Constitution Committee: People want separation of powers

Among the issues raised in the report of the National Advisory Committee on Constitutional Reform were changes in the role of the President, the size of the Parliament and the role of the Director of Public Prosecutions (DPP). These issues and others were raised under the heading of “separation of powers.”

It said citizens want more accountability from those in positions of power in the Parliament, the judiciary, the executive and the independent or “fourth branch” institutions.

The report said some expressed support for an executive president who is not politically appointed. It said the perception of the role of the President as ceremonial was not accurate, as it “has significant powers of appointment over independent or ‘fourth branch’ offices, which are essential for checking the power of the Executive.”

There were two ways the population could be given greater assurance of the independence and impartiality of the President, it suggested. If MPs were elected by proportional representation, the ruling party’s nominee for President might not be guaranteed election under the current Electoral College system.

Or the President may be elected directly or indirectly by the electorate, in a process that allowed candidates other than nominees of the major political parties. It suggested with the second option, nominees for President would be screened by a committee chaired by the Judicial Services Commission chairman (convenor), and include the chairs of the Integrity Commission, the Public Service Commission, the Elections and Boundaries Commission, and someone from the private sector nominated by the business community.

The committee said it was aware this could cause confusion, and an alternative method could be used: candidates for President nominated by the public and vetted by a committee following prescribed qualifications are then elected by an expanded electoral college comprising all MPs (from both House and Senate), the Tobago House of Assembly, municipalities and regional corporations.

Another issue raised was the separation of the Executive and the Legislature. The report said there is a near-universal complaint that members of the House of Representatives do not serve their constituents very well, nor are parliamentary committees effective in their oversight of the Executive and independent institutions.

It said greater separation could be achieved by expanding the membership of Parliament and limiting the number of ministers drawn from it, and/or by limiting the number of government ministries. It said there

was already a good case for an increase in the number of MPs “to reflect a more balanced and appropriate ratio of constituents to representatives.” Improving representation through an elected Senate would also calls for an increase in the number of senators.

The report recommended the number of government ministries be restricted to no more than 18, and limiting the number of ministers who may be appointed from the House of Representatives to eight, including the PM, would give a sufficiently large back bench to attend to parliamentary matters as well as scrutiny of the Executive, the Judiciary and “fourth branch” independent institutions.

It said Parliament should fully control its administrative functions, separate from the civil service, and have the ability to hire staff, set terms and conditions, and expend approved funds according to strategic goals and approved budgets. It could adopt the Public Service regulations or develop appropriate regulations. “The Parliament should, therefore, also manage its finances in respect of recurrent expenditure based on quarterly releases and subject to audit by the Auditor General.”

The commission said since ministers and permanent secretaries were not necessarily subject-matter experts in the ministries they were appointed to, their roles and responsibilities needed to be clarified and documented in a Cabinet manual. This should be a condition of implementing reform of the Public Service.

The commission said the Constitution must explicitly state the independence of the Judiciary, and a directive principle of state policy should be that no one should interfere with judges’ exercising their functions and, further, all state institutions should assist the Judiciary in guarding its independence and dignity.

“The institutional independence of the Judiciary requires that it have control over its human resource function, including non-judicial staff,” it said, and conversely, ““The Judiciary needs to be more accountable for its overall performance which should be assessed by appropriate performance measures.”

It should be accountable to a committee of Parliament, where it would be represented by its Court Executive Administrator. This would be a senior judge or senior attorney with training or experience in management, including human-resources management, who would be charged with the overall administration of the Judiciary, including non-judicial staff recruitment and assignment, facilities, budgeting and expenditure.

It said the Industrial Court, the Tax Appeal Board, and fourth-branch institutions such as the Auditor General; Ombudsman; Judicial and Legal Services Commission, Public Service Commission, Police Service Commission and Teaching Service Commission; chairman and members of the Integrity Commission; the Salaries Review Commission; the Public Service Appeal Board; the Advisory Committee on the Power of Pardon; Election and Boundaries Commission; chairman and deputy chairman of the Tax Appeal Board, the Equal Opportunity Commission and the Procurement Regulator, should be included in the Constitution.

The report said the Office of the DPP, the largest criminal-law chamber in the country, should control its own resources and be accountable for efficient financial management and the effective management of its human resources.

The PNM held a special convention on August 18 to discuss the committee’s report. It said the committee had accepted its recommendations on the reform of the powers and role of the President, the Salaries Review Commission and the responsibilities of the Office of the DPP.

Committee members:

Chair: former speaker Barendra Sinanan, SC

Former independent senator Helen Drayton

Former Central Bank deputy governor Dr Terrence Farrell

Former Speaker Nizam Mohammed

Consulting managing partner at Ernst and Young Hema Narinesingh

Public Service Commission chairman Winston Rudder

Former clerk of the House Jacqui Sampson-Meiguel (withdrew on becoming Ombudsman)

Former THA chief administrator Raye Sandy.