Constitutional Commission Report.
THE Constitutional Reform Commission has emphasized the point that the doctrine of collective responsibility provides an effective constraint on the behaviour of Cabinet members as they are expected to be bound by the collective decision making process and outcome, even when they disagree with the decisions made.
But the Commission, in its report, also made the point that while political developments in Saint Lucia have showed that collective responsibility has not always worked in the way that it is expected, and Ministers have chosen instead to violate the doctrine, nevertheless it is primarily because of this conventional practice that governments have tended to remain efficacious and stable.
Today we conclude the serializing of Chapter 6 of the report:
Maintaining Stability and Efficiency Under the New Hybrid: The Cabinet, Collective Responsibility and Parliament.
Undoubtedly the conceived political system envisaged under the proposed changes to the Constitution will have implications for the conduct of both parliamentary and executive behaviour. Having previously established that the anticipated system will maintain the parliamentary political form, while simultaneously engineering a near complete separation between the executive and the legislative branches of government, the burning question that the Commission needed to answer was, how would the system maintain its efficiency and stability in a context of a separation of these two important powers?
Indeed, under the existing political form, one of the critical ex-post mechanisms used to maintain efficiency and stability is the doctrine of collective responsibility. Simply put, the doctrine of collective responsibility refers to the conduct of Ministers of government in relation to government policy. By convention it is expected that Ministers are bound to publicly support the decisions of the Cabinet and should therefore not show public disagreement with those decisions. In so doing, the expectation is that there will be the appearance of Cabinet unity and party discipline and support with respect to governmental policy.
Parliamentary government with a strong Prime Minister and Cabinet, which is the norm in the Commonwealth Caribbean, means that every member of the Cabinet, must accept and if, and when necessary, defend Cabinet decisions even if he/she is opposed to and or dislikes them, unless he/she chooses to resign. While political developments in Saint Lucia have showed that collective responsibility has not always worked in the way that it is expected, and Ministers have chosen instead to violate the doctrine, nevertheless it is primarily because of this conventional practice that governments have tended to remain efficacious and stable. Thus the doctrine of collective responsibility provides an effective constraint on the behaviour of Cabinet members as they are expected to be bound by the collective decision making process and outcome, even when they disagree with the decisions made.
Ministers will therefore inevitably find themselves in a position where arising out of the convention, they must publicly (that is in Parliament) not only support but defend the policy even while personally finding the policy an abomination.
Samuel H. Beer et al therefore contended that under the doctrine of collective responsibility:
“Not only are members of the Cabinet bound in vote and speech to defend the authoritative decisions of the cabinet system, but so also are all members of the Government and, though not so tightly, their parliamentary private secretaries. Moreover the decisions to which they are bound are not only those of the full Cabinet. The decisions of the cabinet Committees now have the same validity as decisions of the cabinet proper.”
Another critical component of the convention is the need for secrecy about disagreements in Cabinet. It is argued that any revelation of Cabinet disagreements would mean that Ministers were not presenting a united front which is the core principle of the doctrine of collective responsibility.
Consequently, the constitutional doctrine of collective responsibility as it applies in Parliamentary systems has three main rules, which are:
(i) the confidence rule, which dictates that government will only stay in power in so far as it continues to maintain the confidence of the Parliament, in this case the House of Assembly. The confidence of the Parliament is therefore always assumed unless there is a successful no confidence motion against the government.
(ii) the unanimity rule, which requires that all members of the government speak and vote together in the Parliament unless an exception is made; and
(iii) confidentiality rule, which provides for all discussions in the Cabinet to be confidential and private if open and frank discussions are to take place. This latter dimension of the doctrine of collective responsibility is the sine qua non of the doctrine, without which Cabinet government and governmental stability would be endangered.
However, the Commission notes a recent decision of the Eastern Caribbean Supreme Court where the confidentiality rule appears to be eroded when the Court made an order for Cabinet minutes to be disclosed.
Under this proposed hybrid, all of these rules will have to be upheld in order to prevent Cabinet disruption. However, the Cabinet will have to depend upon the Leader of Government Business in the House of Assembly to uphold the confidence rule so that the Government will not collapse in the face of any no confidence votes. As regards the confidence rule in both Houses, the Leaders of Government Business in both chambers will have to try and ensure that Government policy is supported as no Ministers will have a right to vote in either House.
However, the Parliamentary caucuses of the party forming the Government will have to effect any compromises to policy and legislation given their control over party discipline in the Houses of Parliament.
In Parliamentary systems, legislators who support the majority usually toe the party line so as to avoid disrupting power arrangements for the Cabinet that depends upon the continued confidence of a majority of elected legislators. Under the hybrid which promotes a greater separation of powers (by removing the Ministers from Parliament), we eliminate the possibility where, as has happened in Saint Lucia, a member of Cabinet who has been part of a Cabinet decision, can vote against that same decision in Parliament.
In practical terms, discipline in the House should be the responsibility of the Leader of Government Business, acting on behalf of the Prime Minister, while discipline in Cabinet, should be the sole responsibility of the Prime Minister. However, political problems may arise in the cases of Ministers who are dismissed from, or who may resign, their ministerial portfolios as they may earn the support of others in the House of Assembly who may not toe the party line. The Prime Minister may be able to avert a political crisis by offering ministerial portfolios to any disgruntled M.P. thereby removing him/her from the membership of the House in exchange for ministerial office.
With the hybrid, the Cabinet will not collapse (as would be the case under the doctrine of collective responsibility under the present Constitution). All that would happen is that the Parliament would continue and Cabinet would be forced to engage in constructive dialogue and compromise, in order to effect policy and legislative changes. The Prime Minister will not be able to dissolve Parliament.
Instead he/she would be able to rearrange the membership of the Cabinet and that of the House of Assembly and the Senate, through judicious use of his/her enhanced powers of appointment, subject to ratification. However, this can be curbed if a majority of the new substitute Members of Parliament and the existing Members of Parliament do not support the Prime Minister.
The Leader of the Opposition
The Leader of the Opposition will be appointed in the same way as exists now on the basis of being the Member of Parliament who can command the support of the largest number of Members of Parliament who do not support the Government. This would be measured by the fact that these Members of Parliament do not support the Prime Minister. However, the Commission recommends
that the title of the office be changed to “Minority Leader” to capture the fact that the office is not about perpetual opposition to the Government.
The value of this office can be measured by the fact that the Opposition, in Westminster-style democracies, is considered the alternative Government. In the independence Constitution of Saint Lucia, provision has been made for the Leader of the Opposition to be consulted by the Governor- General before certain appointments are made in accordance with the Constitution. These include: the appointment of a tribunal to investigate the removal of the members of the Electoral Commission (other than the Chairman) (Section 57); the Parliamentary Commissioner (Section 110); and, the Deputy Parliamentary Commissioner (Section 111).
With respect to the position Leader of the Opposition, the Commission recommends the following:
(104) The title for the office of Leader of the Opposition should be changed to “Minority Leader”.
(105) The Minority Leader should be appointed in the same way as exists now for the Leader of the Opposition.
(106) The Minority Leader should be consulted by the President on a wider range of matters as specified within the body of this report.