Trevor Munroe | COVID-19 dilemma: From parliamentary democracy to prime ministerial government?

On February 28, in my Sunday Gleaner column ‘Actions speak louder than words’, I wrote, “The proposed amendment to the Disaster Risk Management Act (DRMA) to allow for stiffer penalties … must be urgently implemented.” Like so many other Jamaicans, I have long lamented inadequate law and ineffective enforcement of COVID-19 rules which contributed to a renewed surge in infections, positivity rates and deaths from the virus.

Hence, I was pleased to see the amendment to the DRMA removing the obligation to warn the yacht owner or party promoter that he or she was breaking the COVID-19 ban on parties before prosecution of the offender. I was also pleased to see fixed penalties increased up to $500,000 for specific offences, well beyond the $30,000 which was invariably and ineffectively the fines imposed in 2020.

However, my satisfaction was short-lived.

To the extent that the amended DRMA gives to the prime minister the power, without any parliamentary approval whatsoever, to determine what is a criminal offence under the act and to decide the penalties to attach to such an offence, this is in serious conflict with Jamaica’s democratic parliamentary system and reinforces an unacceptable tendency towards prime ministerial government. The authority of the Parliament to approve or disapprove executive or prime ministerial orders which create criminal offences should not be abandoned in this legislation or any other.

To be clear, the inclination to give the prime minister authority over and independently of the Parliament, as well as to limit the Parliament’s power to hold the prime minister accountable, was present and was resisted at the very foundation of independent Jamaica. The notes of the discussion among members of the 1961 Independence Committee which wrote Jamaica’s Independence constitution (which I had the privilege to examine) record a critical debate.

“It was argued particularly by Manley that to give the prime minister absolute power to get a dissolution [of Parliament] would allow him to ‘bully’ the entire Cabinet, to say nothing of the parliamentary party… Manley’s First Vice-President [Will Isaacs] … argued that in truth and in fact a prime minister is a dictator for five years … . An opposition member (member of the Legislative Council Edward Seaga) strongly endorsed Isaacs’ view: Quite right and if any minister can’t get along the minister must resign as only one minister must rule” (Verbatim Record – Proceedings of the Joint Constitutional Committee 1961-1962, cited in the Munroe, T. 1972. The Politics of Constitutional Decolonization, Pg 170 UWI 1972).

The resulting Independence Constitution which still governs Jamaica embodies rather than resolves this dilemma between parliamentary democracy and prime ministerial government.

ACCOUNTABLE TO PARLIAMENT

One the one hand, Section 69 (2) of our Constitution stipulates that the Cabinet and the prime minister “shall be the principal instrument of policy … and shall be collectively responsible … to Parliament”. In other words, Parliament, the people’s representative, is the boss; the Cabinet in a sense is the executive policymaker and the prime minister chief executive, but they are accountable to Parliament. Moreover, our Constitution also stipulates that it is the Parliament’s function, not the prime minister’s, to “make laws for the peace, order and good government of Jamaica” S48 (1).

So while the Cabinet “shall be the principal instrument of policy” the source of legislative proposals, it is the Parliament in a parliamentary democracy such as ours that must pass law. Ultimately, it is the Parliament, the people’s representatives who are the boss; in principle is able to fire the chief executive, the prime minister. But what does the Constitution say if the boss, the House of Representative decides to fire the chief executive? “If … a majority of all the members [of the House] resolved that the appointment of the PM ought to be revoked, the governor general shall … revoke his appointment” (S71 (2). However, “If the prime minister within three days so requests, the governor general shall dissolve Parliament instead of revoking the appointment” S 71 (3).

So if our representatives resolve to fire the PM, the PM has the power to retaliate by firing them! Hence Norman Manley’s view that with this authority the prime minister is allowed to “bully the entire Cabinet to say nothing of the parliamentary party”.

STRENGTHEN PARLIAMENTARY DEMOCRACY

During the course of the 30 years following Independence, many of our political leaders (most notably the post-1990 Edward Seaga, P.J. Patterson and Bruce Golding), civil society organisations, the 1992 Constitutional Commission, parliamentary committees and PNP/JLP election manifestos have been making significant proposals to curb prime ministerial government, strengthen parliamentary democracy and increase public participation.

Among these proposals are:

1. Fix the date of our general election and remove the power of the prime minister to determine by her/him when an election should be held within the five-year period.

2. Limit the number of term that the prime minister can serve.

3. Limit the number of MPs that the prime minister can appoint to the Cabinet, thereby increasing the number of members of parliament not belonging to the executive.

4. Strengthen the position in the Standing Orders for MPs to ask and have questions answered as well as to have private members’ motions debated.

5. Oblige the PM to respond to petitions signed by a representative number of citizens (introduced in the September 2017).

6. Establish a mechanism to allow citizens to ask the prime minister questions directly and to interact with him/her face to face.

These recommendations made over the last 30 years are in the direction of constraining prime ministerial government, strengthening parliamentary democracy and must now be revived as part of a constitutional reform agenda. Instead the recent DRMA amendment to give the PM the authority to make orders and create criminal offences under COVID-19 are heading in the opposite direction and must not be allowed to develop into a renewed tendency towards prime ministerial government. Quick action and effective enforcement by executive orders in a pandemic is necessary but must be subject to parliamentary oversight. If an emergency requires the PM to take special measures prior to Parliament approving, these must be of limited duration until and unless extended by parliamentary endorsement. It is unacceptable even in a pandemic to do the right thing but in the wrong way.

- Professor Trevor Munroe CD, DPhil (Oxford), is principal director, National Integrity Action. Send feedback to info.niajamaica.org or columns@gleanerjm.com.