Vernon Daley

We have much to criticise in the way government is organised in Jamaica, but there are a few things that work. One of them is the Senate.

Last week, senators parted ways with their colleagues in the House of Representatives when they rejected a controversial clause in proposed legislation on open voting. The clause prescribes a minimum three-year prison sentence for persons found guilty of showing their marked ballot during polling.

Senate disagrees with the house

It's not unusual for the Senate to disagree with the House over bills. In fact, over the years, it has saved the country from some sloppy bits of legislation passed by the Lower House. The Senate is not untouched by partisan politics but it has managed to develop a culture of independent thinking that is essential to good governance.

This is an important thing to keep in mind when we discuss this business of constitutional reform. We like to talk about changing the systems and structures of government without recognising that the basic framework must still be underpinned by a strong culture of decency, independence and honour if it is to work.

We should know this lesson well by now. There is consensus among our political scientists and constitutional scholars that the governmental system is shaky because it is not supported by strong values of accountability, independence and honour. When political leaders and those acting on their behalf fall down on the job, they are hardly ever fired. They resign even less frequently.

We adopted the British parliamentary system but disregarded the values that make it work for the 'Mother Country". That is why the culture of independence that the Senate has developed over many years should be watched, nurtured and encouraged; and the public should frown whenever there is any attempt to depart from it.

Heading down a dark alley

If the Senate ever becomes a rubber stamp in the way the House seems to be, then we are staring down a dark alley. There are some political misfits in the Upper House right now, as there have been over the years, but gladly their presence does not undermine the general quality and tenor of debates.

I find myself puzzled by the argument for keeping the mandatory minimum sentence for open voting which has been advanced by House Leader Dr. Peter Phillips and Opposition Senator Anthony Johnson. According to them, it is a convention of Parliament not to go against a unanimous recommendation of the Electoral Commission, formerly the Electoral Advisory Committee.

In my view, what they are shamelessly advocating is that parliamentarians abdicate their responsibility to make laws for the peace, order and good governance of the country. Chapter 5 of the Constitution says that is the duty of the lawgivers and it can't be surrendered to any other group of persons.

The proposal of the Electoral Commission has to be examined like everything else that goes before Parliament and a determination made by the people's representatives whether it is in the country's interest or not. The convention can't override the fundamental duty of the legislators.

At any rate, the concerns raised by the legal minds in both Houses, including Clive Mullings, K.D. Knight, John Junor, Senator Dorothy Lightbourne and Senator A.J. Nicholson, were very solid. As they rightly argued, there is a move away from mandatory sentencing with the clearest example of that being the Privy Council's stance against the mandatory death penalty.

The sensible course is to leave the discretion for sentencing in the hands of the judge, who will have to deal with circumstances that the legislator could never in a thousand years have contemplated. That's a better recipe for justice.