Earl M. Bartley, Contributor
BOTH THE People's National Party (PNP) and the Jamaica Labour Party (JLP) indicated in their 2002 General Election manifestos that constitutional reform would be at the top of their political agenda in the upcoming five years. And now with local government elections out of the way and Mr. Bruce Golding and reform-minded elements in the driving seat in the JLP, things seem auspicious for constitutional, institutional and administrative reform to proceed.
Some of the important questions are - what are the main issues under consideration? What is the extent of the reform being proposed and what degree of consensus has emerged among the parties? The repercussions and consequences of these proposals and what should be the process or procedures utilised in constitutional reform are also of concern.
In its Manifesto, the PNP indicated that it wanted to push ahead with three main constitutional issues over the next five years. These were, Republican status for Jamaica, establishing the Caribbean Court of Justice to replace the Privy Council, and the entrenchment of a Bill of Rights in the Constitution. The JLP has long supported a Bill of Rights from the 1980s, but has done very little to enact it even when it was in government. Like the PNP, it also subscribes to republicanism. Mr. Seaga supports a ceremonial president with the bulk of power still lying with the Prime Minister.
EXECUTIVE PRESIDENT
The PNP supports an executive president with a parliamentary Cabinet. As is well known, the two parties have been at loggerheads about the CCJ, the PNP wanting to go full speed ahead and the JLP wanting to restrict the jurisdiction of the Court to trade issues, while continuing with the Privy Council for another ten years. To the extent that Bruce Golding embodies the National Democratic Movement (NDM) positions, his outlook on constitutional reform is far more comprehensive, though not all of these positions will necessarily find favour with many Jamai-cans, nor are they necessarily systematically thought out as to consequences.
The main benefit Golding brings to the table is a wider range of concrete proposals, making possible a much broader discussion than might have occurred under Patterson or Seaga's leadership of this debate. And if the truth be told, a more wide ranging, rather than a narrower discussion seems necessary. Because after forty years, it is clear that in many areas, our constitutional arrangements have not met the test of time, or our wiles, and need reviewing and re-constructing.
Man, more often than not, confirm Martin Luther's dismal view of his 'fallen' nature. And I have often observed that the fairly rational and orderly way that things proceed in the United States has less to do with men's 'good character' but more so with the strength of their 'living law', which begins with their constitution. In other words, the whole is better than the sum of its parts. In our case, the parts manifestly deserve better than the whole. "Men seek to avoid pain and maximise pleasure", is law reformer Jeremy Bentham famous pleasure/pain principle enunciated almost 200 years ago. We would do well to remember that carrot and stick approach in our constitutional deliberations, rather than naively assume that men will be good, as we seemed to have done 43 years ago, especially as it relates to our political leaders.
SEPARATION OF POWERS
Separation of powers is the foremost proposal of Mr. Golding and the NDM. One of the frequent arguments against the existing Westminster model is that it concentrates too much power in the hands of the Prime Minister, who is often said to 'be a dictator for five years'. He appoints all the members of his Cabinet without any requirement for consultation. He also appoints the Chief Justice, the Police Commissioner, the Director of Public Prosecutions, and the Public Service and the Police Service Commissions with only the mere requirement that he consults with the Leader of the Opposition. In a separation of powers model, like the US system, the president and vice-president are directly elected; and the Cabinet, though appointed solely by the Executive from whatever area of life he chooses usually have to be approved by a joint committee of the parliament. Indeed, because representatives in a separation of powers model, though usually members of a political party, tend to be elected in their own right, they tend to act with more independence and often block presidential initiatives if they disagree. This system of Presidents acting with the approval of Parliament is felt to impose greater checks and balances on the exercise of executive authority than operates in the Westminster system.
Other benefits of the separation of powers model, is that it permits the executive to choose from a broader range of talent than the members on his side of the House; and that not having cabinet responsibilities frees up the MPs to focus on being good representatives and legislators.
The disadvantages are that a Cabinet not drawn from parliament would add to the financial cost of government, if only modestly; and the people's role in electing, though not selecting the Cabinet ministers will be even further weakened. Then there is the possibility of what the Americans call "grid-lock" arising from the greater independence of the MPs, who often stall presidential initiatives in the US for months or years at a time. A separation of powers model would also require our politicians to master a new political practice of coalition building across party lines instead of simply lining-up behind party positions. This latter skill is not something that is easily achieved in five, or ten, or even 30 years.
COMFORT ZONE
What might be disconcerting to many Jamaicans is that separation of powers is such a sharp departure from the appearance and procedure of governance that most are used to, it might be psychologically unsettling at least in the short term.
In this regard, instead of adopting the US model wholesale, Jamaicans could consider forms of Republicanism that are more within their comfort zone while dealing with concerns about concentration of power in the Executive by constitutional strengthening of parliamentary checks and balances.
TERM LIMITS AND IMPEACHMENT
Term limits and impeachment of public officials are two of the other important proposals associated with Golding and the NDM. Their proposals are that Presidents be limited to two terms of five years and members of parliament to three terms of five years. The arguments against term limits are that politics, like many other endeavours is a specialist activity, and that politicians improve with experience. Thus, the reasoning goes, it hardly make senses to force them into retirement when they are at the top of their game. An equally forceful argument is that the talent pool in a small population like Jamaica is not extensive and to sideline people who are capable of continuing valuable contribution is wasteful.
Counteracting those arguments is the observation that prolonged sojourns in politics often leads to concentration of power and influence and fosters cronyism and other forms of corruption. It also tends to deny young fresh talent a chance to come to the foreground thereby choke off possibilities for renewal. Thus, while I recognise that exceptionally talented individuals like an Edward Seaga and Norman Manley only rise in a population every two or three generations, I believe the negatives of unlimited terms outweigh the benefits and limits should be enacted.
Somewhat more questionable is impeachment for corruption. How would impeachment exceed present anti-corruption laws? Unless impeachment also applies to infractions like incompetence and non-performance it seems to me like a cumbersome mechanism that is not needed.
OTHER PROPOSALS AND ISSUES
There are several other proposals and issues that have been raised, some of which could form part of the package of constitutional reform. 'No taxation without parliamentary approval sounds good', but I doubt that our politicians have the maturity to handle such a power without political opportunism. I have my doubts too about capping the debt as a fixed percentage of GDP by law, since it reduces the flexibility of government and could lead to the mockery of frequent revisions of the ceiling as now happens with treasury bills.
The proposal of a fixed election date might eliminate opportunistic election calling by governments, but could also inhibit early elections if it were necessary to remove an incompetent or oppressive government. Proposals to strengthen the independence of the police force and the state bureaucracy by requiring two-thirds of the members of Parliament to approve the members of the Police and Public Service Commissions seems like an improvement of the present procedures whereby the Prime Minister appoints both bodies.
The Director of Public Prosecutions (DPP) in my view, who is the public and society's lawyer, should be directly elected by the people, report to Parliament once per year, and subject to removal only by a panel of high court judges for wrong-doing or incompetence. Naturally, no political activist or anyone sponsored directly or indirectly by a political party could compete for this job, and if there is any election that would be deserving of public funds it would be that for DPP.
BROADEN THE PROCESS
Based on the quality (or lack of it) of the constitution making that transpired forty-three years ago, one cannot help but be concerned by how the reform process has proceeded thus far. Constitutional reform by parliamentary committee in 1962 gave us a constitution in which parliament was sovereign and the Prime Minister a demigod. So this time around the people in their communities and organisations should be fully integrated into the discussion.
Maybe a suitable procedure would be for a group of university intellectuals and politicians to begin by defining the problems and options. These would then be circulated to the people in their communities, churches, and organisations, followed by a grand constitutional convention in which representatives from the parties would be limited to no more than 50 per cent of those present. From such a convention the six or eight main issues and options would than be voted on in a general referendum.
The really troubling thing about our present effort at constitutional reform is that many of our efforts are geared at curbing the abuses and excesses of our political leaders manifested over the past forty-three years. Even as we proceed, I am wondering if anything done will truly curb their excesses. Now I understand why our National Anthem is a prayer. We will need God's help.
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