Categorized | Opinions

A Constitution with a poor Electoral Process – shows poor Governance intent

An excerpt from a contributor’s submission on issues of the draft Constitution

Life of the Legislative Assembly
The natural life of the Legislative Assembly is 5 years, but it can be cut short at any time by agreement or collusion between the Premier and Governor. This is undemocratic to say the least. The power to cut short the life of the Assembly should rest only with the people by some mechanism which allows the electorate to recall a government. Others may be better able to propose how the people can be empowered to deal with a rogue government. I will focus therefore on what I consider to be undue power that the Premier and the Governor have.

Prorogation and dissolution
66.-(1) The Governor, acting in accordance with the advice of the Premier, may at any time, by proclamation published in the Gazette, prorogue the Legislative Assembly.

(2) The Governor, acting after consultation with the Premier, may at any time, by proclamation published in the Gazette, dissolve the Legislative Assembly.

(3) The Governor shall dissolve the Legislative Assembly at the expiration of five years from the date of the first sitting of the Assembly after any general election unless it has been sooner dissolved.
My submission is that Parliament should have a ‘fixed term’. That is to say, members of Parliament should be elected for a fixed period of 4 or 5 years. No early General Elections except when forced by the people. Consequently the provisions whereby a Premier has the power to „call early elections‟ with the consent of the Governor should be removed.

A ruling party or coalition government should not have the opportunity of attempting to „wrong-foot‟ the opposition and call an election early with a view towards catching them off guard. Only the electorate loses with a rushed political campaign period. It is also interesting to note that for the most part it is usually a floundering government that attempts this maneuver, and if they are successful they end up squeaking back into office for an extended period rather than being rejected in a regularly scheduled poll. “Snap Elections‟ should be consigned to the dustbin of history. Section 66.(2) should be removed altogether.
Also this move to early elections is sometimes precipitated by a Chief Minister who is losing the support of his party or coalition. This leads me to a vexing provision in the Constitution which essentially allows for a Premier who has lost the support of his colleagues to still make recommendations on the way forward.

Appointment of Ministers

32.-(1) The Governor shall appoint as the Premier the elected member of the Legislative Assembly who demonstrates to the satisfaction of the Governor that he or she commands the confidence of a majority of the elected members of the Assembly.

So here it is clear that an individual can only attain the office of Premier through the support of the majority of the other elected members. I am therefore suggesting that if at any time the Premier loses that majority support which caused him to become ‗first among equals‘, some other elected member of the Assembly should be allowed to take over the office. That is to say, if another elected member of the Assembly can prove that he or she has the support of a majority of the elected members, then he or she should be automatically allowed to become the Premier.

Tenure of office of Ministers

33.-(1) If a motion that the Legislative Assembly should declare a lack of confidence in the Government receives in the Assembly the affirmative votes of a majority of all the elected members of the Assembly, the Governor shall, by instrument under the public seal, revoke the appointment of the Premier and appoint another person as Premier in accordance with section 32(1); but before so revoking the Premier‘s appointment the Governor shall consult the Premier and may, acting in his or her discretion, dissolve the Legislative Assembly instead of revoking the appointment.

This clause makes two rather undemocratic provisions which should be removed in the interest of good governance.

Firstly it allows someone who was rejected by his colleagues, (who gave him the power in the first instance) to have a final say that could adversely affect the others. What is the purpose of consulting a rejected leader who is by now very bitter and possibly vindictive?

And secondly it gives the Governor undue power over the electoral process.

The Governor should not be allowed the prerogative to dissolve the Assembly if someone has a majority. It cannot be considered democratic for a Governor on his own to decide if the majority grouping of duly elected representatives that is presented to form the Government meets his or her approval. Suppose for argument sake that the Governor of the day has a personal issue with an individual member of the Assembly, and as a result rejects a legitimate proposal to form the Government simply because it comes from a group which includes that out of favour individual. Can that be considered „good governance‟ and a democratic practice? Section 8.16 of the Constitution Commissioners‟ Report speaks directly to this issue and stated among other things the following; ―…dissolution should not depend on the wishes of a        ‘defeated’ Chief Minister. The Governor should dissolve only after a failure to secure an alternative government. This seemed to be fairer and more democratic… In recommending this new and reasonable procedure, the Commission claims important support.‖ We should now take the opportunity to include this recommendation in the draft Constitution.

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A Moment with the Registrar of Lands

An excerpt from a contributor’s submission on issues of the draft Constitution

Life of the Legislative Assembly
The natural life of the Legislative Assembly is 5 years, but it can be cut short at any time by agreement or collusion between the Premier and Governor. This is undemocratic to say the least. The power to cut short the life of the Assembly should rest only with the people by some mechanism which allows the electorate to recall a government. Others may be better able to propose how the people can be empowered to deal with a rogue government. I will focus therefore on what I consider to be undue power that the Premier and the Governor have.

Prorogation and dissolution
66.-(1) The Governor, acting in accordance with the advice of the Premier, may at any time, by proclamation published in the Gazette, prorogue the Legislative Assembly.

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(2) The Governor, acting after consultation with the Premier, may at any time, by proclamation published in the Gazette, dissolve the Legislative Assembly.

(3) The Governor shall dissolve the Legislative Assembly at the expiration of five years from the date of the first sitting of the Assembly after any general election unless it has been sooner dissolved.
My submission is that Parliament should have a ‘fixed term’. That is to say, members of Parliament should be elected for a fixed period of 4 or 5 years. No early General Elections except when forced by the people. Consequently the provisions whereby a Premier has the power to „call early elections‟ with the consent of the Governor should be removed.

A ruling party or coalition government should not have the opportunity of attempting to „wrong-foot‟ the opposition and call an election early with a view towards catching them off guard. Only the electorate loses with a rushed political campaign period. It is also interesting to note that for the most part it is usually a floundering government that attempts this maneuver, and if they are successful they end up squeaking back into office for an extended period rather than being rejected in a regularly scheduled poll. “Snap Elections‟ should be consigned to the dustbin of history. Section 66.(2) should be removed altogether.
Also this move to early elections is sometimes precipitated by a Chief Minister who is losing the support of his party or coalition. This leads me to a vexing provision in the Constitution which essentially allows for a Premier who has lost the support of his colleagues to still make recommendations on the way forward.

Appointment of Ministers

32.-(1) The Governor shall appoint as the Premier the elected member of the Legislative Assembly who demonstrates to the satisfaction of the Governor that he or she commands the confidence of a majority of the elected members of the Assembly.

So here it is clear that an individual can only attain the office of Premier through the support of the majority of the other elected members. I am therefore suggesting that if at any time the Premier loses that majority support which caused him to become ‗first among equals‘, some other elected member of the Assembly should be allowed to take over the office. That is to say, if another elected member of the Assembly can prove that he or she has the support of a majority of the elected members, then he or she should be automatically allowed to become the Premier.

Tenure of office of Ministers

33.-(1) If a motion that the Legislative Assembly should declare a lack of confidence in the Government receives in the Assembly the affirmative votes of a majority of all the elected members of the Assembly, the Governor shall, by instrument under the public seal, revoke the appointment of the Premier and appoint another person as Premier in accordance with section 32(1); but before so revoking the Premier‘s appointment the Governor shall consult the Premier and may, acting in his or her discretion, dissolve the Legislative Assembly instead of revoking the appointment.

This clause makes two rather undemocratic provisions which should be removed in the interest of good governance.

Firstly it allows someone who was rejected by his colleagues, (who gave him the power in the first instance) to have a final say that could adversely affect the others. What is the purpose of consulting a rejected leader who is by now very bitter and possibly vindictive?

And secondly it gives the Governor undue power over the electoral process.

The Governor should not be allowed the prerogative to dissolve the Assembly if someone has a majority. It cannot be considered democratic for a Governor on his own to decide if the majority grouping of duly elected representatives that is presented to form the Government meets his or her approval. Suppose for argument sake that the Governor of the day has a personal issue with an individual member of the Assembly, and as a result rejects a legitimate proposal to form the Government simply because it comes from a group which includes that out of favour individual. Can that be considered „good governance‟ and a democratic practice? Section 8.16 of the Constitution Commissioners‟ Report speaks directly to this issue and stated among other things the following; ―…dissolution should not depend on the wishes of a        ‘defeated’ Chief Minister. The Governor should dissolve only after a failure to secure an alternative government. This seemed to be fairer and more democratic… In recommending this new and reasonable procedure, the Commission claims important support.‖ We should now take the opportunity to include this recommendation in the draft Constitution.