Tue | Oct 16, 2018

Martin Henry: Governing by constitution

Published:Sunday | March 13, 2016 | 12:00 AM
Minister of Justice Delroy Chuck taking his oath.

They have all sworn the oath of allegiance or made the pledge. All 18 ministers; the prime minister first. "I will be faithful and bear true allegiance to Jamaica ... . I will uphold and defend the Constitution and the laws of Jamaica, and ... will conscientiously and impartially discharge my responsibility to the people of Jamaica."

The electioneering is over - for the time being. And the spasm of chatter about the Cabinet - its portfolios, its composition, its size - has subsided. It's time to get on with the nitty-gritty business of government under the prevailing, well known, economic and social conditions which the country faces.

But how might a constitution-focused Government proceed with governance?

We know how economy-focused governments have proceeded - and how they have failed. And the prime minister has arranged another one with a super-concentration of functions and agencies for economic growth and job creation within the Office of the Prime Minister to be manned by no less than three full ministers without portfolio, plus the prime minister himself.

If we have to have this monstrosity at all, then it's best that it be located in the OPM with the prime minister as the minister. Cut-across ministries, no matter how well-intentioned, forced as they are to meddle in the portfolio affairs of other ministries to get their job done, just doesn't work. They only create problems, ill-will and tension in Cabinet government before they fail and must be abandoned. Economic growth is an all-Cabinet function naturally to be presided over by the prime minister.

We know how welfare-focused governments have proceeded. And the prime minister has given an inaugural recommitment to remove fees from the already underfinanced secondary school system. This joins the no-user-fee policy in the health services, which was introduced by the last short-lived JLP administration, and from which the health services have significantly suffered.

But that's not all. Subsidies are directed to farmers through RADA, and to tourism interests through the financing of the Tourist Board. And a web of waivers have entangled government revenues for years before recent efforts to cut through them. Many public services which can be sold at commercial pricing and get off budget subsidy are not.

But good governance, such as Prime Minister Holness is promising us, is not so much patching together a whole slew of clamouring sectoral interests, as is the trend in modern 'democracies'. Some powerful sectors have already muscled their way into meetings with the prime minister and portfolio ministers to advance their sectoral interests, which they always present as being the same as the public interest and the national interest. And there is a line out there waiting to twist the arms of Government in the interest of their interests.

Good governance is based on constitutionalism - which the prime minister and his Cabinet of ministers have pledged to uphold and defend - and effectively delivering on those functions which Government alone can discharge in the general interest of all. None of us can raise an army, form our own police force, or operate our own court in defence of safety and security. We can't establish our own court for justice. The last such 'President' of a sub-state is serving time in a US federal prison, having been captured with great loss of life and extradited.

None of us can float our own currency. The Government of Jamaica, for good governance and as a fundamental obligation, must protect the value of the Jamaican dollar as the principal store and measure of property value which the Government is pledged to protect. This is Government's most important economic responsibility.

That narrow margin of victory at the polls offers rich and exciting prospects for better governance, not as a gift from Andrew, but as something that we are in a better, stronger position to demand.

But how might a responsible Government proceed with governing by the Constitution?

At the heart of the Jamaican Constitution is the Charter of Fundamental Rights and Freedoms. Before chasing economic growth, before providing public goods and services, "the State has an obligation to promote universal respect for, and observance of, human rights and freedoms."

The foundational premise of the Jamaican State is that "all persons in Jamaica are entitled to preserve for themselves and future generations the fundamental rights and freedoms to which they are entitled by virtue of their inherent dignity as persons and as citizens of a free and democratic society".

Topping the list of 19 fundamental rights and freedoms in the Charter, a listing which closely reflects the 1948 UN Universal Declaration of Human Rights, is "the right to life, liberty and security of the person and the right not to be deprived thereof ...". The Government of Jamaica does not have a good track record in protecting the right to life and the security of the person. That right is extended to the right of every child to protection by the State.

The prime minister has tapped Robert Montague to be the minister of national security. Minister of law and order and public safety would be a better title. Defence, which the prime minister himself heads by the Constitution, provides "national security" from external threats, of which there is none that can be readily seen.

It is one thing to name a minister to supervise the protection of this most fundamental right. It is quite another to equip the ministry with the necessary resources. In the face of the serious threats to life and security of the person, ministers of national security have all been given basket to carry water. I have proposed taking a thin slice off every budget line to provide the absolutely needed top-up for security and justice in the public interest.

Interestingly, it was the Alcan professor of Caribbean Sustainable Development at UWI, Anthony Clayton, not a criminologist, who published an extensive piece in this newspaper last Tuesday, the day after the swearing-in of the Cabinet, on the extent and causes of criminal violence in Jamaica, its impact on sustainable development, and how the country's "most intolerable, ruinous and deadly burden - crime and corruption" - might be successfully lightened.

Jamaica has done well with the rights to freedom of thought and belief, freedom of expression, the rights to receive and share information, and the freedom of assembly and association. We have done far less well with the justice rights. For instance, "any person who is arrested or detained shall be entitled to be tried within a reasonable time and shall be brought forthwith or as soon as is reasonably practicable before an officer authorised by law, or a court and released unconditionally or upon reasonable conditions to secure his attendance at the trial or at any stage of the proceedings. [And] any person deprived of his liberty shall be treated humanely and with respect for the inherent dignity of the person".

Minister of Justice Delroy Chuck is deeply committed to these principles of constitutional law, but now sits atop a justice system seriously starved of the resources to deliver on them with hundreds of people languishing in jail awaiting trial and hundreds of thousands of cases log jammed in the system.

Close to the heart of constitutional free enterprise democracy is the protection of property rights. The whole point of economic growth, job creation and poverty reduction is to increase people's property ownership and wealth towards their well-being and own personal "pursuit of happiness". The currency of the State is the primary measure of wealth and the primary store of wealth. We seldom explicitly include in the protection of property rights the protection of the value of the currency. But loss of currency value through inflation and depreciation undermines the wealth of the nation and its citizens, the poorest being the hardest hit.

Economic policy for currency stabilisation is fundamentally a human-rights issue. The ministers of the production industries, not to mention the prime minister himself heading the Ministry of Economic Growth and Job Creation, and the ministers of the facilitating ministries, would do well to re-vision their work in this light, considering their oath/pledge to uphold and to defend the Constitution.

Among the 'new' rights is "the right to enjoy a healthy and productive environment free from the threat of injury or damage from environmental abuse and degradation of the ecological heritage".

The super-focus on the economy should be matched by a similar super-focus on the whole environment, the natural environment, the built environment - particularly urban decay - and the social environment, which constitutes the home in which human beings flourish or fail to flourish. Some of our most serious national threats are environmental.

A Constitution-focused Government creating a national environment of peace and good order and more protective of rights and freedoms as first duty will be amazed, like the rest of us, at how well the economy does, as consequence, not cause.

- Martin Henry is a university administrator. Email feedback to columns@gleanerjm.com and medhen@gmail.com.