Friday, December 15, 2017

Re-engineering our Constitution

 FOLLOWING is the second part of the text of the address of Senate President Timothy Hamel-Smith to the Port of Spain Rotary Club on February 18. Part 1 appeared yesterday.

HOW can we shape our Constitution to both enhance the performance of the executive while gaining a better separation of powers?

The current Constitution requires ministers be chosen from among parliamentarians. You may be surprised to learn a change to this provision can be made by the vote of a simple majority of members of the House of Representatives and the Senate.

I recommend political parties be required to submit a list of names to the Elections and Boundaries Commission (EBC) prior to a general election from whom ministers are to be selected. This provision can stand on its own or can be combined with my recommendation as to the structure of a single House of Parliament.

With such an amendment, we will get the opportunity to introduce the best persons willing to make themselves available to serve the nation in the capacity of ministers. This approach somewhat mirrors the presidential system in Washington, where the president can choose his cabinet members from the most competent individuals willing to serve, subject only to approval by the senate.

In this case, the party-list system would allow the electorate to consider who may potentially become members of the executive and assess their competence for high office. In our Constitution at present, the identity of senators are unknown to the electorate even though up to 14 of them may form part of the executive, so this arrangement will be far more transparent than at present.

Assuming in the short term a senate is retained, the prime minister can select senators and ministers from persons on the party list. To the extent that ministers are not senators as well, this would mean that (i) more individuals would be available to serve on parliamentary committees, thus strengthening the oversight functions; (ii) such ministers would be in a position to focus exclusively on their ministries and Cabinet functions and not be distracted by legislative duties, constituency representation and parliamentary committee work; and (iii) we would enhance the separation of powers between the executive and the legislature. A win-win situation for all and improved performance which will ultimately be for the benefit of the citizen.

By a stroke of the pen we would have greatly enhanced both the policymaking arm of government and the oversight function through the parliamentary committee system.

So let’s move on from selecting the executive responsible for policymaking to the deli­very of services and implementation of policy.

In our Constitution, we set up the service commissions to insulate the public service from politicians. But most people would agree we are failing to deliver the level of service which citizens should be entitled to receive from the State. We have created a dysfunctional system which is overburdened by red tape and is not geared for performance and delivery of outcomes and where no one is accountable for failure. Any attempt by politicians to make changes to the system is seen as unacceptable interference.

So what do we do about it? Set up another commission to make a report and recommendations that will simply gather dust? 

I believe one of the things we got right in our Constitution is the introduction of independent senators. In a polarised plural society and adversarial political system such as ours, our independent senators represent a sober objective voice of reason that is perhaps the most important check and balance in our governance arrangements.

For this reason I believe their role should be expanded. I would recommend our independent senators serve as chairpersons of all our parliamentary committees so as to remove some of the partisan edge to their opera­tions and ensure we get value for money in relation to the services offered to the public by the State sector.

Beyond this role, the independent senators should serve on a council of presidential advisers to develop policy in consultation with the president for the ope­rations of the service commissions and ope­rations of State enterprises so that the public services they undertake can be performed in a first-class manner, embodying modern management practices for efficient and effective delivery of services while retaining necessary levels of transparency and accountability.

The introduction of the presidential advisers council developing policy in consultation with the president would ensure the public service will be insulated from politicians. The president will then be entitled to require the government to take the legislative and other measures necessary to implement the policy recommended by the president.

Given the enhanced role recommended for the president with such executive functions it would be appropriate to introduce a system for election of the president by the electorate. The president should be required to have competencies which make him suitable for undertaking this expanded role, and he should not be a member of a political party for at least three to five years prior to his candidacy. The president who currently appoints the chairpersons for the service commissions would now be accountable for their performance, and should make such appointments in consultation with the council of presidential advisers and not the prime minister and leader of the opposition, as is now required under the Constitution.

I believe such arrangements have the potential for transforming the delivery of public services and, in turn, the development of the nation so that all can prosper through improved implementation arrangements.

• Continues tomorrow