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OPINION || Trias Politica! It’s not the system; it’s how you use it that matters! Part 2

By Dyon A. Elliott


Okay. Where did we leave things in Part I? In the last Res Publica360 column, I had underscored the statistical fact that in Belize, those bound by the “Payroll Vote”—as a percentage of the number of members of the House of Representatives—are significantly higher than that in the United Kingdom.


In making the point, it was highlighted that the UK has the “House of Commons Disqualification Act 1975.” This Act reads:

Not more than ninety-five persons being the holders of offices specified in Schedule 2 to this Act (in this section referred to as Ministerial offices) shall be entitled to sit and vote in the House of Commons at any one time.


In such an instance, the “ministerial” votes only makeup 27% of votes among the Conservative Party members in the House of Commons and 15% of the entire Lower House (of 650 seats). By way of contrast—and acknowledging that indeed we have a smaller number of seats—in Belize, the “Payroll” vote is, at minimum, above 70% of the seats in the Lower House (the House of Representatives).


It must be stated that the latter scenario is not unique to the current administration: This has been the status quo across both administrations, especially when there is a super-majority in the House of Representatives. Therefore, this matter must be discussed objectively and in a non-partisan manner.


BASIC CONSTITUTIONAL PRINCIPLES


Let’s begin here: At Constitutional Principles. There are at least five principles that should be enshrined in any democratic country’s Supreme Law: (i) Individual Rights, (ii) Popular Sovereignty, (iii) Separation of Powers, (iv) Checks and Balances, and (v) Limited Government.


The first is somewhat self-explanatory, as this speaks to the protection of the fundamental rights of every citizen. Part II of Belize’s Constitution covers these rights, which include the right to life, freedom, protection from inhumane treatment, and protection of your freedom of movement.


The second principle, Popular Sovereignty, gives us our representative democracy, as it is understood that governmental authority emanates from the people. For this reason, the Constitution protects the “voice” of every voter.


Separation of Powers is also enshrined in the Constitution by way of the three branches of Government: The Legislature, Executive, and Judiciary. Of course, in a Parliamentary Democracy, there is often criticism surrounding the blurred lines between the Legislative and Executive arms of government. This is why a relatively small “Payroll Vote” becomes important, but I will return to this in a few.


Limited Government speaks to the fact that the Supreme Law should curtail the powers of government. From the vantage point of the rule of law, the prime minister and no other member of government can be deemed to have unlimited powers or “above the law.”


Finally, we arrive at the fifth principle: Check and Balance. I saved this one for last, as this principle is the primary focus of this Res Publica360 entry. Fundamentally, Checks and Balances are systems designed to keep the various branches of government in line. The Legislative branch, for instance, is to oversee the executive.


BACKBENCHERS: BUILT-IN CHECK & BALANCE?

As alluded to last week, one form of check and balance that is seldom discussed in Belize is the so-called backbenchers’ role in Parliament.


Remember what I said above: The Legislative arm is intended to oversee the Executive’s policies. This job should not only fall to the Opposition (the Minority in Parliament) but also to these “backbenchers.”


Let’s use present-day examples. Currently, the People’s United Party (PUP) makes up the majority, with its members holding 26 out of the 31 seats in the House of Representatives. And, given our system, the members of the Cabinet, led by the Prime Minister (the leader of the Majority party), are likewise made up of persons from among that 26.


By definition, backbenchers are members of Parliament who are not members of the Cabinet and are supposedly free of the so-called “payroll vote.” But that’s a relatively narrow definition.


The Institute for Government, a think tank, uses a much more comprehensive definition when discussing the “payroll vote:”


The term ‘payroll vote’ has traditionally been used to describe MPs [members of parliament] who hold positions from which they would have to resign in order to oppose the government. This includes paid and unpaid positions. The term can also include roles which do not formally bind MPs to vote with the government, but may have been given out by the prime minister in order to reward or encourage loyalty. This is the wider payroll vote.


Did you “hear” that? These paid (or unpaid) positions may “bind” Members of Parliament “to vote with the government.” And there you were, thinking that at least those non-Cabinet ministers were free to vote according to the needs and wishes of their constituencies or, at least, their conscience. Sorry.


Elliott Bulmer (2017)’s work, entitled “Government Formation and Removal Mechanisms,” does an excellent job of summarizing how authorities have worked to dilute the ability of backbenchers to be free enough to challenge their own party’s policies. Bulmer (2017, p. 35) states:


The doctrine of collective responsibility means that ministers cannot vote against the government in parliament…The ‘payroll vote,’ as it is called (because ministers are on the government’s payroll), can be very influential in securing the loyalty and obedience of backbench parliamentarians.


“Governments may attempt to appoint oversized cabinets, or a LARGE NUMBER OF JUNIOR MINISTERS, to increase the influence of the payroll vote. As well as weakening parliament, this tactic can lead to a bloated, inefficient government.


“To prevent this, some constitutions place limits on the number of ministers that may be appointed and hold office at any time. The Constitution of India (article 75), for example, restricts the number of ministers to 15 per cent of the total number of members of the lower house.


BELIZE’S CONSTITUTION AND THE PAYROLL VOTE


As Bulmer (2017) highlighted, prime ministers in parliamentary democracies have an incentive to effectively “purchase obedience” and loyalty from their party folks, thereby, minimizing the possibility that non-Cabinet members of his own clan could too easily challenge the Cabinet’s policies.


[It is worth keeping in mind that Belize’s Constitution—since the last Constitutional reform—has added anti-defection provisions which prevent “crossing the floor,” which is yet another source of protection for the prime minister of the day. But anti-defection is a topic for another time].


The Belize Constitution tries to defend against the payroll vote in section 40(2), which states:


Provided further that the CABINET shall be comprised of (a) not more than TWO-THIRDS of the elected Members of the party that obtains the majority seats in the House of Representatives following the holding of a general election.


Keeping with the current Majority, that provision limits the PUP to about 17 ministers. And, of course, past and present administrations have done well to satisfy that part of the law.


So, in theory, all things being equal, at least nine members of the current Majority in the House of Representatives should be free of the payroll-vote noose. And, where necessary, these free men and women could call—if even politely—their own government colleagues back into alignment with sound public policy.


But, of course, as Bulmer (2017) pointed out, this fairly weak proviso in the Supreme Law leaves the door open to Junior Ministers, or what is often called “Ministers of State.”


How so? Section 40(2) of the Constitution considers only Cabinet members, but as section 44 of the Constitution makes plain that a “Minister of State…SHALL NOT be a member of Cabinet.” So, there you have it. Junior Ministers are paid from the public purse, and, therefore, whatever little flicker of criticism that could have emerged from the backbench is muffled by the expanded (or wide) payroll vote. And here’s the kicker! Under the current language of Section 40(2) of the Constitution, it’s perfectly legal!


WE HAVE BEEN HERE BEFORE


Please understand that this issue arose in the last Political Reform Commission 2000. It was then PRC Commissioner and now Senate President Carolyn Trench Sandiford who offered a dissenting opinion against the PRC’s decision to allow the hiring of “Junior Ministers.” Sandiford. Sandiford wrote:


“If Ministers of State are appointed from the National Assembly, they, in reality, and practice, become members of the Cabinet despite any constitutional amendment which may state otherwise, from the mere fact that they attend Cabinet meetings and participate in discussions, they take an oath of allegiance, and are obligated to execute the policies of the Minister of whom they are the Minister of State. This effectively and undoubtedly make them part and parcel of the cabinet, increasing the cabinet's influence in the house (Emphasis added).


So yeah, we’ve been to this mountain before.


AMENDING SECTION 40(2)?


This brings us full circle. I started this off by talking about the basic principles governing any democratic Constitution. As we move into the Constitutional reform process with those principles serving as guiding lights, the Belizean people—among many other things—will also have to examine the strength (or lack thereof) of these so-called check-and-balance institutions.


If we borrow from the criminologists’ “broken window” concept, we could say that we ought not to let even the smallest crack in our oversight mechanisms go unattended. The payroll vote is one such small crack.

Consequently, as we move towards this extensive exercise of reviewing the Belize Constitution, this is one area that is worthy of our attention.


At a minimum, it should force upon us this question: Should section 40(2) of the Constitution be amended to include not only Cabinet members but also any paid government office to which a Member of Parliament could be appointed, with the expressed goal of limiting the payroll vote?


We shall see where this issue lands on the reform agenda. For now, it could only be hoped that it will all boil down to a matter of principle for most of us.

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