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GT22D - CONSTITUTIONAL REFORM

CONSTITUTIONAL REFORM

Topic Six

Lectures 17-19

Robert Buddan

March 21-28

Introduction

The Anglo-Caribbean adopted its present constitutions between 1962 and 1983. It was during this period that these countries achieved independence. Independence constitutions emerged in Jamaica and Trinidad in 1962, Barbados and Guyana in 1966 and the rest between 1973 and 1983. Except for minor amendments and apart from Guyana (1980) and Trinidad (1976), no Anglo-Caribbean country has undergone comprehensive reform of its constitution. Almost all of these constitutions still reflect the legacy of the colonial heritage and the Westminster political system despite the many criticisms of its practice in and suitability for the Caribbean.

In the present era, constitutional reform has come on the agenda as a necessary part of constitutional modernisation, constitutional democratization and good governance. This applies too to Guyana because of certain undemocratic aspects of the 1970 and 1980 constitutions.

The constitution is the supreme law of the state. If the character of the state and the nature of politics, and therefore democracy and governance, are to change then the constitution must be changed.

Why Reform Caribbean Constitutions?

The argument for constitutional reform rests on three grounds: the requirements of constitutional modernisation; the need to deepen constitutional democratization; the lessons of governance gained from political experience.

Constitutional Modernisation.

Authority of the constitution.

Independent Caribbean constitutions were created as Acts of the British Parliament called Orders in Council. Caribbean constitutions therefore appear as "gifts" of Britain; as products of British legislation. It is inconsistent with the true meaning of independence and nationalism for the highest laws of a country to be an Act of a foreign country rather than an act of its own people and an Act of its own parliament.

While a Caribbean constitution is supreme it is not sovereign because the sovereign power of its origin is the British parliament and the sovereign head of the constitution is the British monarch. The British parliament is the legal authority of Caribbean constitutions. This violates the principle of government by the people because the constitution was not established by the people. In other words, a Caribbean constitution must have its authority in the people so that its preamble can begin, "We the People of (Jamaica etc.) do adopt this constitution..." as is the case say with the US and Indian constitutions. Instead, the Jamaican constitution says, "Her Majesty... is pleased...to [grant]...the Jamaica (Constitution) Order in Council."

It is now believed that a new constitution should be completely enacted by local parliaments so that it no longer bears the foreign label of an Order in Council from abroad.

Foreign allegiance.

Caribbean constitution’s also reflect the tradition of subservience to a foreign power and a foreign culture. Caribbean prime ministers, cabinet ministers and governor-general’s must take an oath of appointment with words to the effect, "I...,do swear that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth, Her Heirs and Successors..."

Furthermore, every parliamentary Bill, if it is to be valid, must state, "Be it enacted by the Queen’s Most Excellent Majesty, by and with the advice and consent of the Senate and House of Representatives...as follows."

Technical language.

Caribbean constitutions also reflect the British legal tradition and read more according to the highly technical language of constitutional law and lawyers than a set of rights and duties that govern the state and which citizens can and must understand. The ordinary Caribbean citizen could not possibly understand his constitution, nor can the university graduate get very far with it. Its language must therefore be simplified in the form of ordinary and understandable language.

Constitutional modernisation therefore means that Caribbean constitutions must be reformed to break their legacies with the archaic past traditions of a foreign and colonial power and instead to reflect the national will of a people, oaths of allegiance to the nation, and be understandable in the ordinary language of the citizen.

It is agreed among constitutional reformers, including political parties, that constitutional modernisation along these lines is necessary and that constitutional reform will make the above changes.

Constitutional Democratization.

Hamid Ghany argues that the Caribbean political model is more democratic than that of Britain because in the former the constitution is supreme while in the latter parliament is supreme and can make or change any law that it wants to. Nonetheless, Caribbean constitutional models are in need of reforms that deepen democracy to reflect:

- new concepts and standards of human rights that did not exist or were not sufficiently appreciated at the time of independence;

- new concepts of democracy to do with the rebalancing of the powers of the structure of government away from executive centralization;

  1. Fundamental Rights and Freedoms:

    On the matter of fundamental rights and freedoms Caribbean constitutions have limited Bills of Rights biased towards owners of property. Only the right to own property is unconditionally guaranteed. This was the result of powerful business lobbies on the drafting committees of the constitutions. Other rights - assembly, free speech, freedom of conscience - though patterned on the UN Declaration of Human Rights, are conditional, that is, they are allowed only insofar as they do not undermine "public order", "good government", or the "public interest".

    What this means in effect, is that these fundamental rights and freedoms can be suspended on grounds that governments deem to undermine public order, etc. Property rights therefore have stronger protection than human rights.

    This comes out of two realities: the consensus among the colonial authorities, political elites and business classes that Anglo-Caribbean societies would be capitalist societies; and that the colonial state and the new elites of independence had a deep fear of public rebellion and would only grant rights on condition that the state retained the power to withdraw those rights. As a result, the independence constitutions could not revoke any law, such as those conditioning fundamental rights, that were in force by the colonial power before independence. This is one of the consequences of a constitution which is an Order in Council rather than being a constitution which rests on the authority of the people.

  2. Rights of citizenship.

    Under some constitutions, government has the power to make laws for a citizen to give up citizenship and to deprive citizens of their citizenship.

    In addition, men and women are treated differently on citizenship rights.

    - While the wife of a Jamaican citizen can obtain citizenship by simple registration, the husband of a Jamaican woman cannot;

    - The child of a female citizen born outside of Jamaica does not automatically become a Jamaican citizen;

    - The child of a male diplomat serving in Jamaica becomes a citizen if the child is born during the term of service but not if the child’s mother is a diplomat serving in Jamaica.

    These principles mean that Jamaican men are given more favourable treatment for their wives and children to obtain citizenship compared to Jamaican women and this is another feature that goes back to the colonial period. It reflects unequal treatment of men and women.

Political Experience.

In 1974, the PNP government declared that it was time to review and reform the Jamaican constitution in light of 12 years of experience since independence. That necessity is more urgent today after a longer period of time by which lessons of the Westminster model have been learnt throughout the Caribbean. The political experience here refers especially to the way that power is balanced between the structures of government; the way government is managed; and the role and functions of representatives.

These are issues that now concern methods of governance. The experience of democratic governance based on the Westminster model has led to various concerns. Some of the main areas of concern are:

- an executive that is too strong and conversely, a legislature that is too weak;

- a "winner-take-all" distribution of power that over-rewards winning parties with authority and political opportunities and under-rewards losing parties;

- an adversarial system of electoral competition where ‘winning is everything’ and where society’s resources are divided between the “ins” and “outs” instead of a consensual system;

- an electoral system that gives disproportionate parliamentary power to winning parties and little or no seats to losing parties;

- a high turnover of civil servants with parties going in and out of power and this disrupts continuity, professionalism and neutrality.

Constitutional reform: the options

Put another way, the pure choices facing constitutional reformers are:

parliamentary systems vs presidential systems
first-past- the-post vs proportional representational electoral systems
single-party governments vs coalition governments
variable election dates vs fixed election dates
fusion of powers vs separation of executive and legislative powers
prime minister chosenvs president chosen in from majority in direct national elections legislatures elected by constituency districts
civil service neutrality vscivil service turn-over impartiality, anonymity with political administration.

It is of course possible to combine some features of both pure types. The important issue is, what is it that one wants a political system to do? It is from this that one designs an appropriate set of structures. But another issue is important, namely, what is possible or likely given the societal conditions of political culture, level and goals of economic development, size and financial resources?

Structures and functions.

The first point is that structures must match functions. The design of a political system therefore must conceive of structures that most effectively fulfill the purposes of the design. The question is often asked: which is better, parliamentary systems/structures or presidential systems/structures? It then needs to be asked, better for what functions? Does one want structures that provide for more effective government (functioning) or more democratic (functioning)?

Presidential systems based on separation of powers (executive, legislature and judiciary)are more democratic because there is greater and more equal balance between these seats of power but such systems are prone to produce divided and therefore less effective government compared to parliamentary systems.

A study by Stepan and Skatch found that parliamentary democracies have a rate of survival three times higher than presidential democracies and that the latter were twice as likely to experience military coups. This is moreso in countries with high socio-cultural divisions based on class, race and ideology, and proportional representation which produces multiple conflicting parties in the legislature.

This explains the prevalence of military governments in Latin America and the Latin Caribbean where presidential systems predominate compared to the Anglo-Caribbean. However, we often use the US presidential system as the case to copy and this is misleading because the US model emerged out of its own unique circumstances.

The reasons for less effective government in presidential systems is that separation of powers often place each branch of government under the control of opposing parties which, when they differ, causes “gridlock” or immobilism in government. This cannot be immediately resolved through new elections if election dates are fixed. Often, the military intervenes to resolve the crisis.

In parliamentary governments, the very bases on which they are criticised, are the same that constitute their strengths. They provide more effective government because ruling parties win disproportionate and therefore safe governing majorities that produce single party governments that is united with its majority in the legislature and any crisis can be immediately resolved by calling new elections. Parliamentary systems produce strong executives and strong governments that are particularly important in developing countries with deep divisions and urgent development problems.

Political systems and contexts.

Michael Manley had reservations about the suitability of the American model for Jamaica. He not only felt that the US constitution was a product of its own historical circumstances but that all constitutions should reflect their own history, culture and traditions.

One inescapable local condition is small size. The Dominica Constitution Review Commission reported that:

"Size of itself, affects the dynamics of government. In small states almost all the [elected] members of the party can be given some office as minister, parliamentary secretary or chairman of a statutory corporation. The only critical voices in the Parliament will be those of the opposition which invariably carry little weight. All of this strengthens the power of the Prime Minister in relation to the House."

Size, dependency and level of development in fact, provide conditions that make it dubious that an American model can work in Caribbean countries and, except for Jamaica, there is little support for that model in the rest of the Caribbean.

Separation of powers only begin to make sense in the form of a federal Caribbean government. Yet ironically, the only Caribbean party that supports the separation of powers model, the NDM of Jamaica, does not support Caribbean federation or even a Caribbean Court of Justice.

Caribbean states must apply realism in their considerations of constitutional models. Fundamental to this is consideration of cost and time - what processes they can afford financially, and what procedures they can afford timewise. This must be related to the conditions of their existence - small size, level of development, vulnerability.

Caribbean reformers must resist the usual tendency towards imitation, the derogation of the local and the glorification of the foreign, and must apply realism of their circumstances over idealisation of noble myths that describe other models of democracy.

Jamaica’s Proposals.

Jamaica’s Constitutional Commission submitted its report to parliament in 1995 and later that year parliament debated the report. All parties agree that:

- Jamaica should become a Republic;

- A new constitution should be enacted by the national parliament, with new oaths of office and written in simplified language;

- An Electoral Commission should replace the Electoral Advisory Committee and be enshrined in the constitution; as well as the office of the Contractor General and a proposed Citizen’s Protection Bureau;

- The constitution should expressly recognise political parties;

- The constitution should expressly recognise the right to vote;

- Officials should be subject to impeachment, such as members of parliament, senators, heads of statutory bodies, judges, civil servants, the chief electoral officer and others for non-performance, corruption and the abuse of power;

- The constitution should more strongly protect fundamental rights and freedoms so that they are not subject to any act that can suspend them except during a public emergency or public disaster;

- New rights should be added - the right to: vote and participate in free and fair elections; a healthy and productive environment; of every child to free primary education; to fair, humane and equal treatment; the right of every citizen to a passport.

- The power of the Court in Judicial Review and as a guardian of the constitution be strengthened;

- There should be a Citizen’s Protection Bureau that will ensure that complainants who allege that their constitutional rights have been infringed are provided with ready access to professional advice and legal protection and will have the power to enforce its decisions;

- Local government should be enshrined in the constitution and the terms of elections to local government be specified in the constitution.

The Structure of Government.

The political parties and the Jamaican public hold different positions on the structure of government. There are three models that are proposed: a modified Westminster model, two variants of presidential models, one similar to the US separation of powers and another more similar to parliamentarism.

The Westminster Model.

For all the criticisms levelled at the Westminster model some hold the view that it is basically a good model and can be made more effective with some necessary refinements. They, including the JLP, support it as:

- more familiar to Jamaicans, and an established part of the political culture and suited to the two-party structure;

- it avoids paralysis between executive and legislature; and enables prompt implementation of executive programmes;

- a ceremonial president would have independence from the prime ministerial executive and would make sensitive and independent appointments to important offices of state thereby reducing some of the powers of the prime minister.

The Presidential Model.

Those who support an executive president say that:

- it would strengthen parliament to represent the people and not be a mere “rubber stamp” of the president;

- by strengthening the presidency it would relieve parliamentarians of executive responsibility so that they can concentrate more on representing their constituents;

- it would enable the president to select his cabinet from a wider cross-section of the people rather than confining those appointments to parliamentarians;

- it would make parliament more effective in excercising its oversight functions with respect to the executive.

The PNP supports a directly elected president and members of parliament elected by constituency districts and where the president has the power to dissolve the parliament and call new elections or where the parliament has the power to issue of vote of “no confidence” in the president forcing new elections.

The NDM favours a separation of presidential and legislative powers so that neither body can dissolve the other. While this ensures independence of both it creates the possibility of “grid-lock”. It also favours fixed election dates.

The parties agree on retaining an upper and lower chamber with an increase in the number of senators from 21 to 36. But while the JLP wants the senate to be wholly nominated as at present, the PNP and NDM want the senate seats to be apportioned on a proportional representational basis.

The lower house would continue to be represented on the basis of “first-past-the-post” elections as this is felt to ensure direct representational links between the constituents and the representative.

It is of interest to note that the Constitutional Commission and the parliamentary committee on constitutional reform accepted that appeals to the UK Privy Council should continue but that this arrangement would be subject to the introduction of a Caribbean court of appeal, if and when such a decision is taken.

In summary, what separates the three models is that the PNP wants a directly elected executive (president) but not a separation of powers between executive and legislature. The JLP wants an indirectly elected executive (prime minister) and not a separation of powers. The NDM wants a directly elected executive (president) and a separation of executive and legislature. The JLP and NDM models stand at extremes while the PNP model seeks to get the best of both.

The Caribbean.

Elsewhere in the Caribbean the options being considered are along the same lines as in Jamaica. That is, whether to modify and retain the Westminster model or adopt the American model or some variant of either.

However, the special cases of Guyana and Trinidad stand out. Because of the ethnic problem it is felt that some model that stresses governments of national unity should be developed, that is, one more suited to plural-like societies. Some suggest that governments of grand coalitions should be permanent features of those societies where all the ethnic groups are permanently represented in proportion in all the structures of government and the state. This is a model called ‘consociational democracy’ that stresses cooperation and consensus rather than competition between government and opposition.

Such a model would radically alter the nature of democracy. It would mean that there is no real opposition and that elites would manage their own conflicts without resort to the wider public.

At the same time, others believe that in racially divided societies the best model is one based on competition where ethnic parties have the opportunity to alternate in governments of their own.

At any rate, the consensus model sounds idealistic since even parties in those countries have been unable to form national ethnic coalitions and the model is also subject to ethnic gridlock as in Suriname.

Conclusion.

It is accepted across the region that the Westminster model has its weaknesses. Constitutional reformers disagree on the extent to which it is the model that is at the root of Caribbean problems of democracy and whether the model cannot be modified to be more effective. Others believe that a fundamentally different model is needed.

There seems to be too much of a tendency to import other models or features of those models instead of starting with the question, what is it that is unique about the region and how can structures be developed relevant to the region’s conditions. The problem is sharpest in Trinidad and Guyana where those plural-like societies are not amenable to the Westminster model. Yet, no unique solutions have been suggested for those cases.


Political Parties and Party Competition ./Elections and Electoral Systems/Voting Behaviour/ Human Rights and Human Development/Good Governance/Government and Economy/Global Caribbean