David R. Salmon | The fallacy of the ‘perfect’ constitution

RECENTLY, CONSTITUTIONAL reform has been a major discussion point. While some assert that only minor changes are needed, others have argued for the complete dismantling of our existing governance framework – to burn it to the ground, so to speak.

However, the challenge with the debate so far is that it fails to acknowledge that all constitutions have flaws. Instead, the discussion has often focused on polemics on the demerits of our Constitution and why approaches such as the separation of powers will automatically address Jamaica’s numerous governance issues. Hence, it is necessary to challenge the romantic view that there exists a ‘perfect’ model for Jamaica.

SEPARATION OF POWERS FALLACY

The first fallacy is that extricating the executive from the legislature would guarantee improvements in governance. The argument goes that the prime minister has too much power, largely due to the fact that his Cabinet is chosen from the legislature. Therefore, he can use ministerial appointments to secure support for his priorities.

Back-bench members of parliament (MPs) are thus less likely to provide robust supervision of the executive, as they have more incentives to toe the line in order to become a minister. Critics contend that this produces a pliant, rubber-stamp Parliament dominated by the executive.

What this line of reasoning fails to consider is the realities of how power works. Regardless of the governance system involved, the executive will use the tools at its disposal to implement its mandate. In countries that have nominally achieved a cleaner separation of powers, this is still the case.

The United States is an insightful example. Even though sitting members of Congress cannot simultaneously serve as Cabinet secretaries, a president still has other ways of influencing Congress. For instance, he may propose legislation that directs resources to districts his party controls. In other cases, as seen with the Trump administration, the president may bully legislators into submission. This can be achieved by public lambasting or supporting intra-party candidates to run against representatives that oppose his agenda.

THE FLAWS OF AN ELECTED SENATE

These criticisms can also be applied to the proposal for an elected senate. Jamaica’s Senate, as it was conceptualised, serves as a revision body that specialises in the scrutinising of laws. Unlike the House of Representatives where the attention of an MP is split between constituents’ needs and that of their legislative role, a senator can specialise in the latter.

For this reason, it is a body that can address flaws in legislation passed by the House. Its appointed nature also means that it is easier to get professionals in certain fields to contribute directly to the legislative process.

But if you shift to an elected body, then you can easily get a reproduction of the aforementioned challenges which plague the House of Representatives. To carry out their mandate, senators will still need the support of the executive, which makes them beholden to this branch of government.

INCENTIVES FOR PROVIDING OVERSIGHT

Another point that ‘separation of powers’ ideologues miss is that the principle works best when the opposition controls the legislature. That is never guaranteed in any election year. Moreover, political parties, regardless of whichever system is in place, are not going to undermine their leader to exercise some vague notion of institutional separation. Legislators have constituents with needs, and from a ruling party’s perspective, the best way to satisfy those demands is to work with the executive.

For an opposition party, the reason why they are more inclined to provide vigorous oversight of the executive is not because their members care more about the ‘public’s interest’. For a party not in office, there are simply more incentives to expose the failings of a government, as this can be used as ammunition to fuel their quest for power.

A political party out of power is useless to a prospective voter whose priorities require investments from the government in areas like road improvements or providing water. Without power, you can do nothing. That is why all parties seek it. Appreciating this point is crucial if we want to achieve reforms that can improve the operations of government and are palatable to those who will be enacting them.

THE CHALLENGES OF REPRESENTATION

Where I do concede to proponents for greater separation of powers, is that it is problematic for so many members of the executive to come from the legislature. The consequence being that MPs who double up as ministers may find it difficult to balance their ministerial responsibilities with their constituents’ needs. One constituency visit per week is inadequate, given our highly personalised system of politics. Constituents want to feel the ‘love’ from their MP.

That leads to almost comical circumstances where MPs attend and, in many cases, pay for funerals for people they do not know. They host parties. They do road construction. They may even buy constituents’ refrigerators. In other words, they are Santa Claus, the Godfather, the Easter Bunny and, some would even think, Jesus all wrapped in one. To afford this, MPs aspire and jockey to be ministers to acquire the resources to maintain their base of support.

Even if we take the view that an MP’s role should only be to represent constituents’ needs, there are limited resources available for that purpose. As noted in last month’s Gleaner Editors’ Forum, there are no researchers or staff made available for the drafting of legislation.

Given these challenges, discussions on constitutional reforms should shed the polemics and focus more on creating tangible improvements in the quality of governance in Jamaica.

David R. Salmon is a public commentator, development specialist and a Rhodes Scholar. Send feedback to davidsalmon@live.com or on X @DavidSalmonJA; and at columns@gleanerjm.com.