St. Lucians Strong On Separation of Powers

THE Constitutional reform Commission has said that in its deliberations there were persistent calls by St Lucians for a reform of the system of government in St Lucia to separate the powers of the executive and the legislature.

As a result it has made several recommendations for a change in the present system. These are contained in Chapter Five of the report entitled “Reforming our parliament”. The following is the first part of that chapter:

CHAPTER FIVE
REFORMING OUR PARLIAMENT
Separation of Powers

A basic architectural premise of all modern democracies is that the main constitutional mechanism for assuring good governance is democratic accountability primarily through elections. Indeed in the process of drafting one of the first modern democratic constitutions (USA), founding father James Madison argued that “dependence on the people is, no doubt, the primary control on the Government.” It is anticipated that when these primary controls work well they will produce good Government through the selection of rulers who will govern for the common benefit of the citizenry. In so doing it is expected that the governing elite would be primarily motivated by patriotism and justice and that this would prevail over all other cosiderations.

Another architectural assumption of modern democratic constitutions is that the primary system may fail to produce such a body of citizens resulting instead in the selection of a group of individuals primarily motivated by local prejudice, narrow and sectoral interest or worst by sinister designs who may ultimately betray the interests of the people on whom they are dependent. Thus to guard against such a possibility, constitutional safeguards have been created in order to limit the capacity of the bad or self interested rulers to do serious harm to the public good. These fail safe constitutional systems of accountability are normally found in the separation of powers, federalism, the protection of specific individual liberties in an entrenched Bill of Rights, a system of checks and balances and an independent judiciary. Indeed as John Locke wisely advocated in the Social Contract, to simultaneously check and prevent the abuse of power, power must be able to check power, which he identified as executive, legislative and judicial. If one individual holds all powers, that is the power to make the laws (legislative), the power to enforce the laws (executive) and the power to judge violations, then the life of the citizen would be imperilled. This basic philosophical idea has also found expression in Baron de Montesquieu’s Spirit of the Laws where he argued that power should be enabled to check power so as to prevent tyranny. For:

“When legislative power is united with executive power in a single person or in a single body … there is no liberty, because one can fear that the same monarch or senate that makes tyrannical laws will execute them tyrannically

Nor is there liberty if the power of judging is not separate from legislative power and from executive power. If it were joined to legislative power, the power of life and liberty of the citizens would be arbitrary, for the judge would be the legislator. If it were joined to executive power, the judge would have the force of an oppressor.

All would be lost if the same man or the same body of principal men, either of nobles, or of the people, exercised these three powers; that of making the laws, that of executing public resolutions, and that of judging the crimes or the disputes of individuals.” In like vein James Madison in the Federalists papers 47 contended that:

“The accumulation of all powers, that is, legislative, executive and judiciary in the same hands, whether of one, a few, or many and whether hereditary, self appointed, or executive, may justly be pronounced the very definition of tyranny.”

The central idea therefore is that good governance can only be guaranteed in the context of the separation of power and backed by a system of adequate checks and balances. Separation of powers can therefore only work effectively in an environment where the political elite in a system of governance are given adequate powers, to check the potential for the accumulation of power in one branch of Government. Such an accumulation is viewed as potentially dangerous. In effect, this ability to check the other power would enable the system to not only resist and force a retreat but would ultimately safeguard the integrity of the system.

In designing the American political system, the founding fathers were less concerned with the efficiency of the institutional structures and deliberately did not seek to prevent conflict from paralysing the smooth operation of the system. Consequently, the doctrines of the separation of powers and checks and balances that were accepted by the framers of the constitution and which undergird the political model were not designed to promote efficiency but rather to prevent the exercise of tyrannical power.

The principles of the separation of powers and checks and balances have found expression under the American constitution more so than any other modern democracy. In stark contrast to this ability to constitutionally restrain and resist the amassing of power in one branch of Government, the Westminster parliamentary form of Government while paying lip service to the constitutional notion of the separation of power, is in fact defined more by the fusion of power than by the separation of powers. Consequently, lacking the formal separation of executive and legislative functions, the Westminster system and its many parliamentary variations around the world tend to depend on a system of elaborate enumerations of protected individual liberties in an entrenched Bill of Rights and by a strong or relatively strong independent judiciary. It is anticipated that these two architectural pillars would safeguard these rights against the possibility of intrusion and at worst hijacking, by overzealous politicians. Parliamentary Government is therefore not as unfettered as a cursory glance at the main institutional pillars would suggest. Indeed parliamentary regimes are constitutionally, politically and legally constrained as they are subject to judicial review. Saint Lucia is no exception to this model.

Throughout our consultations with the citizenry of Saint Lucia, there were persistent strong calls for the reform of the current system that enables the political executive to completely dominate the legislative branch of Government. Submission after submission urged the separation of the Executive from the Legislature. Specifically, a call was made for the Constitution to make provisions for the complete separation at the level of personnel. In a slight twist to the usual recommendation that a complete separation of power be institutionalised, many Saint Lucians urged the Commission, to consider not only the separation of personnel and functions, but to create a system that would prevent the constituency representatives from exercising both legislative and executive functions.

The Commission agreed that small island states like Saint Lucia have suffered from the total domination of the Legislature by the Executive which can therefore lead to ‘runaway” Executives. Nonetheless it considered that the current model was premised on the need for efficiency and that whatever changes made should have to reconcile the demands of the people for a clear demarcation of personnel and functions, with the need for efficiency of Government business. Therefore, the desire of the Commission to engage in a clear demarcation of the powers of the Executive and the Legislature, as a means of enforcing a stricter separation of powers while attempting to maintain the main architectural design of the model that facilitated efficiency led to the engineering of a mixed model, with a different kind of executive branch of Government, than that which currently prevails.

In the view of the Commission, the only member of the Executive branch who will belong to both the Legislature and the Executive will be the Prime Minister. To this end, he/she will be appointed on the basis of his ability to command the support of a majority of M.P.s elected to the House of

Assembly and he/she will appoint Ministers who may emerge from Parliament but who must subsequently resign their position in the Parliament.. This means that the Prime Minister is accountable to Parliament and can be removed by a motion of no confidence there, but his Ministers will be vicariously accountable through a summons that will be issued to them by parliamentary committees and the presiding officers of both Houses to appear there as and when their presence is desired or required.

In order to satisfy the demands of the citizenry for change and for a clear demarcation between the

legislative and executive branches of Government without encountering the problems associated with that architecture, the Commission considered the novel experimentation of the French Fifth Republic of 1958 which required that any member of the legislature who was selected to the Cabinet of Ministers must vacate his/her legislative seat and be replaced by a substitute.

At face value, a bye-election seemed a reasonable device to use to effect a replacement. Moreover, it would be more easily accepted by the populace. However, the Commission was also motivated by a desire to ensure that the balance of power in the Legislative branch would not be unduly impeded should the selection of an MP to the Cabinet require a substitute. The Commission was certainly aware that it was not uncommon for some seats to be won by small margins. Consequently, it was politically possible that a bye-election could change the profile of the House of Assembly, with the attendant consequence of divided government.

In our view this would be untenable and dangerous. Thus the appointment of any Minister from the House of Assembly will require a substitute M.P. to replace the M.P. for the constituency that the Minister previously represented. In order to effect this, political parties should be required under the new constitutional arrangement to name running mates for all constituencies that are being contested in general elections or bye elections and independent candidates should be required to name an alternate if they contest an election.

If at a future date there is the desire to appoint one of the Members of Parliament as a Minister, then the running mate can be sworn into office as the M.P. for that constituency. However there was a strong dissenting view which advocated that the replacement of the Minister can be effected through the agency of a bye-election, which is already part and parcel of the political culture of the country.

Further, it was felt that it may be difficult for Saint Lucians to accept the replacement of their elected constituency representative by a substitute. Whatever the method used however, the objective of the reform is clear. Whether through the agency of a bye election or a substitute, the net effect would be to remove the fusion and coincidence that currently obtains under our present constitutional design without sacrificing the efficiency of the model.

In assessing the current method of selection to the Cabinet, Commissioners noted that the provisions of the Constitution permit the Prime Minister to select defeated candidates for appointment to the Senate and they were also frequently appointed to the Cabinet of Ministers. The majority of Commissioners accepted the status quo on the grounds that Saint Lucia like other resource starved countries, suffers from a critical mass problem. Consequently the majority of Commissioners opined that the retention of this constitutional and political practice, will allow Prime Ministers to appoint Ministers from among defeated candidates as well as persons who did not contest elections and are available for service. There was a strong minority view against this recommendation, on the grounds that one of the most frequent submissions received from the public was that this should not occur. The minority felt that the wishes of Saint Lucians should be respected. The majority also felt that rejection at the polls did not mean the public disapproved of possible appointment as a Minister, especially as Saint Lucians at home and abroad thought that Ministers of Government should be separated from the legislative branch of Government. In the majority’s view therefore, the material basis for this recommendation remains.

In any event the Commission felt that, given the proposed reform of the political model, the Legislative branch of Government would be adequate to give the right to approve/ratify Prime Ministerial appointments to the Cabinet. This would be sufficient to guard against abuse.

Under the proposed system the House of Assembly may also pass motions of no confidence in the Ministers. Any motion that is successful can be reviewed by the Prime Minister for him/her to make a determination as to whether to dismiss that Minister from the Government. That will be a political judgment call for the Prime Minister at the bar of public opinion.

In establishing a Government, the Prime Minister must ensure that apart from himself/herself that the following other Ministers are included in the Cabinet, namely the Attorney General, the Minister of National Security, the Minister of Foreign Affairs, and the Minister of Finance. These portfolios are considered essential to the operation of a Government at minimum.

In respect of the Attorney General, it was felt that the existing system of having a political AttorneyGeneral should continue. However many Commissioners felt that the qualifications of the Attorney General deserved special attention. For that reason, a group within the Commission felt that the Attorney General should have the same qualifications of a High Court Judge. While the Commission recognised that this would significantly reduce the pool of persons from whom the Prime Minister can chose, the Commission felt that this recommendation was a way to address the numerous concerns from the public about the competence of persons occupying the position.

The recommended hybrid model, while not fully embracing the American presidential political form, recognises the need to engage in some level of separation of the important functions and personnel of Government. We note that the presidential form is seductive with its fixed date of elections, its functional and personnel spread, however we can agree with Walter Bagehot in The English Constitution: The Cabinet, that:

“The American Government calls itself a Government of the supreme people; but at a quick crisis, the time when a sovereign power is most needed, you cannot find the supreme people. You have got a congress elected for one fixed period…which cannot be accelerated or retarded – you have a president chosen for a fixed period, and immovable during that period: all of the arrangements are for stated times. There is no elastic element, everything is rigid, specified, dated. Come what may, you can quicken nothing and retard nothing. You have bespoken your Government in advance, and whether it suits you or not, whether it works well or works ill, whether it is what you want or not, by law you must keep it ….

Even in quiet times, Government by a president is … inferior to Government by a cabinet; but the difficulty of quiet times is nothing as compared with the difficulty of unquiet times. The comparative deficiencies of the regular, common operation of a presidential Government are far less than the comparative deficiencies in time of sudden trouble – the want of elasticity, the impossibility of a dictatorship, the total absence of a revolutionary reserve.”

Recommendations.

With respect to the separation of powers, the Commission recommends the following: (64) There should be the creation of a mixed model of Government with a different kind of Executive branch, to that which currently prevails. Under that new system the only member of the Executive branch who will belong to both the Legislature and the Executive will be the Prime Minister. However, the Deputy Prime Minister will serve as a member of Cabinet without ministerial authority except when deputising for the Prime Minister. To this end, he/she will be appointed on the basis of his ability to command the support of a majority of elected Members of Parliament and he/she will appoint Ministers. If a minister is selected from Parliament, he/she must subsequently resign as a Member of Parliament, to take up the post of Minister.

(65) The Prime Minister will remain accountable to Parliament and can be removed by a motion of no confidence there, but his Ministers will be vicariously accountable through a summons that will be issued to them by parliamentary committees and the presiding officers of both Houses to appear there as and when their presence is desired or required.

(66) The appointment of any Minister from the House of Assembly will require a substitute Member of Parliament to replace the Member of Parliament for the constituency that the Minister previously represented.

(67) In order to effect this, one option is political parties can be required under the new constitutional arrangement to name running mates for all constituencies that are being contested in general elections or bye elections and independent candidates will berequired to name a substitute if they contest an election.

(68) If at a future date there is the desire to appoint one of the M.P’s as a Minister, then the running mate will be sworn into office as the Member of Parliament for that constituency.

(69) Alternatively, a bye-election can be held to fill the vacancy created by the appointment of an elected member of Parliament to the Executive branch.

(70) The retention of the constitutional and political practice of appointing anyone including
defeated electoral candidates to the Cabinet. This will allow Prime Ministers the same
opportunities to ensure that their current availability of ministerial talent will remain intact.

(71) The Legislative branch of Government should be given the right to approve/ratify Prime
Ministerial appointments to the Cabinet.

(72) In establishing a Government, the Prime Minister must ensure that apart from
himself/herself, every Cabinet at a minimum consist of the following: the Attorney General,
the Minister of National Security, the Minister of Foreign Affairs, and the Minister of
Finance.