Nature of the legislative mandate. The Constitutional establishes the Public Protector as one of the several independent institutions that are to strengthen and support constitutional democracy. These institutions, which have different but complementary mandates are established by Chapter 9 of the Constitution.
Nature of the legislative mandate – role of the representative :
Classification of opinions :
As to what is the proper function of a representative whom the people have chosen to act for them in matters of legislation, there is a wide difference of opinion. The Views which have been expressed by writers on the subject or have been acted upon in practice may be grouped under three heads.
First, the representative is regarded as the delegate, deputy, or agent of the particular constituency which elects him, charged primarily with procuring legislation for the advancement of the local interests of his constituency, obtaining appropriations of money for the construction of public works therein, and securing other favors which lie within the power of the legislature or government to bestow.
Second, he may be regarded as the representative of the whole state, elected to consult with other representatives and Charged primarily with the care and advancement of the general interests, and only secondarily with the promotion of the particular interests of his immediate constituency.
Third he may be regarded as the mouthpiece or spokesman of the political party which is in the majority in the constituency from which he is elected and as such is bound by the will of his party, whatever may be his own personal views in regard to the expediency or wisdom of particular legislative policies.When that will has been clearly made known to him by resolutions or instructions, he is morally obliged to conform to it by his acts and Votes.
This is the doctrine of what the French call the mandat imperatif, which reduces the representative to the role of a conduit pipe or telephone wire through which the views and commands of the party are communicated to the legislature. It is quite possible, of course, that the representative may combine the qualifications and perform the roles required and imposed by the first and third theories that is, he might act as the representative of his particular district and at the same time serve and obey his party in matters of national and local policy.
But he could hardly at the same time play the role prescribed by the second theory, that is, act primarily as the representative of the general interests, if there were a conflict, apparent or real, between them and the local interests of his constituency, for the reason that no agent can serve two principals when their instructions are in conflict.
The Early Conception :
As pointed out in a previous article, the idea of the role of representative in the early stages of the development of the representative regime was that the deputy was the special agent of the class or estate, nobility, clergy, commons, peasantry, or town population which chose him, that he was subject to its instructions, that he was immediately accountable to it, and that he could be recalled by it at anytime.
In short his role was more nearly analogous to that of a diplomatic agent than to that of a modern representative, who, according to the generally prevailing view, possesses the full power of legislation, freedom of deliberation and of voting, and is not subject to instruction or recall.
The Modern Conception :
The old idea of the restricted nature of the legislative mandate, and especially the conception that its holder was the agent of his constituency rather than representative of the nation as a whole, had largely disappeared in England before the seventeenth century, although it did not disappear in France until the Revolution, when the states general in their national assembly in 1789 declared themselves to be the representatives of the nation. The modern idea was embodied in constitutional law for the first time when it was expressly proclaimed in the French constitution of 179178 that the deputy should not be the representative of any particular circumscription (department) but of the entire nation, and that no instructions should be given him.
The same principle was expressed in the German imperial constitution of 1871 (Art. 29), in the French organic law of Nov. 30, 1875 (Sec. 13) in the Austrian electoral law of 1867, and in the Swiss constitution of 1874 (Art. 91), which declared that members of the legislature should-vote without instructions, Virtually all the new constitutions that have been put into effect in Europe since the World War proclaim the same principle. It is significant, however, that this view has not been specifically laid down in any of the American constitutions.
Views of Statesmen and Political Writers :
On the merits of the three views in respect to the nature of the legislative mandate mentioned above, opinions naturally differ, but there is little difference of opinion among statesmen and political writers.The view which regards the representative as being first of all the delegate of the particular district from Which he is chosen and especially of the party which chooses him, is admitted by nearly all writers to be a vicious one.
Such a view not only subordinates the nation or general interests to the assumed interests of particular localities, but it tends to narrow the horizon of the representative and thereby lower the level of character of the legislature, tends to deter men of large ability from serving in it, and accentuates the control of the political party over its representatives.
A member of parliament, said Lord-Brougham, represents the people of the whole community,e exercises his own judgment upon all measures, receives freely the communications of his constituents, and is not bound by their instructions, though liable to be dismissed by not being reelected in case the difference of opinion between him and them is irreconcilable and important.
The people’s power being transferred to the representative body for a limited time, the people are bound not to exercise their influence so as to control the conduct of their representatives, as a body, on the several measures that come before them.
The same view the office of the representative was expressed by Bluntschli. The modern representative, he declared, is a state representative, not the representative of any person, corporation, or group, and his duty is a state duty. He is not bound, Bluntschli added, by the instructions of his constituency, not compelled to answer to them for his conduct.
He is something more than a mere commissioner to register the mandates of his constituency and liable to be recalled in case he refuses to do so. On the contrary, he possesses full liberty of thought and action, and the right to interpret for himself the common need and the common consciousness without restraint upon his intellect or conscience.
Esmein defined a representative as one Who, Within the limits of his constitutional powers, has been chosen to act freely and independently in the name of the people. He must have full independence of judgment and action in order to fulfill his mission, for if his acts are determined in advance for him by legal rules or obligatory instructions, he is not a representative but a mere delegate or mandataire of the electors.
Not only, declared Esmein, has a constituency no right to recall a representative, but it cannot limit his powers by instructions or compel him to act in a certain manner upon pain of having his acts nullified. The mandat impemtif is not only contrary to the principle of representative government, but is no less contrary to the principle of national sovereignty.
Another French jurist, Carre de Malberg, who has discussed at great length the role of the representative, criticizes vigorously the doctrine of the mandat impemtif. The theory, he says, is based on the idea that there exists a contractual relation between the representative and the electors analogous to that which results from the notion of civil mandate in the private law of contract-that the representative exercises his power in virtue of a delegation or commission which has been given to him by the ~ electors as mandants an idea which originated with Rousseau but which is vitiated by a manifest contradiction.
The theory is impossible, he says. If the representative is merely an agent (mandataire), he necessarily represents only the electoral body which chooses him and not the nation entire, because there can be no contractual relation between them and those who have not by their votes conferred upon him a mandate.
Moreover, the notion of the mandat imperatif implies that the deputy has only such powers as the mandatory has conferred upon him. Consequently the electors must be admitted to have the right to limit his powers at will at the moment of election , in other words, lay down a program for him, trace the line of conduct which he must follow and impose upon him obligations and give him orders.
Edmund Burke expressed the conservative view of the office of the representation the View which is still defended by most writers, even though it does not represent the extreme current democratic Concepcion. When he said the representative owed his Constituency both industry and judgment, and when he sacrificed these to the opinion of the constituent, he betrayed rather than served him. The representative, he declared should be a pillar of state, not a weather-cock on the top of the edifice exalted for his levity and versatility and of no use but to indicate the shifting of every fashionable gale.
Should a Representative Be Bound by instructions :
Whether a member of the legislature should be bound by the instructions of his constituents, that is, whether his office should be restricted merely to ascertaining and registering their sentiments, somewhat like that of a delegate or an ambassador to a congress or whether he should himself judge for his constituents, what ought to be done and act according to his own convictions independently of instructions, are questions upon which men have differed ever since the principle of representation became an established fact Although these questions, as John Stuart Mill observed, belong to the domain of political ethics rather than to political science or constitutional law, they have a direct bearing on the subject here under consideration and may well receive attention.
In attempting to answer them we might well follow Francis Lieber’s suggestion84 that a distinction should be drawn between the position of the representative who is popularly elected and the representative who, like senators in some federal states, is chosen by legislative bodies or other political organizations, which, unlike an electoral body composed of the whole mass of citizens, has a tangible juridical existence and is therefore capable of declaring formally its will and of giving instructions. In the United States, senators were for a long time elected by the state legislatures and there was and still is a disposition in some minds to regard them somewhat as ambassadors accredited by the states to the national government. In these circumstances an argument might be advanced in favor of the right of the legislature to instruct them as to how they shall vote.
The Affirmative View :
With regard to the duty of the representative who is chosen directly by the people, it is widely asserted 10-day that, in order to be what the word implies, namely, the mouthpiece of those for whom he speaks, he ought simply to register their will rather than his own whenever it is known to him in unmistakable terms or he ought to resign and make way for some one who more truly represents their sentiments. Otherwise how can he be said to be a representative of the people and how can he speak for them as they themselves would speak if they could be in his place?
The Negative View :
But those who adopt this view ignore the practical difficulties in the way of its full realization. The will of the people cannot always be ascertained and made known to the representative, for there are rarely any organs for collecting their sentiments on the multifarious questions that are presented to the legislature for consideration.
It can hardly be assumed I that the opinion of the local party committee in his district-the only organized body capable of formulating instructions-is the Opinion of the electorate. Public opinion, indeed, can only be ascertained by the sifting process of a representative system. What is often taken for public opinion is in fact but the momentary impulse of the excited masses and net the calm judgment of the people
Where, however, the representative has pledged himself before the election to act in a certain manner, the question of his duty to obey instructions is somewhat simplified, for then a departure therefrom would be a breach of honor and of good faith such as no representative can afford to be guilty of. It is a grave question of public policy, however, whether a constituency should make it a condition of election that a candidate should adhere to certain Opinions laid down for him by themselves.
Lord Bryce, who raised the question as to whether democratic I theory really requires a representative to give a pledge which his own judgment condemns, pointed out that conditions which existed at the time of his election may change before the expiration of his term and the pledges which he made before the election he never would have made had be foreseen the change of conditions. Moreover, has he no right to profit from what he learns from debate in the legislature and from the other sources of information which were not available to him when he gave his pledge?
One may well hold that the representative should possess full independence of judgment and action, unfettered by instructions, without, however, taking the impossible position that the Opinions of the electors are to be lightly ignored, or that the representative is in no sense bound by the understandings under which he was elected.
Clearly, as Laski remarks, he is not entitled to get elected as a free trader and to vote at once for a protective tariff. The representative who endeavors faithfully to reflect the will of his constituency will not recklessly disregard their sentiments, but will, so far as is consistent with his best judgment and sense of duty to the nation, give effect to them. Even Burke admitted that it ought to be the happiness and glory of a representative to live in the strictest union, the clearest correspondence, and the most unreserved communication with his constituents and that their wishes ought to have great weight with him and their opinions high respect.
Burgess says, rightly, that the views of a constituency should always be taken into account as contributing to the make-up of the consciousness of the state, but that the will of a Constituency has no place in the modern system of legislative representation.
The essence of representation, as Lord Brougham once said, is that the power of the people should be parted with and given over for a limited period to the deputy chosen by them, and that he should perform that part in the government which, if it were not for this transfer of authority, would be performed by the people themselves.
But it is not representation if the constituents so far retain control over their representative as to act for them~ selves. They may communicate with him inform him of their wishes, opinions, and circumstances, pronounce their judgments upon his public conduct they may even call upon him to follow their instructions and warn him that if he disobeys they will no longer trust him or reelect him to represent them But he is to act not they.
The Representative Should Be Allowed Freedom of Judgment :
The representative under normal conditions will be a wiser person than the average of those whom he represents, he will possess the advantage of experience in statecraft, and probably superior knowledge and ability and his own judgment, therefore, ought to be regarded with respect by his constituents. The representative system is founded on the assumption that representatives will , be elected who are more familiar with public affairs and better qualified to look after them than is the average elector in these circumstances what the electors have to do, as Sidgwick well are marked, is to choose such men and not to teach them the business of Government.
He ought not to be obliged to conform his action to their opinions or to vote in a manner which his own judgment, aided by discussion and argument, fully condemns. It is seldom the case observes an able writer-on this subject, that the people are capable of judging wisely in matters of legislation they may express intelligent Opinions on the larger questions of public policy, but rarely on matters of detail. It follows that the electors will not do wisely if they insist on absolute Conformity to their opinions.
But, as Mill observed, democracy is not favorable to the reverential spirit. In modern democratic states the Opinion prevails among the masses that they are as well qualified to judge of the common needs as those whom they have chosen to speak for them. There is, in short, a tendency everywhere today to regard the office of representative in a very different light from that described above. His function, according to the current view, is not to interpret the common good as his conscience, his study, and his better judgment dictate, but to ascertain to the best of his ability what public Opinion demands and give effect to it, whether his conscience and judgment approve it or not.