Human Rights & Democracy Movement

PART II THE WESTMINSTER SYSTEM: ITS HISTORICAL ORIGINS

The origins of the Westiminster system lie, first in the seventeenth century, in two revolutions, and second in the eighteenth century, during the reign of three German kings named George.

The seventeenth century was bracketed with revolutionary struggles and civil war. The Stewart kings, who arrived at Westminster in the person of James I in 1603, unpacked some royal baggage, which included a renascent, almost medieval, doctrine of divine right of kings, unfettered royal prerogative to tax, and a great willingness to spend money. At various needful occasions, they purported to levy taxes without benefit of Parliament, raised forced loans, ignored habeas corpus, suspended and dispensed with parliamentary enactments, ignored parliamentary privilege, sacked independent judges, and, toward the end of the century, appeared to embrace a politically incorrect religion. To make a long story short, it is perhaps enough to say that at the beginning of the century in 1603, the king could see himself in a partnership with Parliament, but with himself as very much the dominant senior partner. By the end of the century, one could perhaps still speak of a partnership, but by then the king was, at best a very subordinate partner indeed.

By any measure, the forces of divine right, prerogative rule, and royal absolutism were routed in the 17th century. One king, Charles I, lost his head; his son, James II, fled the realm, abdicating, in order not to lose his.

The issue was not whether Parliament had won and the King had lost; that much was clear. The problem was to translate the parliamentary victory into workable institutions, and constitutional machinery, to preserve and to implement the parliamentary victory. In 1688, upon the hasty departure of James II, the Parliamentarians set a famous legislative seal upon their victory with the Bill of Rights Act, and the Act of Settlement a few years later, which prohibited the King from suspending or dispensing with laws, guaranteed Parliament’s monopoly on the power to tax, enshrined parliamentary privilege, prohibited excessive fines, excessive ball, cruel and unusual punishments, and protected the tenure and independence of the judiciary. All of these measures, however worthwhile and permanently useful, were negative restraints on royal power. However effective this Bill of Rights, then, it contained no positive mechanism for the exercise of executive power by the leaders of Parliament; the Bill of Rights left unfinished business.

Less dramatic constitutional evolution, and the rise of the office of Prime Minister, had to wait until the end of the Stuart line of kings and queens, in 1714, and the arrival of the first German-speaking dynasty from Hanover, George I, in that year. A king who could not speak English, a king who spent much of his time abroad, and a king who was more interested in affairs on the continent meant a vacuum in the executive politics of England, a vacuum happily filled by Sir Robert Walpole in the years 1721-1742, a man known as the first Prime Minister. By the time George III came to the throne, in 1760, the power of Cabinet and the office of Prime Minister had taken shape, and were fixed, by practice and by habit, but not by any statutory or constitutional document it was too late for George III to roll back now – accepted practices. In any event, his subsequent mental illness, while unlucky for him, guaranteed his withdrawal from active politics, thus insuring continued unchallenged Cabinet government.

Oddly enough, in the very home of the Westminster system, it was never thought necessary to enshrine these conventions in law; it was enough that if the King did not call upon the leaders of the House to serve as his ministers, then there would be no confidence in Government, business would not be transacted, the King’s budgets would not be passed, taxes could not be raised, and the King’s servants, both civil and military, could not be paid. The King had learned that effective power had passed to the leaders of Parliament.

Elsewhere, when dominions and colonies attained independence, they sought the security and the clarity of Written Constitutions. It is to these that we now turn, looking for the codification of Westminster practice in the independent island soverignties of the South Pacific.

PART III: THE WESTMINISTER SYSTEM: TAKING ROOT AND FLOWERING IN THE PACIFIC

It is remarkable that the independent states of the South Pacific, whether their colonial background be British, German, American, Australian or New Zealand, have all adopted in their constitutions of independence a Westminster-type executive; a formal head of state for historical, unifying and cultural purposes, and an operating chief executive officer emanating from an elective assembly, to run the Government on a day-to-day basis.

In this section, I set out the relevant constitutional provisions of Polynesian, Melanesian and Micronesian states. It is my hope that these Pacific island Constitutions will be used for study, for reference, and perhaps for example.

WESTERN SAMOA:

The Constitution of Western Samoa, after that of Tonga, is the oldest Constitution of independence in the Pacific. While patriating the nomenclature of the Westminster system, and thus denominating the Head of State as O le Ao o le Malo, instead of “Governor-General”, the form of Westminster is expressly preserved. The Head of State if to act on advice of the Prime Minister or Cabinet, and the Cabinet – not the Head of State – shall have the “general direction and control of the executive”. The Office of Prime Minister is defined in the usual way, in Article 32(2) (a), and there is provision in Article 40(4) for a Cabinet decision to prevail over the opposition of the Head of State.

There is also provision for the formal replication of cabinet in an Executive Council, a “dignified” institution, as opposed to an “efficient” institution. Article 40(4) codifies the superiority of Cabinet, so that if the O le Ao o le Malo opposes any decision of Cabinet, the Cabinet decision will take effect in spite of that opposition, following Cabinet’s reconsideration under Article 40(3).

The relevant provision of the Constitution of 1960 are set out below:

Head of State to act on advice

26.(1) Except as otherwise provided in this Constitution, the Head of State in the performance of his functions shall act on the advice of Cabinet, the Prime Minister or the appropriate Minister, as the case may be.

(2) If Cabinet, the Prime Minister or an appropriate Minister tenders advid to the Head of State as to the performance of any function of the Head of State and, if the Head of State does not, within seven days after the date on which the tendering of that advice comes to the notice of the Secretary to the Head of State, accept that advice or take some other action in relation thereto which he is entitled to take under the provisions of this Constitution or of any Act, the Head of State shall be deemed to accepted that advice; and an instrument under the hand of the Secretary to Cabinet, acting on the instruction of the Prime Minister, to that effect shall operate as the performance of the function concerned in accordance with that advice.

Information for Head of State

27. It shall be the duty of the Prime Minister:
a) To arrange for the circulation to the Head of State copies of the agenda and minutes of Cabinet and of all other papers laid before Cabinet at the time when they are circulated to ministers; and
b) To furnish such information relating to the administration of the affairs of Western Samoa and proposals for legislation as the Head of State may call for.

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