AJ Nicholson | Referendum: Agent of confusion?
There are too many persons in our society, including individuals of power and influence, who subscribe to the ill-considered, misguided view that a sufficient, definitive response to any stance that is taken against a proposal for the holding of a referendum is to be found in the question: Why are you afraid to trust the people?
Let us remind ourselves. As leader of the opposition some three years ago, Andrew Holness announced that his party was committed to seeking the vote of the people in a referendum as a guide to how a resolution to the following public issues should be approached:
n Jamaica's approach to same-sex relationships.
n Jamaica's approach to delinking from the Privy Council and subscribing fully to the CCJ.
n Jamaica's approach to the utility of ganja.
At the best of times, the pursuit and fulfilment of such a commitment, which he dubbed 'The Grand Referenda', would present any administration with an extremely daunting prospect. A referendum - a catchy concept to the uninitiated - even with one question on the table, is a seriously challenging exercise to plan for and to usher to smooth execution.
But, above all else, since a referendum - a general vote - is in essence a political exercise, inescapably involving campaign procedures in which there is liberty to adopt several different forms, what plans did Holness envisage would be put in place to keep the campaigning in respect of the first-named policy question, above, for example, within tolerable limits?
Despite acknowledged lessening intolerance in any normal discourse on issues relating to same-sex relationships in Jamaica, it remains perhaps beyond all imagination what the atmosphere would be like in this jurisdiction in a full-blown political campaign involving that subject matter. Even further, beyond such imaginings are the catastrophic, permanent national scars that would result, regardless of the outcome.
Regarding questions relating to the use and effect of the referendum process within the Westminster model of government or elsewhere, there are certain glaring observations that can be made.
In the machinery of government, the Cabinet - the policy-making mechanism - comes to be established through different channels, dependent on the model that is in contemplation. There are stark differences in the method employed in the presidential system, as in the United States (US), for example, to that which is utilised in the Westminster system, as in Canada, Jamaica or the United Kingdom.
In the presidential system, apart from the head of government, the members of the Cabinet - the policymaking authority - are not exposed to a vote by the electorate. So that it is no doubt quite explicable and reasonable that certain policy decisions would be considered, from time to time, appropriate to be reserved for the decision of the voting public.
It is not so in the model to which we in Jamaica subscribe in accordance with our constitutional arrangements. The Cabinet, or the policymaking authority, in the Westminster system of government consists of members who, apart from those very few who are drawn from the upper chamber of parliament, have been exposed to the public vote.
In that system, the public is entitled to expect that, having, by their vote, reposed authority in the members of the Cabinet and their colleagues in the legislature, no policy matter ought to be referred back to them, outside of those that are required by the constitution to be so referred.
And, particularly so, when they had nothing to do, directly, with the birth of the issue that is then to be referred to them for their contemplation and vote.
That basic difference in the two systems of government no doubt lies at the heart of the effect of the use of the referendum process. In the countries of Europe and in the US, which do not subscribe to the Westminster system, its use appears to enable consensus and positive movement forward. There is no evidence that it leads to confusion and the creation and enhancement of lasting divisions in the society as in the Westminster model. In the case of the former, the process appears to enable solutions to problems; in the latter, a creator of lasting disunity and deep-seated distrust.
At least, that is the conclusion that would inevitably be reached upon any impartial examination of the conduct and the aftermath of the use of the process in two instances: the 1961 referendum here in Jamaica concerning the ill-fated West Indies Federation, and the 2016 Brexit vote in the United Kingdom.
There are clear similarities between the two initiatives. First, the question that formed the subject matter of both had come into being as a result of decisions of the parliament at Whitehall: the one by passage of the 1958 British West Indies Federation Act; the other allowing for the UK to become a part of the European Communities by means of majority vote in the Commons in 1973.
Second, both had to do with continued connection or otherwise to an economic and political integration movement, a connection which, as we have observed above, had been established as a result of policy decisions taken without any reference to the people for a vote in a referendum.
Each referendum was initiated at the instance of the head of government: Norman Manley in the case of the 1961 Jamaica referendum, and David Cameron in the case of the 2016 Brexit vote.
The campaigns leading up to the vote were equally off base and unhelpful in both instances, by no means assisting the electorate to come to an understanding of the issues involved. Indeed, such campaigns can attract aspects as forgettable as the cartoon which appeared in The Gleaner close on to the 1961 vote. Reflecting on what had been projected to the public during the campaign, the cartoon depicted Jamaica, the largest of the member states and, in those days, boasting the most promising economic indicators, as a mother sow and the other nine countries of the 10-member federation represented by piglets feeding at its nipples.
In the case of the 2016 Brexit vote, the British people are only today being made aware of what really is involved, prompting ever-growing calls for a fresh referendum vote "now that the truth has come to light", and which might not even be allowed to take place at a time, perhaps, when it is most needed. Who knows? That is the present uncertain state of public affairs in the United Kingdom.
The most devastating of the similarities, however, is to be found in their lasting negative effect. Ever since the conduct and outcome of the 1961 referendum, there has been, throughout all these years, an underlying, though quite unhidden, lack of confidence and trust between the countries of the Eastern Caribbean and Jamaica.
In the untidy aftermath of the Brexit vote, it has been widely expressed that, not since the Second World War has Britain been as challenged as it is today. It is said, further, that the way of life in the United Kingdom will never be the same; changed forever.
A substantive difference between the referendum vote and the vote in a general election is that, though both are political exercises, in the case of the latter, no permanent feeling of ill-will is left since there is always the opportunity and drive on the part of a losing party to reverse the position in the following election.
There is, ordinarily, no such opportunity in the case of the referendum vote and any feeling of resentment and disappointment is simply left to live within the body politic forever. Therein lies the far-reaching, corrosive danger of yielding to the demand for a referendum vote, and particularly so when such a demand is grounded purely in political expediency.
In Canada, a society that is considered to be an exemplary adherent of democratic practice and principle, there was successful, stout resistance to strong calls, over several years, for a referendum to be held to delink from the Privy Council and to establish their own Supreme Court so that their people might be allowed to reap the benefit of easy access to their final appeal tribunal.
The conventional wisdom is that it was certainly not that the Canadian authorities, over time, were "afraid to trust the people". What they were afraid of, and stoutly guarded against, were the lasting scars, including the partisan political stains, that a referendum exercise might leave on the landscape of their judicial system forever.
Perhaps Mr Holness might wish to retreat with his advisers, and proceed to subject his 'Grand Referenda' proposal to some wholesome thinking and evidence-based examination. Assuming, of course, that there is no adviser so powerful as to be irresistible!
- AJ Nicholson is an attorney-at-law and former Cabinet minister.