What Are the Most Important Issues for Constitutional Reform Today? By Don Mitchell CBE QC – Part 1
[This is the first of five parts of a speech delivered at the Continuing Legal Education Seminar of the OECS Bar Council Meeting arranged by the Anguilla Bar Association at La Vue Hotel on 2 December 2016]
My question is, why have so many of our constitutions in the Commonwealth Caribbean let us down? What, if anything, can we do to correct this failure?
The US Constitution: In the USA, between the Declaration of Independence of 1776 and the adoption of the US Constitution in 1787, and of the Bill of Rights in 1791, some 15 years of continuous amendment to the Articles of Confederation were debated and enacted. The result of this concentrated, intellectual focus is the present-day Constitution, acknowledged to be the pre-eminent exposition on the separation of powers and the rule of law.
The President nominates Supreme Court Justices, but their appointments must be approved by the Senate. The President selects his Cabinet, but their appointment is subject to approval by the Senate. In addition to legislative checks on the judiciary and the executive, there are the familiar judicial checks on the executive and the legislature. The judiciary has power to declare laws unconstitutional, and to review actions of government. It is a written constitutional system that has lasted, with amendment from time to time, for longer than any other written constitution in the history of the world.
Westminster-style Constitutions: By comparison, what did we in the West Indies do? From the Bahamas in the north to Guyana in the south, commencing in the year 1961, we have stumbled from one unsatisfactory constitution to the other. With little or no public involvement or public education, the Foreign and Commonwealth Office bestowed a Westminster-style constitution on our unsuspecting people. Since then, despite our attempts to tinker with the peripheries of the system, it has proven to be inadequate and unsatisfactory in ensuring that we are governed by law and not by man.
Checks and Balances: In my submission, the principal defect in our institutions of government has been a lack of checks and balances. The result has been a universally acknowledged state of poor governance in all our territories. Where there is bad governance, it is the common man who suffers. The well-connected will always prosper.
Demand for Good Governance: Gradually, the people of the West Indies are demanding that the system be changed, and that measures that guarantee good governance be introduced. The citizens of St Vincent and of Grenada have recently demonstrated that they will not accept a mere fiddling with the peripheries of the problem. They rightfully demand that our constitutions do more to protect our lives and liberties. They want to feel confident that the constitution brings them under an acceptable system of government.
Integrity, Transparency and Accountability: There are three elements universally accepted as essential. These are integrity, transparency, and accountability. They are not so much legal principles as ethical concepts, relying for their enforcement mainly on convention. This has not proven a reliable enforcement mechanism. In the absence of time-honoured conventions promoting good governance, only the legal system can ensure it, and the highest form of law in our region is the constitution. It is appropriate then that good governance institutions be put in place, protected by constitutional guarantees. Experience in Trinidad and Tobago and elsewhere has demonstrated that having a mere Act of Parliament is not sufficient. The governing and opposition parties can and do conspire to ignore them. There must be genuine constitutional guarantees that the citizen can enforce when they are breached.
Let us now look briefly at each of integrity, accountability and transparency.
Integrity: Integrity in public life is an elusive objective at the best of times. In the UK, parliamentarians have gone to jail for fiddling their expenses, and, in the US, congressmen have been indicted for accepting bribes. But, you will search our islands largely in vain for any punishment meted out to a politician known to have left office hugely enriched by his public service. No sensible person would suggest that our politicians are persons who naturally lack integrity. However, the Westminster System of government that we have inherited seems almost designed to encourage us to give up our natural integrity. Singapore went into independence governed by the same undemocratic style of constitution as ours. But, none of us in the Caribbean was so lucky as to have a long-time Prime Minister who used his undemocratic constitutional powers to demand the highest standards of personal integrity of his Ministers and of his people. The result for the positive economic development of Singapore is clear for all to see.
Watchdog Institutions: With our poor choices for leadership, we need to put in place in our constitutions ‘watchdog institutions’ that are designed to ensure integrity in our systems of government. Let us look at some of the more obvious ones.
Integrity Commissioner: The Interests Commissioner, sometimes called the Integrity Commissioner, is intended to receive declarations from public officers of their assets and liabilities. In most of our territories there is no requirement that public officers declare their interests. And, if there is such a requirement, there is no obligation for the declaration to be available for public inspection. And, if the declaration is not filed, there is often no punitive consequence. It is essential, if we are to have confidence in our representatives, that this filing be done before, during and after taking up office, and that it be published for all to see. In the exercise of her functions the Integrity Commissioner is not to be subject to the direction of any other person or authority. Her appointment should be made by the Governor-General after consulting the Prime Minister and the Leader of the Opposition. The constitution should provide a mechanism to ensure that the Commissioner receives the resources needed to carry out her functions. The requirement is of no real or practical use unless there are penalties for breach.
Additionally, the constitution must provide that a Minister can be removed from office, with a right either of review or appeal, if the Integrity Commissioner determines that he or she has breached the Code of Ethics for Public Life, or that he or she has failed to comply with the registration of interests requirement.
Public Procurement: Much of our budget is spent on construction, repairs and maintenance of the infrastructure. Procurement of goods and services, relating to contracts for roads and schools and offices and hospitals, offers the most attractive opportunities for those who wish to corrupt the process and illegally to enrich themselves. We must insist on the highest standards and procedures in relation to procurement and tendering. We need appropriate laws and regulations to set out how public contracts are to be awarded. In other words, we need Tenders Boards to be enshrined in our constitutions, and protected from outside influence. Alternatively, a Public Procurement Commissioner whose duty it is to ensure the public procurement process works as intended, without a wronged tenderer being obliged to take his complaint to court at great expense, as presently obtains, is an obvious solution, once it is embedded in the constitution. Trinidad has had such an Act for years, but it has conveniently never been brought into effect. In the absence of a constitutional remedy, there is nothing the citizen can do.
Integrity Pacts: The Integrity Pacts, as recommended by Transparency International, would carry the tendering process upwards to an entirely new level. An Integrity Pact is essentially an agreement between the government agency offering a contract and the companies bidding for it that they will abstain from bribery, collusion, and other corrupt practices for the extent of the contract. This has been found to be a powerful tool to help governments, businesses, and civil society fight corruption in public contracting.
Public Assets: Another requirement for ensuring integrity in public life is the constitutional protection of public assets, mainly land, mineral, and fishing rights. In many of our territories, Crown lands and national assets are dealt with behind closed doors. Since every matter discussed in Cabinet is traditionally treated as a state secret, there is no publication of proposals for the disposition of public assets. There is no accountability. The integrity of dealings in public lands ought to be enforced by having a provision in the constitution that a resolution to deal in any significant public asset, say a half acre or more of land, is required to be brought to the legislature for public debate and approval.
Appointments Commission: The British have bequeathed to us a “winner takes all” system of appointments. Immediately a new government is put in place, the first order of business is to terminate the previous political appointees and to share out the various directorships among the principal supporters of the new administration. We watch as they dismantle the boards governing Social Security, Public Utilities, Public Health, the Tourist Board, the Carnival Committee, and even the Poor Law Board. It is called “enjoying the fruits of office”. This system of replacing one set of incompetent political appointees with another set makes a mockery of the whole notion of good governance. A constitutionally protected Appointments Commission should be empowered to vet all appointments by Ministers to government boards, committees and commissions before they take office, as is the common practice in more developed Commonwealth jurisdictions. Under the proposed new Anguilla Constitution, the Minister may not appoint any person to any government-controlled board or committee without the approval of this Commission.
Code of Ethics: A Code of Ethics for Persons in Public Life must be put in place and strictly enforced. Workshops for incoming ministers, boards of statutory corporations, and public servants, should be a regular feature of every new administration’s drive to achieve good governance. All persons in public life can benefit from compulsory attendance at seminars and workshops on the meaning of nepotism, cronyism, and conflicts of interest, and how to avoid them. If judges and lawyers can subject themselves to Codes of Ethics, as they do, why should not all public servants and politicians?
[To be continued]