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The reduction in the powers of the Prime Minister and the increase in the power of the Leader of the Opposition (The Minority Leader) in the proposed new Constitution

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05.JUNE.09

by Parnel R. Campbell, QC.

1. One of the most dramatic features of the proposed new Constitution is the extent to which it reduces the constitutional powers of the Prime Minister, whist increasing the constitutional powers of the Leader of the Opposition (to be called the Minority Leader).{{more}}

2. The powers of the Prime Minister are to be reduced in at least seven specific ways, and in general, as follows:

(1) The Prime Minister will no longer have the right to select the Head of State all by himself. At present, the Head of State (the Governor General) is selected by the Prime Minister, and thereafter Her Majesty the Queen is requested to approve the Prime Minister’s selection. In selecting a person to be appointed Governor General by the Queen, the Prime Minister is not obliged to consult any person, not even his own Ministers.

On the other hand, the Head of State in the new Constitution, who is to be called the President, has to be chosen jointly by the Prime Minister and the Minority Leader. If the Prime Minister and the Minority Leader cannot agree on a choice, then the National Assembly (presently called the House of Assembly) votes on the matter and elects a President by that method (see section 54).

(2)The Prime Minister will no longer have the right to dissolve Parliament and call general elections whenever he wishes to do so. The Prime Minister will only be able to call for general elections during the last three months of the government’s five year term of office. Mind you, the Prime Minister will still have the right to chose the election day itself, but he will be compelled to chose a date within that three month period. In other words, the Prime Minister will no longer be able to call “snap” elections (see section 92).

(3)The Prime Minister will no longer be able to appoint as many Ministers of Government as he pleases. Presently, a Prime Minister can advise the Governor General to appoint all successful candidates and up to two of his Senators as Cabinet Ministers. The new Constitution will limit the Prime Minister to no more than twelve other than himself (see section 110).

One deliberate effect of the limitation of the size of the Cabinet to thirteen members in total, is that the Cabinet will no longer have a majority of the Members of Parliament. There will be 27 members of the National Assembly. With a size of only 13 members, Cabinet will be fewer than one-half of the National Assembly.

(4) The Prime Minister will no longer have the power to advise the Head of State on the granting of pardons to convicted criminals, and to decide in effect whether a person condemned to death should live or be hanged (see sections 133 and 134). Those powers will be exercised by the Parliamentary Commission. At present, the Prime Minister has the power to decide on life or death.

(5) The Prime Minister will no longer have the right to name the Chairman and two other members of the Public Service Commission in his own discretion, as is the case under the existing Constitution.

At present, the Chairman and two other members of the Public Service Commission are appointed by the Governor General on the unfettered advice of the Prime Minister. A fourth member of the P.S.C. is appointed by the Governor General on the advice of the Public Service Union. The fifth member of the P.S.C. is appointed by the Governor General on the advice of the Prime Minister after the Prime Minister has consulted the Leader of the Opposition. It will be noted, therefore, that at present the Prime Minister has a say in the appointment of all five members of the P.S.C.

The same goes for the Police Service Commission, except that instead of consulting the Public Service Union, the Prime Minister is obliged to consult the Police Welfare Association.

The new Constitution contains the following proposals:

(a) the P.S.C. Chairman will be appointed by the President in consultation with the Prime Minister;

(b)one member of P.S.C. will be appointed by the President in consultation with civil society;

(c)one member of P.S.C. will be appointed by the President on the advice of the Prime Minister;

(d)one member of P.S.C. will be appointed by the President on the advice of the Prime Minister after the Prime Minister has consulted the Minority Leader;

(e)one member of P.S.C. will be appointed by the President on the advice of the Prime Minister after the Prime Minister has consulted the unions representing public officers (see section 160);

In the case of the Police Service Commission, the Prime Minister will be obliged to consult with the Police Welfare Association instead of the Public Service trade unions.

The lessening of the Prime Minister’s powers has also been carried through in the proposals for the new Teaching Service Commission (see section 186).

(6)The Prime Minister will no longer be able to appoint a majority of the members of the Public Accounts Committee. At present, and in the past, the government has always named the majority of the members of the Public Accounts Committee. That built-in government majority meant that the Opposition members were always outvoted. The new Constitution proposes that the majority of members on the Public Accounts Committee should be appointed from the non-government members of the National Assembly.

(7)The constitutional protection for Magistrates (and the President of the Family Court) proposed in the new Constitution (section 255) would mean that the Prime Minister’s government would no longer have any control over the tenure of members of the lower judiciary. At present, Magistrates can be sent home at the expiry of their contracts even if they are willing to have their contracts renewed. The new Constitution would treat the non-renewal by a government of a Magistrate’s contract as a forced removal from office, and such forced removal will not be permitted by the new Constitution.

(8)The new Constitution proposes the establishment of no fewer than four institutions which are new to governance in St. Vincent and the Grenadines. They are:

(a)the Human Rights Commission (Chapter IV);

(b)the Parliamentary Commission (Chapter IX);

(c)the Integrity Commission (Chapter X);

(d)the Ombudsman (Chapter XI).

The full scope of those bodies will be fleshed out in subsequent Acts of Parliament. The combined effect of those brand new institutions would, among other things, amount to an extremely significant reduction in the exercise of the executive authority of the government. Those institutions will provide important checks and balances in the governance of St. Vincent and the Grenadines.

3.In paragraph 22 of the Revised Final Report of the Constitutional Review Commission (28 September 2006), we published the following statement:

“ Our seminal challenge, therefore, has been to make recommendations which could result in the achievement of an “alive” constitutionalism” resting on the twin pillars of:

(a)a deepening of democracy; and

(b)a reduction of the excessive powers of the Head of Government.”

I am abundantly satisfied that the new Constitution proposes dramatic reductions in the powers of the Prime Minister as Head of Government.

The Minority Leader (Chapter VIII of the Constitution)

4.If the reduction of the powers of the Prime Minister can be called “dramatic”, then the corresponding increases in the constitutional authority of the Minority Leader can be regarded as spectacular, as I will detail below:

(1)Sections 54 (1) of the new Constitution makes it mandatory for the Prime Minister to consult with the Minority Leader on the choice of the Head of State (the President). At present, the Prime Minister has no obligation to share his views on the appointment of the Head of State with the Leader of the Opposition. Of course, if after consultation the Prime Minister and the Minority Leader are unable to agree on the choice of the President, then the matter goes to a vote by the National Assembly.

(2)The Minority Leader under the new Constitution will have the right, in common with the Prime Minister, to request the Speaker to invite non-members of the National Assembly, named by the Minority Leader, to address the Assembly on matters within the special expertise of such invited persons (see section 78).

(3)For the first time in any Parliamentary system in the British Commonwealth, as far as I am aware, the Minority Leader will have the right under the Constitution to introduce motions into the National Assembly which seek to impose a charge upon the Consolidated Fund, without first obtaining the permission of a Minister of Government (see section 84). The present Constitution forbids that privilege.

(4)As a general practice, known as a convention of the constitution, the Leader of the Opposition is usually named as Chairman of the Public Accounts Committee. The new Constitution has elevated that convention into a constitutional mandate (see section 85(2): it is provided that the Chairman of the Public Accounts Committee shall be the Minority Leader.

Furthermore – and this is what is truly revolutionary – the new Constitution contains three innovations which do not exist anywhere else in the Commonwealth Caribbean as far as I am aware:

(a)a majority of the members of the Public Accounts Committee must not come from the government side of the Assembly;

(b)the Public Accounts Committee has been given the right to summon public officers to appear before it; and

(c)the Public Accounts Committee has been authorized to send for relevant financial documents to ensure the proper discharge of its duties.

The Minority Leader, as Chairman of a Committee on which he has a majority of members, will become constitutionally the most powerful Leader of the Opposition in the Commonwealth.

(5)By section 95(1) of the new Constitution, the Minority Leader has given the right to be consulted by the Prime Minister on the appointment of the Chairman of the Electoral and Boundaries Commissions. Of course, the Minority Leader has the same right as the Prime Minister to name two members of that Commission.

(6)Section 131 gives the Minority Leader the choice of one member on the Parliamentary Commission, as well as the right to be consulted by the Speaker in the choice of three distinguished nationals drawn from civil society to sit on that Commission.

(7)Section 186 (a) gives the Minority Leader the right to be consulted by the Prime Minister on the appointment of the Chairman of the Teaching Service Commission. That right is exercisable in addition to the right to be consulted by the Prime Minister on the appointment of another member of that Commission (see sections 186 (c) and 160(d).

5.There can be no doubt whatsoever that the proposed new Constitution of St. Vincent and the Grenadines has deliberately shifted the balance of power away from the Prime Minister, and towards the Minority Leader. The new Constitution does not contain a single provision which increases or enhances the powers or prestige of the Prime Minister as compared with the present Constitution. Not a single one – if the writer may indulge in redundancy.

6.In future articles I will point out the many instances in which the proposed new Constitution will strengthen democratic governance in this country. The new Constitution truly deserves support.

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