Commissioning the truth
Robert Buddan, Gleaner Writer
Those who support the Westminster-Whitehall system must defend it. Those who support the monarchy must also defend it. I am not a big fan of either, but if we defended their better points, we would have less to complain about. Bruce Golding, for example, wants to act like a president. But this is not a presidential system. He wants to act as head of state, head of government, and head of administration.
Golding is head of government by right. But he has imposed his powers over the administration when it has suited him, such as the unconstitutional firing of members of the Public Service Commission in the Vasciannie affair. His appointment of a commission of enquiry into the Golding-Coke-Brady-Manatt affair brings his powers into new perspective, particularly as it affects the head of state.
The role of the governor general is not purely ceremonial. An expert on this matter, Abraham Dabdoub told me that reading the Commission of Enquiry Act makes it clear that the appointment of a commission of enquiry is within the "absolute discretion" of the governor general. While the prime minister may request that a commission of enquiry be appointed, he said, the law does not give him the power to name or appoint the commissioners. He may, however, recommend those persons. If the governor general becomes aware that the commission might appear to be biased, he can revisit the appointments.
Mr Dabdoub further felt that "it is open to the Opposition to request the GG to review his decision, revoke the appointment of these commissioners, and appoint new commissioners." The governor general might not have been aware of the political association between the chairman of the commission and the ruling party or of the widespread public scepticism that would have resulted from his appointment.
Powers of the Head of State
Section 2 of the Commission of Enquiry Act points out that the governor general, the head of State, has powers that Mr Golding, the head of Government, has taken unto himself. Its shorter form reads: "It shall be lawful for the governor general ... to issue a Commission, appointing one or more commissioners, and authorising such commissioners ... to enquire into the conduct or management ... which an enquiry would, in the opinion of the governor general, be for the public welfare." Yet, it was Golding who "issued" a commission and named it. He did so without consulting the leader of the Opposition as it is good custom to do. In a statement to Parliament on October 19, the prime minister said he "advised" the governor general to appoint a commission of enquiry.
Mr Golding also announced that the commission of enquiry would make a full and faithful report, on or before February 28, 2011. We don't know how the Government knows that the commission can make a full and faithful report by that certain time. What we do know is that governments sometimes will circumscribe a commission of enquiry, either through the specific terms of references prescribed, or include a date by which the enquiry must finish.
The public welfare is best defended when we know the truth about what critical institutions have done that might betray good practice. But institutions must act as a check and balance against each other, both to defend against abuse, and to enquire into the truth. The powers of the executive must be checked by Parliament and the head of state.
All of these institutions are important because the governor general represents the monarchy, the Government is accountable to the legislature, and the legislature is representative of the people. The governor general has been given powers to act on his own to preserve integrity. The GG must ensure that the integrity of Her Majesty's government is protected.
In a case such as this, the GG has a responsibility, at the very least, to invite the leader of the Opposition in for consultation. If the prime minister has not used his discretion well and has not exercised a promise to consult with the leader of the Opposition, and if there is scepticism over the commission's ability to promote the public welfare in the name of the governor general, then his office stands to suffer a loss of integrity, which will reflect on the monarchy, which he represents.
If the governor general appears to be a mere instrument of the politics of the prime minister, then this contributes further to something that has become a hallmark of this government: executive dominance over separation of powers, independence of the civil service, and relations of trust. If the prime minister senses that he can get away with executive dominance, then he will, in effect, become head of government and head of state, acting more like a president. He will reduce the GG to a pure figurehead.
The governor general has a duty to protect the rule of law and the rule of truth. To have these, we must have consultation between Government and Opposition. This is the constitutional spirit within which our system of government and opposition was established. Consultation is a method regularly referred to in our Constitution. It is the spirit of the Vale Royal talks as well. If the Government has caused the Opposition to be aggrieved and is using the GG to force a non-consultative process on the people, and the GG has absolute discretion to resist, then he should. Otherwise, he would be failing in his responsibility and making Jamaica appear to be, what some are saying it has become, a banana republic.
The Opposition appears willing to be consulted. When the decision for a commission of enquiry was announced on October 12, the leader of the Opposition, Portia Simpson Miller, said, "I look forward to the meaningful consultation that is necessary to arrive at the membership of the commission and the fashioning of the terms of reference, which would be critical to ferreting out the real truth of all the issues involved."
Significant first step
It was a first step only, she said, but a significant first step. It was a step towards restoring the country's reputation at home and abroad, as a country where the rule of law is paramount. Consultation between the Government and Opposition was welcome and is good practice in our democracy. This is important if we are to have the rule of law and the rule of truth. It is important to restore our reputation as a country. I would imagine that the governor general would agree that all of this amounts to the public welfare.
It is worse if the governor general allows his office to be dragged into appointing a commission, designed purely for internal party politics rather than the actual public welfare. After all, the decision to establish a commission of enquiry came sandwiched between new revelations from Harold Brady's legal case against Golding, and the Jamaica Labour Party's (JLP) November conference. The JLP was being split on the matter. The situation was rapidly deteriorating into infighting to take control of the position of general secretary. The commission of enquiry might not have been designed for the public welfare at all, but to smooth the warfare in the JLP on matters that had become embarrassingly public.
Robert Buddan lectures in the Department of Government, UWI, Mona. Email: firstname.lastname@example.org