Waiting for Godot (Pt 2)
Ministers must not be MPs
Frank Phipps , GUEST COLUMNIST
The Constitution of Jamaica is the legal framework in which the Government must operate to ensure 'lawful, prudent and transparent management' of the nation's affairs. It sets out the three arms of government - a Parliament that consists of Her Majesty, a Senate and a House of Representatives to pass laws [Section 34]; the executive, which is Her Majesty, whose functions may be exercised by the governor general [Section 68], acting in accordance with the advice of the Cabinet [Section 32]; and the judiciary to enforce the law.
The Cabinet is where decisions are first made for the distribution of the nation's resources. The Cabinet consists of the prime minister and such number of other ministers (not being fewer than 11) as the prime minister considers appropriate and shall be the principal instrument of policy, charged with the general direction and control of the Government of Jamaica and collectively responsible to Parliament [Section 69]. How the Cabinet is structured and functions requires close scrutiny for our present purposes.
CORRUPTION OF CONSCIENCE
The present practice where Cabinet ministers are appointed from the Senate and the House presents the danger of serving two masters in the administration. The practice creates a conflict of interests in government and confusion for collective responsibility when, as minister in the executive, he accounts to himself in the chamber of Parliament where he sits as legislator. The mingling of legislative responsibility with the executive functions is a recipe for mismanagement.
A Cabinet appointed in that manner will function without transparent accountability to a separate, independent and autonomous body of the people's representatives within the Constitution; it breaches an essential constitutional principle for separation of powers in democratic governments. The legislature becomes subject to the overreaching power of the Cabinet when it should be the other way.
The commingling between the executive and the legislative arms of government may eventually end in a corruption of conscience, where a sense of right and wrong is compromised. Decisions are then made to advance partisan political interest rather than what is best in the national interest. It is painful to hear about Cabinet ministers telling their party supporters how they utilise governmental policy to ensure a return to office at an election.
It is timely to repeat the need for a general overhaul of the system of government to avoid inappropriate behaviour before undertaking any further altering of the Constitution; for example, to entrench local government in the Constitution.
MAKING THE CHANGE
Earlier suggestions for prohibiting the people's representatives from executive functions have resurfaced and merit renewed consideration. 'Don't make MPs ministers' (Gleaner, April 2, 2013) is the headline for a Letter of the Day that ends: "Parliament needs to be empowered as an instrument of checking and balancing the power of the Cabinet."
Serious thought should be given to a scheme whereby appointments to the Cabinet are of persons with the necessary qualification and experience in the area of a particular portfolio responsibility and who are uninfluenced by returns at the polls for elections. Appointment of ministers should not be from among the elected members of Parliament. The legislature in both Houses of Parliament should be free to review and pass into law the programmes that are crafted by the Cabinet for the executive to carry out in administering the Government for peace and prosperity.
Making the necessary changes for the scheme is not as difficult as it may at first appear. The relevant sections of the Constitution that have to be changed are not entrenched and may be amended by simple majority vote in Parliament.
The following is an outline of the framework for a new approach to governance:
1. Amend Section 70(1) to delete the provision for the selection of ministers from among the members of "the two houses". The section was previously amended in 1977.
2. Amend Section 69(3) to delete the provision for the limit of "not more than four of the ministers selected shall be persons who are members of the Senate"; making it possible for all the ministers selected are persons who are the members of the Senate. The section was amended in 1986 to increase the number from two to four.
The two sections are not entrenched in the Constitution and can be altered by a simple majority vote. The change would free up the House of Representatives to perform its role for a check on the Cabinet. An argument that a civilian oversight authority is good enough for accountability for public expenditure may be in breach of the Constitution and self-defeating. If the members of that body are qualified to monitor what was being done, they should be eminently suitable for appointment as the doers.
On the way forward, the prime minister enjoys the confidence of the majority of the members of the House and he also presides at Cabinet. His influence permeates both the House and the Senate, with both arms of Parliament functioning together, but do not mix.
Special arrangement will have to be made for finance where the Constitution provides that Estimate and Expenditure of the nation's funds are to be laid before the House by the minister responsible for finance (see sections 115-118). Sections 116-118 that deal with the Authorisation and Expenditure of funds are entrenched in the Constitution and can only be altered by special Acts of Parliament, but Section 115, which deals with the annual estimates of expenditure and revenue, is not entrenched and can be altered by a simple majority vote. In the proposed changes, the estimates can be presented first in the Senate, where it is debated by government and opposition senators and accepted before passing to the House for final approval; while decision for expenditure will remain with the people's representatives as also for Money Bills at sections 55 to 58.
An immediate benefit from the change will be the size of the Cabinet, which will be limited to 13 members, plus one (the prime minister), the maximum number the Government is allowed to appoint to the Senate. A Cabinet of 13 capable ministers with the traditional civil service would go a far way to reduce the number of other public bodies required for administration. Money so saved could be used in other areas of the administration where it is sorely needed.
The most important benefit will undoubtedly be the improvement and the strengthening of efficiency in performance by public officials. Policies for the allocation and disbursement of the country's resources to be carried out by the executive would have been crafted by persons who are qualified for the purpose, subject always to approval by the people's representatives in Parliament. A prime minister should not be restricted in his choice for selection of ministers to be persons who were successful at elections.
The proposals are not made to cast aspersion or belittle the abilities of the elected members of parliament; instead, they will turn around the process to allow the members to give undivided attention to their primary, solemn and supreme obligation to represent the people in a democracy, especially to control executive authority that can hold the nation hostage in order to advance partisan political considerations in the management of the country's affairs.
When our leaders are unaware or reluctant to take this road for changes to the Constitution that is necessary for good governance, too many of our people continue to live in poverty, want, and fear, waiting for Godot.
Frank Phipps, QC, is an attorney-at-law. Email feedback to firstname.lastname@example.org.