Regulation of Politicians
Politicians worldwide ought to be regulated and be held accountable to varying degrees—externally to voters and to the courts (both criminal and civil) and internally to parliamentary privilege. A Westminster-type parliament has the power to discipline its members when they breach their code of conduct and so forth. The constitutions of many countries66 usually provide for the disqualification of members of parliament if they commit certain criminal offenses and/or they are an undischarged bankrupt or insolvent. However, such constitutional and other statutory grounds for disqualification “are blunt instruments for dealing with misconduct by members of Parliament” (Blackham and Williams 2013, 123). It turns out, however, that accountability is an ineffective way of regulating members of parliament because it has a number of weaknesses (Blackham and Williams 2013, 117—118). Regarding “ballot box” or electoral accountability, the average member of the public often does not possess sufficient knowledge about a politician’s behavior to be in a position to decide to not vote for him/her. Furthermore, voters have different ideas about what should constitute “misconduct” (p. 118), and finally, voters may well use elections to select better candidates rather than to punish wrongdoers (p. 118). Parliamentarians are, of course, also accountable to the courts, which are best suited to decide guilt or innocence or a civil suit. However, courts may take time to reach a decision, and a member’s term of office may expire before his/her case is decided. Finally, the threat of appearing in court may be enough for a member to resign from parliament, and court proceedings may be used to smear a politician for political reasons.
The effectiveness of parliamentary privilege as an accountability mechanism for misconduct by members of parliament is questionable because, on the one hand, it does ensure short-term accountability, but on the other hand, it does not address many types of misconduct. Furthermore, the effectiveness of parliamentary privilege can be undermined due to political factors (Blackham and Williams 2013, 130). Misconduct by politicians can erode democracy by sowing mistrust in the electorate. As Blackburn and Williams noted, scandals by members of parliament is not a new phenomenon; in fact, the availability of 24-hour news cycle means that misconduct by members of parliament is scrutinized more.
Blackham and Williams (2013, 116) argued that when Australian members of parliament were charged with misusing funds or there were allegations of “tawdry political jousts” in the media, there was damage to all politicians and a “public loss of faith in Parliament and its members,” thus “destroying public confidence in the integrity of Parliament.” Blackham and Williams (2013) also stated that there has been little discussion of the question of whether it is better to let parliament discipline its own members for misconduct or whether this role is better left to the courts and the electorate. Blackham and Williams (2013) and Krambia-Kapardis (2014) both reiterated the importance of electorate accountability because a member of parliament may lose his/her seat if there are allegations of misconduct. In addition to electorate accountability, members of parliament (in Australia for instance) are accountable to the courts for their behavior, being liable to both civil and criminal penalties. In other jurisdictions the members of parliament use the asylum provided to them under the constitution,67 which protects them for what they state while in office, as a cover for possible serious misconduct.
Blackham and Williams (2013) proposed a model that extends accountability by providing more robust mechanisms for managing misconduct by members of parliament independent of the judicial process. More specifically, they proposed the adoption of a code of conduct and the use of sanctions such as fines and suspension by parliament against those who breach their own integrity provisions (p. 156).
In order to protect parliament from interference by a very powerful executive, Parliament in various countries historically came to have the right to regulate its own affairs, that is, oversee the regulation of parliament (Blackham and Williams 2013, 123). This parliamentary sovereignty grants parliament the power to regulate its own affairs and to discipline members’ misconduct. Interestingly, however, the significant powers of the Australian Federal Parliament, as far as disciplining its members is concerned, have rarely been used. In fact, during the period 1901—2013 there was no admonish, no fine, no imprisonment, and only three suspensions and one expulsion (Blackham and Williams 2013, 129). Thus, self-regulation is not effective when it comes to parliamentarian misconduct.
Oliver (1997, 131) lists eight necessary preconditions for an effective system of parliamentary self-regulation; namely, a sincere commitment by members to uphold standards of behavior; public confidence in the system of self-regulation; a degree of external involvement; separation or independence from members whose interests may be affected; clear standards of conduct; appropriate punishments; timely adaptation to changing social expectations and standards; and finally, effective public accountability.
