Mon | Sep 24, 2018

Failure in the Senate

Published:Monday | May 18, 2015 | 12:00 AM
Opposition Leader Andrew Holness.
Prime Minister Portia Simpson Miller.

Although approved by a two-thirds majority in the House of Representatives, the constitution (Amendment) bill to replace the Judicial Committee of the Privy Council with the Caribbean Court of Justice (CCJ) as Jamaica's final court of appeal is heading for ultimate failure in the Senate.

Jamaica's constitutional arrangements require that at least two-thirds the membership of both houses of parliament vote yes in order to amend the constitution.

That two-thirds vote was obtained in the House on Tuesday but is impossible to get in the Senate unless an opposition senator does the unlikely thing and break party ranks.

So although the people's representatives spoke, unelected people have the power to shut down the voice of the people.

This must be a constitutional absurdity that should be examined as part of wider constitutional reforms.

Outside of simply saying that the Senate is a review chamber, the country should seriously consider what the role of the Senate should be and who should qualify for sitting in the Senate.

The Westminster system enables a government to be defeated, or forced into a general election. This power, however, is in the hands of the House, not the Senate.

The lower house of parliament is the only one with the ability to dismiss a government by rejecting a budget, passing a motion of no confidence, or defeating a confidence motion.

The Senate, on the other hand, exists to keep the House in check.

Section 35 of the constitution states that the Senate shall consist of twenty-one persons who, being qualified for appointment as Senators in accordance with this Constitution, have been so appointed in accordance with the provisions of this section.

Thirteen senators shall be appointed by the governor general, acting in accordance with the advice of the prime minister, by instrument under the Broad Seal.

The remaining eight senators shall be appointed by the governor general, acting in accordance with the advice of the leader of the opposition, by instrument under the Broad Seal.

While there may have been some wisdom in allowing both the prime minister and the leader of the opposition to nominate senators, our experience, especially in recent times, have shown that there needs to be a rethink of this position.


Membership rules


A weakness of our constitutional democracy is having blatantly political persons in the Senate.

If I had anything to do with setting the rules for membership in the Senate - and we would continue to go the route of nominating and not electing people to the Senate - persons who have contested elections for the House of Representatives would have to sit out 10 years before making the transition to the upper chamber.

This would ensure that not only would people rejected by the voters not foisted upon the people as legislators, but also the cooling-off period would, hopefully, dose the highly partisan flames which is commonplace in the House.

In addition, because the Senate has and continues to be used for political grandstanding, especially by persons who hope to make it to the lower house, there should be a minimum 10-year cooling-off period once one ceases to become a senator before he can run for the House.

However, I will readily admit this won't solve the problem of having blatantly political party-first lawmakers in the Senate.

It would be impossible to use legislation to keep them out.

Consideration should, however, be given to preventing persons who are in the leadership of any political party, or its organs, from being senators.

I am convinced that there are more persons of the likes of Don Wehby and Dr Nigel Clarke, who, though they may have political views, are able to put country above everything else in the Senate.

At present, our senate is a training ground for political hopefuls or retirement ground for politicians. There is almost no middle ground.

If the amendments I propose do not go far enough, then we might as well we elect the senators and allocate the seats seven per county.

Then and only then would a Senate truly have the right to shot down bills passed by the people's elected representatives.