The Senate Cannot Remain a Nominated House
That the Senate may be able to defeat the Lower House's two-thirds vote - 42 in favour; 21 against - on the adoption of the Caribbean Court of Justice (CCJ) as our final court of appeal, has brought into sharp focus that Chamber's power to defeat the majority vote of our elected house.
Parliament consists of two houses - the Lower House, whose members are elected in general elections by the populace, and the Upper House, whose members are nominated.
Contrary to popular belief, we do not have a parliament elected by the people. We have given legislative power sufficient to block the establishment of our highest court, to a body which has never faced the electorate.
Like dictators, its members come to power other than by the ballot.
The Senate is a relic of our colonial past, fashioned after the House of Lords in England. It is worth repeating that line one of our Constitution places the venue of its signing "At the Court at Buckingham Palace, on the 22nd July, 1962".
The Senate's history did not evolve from our own history. It mirrors an English institution rooted in feudal times in that country. Up until 1999 in Britain, it was possible to become a member of the House of Lords and vote on laws by heredity. That is, in other words, "hand me down".
It is clear that this flies in the face of democratic governance. Similarly, in Jamaica, it is wide open for nepotism to be the basis on which one reaches Gordon House's Upper House. The Tufton/Williams/Holness fiasco is an embarrassing example of the misuse of the nomination powers we have bestowed upon our political leaders, where, to intimidate senators into rejecting the CCJ, they had to sign their own undated "death warrants".
The CCJ's vote was destined not to be the wish of the people expressed through their elected representatives, but rather the private wish of the Opposition leader, or else!
separation of powers
Up until 2005 in Britain, it was possible to have embodied in a single individual, the Lord Chancellor, the Head of the Judicatory, the Speaker of the House of Lords - and to cap it off, he is also member of the executive. This, again, flies in the face of the separation of powers that textbooks tell us the British practice. It is evident from all that has happened in British government and in their constitutional arrangements we have been made to slavishly follow since 1962, that it is not the way to go in strengthening our democracy. In fact, the British have been slowly moving towards abolishing their own existing "nominated Upper House" anomaly.
They are finally adopting a purer form of democracy and moving towards Upper House members facing the electorate. Hence, the British Lower House introduced a new bill in 2012 - the Lords Reform Bill - which proposes that the House be 80 per cent elected and 20 per cent nominated.
Returning to the matter currently at hand here, it must seem to well-thinking citizens that we should be able to move towards making the Senate accountable to the people. It cannot be that we have a Constitutional structure which has led to the vulgar arrangement of pre-signed, undated letters being pushed in the face of the governor general for his approval to oust a member who is prepared to vote with the majority of the elected house! This is, in practice, government "by a person" and not "by the people".
Section 48 (1) of our Constitution sets out the responsibility of our lawmaking Chambers, and challenges both Houses by saying, "Subject to the provisions of this Constitution, Parliament shall make laws for the peace, order and good government of Jamaica".
It is those provisions in the Constitution which provide for a nominated house rather than an elected one, which has proven to be an obstacle and a hindrance to "... order and good government".
We must seriously consider having a Senate whose members are elected. It is time that the political wishes of the leader of the Opposition and/or that of the prime minister take a back seat to the appointment of the bastion of our democracy; our final court of appeal.
The Constitution does not require a referendum for the CCJ to become our final court. Those who are now supporting the idea of a referendum under the banner "let the people decide" cannot, in the same breath, support the retention of a House able to obstruct the establishment of an important constitutional entity, whose members the people have no say in choosing.
- Bert Samuels is an attorney-at-law.