The purpose of this editorial is not to discuss the legal intricacies of what the Opposition People’s United Party (PUP) is attempting to do in the Supreme Court with this Commissioner of Police mandamus business. You and I know that what the PUP really wants to do is to replace the United Democratic Party (UDP) in power. They are using this writ of mandamus against the ComPol as a form of legal pressure on the executive power apparatus of government. Ultimately, then, this mandamus is law as politics.
In March of 2012, the UDP and the PUP competed in a general election to see which of the two parties would win the majority of the 31 constituency seats in the Belize House of Representatives. In that general election the UDP won 17 seats, and the PUP 14. The Governor-General of Belize then invited the Leader of the UDP to form a government, of which that UDP Leader would be in charge.
Representing the Queen of England, the Governor-General is Belize’s constitutional head of state. He enjoys total executive power during those final hours when the political parties are competing to see which one of them will form the new government. When a general election is completed and a victorious party decided and the Leader thereof invited by the Governor-General to form a new government, that Leader, as Prime Minister, goes about the task of appointing a new Cabinet, mostly out of his party’s newly elected area representatives. The Governor-General yields, at that point, a generous modicum of his executive power to the Prime Minister.
The Cabinet is the functional executive apparatus of Belize’s so-called parliamentary democracy. We would say in this editorial that what an executive does, apart from the crucial work of collecting taxes, is make plans and execute policies. The Cabinet’s work is done in secret. As a body, the ruling party’s area representatives form the bulk of the legislature in the House of Representatives. The legislature’s work, as opposed to the Cabinet’s, is done in public, but it is from the ruling legislature, which is to say, the majority of the nation’s elected area representatives, that the executive, that is, the Cabinet, derives its power. The specific legislature, of course, obtains its power by virtue of being elected by us, the people of Belize.
In classic parliamentary democracy, the Cabinet is designed to be a clear minority of the legislature. This is designed so that any motion/order brought to the House by Cabinet can potentially be defeated in the House by a majority vote which would include the backbenchers, who are those members of the ruling party in the House who are not Cabinet members. From the very beginning of Ministerial government in Belize in 1961, the then ruling PUP, under the leadership of the Hon. George Price, appointed a Cabinet which was a majority of his party’s House members. All leaders of government since that time, both PUP and UDP, have done the same thing. What this means is that the Cabinet executive dictates to the House legislature. What Cabinet agrees in secret, the House cannot veto in public.
Constitutionally, the system of parliamentary democracy features three branches of government – the executive, the legislature, and the judiciary. They are supposed to function independently of each other. In Belize, however, to repeat, the executive has always dictated to the legislature. We may say that they amount to one and the same here, thus violating the classic principles of parliamentary democracy.
It remains the constitutional case, however, that the secret Cabinet derives its power from the public House: the executive derives its power from the legislature, which is to say, the elected representatives of the people. If the present Cabinet cannot muster 16 of the 31 votes in the House on any motion, then such a Cabinet cannot rule. As things stand, the PUP has 14 seats in the House: they only need 2 of the UDP’s 17 seats to create a no-confidence situation in the House. The PUP would like to increase their leverage by forcing a bye-election in the Cayo Northeast constituency of Mr. Elvin Penner, who was elected to the seat as a UDP candidate in 2012 but who has now been disowned by his party because of an act in 2013 which appears to be a felony. If the PUP forced and won such a bye-election, then the UDP would only have 16 seats, and the PUP 15.
The Commissioner of Police is a member of the judiciary, which is supposed to be independent of the executive and independent of the legislature. The present Commissioner of Police was appointed by the ruling UDP Cabinet. The UDP Cabinet has no doubt, and we’re talking the way the people of the street see it, somehow made it evident to the Commissioner of Police that they do not wish for him to investigate Mr. Penner aggressively and thus provide evidence for the Director of Public Prosecutions (DPP) to arrest him. We had heard it said that a senior police officer named Russell Blackett was leading an investigation into the Citizen Kim matter which involves Mr. Penner, but it appears to the streets that such an investigation is not proceeding very speedily or aggressively.
In the constitutional construct of the judiciary, the Police Department is supposed to carry out investigations of criminal behavior and provide the evidence which the DPP requires to carry out successful prosecutions in the courts. Without evidence, the DPP cannot indict a suspect. The Opposition PUP is now saying to the Commissioner of Police, by way of the Supreme Court, as follows: the whole of adult Belize knows that Mr. Penner is a suspect. Where is your investigation? The constitution enjoins that you, in your office as Commissioner of Police, investigate suspects so that, after you arrest them, the DPP can prosecute them.
This is the law, but then there is power. The judiciary enforces the law: the executive Cabinet is the power. How do things work if and when the enforcement of the law endangers the executive power? Constitutionally, the judiciary is independent of the executive, but executive power is the greatest in the land. Be real. For argument’s sake, if Belize’s ultimate executive authority, the Queen of England, committed a murder, or caused a murder to be committed, would Scotland Yard investigate her? We think not. But if a great number of the British people knew of such a murder, that would become a crisis in Great Britain.
When law and power come into conflict, the system of parliamentary democracy enters crisis. The system of government we have in Belize makes for executives which, at most given times, have more real authority than the quantum of their popular support. Apologists for this first-past-the-post system will tell you that it is too expensive and cumbersome to have general elections whenever a government, such as this one, finds itself in a situation where its power is challenged by the independent law.
At this newspaper, we say no to the apologists. Five will probably get you ten that the upshot of the present crisis will be that the judiciary will lose some credibility in Belize. Under the system of proportional representation, however, there would probably have to be new general elections in Belize, thus enabling the judiciary to preserve its credibility. With the present first-past-the-post, this UDP government will feel itself mandated to defend its present power by any means necessary. This is how the oligarchy designed it, and this is as the oligarchy wishes it.