Rock the Boat! Lessons from Past Constitutional Reform (Part 2)

By Dylan Vernon, Real Story #7, 28 January 2024.

Few things rile Belize’s two main political parties more than being labeled PUDP – Belize’s version of Tweedledum and Tweedledee. It grates red and blue nerves raw not only because being perceived as different is the backbone of the partisan game, but also because the truth stings. The petty, personal and often vicious ways the People’s United Party (PUP) and the United Democratic Party (UDP) attack each other are mostly tactics to mask the truth that not much really separates them in ideology, policies and electoral practices in post-independence Belize. Both compete largely as center-right ‘handout’ machines. Both have encouraged voters to ‘tek di money but vote dem out’. Both get voted out when the rot of corrupt ‘feeding’ swings the pendulum to the other side. The list of commonalities is long. But is the issue of constitutional reform on it?

Basically On the Same Page

At the systemic level, constitutional reform is certainly on that PUDP list. By that I don’t mean similarities on the quantity of constitutional amendment acts passed when the parties are in power. On the surface, the record shows numeric parity: of the ten constitutional amendment acts since 1981, five have come under PUP governments and five under UDP governments – even as the PUP deserves credit for establishing both major constitutional commissions since independence.

The partisan similarities on constitutional reform I refer to are of the kind I witnessed firsthand as chairman of the Political Reform Commission (PRC) in 1999. While publicly at odds over the issues of the day, the political parties in the PRC were mostly on the same page in thwarting or watering down some of the systemic reform recommendations that would really decentralise executive power, increase oversight and accountability, reform the electoral system and expand substantive socio-economic rights. Thanks to the non-governmental commissioners on the PRC, a few core proposals still got through.

 As I noted in Part I of this TIME COME series, of the 74 PRC recommendations on the Constitution, 47 called for specific amendments. Of these 47, 17 were fully enacted, 15 only in part and 15 not at all. Not surprisingly, the recommendations in the Final Report of the PRC that were not enacted or were diluted, had common features with those the political parties attempted to torpedo in the PRC: i.e., ones that called for systemic changes that would decentralise executive power, increase oversight and accountability, reform the electoral system and expand substantive socio-economic rights. The same is basically true for substantive political reform recommendations made by civil society organizations both before and after the PRC.

No Rocking the Boat

Coming from the horse’s mouth, the 103 recommendations in the PRC Report were more moderate than I and many in civil society wanted. The fact that, even in this context, 32 of the 47 core recommendations on constitutional reform were ignored or watered down points to the conclusion that the two main political parties ‘like it so.’ The basic structure of the 1981 Constitution has served their interests well.

When finalising the Final Report of the PRC in late 1999, I selected a statement from a citizen to characterise the key conservative tone of the Report: ‘Let’s rock di boat but don’t overturn it’.  It seems that the message that the PUDP heard was ‘Don’t rock the boat’.  Let’s look at some of some examples of why I say this.

On Decentralisation of power. Key PRC recommendations ignored or watered down included:

  • Further limiting the number of cabinet ministers coming from the National Assembly (Recommendation#32)
  • Enshrining local government in the Constitution (R#89)
  • Limiting the use and abuse of Statutory Instrument mechanism (R#39)
  • Various recommendations aimed at decreasing the number of constitutional posts appointed just by the Prime Minister (Examples: R#41, R#60, R#57, R#67 and R#80).
  • Regulating the powers of ministers to waive fees (R#77).

Electoral reform: Key PRC recommendations ignored or watered down included:

  • Electing an empowered Senate by proportional representation (R#43).
  • Revising the membership of the Election and Boundaries Commission to decrease the influence of political parties (R#80).
  • Establishing a firewall between the ministerial and constituency roles of elected representatives (R#70)
  • Two critical recommendations that could have been approached both constitutionally and by ordinary law were (a) registration of political parties (R#78) and (b) campaign finance regulation (R#79).

On Increasing Oversight and Accountability: Key PRC recommendations ignored or watered down included:

  • Increasing the independence and impartiality of key guardian bodies enshrined in the Constitution by (a) having the Prime Minister appoint fewer members, (a) including more appointees from non-government organizations, and (c) staggering the tenure of some members to ensure that not all posts change at every election (R#41, R#60, R#67 and R#80).
  • Increasing penalties for public corruption (R#103).
  • Increasing people’s participation in the legislative process (R#50),
  • Three recommendations that could have been approached both constitutionally and by ordinary law were (a) Freedom of the Press (R#19), (b) regulating money in politics (R#79) and (c) decreasing the use and abuse of the open-vote worker (non-established staff) mechanism in the Public Service (R#69).

On Enhancing Human Rights: Key PRC recommendations ignored or watered down included:

  • Enshrining the right to vote as a fundamental right (R#17).
  • Expanding socio-economic rights to include: (a) the right to health care (R#16), and (b) the right to education (R#15). The recommendations were to add these to Part II of the Constitution on Fundamental Rights and Freedoms, but they were only included in the Preamble, which is not independently enforceable.
  • Adding entitlement to fundamental rights and freedoms whatever an individual’s (a) disability (R#11) and (b) sexual orientation (R#12). ‘Disability’ was only included in the Preamble.
  • Ensuring that public institutions and publicly funded institutions do not abuse the rights of women (R#96).

There were other PRC recommendations that were not acted on that did not fall under these four categories – for example, ones to teach the Constitution in all schools, to make the constitutional language gender neutral and to ensure that legal aid is more accessible.

As a matter of interest, I also share a few examples of proposals that did not make it through the PRC that emanated from the Society for the Promotion of Education and Research and from the Civil Society Steering Committee:

  • Direct election of the Prime Minister.
  • Appointment of the majority of cabinet ministers from outside the National Assembly.
  • Replace the British Monarch with a Belizean Head of State.
  • Term limits on members of the House of Representatives.
  • Including civic responsibilities of citizens in the Constitution

Wins that Give Hope

Beyond the ‘process’ wins described in my first post in this series, there have been important individual constitutional reform wins also. After the PRC Report in 2000, the third (2001), fourth (2001) and fifth (2005) constitutional amendment acts collectively resulted in the largest number of specific amendments in the 42-year life of the Constitution. (Pic shows the ceremony to present the PRC Report in January 2000).

Among the notable constitutional changes (due directly or indirectly to civil society advocacy or to the PRC) were:

  • Amending the Preamble to include principles of ethnicity, disability, gender equality, basic education, basic health, the right to vote, and protection of social and cultural values of Belizeans, including Belize’s indigenous people. As I note in my post on the Preamble, these have not been operationalised in the rest of the Constitution but have significant normative value for interrupting it.
  • Eliminating of economic citizenship.
  • Provisions to force representatives who cross the floor to vacate their seats.
  • Provisions to subject representatives to possible recall by their constituents.
  • Expanding the membership of the Senate to include social partners and adding new powers.
  • Separating out the Security Services Commission from the Public Service Commission.
  • Replacing the Privy Council with the Caribbean Court of Justice and several amendments to improve the effectiveness of the Judiciary.
  • Removing the swearing of allegiance to the British Monarch in the Oath of Office.
  • Giving first call on the budget to key guardian bodies in the Constitution.
  • Limiting the Prime Minister to three consecutive terms in office.

Several political reforms (related to ordinary law) can be added to this list including the Referendum Act, the Ombudsman Act, the Prevention of Corruption in Public Life Act, revisions to the Finance and Audit Act, Freedom of Information Act, the Recall of Elected Representatives Act and several local government acts.

Even without an assessment of the implementation and impact of these constitutional and political reforms, most have inherent worth and several have contributed to the incremental enhancement of aspects of democratic governance. Very importantly, they give some needed hope to younger people and to new civil society groups (who must pick up the advocacy baton from the older guard) that tangible reform wins are achievable.

Rock the Boat!

Despite the individual wins, in 2024 the basic structure of the Constitution remains the same, the executive remains as powerful, the first-past-the-post electoral system has survived intact, corruption has expanded, and the British monarch remains our Head of State. This reminds us not to get too bogged down in the number of reform recommendations nor the percentage accepted by governments, but to focus more on whether they are really addressing systemic causes.

So, what are the additional lessons for the current constitutional review process being led by the People’s Constitution Commission? Some are obvious. The Final Report of the PRC still provides both useful analysis and food for thought on proposals that are still lingering 23 years after. It is one logical point of departure for the present constitutional reform process. This is not to say that the Final Report of the PRC is sacred. As noted above, it had its flaws, and I am among those who did not agree with several of its recommendations or non-recommendations.

There will likely be PUDP unity against some systemic reforms as well as partisan divisions being manufactured over one or more reform issue. In addition to taking solace from the past reform wins, civil society groups need to step up their advocacy, build alliances and use their majority position on the PCC wisely. And once the PCC presents its final report, civil society groups cannot see that as victory. They will need to establish a long-term watch dog mechanism to monitor progress and hit the campaign trail if there is a referendum.

So as not to waste this new chance for meaningful constitutional reform, the PCC process this time around must rock the boat! It must go after systemic problems we all know are rotting our political and social democracy: excessive powers in too few hands, ineffective separation of powers, rampant corruption and impunity, the PUDP electoral stranglehold, the buying of votes and favours, the marginalization of vulnerable groups, the lack of effective social welfare, and the inequity in access to justice. I do hope that after its public consultations and before it commences its deliberations on what it has heard from the people, that the PCC goes back to first principles and ask how best to use the constitution to address such systemic concerns. It should not be another exercise of tinkering with incremental changes to a section here and there.

For sure, the Act that established the PCC has flaws – including the absence of an independent secretariat, an end game that leaves too much to the discretion of the government and no legal commitment to a referendum. Yet, it also provides political space that can be seized and widened. This is easier said than done given the current absence of coordinated civil society alliances. What is clear to me is that neither civil society nor the PCC should leave it to the National Assembly (where one party has more than ¾ majority) to pick and choose what should be in a new constitution. We know from the PRC experience what changes the PUDP will seek to ignore or dilute. This part cannot be left only to the government.

People who look for limitations instead of thinking boldly (especially some lawyers) will say that the PCC cannot itself present a new or revised constitution to government – because the Act does not say this specifically.  Nonsense! This is exactly what the PCC needs to do. The PCC is mandated to present a report to the National Assembly through the Prime Minister. Nothing stops the PCC from including a new constitution as part of its final report.

Just think about this: if the government sticks to its political commitment to have a referendum on a people’s constitution, what will be put to the people? The entire Report of the PCC? A list of what government selects from the Report? And who will write the new constitution after the referendum?  But if the PCC produces a new constitution, even in skeletal form, that is what should go to the people as the legitimate outcome of the public consultation process.

What are the odds of this happening? Right now, they are not encouraging. This does not mean that we should detach from the constitution review process. Just the opposite. We need to engage even more to help ensure the best outcome. If we are to take the fullest advantage of this second post-independence opportunity, we have to accept that the buck stops with us – we the people. After experiencing nine general elections and six changes of government since independence we know what not to expect from the PUDP.

Note: Apart from the linked references in this post, the information and insights I provide come from (a) my personal participation in the constitutional reform processes of the 1990s and after: I coordinated the SPEAR political reform campaign from 1994-1998 and I was the chairperson of the PRC and prepared its Final Report; and (b) subsequent research and monitoring of constitutional reform developments.  

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