by Sir Arthur Foulkes
The Preliminary Report (PR) of the Constitutional Review Commission is disappointing as it relates to Parliament, particularly the Senate.
True, it is only a preliminary report and it says that its suggestions are not yet recommendations which will be contained in the Final Report (FP). Still, it gives a clear insight into the thinking of the Commission with regard to the future of the Senate.
There is a general feeling among Bahamians that the Senate, as it is presently constituted, does not serve the country as well as it should and that it ought to be reformed. The Commission acknowledges this, but what it suggests in the PR is hardly reform. It is more of the same.
In its Options for Change, published in July 2003, the Commission raised the expectations of those who were hoping for real reform. It posed a number of questions including:
“Should the number of senators be increased to provide for broader national representation?” and
“Should senators be elected and given greater powers? If elected, should it be on the basis of proportional representation? If appointed, should it be on the basis of the percentage of votes polled by their Party during general elections?”
There were other questions, of course, relating to whether the Senate should be abolished and whether Senators should have security of tenure.
The Senate has served a useful purpose in our constitutional arrangement and it seems no one wants to do away with it, and the question of tenure is secondary to how its members are to be selected in the first place.
The Commission has chosen the softer option instead of taking advantage of this opportunity to bring real reform and more relevance to the Senate.
It has suggests that the system be “modified to make allowance for representation in the Senate by members without political affiliation from special community institutions, for example the church, trade unions, professional bodies, commerce and other major fields of endeavour, although the Government must maintain the majority.”
To accomplish this, the Commission recommends that the membership of the Senate should be increased from the present 16 to 23. Of these, 12 would be appointed by the Prime Minister, six by the Leader of the Opposition and five by the Head of State acting in his own discretion after consultation with the Prime Minister and the Leader of the Opposition.
This is not likely to produce the more mature representative body that the Commission envisages. It will, however, add to the expense of maintaining a chamber that some see as primarily an institution for patronage.
Neither of the two national political parties has in the past shown any inclination to make the Senate the mature upper chamber that was envisioned. Even the Constitution itself makes only a slight nod in this direction by setting an age qualification of at least 30.
Both parties have made Senate appointments to meet their political needs at the time. In government, they have appointed a few members with a view to making them cabinet ministers, but most often they have appointed younger politicians in order to give them exposure as future candidates.
That hardly makes for a more mature chamber, and it is not likely to change in a Senate where the two parties would, according to the Commission’s recommendation, have a total of 18 members.
As for the others, it would be extremely difficult for a Bahamian Head of State in consultation with two Bahamian politicians, the Prime Minister and the Leader of the Opposition, to agree on five mature persons from among “the church, trade unions, professional bodies, commerce, community organizations and other major fields of endeavour” who would be willing to serve and who would be “without political affiliation”.
That leaves aside, for the moment, the thorny issue of whether “the church” ought to be directly represented in Parliament and how such representation would be chosen.
The Senate would be given much more relevance and would better serve the political needs of the Bahamas at this time if it is radically restructured on along the lines suggested in the second question quoted above.
Its members should be elected on the basis of proportional representation or appointed on the basis of the percentage of votes polled by the parties during a general election.
Furthermore, it would be a good thing, having regard to recent experience, if the Constitution were changed to permit the person who is leader of the party in opposition to sit in the Senate as the constitutional Leader of the Opposition.
The Bahamas is a small country, unlike Britain where it is very unlikely that a leader of a major party would not be able to find a safe seat in an election. Safe seats are disappearing rapidly in the Bahamas.
Even if a leader of a major party should be defeated in a British election, chances are there would be no difficulty finding in a House of Commons of 650 members a suitable person to serve as Leader of the Opposition.
In the last House of Assembly, the PLP was reduced to only five members, but that did not reflect the percentage of votes that party got in the 1997 general election. In the 2002 election the FNM lost all but one seat in New Providence.
It is not inconceivable that, with the demographic changes taking place in the Bahamas and with greater communications between the various constituencies of this archipelagic country, that one of the two parties could fail to win a single seat in parliament.
Under our present constitution that would mean there would be no official Leader of the Opposition, and that would not be a healthy thing for our democracy.
The Commission is not recommending any change in the way we elect members to the House of Assembly, meaning that the first-past-the-post system is to be maintained. That is probably in accordance with the will of the overwhelming majority of the Bahamian people.
But it is possible under this system for a party to win a big majority of seats in the House with 50 per cent of the votes; or less, having regard to the uneven distribution of voters between New Providence and Family Island constituencies.
In such an eventuality it would look better, and be better, for our democracy if the losing party’s strength were reflected in the Senate and it could forestall demands for the House itself to be elected on a proportional system.
INDEPENDENCE
The Commission recommends that the office of Clerk to Parliament, and a Deputy Clerk, with responsibility for the Senate, be established by the Constitution as public offices, with appropriate security of tenure and control over their staff.
This is an excellent recommendation which, if implemented, will help to establish the independence of Parliament from the Executive. It is inappropriate to have staff members from the Cabinet Office or Office of the Prime Minister filling in as staff for Parliament.
Parliament also needs to have its own budget administered by its permanent staff under the direction of the Speaker and the President of the Senate.
It is also past time that the office of Speaker be afforded the respect, prestige and independence to which it is entitled in our parliamentary democracy.
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