And because it may be too great a temptation to human frailty, apt to grasp at power, for the same persons who have the power of making laws, to have also in their hands the power to execute them . . . . – John Locke (1632-1704), English philosopher, Second Treatise of Civil Government.
IT IS A LITTLE NOTICED or remarked upon phenomenon in our system of governance, which professes adherence to the centuries-old separation of powers doctrine, that more than half of the 30 Members of the Barbados House of Assembly also sit in the Cabinet.
It is not a new situation, of course, since the proportion of ministers in the House to the number of seats has been roughly the same since Independence in 1966.
But the doctrine has been the subject of robust debate over the years, particularly among the 54 members of the Commonwealth of Nations, made up of states and territories that are or were formerly part of the far-flung British Empire.
That debate continues today in countries from the economically advanced and politically secure such as Australia, through to the smaller developing territories closer to home such as the Cayman Islands, which is still under the yoke of Whitehall.
The issue was again raised recently by entities as diverse as the said Cayman Islands, and Tobago, which though a separate island (and once a ward of Barbados), is constitutionally part of the twin-island republic of Trinidad and Tobago.
Delegates at the 35th Conference Of The Caribbean, Americas And Atlantic Region Of The Commonwealth Parliamentary Association (CPA) held recently in Port-of-Spain heard presentations from V. Arden McLean and Ezzard Miller, of the Caymans Islands, and Vernella Alleyne Toppin, Minister of Tobago Development on the topic Parliament As An Autonomous Body – Separation From The Executive Branch Of Government.
“Commonwealth parliaments are based on the Westminster model,” the minister noted, “which although it adheres to the principle of three key branches of state: legislative, executive and judicial, does not facilitate this separation since the executive elements must be drawn from and be accountable to the legislature.
Overlap and interconnection
“This results in a great deal of overlap and interconnection in terms of personnel and actions. The result is what Walter Bagehot described as fusion of powers which is often a feature of parliamentary democracies (the case of many of the Commonwealth countries).”
The minister framed the issue around a definition of “autonomy” that refers to non-dependence and non-subordination of Assemblies in relation to the Executive as well as the possibility of freeing itself at least partially from the rules of ordinary law so as to follow instead its own regulations.
“Its purpose is to allow Parliament freely to exercise the competence with which it is invested by the constitution,” she said. “It is thus a functional autonomy which manifests itself in the possibility of each Assembly ‘determining its form of organization and its procedures, electing its own bodies, in particular its committees, being convoked by its president/speaker, and above all deciding on its own rules’.”
Alleyne Toppin referred to a 1981 debate in Australia in which MP Maxwell Burr (1975-1993) contended that if Parliament were to remain relevant, its independence and autonomy must be asserted.
According to her, he offered several practical alternatives to the House of Representatives on ways in which the Westminster model could afford autonomy. The first option was to limit ministerial appointments from the Senate.
“I have suggested that all ministers be appointed from the House of Representatives. That is not designed to allow more colleagues in this place to be appointed to the ministry. But rather to allow the Senate more thoroughly to scrutinize government proposals.
“It seems incongruous that the Senate is expected to be a House of review while at the same time some of its members form part of the executive government.
In reality, the Senate is not a proper House of review but rather an extension of the House of government and equally dominated by party allegiances. Surely the Senate could better fill its review role if none of its members were ministers and there was no ambition on the part of others to become ministers.”
In the 21-member Barbados Senate, there are three full ministers in the current Cabinet, and three parliamentary secretaries (or junior ministers), all of whom, along with one of the ministers, are committed to contesting seats at the next general election.
The Cayman delegation at the CPA conference produced a paper outlining the historical perspective of the islands’ experience and challenges, noting that there seemed to be significant resistance from the executive branch of government whenever the issue of autonomy and/or independence was raised by parliamentarians.
Resistance
“This resistance from the executive comes from the elected ministers as well as the senior civil servants who often exert control in subtle ways through the backdoors of financial control and recruitment of staff,” the authors said.
They argued that autonomy from the executive was essential if parliament were to perform its roles “in oversight of the executive, law-making, authorization or enabling of the executive and financial control, in an efficient and effective way that both strengthens democracy and the power of the people through their elected representatives”.
“However, one has to ensure that there is a balance between cooperation and oversight,” they added. “Sheer obstructionism rarely serves the public that parliament represents and this too can lead to erosion.”
The peculiar situation of the Cayman Islands and the inherent danger of executive authority over parliament was highlighted in the suggestion that the executive could truncate public discussion on bills and expenditures by using its majority to suspend the Standing Orders to facilitate quick passage without debate.
“In the Cayman context, standing orders require bills to be published 21 days before debate in parliament and additional rules prohibit three readings of bills in one sitting,” the authors wrote.
“However, in the current parliament where the premier sits as leader of government business, chairman of the business committee and chair of the finance committee, suspension of these standing orders to fast track government’s business is the rule rather than the exception.
“This assertion of power by the executive is leading to a serious erosion of the democracy and the roles of the opposition, independents and backbench members of the government.”
The authors felt the other danger to democracy in small parliaments where the executive exerts authority over the parliament was the ability to dictate the scheduling of meetings and control the order paper, which sets out what business was authorized by the speaker, such as questions and motions from non-government members.
“Other subtle but effective moves by the executive include working beyond the normal time prescribed in the standing orders on short notice to deprive members and the Press of opportunities to fully debate and report on controversial issues.”
For Alleyne Toppin, the essence of the debate was whether within the current system of governance, parliament could function with any semblance of autonomy “or if the only way to achieve autonomy is under another structure of governance”.
Australian Graham Spindler wrote: “A tension between separation and concentration of powers will always exist, and the greatest danger will always lie with the executive arm – not judges or legislatures – because in the executive lies the greatest potential and practice for power and for its corruption.”
• Albert Brandford is an independent political correspondent. Email [email protected]
