Thursday, 4 November 1999
Our Constitutional - CRISIS IN WAITING
The following analysis will show that the operation of Section 62 (Removal
of President) and Section 63 (Acting President and Deputies) allow a
�rogue� Prime Minister to hold the nation to ransom with no legal address.
Together these sections are a recipe for a constitutional crisis in waiting.
When an Acting President is dismissed by the Prime Minister a
�presidential vacuum� is created with no manner of constitutional
resolution possible. Situations, not unreasonable, exist where with no
President in office there is no manner for the people or the Parliament to
install a caretaker President.
Simply stated the republican democratic engine does not come with a starter
motor! At the extreme the proposed changes can be said to allow (if they
exist through inadvertence) or create (if the exist through conspiracy) a
constitutional dictatorship.
That such consequential crises are unlikely is not an answer. Constitutions
must exist over decades, generations and centuries. They must be able to
constrain power at the limits of abuse. This the republican constitution
cannot do!
The kindest thought and perspective that can be placed on all this is to
say that the structure of the constitution, its power flows, checks and
balances do not seem well thought out. Should we adopt a generous attitude
to those who have presented us with this debacle when we could end up with
a Parliament where there is no House of Representative, no Senate, no
President and only a Prime Minister is left?
============================================
This is the final message in The National Watchman�s republic series. I
sincerely hope they have benefited you and that they have contributed to
the learned debate required to create a truly great nation.
THere is also an Acrobat file (CON-WAIT.PDF) that can be obtained by
Emailing [EMAIL PROTECTED] The following is an unformatted, no grahphics,
edited version of this main work. This is presented for a quick evaluation
and for those that do not have an Acrobat reader.
Kerry Spencer-Salt B.E., LL.B (Hons)
National Co-ordinator, Australian Community Organisation
P.O. Box 136, Surry Hills NSW 2010 Phone : (02) 9360 0610
E-Mail : [EMAIL PROTECTED]
Website : www.rockroll.com.au/watchman
====== BEGINNING OF EDITED ADOBE ACROBAT FILE ====
OUR CONSTITUTIONAL CRISIS IN WAITING
Introduction
============
Traditionally constitutional crises occur upon the dismissal of Head of
States; not on their selection. For this reason Section 62 (Removal of
President) is viewed by many as the most important section governing the
operation of the Presidency. However of equal importance is Section 63
(Acting President and Deputies) which governs the operation of the Acting
President AFTER the incumbent President has been dismissed by the Prime
Minister.
Analysis will show that these two sections allow a �rogue� Prime Minister
to hold the nation to ransom with no legal address; they are a recipe for a
constitutional crisis in waiting. Thus the use of Section 62 has both
immediate and consequential dangers.
Acting Presidents and the �Presidential Vacuum�
==================================
One consequential danger will occur when an Acting President is dismissed
by the Prime Minister. Here there is no President in office and no manner
for the people or the Parliament to install a caretaker President.
This situation is referred to as the �presidential vacuum�. Here all
parties must await the installation of a permanent President. This must
be done through the processes set out in the Presidential Nominations
Committee Act. These processes can only start with the approval, consent
and written notice of the Prime Minister who had just sacked a President
and Acting President.
The extreme danger is that, when the Parliament has been dissolved and the
Acting President dismissed, there is no power in the Constitution to kick
start the engine of responsible government ; there can only be
constitutional dictatorship.
That such consequential crises are unlikely is not an answer. Constitutions
must exist over decades, generations and centuries. They must be able to
constrain power at the limits of abuse. This the republican constitution
cannot do!
Section 63 - Operational Aspects
================================
When a President is sacked Section 63 provides that "the longest serving
State Governor available shall act as President." This is a legitimate
answer to the need for providing for continuance of the presidential office.
In regards to the Acting President all the "provisions of this Constitution
relating to the President, other than sections 60 and 61, extend and apply
to any person acting as President."
Thus, the Acting President may be sacked using the power of Section 62 in
the same manner as the original President.
That this is an unlikely case does not mean it is an impossible scenario.
The important element is that the constraint to the second sacking is only
political; it is not constitutional; it is a matter of political power,
judgment and balances; it is not a question of law.
The Constitutional Crisis in Waiting
====================================
A constitution is not like normal government legislation that is designed
to handle to immediate conditions of the nation. Rather it must be so
designed to handle the possible; even the improbable, i.e. the extreme of
the extreme. So let us ask one simple question.
WHAT HAPPENS IF THE PRIME MINISTER DISMISSES THE STATE GOVERNOR WHO IS
ACTING AS THE PRESIDENT?
Here Section 63 provides that a "State Governor is NOT available if the
Governor has been removed (as acting President) by the current Prime
Minister under section 62." The words are simple and clear; this leads to
the next obviously needed question.
WHO BECOMES THE �ACTING PRESIDENT� WHEN THE ACTING PRESIDENT IS DISMISSED?
The Presidential Vacuum.
=======================
The answer is one word : No- One can. There a �presidential vacuum� in the
Constitution. Section 63 makes clear that a State Governor is not available.
"A State Governor is NOT available if the Governor has been removed (as
acting President) by the current Prime Minister under section 62."
But, at the same time, the republican Constitution makes a State Governor
the only constitutional entity who can be Acting President. After this the
only thing that can be done is the selection and empowerment of a new
President under Section 60.
HOWEVER the installation of a President in this manner is AFTER the report
of the Presidential Selection Committee and AFTER the Prime Minster has
instituted the Committee!! This, even normally, is of necessity a
difficult and lengthy process. However the Presidential Nominations
Committee Act 1999 Section 8 states,
"A Presidential Nomination Committee has 32 members appointed by the Prime
Minster by giving written notice to the appointee."
Thus this process is one that MUST BE INSTIGATED BY THE PRIME MINISTER.
Existing Protection and Safety Lost
===================================
The �presidential vacuum� would, in the interests of a stable democracy,
call for more immediate action. However the only method to restart
democracy is premised on the rogue Prime Minister, who has just sacked the
President and Acting President, appointing the necessary Presidential
Nominations Committee.
Under our present constitutional arrangement this possible cascading of
tenure of the Head of State would be handled by the English Monarch. They
would provide an independent, politically neutral, dignified operation to
our constitutional woes.
We can expect that the Monarch would not to allow the second sacking or,
if they did, they would still retain the power to reinstate an appropriate
person, say an ex-High Court judge, whose sole role would be to restore the
functioning of a stable democracy.
And if there is no representatives ?
So, if we accept a republic, we trade the a secure, tested and stable
system of a Constitutional Monarchy for the potential of a �presidential
vacuum�. And it is even worse than the consequential effects, presented
above, might suggest for our whole system of responsible government could
be well destroyed in the process.
Let us image that the Prime Minster dismisses the President after the
Parliament has been dissolved by the President. (The republicans cannot
claim that his is unlikely for it is the scenario that is expressly
provided for in Section 62.)
What happens if a second sacking occurs in this situation? Of course there
is the ire and wrath of the citizens who may believe that responsible
government is under threat. But the answer to the conceptual destruction of
responsible government will not be in a philosophical determination of the
citizens of Australia but rather it will be STRUCTURALLY, CONSTITUTIONALLY
and PERMANENTLY bound in Australia�s supreme law.
No, No, NO NEVER - NO MORE
============================
Simply there is no way provided, in the presidential vacuum, with the
Parliament dissolved to start up the Parliamentary engine, our guarantee
of democracy, ever again - EXCEPT WITH THE PERMISSION AND ASSISTANCE OF THE
ROGUE PRIME MINISTER.
The proroguing of Parliament, i.e. the bringing of all the elected
members together can only be done under the power of the President.
(Section 5 - Australian Constitution) But,
THERE IS NO PRESIDENT
=====================
A. There is no power in the Constitution, after the second sacking, to put
in place an Acting President.
B. The Rouge Prime Minster may not install a Presidential Nominations
Committee. In this event there will never be a President again.
AND THUS THERE CAN NEVER BE A PARLIAMENT EVER AGAIN. There is not
President to prorogue it into being!
History Repeats Itself
=======================
So even if, by dubious political processes, an election is called and the
representatives selected they can never be placed into the Parliament. Such
power exists only in the President who no longer exists.
It is a situation very reminiscent of the constitutional hurdles in England
in 1688. Here James II continuing legal ownership of the throne provided a
constitutional dilemma. Firstly there could be no Parliament without the
King�s command and his presence but the King had departed the country.
Secondly the King had to be removed from the throne in law; but how?
Prime Minister for President
=============================
Can the rouge Prime Minister make himself President ? or Acting President ?
Strictly speaking the answer is NO.
BUT the necessity of the situation will mean that the question will
probably be answered politically and not legally. A government is required
to run the country; note the looseness of the words in Section 60
(Selection of President) which provides for the selection process of the
President. "The actions of a person otherwise duly chosen as President
under this section are not invalidated only because the person was not
qualified to be chosen as President."
WHO DESIGNED THIS MONSTER AND WHY ???
Words Worth Repeating
=======================
(AT THIS STAGE WORDS ARE REPEATED FROM A PREVIOUS NATIONAL WATCHMAN
CONSTITUTIONAL UPDATE. Here it was said that,
"THE HIDDEN reality of Section 70 A, Section 62 and Section 59 was the
creation of a new Constitution. The end result is that there is a new
sovereign power to replace the Monarchy. THE NEW SOVEREIGN POWER IS THE
PARLIAMENT.
It will take time for this change to develop but what is important is that
there is no constitutional safeguard to stop this fundamental transfer of
sovereignty. There is rather a constitutional crisis in waiting.
The danger is that, when the full potentiality of change is completed, the
sovereign power of the nation and the law making machine will reside in one
constitutional entity, i.e. the Parliament. AT IT EXTREME IT WILL REST IN A
SINGLE PERSON, I.E. THE PRIME MINISTER.
The Word Game
==============
With this understanding one might say that the President is only the
President for the time being. There will come a time when the true
sovereign, as created by the republic�s Constitution, will announce
themselves. Constitutions are only words. There is no word that is not
important. The worst possible analysis that can be put on the scenarios
provided is that there are who understand the true meaning, nature and
intent of the words that they have inserted in the proposed Constitution.
They have planned the constitutional takeover of Australia and seek its
ratification by the Australian people.
Interestingly, there is a hint of such a possible agenda in the republic�s
Constitution in the definition for President (Section 127). As with all
important changes it came at the last minutes when the Bill went to the
Senate. This was on the last possible day; the Bill came back with the
following important addition. "The President means the President for the
time being". The reading of this change was endorsed by all major parties.
The total debate on these words of warning are footnoted below.
The Republic�s Law made Simple
==============================
Remember the words introducing Section 70 A, "Until the Parliament
otherwise provides". These allow the Parliament to vary the Prerogatives at
its discretion, at any time it wishes. Add to this that Section 59 that the
President must act on the advise of the Prime Minister and all independence
of the position of Head of State is no more than an illusion. And Section
62 says that the Prime Minister can dismiss the President at any time !!
The republic�s law is simply the following,
"Ensure that the President�s decisions are controlled by his Ministers, let
a the Prime Minister sack the President on the spot but specify that he
does not have to be replaced and allow the Parliament to remove all of the
powers of the President".
The Watchman�s Final Comment
============================
That such consequential crises are unlikely is not an answer. Constitutions
must exist over decades, generations and centuries. They must be able to
constrain power at the limits of abuse. This the republican constitution
cannot do!
When an Acting President is dismissed by the Prime Minister a
�presidential vacuum� is created with no manner of constitutional
resolution possible. Situations, not unreasonable, exist where with no
President in office there is no manner for the people or the Parliament to
reinstate a caretaker President.
Simply stated, in these situations, the republican democratic engine does
not come with a starter motor! At the extreme the proposed changes can be
said to allow (if they exist through inadvertence) or create (if the exist
through conspiracy) a constitutional dictatorship.
The kindest thought and perspective that can be placed on all this is to
say that the structure of the constitution, its power flows, checks and
balances do not seem well thought out. Should we adopt a generous attitude
to those who have presented us with this debacle when we could end up with
a Parliament where there is no House of Representative, no Senate, no
President and only a Prime Minister is left?
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