Tue | Jan 18, 2022

Peter Espeut | Beware of counterfeit constitutional reforms

Published:Friday | December 3, 2021 | 12:06 AM
In Jamaica we have not found a wholly satisfactory way to appoint members of the judiciary, especially the chief justice. For judges what we do is ask the governor general (himself appointed by the prime minister) to appoint a Judicial Services Commission
In Jamaica we have not found a wholly satisfactory way to appoint members of the judiciary, especially the chief justice. For judges what we do is ask the governor general (himself appointed by the prime minister) to appoint a Judicial Services Commission (on the advice of the prime minister) which then selects the judiciary.

The late, great Mutty Perkins lobbied hard over his many years in front of a microphone for the reform of Jamaica’s constitution, to no avail. The reforms he advocated would have limited the power of politicians, increased transparency and...

The late, great Mutty Perkins lobbied hard over his many years in front of a microphone for the reform of Jamaica’s constitution, to no avail. The reforms he advocated would have limited the power of politicians, increased transparency and accountability, and deepened our democracy. Mutty never was so foolish as to expect politicians to voluntarily reduce their grip on power; he hoped that the citizenry – today we would say civil society – would rise up and demand meaningful change for their own benefit. “Beware!”, he might say, “when politicians call for constitutional reform: that is likely to be a prelude to giving themselves more power, and more privileges, and to surround their activities with more secrecy.”

There is an inherent conflict of interest in politicians driving constitutional reform, since the supreme law of the land governs their behaviour, and is the source of their power. They will be tempted to “reform” the constitution to suit themselves! Their every move is therefore to be scrutinised closely!

Take, for example, their merger in 2016 of the Office of the Contractor General (OCG) into the single “anti-corruption agency” (called with great political spin the “Integrity Commission”). The findings and the declarations of the OCG when Greg Christie and Dirk Harrison were in the job were embarrassing to governments in power. “Will no one rid me of this turbulent priest?” King Henry II is alleged to have declared in exasperation to a few of his knights, referring to Archbishop of Canterbury Thomas-a-Becket who repeatedly challenged him; they promptly murdered the prelate. The “gag clause” in the Integrity Commission Act effectively rids the government of the turbulent contractor general.

I warned in this column that the creation of the “Integrity Commission” would make the detection of corruption and its prosecution even more difficult (read unlikely!) Have I been proved right? Have the names of those who have failed to declare their assets been published, as was done before the creation of this “Integrity Commission”? With all the exposes of corruption since 2016, has even one politician or public servant been prosecuted? Don’t hold your breath!

TOOTHLESS AND INEFFECTIVE

Campaign finance reform legislation has been toothless and ineffective.

One constitutional reform issue that Mutty strongly argued for was “separation of powers”. The powers of government have been split into three branches – one passing the laws (the legislature), one adjudicating based on the laws (the judiciary), and the third administrating the country according to the laws (the executive); each branch of government has the responsibility of watching over the other two, implementing a system of checks and balances.

The legislature can pass a vote of no confidence in the executive, while the executive can dissolve the legislature. In Jamaica we do not have a real system of separation of powers, as the executive is a subset of the legislature, and is therefore not really separate from it.

The almost independent branch of the Jamaican government is the judiciary, which has the power to overturn legislation (ruling it unconstitutional), and to rule the executive in breach of the constitution; the courts also have the power to judge that members of the legislature or executive have broken the law, and to penalise them. It is therefore crucial that the persons appointed to the judiciary are not closely connected with either the executive or the legislature, for this may bias their legal judgments and create conflicts of interest.

Therefore, neither the executive nor the legislature must be directly involved in the appointment of members of the judiciary – and especially of the chief justice – as this might set up the appearance that the appointee is beholden to the appointer; which might give the appearance of bias should the appointee ever rule in a legal judgment in favour of the appointer.

In Jamaica we have not found a wholly satisfactory way to appoint members of the judiciary, especially the chief justice. For judges what we do is ask the governor general (himself appointed by the prime minister) to appoint a Judicial Services Commission (on the advice of the prime minister) which then selects the judiciary. This seemingly arm’s length arrangement creates the appearance that judges are not appointed by the Executive Branch of government.

In the case of the chief justice, it is the prime minister directly – not the Judicial Services Commission he appoints – which makes the recommendation to the GG. Surely this arrangement which is in our Constitution violates the principle of the Separation of Powers.

What is worse, the present prime minister once recommended to the GG that only a temporary appointment be made so that he can evaluate the performance of the chief justice, to determine whether he will be appointed permanently. This placed the PM in a position to judge the chief justice, which breaches the principle of the Separation of Powers, and the independence of the judiciary. Should the chief justice ever make a ruling which favours the Government, justice will not appear to have been done.

REVISIT JUDGES APPOINTMENT

In my view, the way judges (and especially the chief justice) are appointed in Jamaica – which concentrates too much power in the hands of the prime minister – needs to be revisited, and should be an important part of any constitutional reform discussions.

But there is one court over which the Jamaican prime minister has no role in appointing, and that is our final court of appeal – the Judicial Committee of the UK Privy Council. What some people call “constitutional reform” would abolish our right to appeal to this independent body, and replace it with what they call the “Caribbean Court of Justice”, whose judges are appointed by an 11-person Regional Judicial and Legal Services Commission, five of whom are appointed by politicians. The president of the CCJ is chosen by the prime ministers of the region.

Beware of counterfeit constitutional reforms which increase the powers of politicians, rather than deepening our democracy.

Peter Espeut is a sociologist and development scientist. Send feedback to columns@gleanerjm.com