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A. Draft resolution
(open)
Report | Doc. 15946 | 21 March 2024
Relationship between the parliamentary majority and the opposition in a democracy
Committee on Political Affairs and Democracy
Summary
The promotion and consolidation of pluralist democracy are amongst the main objectives of the Council of Europe and its Parliamentary Assembly. In all national parliaments, there are provisions acknowledging the role of the opposition or the parliamentary minority in their dimension as political groups or individual parliamentarians not supporting the government.
In June 2019, the European Commission for Democracy through Law (Venice Commission) adopted the Parameters on the relationship between the parliamentary majority and the opposition in a democracy: a checklist. The checklist focuses on matters including the establishment of majority and opposition groups in parliaments, parliamentary appointments, certain legislative processes and immunities of members of parliament.
The Assembly should welcome the elaboration of the checklist and recommend it to the parliaments of the Council of Europe member and observer States, as well as to the parliaments enjoying observer or partner for democracy status with the Assembly.
A. Draft resolution 
(open)1. The promotion and consolidation
of pluralist democracy are amongst the main objectives of the Council of
Europe and its Parliamentary Assembly. The member States of the
Council of Europe shall endeavour to develop common standards and
practices aimed at promoting a free and pluralist parliamentary
democracy and the means for their implementation in national parliaments.
2. In all national parliaments, there are provisions acknowledging
the role of the opposition or the parliamentary minority in their
dimension as political groups or individual parliamentarians not
supporting the government.
3. The best way of ensuring that the opposition discharges its
responsibilities is to extend and precisely define its rights. However,
in only a few Council of Europe member States do the laws or constitution
explicitly mention the role of the opposition. Some constitutions
recognise the opposition only in outline, leaving much of the detail
to be determined by ordinary legislation, statutory law or parliamentary
rules of procedure, or by convention, custom and tradition.
4. While there are considerable differences in the political
and institutional cultures and components of European States, it
is however possible to identify certain general principles which
govern the relationship between the parliamentary majority and its
opposition and reflect the common European constitutional heritage.
5. One major objective in parliamentary democracies is to create
a situation where there is a shared commitment to the essentials
of democracy by the majority and minority and a common desire to
make “their” parliament work properly for the public good. There
is still a long way to go before this objective is reached in the
wider Europe. A strengthened position of opposition in parliaments
would be beneficial for the system of checks and balances in democracies.
6. More than any other forum, parliament is the place where democracy
manifests itself, and in our societies there is hardly any debate
that radically challenges the actual principle of representative
democracy. Parliament is the institution that embodies society in
the diversity of its composition and opinions and which relays and
channels this diversity in the political process. Its vocation is
to regulate tensions and maintain equilibrium between the competing
claims of diversity and uniformity, individuality and collectivity,
in order to enhance social cohesion and solidarity.
7. A democratic parliamentary system presumes an ethic of self-restraint
on the part of the majority, with respect for the rights and interests
of the minority. Not all possible advantages should be taken, nor
are they taken in mature parliamentary systems. In parliaments where
such a political culture exists, often with “unwritten” parliamentary
conventions, the need for legal guarantees for the opposition and
minority is less. In new democracies, without such democratic traditions,
the need for formal rules protecting the opposition may often be
stronger.
8. Opposition rights are considered as an institutionalised power
possessed by the opposition in parliament that encompasses and goes
beyond rights of individual legislators to speak and vote against
government bills. Enshrining and clearly defining rights and guarantees
in law is an effective tool for the functioning of the parliamentary
opposition. Institutional procedures, recognition, legitimisation
and institutionalisation of the parliamentary opposition are integral
to the idea of constitutional democracy itself and integral part
of the political culture.
9. The legitimisation of the parliamentary opposition in the
constitution, laws as well as rules of procedure, provides, on the
one hand, legal guarantees within government-opposition relations
to limit the political influence of the parliamentary majority on
the minority. On the other hand, by placing the opposition on an
equal footing with the majority, it requires them to be jointly
legally responsible for the exercise of power.
10. Effective opposition can help the government to avoid mistakes
– or swiftly correct them – thereby improving governance outcomes.
So, the existence of an effective parliamentary opposition able
to scrutinise the policy of a governing majority is a visible symbol
of the salvation of State political order and parliament itself.
11. The Parameters
on the Relationship between the Parliamentary Majority and the Opposition
in a Democracy: a checklist (“Checklist”) is the result of a long and careful work
carried out by the European Commission for Democracy through Law
(Venice Commission) which took its origin in Resolution 1601 (2008) “Procedural guidelines on the rights and responsibilities
of the opposition in a democratic parliament” of the Assembly. The
Venice Commission concluded that it is important to explore the
ways and means by which the role of the parliamentary opposition
can be formally better regulated and protected and that it is a
worthy attempt to introduce soft regulations in an area which is
essential for the proper functioning of parliamentary democracy.
The use of the Checklist should be widely promoted amongst national
parliaments, and the Assembly should contribute to this effort,
directly and through its political groups.
12. In light of these considerations, the Assembly:
12.1. welcomes the elaboration of
the Venice Commission Checklist on Parameters on the Relationship
between the Parliamentary Majority and the Opposition in a Democracy:
a Checklist, and endorses the Checklist as adopted;
12.2. disseminates and recommends the Checklist to the parliaments
of the Council of Europe member and observer States, as well as
to the parliaments enjoying observer or partner for democracy status with
the Assembly;
12.3. encourages member States to ensure that their democratic
mechanisms are given political legitimacy through integrity, as
trust in parliaments shapes both the stability and quality of democracy; only
together can parliamentary majority and opposition create inclusive,
prosperous and sustainable societies;
12.4. invites the parliaments of the member States of the Council
of Europe to promote the Checklist and to take it into account when
revising the relevant national rules or developing best practices;
12.5. encourages the parliaments of the member States of the
Council of Europe to enter into dialogue about how to improve the
existing national rules on the relationship between the parliamentary
majority and the opposition in a democracy;
13. As regards its own activities, the Assembly resolves to take
into account the Checklist in its monitoring work. It also resolves
to play a greater role in promoting the Checklist by:
13.1. inviting its political groups
to revise their statutory rules and rules of procedure, including provisions
specifying the procedure and requirements for, and consequences
of, switches in political affiliation as well as the suspension,
expulsion or resignation of members;
13.2. encouraging its political groups to enhance discussions
on how to improve the relationship between the parliamentary majority
and the opposition in a democracy;
13.3. holding debates on how to develop the legal, including
the soft law, environment and the best practices determining the
relationship between the parliamentary majority and the opposition
in a democracy;
13.4. stepping up interparliamentary co-operation activities
addressing the improvement of the relationship between the parliamentary
majority and the opposition in a democracy;
13.5. continuing to review, in co-operation with the Venice
Commission, the Checklist and the issues raised in it, with a view
to developing it further if required.
B. Explanatory memorandum by Ms Elvira Kovács, rapporteur
(open)1. Origin and aim of the report
1. In June 2019, the European
Commission for Democracy through Law (Venice Commission) adopted
the Parameters
on the relationship between the parliamentary majority and the opposition
in a democracy: a checklist (“Checklist”).
(“Checklist”).2. The Checklist is the result of a long and careful work carried
out by the Venice Commission which took its origin in Parliamentary
Assembly Resolution 1601
(2008) “Procedural guidelines on the rights and responsibilities
of the opposition in a democratic parliament”. The Venice Commission
concluded that it is important to explore the ways and means by
which the role of the parliamentary opposition can be formally better
regulated and protected and that it is a worthy attempt to introduce
soft regulations in an area which is essential for the proper functioning
of parliamentary democracy.
3. The motion for a resolution which is at the origin of the
present report recommended that the Assembly:
- welcomes the elaboration of the Checklist,
- disseminates and recommends it
to the parliaments of the Council of Europe member and observer States,
as well as to the parliaments enjoying observer or partner for democracy
status with the Assembly.
4. The motion also recommended that, in line with the existing
practice as regards a number of documents emanating from the Venice
Commission, including the Codes of good practice in electoral matters
and on referendums, and more recently the Rule of Law Checklist,
the Assembly should formally endorse the Checklist Parameters and
continue to review, in co-operation with the Venice Commission,
the issues raised in the Checklist, with a view to developing it
further if required.
5. I fully subscribe to the proposals set out in the motion for
a resolution and, the political groups in the Assembly should also
supplement their statutes or rules of procedure, including provisions
specifying the procedure and requirements for, and consequences
of, switches in political affiliation as well as the suspension,
expulsion or resignation of members.
6. In the present document I shall describe the process which
led to the adoption of the Checklist and its content.
2. Pluralism and role of the parliamentary opposition
7. The promotion and consolidation
of pluralist democracy are amongst the main objectives of the Council of
Europe and its Assembly. The member States of the Council of Europe
shall endeavour to develop common standards and practices aimed
at promoting a free and pluralist parliamentary democracy and the
means for their implementation in national parliaments.
8. The term democracy covers a multitude of meanings, hence,
talking about democracy means talking about a plurality of concepts.
Political scientists enlist almost 11 types and 56 adjectives of
democracy. Democracy has become, for the first time ever, a global
political language and many drew from this conclusion that democracy
and democratic ethos have become de facto the
universal form of political legitimacy.
9. Trust in political institutions represents a central component
of democratic systems. Therefore it is important to recognise the
role, powers and responsibilities of the opposition in democratic
politics. This recognition reflects the principle of political pluralism
(that power should not be permanently monopolised by one party)
and shows a commitment to democratic dialogue – hearing the other
side – in decision making.
10. Modern democracy is not merely crude majority rule. It is
a political system in which parliamentary majority and the opposition
share a joint responsibility in consolidating the citizens’ trust
in the political system and democratic institutions, ensuring their
good functioning and offering the public an informed choice.
11. Political and constitutional culture, the principles of political pluralism
as well as power dynamics between parliamentary majority and opposition
influence the quality of democratic dialogue, inclusiveness, institutional
confidence and consensus-building.
the principles of political pluralism
as well as power dynamics between parliamentary majority and opposition
influence the quality of democratic dialogue, inclusiveness, institutional
confidence and consensus-building.12. A capable and empowered opposition allows for democratic dialogue:
namely a back-and-forth of arguments and counterarguments where
the governing majority has the final authority to decide, but the presence
of the opposition makes it necessary to hear the other side, to
engage in public reasoning and to justify the decisions taken. Recognition
of the opposition improves the legitimacy and resilience of the
political system as a whole both by normalising the democratic transfer
of power and by giving “consolation prizes” to the losers.
13. Political and constitutional culture provides a clue as to
what extent the relationship between majority and opposition maximises
the freedom of thought or expression, including opportunities for
dissenting opposition to make their views known to citizens and
policy makers; the opportunities for citizens to participate in
political life; as well as the rationality in political discussion
and decision making, in the sense of increasing understanding by
citizens and leaders of the goals involved and the appropriate means.
14. The democratic quality of a parliament is measured by the
means available to the opposition or the parliamentary minority
to accomplish its tasks. Establishing a fair legal and procedural
framework and material conditions enabling the parliamentary minority
to fulfil its role is a prerequisite for the good functioning of representative
democracy.
3. Previous work of the Assembly
15. In absence of any explicit
reference to the rights and responsibilities of the opposition in
the major official texts of the Council of Europe, the relationship between the parliamentary
majority and the opposition has in the past mainly been dealt with
at the level of the Assembly on the occasion of debates on democratic institutions.
The Assembly’s first annual debate on the state of human rights
and democracy in Europe (2007) also offered an occasion to raise
the rights of the opposition.
the relationship between the parliamentary
majority and the opposition has in the past mainly been dealt with
at the level of the Assembly on the occasion of debates on democratic institutions.
The Assembly’s first annual debate on the state of human rights
and democracy in Europe (2007) also offered an occasion to raise
the rights of the opposition. 16. The Assembly’s Committee on Rules of Procedure, Immunities
and Institutional Affairs organised a hearing on the role of the
opposition in a democratic parliament. The conclusions of the hearing
led to the preparation of a report which was debated in the Assembly
followed by the adoption, on 23 January 2008, of Resolution
1601 (2008) “Procedural guidelines on the rights and responsibilities
of the opposition in a democratic parliament”. Several national
parliamentary administrations have followed up this work in the framework
of the European Centre for Parliamentary Research and Documentation
(ECPRD), which is managed jointly by the Secretariat of the European
Parliament and the Assembly.
17. The Venice Commission in general endorsed Resolution 1601 (2008) as a ground breaking new soft law instrument on a subject
of great importance for the development of democratic parliamentary
procedures and prepared a report “On the role
of the opposition in a democratic Parliament” (“the 2010 Report”).
The fact is that the Venice Commission had not previously given
any general opinion on the role of the opposition. It
had however, dealt with the issue in a country-specific report,
“On the Draft Law on the Parliamentary Opposition in Ukraine” from
2007.
and prepared a report “On the role
of the opposition in a democratic Parliament” (“the 2010 Report”).
The fact is that the Venice Commission had not previously given
any general opinion on the role of the opposition. It
had however, dealt with the issue in a country-specific report,
“On the Draft Law on the Parliamentary Opposition in Ukraine” from
2007. 18. Through its mechanism for monitoring compliance with the obligations
and commitments entered into by the Council of Europe member States,
the Assembly has for decades ensured smooth functioning of the political
dialogue between the majority and the opposition, recognition of
the opposition’s institutional role and respect for the rights of
the parliamentary opposition. It assists parliaments encountering
serious difficulties by seeking ways of overcoming a political crisis.
19. In June 2010, the European Conference of Presidents of Parliament
devoted one of its two working sessions to the rights and responsibilities
of the opposition in a parliament. Furthermore, in September 2014, the
third session of the European Conference of Presidents of Parliament dealt with the question of how to strike
a balance between the majority and the opposition.
dealt with the question of how to strike
a balance between the majority and the opposition. 4. The process leading to the adoption of the Checklist
20. In Resolution 1601 (2008),
the Assembly stated that “a political opposition in and outside
parliament is an essential component of a well-functioning democracy”.
21. In the past decade, the Venice Commission observed a worrying
political trend in a growing number of countries, which is sometimes
described by the formula “the winner takes it all”. Following this
trend, checks and balances restraining the power of the parliamentary
majority are dismantled. Rushed adoption of laws without genuine
political debate has become more frequent. Top judges and officials
of independent agencies are appointed or dismissed single-handedly
by the majority. “In its relevant opinions, the Venice Commission has
warned against reducing democracy to simple majoritarianism. The
2010 Report was still optimistic when stating that ‘democracy is
today stronger in Europe than ever before in history’. It may be
that this is not the case anymore, as demonstrated by more tense
relations between the majority and the opposition”.
22. According to the survey, “Global State of Democracy 2022”,
the problems facing democracy in Europe today include, among others,
low level of public participation and low support for political
representation; many citizens lack trust in government and political
parties, almost half of all democracies – a total of 17 countries
– have suffered erosion in the last five years and these declines
affect 46% of the high-performing European democracies. Global democracy’s
decline includes undermining of credible election results, restrictions
on online freedoms and rights, youth disillusionment with political
parties as well as out-of-touch leaders, intractable corruption
and the rise of extreme right parties that has polarised politics.
23. The political landscapes have been dramatically modified over
the last decade: in the face of the changes in the relationships
between the executive and the legislative (presidentialisation of
politics, change or decline of the parliament’s roles) as well as
in terms of the roles played by the parties (decline of party membership,
decline of the traditional functions of the political parties),
the time has come to rethink the basic notions of parliamentary
majority and opposition.
24. Both, political theory and practice proved that constitutional
rules on governance also serve to protect the political opposition,
by laying down procedures that the majority cannot easily change,
ensuring representation and voice, and thereby guaranteeing the
opportunity for the opposition to compete for majority power in
future elections.
25. These worrying trends were also noted by the Secretary General
of the Council of Europe in his 2016 annual report. The
Secretary General asked the Venice Commission to formulate guidelines
on the relations between the majority and the opposition. Following
his call, the Venice Commission tasked a group of rapporteurs with
the update of the 2010 Report.
The
Secretary General asked the Venice Commission to formulate guidelines
on the relations between the majority and the opposition. Following
his call, the Venice Commission tasked a group of rapporteurs with
the update of the 2010 Report.26. The rapporteurs agreed that the 2010 Report needed to be updated,
in the light of the observations of the Venice Commission, and that
it should also be supplemented with a new part – a Checklist. This
checklist was scrutinised by the Sub-Commission on Democratic Institutions
on two occasions and adopted by the Venice
Commission at its 119th Plenary Session,
in Venice, on 21 June 2019.
and adopted by the Venice
Commission at its 119th Plenary Session,
in Venice, on 21 June 2019.5. The Checklist
27. As noted in the 2010 Report,
there is no common model defining the respective roles of the parliamentary
opposition and majority. It is impossible to devise a comprehensive
set of precise standards in this area, which would be valid for
all democratic political regimes.
28. The focus of the Checklist is not on autocratic regimes but
rather on “vulnerable democracies”, where political pluralism exists
but is nevertheless fragile. Therefore, the Checklist is supposed
to help legislators in those vulnerable democracies to formulate
legal rules and develop unwritten “constitutional conventions” and best
practices which would preserve the role of parliamentary opposition
as a countervailing power and a viable alternative to the government
in place.
29. The Checklist consists of 10 sections on matters including
the establishment of majority and opposition groups in parliaments,
parliamentary appointments, certain legislative processes and immunities
of members of parliament. The structure of the Checklist allows
it to be supplemented and adjusted in the future, in the light of
the political and legal developments in the European and non-European
democracies. The Checklist is intended to be a living instrument.
30. The 2010 Report focused on the role of the opposition in parliament.
It did not deal with the political opposition in society in general,
with the level of human rights and freedoms or with basic constitutional choices.
The Checklist remains essentially within the same scope; it deals
with the rules and principles pertinent to the functioning of the
parliamentary opposition and to its interaction with the majority,
and with other State institutions.
6. The opposition – the term, its rights and obligations
31. The term opposition does not
lend itself to a short definition. The position of the opposition
and its functioning differ in various political systems. It works
differently in a multi-party parliamentary regime than in a (semi)
presidential regime. Therefore, the issue of rights of the parliamentary
opposition is first and foremost a question of political minority
rights. This may typically include procedural rights of information,
representation and participation, speaking and voting rights, the
right to table bills and motions, rights of supervision and scrutiny
of the executive, and protection against mistreatment by the majority.
32. A comprehensive rethinking should embrace the whole range
of roles that the opposition entails, taking into account a larger
range of actors and types of relations. From these premises, the
following working definition of political opposition could be considered:
an organised actor expressing its stance in the public sphere that
permanently or punctually checks, informs and criticises the current
state of affairs, through different non-violent modalities (legislative
processes, parliamentary questions, press releases, mobilisation
of the media) while the targets of its critiques being the government
and its policies or the political regime as a whole.
33. It is impossible to separate the opposition’s rights from
its responsibilities. Overseeing the government and carefully scrutinising
the work of other frontline bodies, initiating and taking part in
the legislative process and being involved in the operation of the
parliament are rights that have to be protected. However, they also constitute
duties that have to be discharged in a way that ensures that the
common good takes precedence over the parties’ short-term interests
and political differences.
34. There are at least two main forms of abuses or dysfunction
of the role of the opposition. Either the opposition completely
blocks effective governmental work and/or effective parliamentary
work, or the opposition does not offer any alternatives to the work
of the government and/or to the proposals of the parliamentary majority
and is therefore not visible in the political debate.
35. Opposition function implies scrupulous control, scrutiny and
checks on authorities’ and officials’ behaviour and policies. However,
good governance advises that parties in opposition (as well as ruling parties)
refrain from practices that may erode the democratic debate and
which could eventually undermine the trust of citizens in politicians
and parties.
However,
good governance advises that parties in opposition (as well as ruling parties)
refrain from practices that may erode the democratic debate and
which could eventually undermine the trust of citizens in politicians
and parties. 36. In practically all national parliaments, there are provisions
acknowledging the role of the opposition or the parliamentary minority
in their dimension as political groups or individual parliamentarians
not supporting the government. While in parliamentary law the notion
of minority rights is generally more frequently used than opposition
rights, the society, particularly political circles, the media or
the interested public, usually speak of the opposition.
37. The best way of ensuring that the opposition discharges its
responsibilities is to extend and precisely define its rights. However,
in only a few Council of Europe member States do the laws or constitution
explicitly mention the role of the opposition. Some constitutions
recognise the opposition only in outline, leaving much of the detail
to be determined by ordinary legislation, statutory law or parliamentary
rules of procedure, or by convention, custom and tradition.
38. Analysing regimes of opposition rights, theorists consider
three components: first, an opposition team is created through provisions
that encourage collective and co-ordinated actions; second, the
regime of opposition rights confer rights that further one or both
of the key functions of opposition parties: (a) to scrutinise the
conduct of the executive and hold it accountable through powers
of oversight; and (b) to provide a government-in-waiting through
agenda-setting powers; third, the regime of opposition rights contains
an enforcement mechanism, consisting of constitutional court referrals
and/or speakers of the legislature.
39. The Venice Commission advised against adopting a special law
on the opposition considering that it could be very difficult –
and in some cases problematic from the non-discrimination viewpoint
– to introduce rigid rules, especially when they tend to give specific
powers to some political actors to the detriment of others, equally
legitimate to speak as representatives of the citizens.
40. In the vast majority of countries, the opposition’s rights
and responsibilities derive from parliamentary procedures or practice
and, in some cases, from agreements between the political groups
represented in parliament. It is therefore desirable to improve
the consistency and fairness of this system and ensure that it no
longer depends on political negotiations, in order to turn it into
a set of clear legal rules.
41. Subconstitutional provisions may thus be adequate where a
strong sense of fair play and mutual respect between the government
and the opposition prevails. In the absence of favourable conditions, subconstitutional
rules might easily be evaded or amended by the government to weaken
the opposition and to prevent effective scrutiny.
7. Degree of institutionalisation of rights and responsibilities of the opposition in a democratic parliament: comparative perspective
42. A state of democracy ensures
that the processes by which power is acceded to, wielded and alternates allow
for free political competition and are the product of open, free
and non-discriminatory participation by the people, exercised in
accordance with the rule of law, in both letter and spirit. The
key element in the exercise of democracy is the holding of free
and fair elections at regular intervals enabling the people's will
to be expressed. Consequently, democracy
is not just about winning elections, but equally so about losing
them.
Consequently, democracy
is not just about winning elections, but equally so about losing
them.43. Constitution provides a framework for bounded, partisan, pluralist
contestation among political parties that track major economic and
social cleavages of a political community, through regular, periodic
elections. The legitimacy of the procedures enables political disagreements
to be channelled into them and yields institutional settlement by
designing a regime of opposition rights. In a word: “every country has a government;
only democracies have an opposition”.
In a word: “every country has a government;
only democracies have an opposition”. 44. Democracy is as much about opposition as it is about government.
In pluralistic constitutional systems, the legal framework of the
opposition in general is laid down (status of the parties, MPs’
rights, freedom of expression, freedom of association, etc.) and
the parliamentary opposition in particular enjoys legislative or regulatory
rights or rights handed down by custom and practice and even constitutional
recognition so that it can freely express its views and act effectively
as a counterweight to the majority within an institutional environment.
It is clear that the nature and strength of the opposition primarily
depend on the electoral and voting systems employed. Differences
exist in the degree of institutionalisation of the opposition in
the parliaments of Council of Europe member States, ranging from
informal recognition in the parliamentary rules of procedure when
granting rights to the parliamentary minority to formal recognition
of the opposition in the constitution of the State.
45. Hence, opposition is not just a defining feature of democratic
governance but of politics more generally. Beyond diversity of parliamentary
systems in Europe, all parliaments of the member States grant rights
to the parliamentary minority, whether organised around political
groups or not. The guarantee of a democratic balance is a cornerstone
of the political stability. If the opposition is not guaranteed
sufficient basic rights, then this may weaken or destroy the democratic
functioning and legitimacy of the system. On the other hand, if
the opposition is given broad rights and powers, then this may weaken
or destroy the possibility of the majority and the government to
effectively run the country.
46. Regimes differ fundamentally in the extent to which the electoral
and parliamentary arenas provide space for voicing opposition to
power holders. But
it goes beyond any doubt that parliamentary majority and opposition
compose united political and constitutional order, and more precisely,
“opposition is a dependent” concept. This means that the character
of the opposition is tied to the character of the government.”
But
it goes beyond any doubt that parliamentary majority and opposition
compose united political and constitutional order, and more precisely,
“opposition is a dependent” concept. This means that the character
of the opposition is tied to the character of the government.” 47. The opposition has the natural potential to become tomorrow’s
majority. Accordingly, in an ideal situation it is expected to be
jointly responsible for the good governance of the State, for institutional
continuity and for the transparency of the legislative process,
in the pursuit of the public interest. To put it briefly, this means
a constructive, responsible opposition that demonstrates its maturity
and does not systematically seek to impede the work of the majority
or, on the contrary, adopt a passive stance or is not a “mere decoration”.
There is also a right to expect that an opposition endowed with
appropriate procedural rights will resort less to blocking the parliamentary
process.
48. Several Council of Europe member States have sought, to varying
degrees, to promote the institutional role of the political opposition
by establishing a number of specific rights on a constitutional
or legislative basis or by introducing good practices. Those rights are translated
into more specific legal mechanisms and standards which are examined
in the Checklist.
Those rights are translated
into more specific legal mechanisms and standards which are examined
in the Checklist.7.1. Proportional representation
49. In its Checklist the Venice
Commission endorses the principle of proportional representation
in the positions of responsibility as an important instrument for
ensuring opposition rights. In order to avoid that the opposition
is entirely excluded from the governing bodies of parliament, it
recommends to formulate a rule ensuring the opposition fair access
to the positions of responsibility in parliament as well as proportional representation
for the composition of delegations of the national parliaments to
the international parliamentary associations and other similar bodies.
50. There is a great variety as to how the principle of proportional
representation is formally recognised. In a few countries it is
explicitly regulated in the constitution. This includes Article
52 of the Constitution of Denmark and Article 95.2 of
the Constitution of Türkiye according
to which “[t]he provisions of the Rules of Procedure shall be drawn
up in such a way as to ensure the participation of each political
party group in all the activities of the [Grand National Assembly]
in proportion to its number of members”. Article 178.2 of the Constitution
of Portugal states that “[c]ommittees shall be composed in proportion
to the number of seats each party holds in the Assembly of the Republic.”
and Article 95.2 of
the Constitution of Türkiye according
to which “[t]he provisions of the Rules of Procedure shall be drawn
up in such a way as to ensure the participation of each political
party group in all the activities of the [Grand National Assembly]
in proportion to its number of members”. Article 178.2 of the Constitution
of Portugal states that “[c]ommittees shall be composed in proportion
to the number of seats each party holds in the Assembly of the Republic.”7.2. Leader of the opposition
51. In some countries, there exists
the institution of the leader of parliamentary opposition – the
leader of the largest opposition faction or coalition of opposition
factions – and the opposition is an institution in its own right whose
key role is ensuring the day-to-day exercise of parliamentary democracy.
For example, the United Kingdom has made leader of the opposition
an official position (“Leader of His Majesty's Most Loyal Opposition”). It is a position that sometimes
has genuine constitutional or legislative status. In those parliamentary
democracies where a leader of the opposition is recognised, the
rules governing how the leader of the opposition is chosen vary
in detail.
It is a position that sometimes
has genuine constitutional or legislative status. In those parliamentary
democracies where a leader of the opposition is recognised, the
rules governing how the leader of the opposition is chosen vary
in detail.7.3. Stages of the policy-making process
52. Three stages of the policy-making
process are considered: initiation, debate and parliamentary supervision.
At the stage of initiating policies, bill introduction and agenda
setting are envisaged. Amendments, the committee structure and the
committee procedures represent the stage of debate power. Finally, parliamentary
supervision of the executive including
different forms of qualified minority rights, interpellation, no
confidence vote, measure the veto power of opposition players.
including
different forms of qualified minority rights, interpellation, no
confidence vote, measure the veto power of opposition players.53. Parliament grants weak opposition power if only the executive
and MPs can introduce bills while MPs face restrictions and possible
veto players. More opposition power exists in parliaments in which
at least one further actor (committees, parties, subnational entities,
or citizens) can introduce bills but is also faced with restrictions
and/or veto players. Opposition players are granted strong power
if MPs do not face restrictions or veto players. Strongest opposition
power is granted in parliaments in which at least one other actor
than the executive and MPs can introduce bills without restrictions
or veto. An additional obstacle to overcome, however, are the actors
who decide on the plenary legislative agenda which might be dominated
by the government.
7.3.1. Committees
54. Much of the work of parliament
– especially the detailed legislative and policy scrutiny work –
is done in committees. It is usual for parliamentary committees
to broadly reflect the partisan composition of the given house (for
example with a government majority and other committee positions
distributed among the opposition parties according to their strength).
While the composition of committees is often determined subconstitutionally,
by ordinary statute or by parliamentary standing orders, some constitutions
do prescribe general rules ensuring a balance between the government
and the opposition.
55. In Resolution 1601 (2008), the Assembly recommended that the
opposition should chair all “committees responsible for monitoring
government action, such as the committee on budget and finance,
the committee on audit, or the committee supervising security and
intelligence services”. This is an example of the resolution going
quite far, as compared to what is usual in national parliaments.
In many countries, the parliamentary committees responsible for
budget and finance would not be considered (merely) as “monitoring”
committees.
7.3.2. Setting the agenda
56. The opposition should have,
at some regular intervals, a reasonable opportunity to influence
the agenda as concerns not only legislative proposals but also other
issues related to the control of government actions and evaluation
of public policies and spending, for example by proposing items
for the inclusion in the agenda at the request of a qualified minority.
57. It is vital to allow the opposition to formulate an agenda.
Control of the plenary timetable links to the control of determining
what will be debated and decided. Hence, being able to define this
timetable and setting the order of the day imply considerable power.
58. Some parliaments set aside certain sitting days where the
opposition can determine the agenda (opposition days). This is a
longstanding feature of some (if not all) Westminster-model parliaments. Most
of these opposition days are allocated to the official opposition
(the largest opposition party); the others are shared between the
other opposition parties.
Most
of these opposition days are allocated to the official opposition
(the largest opposition party); the others are shared between the
other opposition parties.7.3.3. Allocation of the speaking time
59. In its Checklist, the Venice
Commission stressed that it is possible to give the opposition a
bigger share of speaking time, especially as regards bills introduced
by the government or private bills sponsored by majority MPs, and
that the allocation of an equal speaking time between majority and
opposition, irrespective of their strength, should be privileged
under certain circumstances.
60. The Venice Commission recommends introducing more transparent
rules for equal time distribution for debates between the parliamentary
majority and the opposition. This issue is partially regulated by
the Statute of the Lithuanian Parliament which stipulates in Article
105.2 that the Speaker of the Seimas may change the order of speeches
to provide more proportional representation of factions, committees,
arguments for and against in the debates.
61. There are suggestions that the principle of giving the opposition
parties an appropriate share of parliamentary time can be written
into a constitution.
7.3.4. Participation of the opposition in the parliamentary supervision of the executive
7.3.4.1. Qualified minorities
62. Qualified minority rights may
be found in the general parliamentary procedures or in special procedures for
particular issues, most commonly in procedures for parliamentary
oversight and scrutiny of the executive.
63. Following recommendations of Resolution 1601 (2008) that a qualified minority of one fourth of the representatives
should have the legal competence to demand the following measures:
a plenary sitting (2.2.5); a debate on a specific issue (2.2.7);
the setting-up of “a committee of inquiry or a parliamentary mission
of information and to become members thereof” (2.2.8); an extraordinary
session (2.3.2) and committee hearings (2.5.4), the Venice Commission
– in principle, taking into account tradition and political context
– endorses the idea of giving a qualified minority of MPs special
powers of inquiry with regard to the oversight function of parliament.
64. There are some political systems in which the parliamentary
opposition, usually in the form of a certain qualified minority,
has been granted not only rights of procedural participation, but
also the legal competence to adopt decisions to initiate inquiries,
demand information, set up special committees or commissions.
65. There are two mechanisms that are designed not to prevent
majoritarian decision making but to provide the minority with opportunities
to scrutinise proposals, to voice their opposition to them and to
mobilise public opinion: minority delay mechanisms (where the veto
is limited to a delay) and minority referendum mechanisms (where
the veto can be overridden by an appeal from the parliamentary minority
to the general public).
7.3.4.2. Minority delay mechanisms
66. In some parliaments a qualified
minority may have the right to delay majority decisions, for example,
by calling for extra hearings or periods of reflection. Some constitutions
allow the legislative minority to delay legislation pending further
review and scrutiny.
7.3.4.3. Questions, interpellations, no confidence vote and impeachment
67. In its Checklist, the Venice
Commission confirmed recommendations of Resolution 1601 (2008) that the opposition should have the right to open question
time with the government and to ask more questions than members
of the majority.
68. During a regularly scheduled time (in some systems, several
days a week), the opposition may pose written or verbal questions
to the government. These arrangements can be constitutionalised
in the form of an opposition right, however in most countries this
is regulated in the Rules of Procedure.
69. As the Venice Commission stated in its Checklist, the strongest
political tool in the hand of the opposition members is the right
of interpellation (accompanied by a debate), which is often connected
with the right to move a motion of no confidence.
70. Theoretically speaking, the consequences of an interpellation
are not necessarily identical or even similar in the different countries
that apply this system. In some countries, the interpellation is
close to the most significant means of control – a proposal for
a vote of no confidence – while in others it is difficult to draw
a sharp border between the interpellation and the “ordinary” parliamentary
question in written form, and in that sense interpellation is often
defined as a qualified parliamentary question.
71. The Venice Commission recommended separating the interpellation
procedure (which may lead to the vote of no confidence) from a simple
inquiry, in order to avoid the danger of artificial escalation of
conflicts. Further, in order to reduce
the risk of abuse of the right of interpellation by minority MPs,
a threshold requirement may be introduced for such motions and expectingly,
threshold for interpellation varies in different countries: thus,
for example, under Article 61 of the Constitution of Lithuania,
one-fifth of the members of the Seimas may direct an interpellation
to the ministers (29 deputies out of 141). In Finland, 20 legislators
may address an interpellation to the government, which it must respond
to in plenary within 15 days; in North Macedonia, according to Article
72 of the Constitution, interpellation of a member of government
may be triggered by a motion of five MPs or more (out of 120) ; in the Netherlands 30 out of 150
members are required.
Further, in order to reduce
the risk of abuse of the right of interpellation by minority MPs,
a threshold requirement may be introduced for such motions and expectingly,
threshold for interpellation varies in different countries: thus,
for example, under Article 61 of the Constitution of Lithuania,
one-fifth of the members of the Seimas may direct an interpellation
to the ministers (29 deputies out of 141). In Finland, 20 legislators
may address an interpellation to the government, which it must respond
to in plenary within 15 days; in North Macedonia, according to Article
72 of the Constitution, interpellation of a member of government
may be triggered by a motion of five MPs or more (out of 120) ; in the Netherlands 30 out of 150
members are required. 72. In the Checklist, the Venice Commission stated that
it is essential in a parliamentary regime that the opposition should
be able to trigger the vote of no confidence in the government as
a whole; however, political context should be considered, due to
fact that this mechanism can be abused and may make the government more
fragile. Further, the
Venice Commission suggested that a no confidence vote should be
a collective rather than an individual initiative of MPs and that a motion of no confidence
may be tabled by 10 or 20 MPs. In practice, a number of constitutions
of the Council of Europe member States allow parliament to dismiss individual
ministers through votes of no confidence.
that
it is essential in a parliamentary regime that the opposition should
be able to trigger the vote of no confidence in the government as
a whole; however, political context should be considered, due to
fact that this mechanism can be abused and may make the government more
fragile. Further, the
Venice Commission suggested that a no confidence vote should be
a collective rather than an individual initiative of MPs and that a motion of no confidence
may be tabled by 10 or 20 MPs. In practice, a number of constitutions
of the Council of Europe member States allow parliament to dismiss individual
ministers through votes of no confidence.7.3.4.4. Parliamentary inquiry committees
73. Considering the issue of the
number of MPs required for establishing a committee of inquiry,
the Venice Commission, in its Checklist, accepted Recommendation
III.3 of the Inter-Parliamentary Union Guidelines that “each parliamentary
group shall be entitled, at intervals fixed following consultations,
to have a commission of inquiry established on the subject of its
choice. In this case, the opposition shall be represented thereon”.
74. Analysing the issue of threshold from the point of strengthening
the opposition parties, the Venice Commission observed on the one
hand that the threshold of one fourth in most political systems
would be regarded as rather low while on the other hand “the reduction of
the number of MPs required for establishing a parliamentary commission
to one fifth of MPs might help to strengthen the role of smaller
opposition parties and is therefore to be welcomed.”
while on the other hand “the reduction of
the number of MPs required for establishing a parliamentary commission
to one fifth of MPs might help to strengthen the role of smaller
opposition parties and is therefore to be welcomed.” 75. Some constitutions allow a certain minimum number of the members
of the legislature to establish a committee of inquiry.This is a
potentially powerful tool in the hands of the opposition enabling
it to scrutinise and probe policy decisions.
76. In its Checklist, the Venice Commission recommends that if
the decisions of the inquiry committee are to be made by a majority
of votes, it is important to reserve certain procedural rights to
the members of the inquiry committee representing the opposition,
and provide for the possibility to be co-rapporteurs or to submit an
alternative “minority report”.
7.4. Constitutional review of laws
77. According to the Venice Commission’s
Checklist, availability of the review of constitutionality of laws
and bills is a matter of political choice, but where this choice
is made, there are good reasons to give the power to trigger such
a review also to a minority group in parliament. Submitting a bill
to a Constitutional Court should be possible at the request of “one
third or one quarter of the members” but the threshold may be even
lower, especially where the legislature is much fragmented (for
example, one fifth of all MPs).
78. A widespread model in Europe is that a parliamentary minority
can demand constitutional review of laws, either before or after
adoption, usually from the Constitutional Court. This competence
gives the opposition (of a certain size) the chance to bring the
laws and other acts of the parliamentary majority before an independent judicial
authority. It can in itself give the minority a certain political
leverage, and may slow down the adoption or enactment of new (majority)
legislation. Whether it actually stops such legislation depends
on the contents of the law, the strictness of the constitution,
and the will, composition and traditions of the national Constitutional
Court.
7.5. Parliamentary leadership and administration
79. The opposition may have guaranteed
representation and participation in the leadership and internal administration
of parliament. Control over not only the organisation of the legislature’s
proceedings but also over its physical assets – its buildings, office
space, libraries, archives and even parking spaces – can be a political
tool. Having an opposition voice in such matters is vital to ensuring
that parliament works for the benefit of its members as a whole,
and that the proper institutional balance between the government
and opposition is maintained.
8. Changes in political affiliation
80. The question of post-electoral
changes in MPs’ political affiliations during their term of office
deserves serious consideration. This phenomenon is known to many
parliaments in Council of Europe member States and the move of MPs
from one political group to another or their withdrawal from a party
to sit as independents – whether for ideological considerations,
out of political or electoral opportunism or in the pursuit of personal advantage
– is likely to have an impact on the balance between the majority
and the opposition in parliaments.
81. For parliaments, this phenomenon may undermine the opposition’s
exercise of its rights, so it is worth examining the rules governing
the rights afforded to political opposition groups: are they granted
at the beginning of each legislative period or every year at the
beginning of the ordinary session?
82. In a 2009 opinion, the Venice Commission emphasised the importance
of a free and independent mandate for members of parliament, and
held that “losing the condition of representative because of crossing the
floor or switching party is contrary to the principle of a free
and independent mandate.” Even though the aim pursued by this kind
of measures (preventing the “sale” of mandates to the top payer)
can be sympathetically contemplated, the basic constitutional principle
which prohibits imperative mandate or any other form of politically
depriving representatives of their mandates must prevail as a cornerstone
of European democratic constitutionalism.
83. In Council of Europe member States, imperative mandates are
prohibited and parliamentarians are free to exercise their mandates
as they see fit. Nevertheless, the mandates are moral contracts
between voters and parliamentarians, based on the principles, values
and opinions defended in their election manifestos. Switches in
political affiliation after elections therefore raise questions
and criticisms – in particular in ethical and moral terms – relating
to political opportunism, potential threats to public confidence
in the political class and the internal discipline of political
parties. Apart from these general criticisms, parliamentarians switching
from one group to another after elections or withdrawing from a
group to sit as independents have an impact on the functioning of
the parliamentary institutions concerned. In the case of members
of the Assembly, switching of this kind may influence the balance
of political representation within the national delegations to the
Assembly.
84. The Assembly report entitled “Post-electoral shifting in members’
political affiliation and its repercussions on the composition of
national delegations” which was based on the replies to
a questionnaire sent to the national ECPRD correspondents (Request
No. 2417 of 8 November 2013) stated that political groups affected by
defections may be confronted with several difficulties depending
on the scale of the phenomenon. The main effects include a risk
of under-representation or even dissolution, a reduction in financial
contributions and allowances and the loss of political influence
in parliamentary bodies. Under-representation affects those groups
which, under rules of procedure, are required to have a minimum
number of members to exist. The Assembly therefore invited national
parliaments to:
which was based on the replies to
a questionnaire sent to the national ECPRD correspondents (Request
No. 2417 of 8 November 2013) stated that political groups affected by
defections may be confronted with several difficulties depending
on the scale of the phenomenon. The main effects include a risk
of under-representation or even dissolution, a reduction in financial
contributions and allowances and the loss of political influence
in parliamentary bodies. Under-representation affects those groups
which, under rules of procedure, are required to have a minimum
number of members to exist. The Assembly therefore invited national
parliaments to: “- look in depth
at the switching of political affiliation by members so as to determine
whether measures should, or should not, be taken to restrict switching
between political groups, by prohibiting switches to another parliamentary
group – for the remainder of a parliamentary term or for a certain
period of time – and requiring the members concerned to sit as non-registered/independents,
or depriving them of certain participation and representation rights;
- revise their internal regulations if they do not already
include provisions providing for or prohibiting the switching of
political affiliation, as well as the requirements for, and consequences
of, switches in political affiliation and the suspension, expulsion
or resignation of members from their political groups.”
85. Furthermore, the Assembly invited the political groups in
the Assembly to supplement their statutes or rules of procedure,
as appropriate, so that they set out more clearly the values and
principles on which the group is based and the objectives it pursues
and include provisions specifying the procedure and requirements for,
and consequences of, switches in political affiliation as well as
the suspension, expulsion or resignation of members.
9. Immunities of the MPs
86. The purpose of immunity, as
emphasised in Assembly Resolution
1325 (2003) “Immunities of Members of the Parliamentary Assembly”
is to preserve the integrity and independence of parliaments by
providing specific protection against the accusations to which parliamentarians
are more exposed than other citizens.
87. The Assembly was the first international parliamentary institution
in Europe to incorporate provisions in its Rules of Procedure for
waiving the immunity of its members, giving practical expression
to Article 40 of the Statute of the Council of Europe (ETS No. 1)
and the General Agreement on Privileges and Immunities of the Council
of Europe (ETS No. 2, 1949) and its additional protocol (ETS No.
10, 1952).
88. In its Checklist the Venice Commission underlined that although
immunity is a general safeguard for all MPs, it has a specific meaning
for the opposition, especially in countries where law-enforcement
bodies may be subservient to the majority. It is important to define,
in the law, the scope of any immunities enjoyed by the MPs and devise
procedural safeguards which would make lifting of the immunity and
subsequent prosecution harder.
89. As the Venice Commission stressed, today’s rules on parliamentary
immunity for MPs are to be found in various forms in the parliaments
of all the member States of the Council of Europe, usually regulated
in the constitutions themselves. Such rules may serve both as collective
protection of parliament as an institution (against the executive)
and as protection of the individual MPs against both the executive
and the parliamentary majority.
Such rules may serve both as collective
protection of parliament as an institution (against the executive)
and as protection of the individual MPs against both the executive
and the parliamentary majority.90. The Venice Commission considered that two separate categories
of immunity have emerged: non-liability (which essentially means
that an MP may not be brought to liability in connection to the
votes and opinions related to the exercise of his/her mandate) and
non-violability (which means that an MP cannot be subjected to certain
coercive measures, like, for example, arrest, without permission
of parliament or a body of parliament).
91. Researches proved that fear of losing immunity could cause
following consequences: it pacifies the MPs of the opposition parties;
they become less diligent in the parliament (drafting fewer pieces
of legislation, initiating fewer investigation inquiries, delivering
fewer and shorter speeches) and become less aggressive (interrupting
other MPs less frequently). They also reduce their tendency
to cast dissenting votes against the government. Reduction in the
intensity of the opposition activities decreases citizens’ trust
in the parliament.
They also reduce their tendency
to cast dissenting votes against the government. Reduction in the
intensity of the opposition activities decreases citizens’ trust
in the parliament.10. Resolution of disputes related to the rights of the opposition
92. The independence of parliamentarians
is important not only in the face of the executive branch but also inside
of parliament as it relates to their interactions with political
parties and other MPs. It is essential that rights of parliamentary
opposition – freedoms of association, expression and assembly –
are guaranteed by the constitution, by the country’s legislation
and by the rules of procedure of parliament, and they should not
be undermined by the code of conduct. MPs in the opposition should
not be criminalised, harassed or disadvantaged in any way.
93. As the Venice Commission stated in its Checklist, beside the
need to maintain good order in parliament and resolve disputes related
to the rights and behaviour of individual MPs or groups, it is important
to take into account that internal bodies dealing with disciplinary
and other procedural matters should not become a tool of political
manipulations in the hands of the majority.
94. According to the Venice Commission, it belongs in the first
place to parliament itself or to its designated bodies to decide
what speech or behaviour are inadmissible within parliament. Since
not everything can be clearly regulated in the codes of behaviour,
it is important to ensure foreseeability of any sanction imposed
and show respect to the tradition and the precedent. Thus, for example,
in countries where “filibustering” was customarily regarded as a
legitimate practice, it would be wrong to punish minority MPs for
using this tool just because the current majority does not like
to be constrained by it.
95. Further, the Inter-Parliamentary Union recommends that the
adoption procedure for codes of conduct should be inclusive, transparent
and consultative and that members of opposition should therefore
be involved in the process of developing the code of conduct from
the beginning. By inclusive, the concern is with
the assurance that the code was not solely developed by a few parliamentarians
or by the majority party. This would lead to increased concerns
about the possible weaponisation of the code of conduct to target
minority members or to restrict the independence of legislators.
By inclusive, the concern is with
the assurance that the code was not solely developed by a few parliamentarians
or by the majority party. This would lead to increased concerns
about the possible weaponisation of the code of conduct to target
minority members or to restrict the independence of legislators. 96. It is recommended that in order to gain and maintain legitimacy,
the composition of parliamentary ethics committees should be representative
of parliament in terms of political party balance and gender and
ethnic balance, while their members should be appointed in a transparent
and fair manner. Such committees are often chaired by a member of
the opposition, although this can be controversial in societies
with a highly adversarial political culture or divided political
elite.
11. General principles as basis for the Checklist
97. The parliamentary majority
is often but not always the governing majority, in the sense that
it supports the government. The 2010 Report primarily described
“the main situation, in which the opposition parties are in minority,
and therefore in need of some level of protection in order to fulfil
the basic legitimate opposition functions that are necessary in
order to ensure effective and sustainable democracy”. The Checklist
has the same focus.
98. In addition to the rules of the Constitution and the legislation,
certain overarching principles should be respected. The Venice Commission
identified the following constitutional principles as the most important principles
of parliamentary functioning: “freedom, pluralism, checks and balances,
loyal co-operation and respect for institutions, solidarity towards
the society, possibility of political change, and effective decision making”.
- Pluralism: A democratic State should respect values of pluralism and freedom and therefore in a democratic society, the criticism by the opposition cannot be seen as a destructive element or voice against the country and cannot be interpreted as a lack of acceptance of the results of democratic elections.
- Checks and balances: A democratic State cannot exist without checks and balances amongst its different institutions. The checks and balances in the wider sense include also non-State actors (such as civil society, or a free press) which contribute to preventing an excessive concentration of power in one institution.
- Loyal co-operation and respect for institutions: Checks and balances require constructive co-operation in order to achieve the public interest, they require mutual respect between State institutions belonging to different powers, as well as an appropriate balance and mutual control amongst them.
- Political solidarity towards the society: The principle of political solidarity requires a shared responsibility of the majority and opposition towards society. In the exercise of power, the majority, precisely because it is a majority, has to act with self-restraint and with respect towards the opposition, in an inclusive and transparent manner. At the same time, the opposition should not abuse procedural rights either, and, in criticising the policies of the majority, should not call for violence or get involved in violent acts, or in the physical obstruction of the parliament’s work.
- Possibility of alternation in power: Measures taken by the majority should not affect the rule of law and should not be aimed at changing the rules of the democratic “game”, which ultimately means the possibility of alternation in power through free and fair elections. The majority should not abuse its powers to make it impossible (or very difficult) for the minority to become the majority.
- Efficient decision making: The majority should be able to pursue its political agenda and the opposition, on its side, should not indulge in a deliberate obstruction of the normal work of parliament. The interaction between the majority and the opposition should always respect the imperative of ensuring a fair balance between the legitimate interests of the majority and those of the opposition, with both having a political duty of loyal and constructive co-operation.
99. The functioning of parliament has unquestionable democratic
legitimacy if it complies with these principles. Both the majority
and the opposition must act on the basis of the same common and
responsible commitment to the public interest of citizens, who are
the legitimate source of democratic power. This commitment must
be paramount, overriding the stakes of any political confrontation,
although such confrontations are normal and indispensable in a democracy.
100. The circle of general principles as listed in the Checklist
is far from being exhaustive, and those principles can be specified
differently, depending on the political regime, the constitutional
culture and historical traditions. These principles are well inter-connected.
The regular change of political forces in power strengthens the
culture of self-restraint on the part of the majority and more constructive
attitude of the opposition towards the majority. By contrast, if
the majority abuses its dominant position in order to prevent the opposition
from taking the power, there is a danger of general radicalisation
of the opposition.
101. The Checklist is based on questions which permit to identify
weak points in the domestic regulations. Many of these questions
are open-ended, but each question is followed by a commentary which
explains general principles, mentions best (or bad) practices and
points at possible solutions. The structure of the Checklist allows
it to be supplemented and adjusted in the future, in the light of
the political and legal developments in the European and non-European
democracies.