Loosening the grip
A bill prepared by a team of independent counsels who are advising Speaker of the House of Assembly Halson Moultrie seeks to put Parliament directly in control of its budget and loosen the Cabinet’s stranglehold on the administrative functions of the legislature.
Moultrie’s team of legal experts includes Dame Joan Sawyer, former president of the Court of Appeal; Fred Smith, QC; Maurice Glinton, QC; Obie Ferguson, attorney and trade unionist; Kelphene Cunningham, former registrar general and vice president of the Industrial Tribunal; and Kahlil Parker, president of the Bahamas Bar Association.
He previously called the role of the attorney general as the sole legal advisor to the Parliament an “adulterous relationship that is forbidden by the very concept of the separation of powers and tenets of Westminster”.
The Parliamentary Service Bill 2019 would establish a parliamentary service and a Parliamentary Service Commission, which would directly oversee the operations of Parliament, thereby making it a more independent arm of government, as envisioned by the constitution of The Bahamas.
Subject to approval of the speaker (who would be the commission’s chairperson), the parliamentary service and the commission would be able to accept monies by way of grants or donations from any legitimate source within or outside The Bahamas.
The parliamentary service would be an autonomous institution of exemplary administrative, parliamentary and technical competence, according to the bill.
It states that employees of the service shall not seek or receive directions from any source or authority external to the institution.
Currently, Parliament is under the control of the Cabinet Office as it regards spending decisions.
Every member of the House and Senate would be required to respect and honor the independent, non-partisan and apolitical nature of the parliamentary service and would be legally barred from seeking to influence employees in the discharge of their functions.
The parliamentary service shall provide support services to the Parliament to ensure the full, effective exercise of its powers, obligations, duties and functions and provide such other services as the speaker or the clerk in consultation with the speaker may specify.
Moultrie has repeatedly pushed for an independent Parliament and hopes the legislation would result in less interference by the executive in the running of Parliament.
In a statement in House last September, Moultrie spoke of the need to “remedy the wrongs that exist in The Bahamas’ version of Westminster” and called for the “total separation” of the legislative branch from the executive.
“It is common knowledge that the continuing encroachment of the executive into the Parliament has effectively rendered the legislature impotent in its role as a check on the executive as envisaged in Article 72 of the constitution,” Moultrie said.
“Constitutionally, the executive branch (Cabinet) has ‘general direction and control of the government’. It is clear that this control was never intended to be absolute.
“While there exists a certain degree of fusion between the executive and legislative branches in both the Senate and House of Assembly, the executive branch should have no specific role or function in the micromanagement of the day-to-day administrative and budgetary functions of the Parliament.
“On the contrary, the doctrine of the separation of powers and the convention of the Westminster model of government forbids such overreaching by any of the three branches into the sphere of influence of any of the other two branches and deems any such action ultra vires and an abuse of power.”
The bill would make parliamentary staff independent of the public service.
The clerk of the Parliament would be the chief executive officer of the parliamentary service and secretary to the commission.
The commission shall provide the necessary services and facilities to ensure the efficient and effective functioning of Parliament; prepare annual estimates of revenue and expenditure for the parliamentary service and the Parliament; and determine and establish a pension scheme to which officers of the parliamentary service may contribute, among other functions.
Its members would include the speaker; deputy speaker (as vice chairperson); leader of government business in the House; the minister of finance; leader of opposition business in the House; and five members appointed by the speaker — three members of Parliament nominated by the political party in government and the other two members of Parliament nominated by the opposition political parties holding seats in the House of Assembly.
It would also have ex officio members: the Senate president, the leader of government business in the Senate and the leader of opposition business in the Senate.
The Bahamas would join other regional jurisdictions if it were to pass such legislation.
Barbados, for example, brought its Parliamentary (Administration) Act into force in 1990. Its Management Commission of Parliament is responsible for the administration and management of Parliament.
An information brief on parliamentary autonomy provided by the Legal Unit of the Parliament Secretariat of Trinidad and Tobago (T&T) provided to T&T MPs in 2017 notes that, “Parliaments around the world have been moving towards the establishment of corporate bodies as a method of improving the utilisation of resources as well as enhancing their independence from the executive.
“Since the main function of the Parliament is to hold the executive to account, there is compelling argument that the Parliament should be allowed to discharge its constitutional functions without government interference. It is felt that the establishment of a corporate body secures the independence, effectiveness and accountability of the Parliament and overall good parliamentary governance.”
The difficulty of the current Parliament of the Commonwealth of The Bahamas in holding the executive to account is that more than 50 percent of government MPs are a part of the executive (including parliamentary secretaries).
Former Speaker Dr. Kendal Major referred to such a scenario as “bastardizing Westminster”.
“When you have Cabinet ministers, in the numbers of 38 members of Parliament and the majority of members of the governing side are Cabinet ministers, what you have done is you have removed and violated the principle of separation of powers and you have created an elected dictatorship because you have Cabinet members who, because of individual and Cabinet responsibility, have a sense of loyalty to the Cabinet,” Major said in 2015.
“They bring that into the House of Assembly and it affects the level of scrutiny and accountability to air matters in an open and honest fashion.”
In his statement in Parliament last year, the current speaker said, “For decades now, the executive, perhaps through a lack of understanding, has violated the spirit of Article 72 of our constitution.”
Article 72(1) states the Cabinet shall consist of the prime minister and not less than eight other ministers of whom one shall be the attorney general…
Moultrie said, “…There should be an amendment establishing an upper limit for the appointment of ministers to eliminate the super-sized Cabinet we have become accustomed to. I recommend that combined, the size of Cabinet and parliamentary secretaries should not exceed an upper limit of 17 or 43 percent of the elected members of Parliament. As long as the status quo remains, it will demonstrate our lack of commitment to the ideals of accountability and transparency.”
The Parliamentary Service Bill 2019 does not address the specific issue of supersized Cabinet.
Attorney General Carl Bethel told National Review the Law Reform Commission is also looking at similar legislation as the bill being circulated and the aim is to have the Parliamentary Service Bill 2019 before Cabinet by October.