Our constitution

Political democracy in our opinion represents much more than election by the people of those charged with governing their affairs. Nonetheless, the principle of elective governance is fundamental to democratic practice. Without this, there is no democracy.

Democratic Governance

Under our Constitution governance is achieved by the making of laws; by the formulation of policy consistent with laws made; by oversight of legislation; and by the administration of policy and legislation. Further, the institutions and organs of State charged with these tasks are the Legislature, that is to say, Parliament; the Executive comprising the Office of the President and the Cabinet of Ministers led by the Office of the Prime Minister; the Leader of the Opposition, invested with power to appoint four Senators to the House and, in limited situations, to be consulted by the Prime Minister and to nominate persons to certain Commissions; the Judicature, that is to say, the Courts presided over by the Judiciary; and the Public Service headed by high-ranking officials.

The elective principle is manifested in our system of governance by the presence in Parliament of twenty-one (21) persons duly elected by the people for terms of not more than five (5) years at a time. But, needless to say, the democratic force of this expression of the popular will is severely compromised by three significant defects in the Constitution. Firstly, the Constitution provides for nine (9) nominated Senators to sit side by side with representatives of the people and, except in a few situations, to have equal say with their elected counterparts in the process of law-making. Secondly, our Constitution assumes, quite wrongly, that elected members of the House would be moved to institute regular consultation with their constituents so as to keep abreast of their real, as opposed to perceived, needs and, accordingly, to determine which measures, policies and programmes might be in the best interests of constituents. This assumption when made was, as it still is, flawed. The order of the day was reflected years earlier in a contribution offered in Parliament by the island's Chief Minister. He had put it this way: "...When the people by an overwhelming majority have placed their confidence in a certain section of the population to govern their affairs, these people must be qualified during the period for which they were elected to plan for the benefit of the country, and it is left for any government to know the feeling of the people whom they serve, to know whether what they are doing will be accepted by the people". In practice, consultation of constituents by elected representatives, if at all, remains, as it was then, the exception rather than the rule.

A third omission standing in the way of the democratic governance of our country is that the Constitution makes no provision for the "right of recall", that is to say, the freedom of constituents to dismiss chosen, but delinquent, representatives at any time during the course of their five-year tenure. It is little wonder that, in memory of the average amount of time it takes for an elector to cast a ballot, the election process has come to be referred to as "five minute democracy".

No other institution or organ of or country's governance has a popular mandate. The will of the people is not expressed in the choice of Head of State. Rather, the President is "elected" into office either by mutual agreement of two persons, namely, the Prime Minister and the Leader of the Opposition, or by simple majority vote of members of Parliament (Section 19). Further, neither the Prime Minister nor the Cabinet of Ministers is elected by the people. The former is appointed by the President [Section 59(2)], while a Cabinet of Ministers is chosen by the Prime Minister [Section 59(4)]. The same is true of the Leader of the Opposition; he or she is appointed by the President (Section 66). Further, as is well-known, Public Servants, even the most high-ranking, do not have a mandate from the people. They are appointed by the President following selection by various Commissions. Neither do members of the Judiciary have such a mandate. Whether at the level of Chief Justice, Justices of the Court of Appeal, Puisne Judges and Masters or at the lower level of Magistrate, Registrar of the High Court and Deputy Registrar, they, too, are appointed.

The intention of the founding fathers of our nation may well have been, that the Executive would be collectively responsible to Parliament. But, quite apart from nebulously stating so at Section 60(3), the Constitution signally fails to provide any mechanism at all by which such collective responsibility might be achieved. The plain truth, as earlier discussed, is that it makes ample provision for the diametrical opposite, namely, that the Executive would dominate Parliament.

One-Man Rule?

More correctly, it is the Prime Minister as individual, not the Cabinet as collective that from the standpoint of our Constitution dominates the Legislature. In fact, the power and authority of the Prime Minister goes beyond this. It is all-pervasive. The Constitution invests the Prime Minister with power, directly and indirectly, to effectively control not only the Legislature but, as well, the Head of State, the Cabinet of Ministers and the institutions of Public Administration, including the Security Forces. And the Prime Minister is equipped with power to greatly influence the functioning of the Judiciary.

Summarily put, these powers include as follows:

The Office of the President

(1)To decide, jointly with the Leader of the Opposition [Section 19(2)] or, with the support of majority Party elected members [Section 19(4)], who becomes the nation's President.

(2)To advise, in other words, instruct the President to carry out the wishes of the Prime Minister, except, in relation to functions which the President is empowered to carry out according to his or her "own deliberate judgement" [Section 63(1)].

(3)By virtue of control over the selection of the President, to indirectly influence the President's "own deliberate judgement", such as in the critically important matters of appointment of Chairman of the Electoral Commission [Section 56(3)(a)] and the appointment and removal of the Chief Elections Officer (Section 87).

Ministers of Government

(4)At his or her discretion, to create Ministries (Section 59(3) and departments of Government (Section 61), which the Prime Minister considers necessary to conduct the business of governance.

(5)To advise the President to appoint this or that parliamentarian to be a Minister of Government who, together with the Prime Minister, shall constitute a Cabinet of Ministers [Section 59(4); Section 60(1)].

(6)To advise the President to appoint chosen members of the House as Parliamentary Secretaries "to assist Ministers in the performance of their duties" [Section 67(1)].

(7)At any time and for any reason at all, to call upon a Minister of Government or a Parliamentary Secretary to tender his or her resignation.

(8)To advise the President at any time, without the concurrence of Cabinet, to dismiss a Minister of Government [Section 59(9)(a)] or a Parliamentary Secretary [Section 67(2)].

(9)To personally preside in Cabinet, determine when Cabinet meets and ultimately to set the agenda for meetings of Cabinet.

(Dr. William E. Riviere is an Attorney-at-Law)

Copyright © William Para Riviere, October 2014