Wednesday, January 17, 2018

A constitutional coup d’etat!

Michael Harris logo41

Mark Fraser

The Constitution (Amendment) Bill 2014, introduced by PM Kamla Persad-Bissessar last week, has very little to do with genuine constitutional reform and everything to do with the cynical manipulation of the people’s aspirations for meaningful political change. The Bill has three major proposals. The first is term limits for prime ministers. The second proposal makes provision for the recall of MPs, and the third proposal introduces the concept of run-off elections to ensure that only persons who obtain more than 50 per cent of the votes in a constituency are elected as MPs.

As I have argued before, the central constitutional problem which we face is the utter imbalance between the power reposed by our Constitution in the Executive and the absence of power reposed in the hands of the people. The real problem is not the power of the Executive per se, but the power of the Executive relative to that of the people. Any proposal therefore which purports to address the issue of Constitution reform must be evaluated in terms of the question as to how, and how much, does it redress that critical imbalance between the power of the Executive and the power of the people. From that perspective, it is clear that none of the proposals is going to alter the equation of power in any significant way.

How does limiting the terms in office of the prime minister increase the resources of power available to the citizens vis-a-vis the Executive? It simply does not. The prime minister is an individual. The Executive is an institution. And it really matters not how long the tenure of any individual in the executive role may be if the power of the Executive remains unchanged and unlimited. Equally as ineffective is the second proposal in the Bill for the recall of MPs. Now there is no doubt that, on the surface, such a proposal does appear to give to the people a source of power over their MP.

But a little reflection would show that such power will always be very limited in its impact. Consider that if the process of recall is too easy then the prospect of a government being brought to a standstill because it is busy fighting off challenges to its MPs is not farfetched. Such a situation would obviously seriously affect the capacity to function of any governing party and indeed of any opposition party. The right of recall is always greatly circumscribed by stringent conditions. That is certainly the case with the proposal in this Bill. In the first place, according to the proposal laid in Parliament, the right to recall only exists for a narrow 12-month window of opportunity. For all the rest of the time you are stuck with your representative no matter how rotten he/she may be.

Moreover during that narrow recall window the petition to recall has to be supported by two-thirds of all the registered voters in that constituency. So clearly this is a “right” that has been deliberately designed not to be successfully exercised. It cannot be denied, however, that both of these proposals have come to enjoy a significant degree of support because most people have been led to believe that they promise more than they can really deliver.

What the PM and her Government is seeking to do is to use the popularity of those two proposals as cover under which to sneak in the third proposal which has nothing to do with Constitution reform, but seeks to give the present Government, and in particular the UNC, a naked political advantage. As has been already pointed out by several commentators, what the proposal for run-off elections seek to do is to work against the successful entry of any third party and thereby to entrench and intensify the racial polarisation in our elections and our politics; and, in such a situation, give to the UNC a built-in electoral advantage based on what they perceive to be their ethnic demographic superiority.

But the extent of the cynical manipulation at play here is not confined to using the legitimate aspirations of the population as cover for their plot. The fact is that this proposal has never been discussed by the public and, as we now know, forms part of Addendum to theConstitution Reform Commission (CRC) Report which was never part of the public consultation, and “had not been previously disclosed to the public”. So that this run-off proposal, which threatens, as Martin Daly has argued, to undermine the whole fabric and structure of our Constitution, after having been discussed for weeks in secret government caucuses, is now going to be rushed through the Parliament in one week and passed by simple majority. That, my friends, is the anatomy of a constitutional coup d’état.