Reflections on the Proposed Constitution part 8

As I continue to read the proposed Constitution I still wonder if some of the things I pick up are errors or a result of misunderstanding/misinterpretation on my part. Section 215 which falls under “Offices Protected by Tribunal Procedure” reads as follows, “In the exercise of the functions vested in him by section 213 of this Constitution, the Attorney General shall not be subject to the direction or control of any other person or authority.”{{more}} But section 213 has nothing to do with the functions of the Attorney General or in fact investing him with any functions. It simply makes provision for someone acting for the Attorney General if he is unable to exercise the functions of his office. Is this the result of the haste to get this thing passed or am I misunderstanding it? Furthermore, section 216 (3) presents another problem. It states, “Notwithstanding anything contained in this Constitution, when there is a change in Government or when a new Prime Minister is appointed the Attorney General shall put his appointment as Attorney General at the disposal of the Prime Minister; and in any event without suffering any loss of his benefits as a public officer with security of tenure.”

Clearly this suggests that a new Prime Minister has the power to replace the standing Attorney General when he/she is a Public Officer and protected otherwise from dismissal except under conditions specified. In fact, 217 (1) gives the process by which an Attorney General as a public officer can be removed. This will be “only for his inability to exercise the functions of his office (whether arising from infirmity of body or mind or any other cause), or for misbehaviour…” What is strange about this is that there is no cross reference to 216 (3). But my reading of these sections is that section 216(3) will prevail since it states, “Notwithstanding anything contained in this Constitution” the Attorney General puts his appointment at the disposal of a new Prime Minister. 117 (1) states, “The Attorney General, as the principal legal advisor to the Government of St.Vincent and the Grenadines as laid down in section 213 of this constitution shall, subject to subsection (3) of section 112 of this Constitution, be responsible for the administration of the legal affairs of the Government of St.Vincent and the Grenadines.” Is this another error for 213 does not make reference to the Attorney General as the principal legal Adviser to the Government. It is section 212 that makes reference to the Attorney General as the principal legal advisor to the Government.

Since any new constitution should take account of practices in country and elsewhere I am of the view that Freedom of the Press should be expressed as a distinct fundamental freedom. A Free Press is essential to any proper functioning democracy and everything should be done to enshrine this as such despite the argument that it should be treated as a component of Freedom of Expression. Of course reference to the press is to the media generally. With the revolution in telecommunications and the growth of media forms, governments feel threatened by the potential of the media and the temptation will always be there to limit their freedom, so we have to protect it.

As one who as a member of the St.Vincent and the Grenadines Teachers Union had fought for a Teaching Service Commission I am appalled at what is provided. The Chairman is appointed by the President acting in consultation with the Prime Minister and the Minority Leader. I really don’t have to ask whose interest would prevail. Then the only say the Union has is with the appointment of one member done by the President acting in consultation with the Prime Minister and the Union or any organ that represents teachers. The other members are the ones appointed to the public service; that is one who had been appointed by the President with the advice of the Prime Minister; a second appointed by the President with the advice of the Prime Minister who is required to consult with the Minority Leader and a third also appointed by the President in his own deliberate judgment in consultation with civil society bodies. So this is it. The teachers have little power in relation to who is appointed on a Commission that is meant to serve them. This is not what we fought for.

I continue to be dissatisfied with the fact that so many provisions in the Constitution are left to Parliament to work out the details. This really means giving more power to the Prime Minister because the experience of parliamentary democracies is that the Prime Minister assumes tremendous power. In our countries, especially, he controls the parliament. This is so too with his Cabinet since he is the one who appoints them. There is really little in the Constitution to convince me otherwise since the President himself remains largely a nominal figure. In any event he is elected by Parliament and this has its own implications given the structure and functioning of parliament. My fear, for instance, about Local Government is that members of the different town and village councils might simply be appointed by Cabinet rather than obtain their positions based on elections in their particular areas.

Next week we vote on the Constitution. It should not be a question of how many clauses you agree or disagree with in the proposed Constitution. It is not a question of numbers because some things are of more importance than others. When I look at the Constitution my interest is in ensuring that our rights and freedoms are protected, that democracy is strengthened, that governance will improve and that there is no likelihood of the State becoming abusive and all powerful. I share the commonly held view that people’s power under our system of government only manifests itself when we go to the polling booth. In reality the power is to some extent with parliament but mostly with Cabinet and essentially with the Prime Minister. Although it is important to examine all of the provisions of the Constitution, meaning examining them clause by clause, to me the important thing is where the document as a whole is pointing. The Guiding principles is a vision statement but it will remain so, a vision, because to achieve this vision our politicians would have to behave differently and there is no sign that that is going to happen. In fact as we move to this Referendum on the Constitution we should be concerned about some of the things that are happening. It is as if we are at war. Would our politicians wake up the day after the Referendum and behave differently? Is there anything in the Constitution that could force them to do so? What is the process/methodology for ensuring that vision? As we build up to the Referendum we should have been seeing signs of the development of a different mindset, but the worst elements of our political practice and culture are manifesting themselves which certainly is not a good sign.

We might make decisions based on the trust we have in a particular individual or individuals who hold office but will they always be there? What happens if someone or persons of different dispositions take over are there provisions to hold them in check? Next week’s vote is very important because we will have to live with the implications of whatever we do. People must be guided by their consciences and their understanding of what pertains to governance and the strengthening of democracy. For those who are deeply religious do what my Minister says, be guided by God.

Dr Adrian Fraser is a social commentator and historian.