by Sir Arthur Foulkes
There was an attempt to conjure up a constitutional crisis out of the recent manoeuvres around the office of Leader of the Opposition. But, clumsy though they may have been, those activities came nowhere near creating a constitutional crisis.
It is one thing to take advantage of a political opponent’s embarrassing situations but it quite something else to alarm the public with irresponsible talk about constitutional crisis.
No constitution can be so comprehensive and perfectly drafted as to avoid all possibility of running into serious problems at sometime or other. When that does happen, those responsible for sorting it out must rely on the spirit of the document, conventions, useful precedents and good old common sense.
The Constitution of the Bahamas says that the Governor General shall appoint as Prime Minister the member of the House of Assembly who is the leader of the party with the majority in the House.
It also makes provision for the appointment of a Prime Minister in the event of a dispute over leadership of the party or in the event no party has a majority in the House. But it does not anticipate that after an election there will be no one in the House who is both qualified and willing to accept the office.
The whole system and the very nature of our politics make such an eventuality maybe not inconceivable but highly unlikely. But if it were to happen, that would certainly be a constitutional crisis.
In the case of Leader of the Opposition, the Constitution does not provide for the leader of an opposition party to be Leader of the Opposition but, in the first instance, the person who is best able to command the support of the majority of members of the House in opposition to the Government.
Failing that, there is further provision for the appointment of some one else as Leader of the Opposition. But, and this is the point, the Constitution anticipates that there can be circumstances in which no one is both qualified and willing to accept the appointment.
So it makes provision for the system to function without a Leader of the Opposition. The Governor General would act in her own deliberate judgment in those instances where the advice of the Leader of the Opposition is ordinarily required.
In those cases where the Prime Minister is required to act after consultation with the Leader of the Opposition, he would then act without such consultation. This would be an unhappy situation and not in the best interest of democratic government but it would not make the Constitution unworkable nor would it bring the business of legislating and governing to a grinding halt.
So instead of trying to manufacture crises where there are none, we should be about refining our system of government, not just to avoid crises but to ensure flexibility and the sensible application of democratic principles to our particular circumstances. This used to be described as using one’s imagination; now it is called thinking out of the box.
Although we like to refer to ourselves as practising the Westminster form of parliamentary democracy, there are some huge differences between what happens at Parliament Square in Nassau and what happens at Westminster Palace in London.
We are, in fact, practising a parliamentary system of democracy based on fundamentals common to the concept but with innovations to suit our circumstances. We must continue to protect those fundamentals but we should not be afraid of innovations.
The most obvious difference between our parliament and Westminster is size. There are nearly 650 members of the House of Commons and only 40 in our House of Assembly. That fact alone dictates a raft of considerations.
For instance, the term backbencher in Britain refers to elected members of parliament who are neither ministers nor shadow ministers. In the Bahamas when we talk about backbenchers we usually mean those members of the governing party who are not ministers.
It makes little sense to refer to opposition backbenchers when the opposition’s entire contingent is only eight. When the PLP was in opposition there were only five, hardly enough to shadow all government ministers.
In Britain it is highly unlikely that any of the major parties will be left without a credible front bench after an election, so the opposition will always be able to mount a shadow cabinet. In the Bahamas it is not unlikely that an opposition could again be reduced to four or five members or one or none at all.
Before the last election Perry Christie, leader of the PLP, left his former constituency and was nominated in what was regarded as a safer seat at the time. If the popularity of the FNM government had not plummeted in the last year or so of its term, Mr. Christie’s move would have been a wise one since the PLP would have risked losing some or even all of the five.
As it turned out, the swing away from the FNM ensured that Mr. Christie would have won his former constituency and any other New Providence seat with the exception of Montagu.
Having regard to our smallness and the changing demographics of the Bahamas with its consequent scarcity of so-called safe seats, it is likely that an election could produce a result in which the opposition fails to return a single member even though garnering a respectable percentage of the popular vote.
So perhaps we should be thinking of what to do in such circumstances and whether we should make constitutional changes in anticipation.
The Constitutional Commission’s Options for Change proposes several questions for consideration with regard to the Senate. One is whether the appointment of senators should be based on the percentage of votes polled by their party in a general election.
If that question is answered in the affirmative then the Senate will more accurately reflect the votes cast for an opposition party and there would be no reason why the constitutional Leader of the Opposition should not be able to sit in that chamber.
In fact, even without such a change, we ought to consider whether the leader of an opposition party should be able to sit in and function from the Senate as constitutional Leader of the Opposition.
The Senate serves some useful purposes but many Bahamians feel they do not get their money’s worth from that chamber. We still call it the Upper House but in practice the Senate is not a chamber in which older and wiser heads sit as a check on the Lower House.
Just the opposite. Both dominant political parties have used it more and more as a training ground and to give exposure to future candidates.
The argument that executive and constitutional functions should not fall to members of a chamber which is not directly elected does not hold since the Constitution already provides that three ministers, including the Attorney General, can be appointed from that chamber.
The Westminster system evolved over many years and at one time the House of Lords (the Upper House) was more powerful than the House of Commoners (the Lower House). That evolution is still progressing today with attempts by the Labour Government to diminish, if not eliminate, the idea of inherited political power represented by that body.
It is time for us to abandon this pretense about our Upper House and make the Senate more relevant to our needs and circumstances.
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