Thu | Aug 24, 2017

Just as I was about to give up ...

Published:Friday | March 18, 2016 | 3:00 AM
Frank Phipps

I am sure Mark Wignall was not alone in having initial indecision about voting for his MP or the leader of a party to be prime minister (Gleaner 16/3/16). A separate ballot for election of the prime minister to be the head of government outside of the legislature must be a companion measure to the provision for appointment of ministers from outside of the legislature to complete the Cabinet. Otherwise, it remains slavish observance of what is called the Westminster model.

First of all, take a look at how a prime minister is appointed to run the country. It is at Section 70 of the Constitution. In actual fact, the appointment is made by the governor general as the Queen's representative, acting in his discretion. The governor general himself is appointed by Her Majesty and holds office during Her Majesty's pleasure, to be Her Majesty's representative in Jamaica (Section 27). This is wrong both in form and in substance.

In form, the manner for appointment of a prime minister by the Queen's representative is disparaging of democracy and belittling of the people, people who should have final authority to determine the appointment of their maximum leader.

The appointment to the office of prime minister - the head of the government for the next five years - should be by the people of Jamaica in free and fair election, not by the selection of Her Majesty's representative in Jamaica.

In substance, the appointment of the prime minister as the member of the House of Representatives who is best able to command the confidence of the majority of the members of that House creates a constitutional predicament that is unfair to both the prime minister and to the individual members of parliament who, together, will be the pool from which the selection is made. Most of all, it is unfair to the electors who must resist Hobson's choice timeously.

The system introduces the political party organisation for elections to Parliament where the party leader is projected for prime minister with the compelled obedience by the candidate in the constituency.

The prime minister is not on his own for appointment; he must campaign nationwide at a general election to get command of the confidence of the majority of the House for appointment by the Governor-General; his fortunes will depend on the fortunes of the individual candidates who are up for election.

While the candidate is caught in the web of the political party, where he also does not stand alone for election as the individual to represent the people, he depends on the prime minister's party for election. Hence the Wignall dilemma.

The restriction carries over to the MPs' functioning in Parliament where the MP is overpowered by the prime minister and a Cabinet drawn from the legislature where the PM already has majority support.

The interlocking positions of prime minister and member of parliament, are not good for governance in Jamaica, where the MP's independence in the legislature is compromised by an overlapping executive authority of the Cabinet, giving the PM too much power as head of both arms of government - the legislature and the executive.

This is not only a recipe for mismanagement and corruption in governance; it is a constitutional irregularity for democratic government, where the sacred principle of separation of powers between the executive and the legislative arms of government is sacrificed.

- Frank Phipps, QC, is an attorney-at-law. Email feedback to columns@gleanerjm.com.