Fri | Aug 18, 2017

Gordon Robinson: Westminster dictatorship

Published:Sunday | April 17, 2016 | 4:41 PMGordon Robinson
Prime Minister Andrew Holness
Opposition Leader Portia Simpson Miller in a tete-a-tete with Ruddy Spencer inside the Parliament building last Thursday.
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What an excitement on Twitter since February 25!

Every other message is accompanied by ‘#prosperity’; every political announcement or suss (however peripheral) is greeted with orgasmic glee; and a positive spin has been put on everything, including Desmond McKenzie’s gross excess of authority in preventing the NSWMA from employing his son.

Tribalists hailed McKenzie’s irrational interference in the exercise by a statutory authority of its statutory jurisdiction as an example of the sort of extremely ethical conduct Jamaica could come to expect from this new set of Westminster-sanctioned dictators. A former anti-corruption official who ought to know better congratulated Desmond on his actions (or maybe it was this specific action) and, when challenged, retreated behind vague generalities to the effect that public officials are expected to set “a higher standard”.

Maybe. But the sons of public officials, who haven’t offered themselves for election and who may be jobless but qualified, have no such burden. They operate in society like the rest of us. If a job is advertised that attracts them, they apply. If, after due diligence, the statutory agency finds them best for the job they’re to be hired regardless of heritage.

If Desmond had interfered with the process and insisted his son be hired over superior candidates, that would be nepotism, for which he could’ve been prosecuted. What he did, which was to prevent the employment of a citizen fully qualified for the job and thoroughly vetted, is reverse nepotism; as bad as nepotism; and a breach of his son’s rights as a citizen. If I were Desmond’s son (now there’s a challenging mental picture), I’d sue Government for interference with my contractual relations and for breach of my constitutional right to property (my job).

At the same time, a press release was issued by the OPM announcing the appointments of 52 government boards, upon which at least 500 Jamaicans have been included (there are some repetitions). These appointments were considered, vetted and approved in absolute secrecy. Not even one of the 52 chairmen was asked to face parliamentary vetting, nor was the ‘electorate’ given a single minute to comment on the appropriateness of any.

You see, we’ve HAD our bi-decadely thrill. We whipped ourselves into a frenzy of excitement during our one ‘day out’ for five years. We got all hot and bothered for a day; worked ourselves up to a climax when election results were announced; and celebrated long into the night when ‘our’ party ‘won’. But did WE win? If yes, win what?

The climax was swiftly followed by the anti-climax. How many of these political board appointments are relatives of elected politicians or Cabinet ministers? Any wives, husbands, sons, daughters, cousins, uncles or aunties? Any girlfriends, boyfriends, partners or colleagues?

What opportunity did we get to explore, in the bright light of day, whether or not any such connection would represent a conflict of interest/duty with the core functions of the statutory body? What opportunity did we get to comment on, or question, suitability, competence or integrity?

If, as the gospel according to Desmond proclaims, it’s wrong without more for a minister’s son to be employed as an NSWMA contracted staff member, how more wrong would it be if (hypothetically) his wife were secretly appointed to the NSWMA board and a public announcement made in her maiden name after the fact?

But, in my opinion, Desmond is wrong about his son, who isn’t a political appointment but just a Jamaican ‘looking work’ in a contracting economy. It’s also wrong to ban politician’s relatives from state boards. But, like everything in life, it’s all about timing and process. If we had a true democracy, board chairmen would be subject to parliamentary vetting and public comment before appointment, and there would be set rules about the appointment of relatives of Cabinet members to any board, as this would be at least a prima facie conflict of interest and duty.

This is what is meant by the uncomfortable mouthful ‘constitutional reform’ that turns off most Jamaicans automatically. One of the reasons that education standards are so low in Jamaica when it wouldn’t take much to lift them is that an educated society (with civics as a mandatory fourth- or fifth-form course) would have insisted on constitutional reform decades ago and created an Arab Spring in Jamaica if it wasn’t granted. Instead, in 2016, we still have more than SEVENTY schools with only pit latrines as sanitary inconveniences, while education ministers preen and announce ‘achievements’. Barf! 

If we want better; if we want accountable government; if we want real change; it can only come from constitutional reform, because the Constitution is the only institution or document with authority over government (Cabinet) and Parliament and which both MUST obey. Countries like Jamaica are very fortunate in having written constitutions (literally ‘the nation’s foundation’) and independent judiciaries to enforce constitutional provisions against errant governments or parliaments. THAT, functioning properly, is the key to real democracy.

The peculiar problems with Jamaica’s written Constitution are: 

• It was drafted more than 50 years ago by people who, with the very best of intentions, knew only British rule, so they crafted a document that would, as far as possible, mirror the British way of doing things without understanding fully the difference between British and Jamaican history AND, more important, the likely difference between British and Jamaican futures; 
• It’s been interpreted, for decades, by most judges as an extension of British law rather than a standalone document with an all-powerful potential to make new law tailored for a very different society.

The British ‘Constitution’ that we tried to reduce to writing is unwritten and governed by gentlemen’s ‘conventions’ carved out and solidified over centuries of tradition. In Britain, it couldn’t be otherwise, because Britain is a monarchy. The monarch is, to this day, all-powerful, and all other civic institutions (like Parliament; the judiciary, etc.) BELONG to the monarch and, at least in theory, carry out the monarch’s instructions.

Brits aren’t citizens; they’re subjects. So Her Majesty’s Parliament (a creature of Magna Carta compromise by a monarchy desperately trying to keep restless natives quiet with pretend democracy) still reports weekly (through the prime minister) to the Queen; the judiciary is ‘Her Majesty’s judiciary’ and the Cabinet ‘Her Majesty’s government’. My dental troubles can all be traced to my severely grinding my teeth whenever Queen Lizzie visits, and I must suffer her reference to ‘my Government’ when she’s really talking about the Jamaican Government.

Many anomalies in our own governance/legal system follow from our short-sighted attempts (still going on) to copy Westminster, including, as I have written before, judicial review, an anachronism in any country with a written Constitution where ‘judicial review’, properly so called, ought to be restricted to a review of governmental action vis-a-vis the Constitution to see if the government has acted unconstitutionally. 

The only way forward is a determination to give Jamaica a chance at true democracy; to begin with abolition of our pretend monarchy; to fundamentally alter our Constitution, so Government will be forced to perform in the light of day rather than in the darkness of perpetual night; to give voters a say in government and to make the elected continuously accountable to electors; to ensure no prime minister can behave like a king or queen; to at least create democratic institutions like fixed election dates, direct election of prime minister, selection by registered party members (not just delegates) of constituency candidates for general elections AND of party leaders; and certainty in the number and names of ministries (no MP should be able leverage a prime Minister to add his name willy-nilly to an open-ended list of ministers). These are minimum requirements for any hope of ‘prosperity’.

Until we address THIS deficiency in public life, we will be spitting in the wind forever. We can change T-shirt colours as often as we like; give away election goodies like tax reductions; whine interminably ex post facto about decisions we knew nothing about when they were being contemplated (e.g., ‘FINSAC’; Dudus defence; Outameni); Jamaica won’t progress, won’t show any but the most fleeting economic growth and won’t EVER fulfil its massive potential. Corrupt politicians will prosper. The rest of us will suck salt through a wooden spoon.
Peace and love.

- Gordon Robinson is an attorney-at-law. Email feedback to columns@gleanerjm.com.