By Dylan Vernon, TIMECOME #11, 5 September 2024.
Whether you find the current infighting in Belize’s Opposition United Democratic Party (UDP) delightful, depressing or just plain popcorn worthy, it does raise a few prickly constitutional questions. For example, can the Honourable Shyne Barrow, the current UDP Leader of the Opposition (LOO), force members of his own party to vacate their parliamentary seats? Such questions put a spotlight on Section 59A of the Constitution of Belize which deals with members of the House of Representatives resigning from their political party or crossing the floor. Has 59A served our democracy well? Does it need rethinking?
Current UDP Woes
Cutting to the chase, a long-standing cut-throat competition (since 2020) for leadership of the UDP has devolved into a political circus that sometimes seems just on the verge of partisan suicide. It almost makes the intra-party conflicts of the People’s United Party (PUP) of 2008 to 2015 seem distantly quaint.
Most recently on 28 August 2024, the central executive of the UDP announced that four of its executive members had ‘constructively resigned’ due to actions it perceived as violating the party’s constitution. Three of the four have held or sought the post of UDP party leader before: John Saldivar, Patrick Faber and Tracy Taegar-Panton. The latter two are members of the House along with the LOO and two other UDP representatives. Taegar-Panton is currently seeking to be the new party leader of the UDP.
The ‘constructively resigned’ four launched a splinter political group (Alliance for Democracy) and insist they have not resigned nor been resigned. On 30 August, the UDP publicly advertised that the posts of the two UDP members of parliament were open for candidate applications. On 4 September, the Alliance for Democracy announced that its members were still members of the UDP and that they will soon convene a UDP ‘Unity’ party convention of party delegates to replace Shyne Barrow as UDP Leader. Caramba! Can there be parliamentary and constitutional implications?
Anti-defection – a Disputed Concept
Let’s begin by getting our terms right. While anti-defection has different definitions across states, in those with political systems based on the British Westminster model, it generally refers to punishing elected members of parliaments who take actions that can be perceived as deviating from commitments to the political party under which they were duly elected.
Most common examples are members who resign from their political party and/or cross the floor, for example, by voting with another party or against their own party in parliament. Basically, proponents argue that anti-defections provisions (1) mitigate against elected members ignoring commitments made to their party and their constituents, (2) promotes democratic stability by avoiding legislative paralysis, and (3) mitigate against defections threatening a government’s tenure.
On the other hand, sceptics argue that such provisions are anti-democratic because (1) a vote against a party position in parliament can actually be what constituents want, (2) representatives can end up putting party over parliament and country, and (3) they can be abused by party leaders to silence legislative oversight.
In some countries, such as India, the anti-defection rules are quite draconian, and Members of Parliament (MPs) can be quite easily expelled for voting against party directives. In other states, the threshold for MPs being forced to vacate their seats are less stringent or left open to partisan discretion. For example, in the United Kingdom there is the option of ‘removing the whip’, where MPs, who don’t support their party’s line, can lose some privileges and/or appointments but keep their seats.
At the other end of the spectrum are those states with softer approaches and no anti-defection laws. For example, legislators in the United States can vote to impeach a sitting president of their own party without fear of vacating their seats. However, their political party can remove committee appointments and privileges and complicate their re-election.
‘Partisan deviancy’ before 2001
As with the Self-Government Constitution in 1964, the 1981 Constitution was totally silent on members of the House crossing the floor or resigning from their own party until 2001. Without legal guidance, it was totally up to the political party to decide what to do in circumstances where a sitting member refused to follow party directives in the House or spoke out in public against it. There are, of course, both PUP and UDP examples of note.
There was, for instance, the unfortunate electoral fate of Jesus Ken, progressive unionist and radical activist, who decisively won a legislative seat in 1961 on the PUP ticket (Corozal South). The firebrand ran afoul of the already ‘moderating’ PUP directorate when he continued his public advocacy for workers’ rights. In short, George Price and the PUP tried to get Ken to withdraw from his constituency for the 1964 general election. Ken refused and the PUP threw its powerful machinery behind a young Florencio Marin, who won in a very close party convention.
During the 1974 to 1979 PUP government, Vicente Choco (a Toledo represntative) left the then Opposition UDP and crossed over to the majority PUP side of the House in 1976. This decreased the number of UDP seats from six to five in the then 18-member House. After independence and during the 1989 to 1993 term of the governing PUP government, the UDP’s Stanley Usher (Toledo East) crossed the floor, increasing the slim two seat PUP majority (15-13) to three (16-13). Both these Toledo defections can be described as opportunistic and transactional for both the two representatives and the PUP.
In 1992, National Hero, Philip Goldson (Albert) had resigned from the Opposition UDP over differences on approaching the Guatemalan claim. In early 1992, he become leader of a splinter party, the National Alliance for Belizean Rights (NABR) along with two other UDP elected representatives – Hubert Elrington (Lake Independence) and Dereck Aikman (Freetown). Aikman was expelled from the House in late 1992, on another more technical basis: that he no longer qualified to be a representative after he was declared bankrupt by the Supreme Court.
For the snap 1993 election, the UDP formed a coalition with NABR and narrowly won by 16 to 13 seats. Immediately after the election, there were credible allegations that elements of the then Opposition PUP attempted to bribe two UDP representative to cross the floor. Had it succeeded, it could have resulted in a change in government.
Apart from Jesus Ken, the subjects in the cases above all resigned before their next election and/or joined another party. To this day, there is speculation that some in the UDP hierarchy helped to engineer Aikman’s 1992 political demise. The Ken and Aikman stories (if the latter is true) are instructive examples that political parties have multiple options, apart from anti-defection provisions, to castigate elected members who deviate from partisan doctrine and directives.
What’s in 59A?
Section 59A of the Constitution of Belize is a direct result of an anti-defection recommendation (#46) of the Political Reform Commission (PRC) of 1999-2000. Interestingly, both major political parties were vocal, if not lead, proponents of the anti-defection recommendation in the PRC.
In 2001, the then PUP government acted positively on the PRC recommendation; however, it did so constitutionally and not with ordinary legislation. Section 59A was enacted as part of the Fourth Amendment of the Constitution (2001). In effect, it introduced Belize’s first anti-defection provision. Regrettably, there were no public consultations on drafting the amendment and no clear definitions of defection or crossing the floor were included – as the PRC had recommended.
In essence, 59A states that if a sitting member of the House resigns from her/his political party, she/he must inform the Speaker within seven days. The leader of the relevant party in the House is then to notify the Speaker who can declare, at the next sitting of the House, that the representative has ceased to be a member. The member in question has 21 days to appeal a Speaker’s declaration to the High Court. Party leaders can also use their own judgement to inform the Speaker that one or more of their members has/have crossed the floor. If the Speaker so declares, the member has 21 days to appeal to the High Court.
In making a declaration in either scenario, a Speaker has to be satisfied that the “circumstances referred to in Section 59(2)(e) exists”. Section 59(2) lists all the scenarios under which a member of the House shall vacate a seat and (e) is not particularly useful to Speakers. It simply states that a member “shall also vacate his seat:
If, having been a candidate of a political parry and elected to the House of Representatives as a candidate of that political party, he resigns from that political party or crosses the floor;”
No definition of crossing the floor is provided. Although no member of the House nor any party in parliament has ever tested the provision to its logical conclusion, Section 59A has been cited by several members of the House and partisan threats have been made relating to it.
Notable Cases Since 2001
The first real opportunity for 59A to be tested was in 2004. Seven sitting PUP ministers (the ‘Gang of 7’ or G7), six of whom were elected representatives, publicly criticised their own government over actions by the Minister of Finance and then resigned from Cabinet in protest. None of the six ministers who were representatives resigned from the House or from the PUP, nor did Said Musa, the then PUP prime minister and party leader, make any attempt to use 59A against them.
One of the more sensational post-2001 cases is that of Marcel Cardona, (Orange Walk East) in the 2008 – 2012 term of the UDP government. Cardona, who had been removed from his Cabinet post in 2010 after intra-party skirmishes, used the 2011 budget debate to disparage his own prime minister (Dean Barrow) and to attack the budget. He then abstained from voting on it. The UDP charged that Cardona had ‘constructively resigned’ but stopped short of using 59A to inform the Speaker that Cardona had crossed the floor. Cardona insisted that he had not resigned – and he never did.
In a curious ‘arrangement’ Cardona was placed on the second row on Opposition side of the House behind a plague that said “Non-Affiliated”. While sitting there, Cardona famously sported a green hard hat to protest projectiles being thrown at him from the gallery. After being fully ostracised by his party (losing the whip), Cardona endured until the National Assembly was dissolved for the 2012 general election. Shortly after, he announced that he would not contest his constituency and would support the Opposition.
Although from the other major party, Ivan Ramos likely had the Cardona fiasco well in mind when he resigned from the House of Representatives in mid-2015. Ramos was a PUP representative (Dangriga) in the 2012-2015 term, when the PUP was in opposition. Ostensibly, he accepted funds from the UDP government (PetroCaribe), going against PUP party policy not to. Under heavy party pressure, Ramos resigned before the snap general election in 2015, forcing a by-election in his division. Unlike with the G7 in 2004, the PUP of 2015 clearly saw Ivan Ramos as electorally dispensable.
This was not the case with Cordel Hyde and Mark Espat (of former G7 fame) in the same time period (2011 – 2012) when the PUP was in opposition wilderness and still engaged in factious infighting. As they had done in 2004 and again in 2007, Hyde and Espat publicly criticised some of their party’s actions. While they were suspended from cabinet, they suffered no parliamentary repercussions. They were too electorally valuable and powerful within the party to ‘touch’ with 59A. This likely was also the case with the UDP’s John Saldivar in 2020 and less so with Elvin Penner in 2013. Both were fired from cabinet for scandal related matters, but no attempt was made to use 59A against them.
Shyneing a Light
So, can the UDP LOO, Shyne Barrow, constitutionally force members of his own UDP party to vacate the parliamentary seats to which they were duly elected in 2020? While there is no 59A precedent, he can try at least two strategies.
First, if the LOO is unable to pressure Patrick Faber and Tracy Taegar-Panton to resign from the UDP, he can play out the option of notifying the Speaker, in writing, that the two have constructively resigned from the party. The Speaker would then need to decide whether to accept this information and whether to declare that the two have ceased to be members of the House. In doing so, the Speaker would have to determine if the “circumstances referred to in Section 59(2)(e) exist”.
As noted, 59(2)(e) is not at all useful in that it merely states that members must vacate their seats if they resign from their political party or cross the floor. No definitional guidance is given. If the Speaker were to agree with the LOO, Taegar-Panton and Faber would have the option to appeal to the High Court and it could all end up in legal purgatory. But in the meantime, they would cease to perform their duties as members of the House, while not yet vacating their seats.
The second constitutional scenario is even more farfetched. The Honourable Shyne can seek to manufacture a situation in which he directs his four other UDP members of the House to vote a certain way on a Bill or motion. If Taegar-Panton and Faber don’t follow the party vote directive or abstain, the LOO can attempt to notify the Speaker, in writing, that they have crossed the floor. The Speaker would then have to determine if the “circumstances referred to in Section 59(2)(e) exist”. However, nowhere in 59A or in the entire Constitution is crossing of the floor defined. Again, it would be the Speaker’s call and the two members could appeal a declaration to the High Court.
Given the precedent described, a betting person would likely wager that there will be more UDP ‘sound and fury’ but that representatives Taegar-Panton and Faber will not resign from the UDP nor do anything in the House to risk being accused of crossing the floor. Also, the fact that no political party or Leader in the House has thus far used 59A to vacate a sitting member indicates that the real politick in partisan politics, so far, is that political parties in Belize are highly risk averse when seeking to punish defections constitutionally.
But as they say, any number can play, especially in petty intra-party struggles for power. (And this is not even considering that another attempt can be made to replace the LOO in the House). Perhaps, the most critical wild card in all this is what a Speaker does in relation to 59A – and post-independence precedence tells us that Speakers are not immune to playing partisan games.
Reforms Needed!
At this point in this long blog, I myself question what is its point – apart from recording political history? Is defection not just about raw partisan politics, all partisan smoke and mirrors?
My evolving answer is that we have to call out wasteful partisan games, especially if they distract us from addressing truly meaningful issues and if they divide us along irrelevant lines. As with the PUP partisan mess after the 2008 election, the current post-2020 UDP partisan fiasco has no real value to the nation. Our political parties, which we do need, usually begin their terms by doing some incremental good. But because they eventually devolve into corrupt governing machines, because their internal fights are little more than personal power games and because the two main parties are ideologically indistinguishable, we struggle to not be paralysed by cynicism.
If 59A did not exist, would members of the House or political parties and their leaders have acted any differently? Have there been any positive effects? To be fair, no member has crossed the floor since the 2001 constitutional amendment. Yet it’s a bit of a stretch to conclude that 59A has had serious anti-defection effect – and that, if it has, has it made any real difference in partisan behaviour in the House or in the stability of our democracy?
Based on the examples I have selected, I can only conclude that, in the Belize case, issues related to defections are more partisan (political) than they are constitutional. The PUP and UDP have proven their creative capacity to deal with the partisan part without constitutional help.
On the constitutional side, I am now of the view (which has changed since I chaired the PRC) that we should only seek to ensure that members of the House have the option to resign from the House and that partisan mischief should not destabilise a duly elected government. I take this position with the understanding that members of the House can be subjected to recall by their constituencies at any time, and that all constituents will have the option to dismiss their representatives in the next election.
In this regard, I support reforms to 59A that narrow its constitutional or legal scope and that minimize its use for democratic destabilisation. Reforms should be based on the principle that members of our House of Representatives are Belize’s legislators and policymakers first, and should not just be proxies of one or other political party.
I am also of the view that members of the House, with minimal exceptions, must be free to speak out and/or vote on policy and legislation without fear of losing their seats – and without the disillusioning prospect of just being part of a rubberstamp legislature.
All that said, I propose that consideration be given to making constitutional changes to 59A, as outlined below. I share these as complementary to my 15 Proposals for Constitutional Reform:
- Limit resignation (as an option to vacate a House seat) to resignation from the House proper. Resignation from a political party should not be dealt with in the House. These should be viewed as internal party and/or electoral constituency matters that are dealt with by the party, by recall or by elections.
- Prohibit crossing of the floor only in such circumstances in which doing so would result in a change of government or in new elections being called. This level of national government stability is best made immune from partisan mischief. The Constitution already provides for votes of no confidence that can result in a change of government or new elections.
As such, I contend there is no need for bringing tedious and wasteful airing of partisan dirty laundry into the House of Representatives. So much ‘laundering’ has gone on that we are sick of seeing the political parties without their clothes. For sure, the experience of the post-2008 PUP tells us that whatever happens with the post-2020 UDP won’t change much of importance in the big picture. Pero…mas palomitas, por favor!