CONSTITUTIONAL INSTRUMENTS FOR PARLIAMENTARY CONTROL*
Cecilia MORA-DONATTO**
Original Text (Spanish) PDF
SUMMARY
I. Introduction. II. The new concept of parliamentary control. III. Instruments of control between the Legislative and Executive Branches in Mexico. IV. Possibilities for broadening instruments of parliamentary control. V. Reflections concerning the relationship between parliamentary control and information. VI. Conclusion.
I. INTRODUCTION
Within the context of the Mexican political system, the supremacy of the Executive Branch over the Legislative Branch has been frequently referred to as one of the causes of both Mexico’s limited democracy and the corruption that has been experienced in recent decades in the public sector. The weakness of the Mexican Legislative Branch has prevented an effective power of control over the Executive branch that would, of course, involve all public administration.
All internal bodies of Congress, especially those that, founded on the Mexican Constitution, have been designed to exercise a more detailed legislative supervision over the actions of the Executive must participate in the task of strengthening the Legislative Branch. Overseeing government action is one of the primary roles of any parliament in a constitutional State precisely because this form of government is not only primarily based upon the division of powers, but also on the balance among them, that is, on the existence of reciprocal controls and checks and balances that impede unlimited and irresponsible exercise of public authority.
It is also an essential trait of the constitutional State that it contain a broad system of various types of controls: jurisdictional, political, and social. Parliamentary control is of a political nature. Its agent is the parliament and its object is government’s general activity, and by extension, that of all public entities, with the judicial branch being its sole exception, which by principle is completely independent from all other State branches. Within this context, the role the Mexican Congress is being called on to play is very relevant. Today, more than ever, it is necessary to readjust the way in which the Mexican Congress operates in order to meet the needs of our present reality, within Harold Laski’s interpretation which presents institutions as living beings that change with variations in the environment in which they operate and that differ from one moment to another in regards the people that manage them.1 The Mexican Congress’ task of adapting to modern, democratizing tendencies is not easy, but it must be carried out if we wish it to continue to be the key to the Mexican representative system and the main pillar of Mexican democracy.
II. THE NEW CONCEPT OF PARLIAMENTARY CONTROL
Until the end of the Second World War, the term "parliamentary control" was not contemplated in most constitutions, although it was often exercised in practice. The first instruments of parliamentary control over a government appear with certain clarity in the beginning of the 18th century in the British Parliament. In the European continent, in France specifically, it surfaces with the fall of Napoleon, consolidating itself in the parliamentary practice of the July monarchy, spearheaded by Louis Philippe I (1830-1848).2
And so, the control of the chambers (at least of those that were elected) over the government is a practice that has developed and has been written into their regulations since around 1875, undergoing two interesting evolutionary processes in 1918 and 1945. During this time, the concept has experienced considerable transformation.
Originally, and with constitutional monarchies as a backdrop, control was organized around the immunity of the head of State in such a way that any possible accountability was legally avoided through the concept of countersignature and in this sense only the Council of Ministers could be the object of control. A second stage linked two concepts: political responsibility on the one hand, and criminal responsibility on the other (the English impeachment). They would later merge into a single one: political-criminal responsibility that would call for the resignation of government officials under the threat of being made to stand trial. In my opinion, this is a distortion of political responsibility that eliminates all legal form from the terms trust and control since it portrayed itself as a definitive concept. In other words, political responsibility consisted of the moral obligation to resign when parliamentary trust had been lost and there was a possibility of being impeached. Clearly there is no permanent legal relationship between government and parliament in this context.3
The separation of these two positions begins in 1918 and continues in the two post-war periods. The first of these phases takes place with the nascent constitutions approved after the fall of the German, Austro-Hungarian, and Russian empires which established direct government accountability before parliament (with Germany, Austria, Czechoslovakia and Poland as the first countries to do so).4
Incorporating government accountability into the Constitution or rationalizing it is a much broader view of parliamentary controls and its instruments since it is moves away from the idea that control is an instrument with the main aim of imposing punishment, ratifying or removing a government to in turn conceive it as a mechanism that sets, with precision, the interaction between the government and Parliament.5 The next stage, which was far more intense, appears after the legislative processes of the second postwar period. By the second half of the 1940s, the democratizing ideal of constitutionalism in the 1920s (halted only by the dictatorships of the 1930s) wound up reinforcing the central role of Parliament in the whole of the political system in such a way that it not only strengthened its key role in its traditional legislative, budgetary, and control functions, but also acquired a leading part in other spheres and activities through that which Italian doctrine has called indirizzo,6 in which Parliament mainly assumes the role of prompting and directing political activity. The effects of both stages are manifested in the formalization and legal regulation of all the parliamentary functions that necessarily involve the function of control.
Within this context of permanent evolution of the term parliamentary control, there is a much more developed phase that has yet to find clear legal regulation, but within the extent of doctrine, has nevertheless been intensely discussed. I am referring to a much broader concept of control,7 specifically the one that links the notion of parliamentary control with two fundamental ideas: extended political responsibility8 and the concept of parliamentary minority.9
The previous positions of the notion of parliamentary control collided head-on with two fundamental problems. On one hand, they left out the laws containing rigid separation of powers, impeding the legitimization of the Executive through parliamentary trust and therefore making it difficult to incorporate traditional instruments of parliamentary law through which evident control is exercised but that are not linked to any punishment, as in the case of questions or interpellations. On the other hand, Parliament as a whole was conceived as subject to the aforementioned control, and although the current notion does not deny this evidence, it recognizes parliamentary minorities as the parties most interested in its exercise, since it is understood that in a democratic State the victory of the majority does not bring about the annihilation of the minority, but rather a system in which the minority also has rights.
Thus, we understand that in a parliamentary democracy as a type of State, parliamentary control must be conceived of as a type of political control that is exercised in all parliamentary activity, with particular interest for the minorities, and whose object is to supervise the government’s general activity, with or without an accompanying, immediate punishment.
This idea of parliamentary control surpasses the limits mentioned above because it is partially based on the notion that parliamentary oversight of the Executive’s activities also exists in presidential regimes. Moreover, in modern presidential States, the principle of the division of powers is no longer so rigid as to impede the creation of a fiduciary relationship, however diluted, in whose service is the function of control which is exercised through various procedures, just as with parliamentary systems, because the division of powers conceives broad political responsibility such as the supervision of government which manifests itself in the right the parliamentary opposition has to criticize. This right in turn is capable of transforming political balances, weakening the government more than causing any immediate dismissal from it. Even authors of noted importance, such as Manuel Aragón, understand that minorities must enjoy the freedom of critique, even when it is destructive.10
To understand parliamentary control as such is to understand that it is control of a political nature, and, as such, its main characteristic is that of being subjective. In other words, said control does not derive from a fixed and predetermined canon of appraisal (as happens with judicial control) since such assessment lies on the independent interpretation made by the controlling body. Thus, the evaluation made of government behavior can find itself affected by a concrete situation, fortuitous events and/or the political reasons that motivate it. But this alone is not why parliamentary control is political. It is also characterized by the nature of those who hold it, which are distinguished by their eminently "political" condition as members of Parliament and whose interest in deteriorating the image of the government lies in the belief of having an alternate project.
This is how the voluntary nature of this control is made evident, since carrying it out and its development depends upon, or should depend upon, the will of the members of the parliamentary opposition. This trait of voluntariness can make parliamentary oversight successive and preceding in such a way that it can include consummate actions or future projects.
It is also necessary to point out that if it is assumed that part of the result of all parliamentary control is found within its execution, precisely because of its being a question of this oversight, it is manifested more clearly, since the simple act of wielding this control implies a result: to show that the exercise of political power is being supervised and regulated. In other words, it demonstrates that the actions of those who hold political power can and must be thoroughly (minutely) examined, and consequently, that government activity cannot be free from the public and institutionalized scrutiny that Parliament exercises in all democratic systems.
Thus, a negative evaluation while employing this oversight does not necessarily denote immediate punishment (unless it is so specified by a norm). But this does not lessen the relevance of the political effects of this control. As Rubio Llorente holds, this is a control whose effectiveness rests on the hope of distant and future punishment that the exercise of oversight could unleash, more than on immediate or present punishment.11 This way, parliamentary control does not seek the dismissal or removal of the government, but the supervision and regulation of the areas in which it intervenes, for the purpose of revealing its errors due to actions or omissions.
From the above notion of parliamentary control, I would like to highlight the following fundamental aspects: 1) what we understand by parliamentary democracies as forms of State; 2) what significance it has in pointing out that parliamentary control is exercised in all parliamentary activity; 3) what role the opposition and parliamentary minorities play in this type of oversight; 4) what we refer to when we say that the object of this oversight is the government’s general activity; and 5) we will indicate what the effects of parliamentary control are, that is, what type of punishment is capable of bringing about this oversight.
First, when we refer to the term parliamentary democracies as a form of State, we bear in mind the definition that Kelsen puts forth in his book The Essence and Value of Democracy when he states that: in a broad sense, the parliamentary system means the formation of decisive State will through a collegiate body elected by the people by virtue of a general and equal right to vote, which is to say democratic, acting on the basis of the principle of majority.12
Based on this concept, it is clear that the parliamentary system as a form of State (and not of government) is intimately linked with the capacities attributed to an essential and principle body of any democratic State, that is, the Parliament.13
Within this context, it is possible to come to two meanings of parliamentary oversight. The first, which we could categorize as a concept that has been surpassed because it only applies to parliamentary systems of government, would consist of understanding it as an oversight over bodies and not over norms and that it also includes the ability to remove the head of the controlled body. Therefore, within this concept, we could not include acts of the chambers designed to approve or reject norms or normative projects, nor is it possible to include the realm of parliamentary information and critique that, though having political action as its aim (and not that of normative dispositions) for public bodies, do not allow it to lead to the dismissal of their heads. This concept of parliamentary control is tied in with the political responsibility of government, that is, confirmation of the trust that must exist between Parliament and the Executive branch.14 To acknowledge that this type of parliamentary oversight must necessarily include the ability to remove the head of the regulated body (in other words, the government) through the issue of trust and the motion to censure (endorsed by parliament) would lead us to accept that this control solely exists in parliamentary regimes. But we cannot accept this argument on the grounds of its reductionism. After all, we understand that this type of control exists in presidential regimes as well.
Therefore, it seems more appropriate to view parliamentary control from a broader perspective, and not from such a restricted view as in the above case, including within it all activities of the chambers for the oversight of the government (or other public bodies) actions (whether normative or non-normative), regardless of whether or not they carry the possibility of punishment or the demand for immediate political accountability. As a result, even when presidential systems are based, in principle, on a rigid separation of powers (as is the case with Mexico) which implies that each power must respect the jurisdictional spheres of the others, Congress subjects —or should subject— the work of the Executive Branch to constant examination, not only when it is obligated to appear before Congress, but also when Congress calls it to appear.
Clearly the work of Congress in a presidential system can never end in the removal of the government, among other reasons, because it simply does not possess the ideal means to do so. However, public censure at the heart of Congress is a call to the electorate, an appeal to the people whose sovereign will must resolve the dispute in favor of one or the other when they find themselves at odds over any given issue. Consequently, the opposition’s interest in displaying the exercise of parliamentary control has as an end to deteriorate the government’s image based on the premise that it has an alternate government project.
Thus, Parliamentary control is an important characteristic of parliamentary democracies as a form of State and is not exclusive to parliamentary forms of government.
Second, we said that parliamentary control is exercised in all parliamentary activities. In other words, as Rubio Llorente maintains, there are no procedures for parliamentary control in place because oversight is simply a perspective from which all parliamentary activity can be analyzed, or it is a function that any true parliament must carry out in all of its actions.15
The above notion has its root in the concept of seeing parliamentary procedures as multifunctional, which is to say that they perform different tasks within parliamentary jurisdictions (oversight even takes place when discussing and approving a law). Therefore, we understand that the function of control cannot be reduced to specific procedures, but rather, the whole of parliamentary activity. Concisely, this understanding accepts not only the traditional means of parliamentary control, such as interpellations, questions or investigative commissions, but it also accepts that oversight of the government is employed when discussing a bill or determining the budget.
Third, we asked ourselves what role the opposition and parliamentary minorities play in this type of control. When we state that the opposition and, especially, parliamentary minorities are the ones most interested in the exercise of government oversight, we do not intend to affirm that the majority groups do not carry out this function. We only want to highlight that the opposition and parliamentary minorities have a greater interest in scrutinizing the government’s work.
Usually, the majorities develop mechanisms of control for the government’s activity that, for the most part, tend to lie not within the institutionalized instruments employing the relationships between government bodies, but rather, are found externally, operating through majority leaders when they do not agree. But when dealing with this type of control we are referring to a form of "self-control" at best, because, in other words, it is a control exercised by a majority in the chambers over a majority of the same governing political party. Therefore, as Rubio Llorente maintains:
…parliamentary control is carried out by all groups through all procedures, but since the contrast of government action with the opinion of the majority necessarily leads to the defense of said activity, the government needs to maintain itself, the leading figure in parliamentary control is the minority, whose critical appreciation of government action must be unapologetically offered to society in order for it to remain politically open and therefore, free.16
Forsthoff has similarly affirmed that once the State has become the center of operation for political parties…, interest in government oversight is limited to the opposition and so parliamentary control is a matter for the minorities.17
As a result, it is clear that the minorities and the opposition have a greater interest in demonstrating the errors of government action. The majority, which supports and is sympathetic to the government’s program, is interested in highlighting its successes and achievements.
In the fourth place, we should clarify what we mean when we say that the object of this control is the supervision of the government’s general activity. The foundation of this idea lies in seeing the Parliament as a regulating branch rather than as a legislative one. Towards the end of the 19th century and the beginning of the 20th, parliamentary control was reduced to controlling public expenditure and foreign policy. These were the two main spheres over which the Parliament had authority.18
Currently, we believe that although these two areas should remain under parliament’s oversight, it has expanded and should be expanded to include all the realms in which the government acts since the number of these increases every day. In terms of this, it would be convenient to point out that there are different levels of parliamentary control, in other words, there is a scale that starts with:
1) Tasks in which the Parliament should not interfere, such as those based on the interpretation of the principle of the division of powers and which relate to the Judicial Branch which, in fulfilling this principle, should enjoy complete independence.
2) Going up the scale of parliamentary control intensity, there are other types of activities in which Parliament should also intervene, although with prudence. In other words, it must ask itself when intervention is necessary and when it would not only not add anything productive but may actually come to hamper said actions, such as those in which national security plays an important role.
3) A third group of actions that should be overseen by Parliament with greater intensity are those which independent agencies19 carry out, in which political criteria are second to professional and scientific criteria in certain areas, such as monetary policy, education, financial policy, the stock market, nuclear energy, etc.
4) A further aspect that cannot go unheeded by parliamentary control is that of international relations. In this regard, Parliament cannot hope to regulate the government alone when it signs an international treaty, however important it may be, because international activity does not end there. The number of organizations with which the executive branch has to interact increases regularly. The UN, NATO, OAS, and summits of heads of States are all organizations in which policies that may affect a specific social group or the whole of a given society are discussed.20
5) Above all, parliamentary control must concern itself with what is commonly referred to as the government’s regular activity and its administration, which is to say all those which are inherent to it, especially those that deal with the handling of public funds. Often, experience has taught us that most of the scandals related to the misappropriation of public money could have been avoided had there been adequate oversight that would have permitted the supervision of policies regarding public works contracts, the intended use of resources, the assessment of expenditures, etc.
6) Another realm in which parliamentary oversight should be present is in the process for naming certain authorities of national consequence through a vote of ratification or through a prior assessment. In this case, a kind of evaluation commission could be created. It would be made up of all the parliamentary players and entrusted with not only an in-depth knowledge of the candidates’ résumés, but also of their aptitudes for performing in the position they aspire (for example the appointment of ambassadors, attorney general, presidents for human rights commissions, etc.). Of course this is only a rough outline of parliamentary control’s extensive domain.
Finally, in the fifth place, in our concept of parliamentary control we have alluded to punishment. In a parliamentary regime, the final result of any instrument of control would bring with it the removal of the government. But even this is even more difficult within those forms of government because the party system consistently makes it more complicated. If we were to accept this argument, we would necessarily be admitting that oversight only exists in said regimes because only in them is the removal of the government possible. However, since we have based ourselves on a broader understanding of oversight that includes presidential systems, in which the above mentioned situation could never present itself, we understand that although direct punishment such as the removal of a government does not exist, that does not mean that there is no possibility of punishment at all. However indirect and delayed it may seem, it is employed when the people exercise their supreme political control, in other words, with their right to vote.
This type of responsibility is known in Italian doctrine as extended political responsibility and is understood as the political weakening of the government, the majority that supports it and the viability of the project it defends. Consequently, the strength of parliamentary control lies more within indirect than direct punishment, in the deterioration of the government than in immediate dismissal, and its removal only takes place if the electoral body, that is, the citizenry, decides to do so through its vote when called to elections. This idea is based on the vision of Parliament as an overseeing body rather than as a supervising body.21
With this in mind, we can attribute diverse characteristics to parliamentary control. Among others, there are the following:
a) In the first place, we are referring to political control because of, among other reasons, the nature of its holders who are individuals characterized by their eminently political condition due to their position as members of Parliament and whose interest in weakening the government’s image lies in the idea of having an alternate program.
b) Another characteristic we can attribute to this form of control is that it can be successive as well as previous, meaning that it can oversee previously carried out activities or future projects.
c) Another aspect that is important to point out has to do with the effects it can offer, that is, the simple act of wielding parliamentary control implies a result: to show that the exercise of political power is being supervised and regulated. In other words, it demonstrates that the actions of those who hold political power can and must be thoroughly (minutely) examined, and consequently, that public activity cannot circumvent institutionalized scrutiny that is exercised by Parliament in democratic systems.
d) As a result of the above characteristics, we could say that the effects of this control are not always punishment (unless it is so specified by a norm) and that its efficiency lies more in mediate and future punishment the exercise of control could unleash rather than in immediate ones. This way, parliamentary control does not seek the dismissal or removal of the government, but the supervision and regulation of the areas in which it intervenes, for the purpose of revealing its errors due to actions or omission.
It is within this notion of parliamentary control that we want to base, or in more graphic terms, cement, analysis on instruments of parliamentary control in the Mexican Constitution.
III. INSTRUMENTS OF CONTROL BETWEEN THE LEGISLATIVE AND EXECUTIVE BRANCHES IN MEXICO
Before analyzing the instruments of control, it is fitting to clarify two important points. Although parliamentary control is exercised through all parliamentary activities, as we have already pointed out, that is not to say that there are no other mechanisms or bodies where said control can be perceived with greater clarity. It should also be pointed out that the efficiency these instruments have had in Mexican parliamentary affairs has been encumbered by same party domination in both legislative and executive branches. The fact that a single political party has held the majority in both chambers and held the presidency for so long has suffocated, to a great extent, the strength of all means of control.22
1. Legislative procedure
At the head of parliamentary control mechanisms we can place legislative procedure. In our judgment, there are two main reasons why we can consider legislative procedure as an instrument of control. In the first place, we have the role that parliamentary minorities play in the drafting and approval of laws. Certainly laws are approved by Parliament as a representative body of the national will, but, of course, that requires that all the different views present in the chambers be incorporated into their drafts since they are all equally representative.23 Among these different wills, the majority, precisely because it is the majority has its presence guaranteed in the debate, scrutiny and approval of the legislative project. The problem lies in guaranteeing the participation of the parliamentary minorities in the same legislative process and not just at a given moment.
In effect, the fact that the legislative process is composed of a succession of linked parliamentary acts through which Parliament decides on whether or not to approve a judicial norm as a law provokes constant mutation in terms of its object. This is to say that in the three generic phases of the procedure (initiation,24 discussion, and ruling) the object of the debate goes from the bill to the commission’s findings. The mutability of the object during the phases of the procedure necessarily calls for the articulation of sufficient mechanisms that would ensure the participation of parliamentary minorities in all the stages of the procedure and before the diverse objects of debate itself. Within this context, not only does the selection of leading body members of both chambers, in which the opposition should take part, and the detailing of the sessions in which parliamentary groups speak make sense, but more concretely, and linked to legislative procedure, the right to bring up bills or presenting amendments has a greater significance. Or else, techniques that can be adopted include those which other countries use to incorporate the opinions of the parliamentary minorities into the commission’s ruling, such as the dissenting opinions in their defense before the plenary session, or, as is common in the Bundestag when a disagreement between two positions is diametrically opposed or irreconcilable, the presentation of a second preliminary opinion by the minority and the majority.
The second characteristic that turns legislative procedure into an instrument of control is its publicity, which gains importance not only with the final result, but also throughout the process of integrating the different wills of parliament. Just as with the previous one, this characteristic is derived from the definition of Parliament as a representative body that imposes not only the participation of all the political positions within, and it also demands that this participation be manifested outward. If parliamentary activity were carried out without it being publicized, although formally complying with parliamentary duties, it would not be complying with the parliamentary function of representation. In other words, it would not serve as the connection between the State and society. This characteristic comes from seeing Parliament as a soundboard in which publicity is the outward projection of the Assembly, which is to manifest to society what is happening inside the representative body. The information that Parliament offers society is not harmless and/or neutral, it is not a simple exposition. On the contrary, it contains an enormous political and evaluative burden that seeks the creation of a public opinion for or against determined positions.
It is clear that the above characteristics are not at all restrictive, since they are not an obstacle for highlighting that legislative procedure is also a magnificent opportunity for all the groups that make up the parliamentary scene to debate, discuss, and oversee administrative endeavors.
2. Financial Controls
Other instruments of this kind are the so-called financial or economic controls, named this way because the have an impact on what we commonly refer to as the "power of the pocketbook", in other words, what is spent and how it is spent. This financial power of parliaments as bodies in charge of authorizing and supervising the use of public resources is one of its more traditional functions. We can recall that it was precisely this power that brought upon the transition from absolute monarchies to parliamentary ones. Within these controls and in the scope of Mexican law, we can include the following:
a) Approve the Internal Revenue Law and Expense Budget.
b) Review the annual Public Accounts.
c) Approve the bases by which the Executive may take loans on the credit of the nation, to approve said loans.
d) Approve the bases upon which national debt is to be acknowledged and paid.
Based on our Constitution, it is the obligation of the Executive Branch to annually present the proposal for the Federal Internal Revenue Law and Expense Budget before the Chamber of Deputies. Approving this law, if it is approved, is the sole right of said chamber (article 74, section IV).
The purpose of reviewing the Public Accounts is to ascertain the results of the financial management, verify whether it is in agreement with the criteria stipulated in the budget, and whether the objectives set forth in government programs have been carried out. Within this context we should mention the internal bodies of the chambers that are involved in financial issues, such as the public finance commissions, oversight commissions, the Chief Public Finance Auditing Committee25 —within the realm of the Chamber of Deputies—, and, in the realm of federal entities, the Glosa accountancies which in other countries, such as Spain, are known as Courts of Exchequer.26 All of the above are technical bodies responsible for verifying that expenditures have been correct. In other words, they check whether the government has worked within the guidelines established in the expense budget and, if necessary, determine the resulting accountability when there are inexact or unjustifiable expenses.
The work of these bodies is very important and its proper functioning depends in large part on their having a large measure of objectivity and autonomy since it is their obligation to monitor that the government does not misappropriate public monies. Therefore, it must be ensured that the head, as well as the members of these bodies, have the acceptance of all the parliamentary groups and not have any ties with the government they are meant to supervise. It is obvious that when there are shared interests between the supervisor and the supervised, it is more difficult to exercise these controls.
Within this context it would be fitting to take a closer look at the recently created superior supervising body of the Federation. As a result of constitutional reforms put forth by the Executive,27 article 74, section IV of the Constitution establishes that for the review of government finance, the Chamber of Deputies will rely on the Superior Budgeting Entity of the Federation. In this way, as of January 1, 2000, the Chief Public Finance Auditing Committee ceased to exist and gave way to said body whose head, until December 31, 2001, will be the head auditor for the Finance Ministry.28
Article 79 of the Constitution points out that said body will enjoy technical and managerial autonomy in the exercise of its duties, to make decisions concerning its internal organization, functioning and rulings. Generally, and based on the above mentioned constitutional precept, the Superior Budgeting Entity of the Federation has the authority to supervise: a) revenues and expenditures; the management, custody and application of funds and resources of the Branches and of federal public entities; b) that public bodies have met the objectives set forth in federal programs, and c) public resources used by states, municipalities and individuals.
It will also have the authority to investigate acts or omissions that imply any irregularity or unlawful behavior regarding revenues, expenditures, management, custody, and application of federal funds or resources and to carry out home visits solely for the purpose of being shown books, documents or archives that are indispensable to their investigations, subject to the laws and formalities set forth for searches. On the other hand, it is the duty of the Superior Budgeting Entity of the Federation to determine damages and lost profits that affect the federal Finance Ministry or the patrimony of federal public bodies and directly establish the corresponding financial compensations and fines as well as encouraging the proper authorities to establish other responsibilities, such as the actions set forth in the Fourth Title of the Constitution and present the corresponding claims and criminal complaints.29
3. Oversight of Presidential Appointments
Other forms of control are made up of appointments of certain public officials that must be approved, especially by the Senate. This would include the Attorney General, Supreme Court justices, diplomatic agents, general consuls, colonels and other superior officers of the Army, Air Force and Navy and supervisory employees of Finance (article 89, section III, IV, and IX and article 76, section II). If the Senate is not in session, the Permanent Commission of Congress has the power to ratify presidential nominations (article 89, section XVI and article 78, section VII).
This authority, which in essence corresponds to the president, can be seen from two perspectives. The first lies in that the Senate exerts certain control over the selection that the Executive Branch has made concerning certain nominations and, because of their importance, the Senate must rule on their ratification. Without a doubt, this would tend to guarantee the ideal nature of the officials proposed by the Executive, but in some way, this control can be understood as the Senate’s possibility of exercising a vote of condemnation.30 Given this context, oversight encourages the president to closely analyze not only government officials résumés, but that their nomination comes from slow and careful consideration, not only of their skills, but also of the needs of the post for which they are being nominated.
On the other hand, these ratifications should be seen as a mechanism to strengthen presidential nominations because a public official appointed by means of such a procedure will not only have the president’s support, but the endorsement of the Senate as well. This will undoubtedly lead to the strengthening of the official’s political position. Therefore, the Senate’s collaboration in this process is not trivial since it is handing over its trust and support to the official thus appointed. As a result, this demands that the Senate make a painstaking investigation of the public officials submitted for consideration.31
The recently used mechanism to name the president of the National Human Rights Commission deserves separate mention. In this mechanism, it is the Senate that decides, through its corresponding commission and having many different proposals to choose from, who should hold said position. It is obvious that in this case it is not a matter of ratification but of a specific appointment through which it aims to give the person in that position greater autonomy. Consequently, this appointment implies greater responsibility for the Senate since it means the direct trust the Senate places on the president of the commission responsible for guaranteeing human rights in Mexico. This commission president’s responsibility is held very high, but it is more so for the Senate, since the appointment is its responsibility. The strength of the ombudsman depends to a large extent on his nomination not encountering any obstacles within the Senate, that is, said nomination should be the result of a wide-ranging consensus of all the various parliamentary groups represented in the Senate.
4. Appearances by Cabinet Members
The first type of appearances regulated by article 93 of the Constitution, in its first paragraph, is the one that obliges Secretaries of Dispatch, and the Heads of Administrative Departments to give Congress an account of the state in which they find their respective branches. In practice, Cabinet members tend to inform the Congressional Commissions personally.
Likewise, the second paragraph of article 93 of the Constitution regulates another form of appearances in which it attributes either of the chambers the authority to summon the Secretaries of State, the attorney general, the directors and administrators of Federal decentralized bodies or of the Enterprises of State Participation to inform it when it discusses a law or studies a business transaction concerning their respective branches or activities. These appearances differ from the previous ones because they are a power of the chambers, which is to say that it is they who decide when the presence of these officials is necessary. This type of appearances, as shown in practice, are for the purpose of having the chambers receive reports from specific public officials who can later be questioned regarding their activities. As can be inferred, we understand that these appearances suggest more active parliamentary participation since, as Tena Ramírez points out, summoning cabinet members to appear before the chambers is really a call on the president, since these officials are not politically responsible for the acts, but depend on presidential decisions. When they present themselves to explain or inform, what they explain or inform on are presidential decisions.32
5. Investigative Commissions
The constitutional amendment that added paragraph three to article 93 was made in 1977 as part of what was then known as the "political reform". Since then, said paragraph has maintained that:
The Chambers, on the petition of one fourth of the members in the cases of the Deputies, or one half, in the case of the Senators, have the power to form commissions to investigate the functioning of these decentralized organisms and Enterprises of State Participation. The result of the investigations will be brought to the attention of the Federal Executive.
This amendment sought to achieve two objectives: 1) to find the proper formulas to better supervise the activities of decentralized bodies given that said bodies had grown considerably and 2) that Congress collaborate effectively in the supervision and control that the executive Branch performs regarding those corporations. This power is framed within the balance that is sought between the Executive and the Legislative Branches.
However, in practice, these instruments became inefficient for fulfilling the task that the constitutional reform had laid out for them. Such inefficiency is due to:
a) A distorted interpretation of said paragraph. Legislative majorities have understood that in order to create these commissions, consent and permission from the plenary is necessary, which, of course, is not set forth in the Constitution.
b) Once an investigative commission has been formed after overcoming the above obstacle, their inefficiency is due to the lack of proper regulation that would allow them to be true instruments of parliamentary oversight.
c) Due to issues of procedure, that is when commissions are requested, they are lost in a tangled mess before being included in the agenda or order of business. This was the case, for example, with a commission that was requested to investigate the Federal Electricity Commission in 1989, 1990 and 1991. The creation of said commission was never carried out.
d) The nonexistence of a mindset that demands political accountability. In other words, until recently, it was common for the leader of a majority faction to automatically react with mistrust when the opposition requested the creation of a commission of this type. If this were the case, then the rest of the party would react in the same way and refuse to give their consent for an investigation of this sort.
It seems clear that today the reach of this type of commission should be broader.33 The object of their investigation is continually less because decentralized bodies tend to disappear just as Enterprises of State Participation do. Therefore, we propose that investigative commissions be temporary parliamentary bodies, preferably requested by minority parliamentary groups (opposition), with exceptional powers that would allow the involvement of third parties removed from parliamentary activity. Through these powers, Parliament exercises oversight of the government regarding those matters of public interest and the results, through their disclosure, tend to put in motion the procedures of extended political responsibility while strengthening the democratic State.34
IV. POSSIBILITIES FOR BROADENING INSTRUMENTS
OF PARLIAMENTARY CONTROL
So far, we have seen the parliamentary controls that the Constitution itself establishes in order for the legislative branch to supervise the work of the Executive, although they have lacked efficiency due to various flaws in the Mexican system, such as: oppressive majorities, party discipline, scant opposition, etc. The appearances by Cabinet members incorporated into Mexican parliamentary practice are the best example of the possibility of introducing control mechanisms without having the Mexican presidential system lose what could be considered its essence.
Along this line of thought, it is fitting to highlight two instruments that are instruments of parliamentary control in some countries. The first would be the equivalent of what is known in Mexico as the State of the Nation Address. While although not actually a mechanism of control, it can become one and contribute to the strengthening of parliamentary duties. The other mechanisms would be the questions and interpellations.
1. The State of the Nation Address
It is true that the State of the Nation Address is not a mechanism of parliamentary oversight as it is formulated in the Mexican Constitution and regulated by Congress’s organic law, including the one most recently published in the Diario Oficial de la Federación on September 3, 2000. But for some time now, not only doctrine but also the opposition and even some ruling party members35 have admitted that the format of the address is obsolete.
Consequently, it would be convenient that we ask ourselves at this time of parliamentary plurality: What do we want such an address to be? Do we want a simple appearance of the president? An encounter between two bodies of the Mexican State with which an ordinary period of Congress is opened? A ceremony in which the Executive presents a summary of what is properly known as a State of the Nation Address? Or do we want this appearance before Congress to become the most important stage for the Executive and Legislative Branches to exchange opinions through legislators’ direct interpellation of the president? These same concerns have, for some time, incited the opposition to present proposals for reforms. In 1988, the Popular Socialist Party presented a proposal to reform article 69, which would allow legislators to directly interrogate the president during the Address. Needless to say, such a reform did not prosper.
In my judgment, from a more democratic point of view, the State of the Nation Address should encourage a serious and rigorous dialogue between the Congress and the head of the Executive Branch. It should confront their positions and views on national and international policies, and even on those matters of daily occurrences about which citizens want and should know. It should also be the desired instrument for citizens to freely weigh and decide who is has the political right on their side.36 This, however, cannot be achieved without the direct questions or interpellations from all the deputies, whether or not from the opposition. With courtesy and respect, but also with talent and political shrewdness, this goal can be accomplished while following the protocol a ceremony of this type demands.
2. Questions and Interpellations
Other figures that are closely tied in to the power of control and that has long evolved in parliamentary systems, but that in no way would encumber the proper running of government, are questions and interpellations.37
Parliamentary inquiries are instruments that lawmakers can rely on to obtain information from the government concerning specific and concrete issues. They are means of individual supervision or inspection in the sense that any deputy or senator can make them without having to any further requirements. It is in this way that they are differentiated from other instruments of control that can only be implemented by collegiate bodies, as in the case of investigative commissions.
The inquiries are directed at the government and its different components. They should inquire about that which it is directly or indirectly responsible for and not for that which corresponds to other political figures. Said instruments of control must also have a concrete and precise goal corresponding to their characteristic of being the quickest means to obtain specific information while prompting an adequate response without delays.
In most of the systems that use this instrument of control, the questions are required to present in writing, but their responses can be given orally, depending on who is interrogating, before a plenary session or commission, or in writing. Both questions and answers are published by the Chamber in question (Diario de Debates [congressional records]). In regard to oral answers, they tend to carry the possibility of having the public official being questioned give an immediate reply, something that would obviously not be possible with written answers. But because of the precision written language offers, it would therefore be possible to elaborate on the scope of the answer.
It is worth pointing out that in most countries where this form of control is accepted, two hours a week are usually dedicated to this and especially to the voicing of the questions.
Interpellations are interrogations directed towards the government concerning subjects of a general nature or those with political relevance that tend to provoke debate that eventually end with the chamber voting on a measure on the matter in question.
They differ from parliamentary questions mainly in that the latter are usually concrete and precise, whereas interpellations are reserved for debating matters of general or strong political interest, which require more time. In brief, interpellations correspond to broader, more generic issues directly related to the essence of a government policy or of isolated yet socially and politically relevant issues.
In my judgment, including these instruments of control within the context of Mexican parliamentary life would not affect its development. On the contrary, such mechanisms would contribute to strengthening institutional relationships that in every democratic system involve the Legislative and Executive Branches.38
V. REFLECTIONS CONCERNING THE RELATIONSHIP BETWEEN PARLIAMENTARY CONTROL AND INFORMATION
An aspect that is intimately linked to all parliamentary activity and, consequently, to the mechanisms of parliamentary control is the sufficient supply of information to be able to fulfill the tasks of oversight. Information is so important, in fact, that some authors recognize the instruments that we analyzed above as instruments of information. But it is our belief that information on its own makes little sense if it is not tied in with each and every one of the variants we have attributed to parliamentary control.
We understand that it is vital for there to be a correlation between "the right of the chambers to be informed" and the subsequent "obligation of the government to inform parliament". The issue of information in Mexican parliamentary law has been little studied and yet in other countries it has attained special relevance. For example, the German Constitutional Court has stated that "the right to have the government documents, requested by Parliament, presented, is an essential part of the fundamental right of parliamentary control that assists the Bundestag".
Separately and in terms of investigative commissions, it has also pointed out that presenting government documents pertains to the essential nucleus of the right to investigate.
In our realm of parliamentary life, there is no specific law on the matter and its regulation in the organic laws has been very reticent, leaving Congress at a clear disadvantage to efficiently perform its parliamentary duties that include its power of control. For example, article 89 of the General Regulations of Congress authorizes the commissions to request the information or copies of documents necessary for carrying out of its business from archives and national offices, as long as the matter at hand is not one that must be kept secret, in which case they should be made available according to the corresponding laws. Refusal to do so within the established time frame would authorize the commissions to present a complaint to the head of the institution involved or to the president of the republic. Article 45 of the Organic Law, September 3, 1999, in force also recognizes this authority as one that corresponds to the presidents of the ordinary commissions and points out that the head of the body or institution (that has been petitioned) is obligated to provide it within a "reasonable amount of time" or a formal complaint may be presented to the head of said body or institution, or to the nation’s president.
As it can be inferred, it is often easier for the Mexican Congress to obtain access to the information it needs through the personal, individual contacts every legislator has than it is through any real obligation officials may feel subject to. In fact, there should be punishment for those unwilling to cooperate with the nation’s supreme representatives.
It is clear at this point in our exposition that information is without a doubt the engine that moves what we call parliamentary control. If information abounds and is trustworthy, the results the instruments of control can offer will be positive, but if information is insufficient, scarce or even denied, the results will be disastrous. This must be especially emphasized, for the need of specific regulation on this matter is evident. The Mexican Congress, specifically its chambers, needs to be placed in a better position to carry out the tasks that have been set out for it in the Constitution more efficiently.
VI. CONCLUSION
The changes that Mexico has been experiencing over the last few years, and the experiences acquired by the current and other recent legislatures, have shown us just how important a role the Legislative Branch has been called to perform in the consolidation of the Mexican democratic system.
Now, more than ever, it is necessary to readjust the way Congress works to adapt to the needs imposed by current reality. We need a strong, vigorous Legislative Branch, removed from the influence of the President, capable of exercising through parliamentary control and its instruments a true counterweight to the Executive Branch. We have, for the most part, plural chambers that discuss, decide and summon, but they often do not take a decision, not from a lack of desire, but because the appropriate channels of collaboration among Branches have not been dexterously and responsibly created. These tend to view each other with suspicion and see in the instruments of parliamentary control the most fitting means for political revenge and not as the ideal way for placing the nation’s interests at the heart of political debate.
Notes
* Translated by Carmen Valderrama Ramos.
** Researcher at the Legal Research Institute.
1 Laski, Harold J., El sistema presidencial norteamericano, trans. and ed. by Eduardo Warschaver, Buenos Aires, 1948, p. 9.
2 For further reading see Galizia, Mario, Studi sui repparti fra Parlamento e governo, Milan, Giuffrè, 1972, pp. 138-147; Giraud, Emile, Le pouvoir exécutif dans les démocraties d’Europe et d’Amérique, Paris, Sirey, 1938, pp. 109-111; Barthelemy, Joseph, L’introduction du régimen parlementaire en France sous Louis XVIII et Charles X, Paris, V. Giard & Briere, 1904, pp. 217-251, and Bastid Paul, Les institutions politiques de la monarchie parlementaire française (1814-1848), Paris, Sirey, 1951, pp. 283-298.
3 See Rescigno, Giuseppe Ugo, La responsabilità politica, Milan, Giuffrè, 1967, pp. 153-196; Barthelemy, Joseph and Duez, Paul, Traite de droit constitutionnel, Paris, Dalloz, 1933, pp. 169-171.
4 Mirkine-Guetzevich, Boris, Modernas tendencias del derecho constitucional, trans. by Sabino Álvarez Gendin, Madrid, Reus, 1934, pp. 13-16.
5 See also Schmitt, Carl, Teoría de la Constitución, Madrid, Alianza Editorial, 1982, pp. 323 and 324.
6 To better understand this concept, see "Indrizzo politico", Enciclopedia del Diritto, vol. XXI, Milan, Giuffrè, 1973, pp. 134-171; Canosa, Raúl, "La actividad de orientación política. Su relevancia constitucional", Revista de Estudios Políticos, No. 67, January-March, 1990, pp. 125-152.
7 See Aragón Reyes, Manuel, "El control parlamentario", Enciclopedia Jurídica Civitas, Madrid, 1995, pp. 1677 and 1678; Rubio Llorente, Francisco, La forma de poder (estudios sobre la Constitución), Madrid, Centro de Estudios Constitucionales, 1997, pp. 205-227.
8 Rescigno holds that in addition to concrete, immediate political responsibility, there is also, without a doubt, broader political responsibility, that is, the possibility of the political weakening of the government as a result of the political and social relationships derived from the chambers’ acts of control. Cfr. Resigno, Giuseppe Ugo, op. cit., note 3, pp. 113 et seq.
9 See infra, p. 94.
10 Aragón Reyes, Manuel, "Prologo", in Mora-Donatto, Cecilia Judith, Las comisiones parlamentarias de investigación como órganos de control político, Mexico, UNAM-Cámara de Diputados [Chamber of Deputies], LVIII Legislature, 1998, p. 13.
11 Rubio Llorente, Francisco, La forma del…, cit., note 7, pp. 250 et seq.
12 Kelsen, Hans, Esencia y valor de la democracia, Mexico, Colofón, 1977, p. 50.
13 The idea of a parliamentary system in a broad sense, or that of parliamentary democracies as forms of State, is found in works by such classic authors as Kelsen or Schmitt. The latter, for example, points to the various ways in which the term parliamentary system may be interpreted, pointing out at least four species or subspecies: presidential systems, Parliamentary systems, premier systems and cabinet systems. Schmitt, Carl, Teoría de la Constitución, Madrid, Alianza Universidad, 1992, p. 294. We can find a complete summary of Schmitt’s theory on these parliamentary species in Pérez Serrano, Nicolás, Tratado de derecho político, Madrid, Civitas, 1984, pp. 824 and 825. Aragón Reyes, Manuel, sees it much the same way as in the preliminary study to Schmitt, Carl’s Sobre el parlamentarismo, Madrid, Tecnos, 1990, pp. IX-XXXVI. More recently, this author affirms it in the prologue to Mora-Donatto, Cecilia Judith, Las comisiones parlamentarias de investigacion…, cit., note 10, p. 9.
14 Aragón Reyes, Manuel, "El control parlamentario…", cit., note 7, pp. 1675 and 1676.
15 Rubio Llorente, Francisco, La forma del…, cit., note 7, p. 105.
16 Ibid, p. 256.
17 Forsthoff, Ernest, El Estado de la sociedad industrial, Madrid, Instituto de Estudios Políticos, 1975, p. 146.
18 Cfr. Leibholz, Gerard, Problemas fundamentales de las democracias modernas, Madrid, Instituto de Estudios Políticos, 1971, p. 56.
19 When we refer to these types of agencies, we mean those that are meant to relieve the president from his executive powers and that especially arise in the United States.
20 It is fitting to mention that this type of parliamentary control already exists in other countries. For example, in Holland, the Upper House Commission for International Affairs holds closed-door discussions on the government’s instructions to the delegation to the United Nation’s General Assembly. Also, the task of parliamentary control in this country is facilitated, allowing one or several deputies to form part of a government committee participating in an international summit so that parliament can learn firsthand the dominating positions regarding any given subject as well as the position of its own government.
21 Aragón Reyes, Manuel, "La forma parlamentaria de gobierno en España. Reflexiones criticas", Problemas actuales del derecho constitucional. Estudios en homenaje a Jorge Carpizo, Mexico, UNAM, 1994, p. 32.
22 This opinion is shared by Fix-Zamudio, Héctor, "La función actual del Poder Legislativo", El Poder Legislativo en la actualidad, Mexico, UNAM-Cámara de Diputados, LV Legislatura, 1994, p. 21.
23 In this regard, Rubio Llorente has pointed out that political representation should be seen as the representation of social groups embodying society rather than as the representation of individuals. Cfr. "El parlamento y la representación política", I Jornadas de Derecho Parlamentario, Madrid, 1985, vol. I, pp. 155 and 166.
24 The right to present bills for laws, which according to the Constitution (article 71, section II) deputies and senators possess, is not only a very important control mechanism but is also an important instrument for participating in important national decisions. This participation applies to all spheres of political activity, giving real meaning to the State’s political orientation. There is no doubt that the serious weakening of Mexico’s Legislative Branch comes from having "ceded" its power to present proposals to the Executive Branch as a logical result of decades of long, single party rule. All noteworthy proposals of constitutional reform and legislative innovation have for a long time come from the Executive.
25 For more information on the history of the Chief Public Finance Committee, see Valadés, Diego, El control del poder, Mexico, UNAM, 1998, p. 385.
26 As to this, see Vega Blázquez, Pedro de, "La configuración constitucional del Tribunal de cuentas en España", Cuestiones Constitucionales. Revista Mexicana de Derecho Constitucional, Mexico, No. 1, July-December, 1999, pp. 215-240.
27 We are referring to the proposal for constitutional reform of articles 73, 74, 78 and 79 that the president presented on November 28, 1995. The object of the said proposal was to create a new supervising body that would substitute the Chief Public Finance Auditing Committee.
28 The Chief Public Finance Auditor could be ratified to continue in said post until the end of the eight-year term, as referenced by article 79 of the Constitution (Transitory Article Four of the Decree that Reforms Articles 73, 74, 78 and 79 of the Mexican Constitution), Diario Oficial de la Federación, July 30, 1999. On the other hand, we should mention that the Chamber of Deputies shall appoint the head of the supervising body with a two thirds vote of its attending members (article 79).
29 For an in-depth view of the Superior Budgeting Entity of the Federation, see García Colorado, Gabriel and Palomino Ortega, Francisco (eds.), El órgano superior de fiscalización y sus repercusiones institucionales, Mexico, Cámara de Diputados, LVIII Legislatura, Instituto de Investigaciones Legislativas, 2000.
30 In the case of parliamentary systems, this situation does occur since said trust is what can make a government last or, in its absence, it can precipitate its end.
31 It is fitting to point out that various political parties and even scholars have expressed the need to subject the entire cabinet to this form of ratification.
32 Tena Ramírez, Felipe, Derecho constitucional, Mexico, Porrúa, 1985, p. 261.
33 Rodríguez Lozano, Amador has expressed himself similarly, "La reforma del Estado y el Congreso de la Unión: una visión desde el Senado sobre el fortalecimiento del Poder Legislativo en México", Revista del Senado de la República, Mexico, No. 3, Vol. 2, April-June, 1996, p. 19.
34 For further reading on this subject, see our book Las comisiones parlamentarias de investigación…, cit., note 10.
35 Rodríguez Lozano, Amador, La reforma al Poder Legislativo en México, Mexico, UNAM, 1998, pp. 80 and 81.
36 Along these lines, see Cárdenas Gracia, Jaime, Una Constitución para la democracia (propuesta para un nuevo orden constitucional), Mexico, UNAM, 1996, p. 145.
37 Regarding this subject, see Tosi, Silvano, Derecho parlamentario, Mexico, Miguel Ángel Porrúa-Comité del Instituto de Investigaciones Legislativas de la Cámara de Diputados, LVI Legislatura, 1996, pp. 283-289; Santaolalla, Fernando, Derecho parlamentario español, Madrid, Espasa-Calpe, 1990, pp. 398-414.
38 Along these lines, see Rodríguez Lozano, Amador, "La reforma…", cit., note 33, pp. 87-89.
