Sun | Sep 24, 2017

The Gavel: Time to elect senators, fix election date

Published:Monday | November 23, 2015 | 11:00 AM
Senator Arthur Williams
Senator Marlene Malahoo Forte
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Now that the debate to move to make the Caribbean Court of Justice (CCJ) the country's final court of appeal is dead without a referendum, lawmakers in the new Parliament should give serious consideration to packaging a set of constitutional reforms and putting them to the people for a decision.

This full package should include, but not be limited to, the route by which senators get to Parliament; the role of the member of parliament; a fixed election date; term limits for prime ministers; and all attendant issues pertaining to the role of the British monarch in Jamaica's affairs.

The fixing of the election date is perhaps the most topical discussion these days and perhaps the most logical when one considers that incumbent governments manipulate the 'prime minister's prerogative' and announce election dates when it is most convenient to them.

Care must, however, be taken to ensure that even with such laws, there are sufficient exit clauses to prevent the country from being handcuffed to a bad government until the fixed date has arrived.

There are examples in our history to warn us that an administration may become 'unstayable' even early in its term. An early election clause in any fixed-date mechanism is, therefore, a necessity.

And in modernising the Constitution, ways will have to be found to sound the death knell of political expediency. The structure of the current Constitution has helped to fuel this politics of expediency. I have no doubt that the way in which public affairs, particularly those of a legislative nature are handled, has a lot to do with the fact that the voice of the people (House of Representatives) can be muted by a select few, some of whom have been rejected by the people.

 

POLITICAL INTERESTS

 

Within our system, senators can kill anything except a money bill. Now, nobody votes for senators. They are just people who represent strategic political interests that are foisted on to us. This must change.

Section 35 of the Constitution makes provision for the appointment of senators - 21 of them - to be by the governor general. It provides that the appointment of 13 should be on the advice of the prime minister and the appointment of eight upon the advice of the leader of the opposition.

Jamaicans should be given the opportunity to elect their senators. This question should be framed and put to a referendum. Hopefully, the people will realise that political parties will face hell organising across counties and thus will opt for a situation where seven senators are elected from each county.

In addition to reviewing bills, the Senate would become the conscience of the Parliament and would, therefore, place significant attention on policy matters.

There are too many senators whose contribution is driven by a desire to make it to the House of Representatives or to protect a party position. There is no doubt that there is a great possibility of strong, independent community builders of high repute in their region who could be elected to the Senate if the suggestion to do so via county is entertained.

 

WHY DID MALAHOO

 

 

FORTE SIGN THE LETTER?

 

By the way, on the matter of conscience, we are still waiting to hear from Marlene Malahoo Forte about why she signed the letter.

A few weeks ago, during her contribution to the CCJ debate, Malahoo Forte said that, "At no time, Senator Nicholson, at no time did Mr Holness, nor anyone else, say to me that a condition precedent to my appointment as a senator was a vote against replacing the Privy Council. At no time."

She insisted: "My conscience has not been seared by any pre-signed letter of resignation. It has not been seared. I did not sell my soul for power, as some would put it over there."

But Senator Arthur Williams, the architect of the scheme, said the pronouncements by his opposition colleague were an attack on him.

"Mr president, let me say to Senator Malahoo Forte that I regard those remarks as a direct attack on me," Williams said.

"Let me, through you, say to her, or remind her, that I have said on oath that the reason given to me for the undated letters of resignation was in the event that any Opposition member were to appear to depart from the party's position on the CCJ. That is the reason I was given; that's the reason I gave her," Williams said.

"So, let me say to her quite clearly, if she is saying that she was not given any reason for signing, then she must say why she signed because sign she did. And if she is saying that she was not given the CCJ as the reason for signing, but given another reason, she must say what that other reason is why she signed."

Williams, who was chief of staff at the Office of the Opposition Leader, contended that the letters were prepared and agreed to for the specific purpose of ensuring party unity among opposition senators on any future debate of a bill to amend the Constitution to abolish appeals to the Judicial Committee of the Privy Council as the final appellate court of Jamaica and to replace it with the CCJ.

In his affidavit, Williams said it was not the intention for the purported letter of resignation to be used by the leader of the opposition against senators who did not support the leader of the opposition in the internal election for the leader of the Jamaica Labour Party.

It is now common knowledge that a two-thirds majority vote of members of each House is required to make the CCJ move, and this would mean the support of at least one opposition senator.

Holness, by way of affidavit, refuted Williams' claim that the standard form letters of resignation were created for the specific purpose of ensuring compliance with the opposition party's official position on the CCJ.

He contended that the letters were drafted for a general purpose, which was to give him wide discretion as leader of the opposition to choose or nominate candidates for appointment, which the Constitution obliged him to make.

The implication of Malahoo Forte's statement is that Williams lied to the court in his affidavit when he said that it was primarily for the CCJ.

The court has ruled that the use of the said letters by Holness to remove Williams and Dr Christopher Tufton from the Senate is inconsistent with the Constitution and, as such, is unlawful, unconstitutional, and invalid.

The ruling called into question the judgement of all eight opposition senators, five of whom are lawyers, including Malahoo Forte, who has served as a senior resident magistrate.

Further reform of the Constitution should seek to ensure that there is little or no room for the use of the Senate as an effective tool to railroading the views of the people's duly elected parliamentarians.

The sooner we get to a stage where we elect senators, the less likely it is for 'lettergates' of this kind.

- Email feedback to thegavel@gleanerjm.com or daraine.luton@gleanerjm.com