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Total Fusion! The Perilous Rise of the ‘Execu-lature’

Posted: Monday, April 22, 2024. 8:42 am CST.

The views expressed in this article are those of the writer and not necessarily those of Breaking Belize News.

By Dylan Vernon, TIME COME #7, 21 April 2024.

On 3 April 2024, Prime Minister Briceño, after the massive victory of his party in the March municipal elections, re-instated a minister to Cabinet and also gifted three more People’s United Party (PUP) representatives in the House with the status of ministers of state. The Press Release was tellingly honest in justifying the new appointments: “These adjustments and assignments come on the heels of an overwhelming mandate at the polls.” The result was that all 26 PUP representatives in the House are now ministers or ministers of state and so part of both the Executive and Legislative branches of government. Of course, the PUP is not unique in engaging in this anti-democratic practice. For example, in 2012 former Prime Minister Barrow appointed all 17 representatives of the United Democratic Party (UDP) as ministers and ministers of state. In 2008, Barrow appointed 21 of 25 UDP representatives as ministers and ministers of state. Even when not all representatives are appointed to the Executive, their numbers are invariably the majority in the House. This extreme merger of powers in our Belizeanized version of parliamentary monarchy is at the heart of much of the backsliding of Belize’s democracy and good governance.

The Model vs Reality

Westminster parliamentary democracy is premised on the principle of the separation of powers of the Executive, Legislature (National Assembly in Belize) and Judicial branches of government. — even when it assumes some overlap of lawmakers and ministers. Leaving aside the Judiciary for now, the distinction in powers and functions of the Executive and the National Assembly is clear in the Constitution. The key constitutional functions of the National Assembly are to represent the interests of the electorate, to develop laws and policies for the nation, and to have oversight over the Executive.

Under the leadership of a powerful prime minister, our Constitution states that “Cabinet shall be the principal executive instrument of policy with general direction and control of Government and shall be collectively responsible to the National Assembly…” (Section 45). The prime minister and cabinet are at the apex of the Executive and its Public Service.

In the birthplace of the Westminster parliamentary model, the House of Commons of the United Kingdom has 650 members of parliament (MPs), allowing a prime minister of the majority party hundreds of choices from which to select a cabinet of (usually) 15 to 20 ministers — without any prospect that ministers of cabinet and ministers of state can be the majority in parliament. In Commonwealth Caribbean states such as Belize, small populations result in small parliaments that complicate the application of the principle of separation of powers. It also makes a mockery of the concept of ‘backbenchers’ as members of the majority party who are not in Cabinet or the Executive and so more free to question and to oversee through House Committees. This backbencher role can only really work if they outnumber members who are in the Executive or are of sufficient numbers to be taken seriously. These are perfect examples of how aspects of an imported governance design can be misfits for our unique political context.

 The PUP Said ‘No’ in 1981

Some political leaders and citizens have been aware of this systemic misfit from well before the Independence Constitution. In particular, during the brief constitution making process in 1981, several proposals were made about how to prevent the extreme fusion of legislative and executive powers Belize is now suffering. Some of the citizens who were advocating for Belize to become a republic wanted total separation of powers – by having ministers not come from the National Assembly. However, most of the proposals had one thing in common: maintain the existing parliamentary system but limit the number of representatives from the National Assembly who can be appointed to Cabinet.

Cover of Report of JSC, 1981

For example, the then Opposition UDP, while boycotting the Joint Select Committee (JSC) on the White Paper on the Independence Constitution of Belize, made a proposal to amend the White Paper such that “Not more than one half less two of the total membership of the House of Representatives shall belong to the Cabinet at any one time.” (Belize City Consultation, 21 February 1981). An A.S. Johnson wrote to the JSC in February 1981 proposing that “the number of the members of the Cabinet, not including the Prime Minister, shall consist of no more than one-third of the total membership of both houses.”

But few Belizeans have put the separation of powers problem in better perspective than Angel Cal, (now Dr Angel Cal) then a history teacher in Belmopan. In a letter of 25 February 1981 to the JSC, he argued:

If Cabinet is “collectively responsible to the National Assembly” and by regulation ministers are required to support the policies of Cabinet, where Cabinet members have a majority over non-Cabinet members in the National Assembly, it would be difficult to demand “responsibility” from the Cabinet. The number of Cabinet members should therefore be limited to a number where the majority would be non-Cabinet members. Only then will the Cabinet be “responsible” to the National Assembly.

Let’s dub this the ‘Cal dilemma’. Unfortunately, the JSC ignored all such considerations, and they were totally absent from the JSC Report to the PUP majority National Assembly – which supported the omission. As such, they were not part of the negotiating proposals the PUP Belize delegation took to London in April 1981 for the Constitution Conference with the British. As such, the Belize Independence Constitution placed no limits at all on the numbers of members of the National Assembly who could be ministers in Cabinet. Importantly, that first 1981 Constitution did not make provision for the appointment of ministers of state. That would come after independence.

Ineffectual Post-Independence Reforms

National Assembly of Belize

A 1988 constitutional amendment, under the 1984-1989 government, made provision, for the first time, for the appointment of ministers of state from the National Assembly to the Executive. This came with the proviso that ministers of state are not considered members of Cabinet but can be so invited by the prime minister. (Section 44 and 45). I will come back to how the PUDP have abused this elastic limitation.

Based on sustained advocacy from Society for the Promotion of Education and Research (SPEAR) and other civil society groups, the Political Reform Commission (PRC) of 1999-2000 reviewed the separation of powers issue and recommended that “Section 40 of the Constitution be amended to limit the number of members of the National Assembly who can be appointed to the Cabinet to be (a) no more than 40% of the total number of members of the National Assembly, and shall be (b) less than 50% of the members of each House.” (Recommendation 32). In short, members of the House appointed to Cabinet would never be the majority in House.

To its credit, the Said Musa PUP government (1998 – 2003) accepted the principle of the recommendation but did not go as far as the PRC proposed. In 2001 the PUP supermajority passed a watered-down version in a constitutional amendment that stated that (a) no more than two-thirds of the members of the majority party in the House of Representatives can be appointed to Cabinet and (b) no more than four senators can be appointed to Cabinet. (Section 40). A later 2010 amendment to the same section by the then UDP supermajority (2008-2012) allowed for the Attorney General to come from outside the National Assembly.

The Perils of Power Fusion

So why is this all still a problem? Is the ‘Cal dilemma’ resolved? No, it is not! Even with the 2001 ‘two-thirds rule’, parties in power can manipulate the current constitutional provisions to ensure that enough of their elected representatives are appointed as ministers and ministers of state to be the majority in the House. If a winning party gets 24+ seats of the 31 total, it can constitutionally appoint 16+ representatives to become ministers (a majority of the House) plus as many minsters of state as it has remaining representatives. If it gets under 24 seats, it can still appoint as many ministers as ‘two-thirds’ allow plus as many minsters of state as it has remaining representatives.

And what of the constitutional provision that ministers of state are not considered members of Cabinet but can only be so invited by the prime minister? First of all, the provision is so open and unlimited as to be meaningless. It allows none or all ministers of state to be in Cabinet if the prime minister so decides. Based on experience since 1988, prime ministers have at times have all, most or some ministers of state in Cabinet and have given some ministers of state full ministerial portfolios.

These prime ministerial decisions are based on several variables, a primary one of which is the size of the majority they have in the House and how best to distribute the spoils of partisan war. Supermajorities should eliminate the urge to appoint most or all majority representatives as ministers or ministers of state — but that thinking is out the door. Razor-thin majorities usually result in prime ministers appointing all majority representatives as ministers or ministers of state. Whatever the considerations, the practice of appointing ministers of state has devolved into another transactional system for intra-party rewards and has exacerbated the fusion problem.

Yet focusing only on whether ministers of state sit in Cabinet or not is to miss a key point about the separation of powers. It’s sometimes hard to see through the all the partisan smoke and mirrors, but whether ministers of state sit in Cabinet or not, they are de facto, as ministers, part of the Executive and so on the Executive payroll at the same time they are paid as legislators. How do the very same persons serve two masters and simultaneously be the majority in two branches of government with distinct functions?

Prime Minister Briceno leads Cabinet Meeting
Prime Minister Briceno leads the PUP in the House of Representatives

Damaging Consequences for Democracy

In summary, Cabinet ministers and ministers of state are part of the Executive while still being the majority in the Legislature. The very same elected leaders who create legislation also oversee their execution. There is, in effect, an Execu-lature. It violates the very basic democratic principle of separation of powers that exists to ensure that power is not overly centralised or abused. This now normalised fusion of executive and legislative powers and functions have had serious repercussions for Belize’s democracy.  Key among these are:

  • The National Assembly has become largely a rubber stamp for the Executive as the Prime Minister and the Cabinet always get their way. While the Senate can oppose bills and propose amendments to them, if the ‘Execu-lature’ wants, it can eventually get its way. The only exception currently is that the Senate’s approval is required for amendments to the section on Fundamental Rights and Freedoms in the Constitution.
  • Elected representatives have less interest in being legislators and policy makers than they have in being ministers or ministers of state. The importance and functions of the legislature become secondary or worse.
  • Elected representatives have little incentive (or face too much intra-party risks) in providing effective critique of executive actions since most or all of them are in the Executive. It’s the rats guarding the cheese.
  • Because the Cabinet + ministers of state (which makes the majority in the House) have already decided the outcome, the House of Representatives is largely diminished to a talk shop (and for insulting political opponents) – making the Speaker’s job akin to that of controlling a kindergarten class.
  • Politicians and much of the electorate have embraced a political culture that constituency candidates are ‘running for minister’ not for being legislators.
  • Legislation is more and more rushed through the House in one day – because ‘why not, if we can’. This kills the opportunity for extended debates and public participation in House Committee sessions.
  • It encourages legislative action that result in even more centralization of executive power. Examples of such aggrandisement include (a) abolishing the post of permanent secretaries and replacing with political appointees (2001), (b) changing the Election and Boundaries Commission from a body with no political appointees to one with all appointees coming from the two major political parties (1988), and (c) transfer of public funds to be used by constituency representatives for handouts (on-going by resolutions), (d) tabling of a constitutional amendment bill that would have the effect of all members of most constitutional oversight bodies resigning before an election (2021, put on hold).
  • It facilitates political corruption and political clientelism by increasing competition among elected representatives to become ministers and ministers of state so as to have more access to goods and services to bater for favours and to provide as handouts. As such, representatives often spend more time as welfare agents (patrons to their constituencies) than as serious legislators. Some don’t bother going to House meetings at all.
  • When the same people are monitoring and overseeing themselves, the oversight function of the National Assembly and its committees are not taken seriously by representatives. And if this constitutional oversight function fails at the very apex of state power, how can we expect it to work effectively at lower levels of government and in the wider society?
  • The fusion eliminates or diminishes even further the already weak political  practice of having backbenchers in the House – including their membership on House Committees.

Effective and Lasting Solutions

As chair of the PRC in 1999-2000, I dissented from the majority decision of the Commission that Cabinet appointments continue to be limited only to members of the National Assembly (page 159 of PRC Report). I argued then, as I do now, that all or the majority of the ministers and ministers of state should come from outside the National Assembly. I maintain that the deepening fusion of powers of the Executive and Legislative branches of government diminishes the quality our democracy and our development. Effectively separating these powers clearly requires radical reform.

In my Fifteen Proposals for a People’s Constitution, I argue for the direct election of our national leader, for a smaller Cabinet of ministers coming from outside the Legislature and for the abolition of the first-past-the-post electoral system. While I present these and the other 12 proposals as a package, my call for appointment of ministers and ministers of state from outside the legislature is of utmost priority. Clearly, apart from doing nothing and keeping the status quo, another ‘in between’ alternative is to have a mixed system of appointment where some ministers come from the legislature and some from outside in such a way that much greater limits are placed on the numbers from the legislature.

The conundrum here is that even if the limit is, for example, no more than five ministers can come from the legislature, those five would still be members of both branches of government and be on the payrolls of both the executive and legislative branches. It mitigates the core problem but does not solve it.

And let us acknowledge that we already have good experience with appointing ministers to Cabinet from outside the National Assembly in the post of the Attorney General. If it works for that post and we get qualified persons, why can’t we do this for all or most Cabinet posts? And do we really need ministers of state? Can the supposed core function they should perform of assisting ministers not be done by returning to a fit-for-purpose permanent secretary approach in the Public Service?

One thing we can absolutely be sure about is that the political elite of both major political parties will act to secure the status quo. Neither major party, even if they understand the damaging consequences of an ‘Execu-lature’, will act independently to give up the extreme centralisation of power and partisan advantages that the lack of separation of powers afford. That’s realpolitik. History shows that only sustained organised people power can force changes. The first step for that is understanding that there is a problem and why.

 

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