Thu | Dec 8, 2016

The test of the Constitution

Published:Sunday | April 11, 2010 | 12:00 AM
Golding
Phipps
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The United States (US) government, the most powerful government in the world, we hear, is investigating three senior ministers of the Jamaican Government for possible conspiracy to prevent information from reaching the New York Grand Jury hearing the Christopher Coke case, and possibly violating the Foreign Agents Registration Act (FARA) in a connected saga involving the Government of Jamaica and Manatt, Phelps and Phillips lobbying the US administration.

What if one of those ministers, who are being, or who might at some time be investigated, is the prime minister (PM)? We believe that much of what he has said about why Coke has not been extradited is not credible, and that what he has explained about the reported lobbying efforts does not square with what is known. So, what if the prime minister is found, upon investigation, to have unlawfully hindered the extradition process and to have had any dealings himself, or with those who have lobbied the US government, in any improper or illegal way?

Constitution as Remedy

Some of the reasons why constitutional reformers have pushed for a new Constitution are precisely to place effective checks on the power of the executive, and more balance in favour of the legislature, to ensure responsible and accountable behaviour, and apply sanctions against the executive and legislature when they behave irresponsibly.

As it is, there is no provision for impeachment of a prime minister, although we agreed, in recommendations for constitutional reform, that there should be. There is no legal sanction for misconduct or misbehaviour on the part of a prime minister, although we allowed the incumbent to fire the Public Service Commission for 'misbehaviour' and we have codes of conduct for our parliamentarians. We also talked about limiting the number in the executive to a certain proportion of the Parliament so that the former does not have undue numerical influence over the independence of the latter. Yet, we have tolerated one of the largest executives ever.

None of this is out of ignorance. We have studied and diagnosed the problem and prescribed solutions. Rather, it is because of our own perennial hope that if we just elect the other side, they will make all things well. But they won't if we give them the same institutions to work with, and they will not want to if those institutions give them the same freedom from responsibility and accountability as they have had. The Golding-Dudus Coke nexus in Jamaican politics has brought constitutional reform back into the picture. It is the ultimate test of a constitution when it can or cannot sanction the most powerful official it empowers. This Golding-Coke nexus shows how a bad system, or a good system turned bad, can imperil a government's ability to act as one of laws, but could make government seem to consort with persons deemed to be most wanted, embarrass the country internationally and jeopardise its international support system, as well as endanger public safety and public morality. The framers of the Constit-ution had not conceived that any of this would happen. The Constitution is for government that stands for "defence, public safety, public order and public morality." We might not have been here had we maintained the constitutional-reform agenda launched by Michael Manley in the Throne Speech of 1974/75. P.J. Patterson carried on the legacy but, by 1995, Bruce Golding had become the new champion of a separation-of-powers model, but now appears to be betraying the high ideals of constitutional reform. What greater contradiction is there between a one-time constitutional reformer and the present conservative defender of excessive executive power under the old Constitution; the advocate of separation of powers and the use of the executive to usurp the public service and judicial domains; the anti-tribalist and the defender of loyalists at the nation's expense; and the man who used the label 'new and different' but who is practising old and same?

Constitutional Limits

We don't have a constitution that can impeach or limit the term of a prime minister. Theoretically, Golding could remain in office for a long, long time because, although he once said he believed in fixed terms' he has done nothing to effect such a constitutional change. He said he believed in fixed election dates but that could be dangerous since it would undermine the power of the legislature to remove him at any time.Indeed, the two political ways that the PM can lose his job are if the Parliament votes no-confidence in him or if he loses his seat in Parliament. One imagines that his political stance on the extradition matter has much to do with the latter possibility. Should he lose a vote of no-confidence, he can, however, ask the governor general to dissolve Parliament and call new elections. Should that happen, he would want to make sure his seat is safe, and his stance on the extradition matter would help that cause. His power to dissolve Parliament would only put all his parliamentary colleagues at risk of losing their seats and, under present circumstances, many would and they would collectively lose their parliamentary majority. Their reluctance to do this would, of course, defeat the purpose of the vote of no-confidence. This is more testimony to the weakness of the Constitution and this is one aspect of the problem that Frank Phipps has recently spoken about.

The Constitution contradicts itself. But this Golding-Coke affair cannot be blamed on the constitution. The Constitution only fails to resolve it.

Broader Reforms

The power of the executive and legislature over each other is one aspect of constitutional reform that is pertinent to this whole Golding-Coke affair. There are electoral dimensions as well. Former Prime Minister P.J. Patterson had proposed that there be a presidential system and that the president be directly elected by the nation. The advantage of this would be to break any direct relationship between the PM and a constituency, especially a garrison constituency, eliminating the chance of don-man capture of the PM. Proportional election systems would do the same for all members of Parliament.

Campaign-finance disclosure laws would expose financial connections between garrisons, gangs and dons and the MP's campaign. Probably it is also time we looked again at barring the public defender's office from a case in which the minister of justice is trying to extradite a person because he has allegedly committed a crime.

This issue also points to important reasons why we need a more activist judiciary. In this light, we should also debate the contractor general's request to the PM for fuller investigative and prosecutorial powers. This might not be the best time or the best person for the contractor general to ask, and this fact reinforces the need to restart a broader campaign for constitutional reform. Until then, we will be relying on other countries to investigate and sanction our government. In a democracy, the people should have those powers.

Robert Buddan lectures in the Department of Government, UWI, Mona. Email: Robert.Buddan@uwimona.edu.jm