers and ministers of state use the Westminster notion of responsible government ‘to reject the initiatives of political groups seeking to use the Senate’s power to a government’s disadvantage’. Conversely, the Senate appeals to the ‘Australian adaptation of the doctrine’ to strengthen its hand against ministers (Reid 1981: 55). For many the Senate is a problem. For Sharman (1977: 73, and 1999: 157), it has a continuing role as a House of States. For Davis (1995: 88), it became more an Upper House of Party. For Bach (2003: 354–5) it is not primarily an institution of responsibility (for creating and removing governments), but of accountability (or holding the government to account in a broader system of checks and balances). Governments hate it when the Senate interferes with legislation. Minority interests see it as an essential bulwark against over-mighty government. When the party composition of the House and the Senate differs, it is hard to disagree with Mulgan’s (1996: 191) assessment that the Senate is ‘subject to opposing interpretations and evaluations based on conflicting and irreconcilable political values’. I would simply add that those values are handed down to us through distinct and distinctive governmental traditions.

A constitutional bureaucracy of non-partisan and expert civil servants Where the executive has the authority, it centralises power and the clearest example of recent years is the reform of the Commonwealth public service (Davis and Rhodes 2000, Rhodes and Weller 2001, and Weller 2001). The Australian administrative tradition is characterised by state intervention, innovation and a non-partisan career public service. It was a world in which the notions of responsible government provided guidelines, on occasion camouflage, for their relationships with ministers and parliament. This world was challenged, first, by an era of corporate management concerned with greater efficiency through modern budget controls; and, second, by the

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contracted out services once performed in the public service and greater responsiveness to clients. Australia’s neo-liberal tradition embraced the ‘managerialist’ movement. Predictably, the response was spurred on by their perception of Australia’s declining economic fortunes under the impact of globalisation. State institutions mediated these changes. In the Australian case, the Howard government’s ‘retreat’ did not take the form of less government but of government in a different form. It withdrew from traditional economic and social interventions; for example, to sustain full employment. It focused instead on improved efficiency and effectiveness for utilities and government-controlled commercial activities. It replaced ownership of institutions and policies with contracted out services subject to more regulation. Hands-off controls or indirect management replaced hands-on controls or direct management. It sought more control over less, but it was never reluctant to resort to direct management when the need arose, as in the Tampa affair (Marr and Wilkinson 2003). Political control of the bureaucracy was the order of the day, irrespective of the party in power. Permanence and distance gave way to contracts, a degree of personalisation and greater responsiveness to the elected government. The statesmen in disguise of the ministerial responsibility tradition are now more explicitly servants of power and willingly so, as officials initiated many of the initiatives. Such trends are abhorrent to adherents of responsible government. There are repeated claims that the public service has become politicised, that there has been a decline in the quality of frank and fearless advice, and that fixed-term appointments have adverse consequences (Gourley 2003). But in the neo-liberal tradition, the shift from statesmen in disguise to servants of power is long overdue.

An opposition acting as a recognised executive in waiting11 The opposition has enjoyed formal status since federation in 1901, with the position of Leader of the Opposition established in the first national parliament. In the traditional two-party system of responsible government, the opposition party always presented itself as the alternative government or executive in waiting. Moreover, during the twentieth century, the status, legitimacy and political standing of the opposition increased. Arguably, the Australian opposition became cemented in the policy process.12 Routinely and without controversy, it has equal time in parliamentary debates, question

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time, media coverage of politics, and publicly funded election broadcasts (and at most state functions and commemorations). It is briefed regularly by the public service; for example, before elections and on security matters. Oppositions can establish Senate committees with support from other minor parties and independents. It can chair these committees. Oppositions also enjoy a range of resources to enable them to perform their responsibilities: including offices, staff, advisers, travel, cars, communication, library and research facilities. In short, Australia’s adversarial political culture may debate whether the opposition is fit to govern but there is no debate about the legitimacy of its role in the governmental process, at least among proponents on the responsible government tradition. As ever, they are selective. The legitimate opposition resides in the House of Representatives, not in the Senate. So, Prime Minister John Howard describes the Senate as ‘obstructionist’, and calls for constitutional reform, because the checks and balances of the constitution coalesce with the adversary politics of opposition to frustrate the majority party in the House of Representatives. Former prime minister, Paul Keating (1991–1996) referred, in exasperation, to ‘that little tin pot show you run over there’ (Australian, 4 March 1994). It all looks different from within the federal tradition. The Senate is both a House of Party and a House of States. So, opposition is legitimate. When comparing the federal and ministerial responsibility traditions, the federal tradition has a broader notion of opposition, welcoming the many veto points, whether stemming from the constitution or party.

Conclusions Parker (1980b: 118) suggested ‘it is indeed arguable that Australia has moved a smaller distance from the original [Westminster syndrome] than has Britain’ (Parker 1980b: 130; see also Butler 1973: 7 for the same phrase). I am tempted to reverse this conclusion. With membership of the European Union and the consequent derogation of parliamentary sovereignty, with devolution to Scotland and Wales and consequent creation of rival governments with tax powers, with evolving reforms of the upper house, and with a Bill of Rights that strengthens judicial review by UK and European courts, the UK is becoming more like Australia. But the point of my comparisons is to jar the reader out of easy conclusions.

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There is no single agreed definition of a Westminster system that it could be measured against. Westminster is a constructed notion. It does not have an essential core. It is contestable in all its features, the meaning of which varies from tradition to tradition. In Britain, the nature of governance and the tasks of governing are conceived differently between the Tory, Liberal, Whig and Socialist traditions. Indeed, there is no agreed conception of the constitution (see, for example, Rees 1977 and Marshall 2003). Similarly, in Australia the notion of Westminster is contestable and contested. Like all traditions it contains competing strands. It does not have a single, shared, fixed content. Table 7.1 summarises the main traditions and their competing strands. Although each column bears a distinct label, each can be seen as a version of the Westminster model. At one time or another, someone – academic and practitioner – has described the Westminster model drawing on the distinctive and often incompatible beliefs of the colonial, responsible government, federal and neo-liberal traditions. Each tradition stress different features of the executive. The colonial tradition stresses a fragmentation that persists today in the separate public services of the states. The responsible government tradition stresses collective ministerial responsibility to the majority party in the House of Representatives. The federal tradition points to an executive dependent on, and accountable to, many actors. The neo-liberals counter bureaucracy and inefficiency with contracting and centralisation: more control over less. There are two wellsprings for this variety. First, the under specified nature of the Westminster model means that key roles and relationships in government are governed by convention; for example, the role of the executive and conflict resolution between the two house of parliament. Second, the dilemmas posed by the initial combination of responsible government with federalism are recurring prompts to change. Often these dilemmas are seen as problems to be solved by constitutional reform. The stock response of the Commonwealth has been to centralise. The response of the states and minority interest and parties is to defend the existing system of checks and balances and argue that the everyday routines of government, that cooperation and negotiation, resolve all but the most difficult of intergovernmental issues. However, the Westminster tradition, understood as responsible government, frequently appears to be the dominant tradition, although it is but one among many. It is alive and well among the Australian political elite

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because it is the legitimating rhetoric, or if you prefer, a myth sustained by a longstanding tradition, that is useful to the governing elite as it confronts the dilemmas posed by federalism and seeks to centralise political power in the Commonwealth. There is and can never be a single agreed model of Australian governance because it will be constructed differently from within different traditions. Similarly, accounts of executive government will vary. Terms like responsible government and federalism are best seen as political counters in an ever-evolving game characterised by intermingling and overlapping of policy networks over which the Commonwealth seeks to exert both hands-off and hands-on controls.

Notes 1

2

3 4

5

6

Similarly, Uhr (2002b) stresses that Parker’s Westminster syndrome is not an empirical model, but a series of precepts or institutional practices capable of shaping political conduct. In other words, he ‘deals more with the search for appropriate standards than with reports of empirical evidence’. A different kind of model is the ideal type; that is, ‘a conceptual tool which helps us to understand better a social phenomenon by analysing the discrepancy between its ideal form and its concrete state’. Max Weber used it ‘as a tool for the historical comparison of two or more real situations’, so he could identify critical factors or differences (Mouzelis 1967: 48). Many of the models listed by Jackson (1995: 3–7) could be used in this way; that is, the author sets out the characteristics of (say) responsible government to identify differences over time. All too often, however, the comparison is between the model and today’s governmental practice and the aim is to justify the author’s preferred reforms. See also Sawer 1969: 179 and 181, Galligan 1995: 56–62 and Wheare 1963: 235–6. This French take is a tad more eloquent: ‘Of the Queen’s title “Head of the Commonwealth”, a French-speaking newspaper in Quebec in 1953 declared, “The solution of the problem is in the good British tradition; it is both efficient and devoid of logic”. The same can be said perhaps of constitutional monarchy’ (Bogdanor 1991: 37, citing Longford 1983: 127). However, while browsing through the six-volume Official Report (1986), this outsider was struck by the diverse views expressed and the unsystematic nature of the analysis compared to the Federalist Papers. It was not just federal theory that was absent. Equally, there was no substantial measure of agreement or clarity over the notion of ministerial responsibility. I had some difficulty resisting the thought that the Convention papers can be used to support any position. There have been arguments about whether Australia is a three-party or twoand-a-half party system because on the non-Labor side of politics two separate

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7

8

9

10

11 12

parties (Liberal and National) contest for seats (usually in separate geographical regions). However, they invariably form a single, stable coalition in government and in opposition. The exceptions include Brown 2003a and 2003b, Davis 1995, Fletcher 1991, Galligan 1995, Galligan et al. 1991, Painter 1998, Sharman 1990, Thompson 1980 and Uhr 1998. The seminal contribution on Australia as a federal republic is Galligan 1995, but see also Davis 1995 and Sharman 1990. Some international commentators were astute in their observations. For example, Uhr (2002a: 269) points out that James Bryce Modern Democracies (London: Macmillan, 1921) recognised that the Australian system had many checks and balances on its leadership – a written constitution, federalism, bicameralism, separation of powers and independent judiciary. I paraphrase Kelly (1994) because his was the most influential account of the fall of the Australian Settlement and rise of neo-liberal beliefs about economics and government. See also the collection of essays in Smyth and Cass 1998 and the symposium in Australian Journal of Political Science 39/1, 2004: 5–47, especially Stokes 2004. The claim that the media promote the pre-eminence of prime ministers during election campaigns is plausible. However, turning from the electoral arena to such arenas as policymaking and policy implementation, the pre-eminence of prime ministers is much less obvious, especially in a federal system where the Senate and the states can frustrate both policy and its implementation. Indeed, it would find little resonance in European parliamentary democracy (outside Britain) built around coalition politics. Moreover, the problem is not peculiarly Australian. All bicameral systems confront the issue of the powers of the upper house and the implications for accountability. My thanks to John Wanna for his help in writing this section. Although the opposition is institutionalised to a far greater extent than in many other Westminster systems, Australia, unlike Britain, does not have an independent vote for the speaker (no opposition member has been speaker of the House or president of the Senate); and there is no tradition of allowing the opposition to chair the public accounts committee or have a majority on this important standing committee.

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New Zealand’s Westminster trajectory: Archetypal transplant to maverick outlier

8

John Wanna

ew Zealand was traditionally regarded as an archetypal form of Westminster transplanted in the South Pacific. Lijphart (1984: 16) describes New Zealand as ‘a virtually perfect example of the Westminster model of democracy’, and elsewhere claims that while ‘many of the Westminster model’s features have been exported … only one country had adopted virtually the entire model: New Zealand’ (Lijphart 1999: 21). Indeed, he went so far as to regard New Zealand as more Westminster than Westminster itself (Lijphart 1984 and Mulgan 1997: 63). The transplanted seed apparently produced purer strain than the original stock. The fundamental elements of Westminster were embedded shortly after settlement began in the 1840s despite the robust local traditions of the first nation inhabitants – the Maori tribes. A unitary system of government gradually emerged in New Zealand in the mid/late-nineteenth century (Sinclair 1980). Consolidation occurred less by intentional design than by the perceived threat posed by the growing political and commercial power of the regions. Isolated settlements and dispersed tribal holdings also convinced some local politicians of the need for a stronger central government.1 While federalist and regional forms of administration

N

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were initially important features in the polity, provincial autonomy proved to be unsustainable.2 Eventually, the features of Westminster evolved into ‘their most extreme form’ (McLeay 1995: 7), based on parliamentary government, responsible ministers, single member electorates (after 1903), first-past-the-post voting, and from 1908 a ‘rigid’ two-party system based on class-based parties (Levine 1979: 25). The United Kingdom’s constitutional monarch was retained as head of state3 and, from the 1880s, an official opposition was apparent in the legislature as a cohesive and alternative government. An independent, non-patronage public service was gradually established throughout the twentieth century – some parts of which considered that they rather than elected ministers ran the country. Following British practice, New Zealand did not adopt a written constitution or an entrenched bill of rights. While some minimalist foundational statutes were passed to establish the colony, it was not until New Zealand became immersed in a modern legitimacy crisis that formal rights were accorded to citizens.4 Like other dominion settler colonies, its main institutional problem (expressed vehemently and periodically by settlers) appeared to be the absence of a recognisable land-based aristocracy that could serve in a second chamber and lend stability and continuity to the parliamentary system. As in some Australian colonies, New Zealand initially operated with an appointed upper chamber, regarded by some as an equivalent to the Lords, but it decided to end this experiment in 1950 after a century of self-government. Majoritarian sentiment proved a more enduring principle than notions of bicameral stability. From then on, the combination of a ‘winner-takes-all’ voting system and unicameralism (free from legislative impediments or multi-party bargaining) produced a powerful executive easily able to impose its dominance over the lower house, termed ‘unbridled power’ by Palmer (1979). Although beliefs and practices of Westminster governance were maintained among the political and administrative elite, the institutional make-up was pared back to minimalist proportions, thus allowing scope for an unrivalled executive. But the absence of institutional constraints or checks and balances did not see New Zealand degenerate into one-party authoritarianism. Rather, an agreeable ‘elected dictatorship’ emerged in which the executive largely respected shared conventions and formal accountabilities, behaved as a ‘responsible government’, and respected the freedoms of people and the media.

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Furthermore, given its small size, intimacy and close proximity of politicians to the citizenry, New Zealand was renowned as a village-like democracy where government ministers were personally accessible (and virtually directly accountable) to their electors. Nevertheless, after a series of determined governments unilaterally imposed their neo-liberal doctrines during the 1980s and early 1990s, the legitimacy of the political system was questioned (Norman 2003: 62), especially the institutional minimalism that had been refined by successive governments.5 Political executives came under criticism for being too majoritarian and unresponsive to the preferences of the electorate. In the words of a former prime minister, the populace ‘screamed’ against the politicians and against the way political logics associated with Westminster had been bastardised to insulate the executive from parliament or the electorate.6 The protracted political crisis resulted in a series of major institutional changes that had a decidedly non-Westminster character to them. The most radical departure from Westminster saw the adoption of a mixed member proportional (MMP) electoral system, which in turn became the catalyst for other political reforms extending citizen rights; heralding multi-party coalition government; and giving a greater electoral influence over the legislature, the executive and policy settings (including split voting for candidates and party lists). New Zealand emerged the maverick rather than the pure model, and contrary to Lijphart’s observations it was then claimed ‘we are perhaps witnessing the twilight of the pure Westminster model’ (Norris 2001: 877–8).

Initial transplantations: Refracted traditions of governance Historically, some of the key attributes of Westminster were unwittingly incorporated into the emergent New Zealand colony. But to assert that Westminster was merely ‘taken for granted’ is to foreclose debate over the trajectories followed in the polity, discounting the significance of the other experiments or potential alternatives proposed or tried at the time. The conventional (post hoc) account of New Zealand settlement implies a unitary Westminster form of government was a fait accompli imposed by the colonial power through the local elite without debate or dissension. Such an account may reflect the predilections of historians to accept British

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conventions as normal or a subsequent capacity to reconcile themselves to the eventual outcomes. The record suggests a more refracted trajectory. After the American war of independence (1773–76) Britain was wary of officially taking responsibility for territorial outposts in potential colonies. British ambivalence over the New Zealand settlements was heightened by the reported social complexity and evident civilisation of Maori culture together with the emerging elite sensibilities over the ‘noble savage’. Despite international rivalries (between Britain, France and America – all with some presence in the islands) by the turn of the nineteenth century, the British Colonial Office reluctantly accepted New Zealand as a colonial outpost.7 The official historical version of events suggests that the British Crown was coerced or corralled into annexing New Zealand both/either because of perceptions of internal disorder and/or contemporary rival intentions by the French to annex the whole or parts of the country they were intending to call ‘France Australe’.8 Historians of the pre-annexation period have argued the Colonial Office preferred to place more weight on missionary and settler reports of disorder, ‘anarchy’ and atrocities than romanticised accounts of mutual interaction, dispersed coexistence and stability (Owens 1981: 28–43). Certainly, law and order in the unclaimed land9 was problematic with both the British parliament passing laws relating to the prosecution of criminal matters in New Zealand in 1817, 1823 and 1828. A succession of New South Wales (NSW) Governors also issued edicts and general orders often in protection of the Maori people (for example, banning trade in dried Maori heads), and had appointed two justices of the peace for New Zealand in 1814 and 1819. From 1826, the British Navy ordered a ship stationed in NSW to inspect the New Zealand coast. By 1833, a British Resident was appointed by London, but still the Colonial Office refused to claim the islands as British possessions. In 1837, the Resident, James Busby, convened a meeting of 34 Maori chiefs at Waitangi who, at his instigation, declared themselves an independent state while requesting the British monarch to consider them a protectorate (Ross 1980). Britain did not recognise the declaration of independence but accepted it needed to offer the territory protection. Nevertheless, the impetus for some form of central government grew in the late 1830s when just 2000 settlers and around 120 000 Maoris were then resident. This push was due to many factors: British and missionary

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perceptions of disorder and threats of Maori depopulation, settler aspirations for self-rule, decisions to pre-empt the French, and the arrival of the Wakefieldian New Zealand Company interested in sequestering and selling land to migrants. Negotiations with Maori leaders occurred at Waitangi in February 1840 and then Waikato, and versions of a Treaty of Waitangi were signed. Lieutenant-Governor William Hobson declared British sovereignty over New Zealand on 21 May 1840, initially making New Zealand a dependency of NSW. But a few months later, in November 1840, New Zealand was proclaimed a separate Crown Colony and Hobson was installed as governor. The annexation gained Royal approval and was subsequently gazetted, paving the way for the establishment of government. Hobson implemented the prevailing Crown policy of colonial government (Dalziel 1981: 87). A colonial administration was formed under an executive governor (appointed by the Crown and instructed by the Secretary of State for the Colonies) assisted by two executive committees both appointed by the governor or by the Colonial Office. The executive council consisted of three officials (or ministers)10 and the legislative council comprised six appointed officials (the three members of executive council plus three appointed justices of the peace). A form of ‘Crown Colony government’, then based in Auckland, lasted for 12 years from 1840–52. The era of executive gubernatorial rule faced mounting problems but allowed experiments in self-government to be attempted. As Dalziel (1981: 88) records The Executive and Legislative Councils in practice met infrequently and had little power; the Governor usually made the decisions and ran the colony, using the Councils as he wished. Frustrated by the lack of settler representation in government, the settlers vented their hostility on the Governor.

The settlers’ desire to curtail the autonomy of the governor was nurtured by demands to purchase cheap land straight from Maoris, protected by the governor and his native protectorate department. Initial demands for self-government were resisted by the Colonial Office who feared self-rule would likely bring dire consequences for Maori welfare.11 On becoming colonial secretary in Britain, William Gladstone personally championed selfgovernment and introduced the New Zealand Constitution Act in 1846. This act split the country into two provinces, and envisaged municipal

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councils, provincial representative councils and legislative councils, plus provincial governors and finally a national assembly and a governor-in chief. Governor George Grey objected to some aspects of the act and to the colonial secretary’s instruction to implement self-government in both provinces simultaneously. He relayed threats of Maori uprising and was successful in convincing Gladstone’s successor, Earl Grey, that the act was injudicious. The Suspending Act of 1848 cancelled the provisions of the earlier act and delayed self-government for a further five years. A new wave of democratic constitutionalism spread throughout Auckland and the six Wakefieldian colonies of white settlement.12 Associations were formed, public meetings and petitions were organised, and letter campaigns were waged. The self-government movement was strongest in Wellington, and the South Island settlements of Nelson, Otago and Canterbury. Auckland as the governor’s base was more divided. Governor Grey tried to compromise by offering non-elected provincial councils but the partial measures proved inoperable. Instead, a reciprocal debate ensued between the antipodes, with intense lobbying and ideas being contributed from both the colonial residents and reformers in London. There was considerable debate over the particular structures and democratic nature of self-government – and especially over the significance and powers of provincial government (although not over the basic premise of parliamentary responsible government). Few modern political science texts devote much attention to these debates. Between 1848 and 1852, the Colonial Office had a range of other models of colonial government from which to consider – particularly the colonial Australian governments prior to self-government of NSW, Tasmania and Victoria. With local experience, Governor Grey promoted a hybrid representative system and his proposals were influential in London. Dalziel (1981: 93) maintains that: A parliament based on the British model was taken for granted, although some more radical theorizers were prepared to accept an upper house only if it was a meeting place of a ‘meritocracy’ rather than a haven for the wealthy or the elderly. Because the European population was spread around the country in isolated communities with communications among them infrequent and difficult, effective local government was essential. There was a strong feeling for a democratic franchise. Grey in particular considered New Zealand a new society in which all men had a commitment

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to development and the preservation of social and political stability. Most of the politically articulate settlers also had liberal views on the vote.

The New Zealand Constitutional Act 1852 was a federalist constitution (provincial-based) within the context of a single country (unlike Australia with separate colonial polities). It provided the standard legislative formulation: for the ‘peace, order and good government’ of the colony. The main structures established by this act were the six provinces and their elected provincial councils (Auckland, New Plymouth, Wellington, Nelson, Canterbury and Otago). As Sinclair (1980: 89) has argued ‘no one regarded a unitary state as feasible, for the several settlements were so isolated that government from one center was virtually impossible’. The act provided that: The superintendent of each Province, with the Advice and Consent of the Provincial Council thereof, to make and ordain all such Laws and Ordinances … as may be required for the Peace, Order and good Government of such province, provided that the same be not repugnant to the Law of England (1852 Section XVIII).

The act also provided for a national colonial government consisting of a General Assembly, combining the three estates – the monarch as head of state represented by the governor, an appointed (non-elected) Legislative Council and an elected House of Representatives). There were no restrictions on the government’s legislative scope, but the governor not only had the power to refuse assent, but to amend them personally and return them to either chamber for reconsideration (Scott 1962). According to Cooke (1999: 234): In the eyes of the Secretary of State for the Colonies [Earl Grey] and the Colonial Office, the Legislative Council and the House of Representatives were seen as roughly corresponding to the House of Lords and the House of Commons.

Significantly, the upper chamber was to be a ‘relatively small body of permanent members providing political stability’ – with 15 to 20 members appointed by the governor for life and effectively representing landed or commercial interests (Cooke 1999: 234). From the outset the Council was predictably obstructionist and various lower house governments contemplated reform. The restriction on the number of life councillors was removed in 1862 and further limitations on the Council’s power were

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implemented in 1891 when life tenure was abolished and seven-year terms were introduced. An institutional impasse occurred when the government insisted the governor should take their advice before appointing new councillors (making them ministerial appointments). Faced with the threat of ‘swamping’ (creating additional pro-government peers)13 the Council capitulated to the executive (Cooke 1980: 235). TABLE 8.1

Main provisions of the Constitution Act 1852

Structure/Institutions

Provisions of the act

Comment/Explanation

National Legislature

Bicameral General

House of Representatives

Assembly – five-year terms

elected (24 to 42

for the representatives; life

members); Legislative

appointments for the

Council appointed (15 to

Council

20 nominees)

Six provincial councils –

Governed by elected

subordinate to the General

superintendent and elected

Assembly – elected for

council (of not less than

four-year terms

nine members)

No mention of ministry, an

Assumed that the Crown

executive or responsible

Colony executive council

government

of three officials (governor

Regional government

Ministry

appointments) would survive Franchise

Every male over 21 years

Plural voting permitted

with minimum property –

where the elector held

same franchise require-

property in more than one

ments for Assembly and

electoral district

Provincial elections Restrictions on powers

Provincial bodies were pro-

Governor could veto any

hibited from making laws

laws or regulations passed

on national topics (for

by the Provincial Councils

example, customs, cur-

– and was required to

rency, legal system, post

assent Assembly laws.

and marriage)

Native policy was solely the governor’s prerogative

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The Constitution Act of 1852 did not explicitly mention the ministry, and the extensive executive powers of the governor were to the office itself and not described in the conventional manner of ‘governor in council’ (meaning cabinet government). The act stipulated that the existing unelected legislative council of six officials (surviving from the Crown Colony period) would continue until ‘the Return of the Writs for the First Election of the Members of the House of Representatives’. In the meantime, the legislative council would continue to ‘have and exercise all Rights, Jurisdiction, Powers and Authorities which such Legislative Council would have had if this Act had not been passed’ (Section 1). However, once the Representatives were elected, the act did not indicate how any subsequent ministry would be appointed, from which people, and what would be its relationship to the newly elected parliament. At the initial summonsing of parliament (in 1854), the three-member executive council (colonial secretary, treasurer and attorney-general) remained in existence but none had stood for election in the preceding year. This nominated executive council existed until 7 May 1856. The main rivals to the national parliament were the six elected provincial governments – each with their own unicameral parliamentary form. These bodies had a share of taxation and customs revenue, sold land and leases, built roads and early railways, ran schools and hospitals, sponsored immigration and made local government decisions. Each province had its governor (superintendent), elected council and elected speaker. As the famous Fabian reformer W. Pember Reeves noted, the richer provinces were potentially becoming a ‘federation of small settlements rather than a unified colony’ (1950[1898]: 236–7). He argued that the provincial governments were abolished in 1874–76, not due to an overwhelming intention to build a unitary state, but because the central government had embarked on an extensive public building program based on borrowing and the provinces were rich with local taxation and revenues (and control over Crown land). By 1876 seven governments had been reduced to one.14

The New Zealand cabinet: The refrain of the allpowerful executive New Zealand’s first cabinet in 1854 contained six ministers – the three surviving executive councillors joined by a further three elected ministers.

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Within a month, cabinet was increased to seven with the addition of a fourth elected minister – ostensibly giving the elected ministers a majority but the designated portfolios remained with the three appointed councillors. The appointed officials were not accountable to the Assembly while the four elected ministers were without portfolio and ostensibly accountable to the lower chamber. This ‘mixed ministry’ experiment proved unfeasible and all four elected ministers resigned within three months on 2 August 1854, leading to the demise of the ministry in May 1856. After instructions from the Colonial Office, a ‘responsible ministry’ was sworn in once parliament met in 1856. Since then (and as now required by the Constitution Act 1986) ministers have been drawn solely from and are formally responsible to parliament. However, in these early years of self-government the national parliament was not as important or powerful as the provincial councils that decided the main policy issues of the day. The first responsible ministry was commissioned in May 1856 – an elected ministry of four ministerialists. Within three months three different ministries were sworn in, each with different leaders (Henry Sewell, William Fox and Edward Stafford – the last surviving to 1861). Ministerialist-led governments continued until 1891, mostly conservatives representing the ‘landowning oligarchy’ (Condliffe 1959: 40) or forming ‘unstable alliances of cliques within the oligarchy of property owners’ (Sinclair 1980: 162–3).15 The so-called ‘continuous ministry’ (re-formed ministerialist administrations) lasted from 1869 to 1891 (with only two brief interregnums 1877–79 and 1884–87). Dalziel (1981: 98) has recorded that: The ministers were drawn from a relatively small group of politicians. There was a core of able, experienced men who became, in certain combinations, the essential components of a ministry that was to last any length of time. Ministries were small, eight to ten members being the norm.

Government was a round-robin affair laced with personal intrigue. Prior to the commencement of recognised party government in 1891 (when an ‘initial alignment of parties’ occurred (Levine 1979: 196), two prime ministers had served four terms, while another four had served two terms each, and even a former governor, George Grey, accepted a stint as premier from 1877–79. These ministerialist cabinets attracted adjectival labels – the

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‘clean shirt ministry’ 1853, the ‘self-reliant’ ministry of 1864–65 and the ‘scarecrow ministry’ 1887–91. However, once disciplined adversarial parties contested for office after 1906, the labelling changed to a sequential listing of the party of government rather than cabinets.16 Although modern New Zealand cabinets have been comparatively small (stabilising at around 20 in the post-war period, although there is no constitutional requirement as to size), the choice of ministers from the majority party was often limited (with inclusion ratios of 1:2 not uncommon – the socalled ‘inbuilt majority of caucus’ argument) (McLeay 1995: 24–5).17 Certainly, leaders did not have a free choice of talent in constituting their cabinets – Labour’s caucus elects its ministry (and has since 1935 although after 1974 prime ministers have had some powers to nominate replacements) while the National’s internal power structures similarly constrain their leaders (McLeay 1995). With these restrictions on choice, ‘an important consideration in allocating portfolios in New Zealand is placing some ministers where they are likely to do least damage’ (Jackson 1978: 64). With a small cabinet, competency and workload were critical and it was not unusual for ministers to administer four or even five portfolios and still assist with responsibility in others (Waring 1979: 46). Ministers also participated in a ‘highly developed system of cabinet committees’, often spending one-quarter of their working week at these meetings (Jackson 1978: 65). In 1995 a cabinet of 20 operated nine committees, plus an ad hoc committee on electoral reform and three sub-committees. In 2004, Clark’s cabinet (of 20) has eight policy/functional standing committees plus an ad hoc cabinet business committee. As in Australia, but unlike Westminster, ministers worked from their parliamentary executive offices, not their departments, and most resided in Wellington while in the ministry.18 From the realignment of parties in 1935 (beginning the pattern of twoparty adversarialism between National and Labour that lasted to 1996), governments have survived on average for eight and a half years with prime ministers lasting for over five years.19 Commentators sympathetic to a strong majoritarian cabinet believed the system was simple, direct and delivered politically accountable decisions (through a regularly elected executive), rather than legal decisions (through courts) that were less accountable (Galvin 1985). Moreover, party members could readily have participatory or democratic input (McLeay 1995). Indeed, a traditional view once held that the size and proximity of cabinet coupled with ‘a

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tendency to egalitarianism and distrust of hierarchy’ (Milne 1966: 157) increased the influence of caucus (backbench) over the ministry – a view that once violated would contribute to the legitimacy crisis of the 1990s. Cabinet committees, while proving time-consuming for ministers, also facilitated consultation – with party MPs and cabinet colleagues (endorsement and collective solidarity). A plethora of ad hoc advisory boards reporting to ministers also allowed extensive consultation with interest groups. If the executive was seen as too powerful this was mainly attributed to the rigours of party discipline and the fixing of the rules. In contrast to the sanguine views of a vibrant backbench, Levine suggested that the influence of ordinary members was in decline. Power was concentrated in cabinet due to the executive’s control over party discipline and domination of parliamentary politics. He ventured: The leadership of the executive has been formally entrenched in the Standing Orders of the House. These ensure executive preeminence in every stage of the legislative process. For example, all revenue-raising measures and all bills involving the expenditure of public monies must be introduced by the Crown (i.e., the government). Thus one of the major sources of independent initiative, on the part of government backbench or Opposition MPs, or the Committees of Parliament, is effectively foreclosed by the rules of the House. While party discipline in New Zealand has become even more entrenched in the House in recent years – perhaps, in part, due to its compatibility with pressures for conformity widespread in New Zealand culture – in Westminster it has been steadily crumbling (Levine 1979: 45).

The enduring nature of government and the relatively unimpeded power of cabinet led to a proliferation of critiques of the ‘all-powerful’ executive with ‘near dictatorial power’ (Baragwanath 1979, Palmer 1979 and Norman 2003) and claims of the ‘concentration of power’ in the hands of a tiny political elite (Hoadley 1979 and Levine 1979: 25). These critiques emerged well before the fourth Labour government (1984–90 led successively by David Lange, Geoff Palmer and Michael Moore) imposed an austere neo-liberal regime in the 1980s. Critics argued New Zealand had a much weaker array of institutional features or formal constraints that by default empowered the cabinet and allowed it to become almost unaccountable. Hence, Geoff Palmer, a Labour-leaning, academic public lawyer who was highly critical of the Muldoon regime (1975–84), penned a set of acerbic essays attacking

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executive dominance and calling for constitutional change. He sprinkled his critique of Unbridled Power? with comments about despotism, tyranny, secrecy, lack of constitutional checks, widespread disenchantment, triennial electoral ‘blitzkriegs’, parliamentary point-scoring and partisan speakers, and the ability to pass the ‘fastest law in the west’ (Palmer 1979). But after serving in government and rising to become prime minister briefly, he reissued the book 18 years later with a very different message. His revisionist Bridled Power: New Zealand under MMP (Palmer and Palmer 1997) suggested that proportional representation and some constitutional change (including civil rights legislation)20 now restrained executive power. Other commentators have remained sceptical of the broader significance of these changes, reiterating the criticism that the system of government still constitutes an ‘elected dictatorship’ (Boston et al. 1996: 152). Certainly, the introduction of MMP produced some significant changes to the formation of cabinet and its operations. First, cabinet no longer consists entirely of the majoritarian party, and cabinet posts were up for negotiation from the outset of MMP (Boston and McLeay 1997). The process of post-election coalition formation (that can last for months)21 has seen up to 11 ministers from the minor party offered posts out of a ministry of 26. Ministries do not have to be proportional to the PR vote of the parties forming government, nor is inevitable that minor parties will insist on ministerial posts for support (for example, United Future after the 2002 election became a supporting party rather than part of the ministry). In 1996, Winston Peters from the NZ First party became deputy prime minister and treasurer in the Bolger–Shipley National governments, taking with him initially a further nine NZ First MPs into the ministry. In 1999, the Alliance’s leader Jim Anderton joined Labour’s cabinet (minority coalition) as deputy prime minister, along with three other Alliance ministers and a parliamentary secretary. Now leader of the Progressive party, Anderton has singularly remained a member in Clark’s second term (again a minority coalition government). New Zealand has also gradually introduced an inner and outer ministry (from 1987, but more recently providing flexibility in coalition-formation by allowing non-cabinet ministerial posts). In Bolger’s first post-MMP government, 20 cabinet ministers were joined by six ministers in the outer-ministry, while in Helen Clark’s first term (1999–2002) 20 ministers held cabinet rank, three were outer-ministers and two parliamentary secretaries were created. In her second ministry

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(2002+ Labour with Progressive supported by United Future) there were again 20 cabinet ministers and seven outer-ministers (plus one parliamentary secretary). Of these 20 ministers, four held four portfolios each, eight ministers held three portfolios each and seven held two. Only one cabinet minister (Pakekura Horomia) held a single portfolio – Maori Affairs. A further consequence of MMP was that the sole prerogative of the executive to initiate financial measures through parliament was rescinded under House standing orders in 1996. The relaxation of the ‘financial initiative’ whereby only the Crown could initiate any fiscal measures meant in theory that every individual MP or party represented in parliament could initiate a spending or taxing measure. This relaxation in the rules governing money bills was intended to enhance parliament’s role and break the executive’s procedural controls over financial matters in the legislature. However, the Crown still retains a veto power over financial matters the government does not initiate if the government does not ‘concur because in its view the bill … would have more than a minor impact on the Government’s fiscal aggregates if it became law’ (Standing Orders 312(1). Hence, financial initiatives of major significance from the floor of the House can still be defeated (provided the government signs a veto certificate and delivers it to the clerk), but with minor ones fiscal responsibility has to be maintained politically via negotiation among the governmental parties instead of by procedural fiat (as occurs in many European parliaments).

Ministerial accountability to parliament: Real in principle, nominal in practice Ministers profess the belief they are accountable to parliament and must retain its confidence – collectively and individually (McLeay 2001). However, ministerial accountability was traditionally framed within the context of a ‘winner takes all’ adversarial system. While ministers were more-or-less answerable to the body of the legislature when it sat (through Question Time), the convention of ‘confidence’ was potentially powerful but rarely evident in practice (in the sense that if they lost confidence they must resign or face election).22 The collective resignation of the ministry outside elections has been an exceptionally rare event occurring only once under majoritarian parliaments (in 1928) and not to date under MMP (although it is more likely now if minor parties quit the government). Individual ministerial resignations

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for political/administrative lapses or misleading parliament have been more frequently but still not common. The main catalyst for these resignations was generally not ministerial responsibility to parliament but the court of public opinion. From 1980 to 2003 only 13 ministers resigned, nine for personal or political reasons (took ambassadorial jobs, failing breath tests, wife’s health and so on), while four resigned over policy or administrative shortcomings (criticisms of ‘Think Big’, Cave Creek tragedy, tourism funding and conflicts of interest). More common were ministerial departures over political differences (including dismissals) often when ministries are being reconfigured – a trend that may increase under coalition governments.23 In the past, despite the comfort of majority-party rule, a unicameral parliament and strong party discipline, ministers still felt the need to find ways around their accountabilities – both political and procedural. It was not unusual for governments (especially when losing popularity) not to recall parliament after the summer break for up to six months and occasionally up to eight months. On 13 occasions between 1951–78, parliament was not recalled for six months after sitting prior to Christmas. When Muldoon took over as prime minister, parliament last sat on 10 October 1975 and was not summoned by the new government until 22 June 1976. These long adjournments have not only prevented the ministry being held to account for much of the year, but also impede other scrutiny functions (for example, legislative scrutiny, committee work and backbench liaison with ministers). Strangely for a unicameral legislature with only one chance to vet legislation, the parliamentary committee system was perfunctory under majoritarian governments – using them as a final resort to liaise with interest groups or community representatives (Mulgan 1997: 124). Although the number of parliamentary committees was extensive, they were government-controlled (with governments insisting on a majority of members, appointing government chairs through to 2002, and with a ban on minority reports). Paradoxically, ministers could be members of select committees but were not able to be called before these committees to be questioned. Ministers could also be appointed as committee chairs.24 Hence, committees were frequently compromised and not independent from the executive. The government also determined which legislation it sent to committees, often choosing not to send controversial or embarrassing legislation. These impediments to the committee system effectively neutered many of their scrutiny functions. Since 2002, opposition or non-

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government members have been appointed as committee chairs (as a result of post-election negotiations); a convention that has enhanced the perceived independence of the committees and their work – although much of their business remains administratively-focused or mundane (McLeay 2004).25 With the introduction of MMP from 1996, the principle of proportionality has been extended to parliamentary practice. Parties are allocated memberships, time and resources in proportion to the party/electoral support they received at the last election – including the composition of committees, time in debates and in Question Time. Legislation (other than financial bills) now routinely goes to committees. Such changes have caused some anxieties and cultural shocks among government ministers. As the former Opposition Leader argued recently: The executive has less control over the select committee process because the Minister’s party, in the current Parliament, never has the majority of votes. On the other hand, you see Ministers working to manipulate that process, because they can’t really be in control of it (English 2003).

The committee process now forces the governing coalition parties to negotiate their way through legislative proposals, arguably widening consultation and improving the policy process. Committees cannot be ‘fixed’ as previously was often the case (Norman 2003: 86). McLeay (2004) has termed this new phase ‘negotiational democracy’.

Parliamentary sovereignty: Indivisible concept or divisible polities Principally, each parliament is sovereign, indivisible and cannot bind future parliaments. Jackson (2001: 77) noted that ‘parliament has an unfettered right to make laws. It cannot be bound by laws made by previous parliaments, and in turn cannot bind its successors’. New Zealand has very few entrenched laws (the 1956 Electoral Act and the recent MMP electoral law of 1993 being exceptions), and its principal constitutional laws remain ordinary statutes. Moreover, parliament is the highest authority in the land and is not subject to judicial powers overseeing its decisions or challenging their validity. In comparative terms New Zealand is probably the closest to parliamentary sovereignty among the parliamentary systems.

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However, there are four major limitations to the indivisible or absolutist concept of parliamentary sovereignty (Mulgan 1997 and Jackson 2001). There are claims that parliament’s authority is shared with the Maori; second, that parliament has often been marginalised by the executive; third, that citizen’s-initiated referenda possess the potential to bypass parliament; and fourth, that parliament’s authority is now qualified by international law and treaty obligations, especially after the passing of the Bill of Rights 1990 and Human Rights legislation in 1993. The Treaty of Waitangi has come to enjoy a quasi-constitutional status, perhaps greater in contemporary understandings and accommodations than actually in law (especially as different versions of the Treaty exist) (Mulgan 1997: 58–63). There are disputes over terminology and interpretations found in different translations. Although the English version of the Treaty states that the chiefs ceded to the Crown ‘all rights and powers of sovereignty’, in Maori it states that the chiefs ‘give absolutely to the Queen of England forever the complete government’. Legislators and judges have accepted the parallel or articulated authority of the principles expressed in the Treaty. The practical effects of this are manifest in a dual form of legitimacy (Crown and Maori simultaneously) that is neither neatly defined nor pushed to extremes. Such dual legitimacy has expression in invitations to attend functions, speak at events, or even be allowed to participate in ceremonies.26 Demands for explicit Maori ‘parliaments’ have also arisen from time to time. Parliament remains subject to the whims of the executive of the day. The government determines the parliamentary calendar and as already mentioned can decide to delay or not recall parliament for considerable time (theoretically up to a year). The small size of the legislature compared to the ministry means that around half the governing party(ies) are ministers (McLeay 1995), and there are insufficient numbers of backbenchers specialised in the main areas of government activity. 27 The government also has discretion over what matters are referred to parliamentary committees (Aimer 1979: 30–1). To this list can be added a trend to impose regulations executively (although all regulations promulgated are reported to parliament). New Zealand varies most noticeably from Westminster in that it is entirely unicameral – an example of extreme institutional minimalism.28 In the nineteenth century the power of the non-elected upper house was initially augmented then gradually reduced after repeated clashes with the

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elected lower house. However, lower house governments faced a dilemma in attempting to reform of the upper chamber – on the one hand, there was reluctance to establish an elected chamber with its own mandate and policy preferences; on the other, the value of an appointed upper house which would gradually reflect government preferences (as in Canada) was dubious. In 1914 an act to elect an upper house (on proportional representation) was passed but was then delayed by the war and never proclaimed by any subsequent government (Palmer 1979: 143). Cooke (1999:235) has commented ‘no Government was ever willing to create an elected rival to the First Chamber’. Hence, the upper chamber gradually fell into disuse and irrelevance. Increasingly, the Council acquired the reputation of a rest home for elderly politicians. The volumes recording its debates grew thinner, almost in inverse proportion to the activity of the House of Representatives, whose tendency to send up for rubberstamping an accumulation of bills in the dying stages of sessions also mitigated against the effective functioning of the Council as a revising body (Cooke 1999: 236).

The demise of the Council was not a cause for much concern in the decades leading to its eventual abolition in 1950. Populist democrats saw its abolition as something to rejoice. Significantly, some have claimed the abolition of the Council led to fundamental changes in the populist nature of national politics. Sinclair (1980: 171stated unequivocally: … the rule of the early colonial gentry, with their public school or university background, their Latin tags and cultivated English speech, their sheep-runs and their clubs, was done. Rarely, since that time, has any member of the former oligarchy held influential political office; rarely have Prime Ministers been either wealthy or well-educated, though a few have been well-read. The democracy was in power and the politician had to be, or at least seem to be, if not a common man, then one of the common colonists. He should be big, preferably loud, certainly hearty; not, on any account, should he be suspected of feeling superior to the voters by reason on culture of fastidiousness. The country seems to have been none the worse for the change.29

After its abolition, a number of institutional proposals were discussed, including a form of senate with 32 appointed members for three-year terms;

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similarly, a half-elected, half-appointed upper house was debated in the House after being proposed by petitioners. These proposals came to naught, and although sections of ‘informed opinion’ in New Zealand support the reintroduction of some second chamber, no further serious proposals have attracted support.30 Palmer (1979: 145–6) suggested that ‘with thoroughgoing reform of the House of Representatives, most of the advantages of a second chamber could be secured without actually having one’. Cooke (1999: 242) asserts: The likelihood of a reintroduction of a Second Chamber in New Zealand in the foreseeable future is negligible. The mood of the people as a whole is that, for a country of less than four million inhabitants, there are already too many parliamentarians. The public perception of politicians is against anything that would lead to a proliferation in their numbers. The general thinking, which is understood to be shared by some political leaders, is more in the direction of reducing the size of the Legislature.

The absence of an upper house means that legislation is able to pass parliament more quickly often without time for legislative scrutiny or wider debate. There are some glaring examples of legislative abuse where obstinate governments have rushed bills through or retrospectively enacted measures to suit their own immediate interests. It also means that much of the parliamentary schedule involves dealing with amending legislation as drafting problems and omissions emerge from hastily enacted legislation. The legitimacy crisis of the early 1990s that led to electoral reform also saw the introduction of a process to allow citizens to initiate indicative referenda. The Citizens Initiated Referenda Act 1993 formally bypasses government and enables citizens to petition the clerk of the House of Representatives with an intention to put a question to referendum. After a few stages involving submissions and clarifications, the final wording is agreed and the organisers have 12 months to collect signatures of not less than 10 per cent of registered electors. If this level of support is achieved the referendum proposal is tabled in parliament and the governor-general asked to nominate a date within 12 months to vote on the issue (that is, unless 75 per cent of MPs vote to defer it). If the referendum is passed, it is non-binding on the executive, but would be certainly persuasive. Since

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1993 there have been three such referenda, the first in 1995 over cuts to the number of fire-fighters, then two in 1999 on reducing the size of the House of Representatives from 120 to 99, and victims of crime. The referendum to reduce the size of the House was passed by 81.46 per cent, but the government took no action. International treaty obligations and international legal interpretations in protection of human rights also constitute a potential qualification to parliamentary sovereignty. Although the Bill of Rights Act 1990 conveys a series of relatively vague ‘tolerance-type’ rights, it represents an emerging codification of rights within the country, which may be subject to interpretation by both domestic and overseas judiciaries. Although overseas interpretations or recommendations may have less enforceability, the fact that cases can attract international attention and sway public opinion constitutes a future challenge to the notion of unfettered and indivisible sovereignty.

Rotational opposition to fractious Combinations of oppositions A formal role for the opposition has been recognised in New Zealand since the 1870s. This included the recognition of a distinct opposition with an opposition leader who had some special parliamentary rights (for example, in leading debates in the Address in Reply and on the prime minister’s statements), and with a legitimate role in scrutinising the executive and providing an alternative government. However, before the domination of parliament by disciplined parties, non-government members were relatively independent and it was not always clear who could claim the leadership (Wilson 1985).31 Leaders of the chief opposition party have been listed from 1889 and in total 30 have filled the post – from John Balance in 1889 (Liberal) to Donald Brash (National) appointed in October 2003. There was no official opposition from 1915–19 when a wartime national coalition governed (although between 1931–35 when a depression coalition was in office Henry Holland and Michael Savage were nominated as opposition leaders). Of the 30 such leaders since 1891 more than half (19) have become prime ministers. Since 1940 only four opposition leaders have not become prime minister, with the last two (Bill English and Don Brash) being in opposition to the current Labour administration in its various

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configurations.32 Only one prime minister since 1940 has not served a term as opposition leader (Geoff Palmer in 1989–90). Like Britain, once a stable two-party system emerged in 1935, the Nationals and Labour have alternated in government and opposition. Under a first-past-the-post system there was enormous pressure for both government and opposition to ‘act as one unit’, to be disciplined and accept one agreed or imposed stance on issues (Palmer and Palmer 1997: 7). Lijphart (1999: 21–2) found that the two major parties: … dominated New Zealand politics, and they alternated in office … In eleven of the seventeen elections from 1949 to 1993, the two large parties divided all of the seats; in five elections, only one other party gained one or two seats; and in 1993, two small parties gained two seats each (out of ninety-nine). New Zealand’s two-party system was therefore an almost pure twoparty system.

Since the arrival of MMP, multi-party parliaments and coalition governments, there has been renewed discussion as to which group forms the official opposition (and indeed, whether the concept of a single official opposition is appropriate). Conventionally, and under Standing Orders, the largest of the non-governing parties forms the opposition with its leader becoming opposition leader – but conceivably the opposition leader could come from another non-governing party as has occurred in Australia (for example, the Country Party’s Artie Fadden in 1941–43).33 The third opposition leader since the arrival of MMP, Bill English, put the proposition for a multi-party opposition that could conceivably appeal to parties supporting the government. He argued that under MMP the Leader of the Opposition has the additional job of working to present an alternative government, which of course involves other opposition parties, or potentially government parties that are part of the government. You have to work with other parties to present an alternative government … If you can find an issue on which all the non-government parties agree, then that will help with the job of forming an alternative government. That has become a more important part of being in opposition than it used to be … The game from now on is for the main opposition party to strengthen its hand when it can find ideas where it can get consensus with other opposition parties (English 2003: 1–2).

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The notion of multiple oppositional parties (or loose and fractious combinations of opposing parties) is a novel development in New Zealand post MMP.34 Some have suggested that the opposition be abolished as a defunct ‘legacy from two-party days’. Davis (2003: 1) from the NZ First party, has argued: We need to question ‘what is the opposition?’ Is the term opposition useful any more? … New Zealand First doesn’t see its role as opposing, but as questioning, raising issues, examining policies, and supporting those that are consistent with our philosophies.

Yet, the leader of the formal opposition enjoys procedural rights and privileges in parliamentary debate (first right of Reply, the ‘call’ from the speaker in Question Time). However, with multiple parties vying for the limelight, there is unlikely to be agreement about a single oppositional viewpoint or about the order in which opposing voices are heard (and over what amendments shape the debate). Presently, seven parties are represented in parliament and four are in opposition (the same parties since 1999). The oppositional parties consist of the Nationals (27), NZ First (13), ACT–NZ (9) and the Greens (9) (although the Greens are a ‘communicating’ party providing government support on agreed issues but not guaranteeing confidence). These four oppositional parties form a rivalrous collection of ideologically distinct fractions that together command 58 members from the 120 member House. Exactly, how oppositional conventions will evolve remains to be seen. Some have predicted that the new electoral rules will empower oppositional parties, depending on how well they play the new game. Thus, Palmer and Palmer (1997: 14–15) argue oppositional parties will determine the survival of minority governments, will make select committees more relevant, will put more pressure on public servants for answers, will add more to public debate over government policy, and see an increase in resources to parliament. They argue that oppositional members may be able to sponsor and pass legislation with the support of other parties (necessitating some level of support from within the governing coalition), and that private members bills may pass if combinations can be found to support such measures even where the largest government party opposes the bill.

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Civil servants: Negotiating the tensions Like Britain, New Zealand evolved from a patronage-based civil service administration to one based on independence, neutrality and permanence. Initially, ministers ran their own separate departments and made appointments, determined promotions and set pay rates from the mid-nineteenth century, but the service was consolidated and placed under a public service commissioner from 1912 and a professional career service based on merit was established. As the current Minister for State Services has argued, ‘the essence of this culture was the separation of “political” from “administrative” functions’ (Mallard 2003). Some civil servants interpreted this to mean they ‘really ran the country’ and were the permanent executive government, while elected ministers were the amateur public face of government (Norman 2003: 11). The number of permanent, non-political staff gradually increased through to the early 1980s across a wide range of public-sector agencies (Boston et al. 1996: 54–5). Although Lijphart (1999) does not include the civil service as a defining feature of Westminster systems, there are grounds to accept an independent, neutral, career civil service as an important attribute of Westminster and an institutional counterbalance to the majoritarian concentration of power in the executive – especially on independent, professional policy development and frank-and-fearless advice. However, the New Zealand public service has been the subject of significant political restructuring which has preserved a non-political core service, but contracted out most government services (Boston et al. 1996). Career service employees were reduced from 84 000 in 1984 to just 30 000 in 2000 (with numbers rising slightly in 2003–04 to 33 000). The reasons for reducing the public service to one-third were due to criticisms of the lack of efficiency, responsiveness, flexibility, and concerns about monopoly control of policy implementation and advice (Treasury 1987). Governments sought greater contestability in service delivery and policy advice, and perhaps more than any other OECD jurisdiction chose to privatise and outsource most of its services. As a result, the public service was reduced to a bifurcated set of organisations – those continuing to deliver essential public services (for example, courts, corrections, statistics and foreign affairs) and the core policy advice departments. Interestingly, the number of agencies was not reduced (there are some 40 separate

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departmental agencies) and around half (19) are involved solely in policy advice functions. Hence, the nature of public-service work has substantially changed to involve arms-length policy advice and contract management. Public service employment relations have also changed as a consequence of the State Sector Act 1988, which placed executives on five-year contracts and made them personally responsible for the pay and conditions of their employees (subject to some standards of conduct set by the State Services Commissioner). Contract employment became the norm – with all its associated risks and unintended consequences (for example, the risk of giving fearless advice, risks of politicisation or personalisation, and risks of fulfilling only the required aspects of contracts). One effect of this agency-based management was to fragment the public service into self-regarding agencies – loyal to, or perhaps politicised by, the minister and CEO, but less interested in interdepartmental or cross-agency issues. Further legislation changing the basis of employment relations was introduced in 2000, making employment less contractual and more ‘relationship-driven’. State executives are now talking of a more consensus-based form of management involving the building of partnerships and capacity building. Some argue that New Zealand’s doctrinaire neo-liberal approach to new public management, or NPM (based on an output framework, contracts, devolved authority and individual accountabilities), has compromised public servants, leading to tensions between neutrality and professional integrity versus political responsiveness (Boston et al. 1996: 53–68). It is claimed that public servants are now under more ‘direct pressure’ from opposition politicians (Palmer and Palmer 1997: 14). Others suggest the changes have severely eroded the capacities of the public service to provide quality advice/services or a counterbalance to executive expediency. For instance, the government’s Review of the Centre (2002) highlighted leadership and co-ordination problems across government. The review painted a picture of the atomisation of advice and services, with insular agencies focused narrowly on their own responsibilities. Fragmentation was seen as a major problem with a loss of focus on complex objectives. The NPM system had been weak at developing and managing capability including people, cultures and common resource systems). Concerted practice and collective action was often neglected.

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Citizens also found interacting with government difficult and agencies did not understand or meet the specific needs of Maori. Much of the blame for these failings was placed on the central agencies, and it was recommended that they extend their leadership vision and effectiveness to deal with the new environments. There are now signs the present government is attempting to re-establish a more competent and capable public service with stronger values and levels of commitment. They are expressing the need for investment in people, promotion of core values, new leadership and better service delivery for indigenous peoples. This reconfiguration is being driven largely by senior ministers anxious about the legacy of change in the public service and with concerns about its future capabilities.

Legitimacy crisis and MMP: Reconfiguring government to restore responsiveness By the 1980s and 1990s both sections of the political elite and the majority of the wider electorate were concerned about the distorting effects of the first-past-the-post electoral system, including inflated majorities, over-representation of the main two parties and virtually no representation for other voices. From 1935, when Labour first formed majority government, the non-Labour parties (Reform, United and the previous Liberals) merged to form the Nationals, thus establishing the vice-like grip the two parties maintained through to 1996. Yet after 1935, both sides rarely managed a majority of national-wide votes – Labour achieved this level only twice in the elections of 1938 (55.9 per cent) and 1946 (51.3 per cent), and the Nationals also twice in 1949 (51.9 per cent) and 1951 (54 per cent). Since 1951, neither major party won a majority of the vote, and governments could be formed by parties enjoying a substantial majority of seats but receiving less than 40 per cent of the national-wide vote (as in 1978, 1981 and 1993). Often the governing party commanded an inflated majority of parliamentary seats over votes ranging from 14–21 per cent (Palmer and Palmer 1997: 25–6). Disillusionment increased with first-past-the-post voting combined with the absence of any impediments to executive rule in a unicameral system (although interestingly, criticism was not levelled at unicameralism per se). The lack of responsiveness of parliament (and government) to the wishes of the electorate became a major issue and the

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dominant critique of politics (Mulgan 1984: 60). The critique tended to focus on two main aspects: the impotency of parliament and the backbench, and the insularity of governments from electorate opinion. A related issue arose concerning the unfairness or inequities of first-past-the-post system squeezing out minor parties and independents. Such concerns prompted the Labour government in 1985 to establish a Royal Commission to review the electoral system, but despite recommending a mixed member proportional system the government showed no interest in its principal findings (Boston 1987). The political trajectory of the introduction of MMP has been well documented elsewhere (Boston et al. 1997; Aimer and Miller 1999). The apogee of voter powerlessness and unrepresentativeness occurred after the neo-liberal Lange government had promised electoral reform and then disappointed (coupled with the ‘heavy political price’ it paid for implementing radical economic reforms – Norman 2003: 62). Mounting electoral dissatisfaction caused it to lose office to the resurgent Nationals in 1990 – an election at which 15.2 per cent or 220 000 voters voted for leftwing nonLabour candidates, but secured no seats. Taking electoral reform head on (possibly hoping to stymie the reform push) the National’s Jim Bolger held a referendum with two questions in 1992. At this referendum, voters opted for substantial electoral reform (with 84.7 per cent supporting change) and strong support for MMP (70.5 per cent). In the 1993 election, two-thirds of voters did not vote for the government, but Bolger managed to hang on to office with 50 of the 99 parliamentary seats (Vowles et al. 2002: 3). At the same election, the National government held a binding referendum asking electors to choose between the existing first-past-thepost (FPP) system and MMP. Voters chose MMP over FPP by 53.86 per cent to 46.14 per cent. Bolger complied with the electorates’ wishes, introducing MMP in 1993 (and entrenching the statute requiring 75 per cent of MPs or a referendum to change it. To date, the new system has been used in three elections: 1996, 1999 and 2002. Contrary to the recommendations of the Royal Commission, Maori seats were retained (with all five won by NZ First in 1996, then all five by Labour in 1999, rising to seven in 2002).35 The impact of MMP on parliamentary representation can be seen in Table 8.2, where the spread of representation has increased considerably towards minor parties, but with high volatility between elections.

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TABLE 8.2 Election

Party representation in the New Zealand parliament Total seats

National Labour

1978

92

51

40

1981

92

47

43

1984

95

37

56

1987

97

40

57

1990

97

67

29

1993

99

50

45

1996*

120

44

37

1999*

120

39

49

2002*

120

27

52

ACT NZ

NZ First

Alliance Green Progress- United ive

United/ Future NZ

2

2

8

17

13

9

5

10

7

1

9

13

2

9

8

1

* Elections under MMP.

MMP has delivered wider representation in parliament and increased party choice,36 but a concomitant effect has been uncertainty over the outcome and which (multiple) parties will form a government. Unlike FPP, MMP fragments party representation and various combinations of multiparty government become theoretically possible (see Boston et al. 1997: 210–4). The procedures of forming a government have evolved through force of circumstance and remain embryonic. The post-election negotiation processes followed in 1996, 1999 and 2002 were ad hoc, protracted and complicated (and attracted some criticism).37 Unlike many European multiparty proportional representation systems that have developed certain post-election conventions and procedures to assist coalition formation, New Zealand has not yet systematised this process and operates according to ‘free-style bargaining’. Moreover, there is no requirement for parliament to hold a vote of investiture before a government is sworn in, simply that a government must subsequently hold the confidence of the House (termed ‘negative parliamentarism’, Boston 2001: 117–19). But the new election system appears to have been readily accepted by both the actors and electorate (and is now used strategically as with ‘split voting’ – voting for different parties in candidate and list ballots (see Johnston and Pattie 2002)), and there does not seem to be a mood for further change (Harris 1997). In forming a governing coalition using ‘free-style bargaining’, it is often

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not the largest or larger parties that wield most influence after the election, but the party that ‘is a necessary component of all the politically feasible (or “connected”) minimum winning coalitions’ (Boston 2001: 122). In 1996 this empowered the New Zealand First party (with 17 seats) because it was pivotal to either National or Labour forming government – but the negotiations took eight weeks. Boston (2001: 124) describes the negotiations in 1996 in which NZ First conducted parallel negotiations with both sides, as a ‘tendering process for the right to govern’. It was also complicated by the fact that NZ First had appealed primarily to a Maori voter base, but as a new party was composed of former National and Labour politicians. In 2002, the United Futures party (with eight seats) was pivotal – and eventually swung support behind Labour. To date, the largest party in parliament has comprised, and therefore led, the government. Perhaps the legitimacy of the system will be more severely tested if and when a party with the largest number of seats does not form part of the governing coalition.

Conclusion Despite the ‘transformation of the country’s political system’ there remains much debate about how significant the changes have really been. The electoral commissioner at the time of the electoral disjuncture, Paul Harris (1997: 14–21), maintained that the MMP changes represented evolutionary ‘continuity’ rather than a ‘revolutionary break’. His reasoning was that: … the change to MMP represents the culmination of a return to our history as many of the debates about the electoral system that occurred in New Zealand and elsewhere in the nineteenth and early twentieth centuries began to be heard again, muted and imperceptible at first but with an increasing prominence in the 1960s and 1970s … the change to MMP introduces another causal factor in the continued evolution of the various constituent parts of the new Zealand political system – political parties, Parliament, the public service, the voting public, constitutional rules and conventions (Harris 1997:14).

His points are well made. New Zealand remains a unitary state, with strong traditions of parliamentary sovereignty, no separation of powers and

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limited judicial review, the Queen remains head of state, ministers are accountable to parliament, there is a recognised opposition (even if fragmented), and subscription to the value of flexible conventions. The main instrument of political accountability remains the regular election process, and even with MMP, single-member electorates remain the basis of political representation (with 69 local constituencies: 62 general and 7 Maori). It has surrendered its rigid two-party system and plurality voting for proportional representation. So far, most scholarly analysis of New Zealand’s electoral experiment has focused on the politics of coping with MMP: uncertainty of electoral outcomes, the options and difficulties of coalition-building (including theoretical permutations), whether coalition governments would be more populist and/or unstable, party consolidation and splits between elections, whether coalitions have been less fiscally responsible, and how the new refracted accountabilities would play out. There is evidence that MMP has allowed New Zealand’s Westminster system to better mirror society, to become more representative of diversity (microcosmic representation), and has invited different and more probing voices into the parliamentary process. Accordingly, MMP is seen by some as a reaction against the inherent minimalism of Westminster as practised in the South Pacific – a reaction that involved the populace in institutional design and introduced intended institutional complexity through which political actors have to negotiate. Debates will continue about whether the electoral changes have made the country more democratic or consensual. Nevertheless, it is arguable that MMP has restored some legitimacy to the main political institutions and in that sense has underlined their importance, relevance and sustainability. As political actors adjust to the consequences of MMP, their beliefs and behaviours will be the harbinger of further change, conforming to the processes of disjointed incrementalism. Certainly, MMP has to date dampened criticism of the political system, and arguably increased interest in, and some evidence of knowledge about, the electoral and parliamentary systems (Banducci et al. 1999; Karp and Bowler 2001). Perhaps the longer term impact of this institutional change will not be a fascination with the mechanics of political rule or with consensual democracy, but the revival of a more vibrant deliberative political culture in which adversarialism remains a potent force.

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Notes 1 Other reasons advanced for a single central government were geographic (the relative isolation of the two main islands with settlements sprinkled around the coast) and demographic (neither the Maori nor Pakeha-white population was considered sufficiently large enough to warrant multiple levels of government. 2 Later after self-government in 1852 there developed a strong sense of greater Auckland as a region and in the inter-war years some momentum towards South Island separation was manifest. 3 Little republican sentiment has ever captured popular attention and ties to Britain were traditionally maintained as unproblematic (see Brookfield 1994); higher court appeals to the Privy Council in London were retained until 2003. 4 The Bill of Rights Act 1990 is an ordinary statute setting out basic human rights (free speech, assembly, religion and protection against discrimination), while the 1993 Human Rights Act mainly prohibits discrimination on 13 grounds in employment, access, land, housing and so on. 5 The process of reform was commenced under Labour in the mid-1980s with the establishment of a Royal Commission into the Electoral System (1986), but the major changes to the electoral system were not introduced until 1993 following two referenda on the issue (see J. Boston, S. Levine, E. McLeay and N. Roberts 1997). 6 Mike Moore (prime minister September to November 1990) stated after the second referendum selecting the preferred voting system in which 70 per cent voted for MMP that ‘The people didn’t speak on Saturday. They screamed’ (from ‘FPP to MMP’, Elections New Zealand, www.elections.catalyst.net.nz.). 7 This also obviated the need to govern the New Zealand islands from the NSW colony (making the NSW governor responsible for the settlements was Britain’s initial response to providing some administrative and legal framework for New Zealand residents). 8 Reeves (1950: 25) claims that New Zealand was ‘taken possession of by an English navigator, whose action, at first adopted, was afterwards reversed by his country’s rulers, it was only annexed at length by the English Government which did not want it, to keep it from the French who did’. 9 The British Act of 1817 stated that New Zealand was not included as one of His Majesty’s dominions. Subsequent acts provided for offences committed in New Zealand to be heard at trial in the Colony of NSW. Cases of both robbery and murder by settlers had occurred, as had cases of white traders assisting Maoris in inter-tribal violence. 10 The executive council officials were the colonial secretary, treasurer and attorney-general. 11 Self-government was backed by commercial interests in London supported by Edward Gibbon Wakefield. Later colonial secretaries also took an interest in self-government. Some examples of democratic government pre-date the 1852 model of self-government. For example, Wellington settlers elected a municipal council in 1842, even though this body was declared illegal by the Colonial Office.

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12 The pre-1852 Wakefield colonies were settlements in Wellington, Taranaki, Nelson, Wanganui, Otago and Canterbury. All were compact settlements restricting land sales by the ‘sufficient price’ system. One Wakefieldian settler (and later four-time premier), William Fox, revisited London in 1851, promoting a book he had written entitled The Six Colonies of New Zealand that stressed the separate identity and isolation of the six settlements. 13 Similar to the tactics adopted under William IV over the passage of the Reform Bill 1831–32, and a forerunner to the tactic Lloyd George then used to threatened George V in 1909–11. 14 The 1852 constitution remains the foundation of the most recent constitution (which was consolidated into one act in 1986), but significant parts of the 1852 constitution have been deleted or amended. 15 Dalziel argues that ‘from the first responsible ministry in 1856 until 1891 there were twenty-five ministries. Twelve of these lasted less than a year and seven less than three months. These figures may suggest cataclysmic upheavals, but in fact there was considerable stability and continuity in the administration. The short-lived ministries were either attempts by a faction leader to construct a ministry during a parliamentary session or changes of leadership within an essentially stable ministry’ (1981: 98). 16 For example, the ‘first Labour government’ governing for four terms, 1935–49, or the ‘second National government’ also lasting four terms 1960–72 and so on. 17 It was said that the size of the ministry was formed by halving the size of caucus and adding one, thus giving the prime minister an absolute majority among his party colleagues on contentious issues. 18 Ministers have since 1979 worked in close proximity in the Beehive (Executive wing), but prior to that (to 1920) worked from their parliamentary offices. From 1877 to 1920, ministers were located in their departments – see Galvin 1985. 19 Since 1975 four prime ministers have served at least five years; namely, Robert Muldoon (1975–84), David Lange (1984–89), Jim Bolger (1990–97) and Helen Clark (1999–). Incredibly, five prime ministers have died in office in a little over a century: John Balance (1893), Richard Seddon (1906), William Massey (1925), Michael Savage (1940) and Norman Kirk (1974). 20 One human rights bill, the Bill of Rights Act 1990, was introduced by Geoff Palmer as Prime Minister (see Levine 1991). 21 There is no constitutional limit on the length of time a coalition formation process can continue or must conclude. The constitutional requirement for the resumption of parliament (a set date according to the return of the writs – six weeks after) provides an ‘informal target date for completing the talks’ (Boston and McLeay 1997: 208–9). However, if this date is not met (and no majority coalition is formed) a minority government could attempt to secure confidence with the support (or non-opposition) of other parties. Under changes to Standing Orders in 1996, MPs can abstain on votes of confidence/noconfidence, implying a minority government could survive merely with the tacit consent of sufficient minor party MPs (or independents) to allow it to govern in the interim. 22 Examples of resisting the confidence of parliament are rare. In 1890, outgoing

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23

24 25

26 27 28 29

30

31

Prime Minister Sir Harry Atkinson did not resign when it was clear his opponents had won the election, but continued for almost two months to advise the governor to make appointments (including conservatives to the Legislative Council appointed for life). Atkinson had led the last conservative ‘continuous ministry’, but lost the election on 5 December 1890 to the Liberal–Labour alliance. Atkinson tried to stack the upper house against his opponents, not tendering his resignation until 24 January 1891 when he had reassembled parliament and lost the election of a new speaker (effectively a vote of no-confidence in his government). Only then did he accept he had lost the confidence of the House. The stand-off and attempt to stack the upper chamber only served to further discredit bicameralism. For example, Labour’s Finance Minister Roger Douglas and the National’s Ruth Richardson both resigned from the ministry over what they perceived as their government’s loss of resolve, Bruce Cliffe quit the Nationals in 1995 to join United, Christine Fletcher resigned from the Nationals over Bolger’s leadership, and Deborah Morris resigned from Shipley’s ministry after the disintegration of the NZ First party in 1998. Other ministers were dismissed from their post on the prime minister’s advice, often for breaches of collective responsibility or political differences (see McLeay 2001: 90–1). For instance, Jim Bolger as Minister for Fisheries was chair of two committees in the 1970s; namely, Lands and Agriculture, and Maori Affairs. In 2002, seven chairs of committees were not from the largest governing party (Labour) out of a total of 17 committees (13 standing and 4 House). Labour also had a voting majority on only two committees (government administration and law and order) although in conjunction with its supporting party it had majorities on a further 11. The largest opposition party did not command a majority on any committee, although the numbers were equal with Labour on three committees (without minor party members) – see McLeay 2004. Prime ministers including the present incumbent, Helen Clark, have on occasions not been welcomed/invited to public commemorations of Waitangi. In 2004 there were 28 in the full ministry from 52 Labour members. Some 70 Westminster-derived parliamentary jurisdictions are unicameral throughout the world, but mostly at the sub-national level. Sinclair’s populist sentiments were epitomised under the prime ministership of Sir Robert Muldoon (himself a big, loud, earthy, boor nicknamed ‘Piggy’ by his constituents). Muldoon, when leaving office in 1984, famously stated that his achievement in office was that he had left New Zealand ‘no worse’ than when he assumed the office. And indeed many proposals to reform New Zealand’s political system or restore democracy have not mentioned the reintroduction of an upper house as a serious reform (see Hoadley 1979). Palmer’s (1979) critique of executive government discussed the possibility of reintroducing a second chamber, but generally did not favour it as a feasible solution. For example, in the early 1880s both George Grey and William Montgomery disputed the leadership of the opposition when both commanded some support among the non-government MPs.

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32 Earlier, only two opposition leaders – A. H. Nordmeyer (1963–65) and J. McLay (1984–86) – have not become prime ministers. 33 The post-1996 Standing Orders provide that the ‘leader of the largest party in terms of its parliamentary membership that is not in Government or in coalition with a Government party is entitled to be recognized as Leader of the Opposition’ (36). The Standing Orders do not require the leader of the largest non-government party to accept the position. 34 This is also true in Canada after the Liberals landslide victories from 1994, where although a formal oppositional party has been identified, the four parties in opposition are deeply fractured and do not operate as a coherent opposition or viable alternative government. 35 Maori seats have a long history, dating back to 1867. They were preserved under MMP as separate electorates mutually exclusive from the ordinary electorates – and Maori have an optional right of enrolment in either. 36 In 2002 there were 28 registered political parties in New Zealand. All registered parties are able to contest for the party (list) vote at elections even if they do not stand individual candidates in electorates. 37 For instance, it is not clear who ought to be called to attempt to form government and be the prime minister in waiting. In Europe, conventions generally provide for the leader of the largest party to be given some form of commission to form a government for a defined period. In New Zealand, apparently, anyone inside the House or even non-parliamentarians can undertake negotiations to form a coalition agreement. Whoever can assemble the numbers, rather than accepted conventions, determines how coalition-formation proceeds.

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Papua New Guinea’s brand of Westminster: Democratic traditions overlaying Melanesian cultures

9

Henry Okole

But our politics [are] not illogical, crazy, unstable or even unpredictable. (Former PNG Prime Minister, Sir Julius Chan.)

n this chapter we will explore the extent to which the Westminster model of government is extant in Papua New Guinea (PNG). Like most Commonwealth member countries, PNG inherited the principal institutions of government from Great Britain. The basic elements of the Westminster model of government and the judicial system were passed on through Australia’s colonial administration. Certainly, significant changes to the implanted institutional structures have been made since PNG gained its independence in 1975, but these were not meant to negate Westminster, rather they were meant to address specific areas deemed necessary by the government. A retrospective look over 28 years of nationhood reveals that many of the institutional designs that PNG adopted are now either unworkable or outmoded in the face of the country’s fast-changing socio-political landscape. National elections have yielded highly unusual results, compared to what the relevant literature on developed or developing countries would suggest. The party system has been dubbed a ‘deviant’ case, given its incomparable characteristics relative to other developing democracies (Reilly

I

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1999). The House of Parliament, at least over the last 12 years, has gone from a genuine chamber of the people to one that has been progressively controlled by the executive (Okole 2002). All the while, democracy in PNG prevails as if all the main institutional pillars of the government are effectively functioning. At present, the country remains one of only a handful of countries from the developing world that has maintained an unblemished record of democratic continuity (Lijphart 1999).

Challenges of an emerging state Germany and Great Britain were the early colonisers of PNG. Germany annexed parts of the northern and eastern parts of present-day PNG on 1 November 1884. It became known then as German New Guinea. In response, Great Britain annexed Papua on 5 November 1884, and it was called British Papua. Both colonial powers had their own interests in these territories. Great Britain relinquished control of Papua to Australia in 1906, which subsequently assumed control of New Guinea at the start of World War I in 1914. The League of Nations allowed Australia to continue its administration of New Guinea under a mandate in the interwar years. A joint administration of Papua and New Guinea began in 1946 and lasted until the 1970s. The institutionalisation of any system of government in Papua New Guinea was bound to be restricted by two natural characteristics of PNG: the highly fragmented population and the rugged topography of parts of the country, particularly the interior of the island of New Guinea. Papua New Guinea is home to over 800 languages, spoken by approximately 5.2 million people. In the past, the divisions among the population were reinforced by inter-group rivalries that, in turn inhibited the mobility of people. One scholar was to remark that PNG offered ‘greater obstacles to travel than perhaps any other country in the world’ (Mair 1970: 4). These natural characteristics of PNG contributed, both directly and indirectly, to the type of political and economic development of the country. First, the lack of uniformity in the existing political structures among the many native communities meant that the colonial powers found it difficult to exert firm control through traditional power structures (Dinnen 1998). The practice used by colonisers in many parts of the world, which was to co-opt traditional leadership structures into their line of control, was lacking in PNG. In addition, there was the difficulty of expanding colonial control due

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to the rugged landscape and hostile inhabitants in many areas. Thus, while Germany and Britain annexed New Guinea and Papua respectively, their colonial control was limited only to where they each had settlers and specific interests. It was only when the Germans and British introduced their respective police forces and criminal codes that rudimentary control structures were imposed (Mair 1970: 66–7). These structures served as the critical linkage between the many local communities and the colonial power centres in both Papua and New Guinea. Over time, the constabulary forces were to facilitate a gradual assimilation of the people and the colonial administrations. The second consequence was that many parts of the country experienced uneven exposure to the outside world during the colonial period. While many coastal areas had experienced extensive contact with foreigners, the interior was relatively untouched until much later. Thus, in terms of a state-building process, many communities in accessible areas were slowly imbued with modern political practices and administrative organisation, while others in more remote areas were very much living in traditional communities as they always did for hundreds of years with their own folklores and justice systems. For example, while Rabaul town on New Britain Island had a cab service, a local branch of the Chinese Kuomintang party, and saw the first industrial unrest in the 1920s, the highlands region of mainland New Guinea, with the biggest concentration of people, was still to be discovered by the outside world (Mair 1970 and Nelson 1974). The highlands area was initially discovered in the 1930s and further exploration was done in the 1940s and 1950s. The third consequence to become apparent much later in PNG’s political history was a lack of nationalism. There was hardly a sense of oneness among the people right up until independence in 1975. One reason, of course, was the fragmentation of the population. Some tribal groups in parts of the country did not share commonality with one another for centuries. What superseded nationalism were micro-nationalism, regionalism, and separatism as the fast-changing political environment ushered in uncertainty and confusion to different parts of PNG (May 1982). In addition, the various colonial arrangements that PNG had since the late 1800s failed to congregate or assemble the many social cleavages where it would have been possible to recognise an overarching nation. In sum, it suffices to say that the creation of PNG is one in which the concept of a modern state was superimposed on hundreds of sovereign traditional communities.

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A budding democracy: The 1950s to early 1970s Given the complex fabric of the PNG society, its haphazard political development, and an almost non-existent experience with foreign political institutions, a highly centralised governing structure was inevitable by the end of World War II. That was how colonial control was imposed from the capital in Port Moresby, and particularly through the establishment of village councils. The village councils came under the umbrella of the Legislative Council, the main legislature of the time that represented Papua and New Guinea (Waddell 1979). The Legislative Council had a simple composition, as displayed in Table 9.1. There were two categories of representatives. There were the officials who were headed by the Administrator of the colony; they served directly under the tutelage of the Australian government. The non-officials comprised representatives (both elected and appointed) of the people and various significant interests. TABLE 9.1

Composition of the Legislative Council pre-Independence

Officials The Administrator, plus 16 other government officials

Non-officials A total of 12: •

3 elected by European population

•

3 indigene appointees

•

3 Christian missions’ representa tives

•

3 representatives of other inter ests (mainly business)

Source: Hughes (1965: 9)

The business of the pioneering legislative body was constrained for three reasons. First, many non-officials were often more than willing to agree readily with the positions taken by the officials, especially on policy issues. To some degree, this showed the inaptitude of these representatives. Second, the three indigenous people failed to participate fully in the council’s meetings due to their inability to speak or understand English and their lack of any general knowledge of democratic procedures (Nelson 1974: 124). Third, village councils were not established in most parts of the country due to the inaccessibility of the interior of the country (Waddell 1979: 187).

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Under these circumstances, increasing the educational levels of indigenous people would have been an ideal policy initiative. Although Australia emphasised the importance of education, most of its support was concentrated on primary schools (Woolford 1976: 4). Australia feared that politically conscious nationals could potentially cause problems for the colonial administration. The aim was to remain ‘two or three jumps ahead’ of local demands for self-governance (Ryan 1969: 110). Just how national leaders were to be sufficiently educated for a budding democracy was difficult to fathom. By the early 1960s, pressing circumstances and repeated calls by the United Nations’ Trusteeship Council cajoled Australia to begin preparing PNG for independence. The first nationwide election was held in 1964 and another two were held in 1968 and 1972 respectively before independence in 1975. The introduction of universal suffrage in the 1960s encouraged the establishment of political parties, even though they proved ephemeral for much of the decade. However, an incipient party system appeared in the House of Assembly after the 1968 national election. It was at this time when serious debate among political parties occurred in relation to the timing of independence for PNG. In April 1972, the first ever indigenousled government took power under the stewardship of Michael Somare and his Pangu Pati. This event set in motion other preparations for eventual selfgovernment and independence.1

Finding unity: Implanting a Westminster system During the term of the first House of Assembly (1964–68), the Australian colonial administration was effectively the executive branch. In 1968, the Papua and New Guinea Act – the document that outlined the governing institutions of the territory – was amended to allow for ministerial participation by selected indigenous members of the House (seven ministers and up to ten assistant ministers) (Wolfers 1998: 42–4). By 1970 most Australian officials were leaning towards a Westminster system of government. What mattered most was a system of government that could facilitate the reconciliation of the diversity of the people with the unity of the country. A federal system was rejected in favour of a unitary system because

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a strong central government had proved useful in dealing with many intractable problems during colonial rule (Waddell 1998: 114). Australia abdicated much of its day-to-day administrative responsibilities with the formation of the first national government. However, Chief Minister Somare was still responsible to Australia’s Minister of External Territories on more significant matters. Overall, the legislative design and composition has gone through a number of important transitional phases since the early 1950s. Each phase mirrors the state of political representation by the indigenous people in relation to the receding control of the Australian colonial administration. These legislatures are shown in Table 9.2. Within a period of 26 years, the degree of transformation has been nothing less than astounding. Some members of the older generations in PNG lived through profound changes that took hundreds of years to accomplish elsewhere. Meanwhile, a debate regarding how ‘centrist’ the national government should be under a unitary arrangement was to continue among indigenous members and in the wider community. In light of the existing micronationalist movements, the most delicate issue of all was how to balance power between the central government and the country’s various regions. Nonetheless, the Constitutional Planning Committee (CPC), a parliamentary group established to design the national constitution, staunchly stood by its conviction that a decentralised provincial system of government was needed. Somare, in contrast, was unwilling to grant more governing responsibilities to secondary governments at a time when the whole country was going through a delicate transitional phase. After secession threats by the Napidakoe Navitu and Papua Besena, and a careful evaluation by Somare, a provincial government system was initiated in 1976 under the Organic Law on Provincial Governments (OLPGs). By 1980, 19 provincial governments and a city commission for Port Moresby had been established (Dorney 1990: chapter 5). The OLPGs was replaced in 1995 by the Organic Law on Provincial Governments and Local Level Governments. The intent was to bring political control closer to the people by gradually empowering the local level governments.2

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TABLE 9.2

The legislatures of Papua New Guinea and membership Type of legislature

Membership

1951 Legislative Council

Administrator 16 official members 9 appointed members (3 Papuans and 3 New Guineans) 3 elected Europeans

1961 Legislative Council

Administrator 14 official members 10 appointed members 6 elected Europeans 6 elected Papuans and New Guineans

1964 House of Assembly

10 official members 10 members from special electorates 44 members from open electorates

1968 House of Assembly

10 official members 15 members from regional electorates (candidates must have territory intermediate or equivalent) 69 members from open electorates

1972 House of Assembly

4 official members 18 members of regional elec torates 82 members of open electorates Up to 3 members nominated by the House

1977 House of Parliament to

20 elected regional seats

the present

89 elected open seats

Sources: Nelson (1974: 125), excluding the 1977 House of Parliament

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Key features of PNG’s parliamentary system What type of Westminster government is practised in PNG? Given PNG’s truncated political history, electoral behaviour and parliamentary practices were bound to be affected one way or another. The end results have constituted a Westminster government that has mirrored its own evolutionary phases. Hence, ‘despite its inherited Westminster-style parliament and democratic institutions, Papua New Guinea’s political system has rapidly evolved its own mores and distinctive practices’ (Dorney 2000: 40). To understand the features that define the inherent qualities of PNG’s national parliament and government machinery, it is prudent to examine its unique characteristics. The first characteristic is a reciprocal relationship between voters and parliamentarians in many electorates of the country. While such a relationship is perfectly normal for most democracies, it bears more importance and significance in PNG, since the performance of members is popularly measured by how much they deliver to the electorate. This voter–politician relationship is also to be understood against a history of dependence on the government that was developed prior to independence (Parker and Wolfers 1971). The expectation arose that the government was supposedly the source of everything: from road and schools to business opportunities and capital. The MP was merely the conduit to pass on to the people what they desired. Former Prime Minister Sir Julius Chan has an explanation: I have often read foreign commentators refer to our politics as ‘crazy and without ideology’. Ideology is a luxury marginal members cannot afford. It becomes a case of delivering the goods – a pragmatic approach. Just as it is in Australia before election day, with both sides offering election bonuses. The Australian parties play Santa at every Federal and State election. For us it is a full-time job! (Quoted in Dorney 2000: 47.)

Politicians have reacted accordingly, since their own political survival is dependent on how much they deliver. This type of cargo-cult delivery system may mean that MPs exceed their original constitutional duties, which is their role as legislators. For instance, years after independence, Prime Minister Sir Mekere Morauta was to lament that the country as a whole had fared much worse than had the immediate voters of porkbarrelling members (Dorney 2000: 79).

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A second characteristic that has contributed to PNG’s national parliament is the use of the first-past-the-post (FPP) electoral system. The voting system was last employed during the 2002 national elections (replaced by a limited preferential voting system that was adopted in 2001).3 The FPP system was previously used for six elections at five-year intervals from 1977 to 2002. Its impact was clearly seen in the increasing number of candidates contesting the 109 seats in Parliament, as shown in Table 9.3. TABLE 9.3 Candidates and electoral competition, 1964–2002 Year

Type of Number of Number of % increase Average Average % electoral elective Candidates in the number of increase in increase system seats in the number of candidates candidates legislature candidates per per electorate electorate

1964

OPV

54

298

1968 1972

—

55

—

—

OPV

84

484

62.4

5.8

0.3

5.4

OPV

100

611

26.2

6.1

0.3

5.2

1977

FPTP

109

879

43.9

8.1

2

32.8

1982

FPTP

109

1125

28

10.3

2.2

27.2

1987

FPTP

109

1513

34.5

13.9

3.6

34.9

1992

FPTP

109

1655

9.4

15.2

1.3

9.4

1997

FPTP

109

2371

43.3

21.8

6.6

43.4

2002

FPTP

109

2878

21.4

26.4

4.6

21.1

Key: OPV = optional preferential voting; FPP = first-past-the-post (also known as the Plurality system)

There were 298 candidates in 1964, a time when many ordinary citizens did not really understand the role of parliamentarians, and particularly the procedures of the legislature. By the time the FPP system was introduced in 1977, the total number of candidates had increased to over 800. In 2002, the total number of candidates stood at 2878. The increasing number of candidates means that the degree of support for each winning candidate is likely to decrease with each new election. That has been the case with Papua New Guinea and Table 9.4 displays the numbers. It is clear from Table 9.4 that between 1977 and 1997 more people entered parliament with reduced support. In 1977, 18 candidates acquired

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Winning percentages of candidates, 1977 to 1997

Winning percentages

1977

1982 6

1987 3

1992 2

1997 1

2002

60+

8

0

50–59

10

8

4

5

3

1

40–49

16

14

5

4

2

3

30–39

26

20

12

12

9

16

20–29

39

36

42

34

34

23

10–19

10

22

39

44

44

44

0–9 Number of seats

0 109

3 109

1 106*

8 109

16 109

16 103**

* Three electorates postponed their elections after candidates passed away just before polling. ** Six seats from the Southern Highlands province were declared ‘failed’ after the 2002 national elections. The by-elections were held in mid-2002.

majority support from their respective electorates when they were endorsed by more than 50 per cent of their voters. At the other end, no candidate won a seat with 9 per cent or less, but 10 candidates did with 19 per cent or less. The picture had drastically changed by 1997, when only four candidates secured at least 50 per cent of the votes. In contrast, 60 candidates won seats with support at 19 per cent or less. In 2002, only one candidate captured more than 50 per cent of the votes. The FPP electoral system has affected PNG’s parliamentary democracy and the quality of governance in a number of ways. For one thing, representative democracy means anything but that in PNG. On another level, the electoral system atomised support for the contesting candidates. This in turn aggravated problems relating to hyper-electoral competition, including endemic bribery, vote-buying and gun-related violence in the more recent elections. In relation to parliamentary performance, the restricted support for winning candidates meant that some members were often serving a fraction of the voters they represent in each electorate, a point that adds clarity to the reciprocal relationship highlighted above. The Westminster design of the PNG national parliament is a third characteristic that underpins the peculiar features evident in the country’s legislature. It is another arena with its own set of game rules. The aggrandising behaviour of MPs in parliament is dictated to a greater degree by

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how politics is played out. Since 1977, there have been 109 seats in the unicameral chamber. One MP is voted the speaker, which leaves 108 members. A group of MPs normally aligned with political parties then vie for control of at least the barest minimum of 55 seats. Whichever side gets to acquire 55 members or more then earns the mandate to control the executive.4 In an ideal two-party system, the bigger party gets to control the executive and the smaller party occupies the opposition side. In a coalition government, the side with the highest number of MPs assumes control of the executive. Parliamentarians and their parties that find themselves in government can then be given ministries or other responsibilities. A MP stands a reasonable chance of being a ‘power wielder’ if he or she is a member of the ruling coalition. The government side of politics is where MPs can acquire resources that enable them to meet or fulfil their electoral promises. The regular display of public largesse in front of the voters, needless to say, is also a form of continuous campaigning for the next election. Some fortunate members on the government side are allocated ministries. For others, there are statutory bodies, public enterprises and special ad hoc tasks. However, not everyone in the governing coalition will be allocated a political post. In contrast, the opposition side of politics provides hardly any opportunities to honour commitments or provide ‘pork’ to one’s constituents. Before the introduction of the Organic Law on the Integrity of Political Parties and Candidates (henceforth the Integrity Law), the best available option was to look for ways to join the government side. This was done by crossing the floor of parliament, especially if the government offered positions. However, such offers were usually selective and qualified by certain conditions. Thus, most opposition members had an underlying incentive to seek a complete change of government through a ‘no confidence’ motion. Ultimately, an insidious game of opportunism took place with no real issues or policy stances dividing the various parties. Instead, excuses for ‘no confidence’ measures were routinely fabricated for public consumption. A fourth characteristic of PNG’s parliament has been the country’s weak party system. This is a shortcoming for parliamentary democracy that is not unique to PNG.5 The weakness of political parties is due principally to a lack of support and membership among the populace. Furthermore, parties in PNG are not founded on ideologies, belief systems, specific issues, or historical circumstances that would galvanise and sustain support over time. Political parties exist because they are the means used for coalition for-

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mation in parliament. In retrospect, while the independence issue created party divisions in parliament in the late 1960s and early 1970s, there has not been one controversial issue since then that would have separated the positions of parties. The role of political parties was then limited to two particular functions: the sponsorship of candidates and subsequently coalition-building. A final characteristic that has exerted impact on the performance of the PNG national parliament has been individuals’ attitude towards political power. This has become an area of concern due to the manner in which power has been misused and perhaps misperceived in the country. There are two key but related reasons why individuals crave political power. First, many of the traditional PNG societies place high emphasis on the social status of individuals. Upward social mobility is associated with success in various fields, which often is displayed through wealth, fighting and hunting skills, and so on. In modern times, success also includes better education, business skills and the like. Intricately woven into all these success categories is the perceived ability to be a leader. What has often been referred to as a culture of ‘bigmanship’ represents in part endeavours to achieve this end. The parliamentary arena is the ultimate pinnacle in which one can advance politically (Hegarty 1983). The second reason why individuals want to be parliamentarians is that the position offers opportunity for them to advance their own interests. Very often these interests are manifested in the form of business opportunities. It is not surprising, therefore, that politicians are entering business either while still in power or as soon as they leave politics (Kavanamur 2001a).

Consequences of the overlay of democracy on Melanesian politics The first major consequence that is directly related to the voter–politician reciprocal relationship is the performance of the member. For most parliamentarians, there is almost a permanent preoccupation with fulfilling the wishes of the voters as part of the bargain. Failure to impress voters often ends with a candidate losing his or her seat. That PNG has a high attrition rate for incumbent MPs is explained in part by this rigid relationship between voters and their respective representatives (Okole 2003).

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Many of the peculiar characteristics of PNG’s national parliament emanate from the practices of multi-party coalition politics. With weak parties in existence, the formation and survival of coalition governments are very much dependent on the wishes of partners at given moments. Not only were party members not always fully committed to their respective parties, but relations between parties vis-à-vis prolonged alliances are not always guaranteed. The end result has been continuous change of coalition governments since independence. Weak party affiliation by parliamentarians is exacerbated by the unicameral design of the legislature. Successive executive sides have often been formed by loose alliances comprising weak political parties. There are three developments that arise from this situation. First, there is a gravitational pull towards the executive side in the legislature because of the ministries and other positions that a prime minister can distribute among his coalition partners. Not only do parliamentarians realise that their loyalty to the executive is stronger than to their party, but also the gravitational pull reduces the ability of the legislature to scrutinise government. Over the last 10 years at least, the arm of the executive has been strengthened at the expense of parliament. The second development is that over time there has been an apparent reordering of the sitting arrangement in the legislature. The opposition has progressively become smaller in size since few political parties want to be on that side of the chamber. Parties and individuals have preferred to be with the executive, even if that meant sitting on the backbenches. The constant change of government means that being a backbencher does not have to be for the long haul. The third development relating to PNG’s parliament has been the popularity of the middle-benches. Occupying a position between the executive and opposition is a better option, particular since the members and parties are not strictly allied with either side and, therefore, are more readily available for coalition formation when the situation warrants. Another feature of PNG’s parliament is an array of practices that have been invented by members to enhance their chances of political survival. These practices ultimately did, and still do in some respects, affect the performance of the national legislature. When it became obvious that a change of government was as easy as amassing the required number to topple the incumbent, it set in motion insidious activities that basically left no prime

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minister and his government safe from voracious politics. The big parties since the 1970s like the Pangu Pati splintered to different parliamentary factions. Some members opted for the ‘smallness’ of parties since it was easier to manoeuvre them in and out of coalition groupings. Some of these parties were nothing more than printed names on paper. Some parliamentarians were even members of more than one party at any one time (Saffu 1996).

Government strategies: Survival in the absence of party discipline By the 1990s, governments began employing tactics of survival even among the coalition partners. Trust among cabinet colleagues was at its lowest ebb so that extraordinary things were done simply to survive. While most of the strategies targeted MPs, the public had to be kept on side either by directly appealing to them through both rhetoric and action, or working around their ignorance, particularly where the government chose to use forms of legal redress. A number of strategies were known to have been applied in the 1990s, some of them bordering on constitutional crisis cases. The first was that a prime minister at times had to offer special favours, bribery and sometimes blackmail to change or maintain the status quo. A prime minister even with the best of intentions for the country has to have one eye on governance and the other on maintaining his coalition. Former Prime Minister Chan once complained about how much time and effort he had to commit to addressing his fellow politicians’ desires: [I am wasting time in] coping with requests for special favours of all kinds, financial and otherwise, from individual politicians. I will be even franker and say that if a Prime Minister is determined to stay in office he can do so quite easily if he is prepared to grant enough favours. … I can’t speak for my predecessor, Michael Somare, but I would be most surprised if he didn’t face the same problems and I cannot see how any alternative head of government could avoid them (quoted in Kavanamur 2001b).

Bribes can induce members to remain in their current positions, cross to the government side, or defect to the opposition. In that light, a prime minister can bribe even cabinet colleagues just to maintain their support. Literally, the odds of coalition partners leaving the government were so high

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that prime ministers had to induce support in whatever ways they could. A second strategy was to look for loopholes in the laws and for the prime minister to use them to his advantage. This is exemplified by one renowned case. In August 1993, after 14 months in office, Prime Minister Paias Wingti resigned and then got himself re-elected by a dazed parliament the next day. Wingti’s government term was approaching the end of the 18month grace period in which no-confidence motions are prohibited and his action was supposed to earn another 18 months. Wingti ended up resigning a year later following a Supreme Court ruling that invalidated his action (Saffu 1995: 221–2 and Narokobi 2002: 74). A third device sometimes used is when government strategists lure a minor party into coalition and then effectively absorb or co-opt it by removing the party head.6 The ploy starts when a party is allowed to join the governing coalition. The ordinary members of the new party are offered comfort by being given ministries and other positions of responsibility. After some time, the party leader is removed or dumped, often for some dubious or trivial reasons. The other party members are then placed in a precarious situation where they have to choose between following their fallen party leader and thereby abandoning all the benefits that are difficult to acquire, or stay put and pledge a new commitment either to a new party or become an independent. A fourth strategy seen at least in the late 1990s resulted in government deliberately withholding the Electoral Development Funds (EDFs) belonging to parliamentarians in the opposition. Such funds were allocated to members that they could use for whatever projects in their respective electorates.7 Needless to say, the EDFs served the purpose of ingratiating the legislators with their electorates. Denying the opposition members their allocation was meant to coerce more parliamentarians to cross to the government side. The perceived sources and consequences of parliamentary practices in PNG need to be understood against the poor economic background of the country. While the country is well endowed in natural resources with a relatively small population, it has been difficult for governments since independence to record good economic growth. Hence, ‘the paradox for Papua New Guinea is seen in terms of its rich endowment of natural resources and high levels of aid on the one hand, and its poor social indicators and disappointing growth record on the other’ (Dorney 2000: 81). The

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reasons for a negative growth rate vary. They include the lack of political stability in parliament, bad policy choices, poor infrastructure linking urban centres to the countryside, law and order issues, civil unrest, natural disasters, and the complication of laws governing natural resources (Cole 1997). In 1990, PNG recorded a –3 per cent annual growth and it dropped further to –3.5 per cent in 2001 (World Bank 2003). The impact of poor economic performance on politics is hyper-competition for the limited resources. The role of the private sector is restricted or suffocated by the layers of disincentives vis-à-vis investment. The state institutions then become the means by which self-aggrandising individuals pursue their own goals. Generally, politics then becomes the only game left in town.

Coalition instability and the integrity law The end result of all these developments has been the revolving door changes of government that has taken place since independence. In fact, no government has served out a full five-year term and perpetual political change seems the norm. TABLE

9.5

Year

Coalition governments since 1972 Prime minister

Deputy prime minister

Precursor of change

1972

Michael Somare (Pangu) Julius Chan (PPP)

1977

Michael Somare (Pangu) Julius Chan (PPP)

National elections

1980

Julius Chan (PPP)

Vote of no confidence

1982

Michael Somare (Pangu) Paias Wingti (Pangu)

National elections

1985

Paias Wingti (PDM)

Julius Chan (PPP)

Vote of no confidence

1987

Paias Wingti (PDM)

Julius Chan (PPP)

National elections

1988

Rabbie Namaliu (Pangu) Ted Diro (PAP)

Vote of no confidence

1992

Paias Wingti (PDM)

Julius Chan (PPP)

National elections

1994

Julius Chan (PPP)

Chris Haiveta (Pangu) Court ousted PM

1997

Bill Skates (PNC)

Chris Haiveta (Pangu) National elections

1999

Mekere Morauta (PDM) John Pundari (PAP)

Incumbent PM resigned

2002

Michael Somare (NA)

National elections

Iambakey Okuk (NP)

Allan Marat (PPP)

National elections

Key: Pangu = Pangu Pati; PPP = People’s Progress Party; NP = National Party; PDM = People’s Democratic Movement; PAP = People’s Action Party; PNC = People’s National Congress; NA = National Alliance.

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The government has changed hands ten times since 1977 (leaving an average length of incumbency of just over two and a half years per government). Five changes have come through elections, three by votes of no confidence, and one each through a court ruling and a resignation. These changes do not include the numerous occasions when coalition partners changed (though the main party remained at the helm), the number of unsuccessful and aborted no confidence motions, or the frequent partyjumping by members of parliament. The last successful vote of no confidence took place in 1988, although coalition instability has worsened since. Coalition instability became a permanent feature of PNG’s national politics from the mid-1980s (Okole 2003). Coming out of the 1982 national elections, the Pangu Pati under the leadership of Michael Somare was to become the most successful party at any elections in the history of PNG when it won 50 our of the 109 seats. However, the party was to succumb to internal divisions by 1985, the year that Somare lost the prime ministership for the second time since independence. From then on, party politics became haphazard and extremely volatile. In 2001, the government of Sir Mekere Morauta introduced the Integrity Law. This piece of legislation was designed specifically to stabilise politics in the national parliament. The Integrity Law came into effect after the 2002 national elections. One of the key provisions prohibited members from switching political parties at will unless for reasons specified by law. Political events since 2002 have tested the Integrity Law, though more time is required to see how effective it can be in dealing with PNG’s instability problem.

Reinvigorating the committee system Sections 118–123 of the national constitution provide for permanent parliamentary committees. In recent years this constitutional provision was further consolidated with the introduction of the Permanent Parliamentary Committees Act 1994. The committee system attempts to be inclusive in that it tries to accommodate as many backbenchers as possible while prohibiting ministers from membership. There are 38 parliamentary committees in the PNG parliament. The parliamentary committee system has not been performing well at least over the last 15 years. Lack of finance has been one area

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that has hampered their performances. Another is the lack of commitment of some members to make them work effectively. Committee members are able to collect their sitting allowance even when they do not meet at all. A better performing system would have immensely assisted the national government in a number of ways. Since committees are formed by members from both the government and opposition sides, their respective responsibilities would have served to give ordinary parliamentarians something recognisable to do apart from conspiring to win ministries. Also, the close co-operation forged among members through the parliamentary committee system would have served to further enhance transparency, accountability and trust; qualities that are badly missed in the country’s legislature. Moreover, parliamentary committees could have been useful training grounds for freshman parliamentarians. Finally, a government cautious not to get embroiled in sensitive issues can use the committee process of inquiry and reporting to ascertain public support and policy options (Okole, Narokobi and Clements 2003). The revival of the Public Accounts Committee (PAC) since 2002 has been successful and has won public praise. There is hope that other committees would do the same. However, the committees still face resource limitations and operate under the auspices of the speaker – an office whose independence is frequently queried.

Conclusion This chapter has given an overview of the process through which PNG came to have a Westminster system of government. The system was implanted to PNG through Australia’s colonial rule. A legislature was established to represent the colony by the 1950s, with the first election held in 1964. Over a period of just over 20 years, the incipient democratic setting became a fullyfledged modern democracy in 1975 when the country gained its independence. At the point of departure as a new nation the Westminster system was considered the most appropriate model of government, given the pressing circumstances and particularly with Australia at the helm. A unitary arrangement was preferred over federalism, and unicameral legislature was chosen as better suited in the country’s formative years. What is clear is that while the PNG system of government possesses all the basic institutional features of a Westminster democracy, it demonstrates

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other characteristics that are not entirely comparable to other countries that adopted the Westminster model. One fundamental set of differences relates to the cultural relationships between voters and their elected representatives, and especially the behaviour of the latter group in the national parliament. Voters desire an array of tangible benefits while members seek re-election. How these sides hold each other accountable to their respective ends of the bargain is what explains in part the haphazard performance of the legislative body. The PNG parliament does not operate as a disciplined, adversarial and stable institution. Another fundamental aspect of PNG’s brand of Westminster democracy is the existence of many fluid political parties. Parties at times are no more than parliamentary factions, but they are indispensable to coalition governments. More often than not, parties are stepping stones for coalition formation and dissolution. That no political party has amassed popular support and sustained it over time explains the nature and motive of such parties. ‘They remained politicians’ parties, not mass parties’ (Oliver 1989: 10), or cadre parties as Duverger (1966) categorised them. In other ways, PNG’s Westminster system shares some of the same features as other cases. For example, PNG has developed a strong executive arm at the expense of a vibrant opposition (similar to Malaysia or Singapore). In PNG’s case this has heralded a parliamentary attraction to the middle benches, as a response to the manner in which politics has been played out on the floor of parliament. The PNG national parliament may be in serious need of reform (Okole, Narokobi and Clements 2003). Some important features of the Westminster model of government have been rendered ineffective by the ever-changing political temperament of the country. Fluctuating coalitions, regime instability and a culture of ‘spoils politics’ have permeated the character of a parliamentary democracy. The adoption of the Integrity Law in 2001 was the first serious attempt to stabilise politics in the national parliament. If, as a new nation, PNG has successfully overlaid democratic politics on to its Melanesian cultures, it has less successfully inculcated the modus operandi of a Westminster system.

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Notes 1

2 3

4

5

6

7

Of great symbolic importance also in the early 1970s was a name change for the country. The formal name, the Territory of Papua and New Guinea, was changed to Papua New Guinea. Not only did this signify the unity of the country, but it also elevated the former colony to the same level as its departing coloniser, well ahead of independence. An Australian high commissioner was sworn into office in Port Moresby on self-government day. The high commissioner then swore in Michael Somare as head of government. The House of Assembly became the House of Parliament. Thus, in the big picture, the territory was independent in every way, except for formal recognition by the international community. That was to come two years later. The new system has largely failed to achieve its desired goals (see Okole, Narokobi and Clements 2003). Under the preferential voting system, voters were required to rank their candidacy choices in order of preferences starting with ‘1’ as the most favoured. All candidates should have a number. For counting, all ballot papers must be grouped initially in terms of the first choices (that is, the primary votes). In the event that a candidate collects 50 + 1 per cent of the total votes under the first choices, the candidate is declared a winner. Where the 50 per cent mark is not reached in the first count, the candidate least supported under the first count (that is, the least supported candidate in the whole race) has to surrender his or her ballot papers and reallocate to the remaining candidates on the basis of the second choices. The process continues until a candidate emerges with 50 + 1 per cent of the votes. The preferential system was relatively complicated, particularly for the highly illiterate voting population of PNG. That was the reason why optional preferential voting (OPV) was adopted. The difference between the preferential system and the OPV was that the latter did not necessarily require choices to be made against all candidates. Thus, a ballot paper with one choice was as valid as another with half of the entire field of candidates numbered in order of preference. The limited preferential voting system, adopted in 2001, requires voters to indicate three preferences only. The Organic Law on the Integrity of Political Parties and Candidates, adopted in 2001, stipulates that the most successful party in an election is to be given the first opportunity to form a government. Prior to 2001, forming a post-election government was a far more protracted affair as parliamentarians engaged in relentless competition to make up the barest majority of 55 members. Scott Mainwaring (1999) for one has theorised that most ‘third wave democracies’ have weak party systems for reasons that places them in stark contrast to developed democracies. This in turn has affected the performances of governments. For more on third wave democracies, see Huntington (1991). This particular strategy was often used during the 1997–2002 parliamentary term. A member of parliament who served for only one term during this period explained this strategy to the author. The EDFs have been severely abused over time, particularly in terms of misappropriation for one’s own use (Ketan 2000: 69).

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Democracy in Fiji: Westminster or something else?

10

Margaret Palmer

n Fiji, the British colonial government grafted parliamentary government on to local social and power structures, which it had modified to facilitate indirect rule prior to Fijian independence in 1970. Britain’s primary goal was an economically self-sufficient colony, though Fiji’s first governor, Sir Arthur Gordon, also wished to preserve the traditional Fijian way of life. Thus indigenous Fijians were to retain ownership of their traditional lands and as far as possible be encouraged to follow their traditional cultural ways. Democracy was not on the agenda in the earlier colonial period. As one European Legislative Councillor put it, ‘This government is not founded on principles of democracy, but it is founded on a benevolent autocracy’ (Hughes 1959: 41). Partly to preserve traditional Fijian culture, the British brought Indians to work as virtual slaves on sugar plantations in the late nineteenth and early twentieth centuries, thus avoiding the need to remove indigenous Fijians from their villages for this purpose. The policy resulted in the separation of the two races. Some Indians elected to remain in Fiji after their five-year contracts ended. Their descendants became farmers, shopkeepers and professionals. The indenture system encouraged politicisation of the Indian community. As a result,

I

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New values, forged in the crucible of indenture, stressed new goals: individual achievement and personal survival. This transition from an emphasis on communal to individual values was not precipitous … but the fundamental change in the Indians’ world view was unmistakeable (Lal: 2000a: 169).

In contrast, the Native Administration kept commoner Fijians isolated from colonial politics. The last two decades of British rule were marked by a protective fusion of bureaucratised chiefship, the colonial state and a strengthening consciousness of ethnic identity (Norton 2002: 137).

Indigenous Fijians believed that the effect of the 1874 Deed of Cession of Fiji to Britain was to guarantee indigenous political paramountcy on independence. The actual Deed itself does not support this view, however, which seems to be based on statements made by the British government at the time and reiterated by Gordon and his successors. For their part, Indian activists claimed that the 1875 Salisbury Despatch (by Lord Salisbury, Secretary of State for India, and aimed at obtaining the Indian Government’s co-operation in recruiting Indian labour for British colonies), guaranteed Indians equal political representation. Suspicion and mistrust characterised ethnic relations after independence. The separation of the two main ethnic groups was reinforced by the Native Administration, developed by the colonial government and continuing today as the Fijian Administration under the Fijian Affairs Act. The Native Administration, comprising various institutions designed to support indirect rule, led to the emergence of patron–client politics, with the Administration playing a significant role in supporting particular indigenous political parties. The Fijian Administration includes the Great Council of Chiefs (GCC) and provincial councils, and wields significant political power. Its continuing influence represents a blending of Western democratic principles with ‘traditional’ authority structures (although, as this chapter argues, Fiji represents a move away from standard Westminster principles). Perhaps reflecting the level of inter-communal distrust, all three Fijian constitutions (1970, 1990 and 1997) have been detailed and specific, unlike traditional Westminster systems which either do not have a written constitution, or if they do, leave much procedure to be decided by evolving conventions. The particular issues that currently impede or even negate the

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functioning of Westminster-style democracy – or indeed any real democracy – in Fiji reflect the continuation of these communal tensions. They include:

• prolonged litigation concerning the make-up of the multi-party cabinet • •

• • • •

mandated by the 1997 constitution a rejection of the idea of a loyal opposition (evidenced by the 1987 and 2000 coups) the existence of significant alternative political power bases to parliament resulting in, for example, doubts about the strength of civilian control of the largely indigenous Fijian military weak legitimacy of electoral processes in the view of powerful sectors of society the persistence of communal voting arrangements that reinforce ethnic disunity a deeply politicised Fijian Administration reportedly pervasive corruption and nepotism in the civil service, hindering impartial, transparent and accountable administration.

The Fijian population seems to lack an agreed sense of national identity, and there is a deficiency of political leadership able to unify the major ethnic groups. Many Fijians do not understand their constitution or the role of government in general. Fiji has evolved through the typical Westminster winner-takes-all approach to government prescribed by the 1970 and 1990 constitutions, to a consociational polity under the 1997 constitution’s multi-party cabinet arrangements. Governments elected under both arrangements have been overturned by coup d’état. The question for Fiji now is whether a new beginning is necessary, and, if so, what that might be.

Westminster modified: The 1970 independence constitution The British Colonial Office sought a move from racial division to national unity throughout the 1950s. London urged that steps be taken towards common roll elections. But change was resisted during this period by the Fijian leadership, dominated by Ratu Sukuna, who resisted the extension of voting to indigenous Fijians. Disputes between Indians and Fijians (and Europeans) over the 1970

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constitution related to the respective power of each. By 1965, Indians comprised about 51 per cent of the population, and Indian delegates to the 1965 constitutional convention sought common roll voting. Indigenous Fijians and the minority European group both resisted this strongly, fearing Indian domination. Thus they supported communal voting arrangements which would ensure they had greater representation. The pre-independence governor, Sir Kenneth Maddocks, sought the continuation of indigenous paramountcy in the 1970 constitution partly because he feared the security risk from the largely indigenous army if the indigenous Fijian population became disillusioned with the colonial government. British Secretary of State for Colonies, Duncan Sandys, responded that: The privileged position of the Fijians is not one which the modern world can be expected to find acceptable or Britain to continue indefinitely to enforce … in the view of Her Majesty’s Government the only future for Fiji worthy of her past and suitable for her position in the modern world is as a multiracial state in which citizens of all races have full opportunity to play their part according to their abilities (Norton 2002: 141).

This Colonial office view did not prevail, due to precisely the communal politics the British had previously supported. The 1970 constitution was a compromise, prescribing a mix of communal and cross-voting (or national) seats.1 The House of Representatives had 12 Fijian communal seats, 12 Indian communal seats, three General Elector (European or other) communal seats, ten each of Fijian and Indian national seats, and five General Elector national seats. The Senate had eight seats nominated by the Council of Chiefs, seven by the prime minister, six by the opposition leader and one by the Council of Rotuma. Those senators nominated by the Council of Chiefs also had the effective power to veto any legislation affecting Fijian customs and customary rights. (Similar protection was included in the 1990 and 1997 constitutions.) In contrast to the communal composition of the parliament, the cabinet was appointed according to the Prime Minister’s wishes, along standard Westminster lines, without attempting to ensure inclusion of opposing political parties and thus different ethnic groups. The 1990 constitution contained a similar provision, although the 1997 constitution ensured that the winning party/coalition had to invite any opposition party winning a sufficient number of seats to form part of cabinet (see below).

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Ethnicity and the evolution of the Fijian model In Fiji, as elsewhere in the Pacific, the politics of ethnic identity has increasingly been: … harnessed by unscrupulous would-be ethnic leaders or ‘ethnic entrepreneurs’, who mobilise supporters on the basis of crude but often effective ethnic appeals. Such mobilisation of ethnic identities for political purposes can create a ‘divided society’. In such a society ethnicity is a politically salient cleavage around which interests are organised for political purposes, such as elections (Reilly 2001: 4).

Lawson (1996) identified a ‘reified concept of tradition’ incorporating ‘such concepts as culture, custom, ethnicity and identity, as having been used as a reactive force in the South Pacific to counter the legacy of colonialism and in some cases to reject western approaches to government’. Ewins (1998) also noted this increasing trend. In any event, ‘an unwritten aspiration of most Fijians on the eve of constitutional independence in 1970 was to be in full control again in their country. It still is’ (Ravuvu 1991: preface). Indigenous Fijian institutions and some in Fiji’s present government continue to assert the right to indigenous paramountcy. In his role as interim prime minister following the May 2000 coup, Laisenia Qarase stated that: A Constitution Review Commission is to be appointed to consider a new Constitution. The 1997 Constitution will not be re-instated … The interests of the Fijian community must not be subordinated to those of the other communities, and hence the principle of the paramountcy of indigenous Fijian interests (Qarase 2000).

Qarase reiterated this view at the Commonwealth Heads of Government Meeting in 2002, when the PM, briefing the meeting on the Multi-Party Cabinet Case (see below), stated that Fiji’s constitution ‘is flawed and is not supported by the country’s indigenous people’.2 Tensions based on ethnic identity have been carefully cultivated by politically powerful figures. These tensions are more potent because of the poor economic position of indigenous Fijians compared with the Indian community, virtually guaranteed by the colonial approach to governing, and exacerbated by the rapid pace of globalisation. As Rabuka (2000) said of the

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2000 coup, ‘There was a feeling that the Indians were already well-off and it was felt that if they were in power they would be even better off and the indigenous Fijian would be marginalized’. Ethnic and socioeconomic cleavages had become powerfully aligned. However, instability in Fiji is not only the result of tensions between the two largest communities. There are strong intra-communal tensions within the indigenous community itself.

Cabinet government under the 1997 constitution Fijian governments must enjoy the confidence of the House of Representatives (s. 97). Section 102 declares cabinet to be collectively responsible to the House of Representatives for the governance of the State, while Ministers are individually responsible to the House ‘for all things done by or under the authority of the Minister in the execution of his or her office’. Unless otherwise prescribed, the president acts only on the advice of cabinet or the responsible minister. Section 99 inserts a unique twist into these arrangements, seeking to ensure ethnic balance in cabinet. In 1996, the Constitutional Review Commission (CRC) recommended that power-sharing between the ethnic groups should be achieved through the voluntary co-operation of political parties, or increased support for a genuinely multi-ethnic party. To achieve this, the CRC recommended a preferential alternative voting (AV) system in mainly non-communal, multi-member constituencies. The constitution framers chose to adopt a coercive means of ensuring inter-ethnic cooperation: section 99 provides that all parties achieving at least 10 per cent of the seats in the House of Representatives must be invited to join the cabinet, in proportion to their overall share of seats in the House, although they do not have to accept. The strength of the parliamentary opposition is likely to depend on the willingness of a party ‘with substantial public and parliamentary support’ to forego the opportunity to participate in cabinet, and instead to adopt the role of opposition. Ghai (1999) emphasises the desirability of an effective leader of the opposition to meet the objective of honest government accountable to the parliament and the public. The formal powers of the opposition leader provide some incentive: he or she nominates eight Senators, and is consulted on the appointment of the chief justice, constituency boundaries and electoral commissions. Section 99 was adopted in a context of extraordinary personal cooperation between former coup leader Rabuka and the leader of the (Indian dominated)

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National Federation Party (NFP), Jai Ram Reddy. Their aim was to overcome the racial divide by having both major ethnic groups represented in cabinet (given the main parties were still ethnically based). The moderate stance taken by both Rabuka and Reddy made such a provision possible. Paradoxically, both suffered in the 1999 elections, after assuming they would win. Although Rabuka’s defeat was partly a function of allegations of corruption and the government’s failure to improve conditions for indigenous Fijians, Rabuka’s pursuit of moderate, conciliatory politics was always going to risk being outflanked by more extremist parties. Parties which court moderation in a multi-ethnic society tempt fate. Rabuka was accused of selling out Fijian interests, just as [NFP leader] Reddy was accused of playing second fiddle to the Fijians (Lal 1999).

The early experience after the first election in 1999 under the new constitution seemed positive. However, disputes quickly arose concerning the constitution’s power-sharing arrangements. Their resolution highlights the prominent role played by the Fijian courts in constitutional matters, in contrast to the traditional Westminster approach in the United Kingdom. The Supreme Court in President of the Republic of Fiji Islands v Kubuabola held that on its proper interpretation, the constitution provided for: a distribution of power quite different from that which may be familiar under a traditional Westminster pattern. In a traditional Westminster-style democracy a Prime Minister who enjoys the support of the Lower House can normally establish a Cabinet as he or she pleases. That is not the position in Fiji Islands.

The May 2000 coup ensured bitterness in future dealings over section 99. The Fijian Court of Appeal in The Republic of Fiji v Prasad found that the 1997 constitution had not been abrogated as had been the intention of the coup-makers, and that parliament had merely been prorogued for six months. However, on 15 March 2001, the president, acting on the advice of the caretaker prime minister, unconstitutionally dissolved the House of Representatives, and appointed Qarase as caretaker prime minister, together with 17 ministers and assistant ministers. Litigation to restore the pre-coup parliament was unsuccessful. Following the 2001 elections, the Qarase government again litigated section 99, seeking to avoid having to form a cabinet partnership with

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Chaudhry’s Fiji Labour Party (FLP). The Supreme Court held in Qarase v Chaudhry (the Multi-Party Cabinet case) that: … the concept of ‘power-sharing’ among the nation’s different communities is central to the Constitution. Section 99 provides an important practical tool by which power-sharing is to be achieved … [and] it does not require prior agreement about policies and political agendas before it can be implemented … The obligation is clear. It is not affected by perceived policy differences between the Prime Minister’s Party and the Fiji Labour Party. It must be implemented without further delay.

Qarase referred the matter to the courts again, to determine the correct number of seats which the FLP must be offered. Though the Supreme Court handed down its decision in July 2004 (Qarase v Chaudhry [2004] FJSC 1), disputation between the FLP and the Soqosoqo ni Duavata Lewenivanua (SDL) about cabinet membership has continued. Another FLP action is pending in the High Court relating to alleged lack of good faith by Qarase in allocating portfolios to the FLP. As this chapter went to press, cabinet had still not been properly constituted. Human rights groups had already accused the government of delaying tactics in relation to the Multi-Party Case (US Department of State 2002). The government has indicated its own displeasure at the ethnic power-sharing arrangements, saying a new constitution will be developed that will ‘deal with’ the multiparty cabinet issue (pacificislands.cc 31 July 2003). It would appear the government seems to want a return to the winner-takes-all approach of traditional Westminster systems, which was rejected when the 1970 constitution produced the Bavadra government. The litigation and ill-will between Chaudhry and Qarase highlights the unsatisfactory reliance that must be placed on personalities to make section 99 work. The detail of section 99 has also left little room for the evolution of parliamentary conventions to deal with situations like this, though such conventions are a significant feature of Westminster systems elsewhere. The question remains whether, in the face of relevant court decisions, a convention can (or even should) be developed to allow for some flexibility in the requirement for the winning party/coalition to invite qualified parties into cabinet if the latter’s policies are at manifest odds with that of the winning party. Such a convention would contradict the express intention of the constitutional framers.

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The current multi-party cabinet provisions in section 99 of the 1997 constitution, while overcoming the winner-takes-all result guaranteed by Westminster democracy, have their own drawbacks: by including all the major parties in government, they weaken the likelihood of a strong opposition that could form a credible alternative government. Fraser (2000) expressed the dilemmas for such a cabinet well: The Cabinet, consisting of winners and losers together, cannot be the coherent team Westminster contemplates, and the story of Parliament cannot be a record of government initiatives and Opposition criticism. … Presumably the Labour backbenchers in this Parliament … will criticise only some members of Cabinet, along with its overall leadership; they could hardly criticise Cabinet’s Labour members. (The alternative is to incur splits within parties, also an enfeeblement of Westminster government, as indeed occurred under Chaudhry’s administration during 1999–2000.) Those Labour ministers will have to concur with that criticism, or at least not reject it, even though it is of their fellow Cabinet members. In the meantime the PM and the ministers who support his policies will struggle in every meeting of Cabinet to see their preferred choices approved.

Ghai (2000a) has expressed the same view.

Accountability of ministers and public officials to the electorate Chapter 11 of the 1997 constitution (Accountability) required the enactment of legislation establishing a code of conduct to regulate official conduct. However, despite the mandatory and urgent nature of the provision, the relevant legislation has not been passed in the eight subsequent years. A less stringent provision (section 174) urged the government to enact freedom of information legislation. Similarly, the relevant legislation has not been passed. The constitution also provided for an increased role for parliamentary backbenchers through sector standing committees in section 74(3), and section 42 established a Human Rights Commission. These measures have been implemented although, in combination with the multi-party cabinet provision this may mean that parliamentarians who are not on these committees are less likely to speak out against government decisions, and that political parties are generally less accountable to the electorate. Ghai (2000a: 44) notes that:

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No party may accept clear responsibility for policy of government since it could blame its partners. The electorate may not be offered a clear choice; and, even if it is, the platform on which a party may have fought the election may have to be modified in Cabinet in order to produce a consensus. Decision-making may become less open, being made in the secrecy of the Cabinet and protected from scrutiny by the principle of collective responsibility.

Corruption, a lack of expertise and accountability within public institutions and a resistance to criticism – highlighted by successive governments’ efforts to hobble the media – hinder the functioning of democratic government in Fiji. An Australian consultant for the Fijian public sector before the 2000 coup advised that there was enormous sensitivity in the indigenous community to speaking about corruption. The Westminster principle of an independent and accountable public sector sat only lightly on the underlying culture: indigenous Fijians will accept accountability requirements in administrative positions if these do not clash with their obligations to help members of their mataqali or clan. In this context, the concept of merit in appointments would often clash with obligations to help family members obtain positions, reducing the likelihood of a professional public service able to give the ‘frank and fearless’ advice expected from a Westminster-style independent civil service. Selection for civil service positions solely on the basis of merit was not the aim of the 1990 constitution, which provided for affirmative action programs for indigenous Fijians. Section 44 of the 1997 constitution widened the scope of affirmative action programs ‘to achieve for all groups or categories of persons who are disadvantaged effective equality of access to … participation … in all levels and branches of service of the State’. The 1997 constitution (section 140(d)) provided that selection to state services shall be on the basis of merit, but then provided that the composition of the public sector ‘“should” reflect as closely as possible the ethnic composition of the population …’. The Qarase government’s policies have also favoured affirmative action for indigenous groups. The Transparency International (TI) 2001 study of Fijian national integrity systems – admittedly done while the interim government was in place – found evidence of:

• kickbacks in the issue of permits and licences • nepotism and cronyism in selection processes

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• a lack of experience and expertise in institutions like the Director of • • •

Public Prosecutions weak enforcement of the few sanctions against illegal/unethical practices by public servants misuse of public funds a culture that impaired the effectiveness of national integrity systems and discouraged whistle-blowing.

Although the 1997 constitution contains provision for an auditorgeneral and an ombudsman, the TI study found that both these institutions required strengthening. The auditor-general’s office complained that it lacked resources, quality staff and enforcement powers. The ombudsman’s office also reported obstacles to effectiveness: the office is not publicised, its reports are not tabled in parliament and are thus not debated there, and follow-up action is not made public. Fiji’s scattered population makes publicising the ombudsman’s role difficult, and a culture of silence makes complaints unlikely. Similar problems were noted in the subsequent Heritage Foundation’s 2003 Index of Economic Freedom, which reported that there was room for greater transparency in Fiji’s public sector, but that continuing political instability made regulatory reform difficult.

An effective/loyal opposition The importance of ethnicity in Fiji saw the development of political parties along racial lines, and constitutions that have entrenched ethnic voting patterns. These factors mean in a Westminster political system that victory by one political party is perceived as the victory of one ethnic group over another. It also implies the general absence of ‘swinging’ voters who might change their political allegiance from one election to the next. For 17 years following independence in 1970, the mainly indigenous Fijian Alliance Party held power. Fiji seemed to be a model democracy, but it was clear that this depended on the electoral process maintaining the political paramountcy of Fijians. As Lawson (1991: 255) notes, ‘the crucial test for democratic politics is not only that opposition be tolerated, but that alternative governments be allowed to succeed to office’. Fijian democracy failed this test with Rabuka’s first coup in 1987, following the election of the Bavadra government, which, though led by an indigenous Fijian and with cabinet evenly balanced between the two ethnic groups, was seen to be too

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closely allied to the Indian community (as well as being led by someone from the wrong indigenous power base). Rabuka’s stated aim in the coup was indigenous Fijian political paramountcy – a return to the reality of government pre-1987. There would be a new constitution, which would be ‘written in such a way that the Fijians will always have majority in the Parliament’ (Dean and Ritova 1988: 122). Ravuvu (1991: 87) also claimed that the idea of a paid opposition is foreign to indigenous Fijians. Commenting on pre-independence consultation, he claimed that ‘[v]illagers could not understand the necessity’ for a formal opposition or political alternative government. ‘It made no sense to them to actually pay people to work against the government and against their chosen leaders in Parliament. The fact that the Opposition was Indian introduced a dangerous racial overtone.’ The CRC, which made recommendations for the 1990 constitution, ‘accepted the need to recognise the aspirations and the right of the indigenous Fijians for political control in their own country’ (Dean and Ritova 1988: 16). The new constitution achieved this, with Fijians entitled to 37 of the 70 seats in the House of Representatives. In providing for fully communal voting arrangements – in contrast to the 1970 constitution – and ensuring the continuation of ethnically based political parties, the 1990 constitution negated the possibility of a Westminster-style opposition as long as government and opposition were defined along ethnic lines. The consequences of this constitution were reportedly ‘disastrous: rampant corruption, decline in economic growth, outflow of talent and capital, and a general sense of alienation. Divisions within the indigenous community sharpened as the Indo-Fijians were sidelined’ (Ghai 2001: 37). The 1997 constitution does not automatically guarantee indigenous political paramountcy: of the 71 seats in the House of Representatives, 25 are open seats, 23 are reserved for ethnic Fijians, 19 for Indians, one for Rotumans, and three for General Electors (Europeans and others). But the 1999 elections, which delivered a government led by Mahendra Chaudhry’s Indian-dominated FLP, resulted in immediate attempts to destabilise the government by indigenous nationalists in opposition, and even by elements of the FLP and its partners in government. The 2000 coup installed an indigenous dominated interim government. In the elections of 2001, the indigenous SDL Party led by (former interim prime minister) Laisenia Qarase won 32 seats, with Chaudhry’s FLP winning 27. Qarase, who had

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campaigned on a promise of ensuring Fijian political paramountcy, managed to form government with other indigenous parties and independents. But litigation concerning Cabinet’s composition has meant that the opposition has still to be properly formed.

Alternative power bases to parliament The coups of 1987 and 2000 highlighted the influence of significant political power bases outside parliament. These acted outside the parliamentary process to buttress the opposition of indigenous political parties to any government perceived as Indian-dominated. As Lal (2000b: 286) pointed out in relation to the coup of 2000, the political reality was that: The [Chaudhry] government did have a mandate, but its mandate was one among many mandates in Fiji. The parliament is not the sole source of all power in Fiji: the Native Land Trust Board [NLTB] has its mandate to look after native land, the Great Council of Chiefs has its own mandate under the constitution, the Army its own. It was the failure, or perhaps the unwillingness, to balance the complex equation of competing mandates that compounded the government’s problems.

These non-parliamentary actors have extended their mandates extra-constitutionally to advance the nationalist indigenous cause.

The Fijian Administration The Great Council of Chiefs (GCC) or Bose Levu Vakaturaga (BLV) The GCC is at the apex of the Fijian Administration, and was formally recognised in the 1990 constitution for the first time. It was thereby given significant additional power, being authorised to nominate the president and the two vice-presidents, as well as 24 of the 34 members of the Senate, two-thirds of whom could exercise veto power over legislation providing for the rights of indigenous Fijians. (There were only nine senators, chosen by the president, acting in his own judgement, to represent the non-indigenous communities, as well as one Rotuman nominated by the Council of Rotuma.) Under the revised provisions of the 1997 constitution (section 116), the GCC now has the power to nominate 14 of the 32 members of the Senate. Section 90 provides it with the power to appoint both the

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president and vice-president, after consultation with the prime minister. The GCC endorsed the 1987 coups by Rabuka (Robertson and Tamanisau 1988; Lal 1992). It also made a submission to the CRC established after the first 1987 coup, supporting indigenous Fijian paramountcy in parliament. In 2000, the GCC made significant concessions to George Speight’s demands, ruled out a return to office of Chaudhry’s government, supported major revisions to the 1997 constitution, and sought a pardon for the coup-makers. The GCC also refused to recognise the ruling by the Court of Appeal that the 2000 coup had not abrogated the 1997 constitution, and insisted that the constitution had been effectively abrogated. Further, it stated that the Qarase-led interim administration would continue to govern (Fijilive 9 March 2001). Overall, the GCC has shown itself racially partisan and unable to play a leadership role on behalf of all Fijians. As Robertson (2001) points out: Apart from [its] constitutional functions, the Bose Levu Vakaturaga has an additional political role of exercising responsible leadership. In this regard, the Bose Levu Vakaturaga and its members, like every Fijian citizen, is bound by the rule of law set out in the 1997 Constitution. The Constitution grants lawmaking power only to a democratically elected Parliament and sets clear limits to the role that can lawfully be played by the Council.

The Native Lands Trust Board (NLTB) The NLTB is responsible for the administration of native land in Fiji, including the power to grant logging licences and concessions. Land is possibly the most divisive policy issue to face Fiji, due partly to its close connection with indigenous Fijian identity. In 1999 the Chaudhry government was faced with the recent expiration of many leases under the Agricultural Landlord and Tenant Act, and the wish of many indigenous landlords not to renew leases. The main contractual and financial issues involved were the length of tenure, the rent-setting mechanism, the regulations on compensation for improvements, and the future of agriculture in Fiji generally. Chaudhry’s enemies in the NLTB used the land issue to destabilise his government. Following the May 2000 coup, the NLTB played an overtly political role by circulating a paper titled ‘Deed of Sovereignty’, based on the 1874 Deed of Cession, calling for the chiefs to hand over governance to the ‘Civilian

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Taukei Government’ declared by George Speight. The Deed stated that the only solution to the present impasse was for the chiefs to hand power to Speight’s government, while an NLTB spokesman reiterated the need to ensure Fijian political paramountcy. In their consideration of the history of the Fijian Administration, Robertson and Sutherland (2001) painted an unflattering portrait of a selfinterested body comprised of an elite closely involved both in politics and the significant business interests managed by the government, and instrumental in fomenting public discontent against the Chaudhry government in response to its attempts to reform the land tenure system. Ratuva (2000) has also described a scandal-ridden, self-interested, politically involved bureaucratic elite within the NLTB. The Army Historical factors encouraged the involvement of the Fijian army in politics. Its role in colonial times was significantly inward-looking. In post-colonial Fiji, the first priority of the military’s role was to help the police and civil authorities restore and maintain law and order. External defence was well down on the list, and the loyalties of individuals may still be to localities rather than to the State. Sanday (1991) noted that civilian supremacy in Fiji was based on a combination of the ‘aristocratic’ model, in which civilian and military elites share the same social background, and the ‘liberal democratic’ model, in which the military were professionals in the employ of the State with a duty to obey civilian politicians with an electoral mandate to rule. There was no ostensible conflict between these models prior to the 1987 coup, because the identity of the civilian ruler designated by both models was the same. The Court of Appeal in the Prasad case found that Fijian Military Forces (RFMF) Commander Commodore Voreqe Bainimarama had intended actually to overthrow the constitution when taking control in May 2000. The Muanikau Accord of 9 July 2000 between the commander and coup spokesman George Speight asserted a political view of the situation rather than purporting merely to be a technical means to end the strife: it referred to the prime minister and other imprisoned government members as ‘political hostages’ and stated that the coup was carried out for the purpose of ‘addressing and correcting the growing discontent among indigenous Fijians and their opposition to … the 1997 Constitution which they believe are repugnant to the preservation and protection of the rights and interests of indigenous Fijians in Fiji.’

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Civilian control of the military is provided for formally in the 1997 constitution, and following the November 2000 mutiny, head of the RFMF Commodore Bainimarama said that there would be no more coups in Fiji. However, his tenure at one stage appeared to be threatened because of such views, and elements of the military may again become involved in politics if a government were elected which did not satisfy elite interest groups. The mutiny of November 2000 by some elements of the Counter Revolutionary Warfare Unit was evidence that some military were still prepared to finish Speight’s coup for him.

Legitimacy: Democratic elections and changes of government In both cases where a government was elected that was perceived to be too closely allied to the Indian community (and perhaps from the ‘wrong’ indigenous power base), dissatisfied opponents removed that government by coup d’état. While the army backed Rabuka’s 1987 coups, those behind the 2000 coup easily persuaded unemployed and alienated young men that the reinstatement of an indigenous Fijian government would solve their woes (Alley 2000). The coups in both cases were supported by elites, including members of the GCC and powerful business interests. Although most Fijians support electoral processes, few have read their constitution and a significant proportion have little or no understanding of the function of government (Ratuva 2003). Given continuing poverty and underdevelopment within (though not confined to) the indigenous community, unscrupulous elites will be able to play the race card to incite the overthrow of elected governments if they wish.

Where to now? The question is whether any constitutional arrangement can achieve a unified polity in Fiji. With different leaders, less personally involved in the events of 2000, the two main parties may be able to work effectively together in a multi-party cabinet. One question is what alternative government model there is for an ethnically divided polity where the two main groups are of roughly equal size. Two approaches – the Westminster winner-takes-all approach, and the forced consociationalism of the 1997

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constitution – seem so far to have been unsuccessful. A return to Westminster arrangements where the prime minister alone chooses cabinet would not suit indigenous nationalists unless they could ensure that ethnic Fijian parties always won the election – the outcome mandated by the discredited 1990 constitution. The capacity of legal documents like constitutions to ensure ethnic harmony is limited. However, if Reilly (1997: 73) is correct that electoral arrangements are ‘the single most important institutional issue for encouraging the development of peaceful, multi-ethnic politics in Fiji’, then Fiji’s electoral arrangements could usefully be revisited. Single-member constituencies placed pressure on those drawing electoral boundaries, because preference-swapping as envisaged by the CRC depended on ethnically heterogeneous electorates. Ethnically heterogeneous electorates were not achieved. Reilly (2001: 112) suggests that in future, ‘a more proportional preferential system which enables the drawing of heterogeneous multimember electorates, such as STV [single transferable vote], deserves consideration’. The likely impact of this reform would be to encourage interethnic negotiation for preference votes, thereby narrowing the ethnic divide.

Conclusion Westminster principles have been compromised to an extent which takes Fiji outside the ambit of Westminster democracy, fluid though this is. The key features of parliamentary sovereignty and a loyal opposition are clearly missing. The public sector appears to be neither independent nor expert, and corruption and gaps in its capacity undermine accountable administration. Other power bases compete openly and successfully with parliament for political power on an extra-constitutional basis. The multi-party cabinet model in the 1997 constitution is contrary to standard Westminster principles and was not introduced as a transitional measure. Elections are an acceptable means of transferring power only as long as such transfer is to the ‘right’ group. A reasonable conclusion from the experience of three constitutions and several coups is that if the ‘wrong’ party or ethnic group (Indo-Fijian) wins power through democratic elections, it will be removed at the barrel of a gun. The Qarase government’s wish to change the constitution to ensure indigenous political paramountcy reinforces the view that future coups are likely if election outcomes do not result in indigenous-dominated governments.

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Fiji’s previous experience of coups, and the combination of ethnic tension, lack of shared national identity, globalisation and economic disadvantage of many indigenous Fijians make the country vulnerable to a further cycle of coups. Speaking about political unrest among South Pacific peoples generally, Ghai (2000b) suggests that: … [t]he root of the troubles is the pace of economic and technological changes, which have seriously disrupted traditional values and structures, destabilized societies, and reduced their economic and political self-sufficiency. … There is thus undoubtedly an ethnic dimension to these troubles, but to concentrate on this is to focus on the symptoms of the malady and ignore the causes – as in the proposal to … reinstate constitutional provisions for Fijian supremacy.

Indigenous political paramountcy is seen as the counterweight to the perceived domination by the Indian community in commerce and the professions. Although the effectiveness of affirmative action programs to date is questionable according to ordinary Fijians, better indigenous economic outcomes may lessen the likelihood of future coups. Ratuva (2003) rejects the notion that structural and institutional arrangements by themselves will ensure stable democracy. He proposes ‘civic education’ that is ‘directed at changing people, their mode of consciousness, knowledge, values and norms as active agents of social transformation’. Economic development and civic education are inevitably long-term projects, but may be more productive than efforts to tailor yet another constitution.

Notes 1

2

Each voter had four votes, one in a communal electorate and three (one for each racial group) in national electorates. A Fijian voter, for example, would vote for a Fijian candidate in the appropriate communal electorate, and then cast three additional votes, one for a Fijian, one for an Indian and one for a General Elector in the appropriate national electorates. This encouraged some measure of cross-ethnic cooperation (see Lawson 1991: 187). However, there are stringent provisions for changing the 1997 constitution – under section 191 at least two-thirds of the members of both Houses must support such change (setting aside the provisions requiring special majorities in section 192).

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Westminster in the Pacific Islands

11

Peter Larmour

eginning with Samoa’s attainment of independence in 1962 and dating through to 1980, when Vanuatu finally became independent, all but one of the Westminster-derived constitutions in the Pacific Islands are creatures of a period of decolonisation. The exception is Tonga, whose constitution dates back to 1875, and is part of an earlier period of constitution-making that still drew its inspiration from Westminster along with resonances from Washington and the Bible. Together, the ten Pacific Island nations with some legacy of Westminster (excluding Papua New Guinea and Fiji – that are addressed separately in this volume) display some common patterns of constitutional development, as well as some common problems in establishing effective forms of government. They each tried to reconcile constitutional international best practice with their own indigenous political traditions. And while their subsequent trajectories as states has undoubtedly been mixed, such political reconciliation is still a major issue in arguments about ‘good governance’ in the region. This chapter surveys the provisions of ten constitutions, but pays particular attention to three: Tonga, Samoa and the Solomon Islands. Tonga’s surviving nineteenth-century constitution provides a window into an early period of constitutional borrowing and invention. Samoa pioneered the late

B

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twentieth-century idea of the home-grown constitution emergent in a small Pacific state. By contrast, the Solomon Islands became the region’s first ‘failed state’ in 2003, provoking questions about the robustness and relevance of the Westminster constitution it had adopted at independence 25 years before. A list of the countries with constitutions influenced by the Westminster model of a majoritarian parliamentary executive is shown in Table 11.1 The countries come from the three main culture areas of the region. The majority (Tonga, Samoa, the Cook Islands, Tuvalu and Niue) are part of Polynesia, most of which was settled by migration in the last thousand years, and which shares a recent common tradition of government by hereditary chiefs. The largest traditional Polynesian political system numbered about 40 000 people (Kirch 1989) – a little less the median population of the ten island states listed in Table 11.1, but roughly the same size as the Greek city-states that provide the West with the basis of its political theory (Held 1987). The Solomon Islands and Vanuatu are part of Melanesia, settled much earlier, with more diverse, smaller scale and decentralised political traditions. Nauru, Kiribati and the Marshall Islands are part of Micronesia, which encompasses a variety of small-scale traditions of government by chiefs or elders. The Pacific region was parcelled up among several colonial powers in the late nineteenth century, with some reassignments among them after the first and second world wars. New Zealand offered Samoa independence. Later it offered Cook Islands and Niue a continuing relationship of ‘free association’, which allowed their people continued access to work and welfare in New Zealand. Australia and Britain wanted to extricate themselves completely from colonial rule. The United States offered its Pacific territories a choice between self-government with ‘free association’ (as accepted by the Marshall Islands), or closer ‘commonwealth’ status. The United States also insisted on maintaining its military dominance of its former colonies that in some instances delayed island communities gaining independence. For example, wrangling over the ‘nuclear-free’ provisions of the constitution of the Palau Islands (of the western Carolines group) delayed its entering into ‘free association’ until 1994. No Pacific island states have become independent since then, although France has promised an eventual referendum on independence to New Caledonia. Generally, the Pacific Island states that gained independence or became self-governing with free association adopted constitutions loosely modelled

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on those of their colonial power: Westminster for the New Zealand, Australian and British territories; Washington for the American; and a combination for Vanuatu, which had been jointly ruled by Britain and France as a ‘condominium’. Although the colonial inheritance was significant, there were also serious attempts to adapt them to local circumstances and traditions. There were also interesting ‘cross-over’ cases in Micronesia, whereby the former US territory, the Marshall Islands, rejected its US inheritance, and adopted a parliamentary executive, while its southern neighbour, Kiribati, broke with British convention and adopted a system of directly electing a president. In the Marshall Islands the argument was that an executive drawn from and accountable to a majority of the parliament better reflected local traditions of collective decision-making, while in Kiribati the argument was for greater popular participation in the selection of leaders. TABLE 11.1 Westminster constitutions in the Pacific Islands (excluding PNG and Fiji) Country (geographical composition and population in 2003)

Date of adoption of constitution and political status

Comment

Tonga (170 islands, 101

1875

Adopted to centralise,

700)

Monarchy (indig.)

modernise and stave off colonial rule

1962

Adopted at independence

Monarchy (indig.)

from New Zealand

Cook Islands (15 islands,

1964

Adopted on entry into

17 800)

NZ territory (UK

‘free association’ with

monarchy)

New Zealand

Nauru (single coral

1968

Adopted at independence

island, 12 100)

republic

from Australia; however, the

Samoa (7 islands, 178 800)

crisis in 2004 led to agreement with Australia to provide a financial secretary and commissioner of police Niue (single coral atoll, 1650)

1974

Adopted on entry into

NZ territory (UK

‘free association’ with

monarchy)

New Zealand

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Solomon Islands (archi-

1978

Adopted at independence

pelago with 6 main

Monarchy (UK)

from the UK before a

islands, 450 000)

police coup forced a change of government in 2000. Parliament appointed a review committee in 2000 to identify a ‘home-grown state government’ system. An Australian-led regional assistance mission intervened in June 2003 to restore law and order

Tuvalu (9 atolls, 10 200)

1978

Adopted after separation

Monarchy (UK)

from Kiribati, and at independence from the UK

Kiribati (32 coral islands,

1979

Adopted at independence

88 100)

Republic

from the UK

Marshall Islands (1000

1979

Adopted at self-govern-

atolls, 54 000)

Republic

ment. The Marshall Islands then entered a compact of free association with the US, effective from 1986 (and renegotiated in 2003)

Vanuatu (80 islands,

1980

Adopted at independence

204 100)

Republic

from the UK and France

Source: Pacific Islands Commission (for population estimates) www.spc.org.nc/demog

Nineteenth-century Westminster models Westminster models influenced constitution-making in the nineteenth century, before the Pacific region came under colonial rule. Tonga’s constitution is the only survivor from this first wave of national identity. Chiefs in relatively centralised Polynesian ‘proto-states’ were influenced by missionaries and traders to construct constitutional monarchies, drawing inspiration from

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either parliamentary or presidential systems (and occasionally both). The prototype was the Hawaiian constitution of 1840, granted by King Kamehemeaha II that provided for a house of nobles and representative body chosen by the people (adult males) (Kuykendall 1940). The bill was drawn up with American advisers ‘who came as close as they dared to marrying a republican system of government to a monarchy’ (Meller 1982: 52). But the Hawaiian monarchs also looked to Britain for constitutional inspiration, principally as a counterweight to the United States, and to this day the Union Jack remains on the state flag. The Hawaiian constitution was overthrown by a settler coup in 1893 (for which President Clinton apologised in 1993). Similar attempts to combine traditional and introduced forms of government were displaced by colonial rule in the Cook Islands, Samoa, Tahiti and Fiji. Inspired by the Hawaiian experience, the Tongan constitution of 1875 brought the monarchy under the law, enfranchised adult men and provided places in parliament for the islands’ nobles. But it did not provide for a system of responsible parliamentary government. The king ruled, choosing privy councillors who then became MPs. The monarchy was not responsible to parliament. Over a century later, a pro-democracy movement was formed when Akilisi Pohiva led a walkout of commoner MPs in 1989. In 2002, the movement proposed a program for a ‘democratic monarchy’, with a popularly elected House of Representatives, and a House of Nobles, elected by nobles. The king would be able to appoint a prime minister from either house, but would hold a power of veto over legislation, that itself could be overridden by a joint meeting of both houses (Pacific Islands Monthly June 2002). This first wave of constitutional experimentation is not only of historical interest, or necessary to explain Tonga’s exceptional situation. It also shows that in the nineteenth century the combination of indigenous and parliamentary forms of government was an issue in many countries across the Pacific. The combination of such traditions still remained a dominant feature in the later period of decolonisation, where indigenous preferences for the institutionalisation of traditional authority lead to the creation of upper houses of ariki (in the Cook Islands), iroij (the Marshall islands) or simply ‘chiefs’ (Vanuatu) that held powers in parallel to elected legislatures. Colonial rule failed to wipe the slate clean of indigenous systems of government (Tully 1995). The emergent hybrid constitutions protected indigenous systems of land rights. Some recognised customary law and

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others provided for decentralisation to more traditional levels of selfgovernment. The tension between introduced and indigenous institutions continues to preoccupy regional leaders and intellectuals, but mostly this tension in practice undermines the legitimacy and applicability of the Westminster tradition today.

Expressing ‘home-grownness’ If Hawaii provided the prototype for the nineteenth-century rash of constitutional experiments, then Samoa was the prototype for the late twentieth century. An expatriate team of advisers, and the local Samoan committee working with them, put great emphasis on the constitution being ‘home grown’. Samoa’s constitution explicitly preserved aspects of traditional forms of government. This includes its provision allowing the head of state to be chosen only from among the traditional chiefs; and in continuing to reserve the right to vote and stand in elections to the matai or heads of household (universal suffrage was not introduced until 1991). It also dealt at a more technical level with the potential difficulties of selecting a head of government when there were no political parties. Samoa also established a precedent for other countries, partly through the influence of its advisers Jim Davidson and Colin Aikman, who went on to become advisers in the Cook Islands and Niue. ‘Home-grownness’ came to refer both to the traditional content of the constitution, and the participatory process by which it was adopted. Jim Davidson argued there were two opposing approaches to the transfer of Westminster constitutions to colonial jurisdictions (Davidson 1967). In the first, closer to a unilateral declaration of independence, a local constituent assembly draws up and enacts a constitution that breaks with colonial law. This approach harks back to the process by which the American colonies broke with Britain, and was followed by India and Pakistan. In the second, the constitution is the result of relatively congenial negotiations between the colonial government and local politicians. Enactment by the metropolitan legislature formalises a transfer of power and institutions. This approach was followed by Britain in relation to many of its African colonies. Final negotiations usually took place in London, free from local political pressures and demonstrations. There were different combinations of each approach during the decolonisation of New Zealand, Australian and British territories in the

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Pacific Islands. In Samoa, the working committee of the Legislative Assembly came up with proposals. Its draft was debated point by point by a constitutional convention, consisting of the Assembly members and other leaders drawn from outside. None of its proposals were defeated (Davidson 1967: 401). The process was overseen by the United Nation’s Committee on Decolonisation, as New Zealand’s ‘trusteeship’ of Western Samoa would have to be formally terminated. While the New Zealand and Samoan leaders would have preferred otherwise, the committee insisted that the proposed constitution, and independence based on it, should be put to a plebiscite. The sticking point with the United Nations was universal suffrage. In the early 1960s, Samoa’s election laws provided for two electoral rolls: one of individual voters, mainly Europeans and their descendants, who elected five members, and the other of Samoans consisting of the matai, or chiefly heads of household, who elected 41 members. The working committee designing the constitution wanted to replace categories of race with categories of citizenship, but was reluctant to go all the way to universal adult suffrage and a common electoral roll for all citizens. The basic issue of suffrage remained intensely controversial within Samoa. A constitutional convention had debated citizenship in 1954, deciding to retain matai suffrage ‘for the time being’ (Davidson 1967: 327–8). As a consequence, in the following election, only 5030 Samoans out of more than 94 000 were registered to vote (Davidson 1967: 336). The working committee believed that an extension of the franchise to non-matai was not ‘immediately desirable’, but it kept the possibility open by recommending that qualifications for electors be left to the legislature rather than entrenched in the constitution itself (Davidson 1967: 377). The result was a paradoxical plebiscite conducted under universal suffrage, in which people voted on a proposed constitution that would continue, for the time being, to restrict suffrage. Eighty-three per cent voted in favour of the constitution with 79 per cent supporting independence. The number of matai then increased quite rapidly, particularly in the 1980s, to about 25 000 of which around 10 per cent were women (Tcherkezoff 2000: 118 and 128). In 1990, the government held a referendum on the electoral system. A majority of all adults (20 000 out of 39 000) voted in favour of the proposal for universal adult suffrage, but reserving the right to stand for election to matai. The electoral act was amended accordingly in 1991.

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Elsewhere, in the Gilbert and Ellice Islands (which became independent as Kiribati and Tuvalu), the last colonial governor, John Smith, tried to adapt the ‘Westminster model’ to what he perceived to be local cultural characteristics. He believed that many former British colonies had found themselves with constitutions ‘which have not worked well … and which have had to be changed, often by an unhappy and bloody process’ (quoted in Van Trease 1993: 11). He also felt that the egalitarian values of Gilbertese society were inconsistent with the retention of the British monarchy, acting through a governor-general after independence. The chief minister of the colonial archipelago was also concerned about the lack of support for selfgovernment on the outer islands, so he and the governor called a constitutional convention, preceded by the circulation of discussion papers on the issues it would consider. ‘Home-grownness’ was a significant component of the attempt to secure popular consent for nationhood. In the Solomon Islands, a parliamentary select committee toured the country, held village meetings, heard submissions, and reported to the legislature. Referenda were repeatedly used to assess public opinion about constitutional proposals particularly in the US-administered territories. Consulting the people did not necessarily mean adopting their preferences. Sometimes their views were treated as a symptom of the need for downwards ‘political education’ that would better align popular opinion with the views of the leaders. The various working parties and planning committees were explaining and advocating as well as listening. Opinions had to be given a written, then often legal, form. Governments took different positions from those advocated by the committees, which only advised, and in any case there were other pressures – particularly international expectations, like those that fell on Samoa. The result produced different negotiated outcomes involving the former colonial power and the relevant local political elites. Mostly the outcomes were devised as a kind of historical compromise or ‘political settlement’ through which to pursue selfgovernment rather than reflecting the indigenous political culture or expressing popular opinion. For example, the final form of the Solomon Islands constitution was the result of protracted negotiations held in London between British ministers and officials, and a delegation from Solomon Islands that included opposition and independent members. There were sharp differences between Britain and Solomon Islands over the future citizenship of

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government-sponsored settlers from the then Gilbert and Ellice Islands. These were not resolved until the negotiations in London. The final agreement was resolved only after the application of pressure through the shape of the ‘financial settlement’ and increased resources Britain would make available at independence. Yash Ghai (1983: 50), reflecting on the process of constitution-making in Solomon Islands, in which he had played an active part, concluded: Despite consultation with the people and active involvement of their leaders, the constitution cannot be said to be rooted in indigenous concepts of power, authority and decision-making.

What does ‘Westminster’ mean in the Pacific Islands? When people in the Pacific Islands talk about ‘Westminster’ they are sometimes referring to constitutional provisions dealing with the head of state (the Queen, or a local head of state), and sometimes with the relationship between executive and the legislature (whether the prime minister is chosen from parliament, or directly). The implied contrast, in both cases, is with the United States. In some countries, they are occasionally talking about other constitutional provisions associated, rightly or wrongly, with Westminster but often shared with American or other constitutional traditions: an independent public service, human rights provisions or party politics. Paradoxically, while some key aspects of traditional British Westminster practice have taken root and become important attributes in some Pacific countries, other equally important components have not flourished. I explore some of these variations in the sub-headings below. One reason for the variation in practice is that often ‘Westminster’ in the Pacific Islands is a negative symbol of an introduced system of government, felt to be incompatible with traditional systems of government by big men, elders or chiefs (Sahlins 1963). These traditional systems were often co-opted or sidelined by colonial rule, but versions of them still persist in the outer islands, or highlands, and operate on a small scale. So, the argument against Westminster becomes one for decentralisation or federalism, in order that introduced systems can more closely approximate the scale of indigenous ones.

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Head of state, head of government and legislature Tonga, as we have seen, has an indigenous monarchy whose ministers are not necessarily chosen from the legislature. Nor are they accountable to it, though they automatically become members of the legislature. Cook Islands, Niue, Solomon Islands and Tuvalu retained the British monarch as head of state, represented by a governor-general or Queen’s representative acting on the advice of a prime minister elected from, and responsible to, the legislature. Samoa, as we have seen, has an indigenous head of state with a Westminster system of selecting the prime minister. The legislature elects the head of state who then personally selects as prime minister a parliamentarian who commands the confidence of a majority of the Members of Parliament. The head of state has, by Samoan convention, been a high chief. In 1972 (before universal adult suffrage), the parliament decided to hold a ballot to produce a nominee for the job of prime minister. Three years later, however, when the prime minister died suddenly, the head of state used his discretion, without a ballot, in appointing a successor. Parliament then appointed a select committee to review the procedures, and accepted the attorney general’s advice that the head of state had a right to use his discretion in this way. Part of the attorney-general’s argument was an appeal to British constitutional practice. Yash Ghai, as constitutional adviser in Solomon Islands, Vanuatu and Cook Islands, was critical of this anachronistic use of Westminster precedent. The Samoan constitution, he argued, had been ‘deliberately intended to depart from British practice’, and should be interpreted in its own terms and in the light of its own history. Indeed, he ventured: ‘Reference to British conventions will produce uncertainty, and shift power unduly to officers like the Attorney-General, or expatriate lawyers’ (Ghai 1986: 620). He was also unconvinced that giving greater discretion to the head of state would resolve the problem of ‘fluidity of party alliances’ and ‘shifting coalitions’. It might, he believed, simply ‘transfer political intrigues from the floor and corridors of the legislature to the doors of state house’ (Ghai 1986: 621). Nauru and the Marshall Islands have presidents who are both members of the legislature and are elected by it. In both countries the constitution vests executive authority in the cabinet chosen by the president. Both

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constitutions talk of the ‘collective responsibility’ of cabinet. Traditional and introduced authority were in fact fused in the Marshall Islands where the first president, Amata Kabua, also happened to be a high chief. Kiribati broke the categories by allowing for popular election of a president (Beretitenti in Gilbertese) from a short list of members of the legislature (Maneaba). Its constitution provides: 30. (1) There shall be a president of Kiribati, who shall be known as Beretitenti. (2) The Beretitenti shall be the Head of State and the Head of Government. The Maneaba shall after the election of the Speaker nominate, from among members of the Maneaba, not less than 3 nor more than 4 candidates for election as Beretitenti, and no other person may be a candidate. (3) Every person who is entitled to vote in a general election shall be entitled to vote in an election of Beretitenti.

The last variant was Vanuatu, whose independence in 1980 drew the period of decolonisation to a close. Jointly administered by Britain and France, it might have been expected to reflect a combination of Westminster and French republican traditions. Its decolonisation was resisted by France, who – once it became inevitable – devoted its energies to preserving the interests of the French-speaking minority. The constitution was a much briefer and simpler affair than its counterparts elsewhere in the Pacific, and was produced without the usual deliberative processes or fanfare; that is, it avoided resorting to touring committees and referenda designed to extend consultation and shape popular opinion in an effort to make the local constitutions more ‘home grown’. It provided for both a president and a prime minister. The prime minister was to be elected by the legislature and responsible to it. The president’s job was to ‘symbolise the unity of the nation’. But unlike in France, he or she would not have a competing mandate of popular election. Instead, the president was to be chosen by an electoral college of the legislature and the chairman of local government councils. The councils were included to provide a counterweight to the majoritarian tendencies of the legislature, and protect the interests of local francophone majorities who could be expected to control at least some of the local councils. A council of chiefs, with its own funding and secretariat, was also established to play an active and often conciliatory role at the

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apex of national politics. Politics has become less polarised around language since independence.

Parties and the opposition Generally among Pacific nations, political parties have been weak, or absent. Frequent changes of government have taken place within the legislatures with shifting temporary coalitions determining government. However, there has also been some concern about a ‘winner-takes-all’ approach to the perks of office when one political group dominates. In the Cook Islands, for example, opposition members have complained in the past about being excluded from travel abroad – privileges accorded to government members were not available to them. There has also been concern shown in Samoa about the potential for abuse of executive power, where a single party, the Human Rights Protection Party, has been continuously in power since 1988. In some islands, such as Niue, independents can outnumber party members in the legislative assembly.

Public service independence Colonial rule was highly bureaucratic, and the sudden process of decolonisation did not immediately bring powerful bureaucracies under political control. Public service independence has been gradually eroded – with selfgoverning elites periodically chipping away at its neutrality by ad hoc ministerial interventions in appointments, promotions and scholarships, particularly in the smaller countries. It was also more systematically challenged during a wave of public-sector reform promoted by the Asian Development Bank, and influenced by New Zealand ideas of public management in the 1990s. Heads of departments were put on contract in Cook Islands, Vanuatu and there were similar proposals in the Solomon Islands before its coup.

Electoral provisions The ten Pacific Island polities had each adopted a ‘first-past-the-post’ plurality electoral system with the exception of Vanuatu, Nauru and Samoa. In the former British–French condominium of Vanuatu the constitutional framers insisted upon proportional representation to preserve the rights of a francophone minority. Nauru invented a unique form of the alternative

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vote (Reilly 2002). And as already mentioned, in carving out its independence, the electoral franchise was an issue in Samoa. In keeping with traditional political customs, it relied on a restricted franchise (of household heads) before adopting universal suffrage in 1991. Niue, while adopting universal suffrage and a system of first past the post voting in 1974, similarly has maintained a split form of representation with six members elected from the common roll and 14 from the villages.

Rule of law and judicial independence Issues of local judicial independence and the rule of law have been complicated in most Pacific Islands by enduring provisions that defer to custom or tradition as alternative or concurrent bases of law, at least in some matters such as land tenure. Land titles continue to be under challenge from traditional claimants in most parts of the region. Elsewhere, tensions between law and custom became particularly embarrassing for the Samoan government in the 1990s, after village fono started exacting draconian but traditional punishments on some non-conforming residents. At the national level, however, judges have generally remained independent and respected (Larmour and Barcham 2004).

Federalism and decentralisation When a police-led coup in the Solomon Islands forced the prime minister to resign, the legislature appointed a review committee to come up with a more ‘home-grown’ system of semi-sovereign ‘state’ government – a federation in which each respective province would become a State with its own state constitution. The Solomon Islands coup followed the expulsion of migrants from the island of Malaita, now living on land on Guadalcanal, near the capital, Honiara. Malaitans dominated the police force that led the coup. Control of freedom of movement within the archipelago had been a contentious issue since independence. People in the poorer more populous provinces, like Malaita, favoured it, while those living around the capital city, or in emptier, more isolated or resource rich provinces, opposed it. The Solomon Islands already had a system of constitutionally protected devolution to ‘provincial’ governments with their own Westminster-style legislatures and designated powers and functions. The proposal to create state governments would have

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entrenched local autonomy more deeply and, perhaps, restricted population movement between island states. These federalist pressures were present in a milder way in post-colonial Vanuatu. Inter-island differences were sharpened by colonial language policies, but were resisted by the Anglophone majority represented by the Vanua’aku Party that dominated the legislature in the early years of independence. In Kiribati and Tuvalu, where the population is scattered over thousands of square kilometres of ocean, there are special constitutional provisions to provide opportunities for national legislation to be discussed in outer islands before it is voted on in the capital. Increased migration to the capital has also provoked calls for restrictions on residents’ constitutionally protected freedom of movement.

Alternatives to Westminster The most sustained attempt to construct a more ‘appropriate’ alternative to Westminster took place in Solomon Islands before independence, but was later rejected by the legislature in favour of a more conventional Westminster system. In 1968, the colonial government set out the reasons it thought that Westminster might be unsuitable for an independent Solomon Islands. The British concluded that the Solomons were characterised by a geographically scattered chain of islands, by poor communications, a small population, a shortage of qualified people, diverse cultures, a lack of national unity and a high dependence on foreign aid (Saemala 1983: 3). Paradoxically, the British argued against Westminster, noting that: The Westminster pattern of government has either failed or had to be substantially modified to meet the political needs of some developing countries in the Commonwealth (Saemala 1983:3).

A review committee came up with an alternative system for a governing council in which executive functions were distributed among five committees. Experimentation with the governing council system commenced in 1970 and ran to 1974. All members of the council sat on one or other of the five committees, which also included some senior public servants. The council met in public, as a form of legislature, while the committees sat in private as executives. The system was said to be less divisive and adversarial

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than Westminster, as it did not need political parties. It also provided opportunities for learning techniques of government and administration across the archipelagoes, and it embodied Melanesian traditions of consensus. However, it was an implanted system and not entirely innocent of policy transfer. The governing council model was said to have been derived from English local government, and from the model of the governing council on the island of Jersey. In the Solomons the governing council alternative was not without its critics. According to Francis Saemala, then a senior public servant, ‘many leading Solomon Islanders felt that the system was not as simple and cheap as expected’ (1983: 4). He reported: The meeting of the whole Council in private aroused suspicion regarding the role of elected representatives. Trying to understand the functions of the committees and the council, in public and private, caused more confusion. The system neither provided for leadership by an individual, nor was it conducive to its creation (Saemala 1983: 4).

Some also felt that the governing council was somehow ‘second best’, so in 1974 the country reverted to a more conventional Westminster system, with a chief minister, an opposition, and an ‘independent group’ of MPs, with clearer lines drawn between cabinet, senior officials and the legislature. Yash Ghai also floated a ‘governing committee’ system for the Cook Islands. As the adviser in the latter stages of a 1998 governmental review (some 34 years after self-government) he proposed alternative structures to improve the effectiveness of government. He recommended using governing committees for decision-making far more than tended to occur under the present Westminster system. He also suggested that a form of ‘government by committee’ could actually ‘replace the Westminster system’. The main aim, he felt, would be: ‘To significantly reduce the role of parties, and to provide for the role of all MPs in policymaking and administration’ (Cook Islands 1998). The review commission had already found that 72 per cent of the people it polled wanted more meaningful participation by all MPs in government. Nevertheless, the review report decided to leave the question of government by committee to a future review (Cook Islands 1998).

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Conclusions A comparative analysis of these ten Pacific island polities and their constitutional frameworks shows a complex pattern of structuring the institutions of self-government. It includes transfers of first principles from Westminster as constitutional reference points, religious references,1 borrowing from neighbours or other jurisdictions, preservation of traditional and customary politics, and some local experimentation. Most constitutions have their origins on the distant Thames at least in spirit if not in fact. They have typically not sought to depart too far from their particular interpretations of Westminster or follow rival Commonwealth precedents, such as the political systems developed in India or Malaysia (or even Jersey). Across the Westminster Pacific Islands, an epistemic community of Commonwealth lawyers have not only given advice to these nations at the point of departure, but subsequently exerted a normalising influence against local pressures to diverge from, ignore or simply forget what was supposed to happen in Westminster. This normalising process has also been promulgated by organisations such as the Commonwealth Parliamentary Association. Yet at various times energetic and articulate constitutional advisers, such as Jim Davidson and Yash Ghai, took a critical and inventive stand against precedent, and gave expression to island leaders’ convictions that constitutions would be more robust and legitimate if they were ‘home grown’. They also facilitated the process of borrowing from regional neighbours, rather than more distant Commonwealth precedents. In this, they were like the nineteenth-century missionaries who brought Hawaiian models to Tonga. While PNG or Fiji are discussed in other chapters, it is worth noting here that the PNG constitution, and the academic lawyers who advised on its design, were influential on its two of its Melanesian neighbours: the Solomon Islands and Vanuatu. Jim Davidson brought ideas about ‘home grownness’ from Samoa to PNG, while the latter’s constitutional planning committee was also influenced by academics from East Africa. Yash Ghai first was instrumental in advising on PNG’s constitution, and then went on to advise in the Solomon Islands, Vanuatu, Fiji, Samoa and the Cook Islands – suggesting a process of ‘political transfer’. These Westminster constitutions have survived since decolonisation, although generally without great enthusiasm for their provisions among politicians or public opinion. Perhaps it is due to this institutional apathy or

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inertia that these constitutions have endured thus far. Nevertheless, Pacific Island leaders regularly criticise introduced institutions as inappropriate, in spite of their ‘home-grown’ features. In the Cook Islands the 1998 political review commission found large majorities of the people it surveyed deeply alienated from the political process, and politicians in general. Widespread talk about ‘corruption’ in the region is part of this sense of alienation. Other post-colonial constitutional reviews have found popular resistance to human rights provisions, such as those guaranteeing freedom of movement. The review of the Solomon Islands’ constitution, for example, advocated the restoration of capital punishment, limits on the introduction of new religions, limits on the number of political parties, limits on freedom of movement between provinces and discrimination in favour of indigenous people (Larmour 1989). Setting up a similar committee in Vanuatu the prime minister urged it to overhaul the constitutional provisions for human rights. Similarly, a review of the policy of decentralisation in Kiribati expressed a concern to control ‘non-conformist people’. While the co-presence of traditional and introduced political arrangements was often commended as a hybrid form of adaptation, and celebrated as an example of pluralism, this blending has not been unproblematic. The Samoan historian and anthropologist, Malama Meleisea, has made a systematic and largely negative evaluation of the effects of two coexisting political systems in Samoa. The much-celebrated constitution of 1962 was, he says, storing up trouble for the future. The constitution had provided ‘two systems of legitimacy’ to draw on: chiefly authority, and a more vague set of Western liberal principles. He added: ‘these two sets of principles can be selectively invoked to justify almost any action’ (Meleisea 2000: 191). The constitution embedded contradictions rather than compromises, and its founding fathers were mistaken in thinking that ‘the next generation would have answers that had escaped earlier generations’. Regime failures, where they came, were more the result of breakdowns in community politics than the provisions of the Westminsterised constitutions. Recently, Australian journalists and policymakers have begun talking about the Solomon Islands and Nauru as ‘failed states’ – ostensibly nonviable political entities. In the Solomon Islands, the constitution was shaken by a police-led coup in 2000 that forced the prime minister to resign. A more pliant successor whose government presided over a breakdown in law and order and a collapse of the economy was installed. But it is hard to

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blame this coup on the particular form of the constitution – the coup leaders had other grievances in mind and could well have intimidated a president rather than a prime minister in their takeover. Nevertheless, if the Westminster-derived constitution was not the apparent cause of the coup, we might ask, with the benefit of hindsight, whether the constitutional designers should have tilted towards a federal structure, or paid more attention to issues such as the ethnic balance of the police force, or gun control. In such diverse polities where national unity is weak, the inherited emptiness of the constitutions may have contributed to the decline of the so-called failed states.

Note 1

For instance, even one of the latest post-colonial nations, Vanuatu, relied on the Bible to inform its constitution. It adopted as its national motto the phrase: ‘long god iumi stanup’ – on God we stand.

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The Westminster legacy: Conclusion

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Haig Patapan and John Wanna

estminster legacies can be found in those countries that were, directly or mediately, shaped or influenced by British understandings of parliamentary practice. The primary focus of the essays collected in this volume is to document the extent to which the Westminster conventions, traditions and institutions have shaped and continue to influence countries in Asia, Australia, New Zealand and the Pacific. Such a descriptive undertaking of countries linked historically or by geographical proximity is useful not only for bringing together detailed studies of individual countries, but more generally provides the basis for further research regarding the way ideas, institutions and policies may be said to be transferred, transplanted and transformed. From these essays it is clear the nature of Westminster legacies remain of continuing and practical importance for those countries that were founded upon, or guided by, Westminster principles. These include the settled colonies – those countries whose British colonial heritage consisted of a comprehensive political and legal foundation in Westminster parliamentary democracy. It also includes those colonies that retained in important respects their traditional political foundations, upon which were

W

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added, to differing degrees and with mixed success, the innovations of Westminster institutions and practices. Finally, there are those countries that, under the influence of these colonies, themselves adopted Westminster practices, faint copies of the original, translated and transmuted by history and long usage. The question of what is meant when the term ‘Westminster legacy’ is applied has an additional theoretical importance. At a time when a number of countries are in transition to democracy and there is a continuing interest – especially from the United Nations, the European Union, as well as other international institutions such as the World Bank – in examining appropriate institutions and conventions that will undergird stable and democratic regimes, the question of the Westminster legacy becomes a question concerning its promise for stable, democratic government. Thus, the Westminster legacy raises larger comparative questions relative, say, to the French, Spanish and Portuguese colonial legacies, as well as the contrast between Westminster and presidential constitutionalism. Implicit in such an undertaking, however, is an evaluation of the different factors that may have facilitated, as well as limited, the reception and adoption of Westminster. Here the striking differences between countries in Asia and the South Pacific provide important opportunities for allowing us to see and evaluate the importance of different local influences on transplanted or implanted Westminster parliamentary traditions. Specific local influences, ranging from religious and ethnic politics, to cultural and historical trajectories, have often transformed significantly the adoption, transmission and construction of discrete national traditions of governance. A clear-sighted recognition of the importance of such traditions provides a salutary lesson regarding the limits of Westminster, and more generally on the potential for transferring institutions and practices to newly emerging democracies. In this conclusion we address these two themes in greater detail. We would like to outline the meaning of Westminster as it emerges from the various profiles of countries, examining the extent to which different institutions and conventions, such as cabinet, the party system, the partial separation of powers, can be said to be essential for Westminster government. In addition, we want to examine the extent to which religious, cultural and ethnic ties overlay (and at times are consistent with) notions of Westminster parliamentary democracy. We conclude with a larger question concerning the

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powerful trajectory in Westminster government towards executive dominance and its potential to foster and preserve freedom and democracy.

What Is Westminster? It is a remarkable fact that there is no agreed definition of a ‘Westminster system’ shared by practitioners or by scholars. If beliefs about Westminster qualify as a tradition of governance, it apparently encompasses a broad spectrum of ideas and practices. Westminster is not only a contested term, but also seductively nebulous. As transposed sets of beliefs about parliamentary governance, it can be seen to exert strong cultural resonances, while simultaneously embracing a diverse and often contradictory set of beliefs and norms. Political and administrative actors derive their ideas about Westminster not from theory or from a coherent normative notion of governance, but from their own experiences, learned behaviour, customs, traditions and frames of reference. Their understandings are shaped by perceived significances in their own political worlds and perhaps with points of contrast with other political systems. Scholars interested in explaining the concept have invested Westminster with various political attributes and characteristics – constitutional, institutional and conventional. It is often regarded as having distinctive modus operandi, such as ‘responsible government’ and ministerial accountability to parliament, but these may be observed more in the breach than in the adherence. As a model construct it is generally compared with other, perhaps equally diverse, systems such as presidential systems (with or without a separation of powers) or the consociational politics of Continental Europe. Moreover, the polities that are understood ‘to be Westminster’ are themselves constantly evolving and changing their attributes. Convention and precedent play a role in reconciling these adaptive systems to the new – as with the problematic marriage of judicial review to the exigencies of executive power. In addition, even if ostensibly the political arrangements of Westminster systems have not been greatly altered, the relative importance of their key actors and institutions can and does vary between nations and over time. For example, the perceived political and constitutional importance attached to the office and person of the prime minister has increased in countries as diverse as the Australia, Singapore, Malaysia or Fiji. The

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symbols of office of the minister who is ‘first among equals’ may remain constant, but the significance of the political scope created for the position has changed markedly. Hence, notions of an essential Westminster are problematic. If we adopt classical British views on the significant institutional practice of Westminster, then party and parliament are the fundamental building blocks. Cabinet as a political committee of the Commons fused the executive and legislature into an efficient and accountable core. Gradually, democratic accountability through mass election was added and both the Commons and then cabinet became parts of the dignified parts of the unwritten constitution. Thus, in Bagehot’s terms, cabinet emerges as the fundamental constitutional bedrock of Westminster, and an original source of authoritative decision-making. And, yet, in many countries that profess to be Westminster, cabinet is now moribund or defunct (as in the United Kingdom or Canada). A ministry and cabinet are named to clarify lines of responsibility and allocate the spoils of office, but cabinet does not perform the theoretical functions once ascribed to it. From the ten countries examined in this volume, it is evident that both scholars and country-specific practitioners use the term Westminster in five distinguishable ways. First, Westminster is used as an ideal type or ahistorical set of criteria largely extracted for the purposes of analytical classification. It is not expected that any single country will satisfy all or even most of these extracted criteria. The criteria selected are relatively stylised, and often drawn from various periods in history (for example, the era of post-war twoparty dominance, or perhaps some romanticised point at which an independent, professional career civil service was believed to have existed. Lijphart’s (1984 and 1999) taxonomic criteria for regime classification reflect this approach, providing lists of idealised, if sometimes idiosyncratic, criteria. As with all such lists, there is the temptation to tick-off the stipulated criteria – and not unexpectedly Lijphart finds almost no empirical matches to his ideal type (possibly Barbados and perhaps New Zealand in the 1950s and 1960s). The intention with these ideal type criteria is to objectify and reify a distinct and coherent model against which countries can be measured or scaled. Second, both practitioners and scholars use the term Westminster as a normative or even heuristic concept. Westminster is discussed in the

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abstract, as an objective concept intended to imply a normative or preferred state of being. In this usage it is not necessary to be highly prescriptive, nor stipulate an agreed list of criteria. Rather, it is sufficient to have some broad shared sense of what it implies and especially what it does not imply (that is, not presidential, not one-party regimes, not multi-party democracies based on proportional representation). In some important ways Westminster is considered an improvement on pre-Westminster political arrangements (and possibly preferable to non-Westminster democracies). This may explain why Westminster is sometimes used as the standard for criticising political action. In this context, Westminster can have a much looser heuristic quality, especially where actors may be constantly engaged in remaking and redefining the normative destination. Hence, Singaporean officials believe they are working within a Westminster system by observing a certain distance between themselves as career public servants and elected politicians. It does not matter to them that some other attributes regarded as key components of Westminster in other jurisdictions are missing in Singapore. Third, the label Westminster may denote a key set of empirical or descriptive criteria found by observers in selected parliamentary democracies. Many empirical features may appear to be shared with parliamentary democracies more generally, such as the head of state (ceremonial) is separate from the head of government (prime minister), a ministry is accountable to the legislature, and governments fall if they lose the confidence of the legislature. Others designate minimalist or essentialist empirical structures on which diverse practices can be built or coexist. Hence, observers may posit that Westminster consists of:

• a two-party system with frequent, peaceful transfers of power • a winner-take-all voting system with inflated majorities (mostly singlemember constituencies), and limited institutional checks and balances (with a dependent judiciary, no judicial review, no written constitution, no bill of rights, responsible party government, and a weak upper house or effectively unicameral parliament). Empirically, Westminster can be conceived as a system that consolidates power under political constraints – it tends to generate a powerful executive that needs to gain and build consent, and maintain a broad consensus on policy directions and the appropriate role and behaviour of government.

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However, these empirical criteria can be arbitrary and there are also some real problems with comparative analysis and with the comparability of language and terms (for example, what constitutes ministerial accountability or a twoparty system). Fourth, there are some good reasons to distinguish Westminster-type political systems (even loosely conceived) from other non-Westminster parliamentary systems as found in old Europe (France, Germany, the Netherlands, Denmark and so on). There is a consensus among the contributors to this volume that Westminster is one variant of parliamentary democracy and that the two terms should not be used co-terminously or synonymously. Finally, Westminster from an anthropological or ethno-methodological stance may serve as a set of operational ‘myths’ or belief-systems, meaning constructions with which and through which actors shape their world and ideas. Actors derive and reinforce their beliefs and values within the political system through the infusion of narratives and broader political traditions. Such beliefs are important in themselves. They may motivate actors or provide them with a rationale for their actions, and they can perform a legitimising role – both inside to internal actors (for example, civil servants and ministers) and outside to the citizens or international perceptions (for example, media, business and international organisations). While these beliefs may be sui generis, they inform local practices and shape appropriate responses from government to problems. Hence, they can underlie debates over the rights and responsibilities of governments, and the main actors composing them: ministers, civil servants, political parties and even citizens. In addition to the meaning of Westminster, three other important factors regarding the nature of Westminster emerge from these essays. It is clear that the nature of implanted/transplanted Westminster is dependent on when it was introduced into these societies – the time of inception. The role played by Westminster notions of government in the path to selfgovernment and independence of these societies is similarly important but varied. It is also apparent that over time Westminster-like polities have successfully accommodated major innovations and adaptations, producing interesting and sometimes radical reincarnations. The particular contours of Westminster we see today in transplanted and implanted societies depends on when the period of inception occurred and what was introduced. Early transplanted societies tended to be

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established with minimalist institutional apparatus, often little more than a core executive. They then evolved with some initial guidance but largely at their own inspiration and pace. Many of the key institutions were in place before parties existed and the notion of a franchise was formulated, and certainly before universal suffrage arrived. In the nineteenth century these colonial societies were Benthamite rather than Lockean, and the emphasis on governance was on efficient and responsive institutions as a means of promoting settlement and trade. In the mid-twentieth century, after decades of colonial administration, implanted societies were decolonised and local traditions of governance were coupled with aspects of Westminster. These societies were generally less influenced by English political theory, and had indigenous parties interested in democratic legitimacy. Some embedded democratic traditions into the local political cultures (India and Malaysia), while others struggled to accommodate the democratic sentiment (Pakistan and Fiji). Significantly, there were extensive attempts in these countries to codify rules and conventions within the framework of written constitutions. Westminster also played various roles in the path to self-government. In transplanted societies, Westminster provided a model of government to be followed. Self-government came relatively easily within the colonial period, well before nationhood. Westminster (or their local adaptations of it) remained a set of normative institutions to adopt and cherish. In the implanted societies the rudiments of Westminster were incorporated to justify self-rule as the British were being forced out or were deciding to go. British attempts to implant Westminster often became the catalyst, allowing a strong indigenous party apparatus to form to take the colonies into self-rule (for example, Malaysia, Singapore, India and initially Pakistan). In other implanted countries the time or circumstances did not allow a strong indigenous party system to form (for example, Papua New Guinea, Fiji and many Micronesia island states). Nepal appears the outlier here, due perhaps to the fact that its political parties had to develop in exile and therefore had little chance to form strong societal ties (yet there are important resonances of Westminster within the political and administrative fabric of the system). When forms of Westminster have been transferred they have proved remarkably adaptable and innovative. Responsible government has given way to responsible party government in most of the countries in this study. Both transplanted and implanted Westminster-derived systems have successfully combined with federalism either as a means of providing

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alternative centres of power or coping with geographic size, ethnicity or regional communities. Many have installed mechanisms to insulate the law and the judiciary from political interference and have adopted judicial review as a counterbalance to executive power. Some have replaced constitutional monarchs (or the English Queen) with presidents and elected heads of state. This has raised questions about whether Westminster notions of government still constitute a hegemonic tradition relatively unchallenged by other ideas of government or politics. In some countries with a considerable record of innovation, Westminster remains a dominant paradigm (India, Singapore and New Zealand) and provides a prism through which governance problems and dilemmas are conceived, constructed and resolved. In others, Westminster is overlaid and interwoven with other powerful traditions (for example, in Australia with federalism, in Malaysia with Islamic state notions and the charismatic authority of the sultans and princes, and with ‘custom’ notions in PNG and Fiji). Elsewhere, Westminster has been effectively subordinated to, or infused in, other hegemonic ideas (for example, military authoritarianism in Pakistan, monarchical rule in Nepal, or the developmentalist one-party state in Singapore which represses dissent or opposition).

Challenges to Westminster Writing in 1861, John Stuart Mill in his Considerations on Representative Government argued that ‘nationality’ posed a threat to free institutions. Nationality had various causes for Mill, being the effect of race and descent, language, religion, as well as the strongest cause, the ‘identity of political antecedents’, which includes ‘community of recollections’ and the ‘possession of a national history’ (Mill 1972). Mill put the problem of nationality in these terms: Free institutions are next to impossible in a country made up of different nationalities. Among a people without fellow-feeling, especially if they read and speak different languages, the united public opinion, necessary to the working of representative government, cannot exist. … The same incidents, the same acts, the same system of government, affect [the different sections] in different ways; and each fears more injury to itself from the other nationalities than from the common arbiter, the state (Mill 1972: 392).

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For Mill, nationality is a formidable obstacle to representative government. How does Westminster, founded upon representative and democratic foundations, confront such profound differences in religion, ethnicity and more generally, traditions? To what extent does Westminster accommodate such differences? Do they pose intractable challenges to the adoption of Westminster government? More than matters of theoretical concern, these questions are important for those who would turn to Westminster constitutive principles in establishing new democracies. Our examination of the legacy of Westminster in Asia, Australasia and the Pacific is particularly helpful in this regard. The diversity of countries with a Westminster legacy and the different ways each has responded to its legacy allows us to make some general observations regarding the importance of traditions generally, and more specifically religion, and ethnicity, for Westminster representative democracy.

Religion Can Westminster accommodate fundamental differences in religion? Or does religion present a formidable challenge to the principles of Westminster government? In posing these questions we need to acknowledge that, at least historically, Westminster itself was linked to a specific religion. The history of Westminster government in England – the Civil War, the Bill of Rights and the Act of Settlement – reveals the importance of religion in the evolution of English government. Of course, the authority of Henry VIII’s Church of England is now merely formal; England is a modern secular state that endorses the separation of church and state. This liberal democratic understanding of religion – where the State cannot establish a religion and protects the religious freedom of its citizens – is the foundation of modern Westminster governments. For example, it accounts for the separation of church and state that was constitutionally secured in the Australia at the founding. If Westminster does espouse a religious neutrality how will it contend with a society where it’s long-held and pervasive religious beliefs appear to contradict fundamental Westminster principles of democratic equality? Westminster in India provides a useful opportunity for examining this very problem. The hierarchical caste system and the prevalence of homo hierarchicus in India appears to provide an insurmountable obstacle to

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Westminster principles of democratic equality. Accordingly, one would expect that the pervasive power and influence of religion would have meant that a Westminster system was destined to fail in India. That it has generally been successful therefore suggests that it can readily accommodate this type of dissonance. Yet a closer examination of this tension reveals a more complicated picture. In Robert Stern’s assessment, caste has not been a significant political problem in India because of the number and gradations of the castes and the remarkable pragmatism of the Indian people in dealing with the caste system. For example, no stigma attaches to practitioners of Western medicine, even though like the untouchable leather-workers and street-sweepers, they deal with death. A possible inference from this observation is that the Westminster legacy in India may have been different without such pragmatism. Put differently and more generally, the nature of the religion has a decisive role in the successful adoption of Westminster government. A more intransigent piety may have yielded different results. For example, an entrenched notion of the divine right of kings that we see in Nepal, may present a fundamental obstacle for Westminster in that country. What of the problem of diversity of beliefs? Can Westminster accommodate diversity of religions or does it need religious uniformity? Again the case of India would appear to suggest that major religious differences can be accommodated within Westminster. But this conclusion appears to ignore that modern India was the result of the separation in 1947 of British India into the Muslim state of Pakistan and the largely Hindu India. Most stable Westminster governments appear to accommodate two possibilities, either wide diversity of religious beliefs or a dominant religion. Religious divisions that are significant – divide into two or three major groupings – seem to pose a challenge to Westminster, perhaps because the possibility of ‘winner takes all’ entails the idea of ‘loser loses all’. In this context it is interesting to contrast those countries with either religious diversity or relative uniformity, Australia, New Zealand, India, Pakistan, the Pacific Islands, Malaysia and PNG with Singapore, with its attempts to accommodate Chinese, Malay and Western traditions. Arguably this balance has been attained at the cost of abandoning Westminster government in Singapore. This insight regarding the nature and consequences of religious diversity is equally relevant and applicable to the challenge posed by ethnicity for Westminster.

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Ethnicity What influence, if any, does ethnicity, understood as ‘race’ or culture or more generally as ‘tradition’, have for the adoption and functioning of Westminster government? As we have seen, J. S. Mill was less than sanguine regarding the differences of ‘nationality’ for representative institutions. Does the legacy of Westminster in Asia, Australasia and the Pacific endorse his grim assessment? An examination of countries such as Fiji suggests that ethnic difference is a fundamental and insurmountable problem for Westminster government. Westminster in Fiji has been unable to accommodate the major division between native Fijians and ethnic Indians. Attempts to reform Westminster institutions to take into account these ethnic differences, by ambitious changes to the make-up of cabinet, parliament and bureaucracy, have so far proved to be unsuccessful. Similarly, tensions in New Zealand between the Maori and the Pakeha have resulted in experiments in representative government – the mixed member proportional representation system or MMP – which allow for specific Maori electorate seats in parliament. Though greeted initially with enthusiasm, the efficacy of these measures are now increasingly being questioned by the Maori themselves, as well as the broader community. Do ethnic differences, then, guarantee the unworkability of Westminster, and more generally, representative democratic institutions? For example, are the differences between the Bengalis and the Punjabi in Pakistan such that military rule is inevitable? The relative success of some countries characterised by extensive ethnic diversity in adopting Westminster government appears to run counter to this proposition. As Henry Okole notes, PNG is home to over 800 languages, yet its representative system is not undermined by this diversity. The reason seems to be a certain pragmatism that mediates between ethnicity and representative democracy, allowing Westminster to function in spite of extensive ethnic divisions. To be sure, this pragmatism has a cost in PNG, and is in turn giving rise to democratic innovation; for example, the idea of the ‘middle benches’ in parliament. Yet the robustness of PNG democracy, beset by the politics of ‘bigmanship’, seems immune to the challenge of ethnic difference. India tells a similar story. We have already seen the way religious differences are accommodated within Westminster by Indian pragmatism. Pragmatism is also foundational to the accommodation of the ethnic diversity in India. The very range and scope of this diversity (India has 15 official languages), coupled with political pragmatism, secures representative democracy in

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India. Both PNG and India appear to endorse Madison’s views in The Federalist Papers, No. 10 and No. 51, that the problem of ‘faction’ (as he terms it), can be overcome by a ‘multiplicity of interests’ – where a society is ‘broken into so many parts, interests and classes of citizens’, then no one interest or sect can form a majority that invades the rights of individuals (Hamilton et al. 1988: 42–9; 261–5). Accordingly, it would seem that ethnicity does not pose a major obstacle at two extremes of the spectrum: where one ethnic group predominates (Australia and some Pacific Islands) and where ethnic divisions are extensive (PNG and India). Ethnicity is a problem for Westminster in those middle cases where the country is constituted by two or three major ethnic groupings or divisions. In these, Westminster has either been abandoned altogether (for example, Singapore and Pakistan), is precarious (for example, Fiji), or is subject to experimentation (for example, New Zealand).

Westminster legacy To what extent is the Westminster legacy stable government? To what extent is its legacy liberty and democracy? Are these two demands at tension? Walter Bagehot in his English Constitution (1867) distinguished between the ‘dignified part of the constitution’, the royalty, with its ‘efficient’ part, the cabinet, which was in fact a committee of the Commons. Yet for some this understanding of Westminster was already out of date at the time of publication of Bagehot’s book, left behind by the evolution of Westminster government from cabinet to prime ministerial government. Employing Bagehot’s language, the influence of party politics and an increasingly larger bureaucracy had effectively transformed parliament and the Commons into the ‘dignified’ part of the constitution, with the prime minister as the new ‘efficient’ part (see, for example, Crossman 1972). Even if somewhat overstated, this view nevertheless confirms a distinctive aspect of Westminster government as its tendency to concentrate executive power. Indeed, it is arguable that the great appeal of Westminster government for a number of countries has been the perception that Westminster favours, or is consistent with, traditions of monarchic or chiefly rule. Consider in this light the exercise of authority by the Nepalese King, the adoption of Westminster by the Malaysian princes, and more generally the endorsement of chiefly rule in the Pacific Islands. That the concentration of

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executive authority also favours bureaucratic power has made the notion of Westminster particularly appealing, at least as a principle, for bureaucrats. That is why in countries such as Singapore the public servants tend to endorse Westminster principles, though little of true Westminster actually remains in that country. If Westminster does tend towards this greater concentration of authority in the executive, then how are we to reconcile it with the view that Westminster government was the true model and origin of liberal constitutionalism? Consider the view of Montesquieu, the famous author of On the Sprit of the Laws (1748), who subsequently became a great authority for the framers of the American Constitution. As the defender of republicanism and the rule of law, Montesquieu claimed that in England one could discern a country whose laws have liberty as their direct object. Though formally a monarchy, Montesquieu argued that England was in fact a disguised republic where freedom was secured by the separation of powers, representative institutions, an independent judiciary, and an executive with concentrated powers and sufficient motives to wield that power vigorously. That the Westminster legacy was that of individual liberty is perhaps most clearly seen in the claims of the American revolutionaries who, charging the English with inconsistency, argued in the Declaration of Independence that it was the threat to certain inalienable rights, including that of life, liberty and the pursuit of happiness, that justified the people to sever their ties with England and institute a new government. Whenever states of emergency are declared, the constitution suspended, fundamental freedoms withheld, it is claimed that these measures are essential for the stability of the country. See, for example, Indira Gandhi’s declarations of State of Emergency in India from 1975 to 1977, Razak’s Emergency decrees in Malaysia in 1969, and the assumption of executive power and sovereignty of Nepal’s King Gyanendra in 2003. Implicit in such a view is that political stability is at best at tension, at worst inconsistent with political freedom. Yet the cynical recourse to constitutional conventions to secure political advantage, as is evident in the military’s rule in Pakistan, and the importance of the rhetoric (if not substance) of liberalism for international purposes, as demonstrated in Singapore, suggests that political freedom may be important for the longterm survival of representative democracies. More ambitiously, relying on the Australian and New Zealand examples, one could argue that freedom

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may be essential for stable Westminster governments; that there is an intimate and causal link between the two. If true, then how to combine both becomes a question of profound importance. The conventional answer, that draws on the liberal constitutionalism of Locke and Montesquieu, is the proper arrangement of institutions. Certainly, the major lesson from Australia and New Zealand is that free and fair elections, respect for the rule of law, an independent judiciary, to name a few, are fundamental for both stability and freedom in Westminster democracies. Yet institutions and the law, by themselves are not enough: consider Pakistan’s 1973 constitution and the 1990 Nepal constitution, which provide fundamental individual rights and freedoms. The crucial role of unwritten conventions directs our attention to the importance of individuals in Westminster governments. Individuals are important at the inception of Westminster – whether they be Sir Ivor Jennings in Nepal or Yash Ghai in PNG and the Pacific. Individual leadership is also essential in sustaining Westminster, at least initially – the importance of Nehru in India, of Somare in PNG, and Ratu Sir Kamisese in Fiji prove the point. Thus the significance of individuals for the adoption and maintenance of representative democracy reveals the strength as well as potential vulnerability of institutions – a Nehru may always be followed by an Indira. In these cases it would appear that the strength and flexibility of Westminster and its institutions depends ultimately on the way Westminster was adopted. The slow and gradual adoption of Westminster in Australia, New Zealand and India provides a striking contrast with its precariousness in Nepal, where it was implemented in 1990. Thus the nature of the Westminster legacy depends as much on talents and abilities of individuals as it does on the unique circumstances, traditions and history of each country in Asia, Australasia and the Pacific.

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Index

Abdul Rahman, Tunku 83, 84, 86, 87, 90, 91, 92, 105, 107 Abdul Razak, Tun 84, 87. 88, 91, 97, 99, 100, 102 Abdullah Ahmad Badawi, Datuk Seri 87, 88, 98, 102, 105 accountability of ministers to parliament 7, 8, 43, 48, 51, 57, 82, 104–05, 110, 116, 124, 139, 145–46, 150, 164–65, 166, 181, 215, 216, 233 Acharya, Tanka Prasad 63, 64, 79 Ahmad, Sarji 90, 97 Anwar Ibrahim, Datuk Seri 86, 108 Asia and ‘Asian values’ 102, 119, 125, 126, 242, 243, 250, 252 Australia 3, 6, 9, 11, 25, 84, 129–52, 154, 156, 158, 163, 173, 182, 186, 187, 189, 190–91, 205, 226, 227, 242, 244, 250, 251, 252, 253, 254, 255 Australian political parties 131, 132, 138, 142–43, 147 Awami League (Bangladesh) 42, 43, 60, 61 Ayub Khan, Mohammad (General) 40, 41, 42, 49, 50, 60, 61 Bainimarama, Voreqe (Commander Commodore) 220, 221 Bangladesh (East Pakistan) 29, 32, 39, 40, 42, 43, 60–61 Bavandra government (Fiji) 213, 216 beliefs, sets of about governance 9, 11, 59, 60, 71, 129, 133, 142–43, 147, 232, 247, see also traditions, and myths Bentham, Jeremy 133, 138, 144, 248 Bharatiya Janata party of India (BJP) 17,

19, 20, 21, 25, 32, 34 Bhattarai 71, 74 Bhutto, Benazir 53–54, 58, 61 Bhutto, Zulfikar Ali 47, 48, 49, 50, 61 Birendra (Nepalese King) 66, 69 bicameralism and bicameral parliaments 4, 25, 44, 45, 68, 81, 89, 92–93, 141, 146–47, 149, 152, 154, 159–60, 170, 171, 218, 228 Britain/British traditions of government 2, 4, 13, 14, 24, 26, 28, 33, 65, 67, 68, 79, 81, 82, 83, 84, 87, 97, 109, 111, 112, 113, 119, 122, 126, 130, 132, 133, 135, 137, 139, 142, 146, 149, 150, 152, 154, 155–56, 157, 162, 173, 175, 182, 186–88, 206, 207, 208, 209, 212, 225, 226, 227, 228, 229, 231, 232, 233, 234, 235, 238, 245, 248, 249, 250, 253, 254 Brown, A.J. 136, 144 bureaucracy, see civil service Butler, David 5, 130, 133, 135 cabinet and executive government 3, 4, 5, 7, 8, 28, 38, 40, 42, 43, 44, 48, 51, 65, 76, 81, 82, 85, 87, 88, 89–91, 92, 94, 98, 113, 114, 116, 123, 127, 130, 131, 134, 136, 142, 144–47, 150, 154, 155, 161, 187, 195, 198, 209, 210, 211–214, 216, 218, 221, 232, 233, 245, 254 Canada 9, 25, 170, 185, 245 castes and caste system 2, 14–16, 22–23, 24, 26–28, 31, 33, 64, 78, 250–51 central bank (independent) 6, 130 Chan, Heng Chee 115, 116, 127

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Chan, Julius Sir 186, 193, 199, 201 Chand, Lokendra Bahadur 70, 72, 74 Chaudhry, Mahendra 213, 217, 218, 219, 220 Christianity 14, 67, 189 civil service and bureaucracy 7, 8, 29, 30, 36, 37, 39, 46–47, 52, 54, 59, 75–78, 82, 93, 97–98, 115, 118, 126, 130, 131, 134, 136–37, 143, 147–48, 150, 154, 175–77, 208, 215–16, 235, 253 coalitions of parties, coalition governments 16, 17, 19, 21, 22, 26, 58, 68, 74, 84, 88, 89, 96, 100, 101, 136, 152, 165, 168, 173, 174, 179–80, 181, 183, 196, 198–99, 201–02, 204, 235 Cold War 41, 52, 60 Cook Islands 225, 226, 228, 233, 235, 238, 239, 240 Communist Party of Nepal (United Marxist-Leninist) 66, 68, 70, 72, 74, 75, 78 Congress Party (Indian National Congress) 13, 17–24, 26, 27, 29, 30, 32, 34, 38 constitutions, constitutional design 2, 4, 6, 7, 8, 9, 28, 36, 38, 40, 42, 43–47, 49, 51–52, 53–54, 55–56, 57, 59, 60, 64–70, 71, 78, 79, 82, 84, 85, 100, 101, 104, 105, 110, 121, 122–24, 126, 130, 131, 133, 134–35, 140, 144, 146, 150, 154, 158, 161, 169, 172, 196, 199, 202, 207, 208–09, 210, 211–14, 216, 217, 220, 224, 228–31, 234, 239, 240, 253 Constitutional Review Commission (Fiji) 211, 217, 219, 222 conventions of Westminster government 4, 8, 47, 54, 67, 79, 174, 181, 213, 244, 255 corruption 19, 20, 30, 31, 55, 57, 58, 75, 76, 78, 103, 104, 116–17, 118, 212, 215 coup d’etats 29, 36, 37, 41–43, 49, 56, 57, 59, 208, 211, 212, 215, 216, 217, 218, 219, 220, 221, 222, 223, 240, 241 culture 2, 14–17, 26, 33, 82, 84, 102, 116, 156, 164, 181, 197, 209

factions and factional politics 6, 20, 74, 101, 103, 112, 113, 117, 124, 125, 136, 142 federalism and federal structures 7, 9, 18, 25–27, 36, 37, 42, 43, 44, 45, 46, 48, 56, 57, 60, 84, 85, 92, 99, 105, 129, 131–33, 135–36, 140–42, 144, 145, 146, 147, 149, 150,151, 153, 159, 161, 190, 203, 232, 236, 249 Fiji 3, 10, 206–223, 239, 244, 248, 249, 252, 253, 255 Fijian political parties 209, 213, 214, 216, 217 self-government 206–07, 209, 210 Finn, Paul 134–35, 136, 137, 145 France 156, 157, 225, 226, 227, 234, 243, 247

Davidson, Jim 229, 239 democracy and democratic traditions 3, 10, 14–16, 22–24, 26, 38, 39, 44, 48, 49, 52, 56, 64, 66, 67, 69, 80, 83–84,

Galligan, Brian 132, 133, 135, 140–42 Gandhi, Indira 19, 20, 25, 30, 34, 254, 255 Gandhi, Mahatma 18, 19, 24, 26, 33

102, 104, 105, 109, 110, 112, 125, 150, 181, 189, 196–97, 203, 205, 215, 216, 220, 228 Deuba, Sher Bahadur 68, 71, 74 elections and electoral systems 5, 9, 18, 22–24, 28, 32, 35, 41, 42, 44, 49, 56, 58, 65, 66, 71, 73, 79, 81, 82, 84, 88, 93, 94, 95, 102, 105, 107, 112, 113, 115, 117, 120, 122, 124, 126, 128, 165, 171, 177–80, 181, 190, 193, 194, 202, 205, 208, 221, 222, 230, 235, 255 electoral commissions 22, 70, 71–72, 96, 107, 178, 182 elites, see political and administrative elites emergencies, states of emergency/emergency powers 19, 20, 25, 30, 46, 56, 66, 68, 69, 70, 79, 83, 92, 99, 100–01, 102, 112, 254 ethnicity and race 2, 14–16, 25–26, 28, 31, 32, 37, 38, 67, 82, 84, 86, 88, 97, 99, 100, 106, 110, 111, 113, 125, 126, 153, 156, 166, 169, 177, 178, 180, 185, 187–88, 191, 206–09, 210–12, 213, 216, 217, 219, 221, 222, 223, 225, 228, 230, 241, 252–53 executive, see cabinet and executive government

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Gandhi, Rajiv 19, 20 Ghai, Yash 232, 233, 238, 239, 255 Goh, Chok Tong 117, 120, 121, Great Council of Chiefs (Fiji) 207, 218, 219 head of state 5, 13, 38, 44–45, 51, 124, 131, 133, 135, 151, 154, 157–58, 159, 162, 169, 171, 181, 218, 231, 232–34, 249 Hinduism 14, 16–17, 26–27, 30, 31, 32, 33, 66, 67, 78, 251 Hussein Onn, Tun 87, 91 India 3, 9, 10, 13–35, 38, 53, 73, 84, 209, 210, 211, 217, 218, 221, 222, 223, 229, 239, 248, 249, 250, 251, 252, 253, 254, 255 British India 13–14, 18, 25, 28, 31, 33 Indian castes 2, 14–16, 22–23, 24, 26–28, 31, 33, 250–51 Indian political parties 13, 16, 18–19, 21–22, 32 self-government 13–14, 18, 26, 27, 28, 33 institutions, political 3, 7, 43, 79, 104, 109–10, 111–13, 114, 125, 139, 141–42, 168–70, 181, 186, 189, 190, 204, 223, 229, 239, 240, 249 Ishaq Khan, Ghulam 53, 54, 61 Islam 16–17, 18, 20, 27, 29, 33, 38, 50, 61, 67, 87, 92, 104–05, 107, 249, 251 Islamic political parties 53, 54, 107 Jackson, R.J. 6, 130, 151 Jennings, Ivor Sir 64–65, 67, 106, 255 judiciary, law courts and rule of law 38, 40, 42, 44, 45, 46, 49, 50, 51, 54, 57, 59, 66, 82, 85–86, 88, 99, 101, 102–03, 122–23, 125, 126, 130, 131, 141, 146, 163, 168, 186, 200, 202, 212–13, 236, 240 Kiribati (Gilbert Islands) 225, 226, 227, 231, 232, 234, 237, 240 Koirala, Bimal P. 65, 71, 74 Lee, Kuan Yew 84, 110, 111, 112–15, 116, 119, 121, 124, 125, legislature, see parliament liberal ideas/institutionalism 14, 43, 109, 110, 112, 125, 131, 133, 134, 137,

138, 142–44, 148, 150, 155, 176, 220, 240, 254 Lijphart, A. 4, 5, 6, 130, 153, 155, 173, 175, 187, 245 Lim, Kit Siang 94, 95 local traditions of governance 1, 2, 3, 9, 12, 14, 22–23, 78, 102, 129, 170, 187–88, 197, 199–201, 209, 212, 218, 222, 226, 228–29, 231–32, 234, 239, 242, 249 local and provincial government/councils 13, 15, 21, 24, 25–28, 34, 37, 38, 45, 48, 50, 56, 65–66, 76, 155, 157, 158–61, 189, 192 Mahathir, Mohammed 83–84, 87, 88, 91, 97, 99, 100, 101, 102, 103, 105, 107 Mahendra (Nepalese King) 64, 65 majority party government, majoritarianism 5, 38, 40, 46, 88, 123, 130, 131, 154, 155, 163, 165, 166, 167, 175, 208, 213, 221, 225, 246 Malaysia 3, 9, 10, 81–108, 111, 113, 114, 119, 204, 239, 244, 248, 249, 251, 253, 254 King of Malaysia, role of and other royal rulers 82, 85, 86–87, 95, 100, 101, 103, 104 Malaysian political parties 83, 84, 85, 88, 90, 95–96, 111 Reid Commission 84, 86, 99, 106 self-government 81, 82–84, 102 Malays (people) 81, 82–83, 251 Maoist revolt (Nepal) 68, 70, 72, 75 Marshall Islands 225, 226, 227, 228, 233, 234 Menzies, Robert 140, 144 military forces, role of 29, 31, 36, 37, 39, 40–43, 46, 47, 48, 49–52, 53, 54, 56, 57, 58, 59, 79, 85, 208, 220–21, 225, 254 Mill, John Stuart 249, 250, 252 ministerial responsibility and responsible government 5, 7, 8, 45, 55, 77, 89, 91–95, 97, 101–06, 133, 136, 138, 140, 141, 144, 146–47, 148, 149, 150, 154, 161, 162, 183, 190, 248 collective ministerial responsibility 5, 7, 8, 43, 45, 51, 89, 136, 139, 144–45, 164, 166, 234 individual ministerial responsibility 5, 48, 136, 139, 146, 166, 184, 211

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minorities and minority groups 6, 16, 39, 68, 124, 131, 174, 209 Mixed Member Proportional (MMP) electoral system 72, 155, 165, 166, 168, 173, 177, 178–79, 180, 181, 182, 252 Morauta, Mekere Sir 193, 201, 202 multi-party systems 7, 17–18, 32, 65, 151, 154, 155, 173, 196, 198, 208, 210, 214, 221, see also political parties and two-party systems Musharraf, Pervez (General and President) 36, 37, 56–57, 58, 59, 62 Muslim League (All India/Pakistan) 29, 38, 39, 42, 53, 54, 55, 56, 58, 60 Muslims, see Islam myths and beliefs 11–12, 30, 129, 135, 151, 247 National Democratic Alliance (India) 21–22, 32 National Democratic Party (Nepal) 70, 72, 74, 75, 78 National Front (Barisan Nasional, Malaysia) 88, 89, 90, 93, 96, 100, 102, 107 National Front of India 20, 21, 34 Nauru 225, 233, 235, 240 Nehru, Jawaharlal 18, 19, 29, 255 Nepal 3, 10, 63–80, 248, 249, 251, 254, 255 King of Nepal, role in politics 64–65, 66, 68–70, 73, 78, 79, 253, 254 Nepal political parties 63, 64, 65, 66, 68, 70–72, 74–76, 75, 77–78, 80 Nepal Praja Parishad (Nepalese People’s Party) 63 Nepali Congress Party 64, 65, 66, 68, 70, 72, 74, 75, 77 New Zealand 3, 9, 72, 130, 153–85, 225, 226, 229, 230, 235, 242, 245, 249, 250, 251, 252, 253, 254, 255 New Zealand political parties 162–63, 165–66, 168, 172–74, 177, 180, 185 self-government 155–61, 162, 182 Treaty of Waitangi 156, 157, 169 Niue 225, 226, 233, 235, 236 one-party dominance, ruling party 17–22, 30, 39, 4738–39, 42, 47, 48, 90, 96, 100, 101, 108, 110 opposition and opposition parties 5, 7, 8,

18, 22, 28, 39, 40, 42, 44, 48, 49, 54, 55, 58, 60, 72, 74–75, 77, 82, 95–97, 105, 110, 118, 119, 120, 121, 122, 124–25, 128, 144, 148–49, 152, 164, 168, 172–74, 176, 181, 184, 185, 196, 198, 199, 200, 208, 209, 211, 217, 218, 222, 235 Pacific and Pacific Islands 9, 10, 181, 210, 223, 224–41, 242, 243, 250, 251, 253, 255 Pacific Island political parties 235, 237 self-government 225, 228–29, 231 Pakistan 3, 9, 10, 23, 27, 29, 32, 36–62, 84, 229, 248, 249, 251, 252, 253, 254, 255 British colonial rule 36, 37, 39 Pakistan’s political parties 38–39, 42, 47, 51, 53, 54–55, 58, 60, self-government 37, 38, 40 Pakistan People’s Party 47, 48, 49, 50, 53–54, 56, 58, 61, 57, 58 Palmer, Geoff 154, 164, 165, 171, 174, 176, 177, 184 Papua New Guinea 10, 186–205, 224, 239, 248, 250, 251, 252, 253, 255 PNG political parties 186, 188, 190, 196–98, 199–202, 204 self-government and nationhood 186, 187–91, 193–95 parliament and parliamentary sovereignty 4, 5, 7, 8, 13, 14, 22–26, 43, 44, 47, 48, 53, 54, 67, 69, 71, 73–74, 79, 82, 85, 86, 91, 92–95, 99, 113, 114, 118, 121, 123, 130, 131, 134, 135, 138, 141, 146–47, 161, 162, 166–72, 178, 179, 184, 187, 193–97, 209, 211, 212, 217, 225, 232, 242 People’s Action Party (Singapore) 110, 112, 113–14, 117, 118, 119, 121, 122–26, 127, pluralism and interest group politics 6, 30, 56, 104, 117, 127, 130, 240 political and administrative elites 5, 7, 8, 9, 10, 12, 29, 31, 37, 40, 43, 83, 84, 85, 100, 102, 103, 111, 115, 117, 126, 150, 156, 164, 177, 220, 244 political parties 5, 7, 13, 16, 18–19, 21–22, 32, 38–39, 42, 47, 51, 53, 54, 55, 63, 65, 68, 70–72, 74–76, 83, 84, 85, 88, 90, 95–96, 103, 108, 110–12, 114, 117-18, 124, 131, 134, 138,

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142–43, 147, 162, 172–74, 177, 196, 202, 204, 209, 213, 214–15, 253 political power 7, 8, 12, 29, 36, 37, 38, 39, 41, 42, 46, 51, 52, 59, 60, 74, 104, 106, 110, 111, 114, 115–16, 118, 124, 129, 153, 162–64, 175, 187, 197, 206, 211, 229 president/presidents 25, 32, 40, 41, 54, 124, 226 presidential systems 4, 42, 44, 51, 57, 59, 226, 234 prime ministers 5, 19–20, 25, 32, 38, 40, 44, 45, 47, 48, 55, 57, 58, 65, 69, 70, 74, 78, 79, 81, 82, 85, 87–91, 93, 94, 97, 98–101, 104, 105–06, 107, 113, 114, 117, 131, 132, 133, 135, 140, 142, 143, 145, 147, 148, 149, 155, 162, 163, 164–65, 167, 172–73, 183, 184, 193, 199, 200, 201, 209, 212, 220, 222, 228, 233, 234 Qarase, Laisenia 210, 212, 213, 214, 215, 217, 219, 222 Rabuka, Sitiveni (General) 210–11, 212, 216, 217, 219, 221 Rana regime (Nepal) 63, 64, 69 race, see ethnicity and race religion 14, 16–17, 32, 34, 49, 50, 53, 66–67, 86, 131, 189, 224, 250 Samoa 224, 225, 226, 228, 229, 230, 231, 233, 235, 236, 239, 240 Sandys, Duncan 209, 220 separation of powers 4, 42, 46, 55, 57, 86, 88, 102–03, 131, 133, 180, 244 Sharif, Nawaz 56, 58, 62 Sharma, Ram Hari 63, 64, 79 Singapore 9, 10, 84, 92, 109–28, 204, 244, 246, 248, 249, 251, 253, 254 Rendel Commission 111, 126 self-government 110, 111–13, 126–27 Singaporean political parties 110–12, 114, 117–18, 120, 124 Solomon Islands 224, 225, 227, 231, 233, 235, 236, 237, 238, 239, 240 Somare, Michael 190, 192, 199, 201, 202, 205, 255 Speight, George 220, 221 Thapa, Surya Bahadur 70, 74 Tonga 224, 226, 227, 228, 233, 239

traditions, governmental 2, 3, 6, 9, 10–12, 38, 109, 129, 132, 133, 140, 144, 145, 147, 150–51, 210, 224–25, 228, 252 Transparency International 30–31, 35, 215, 216 Tribhuvan (Nepalese King) 64, 69 Tuvalu (Ellice Islands) 227, 231, 232, 233, 236 two-party (adversarial) system 5, 55, 75, 102, 130, 138, 148, 163, 166, 173, 181, 246 unicameralism 6, 113, 154, 167, 169, 170–71, 177, 196, 198, 203 unitary state 4, 9, 130, 153, 155, 159, 161, 180, 190, 191 United Malays National Organisation 83, 88, 90, 96, 98, 100–01, 103, 104, 105 United States of America 41, 50, 52, 56, 58, 62, 122, 133, 136, 137, 141, 142, 146, 156, 224, 226, 228, 229, 230, 231, 232, 254 Vanuatu 224, 225, 226, 227, 228, 233, 234, 235, 237, 239, 240 Westminster, definitions of 1–2, 5–7, 54, 130–31, 150, 154, 175, 243, 244–47 beliefs about 2–6, 11–12, 29, 36, 39, 47, 52, 54, 65, 75, 97, 102, 115, 129, 133, 140, 149, 193, 207, 212, 215, 222, 224, 232, 237, 242–43, 244, 247 implanted traditions 3, 4, 9, 37–39, 45, 52, 64, 80, 81, 82, 109, 186, 190–92, 193, 203, 208, 224, 229, 237, 238, 243, 247–48 models of Westminster 1–2, 6, 9, 10, 11, 37, 43, 45, 46, 52, 59, 60, 63, 64, 67, 73, 82, 87, 109, 113, 114, 123, 129–32, 133, 139, 150, 153, 154, 186, 204, 217, 225, 227–29, 231, 238, 245 transplanted traditions 1, 2, 4, 9, 29, 134, 153, 155–61, 242, 247–48 Wilenski, Peter 131–32, 144, Wingti, Paias 200, 201, World Bank (and development banks) 1, 201, 235, 243 Zia-ul-Haq, Mohammed (General) 49–59

Edited by

The book examines the ways the Westminster system has been adapted in the light of local cultures and traditions, and considers how Westminster remains important for understanding political institutions and practices. It also looks at the conditions under which Westminster legacies have taken root and endured, and those conditions that have eroded or significantly changed its influence. Some of the countries surveyed have teetered on the edge of becoming ‘failed states’ (especially in terms of legitimate democracies), while others remain robust adversarial democracies.

UNSW PRESS

W EST MI NST ER LEG ACIES

Westminster Legacies examines the ways in which the Westminster system has been influential in shaping responsible government and democracy across Asia, Australasia and the Pacific. It devotes chapters to India, Pakistan, Nepal, Singapore, Malaysia, Australia, New Zealand, Papua New Guinea, Fiji and the smaller Pacific island nations.

Patapan Wanna Weller

WESTMINSTER LEGACIES Democracy and Responsible Government in A sia and the Pacific

Edited by Haig Patapan John Wanna Patrick Weller

UNSW

PRESS

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