Democracy is founded on the participation of the people in the management of public affairs through elected representatives. Different visions exist of how those representatives, once elected, should exercise their mandate. Are they bound by instructions from their political parties, their electorate or anyone else, or are their obligations to the common good, freeing them to speak and vote their minds as dictated by their conscience and reasoned judgment? In his famous speech of 1772 to the people of Bristol, Edmund Burke set out both visions, namely the concept of parliament as "a deliberative assembly of one nation, with one interest, that of the whole" and that of "a congress of ambassadors from different and hostile interests which interests each must maintain as an agent and advocate, against other agents and advocates".
This latter vision of an imperative mandate, whereby members of parliament are bound by instructions from their political parties or the electorate, was practiced in the former communist States. It has largely given way to the "free representational mandate" that is characteristic of a "deliberative assembly" guided by the general good and guarantees the freedom of speech which is key to the effective working of parliament, its representativeness and hence democracy.
Exercise of the free representational mandate is limited by many factors, however. Political parties have put in place mechanisms to ensure that "their" members of parliament vote along party lines. Party whips, party caucuses or political party groups exist in almost all parliaments and aim at ensuring party discipline. This is certainly necessary to some extent, as otherwise political parties would be unable to fulfil their vital function of policy formulation. The question is, though, what is the consequence for a member of parliament if he or she fails to vote along party lines, criticizes the party hierarchy or policy or does not agree with party decisions? Should political parties, beyond party sanctions, be able to influence whether or not a member of parliament retains his or her seat?
The IPU Committee on the Human Rights of Parliamentarians has watched with growing concern as more and more majority parties propose and vote laws resulting in the loss of the parliamentary mandate if a member is expelled from the party, resigns from it, crosses the floor or even does not follow party directives. These laws in fact introduce an imperative mandate and, along with it, political party control over parliament. The negative impact this has on the capacity of parliaments to exercise effective oversight is not difficult to demonstrate, as parliamentarians start to refrain from asking questions or criticizing for fear of losing their mandate. It is also detrimental to the representativeness of parliament, as the electorate’s criticisms and views may not be expressed in parliament.
The IPU has therefore launched a comprehensive study of the phenomenon. In the first phase of the study, the constitutions, standing orders, electoral and political party laws have been examined in 162 countries in all regions of the world. The first conclusion is that a large majority of those countries uphold the free representational mandate, at least as far as legislation is concerned. However, 43 have placed limits on it. The most common legal provision is one whereby members of parliament lose their seat if they leave, resign, withdraw or are excluded from a political party without joining another party. In a significant number of countries, crossing the floor is also sanctioned with the loss of the parliamentary mandate, and in some countries parliamentarians lose their seats for the mere fact of abstaining or voting against party directives.
The IPU will now analyse these laws and study practices which result in de facto control of political parties over the parliamentary mandate. The aim of the study, which will be available early next year, is to help shed light on the very complex relationship between political parties and "their" members of parliament and on its impact on freedom of expression.