Con­sti­tu­tion has NOT served us well

The Star (St. Lucia) - - COMMENT - By Ama­tus Ed­ward

Quite a few have said that our present con­sti­tu­tion has served us well. At least one of those that I have heard mak­ing the claim cared enough to of­fer an ex­pla­na­tion. Ac­cord­ing to him, we have not had a cri­sis that the con­sti­tu­tion could not deal with. Of course the com­men­ta­tor com­pletely for­got the 1979/82 de­ba­cle that re­sulted in a ‘wange­ment’ called In­terim Gov­ern­ment which was to­tally for­eign to the con­sti­tu­tion. But I would pre­fer to dwell on more de­fects of our present con­sti­tu­tion.

Af­ter hav­ing lis­tened to quite a num­ber of lec­tures, speeches and dis­cus­sion on the sub­ject in my for­mer ca­pac­ity as the Out­reach Co­or­di­na­tor of the Con­sti­tu­tion Re­form Com­mis­sion, I am left with a con­cept of a con­sti­tu­tion that makes it very dif­fi­cult to con­cur with those say­ing that our con­sti­tu­tion has served us well and so should prob­a­bly be left un­touched. For those com­men­ta­tors we should not fix it if it ain’t broke. But I would has­ten to re­spond with a ques­tion; what’s bro­ken about the don­key cart? The Amish still use it; it is eco-friendly and can take you from Castries to Vieux Fort!

The con­sti­tu­tion is ex­pected to be a char­ter be­tween the peo­ple and the state that de­fines the tools (struc­tures, pow­ers, and re­sources) that will be made avail­able to those who gov­ern by those who are gov­erned; and how they ex­pect to be gov­erned. We have in­vented gov­ern­ment so that it can help us achieve good life and pros­per­ity. The tools that the con­sti­tu­tion makes avail­able to those who gov­ern is solely for that pur­pose.

On that ba­sis we need to ask some vi­tal ques­tions of the con­sti­tu­tion. Are the tools made avail­able to the gov­ern­ment suf­fi­cient for it to de­liver on its man­date? Or, did the con­sti­tu­tion pro­vide the gov­ern­ment with too much or un­fet­tered pow­ers? Did the con­sti­tu­tion in­stall enough safe­guards and con­trols to en­sure that the gov­ern­ment only and al­ways strives to ef­fec­tively and ef­fi­ciently de­liver on its man­date? Or, is our con­sti­tu­tion do­ing the ab­surd to rely on the al­tru­ism and in­tegrity of those who gov­ern? If so, Sir Arthur Lewis would be mak­ing head stands in his grave. He was al­ways weary of po­lit­i­cal sys­tems that de­pended on the al­tru­ism of politi­cians.

In his 1952 pub­li­ca­tion, Pol­i­tics in West Africa, Lewis boldly stated that “Eco­nomic philoso­phers in­sist that it is ab­surd to de­vise an eco­nomic sys­tem on the as­sump­tion that men are mo­ti­vated mainly by a de­sire to serve; on the con­trary, the func­tion of a good eco­nomic sys­tem is to trans­mute into so­cial ben­e­fit the drive for per­sonal gain which keeps the sys­tem go­ing. This is achieved (or sought) by a sys­tem of con­trols which tries to en­sure that money can be made only by serv­ing the public: only by of­fer­ing the mar­ket what it wants. Busi­ness men seek con­stantly to es­cape these con­trols; strength­en­ing the mar­ket to pre­vent ma­nip­u­la­tion is one of the con­tin­u­ing tasks of eco­nomic democ­racy. The same ap­plies to po­lit­i­cal sys­tems. Politi­cians, like busi­ness men, are mo­ti­vated by the de­sire for money, power and pres­tige as well as by the de­sire to serve. A good po­lit­i­cal sys­tem as­sumes that politi­cians are or­di­nary men, and seeks through its con­trol to en­sure that politi­cians can ful­fill their per­sonal am­bi­tions only by serv­ing the public. A po­lit­i­cal sys­tem whose func­tion­ing de­pended on the al­tru­ism of politi­cians would be just as much an ab­sur­dity as an eco­nomic sys­tem depend­ing upon the al­tru­ism of busi­ness men.”

Sir Arthur Lewis is es­sen­tially stat­ing that your con­sti­tu­tion should have its in­ter­nal con­trols to guard the peo­ple from the per­ceived short­com­ings of those who gov­ern. He is say­ing that our con­sti­tu­tion should al­low those gov­ern­ing us to achieve their pri­vate ob­jec­tives ONLY while walk­ing the straight and nar­row way of ef­fec­tive and ef­fi­cient public ser­vice.

How the con­sti­tu­tion an­swers those ques­tions would punc­tu­ate the ver­dict of how well it is serv­ing us. In my view, our con­sti­tu­tion has cre­ated a Po­lit­i­cal Sys­tem and sys­tem of gov­ern­ment with fea­tures that are in­con­sis­tent with the con­sis­tent de­liv­ery of the man­date of gov­ern­ment at the lev­els of our ex­pec­ta­tions! I main­tain that it stymies progress by al­low­ing too much waste of our scarce re­sources. A good con­sti­tu­tion should pro­mote op­ti­mal­ity at ev­ery level and dis­cour­age waste ev­ery­where. A good con­sti­tu­tion should suf­fi­ciently arm the state with struc­tures and pow­ers to ap­pro­pri­ately re­spond to the coun­try’s cur­rent and pro­jected fu­ture re­al­i­ties and chal­lenges. Above all, it should in­spire the na­tion to progress, en­cour­age de­vel­op­ment and self suf­fi­ciency and the at­tain­ment of true po­ten­tial.

I now present my crit­i­cisms of the con­struct of this present con­sti­tu­tion:

Its pro­vi­sions and struc­tures don’t en­sure that our best minds and tal­ent are in gov­ern­ment on a con­sis­tent ba­sis. In this im­por­tant game of na­tional de­vel­op­ment we can’t af­ford to have our best play­ers on the bench and ex­pect to win. Our con­sti­tu­tion needs to en­sure that we are play­ing with our best play­ers at all times.

Our con­sti­tu­tion is very tol­er­ant of known ar­eas of waste in our sys­tem of gov­ern­ment which will ob­vi­ously stymie our progress and de­vel­op­ment. I speak of the con­stant re-or­ga­ni­za­tion of gov­ern­ment min­istries, some­times at ev­ery elec­tion cy­cle. I be­lieve that six wellde­fined per­ma­nent min­istries should be etched in our con­sti­tu­tion. The Staff Or­ders carve out a huge chunk of our brain power from par­tic­i­pat­ing in pol­i­tics. I be­lieve that the in­tent of that rule can be achieved dif­fer­ently with­out the waste of so scarce hu­man re­sources. Cer­tain lev­els of public ser­vants can be al­lowed leave to par­take in elec­tive pol­i­tics, as ob­tains in Do­minica.

While there may be a need to di­lute some of the power of the of­fice of the Prime Min­is­ter, the sys­tem does not al­ways re­turn a suf­fi­ciently pow­er­ful leader. The PM is al­ways at the mercy of his peers and so can’t rea­son­ably be ex­pected to lead gov­ern­ment most ef­fi­ciently when his ten­ure de­pends on how well he makes his cab­i­net col­leagues happy. Some­times PMs re­sort to plac­ing square pegs in round holes or other ‘deals’ in their quest to keep their po­si­tion of lead­er­ship. I be­lieve that a Prime Min­is­ter elected by the peo­ple would solve that prob­lem as he would be able to hire whomever he pleases from the pool of qual­i­fied na­tion­als.

The fu­sion of the Ex­ec­u­tive and Leg­isla­tive Branches of Gov­ern­ment de­prives the state of true ac­count­abil­ity in gov­ern­ment. We need a group be­yond the in­flu­ence of the Ex­ec­u­tive to over­see the Ex­ec­u­tive. The cur­rent con­sti­tu­tion does not guar­an­tee the emer­gence of an op­po­si­tion to keep watch over cab­i­net. This prob­lem could be cor­rected with a sep­a­ra­tion of those two units, as the CRC re­port has rec­om­mended. How­ever, the com­mis­sion­ers omit­ted to deal with the ef­fects of such a change. Which can­di­date will go war­ring in the trenches for his party to form the gov­ern­ment and the end of it? Some blue-eyed tech­no­crat is go­ing to be earn­ing a fat min­is­ter’s salary while he must set­tle for the peanuts paid to MPs! I be­lieve that the sep­a­ra­tion can take place but the MP should be re­warded with the priv­i­lege of serv­ing as the ex­ec­u­tive head of his/her con­stituency’s lo­cal gov­ern­ment with a rea­son­able manda­tory bud­get vote and a salary above the scale of a min­is­ter. This could be fi­nanced by re­plac­ing Per­ma­nent Sec­re­taries with Min­is­ters thus col­laps­ing the line of au­thor­ity in the sys­tem by one level.

Too much money is spent by gov­ern­ment on com­mis­sions of in­quiry which of­ten turn out to be mech­a­nisms to em­bar­rass po­lit­i­cal op­po­nents. Notwith­stand­ing, there is a need to keep the cab­i­net ac­count­able for per­ceived or known breaches of the peo­ple’s con­fi­dence. So if it were left to me, I would disal­low those in­quiries in favour of a change that would make the Di­rec­tor of Au­dit an­swer­able to par­lia­ment. Hence if there is a per­cep­tion of cor­rup­tion on a par­tic­u­lar mat­ter, par­lia­ment can in­struct the Di­rec­tor of Au­dit to in­ves­ti­gate and re­port back. Com­mon sense dic­tates that the of­fi­cer who is go­ing to po­lice the ex­ec­u­tive can­not be one ap­pointed by it and so a Di­rec­tor of Au­dit should be ap­pointed by the mi­nor­ity in­ter­est in par­lia­ment.

Given the known value of lo­cal gov­ern­ment to na­tional de­vel­op­ment, the con­sti­tu­tion does not in­sist on the ex­is­tence of such a body at all times. It is left to the whims and fancies of the po­lit­i­cal di­rec­torate. I be­lieve that the con­sti­tu­tion should es­tab­lish a lo­cal gov­ern­ment and its role and re­spon­si­bil­i­ties. As sug­gested ear­lier, the elected MP’s role should be ex­tended to in­clude serv­ing as the head of his/her con­stituency’s lo­cal gov­ern­ment. The Coun­cil can be made of a mi­nor­ity drawn from rep­re­sen­ta­tives of key sec­tors in the con­stituency and the rest by the MP.

The con­sti­tu­tion does not jus­tify the cost­li­ness of a sep­a­rate Se­nate. Hence a uni­cam­eral sys­tem with a few sen­a­tors rep­re­sent­ing sig­nif­i­cant ar­ti­fi­cial per­sons (pri­vate sec­tor, church, trade unions, the media) is rec­om­mended as a good par­lia­ment. This will also solve the con­sti­tu­tional de­fi­ciency which guar­an­tees the pres­ence of peo­ple in par­lia­ment to over­see the cab­i­net if one party cap­tures all of the seats in the House of Assem­bly. If such a sce­nario plays out, sen­a­tors would serve as her majesty’s loyal op­po­si­tion.

The con­sti­tu­tion left no room for the coun­try to off-load it­self of an ad­min­is­tra­tion that is per­sis­tently badly man­ag­ing the econ­omy and re­fuses to demit of­fice. I be­lieve that the peo­ple should have the power to trig­ger a dis­so­lu­tion of par­lia­ment. Rea­sons need to be real, prac­ti­cal and not easily cor­rupted for po­lit­i­cal mis­chief.

The lan­guage of the con­sti­tu­tion is not sim­ple enough for the av­er­age per­son given the fact that it is a char­ter be­tween the state and its peo­ple.

The qual­i­fi­ca­tion of an MP is not con­sis­tent with the ex­pec­ta­tions of those im­por­tant state of­fi­cers. When you ex­pect par­lia­men­tar­i­ans to rep­re­sent you in mak­ing laws, etc, how come the qual­i­fi­ca­tion for that job is only min­i­mum age of 21, cit­i­zen­ship and Use of English? In or­der for MPs to do a rea­son­able job they need to have a work­ing un­der­stand­ing of pol­i­tics and gov­ern­ment, macro eco­nom­ics and busi­ness man­age­ment.

While the con­sti­tu­tion has done well in the es­tab­lish­ment of the of­fice of the DPP, it does not en­sure that the DPP is suf­fi­ciently equipped to dis­pense jus­tice. The cur­rent prac­tice of hav­ing peo­ple lan­guish­ing in re­mand for years is un­ac­cept­able. Jus­tice must be swift. The con­sti­tu­tion needs to cre­ate an in­de­pen­dent body to as­sess the needs of that of­fice which would then be­come a fix­ture of the Ex­ec­u­tive’s bud­get. When it is left to the Ex­ec­u­tive to fund this of­fice you are tac­itly cre­at­ing a sit­u­a­tion of in­flu­ence over the Ju­di­ciary by the Ex­ec­u­tive. Sep­a­ra­tion of pow­ers of the arms of gov­ern­ment is es­sen­tial for the smooth func­tion­ing of the demo­cratic sys­tem.

As re­lates to the re­port of the CRC, I be­lieve that it was a colos­sal waste of time. I be­lieve that Kenny An­thony may have been well in­ten­tioned with the set­ting of the CRC but from what I have read of the re­port, I am to­tally em­bar­rassed for the com­mis­sion­ers – the re­port was lousy. How could you lay be­fore Par­lia­ment rec­om­men­da­tions for an im­por­tant mat­ter like this with­out pro­vid­ing the rea­son­ing be­hind them? How are the law mak­ers sup­posed to in­ter­pret the rec­om­men­da­tions?

Another mat­ter to which I took se­ri­ous ob­jec­tion was the pres­ence in the re­port of a dis­sent­ing view by a com­mis­sioner. Pre­pos­ter­ous! The re­port was sup­posed to be a sum­mary of all con­tend­ing views along with the own think­ing of the com­mis­sion as a whole. What was the mo­tive for that dis­sent­ing view? That com­mis­sioner should have been schooled in the doc­trine of col­lec­tive re­spon­si­bil­ity be­fore ac­cept­ing to be­come a mem­ber of the com­mis­sion.

The late Madam Jus­tice Suzie d’Au­vergne has been cred­ited for her work on the re­port of the Con­sti­tu­tion

Re­form Com­mis­sion.

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