Constitutionally Enshrined Checks and Balances (Part 2): Legislature oversees Executive

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A few weeks back, as part of this ongoing conversation on checks and balances, we took a comparative look at the salient aspects of the Legislature’s ability to oversee and provide checks on Executive power (see Part 1 by Clicking Here). At the time, we used the world’s most popular democracy, the United States, as the benchmark (so to speak).

But as that article, published in the July 9th issue of The Reporter, made clear, the goal should not be to carbon copy the USA’s presidential system. The goal, instead, is to ask at least two fundamental questions: (a) what are the Parliamentary system’s analogous features that provide oversight of the Executive, and (b) how do Belize’s systems stack up next to the equivalent Parliamentary benchmarks.

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Constitutionally Enshrined Checks and Balances Part 1

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As I had mentioned in an earlier installment of this series on “Checks and Balances,” the empirical literature has shown that Parliamentary systems appear to have an advantage over their presidential counterparts. Among the works cited were McManus and Ozkan (2017). The duo’s work reconfirmed the Parliamentary system’s superior performance on key economic indicators such as inflation, growth, and (reducing) inequality.

But McManus and Ozkan are not alone. Mainwaring and Shugart (1997)—while acknowledging the ostensibly inherent advantages of Parliamentary systems— underscored the roles played by institutional factors to mitigate the harmful tendencies of presidential systems. They wrote:

“Presidential systems can be designed to function more effectively than they usually have. We have argued that providing the president with limited legislative power, encouraging the formation of parties that are reasonably disciplined in the legislature, and preventing extreme fragmentation of the party system enhance the viability of presidentialism. [The literature] clearly recognizes that not any kind of parliamentarism will do. We make the same point about Presidentialism.”

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BACKBENCHERS! IT’S A MATTER OF PRINCIPLE

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We knew it was coming for months, but there’s something in the actual tabling of the People’s Constitution Commission Bill, 2022, that has brought the point home: Belizeans are, in fact, about to embark on a journey to revise our Constitution.

The functions of the Commission are fairly straightforward and delineated in section 6 of the Bill: (a) Conduct a comprehensive review of the Belize Constitution, and (b) prepare and submit to the Prime Minister a final report on its findings of the review.

As is to be expected, the Commission is also expected to carry out this work in a predominantly consultative fashion. For its part, the Bill adds, “For the purpose of sub-section (2) [which addresses how the Commission should go about this work], the Commission shall afford the people of Belize, both within and outside the country, to the extent practicable, the opportunity to freely express their opinions and make suggestions on matters they feel should be considered in the Constitution.”

This is good. This type of process should be as broad-based and as consultative as possible. Of course, this also means that the Commissioners’ work will be cut out for them, given that broad-based also signals wide-ranging and disparate views on what should remain and what should change within the Constitution.

BASIC CONSTITUTIONAL PRINCIPLES

Now, whatever the recommended changes will be, there are at least five principles that are likely to be enshrined in a democratic country’s Supreme Law: (i) Individual Rights, (ii) Popular Sovereignty, (iii) Separation of Powers, (iv) Checks and Balances, and (v) Limited Government.

The first is somewhat self-explanatory, as this speaks to the protection of the fundamental rights of every citizen. Part II of Belize’s Constitution covers these rights, which include the right to life, freedom, protection from inhumane treatment, and protection of your freedom of movement.

The second principle, Popular Sovereignty, is what gives us our representative democracy, as it is understood that governmental authority emanates from the people. It is for this reason the Constitution protects the “voice” of every voter.

Separation of Powers is also enshrined in the Constitution by way of the three branches of Government: The Legislature, Executive, and Judiciary. Of course, in a Parliamentary Democracy, there is often criticism surrounding the blurred lines between the Legislative and Executive arms of government.

Limited Government speaks to the fact that powers of government should be curtailed by the Supreme Law. From the vantage point of the rule of law, the prime minister and no other member of government can be deemed to have unlimited powers or “above the law.”

Finally, we arrive at the fifth principle: Check and Balance. I saved this one for last, as this principle is the primary focus of this Res Publica360 entry. Fundamentally, Checks and Balances are systems designed to keep the various branches of government in line. The Legislative branch, for instance, is to oversee the executive.

BACKBENCHERS: BUILT-IN CHECK & BALANCE?

One form of check and balance (CnB) that is seldom discussed in Belize is the so-called “backbenchers” role in Parliament. Remember what I had said above: The Legislative arm is intended to oversee the executive’s policies. This job should not only fall to the Opposition but also to these backbenchers.

Let’s use present-day examples. Currently, the People’s United Party (PUP) makes up the majority, with its members holding 26 out of the 31 seats in the House of Representatives. And, given our system, the members of the Cabinet, led by the Prime Minister (who is the leader of the majority party), are likewise made up of persons from among that 26.

By definition, backbenchers are members of Parliament who are not members of the Cabinet and are supposedly free of the so-called “payroll vote.” But that’s a fairly narrow definition. The Institute for Government, a think tank, uses a much more liberal definition when discussing the “payroll vote:”

“The term ‘payroll vote’ has traditionally been used to describe MPs [members of parliament] who hold positions from which they would have to resign in order to oppose the government. This includes paid and unpaid positions. The term can also include roles which do not formally bind MPs to vote with the government, but may have been given out by the prime minister in order to reward or encourage loyalty. This is the wider payroll vote.“

Did you “hear” that? These paid (or unpaid) positions may “bind” Members of Parliament “to vote with the government.” And there you were, thinking that at least those non-Cabinet ministers were free to vote according to the needs and wishes of their constituencies or, at least, their conscience. Sorry.

Elliott Bulmer (2017)’s work, entitled “Government Formation and Removal Mechanisms,” does an excellent job of summarizing how authorities have worked to dilute the ability of backbenchers to be free enough to challenge their own party’s policies. Bulmer (2017, p. 35) states:

“The doctrine of collective responsibility means that ministers cannot vote against the government in parliament…The ‘payroll vote,’ as it is called (because ministers are on the government’s payroll), can be very influential in securing the loyalty and obedience of backbench parliamentarians. Governments may attempt to appoint oversized cabinets, or a LARGE NUMBER OF JUNIOR MINISTERS, to increase the influence of the payroll vote. As well as weakening parliament, this tactic can lead to a bloated inefficient government.

“To prevent this, some constitutions place limits on the number of ministers that may be appointed and hold office at any time. The Constitution of India (article 75), for example, restricts the number of ministers to 15 per cent of the total number of members of the lower house.”

BELIZE’S CONSTITUTION AND THE PAYROLL VOTE

As Bulmer (2017) highlighted, prime ministers in parliamentary democracies have an incentive to effectively purchase obedience and loyalty from their party folks; thereby, minimizing the possibility that non-Cabinet members of his own clan could too easily challenge the Cabinet’s policies.

[It is worth keeping in mind that Belize’s Constitution—since the last Constitutional reform—has anti-defection provisions which prevent “crossing the floor,” which is yet another source of protection for the prime minister of the day. But anti-defection is a topic for another time].

The Belize Constitution tries to defend against the payroll vote in section 40(2), which states:

“Provided further that the CABINET shall be comprised of, (a) not more than TWO-THIRDS of the elected Members of the party that obtains the majority seats in the House of Representatives following the holding of a general election.”

Keeping with the current majority, that provision limits the PUP to about 17 ministers. And, of course, the administrations—past and present—have done well to satisfy that part of the law.

So, in theory, all things being equal, at least nine members of the PUP majority in the House of Representatives should be free of the payroll-vote noose. And, where necessary, these free men and women could call—if even politely—their own government colleagues back into alignment with sound public policy.

But, of course, as pointed out by Bulmer (2017), this fairly weak proviso in the Supreme Law leaves the door open to Junior Ministers, or what is often called “Ministers of State.”

How so? Section 40(2) of the Constitution considers only Cabinet members, but as section 44 of the Constitution makes plain, a “Minister of State…SHALL NOT be a member of Cabinet.” So, there you have it. Junior Ministers are paid from the public purse, and, therefore, whatever little flicker of criticism that could have emerged from the backbench is muffled by the expanded payroll vote. And here’s the kicker! Under the current language of Section 40(2) of the Constitution, it’s perfectly legal!

AMENDING SECTION 40(2)?

Okay. So this brings us full circle. I started this off by talking about the basic principles governing any democratic Constitution. As we move into the Constitutional reform process with those principles serving as guiding lights, the Belizean people—among many other things—will also have to examine the strength (or lack thereof) of these so-called check-and-balance institutions.

If we borrow from the criminologists’ “broken window” concept, we could say that we ought not to let even the smallest crack in our oversight mechanisms go unattended. The payroll vote is one such small crack.

Consequently, as we move towards this extensive exercise of reviewing the Belize Constitution, this is one area that is worthy of our attention. And it should force upon us this question: Should section 40(2) of the Constitution be amended to include not only Cabinet members but also any paid government office to which a Member of Parliament could be appointed, with the expressed goal of limiting the payroll vote?

We shall see where this issue lands on the reform agenda. For now, it could only be hoped that it will all boil down to a matter of principle for most of us.

A Balanced and Evidence-based Approach to Minimum Wage Adjustments

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As the conversation on a minimum-wage adjustment develops, it is good that all stakeholders agree—even the business community, as articulated in a recent interview with the Belize Chamber of Commerce and Industry (BCCI)’s President—that an uprate to the minimum wage is necessary.

Additionally, most stakeholders appear to agree that the best way to approach it is by having a minimum-wage-adjustment formula serving as the guide post. That is also a good thing.

The agreement in those two BROAD areas is a great start. However, there are a few technical things that must be highlighted.

BALANCED AND EVIDENCED-BASED

Let’s start here. The likes of the International Labour Organization (ILO) have advised that a Balanced and Evidence-based Approach (BEA) be employed when making uprates. What’s a BEA? Simply put (and is consistent with the ILO’s Minimum Wage Fixing Convention, 1970) is for policymakers to consider the needs of workers, the conditions of the economy, and the ability of enterprises to actually afford the increase.

Candidly speaking, policy always has to consider, inter alia, the ability of the regulated entities to comply with the change. This is why, no one—with a straight face—has uttered that the minimum wage should increase to something like $20 per hour.

More precisely, the ILO, in its minimum wage policy guide, puts it like this:

“A balanced approach is one that takes into account, on the one hand, the needs of workers and their families and, on the other, economic factors.

“Such an approach combines both social and economic factors in order to find a level that benefits workers and society WITHOUT PROMPTING NEGATIVE EFFECTS. A balanced approach is necessary because a minimum wage is a redistributive tool that has both BENEFITS and COSTS.

“If set too low, minimum wages will have little effect in protecting workers and their families against unduly low pay or poverty. IF SET TOO HIGH, minimum wages will be poorly complied with and/or have ADVERSE EMPLOYMENT EFFECTS.”

CHANNELS OF ADJUSTMENT

Before proceeding, there is value in discussing these “effects” alluded to by the ILO and others, as there is a need to expand the paradigm on this subject.

Frankly, the economic literature on MW changes has long since moved towards recognizing that there are many likely channels of adjustment (CoAs) associated with an MW change.

As pointed out by economists such as John Schmitt (2013) and Hirsh et. al (2015) there are POTENTIALLY multiple CoAs. Schmitt, for his part, identified at least ELEVEN that COULD follow an MW increase. These are (1) Reduction in hours worked, (2) Reduction in non-wage benefits (bonus, health insurance, pension contributions), (3) Reductions in training, (4) Changes in employment composition, (5) Higher prices, (6) Improvements in efficiency, (7) Efficiency wage response from workers, (8 ) Wage compression (slower increases for non-MW workers), (9) Reduction in profits, (10) Increase in (consumer) demand, and (11) Reduced turnover.

Now, please notice the use of the words “potential” and “could.” This area of economics is still evolving and many times the results are inconclusive across disparate research works. Nevertheless, there is value in keeping these adjustment channels in mind, as we discuss adjustments to the minimum wage.

Additionally, it is clear that not all of those eleven CoAs are “bad.” Now! Which of those 11 CoAs will dominate in Belize? Well! That should be the subject of our own idiosyncratic research. Remember. Each economy is like fingerprints: Unique, and thus requires unique, research-based attention.

THE FORMULA

The CoAs and the need for a balanced approach are, among other things, the key motivators for a formula-based approach to be utilized. Countries such as Costa Rica employ a formula that looks at the consumer price index (CPI)’s changes alongside the state of the economy, while still preserving the indispensable role of the social partners.

In other jurisdictions, other variables such as the poverty line, productivity measures, and more have been incorporated into their formula in an effort to balance the needs on both sides of the labour market.

Most importantly, the formula-based approach is more predictable, frequent, and structured.

Hypothetically speaking, if since 2012, a formula had been utilized to guide changes on either an annual (or biennial) basis, and those changes were incremental, it is likely that the conversation TODAY would NOT be about jumping from $3.30 to $5.00, which is a significant 51% increase that already struggling employers would have to find! Considering the inflationary times, that pill would be a lot for micro, small, and medium-sized enterprises (MSMEs) to swallow virtually overnight.

If this process had benefited from more frequent updates (annually or biennially), then change might have been well below a 10% uprate (as opposed to more than 50%). Too sudden of a shift may summon the more negative members of that eleven-point list of CoAs mentioned above.

MEDIUM-TERM STRATEGY

For this reason, the ILO’s advice on medium-term MW strategy is also instructive:

“Many countries have discovered that a GAP exists between the legitimate needs of workers and their families and what the ECONOMY IS CAPABLE OF PAYING IN TERMS OF MINIMUM WAGES. It will NOT be possible to eliminate this gap in a SINGLE MINIMUM WAGE ADJUSTMENT, at least NOT WITHOUT ADVERSE ECONOMIC EFFECTS.”

“This suggests that there should be a medium- to long-term target for this policy – that is, closing this gap in SUCCESSIVE, GRADUAL adjustments.”–ILO (2016, p. 52, at Link 1).

In order for there to be a “gap” there has to be two sides: In this case, workers and employers. Often, the conversation on minimum wage ventures into decreeing that the needs of the workers are at least $5.00, $10.00 or more. And, from a cost of living standpoint, that may very well be true!

However, the other half of that GAP is whether the average micro, small, and medium-sized enterprises (MSME) can currently afford to fill those gaps practically overnight.

In short, then, the balanced and evidence-based approach is not an attempt to relegate or ignore the financial needs of workers in any economy. Instead, it rightfully recognizes that there are literally two sides of the equation, and the private sector’s ability to pay cannot be ignored.

ROLE OF SOCIAL PROTECTION PROGRAMS

Of course, the retort can easily be the old adage: “While the grass grows the horse starves.” Can a responsible set of policymakers truly implement a judicious set of incremental increases to the minimum wage, while believing (or maybe even confirming) that the needs of workers are much higher?

The short answer is “no.” But then, at this point, it becomes a debate on responsibility-sharing. While, yes, the workers should benefit more from their work via higher wages, in the interim this is where governments must step in with social protection and assistance programs that, among other things, help to fill the remaining “gap.” The minimum wage, therefore, cannot be the chief and only poverty-fighting strategy of policymakers; there is an urgent need for other social protection programs to be upgraded or introduced, and these include “graduation programs,” rent assistance initiatives, and more.

Graduation programs are worthy of some special attention. These types of social protection programs tend to include cash transfers to individuals or households (e.g. the individual may receive a stipend). Simultaneously, the beneficiaries are (mandatorily) enrolled in skills training programs, and thereafter are matched with productive employment opportunities. Fundamentally, at the end of a prescribed period of time, the participant should be able to stand on his or her own two feet either as a productive employee or an entrepreneur, and may very well be earning more than the legislated minimum wage.

To conclude, then, we must not lose sight of the real problem that we’re trying to address: Poverty. Do minimum-wage adjustments help (however little) ease poverty? The empirical literature says, “Yes.” But is this the only and permanent solution? From an inclusive growth and development point of view, the answer would be “no.” Initiatives like “Graduation Programs,” if done correctly, and in tandem with other robust social protection institutions, can help individuals climb socially and beyond minimum-wage levels.

Culture and Economic Systems

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Maybe the use of the word “travesty” is quite possibly a bit of hyperbole; however, it is the word that comes to mind when one considers the usually narrow exposure most students and economists have with other economic systems. In most universities on this side of the globe, the textbooks “educate” most of us to extol and place on a pedestal one predominant form of the market economy and its inherent assumptions. Those assumptions become a form of cantillation, whereby, we begin to intone the ideals of the “rational consumer,” the “profit-seeking” entrepreneur, and the supposed allocative efficiency of the price mechanism in the market is apotheosized.  

While one cannot completely disregard the utility of some of the foundational assumptions when placed within their appropriate contexts, as the veils of ceteris paribus continue to lift, one component that is increasingly gaining traction within the Comparative Economics literature is the role played by the national cultural values. Said differently, at the heart of the traditional assumptions, there is the inherent and undergirding philosophy that economic agents are largely the same in terms of their driving force and incentives. But as we learn more via research, is that premise entirely true, especially when one recalls that every group of people carry with them their own set of cultural values that, in turn, define goals?

In 2020, the research duo, Thomas Bradley and Paul Eberle, published their paper that touches on this salient point (Bradley and Eberle 2020). Using the seminal work of Geert Hofstede (1980)’s Cultural Dimension Index (“CDI”), they examined the nexus between countries’ disparate economic systems and their CDI scores. The exercise confirmed what most social scientists may have already suspected: That there is an inextricable link between culture and the way people of a particular community or society go about solving economic problems.

The CDI and Systems

To help others appreciate Bradley and Eberle (2020)’s findings, we must digress a bit towards a brief explanation of the CDI’s domains. Since Hofstede (1980) first introduced the CDI, the index has advanced somewhat to now incorporate six dimensions: Power Distance, Individualism, Masculinity, Uncertainty Avoidance, Long-term Orientation, and Indulgence.  The six dimensions are scored from zero to 100.

High Power Distance (PD) speaks to a cultural dynamic that accepts power differences, with citizens of the country in question tending to show a great deal of respect for hierarchy and for those in authority and of rank. Countries like Saudi Arabia and Guatemala carry high PD scores (both at 95). Conversely, the United States and the United Kingdom have much lower PD scores at 40 and 35, respectively. The lower scores for the United States and the United Kingdom are not surprising considering their political structure and institutions.

A high level of Individualism (IND) speaks to the fact that such a society places a greater premium on individual goals and responsibilities. Inversely, low individualism is synonymous with a collectivist society where more weight is placed on the well-being of the collective or society as a whole. As Hofstede defines this dimension, IND can be defined as “a preference for a loosely-knit social framework in which individuals are expected to take care of themselves and their immediate families. Its opposite, Collectivism, represents a preference for a tightly-knit framework in society in which individuals can expect their relatives or members of a particular in-group to look after them in exchange for unquestioning loyalty. A society’s position in this dimension is reflected in whether people’s self-image is defined in terms of ‘I’ or ‘we.’” With that definition in hand, it should be of little surprise, then, to find that Venezuela’s IND statistic is found at the lower end at 12, while the United States’ IND has been set at 91.

Among other things, a society high in what the CDI has labeled as “Masculinity” (MAS) tends to place greater emphasis on competitiveness and “material rewards for success.” A lower score on MAS is said to speak to a preference for “cooperation, modesty, caring for the weak and quality of life. Society at large is more consensus-oriented.” Nordic countries like Sweden and Norway—which have strong welfare systems—are found to have very low MAS values of five (5) and eight (8), respectively. For the United States, the value here is 62, and for both China and the United Kingdom the score is 66 on the CDI. For the latter group (i.e. USA, China, and UK), the CDI signals their cultural preferences for more competition and material rewards, and less emphasis on consensus-building and “caring for the weak” as one may find in Sweden and Norway.

Uncertainty Avoidance (UA) has to do with the society’s risk appetite. More precisely, as Hofstede explains it, it has to do with the “degree to which the members of a society feel comfortable with uncertainty and ambiguity.” Consequently, high levels of UA may manifest itself as a society that prefers rigid codes and conservative behavior that is not very open to “unorthodox behavior or ideas.” Conversely, the lower rankers on UA are expected to have a higher tolerance for risk-taking—a key component of entrepreneurial activities and innovation.

Finally, Long-term Orientation (LTO) speaks to how societies approach preparing for the future. Higher rankers would tend to display an attitude of delaying immediate-term gratification in favor of long-term goals, while the lower scores on the LTO indicate a more short-term orientation that may manifest as a preference for immediate results and instant gratification. New Zealand is among the countries with fairly low (or short-term) LTO values as it scores at 33. On the other hand, China was found to display higher levels of LTO (87).

Return to Culture and Economic Systems

Having briefly reviewed the CDI, we are now able to return to the economic system’s conversation. Bradley and Eberle (2020)—using the mean scores among country groups—were able to demonstrate that countries with disparate systems resonated with their cultural values as measured by Hofstede (1980).

Grouping systems into five groups—a debatable approach considering the emergence of the tenets of the Varieties and Diversity of Capitalism schools of thought (see Hall and Soskice 2001, and Amable 2003)—Bradley and Eberle was able to show that each system had a unique relationship with the cultural dimensions. Capitalism, on average, displayed higher levels of Individualism (64), relatively low-to-moderate Power Distance (43), moderate Uncertainty Avoidance and Masculinity (57), and relatively low Long-term Orientation.

Communist countries, for their part, were found—unsurprisingly so—to display, on average, lower Individualism (35), low-to-moderate power distance (44), high levels of Uncertainty Avoidance, lower Masculinity (37), and low-to-moderate LTO. The lower MAS score for communist countries is to be expected considering that low MAS signifies societies that place greater emphasis on improving the “quality of life” of its members with relatively less focus on material achievements.

Source: Bradley and Eberle (2020)

An intriguing observation is that of the European Socialist economies that for the most part mirror “Capitalist” systems, save for the lower Masculinity value, which, again, prioritizes the welfare of the society’s members over material gains and competition.

Bradley and Eberle (2020) also classify certain countries’ systems into an Asian-Latin Socialist model. While both the European and the Asian-Latin wear the term “Socialist,” their expressions and approaches to achieving the goals differ significantly. On average, the Asian-Latin societies were found to have significantly lower values for Individualism (23) relative to the European model. Additionally, the manifestly higher levels of Power Distance (70), and Long-term Orientation (70).

The Institutional Channels

The shaping of a society’s economic system in alignment with its national cultural values (as measured in this instance via the CDI) is a testament to how culture, social norms, beliefs, and factor endowments influence the jurisdiction’s institutions.

In the Nordic countries, for example, we have already seen where their lower MAS score speaks to a society that prioritizes the “quality of life” of its members. As a result, among other interrelated factors, economic policy and institutions evolved in such a way to support a more welfare-oriented system. In Sweden, for instance, this welfare is pronounced in its publicly funded healthcare, education, and a host of social protection programs.

While Capitalist systems such as that found in the United States do have their fair share of social programs, the emphasis is notably different, especially when one tunes in to the ongoing policy debates in the USA over social spending.

Additionally, these formal and informal institutions are often times inter-generational as they are usually self-reinforcing. For this reason, the literature in this area of research holds the view that while there may be some cultural drift over time, the relative positions across varying societies are likely to remain unchanged.

A Place for a New Paradigm

Undoubtedly, the conversations on comparative economic systems are extensive, but the point being made here is that, as the world learns more about what informs the “design” of disparate economic systems, we should be prepared to simultaneously modify how we counsel economies. There is, therefore, a need for the crystallizing of a new paradigm as it pertains to economic policy advice, especially when this advice comes from external sources.

Ultimately, there is value in first comprehending the cultural dynamics of society before adopting economic policy positions. Practically speaking, to do anything less is to virtually doom the execution of incompatible policies to immediate or eventual failure. Even within the public-policy analysis domain—which is where Res Publica360 is written from—this latter point should resonate with the “value acceptability” consideration that is nestled within John Kingdon (1984)’s larger multiple streams model for agenda-setting.

The fact is that at the heart of national culture one will find societal “goals.” These goals can be quality-of-life specific á la the Nordic countries, or more focused on individualized material success. Similarly, these aims could emphasize long-term objectives such as environmental protection and sustainable development. Regardless of the goals, the point must be made that the standard assumptions—for decades—have unfortunately ignored these salient considerations under the themes of ceteris paribus, a “tool” utilized to simplify economic concepts but was never intended to lead the way. The inescapable truth is that all things are not equal, and this includes economic systems that are as unique as the societies’ cultures that build them.

MANDATORY VACCINATION CAN BE JUSTIFIED BUT CONTEXT VITAL

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“The main rule within international human rights law is that vaccination, like any other medical intervention, must be based on the recipient’s free and informed consent. This rule is, however, not absolute. In Solomakhin v Ukraine, the European Court of Human Rights (the Court) held that mandatory vaccination interferes with a person’s right to integrity protected under Article 8 of the European Convention on Human Rights (ECHR). Nevertheless, the Court concluded such interference may be justified if considered a ‘necessity to control the spreading of infectious diseases’ (para 36).”— Nilsson, Anna. “Is Mandatory Vaccination Against COVID-19 Justifiable Under the European Convention on Human Rights?” GC Human Rights Preparedness, 15 April 2021.

ON THE HUMAN RIGHTS SIDE

Okay, so let’s get this part out of the way from early: Yes, the opening quote above is directly relevant for the European Union & its ECHR. So yes! It does not set any binding precedent for the Caribbean; and specifically, it does not set the pace here in Belize. At best, these extra-regional judgments could only carry “persuasive” weight, as I’ve been informed by legal minds.

Nonetheless, let’s face it: many binding Human Rights treaties cite the same source—the Universal Declaration of Human Rights and the other conventions that collectively give us the so-called “international bill of rights.”

Therefore, the European Convention on Human Rights (ECHR) shares a similar “foundation” with other conventions such as the AMERICAN CONVENTION ON HUMAN RIGHTS. And, it must be said, whether countries have signed onto these conventions or not, there is no secret that they have been known to carry some influence in domestic and regional legal deliberations.

So, on the human rights side of things, more and more courts are going to be asked to rule on this matter, and one ought not be surprised when the judgments come back tilting in favor and support of context-specific state-sponsored mandatory COVID vaccination policy.

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Debt and General Elections: An Economic Argument for Campaign Finance Reform

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“There are also signals that the lack of fiscal discipline could be linked to political cycles. … In fact, the three years when the government’s budget balance reached its low-point before reverting towards balance (1984, 1993, and 2003) were election years”—Hausman and Klinger (2007, p. 13).

“According to the reported results, there is a POSITIVE RELATIONSHIP between elections and public debt accumulation. Given the positive effect, our evidence suggests that, relative to pre-election period, there is about 36% probability that presidential election periods are characterized by higher debt”–(Bayale et. al, 2020, p. 39).

The first opening quote above is from the “Growth Diagnostic of Belize” that had applied the Growth Diagnostic Framework and methodology to answering the age-old question: “Why is investment in Belize low?” In using the said framework—which has since been applied at least three times to the Belizean economy—researchers Ricardo Hausman and Bailey Klinger highlighted the fact that government’s fiscal balances tend to deteriorate just prior to a General Election.

The second is from a study entitled “More elections, more burden? On the relationship between elections and public debt in Africa.” In this one, Bayale et. al (2020) use data for fifty-one (51) African countries to empirically demonstrate the positive correlation between public-sector debt and Presidential Elections.

The intriguing thing about these studies is that while written roughly 13 years apart and about significantly different countries, the consensus remains: Without proper controls and institutions, prudent fiscal practices tend to go through the window around election time.

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The UDHR: THE VACCINE AGAINST DICTATORSHIP

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Article 21 of the UN Declaration of Human Rights (UDHR) reads: “(1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives; (2) Everyone has the right to equal access to public service in his country; (3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.”

The language seems self-explanatory, but it is still worth looking closer at how we should interpret those words, especially as it pertains to the conceptualization of the will of the people. In answering this question (among others), the United Nations Human Rights Office of The High Commissioner (OHCHR) wrote:

“Fresh in the minds of the UDHR drafters was the election of Adolf Hitler through democratic processes, and his subsequent rejection of the very same processes as a foundation for the democratic state. … Such a leader would command total obedience from those under him, and he was above, and therefore could totally disregard, the rule of law. In this respect, like so many others, the UDHR can be seen as a key part of the world’s attempt to inoculate itself against any future would-be dictators” (full statement published in this issue of The Reporter).

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Tinkering with the Constitution

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Since Independence there have been eight amendments to the Belize Constitution. In 1985, there was the Belize Constitution (First Amendment) Act (No. 14 of 1985), which, inter alia, addressed certain nationality matters, including the issue of Dual Nationality as found at Section 27 of the Constitution.

Three years later, the records show that there was the Second Amendment Act (No. 26 of 1988), which, again among other things, gave us the Elections and Boundaries Commission (Section 88). The third amendment came thirteen years later in 2001, with the Belize Constitution (Third Amendment) Act, 2001 (No. 2 of 2001). The third amendment was fairly extensive and impacted the operations of the Public Service Commission (PSU), looked at the Security Service Commission, touched on the tenure of office of Justices of the Supreme Court, and even made changes relevant to the Cabinet.

In the same year, there was also the Fourth Amendment (No. 39 of 2001), which looked at the Belize Advisory Council (BAC), and, inter alia, amended areas relevant for the functions of the Senate. Four years later there was the Fifth Amendment (No. 23 of 2005) that looked at the Magistracy (Section 93A) and “Remuneration for certain officers” (section 118).

The Sixth Amendment would follow three years later (No. 13 of 2008) and it made changes to several areas of the Constitution, including section 17 which provides “protections from deprivation of property”. It would take another two years before the Seventh (No. 4 of 2010) arrived to make changes that included those relevant for the appointment of Ministers of Government (section 40), especially as it pertains to the appointment of the Attorney General.

And then, of course, there’s the infamous Belize Constitution (Eight Amendment) Act, 2011, which was predominantly designed for the Government to maintain control of the Public Utilities. Its purpose is probably best articulated in the amendment made to section 144 of the Constitution which now reads: “From the commencement of 25th October, 2011, of the Belize Constitution (Eight Amendment) Act, 2011, the Government shall have and maintain at all times majority ownership and control of the public utility provider.”

There is always room to debate the changes made over the years, especially in terms of the Eight Amendment, which was soaked in controversy. However, it cannot be ignored that those eight amendments occurred over the span of almost three decades—from 1985 to 2011.

The People’s “CONTRACT”

The Constitution could succinctly be defined as the codification of the Will of the People. This is part of the reason why the Constitution of Belize’s preamble opens with the phrase: “WHEREAS the people of Belize”. More than anything, this is the People’s document, which provides, at least, three basic functions: (a) to first and foremost provide protections for citizens’ individual liberties and rights, (b) secondly, to give life to “trias politica” (Separation of Powers) principles, and (c) closely related to trias politica, establishes a government that should be “of the people, for the people, by the people”.

One could, therefore, think of the Constitution as the “supreme contract” between the People of Belize (the true rulers in a democracy) and the Government of Belize (GoB).

Now, for any commonplace contract, it is common knowledge that terms in a contract cannot be unilaterally altered. The Parties to the Contract are required to communicate—in one form or the other—whether they agree to any alterations. Keeping, then, with this analogy, one would be right in asking the question: How do the People of Belize communicate our desire for (a) any change to the People-to-Government Contract, and (b) upon deciding that there is indeed a desire for some change, how do we go about deciding on exactly what those changes ought to be?

The “Curse” of the Supermajority

There is space for quite a robust debate as one tries to answer that question; however, the post-independence trend seem to suggest that at least one party to the “supreme contract” believes that the answer lies in the results at the polls.

If one would review the First through Eight amendments, a conspicuous pattern emerges: That is, changes to the Constitution are made whenever one political party wins a “supermajority”. In 1985 and 1988, the United Democratic Party (UDP) controlled 21 out of the then 28 seats in Parliament, thereby, giving it well above the two-third votes required for Constitutional amendments.

The “silence” between 1988 and 2001 could be largely attributable to the fact that no such supermajority re-emerged until 1998, when the People’s United Party (PUP) won 26 of the then 29 Parliamentary seats. It took about two years, but eventually the PUP started their own tinkering with the Constitution, giving us the Third and Fourth Constitutional amendments in 2001.

Having maintained dominance in House after the 2003 General Election, with the voters giving the PUP 22 seats in the House of Representatives (“The House”), it took the Musa Administration about two years before they instituted the Fifth Amendment in 2005.

Then, of course, most would recall the results of the 2008 General Elections, wherein the UDP was returned to office with a supermajority (25 to 6 seats). This era gave us the remaining three changes to the People’s contract (i.e. the sixth to the eight amendments). The subsequent General Elections didn’t yield a supermajority; therefore, for roughly ten years there were no changes to the Belize Constitution.

Last November, however, the people, once again, returned a supermajority to The House, giving the PUP 26 out of the 31 seats. And while the Musa Administration seemed to have applied a two-year “buffer” before pulling the Section 69-trigger, that does not seem to be the case with the present administration, which as proposed three in about eight months.

A Mandate?

Several things are observable from this trend. First, the fact that changes only seem to occur when one party enjoys a supermajority in the House is indicative of an inability or unwillingness of politicians to obtain bi-partisan support for the changes. The second observation is that political parties seem to take the view that the size of their victory at the polls directly signals the People’s “permission” or “support” for Constitutional Amendments.

The second point, however, is the most salient. The Belizean people will have to “speak up” (as the saying goes) as to whether or not a “big win” at the polls should be automatically interpreted as carte blanche license. The fundamental principle governing the “supermajority” requirement is that democracies should carefully deliberate Constitutional alterations; they ought not to be done whimsical or for political expediency.

Tenth and Eleventh Amendments

To that end, it cannot be lost the Belizean People that in just under eight months, the current government is in the process of proposing three amendments, with the tenth and the eleventh amendments being the most troubling of the bunch.

In the case of the Belize Constitution (Tenth Amendment) Bill, 2021, the government is seeking to change the tenure rules for members of four Constitutional enshrined institutions: The Belize Advisory Council, the Elections and Boundaries Commission, the Public Services Commission, and the Security Services Commission. Essentially, if passed, the proposed change would make each of these important institutions subject to the political cycle.

The Eleventh Amendment—at least based on what has been circulated in the media thus far—seeks to add new disqualifications for persons vying to become members of Parliament. If passed, this amendment would cause the Supreme Law to read as follows:

“No person shall be qualified to be elected as a member of the House of Representatives who … (da) has served a sentence of imprisonment for more than twelve months, imposed by a court in or outside of Belize; or (db) is under a sentence of imprisonment, or has served a sentence of imprisonment, imposed by a court in or outside of Belize, for an offence in relation to corruption or abuse of public office.” Clearly, there is some value in the latter provision, so as to ensure that proven corrupted officials cannot hold the reins of power. However, the citizenry must carefully weigh whether the former section (da) reflects the will of the Belizean People. The same question ought to be asked of the Tenth Amendment.

Minimizing the “Payroll Vote” in Parliament

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This week, once again, I saw a media interview in which the journalist was making ‘probing’ questions as to whether or not a newly elected area representative (AP) feels disappointed that he was not ‘rewarded’ with a ministerial portfolio after having won in a UDP stronghold. … sigh….😞I’ve been saying it for years, but let me try to be as succinct as I can this time.

Here goes: “The less Area Representatives appointed to Cabinet, the BETTER FOR the people in terms of checks and balances against an incumbent prime minister and his government.”

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