Monday, December 18, 2017

Hybridisation of our Constitution

Part II

In my Sunday Express column of February 12, I took further note that my fellow Express colleague Dr Winford James argued that the report of the Constitution submitted to the Prime Minister was a dangerous doc­ument which should be discarded. I however chose to see it as an interesting wor­king document, around which the nation could engage in a fruitful conversation.

The report is not a finished document by any means, which is awaiting a draughtsman.

Far from it.

It is what it says it is—an attempt to advance the cause of constitutional reform in 2014 as the People’s Partnership had promised in its manifesto. In some ways, it largely repeats the exercise Prof John La Guerre and I did at the request of prime minister Patrick Manning. But there are necessarily some differences since Manning’s goal was a presidential republic. Ramadhar et al have a philosophical preference for a pluralistic alternative, which was for long the option favoured by half the elements of society who saw it as a way to escape the stranglehold of the PNM (People’s National Movement).

Some of the proposals provoke little or only moderate controversy. For example, I think there is broad agreement on the “two-term” limit, even though reference is made to the view of Sir Hugh Wooding that term limits may punish majorities unduly.

The right to recall MPs who were not representing their constituents adequately is popular among civil society elements as are fixed days for national elections.

There are, of course, technical and political difficulties in all of these items, but none that cannot easily be fixed. For example, flexibility is provided for in the provision that you can fix the dates as the British now do, but things may happen which make fixed dates unwise or impracticable. What one does is make the dates diffi­cult to alter unless there is a national disaster, an act of God or some other catastrophe. One way in which this is done (for example, recently, in Germany) is to bring the constitutional court into the picture, if there is one, or provide that a two-thirds majority of the Bun­destag is needed to fast-forward the election date to respond to a political crisis. The date can also be changed if a constitutional majority supports the change of date.

In terms of the recall, the committee provides, and I agree with it, that at least three years must elapse before any motion to recall an MP who is in not performing. One does not want to engender frivolity and fractionalism. Questions will also no doubt arise as to what constitutes non-performing. Will these recall elections become mini-referenda where elections will become contests, in which parties do battle rather than individual MPs? Who will have the right to petition? The committee suggests only persons who voted for the MP in the previous election would have the right to petition or vote.

This will of course impose heavy burdens on the EBC (Elec­tions and Boundaries Commission). The country may well have too many elections and become weary of the noise and invasion by the media. Financiers will become more ubiquitous and obtrusive, and the same may hold for gangs.

One assumes, too, the Prime Minister would not be subject to recall, except he/she is challenged constructively by a two-thirds vote of no-confidence. MPs who cross the floor or are expelled should also be subject to being recalled.

The provisions relating to the proposed Senate are also quite novel and may puzzle the politically inexperienced. Quite sensibly, in my view at least, the authors chose not to abolish the Senate altogether as some citizens like Mr Basdeo Panday prefer. The Independent senators are now a fixture in our system, even though they may have been rendered obsolete. These sena­tors constitute an innovation which has largely worked for our benefit.

If an institutional map of Parliament were drawn, we will see a Parliament consisting of three groups of individuals, viz those who are elected from a majority party list from whom the Prime Minister and the ministerial team would be drawn, the Opposition senators led by a mino­rity leader, and the Indepen­dents.

The authors assume legislation would be enacted in much the same way as occurs now, except the power to delay, exercised by the Senate, would be abolished since the Senate will now be an elected body. We are not told how many ministers there will be in the Cabinet.

A list suggested by the commission includes the Prime Minister, the deputy Prime Minister, The Minister of Finance, the Minister of Foreign Affairs, the Minister of National Security and the Attorney General. Presumably, others will be appoin­ted by the President, acting on the advice of the Prime Minister.

Other questions for which answers must be forthcoming will be whether MPs would be paid more or less than ministers and whether they will be full-time officials. Which House would be the superior house, the elected House of Representatives or the elected Senate, in which the Prime Minister and the ministers sit?

Will the time MPs spend in Parliament on parliamentary and scrutinising committees or attending to constituents occupy them fully?

How will they relate and share responsibilities with local government councillors? Much thought is needed here.

Two of the most controversial proposals are those which provide that ministers must be drawn from the Senate and not from the House of Representatives. The report provides that each elector will be given two ballots, one for a MP in a geographically-based constituency and a second for the parties contesting the election.

The senators who are made ministers would be those whose names would be on the party lists, which would be elected on the basis of proportional representation. The authors assume the fact that the ministers who are elected will give them more democratic legitimacy than if they were merely appointed by the Prime Minister. This is a novel and interesting way to use a second Chamber. We might have been told how the experiment tried following last year’s worked.

One cannot solve political problems with mathematical for­mulae. Other problems always arise. To limit the possibility that the election might be too democratic, in the sense that any party can join the dance, a threshold of 25 per cent has been established which such parties would have to hurdle if they are to share in the distribution of seats. This is, of course, a very high threshold, and on the face of it, it is anti-democratic, in that it constructively denies some citizens the right to a share in the seats if they prevail in the election. The 25 per cent threshold would need to be examined very closely. What so far has been our experience?

There is still much to do with this document, and one should not expect sweeping changes very soon.