Fri | Sep 24, 2021

Gordon Robinson | A recall law is the sensible solution

Published:Sunday | July 11, 2021 | 12:08 AM

It’s a matter of ironic injustice that the Opposition’s harebrained thrashing about disguised as principled protest has resulted in yet another own goal, as the alleged miscreant now sits amongst them as a member of “the Minority”. Serves them wri
It’s a matter of ironic injustice that the Opposition’s harebrained thrashing about disguised as principled protest has resulted in yet another own goal, as the alleged miscreant now sits amongst them as a member of “the Minority”. Serves them wright!
Gordon Robinson
Gordon Robinson
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At the start of the George Wright fiasco, the Opposition struggled mightily to sound concerned about “gender-based violence”, which has suddenly become a priority sub-set of a pandemic of violence infecting Jamaica for decades.

From its house of glass, it threw political stones across the parliamentary floor, going so far as trying to table a senseless motion to have George Wright suspended from Parliament.

That’s something Parliament cannot do!

When that clearly became a non-starter, public lip flapping panicked the Opposition into recycling Bruce Golding’s 2011 Impeachment Bill, which he tabled to stringed accompaniment of political hype and a woodwind section of hot air. Then Parliament studiously ignored it until it fell off the Order Paper.

So with damp right index finger raised to the wind and desperate to tally points from the George Wright debacle after scoring more own goals than seen in Euro 2020-ish, politics’ latest Golding reintroduced a cover version of Bruce Golding’s broken record.

According to The Gleaner:

“The bill is intended to amend Section 41 of the Constitution by inserting Subsection (5), which states: ‘If a senator or member of parliament is found guilty of an impeachable offence by the Impeachment Tribunal and the House in which the senator or member of parliament sits resolves that the senator or member of parliament be removed from the House, they shall forthwith cease to exercise any of their functions as a member of that House and their seat in the House shall become vacant’.”

Who would sit on this ‘Impeachment Tribunal’? Would MPs/senators charge colleague MPs/senators with an “impeachable offence” then populate that august trial committee? Would it be possible to “impeach” a parliamentarian for an “offence” committed outside of Parliament unconnected to his political office? Is it contemplated that citizen-on-citizen crime (if perpetrated by a parliamentarian) would be punishable by impeachment whether or not, to quote an unimpeachable source, “the law steps in”?

WIDESPREAD MISUNDERSTANDING

There is a widespread misunderstanding of the meaning of ‘Impeachment’. The ‘impeachment’ process is one intended to punish political crimes (for example, corruption, misleading Parliament, etc) by mirroring the criminal law’s investigative/charging/trial process whereby the crime is investigated and a suspect charged by one branch of law enforcement (police) and tried by another (court). Where the police are themselves suspects, investigations are conducted and charges laid by a special independent internal affairs department or external body like INDECOM.

These processes are designed to respect a fundamental principle of natural justice that no one should be a judge in his own cause. So the concept of parliamentarians investigating, charging, and trying parliamentarians is just not on.

This is why, in the USA, legislators aren’t subject to impeachment, which is a creature of the USA Constitution, Article II, S4:

“The President, Vice President and all civil Officers of the United States shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

The USA House of Representatives is empowered to investigate suspected wrongdoing of a political nature by members of the very separate Executive Government, including ‘civil officers’, a category that has been interpreted as those commissioned by the office of the president. Congress has also impeached the head of a Cabinet-level executive department. It is still unclear how far down the ranks of the federal bureaucracy this principle travels. But the USA still relies on a loosely drafted 250-year-old document. Jamaica has the opportunity to define its own categories of executive accountability.

In the USA, if the Investigatory House Committee believes that a political crime has been committed, the matter is taken to the House floor for a vote of all representatives as to whether the government official is to be charged (impeached) with a political offence. If the majority votes for impeachment, then trial of the impeachment articles (counts) is removed to the Upper House (Senate), where the accused can only be convicted by a two-thirds majority of Senators (jurors).

Legislators cannot be impeached because in the USA, they have no Executive Authority. But the Constitution provides for members of Congress to be removed from office before the normal expiration of his/her constitutional term by an “expulsion” from either chamber upon a formal vote on a resolution agreed to by two-thirds of members present and voting. The Constitution expresses no specific grounds for expulsion, but in practice, expulsions from both Houses have generally involved cases of perceived disloyalty to the USA or conviction of a criminal offence that involved abuse of one’s official position. Congress has exercised restraint in the exercise of expulsion when it might be considered as infringing on the electoral process (for example, when the electorate knew of past misconduct and still elected or re-elected the member).

In the USA, where respect for the voter used to trump (ouch) even an obscure right to expel a legislator, state legislators are subject to recall by voters if a significant percentage of them (about 12 per cent) ask for a recall election. Right now, California’s Governor is fighting a recall election.

CONSTITUTIONAL AMENDMENT BILL

So this hurried, tweaked version of a politically motivated ‘Impeachment Bill’ is yet another insulting attempt to usurp voters’ rights and does another disservice to the urgent need for constitutional reform. Before impeachment provisions can be inserted into the Constitution, there has to be someone to impeach and a separate someone to do the impeaching.

In the meantime, if the Opposition really wants to address the issue of MP accountability, it might want to consider tabling a Constitutional Amendment Bill to:

• Comprehensively define the role, functions, and duties of an MP;

How in God’s name can we impeach an MP if we don’t even know if he/she is doing wrong as MP?

• Provide for voters to have the power of recall if a petition for recall can garner verified signatures from 10 per cent of constituency voters;

We already suffer from a culture of MPs protecting each other (and salaries/perks) on the sacred political principle of “today-for-me-tomorrow-for-you”. Why would we transfer OUR right to fire our MP to colleague MPs?

• Either change the composition of the Senate to make it an elected body (perhaps by proportional representation), with electors also having a right of recall, or make it pellucid (in my opinion, it is already clear) that the person(s) who appoint senators can also terminate appointments;

No matter WHAT the Appeal Court says, senators are beholden to their Appointer, and, by and large, will do as their Appointer wants and support party lines regardless. The sole difference between today’s senator and today’s MP is that at least we’re allowed to elect MPs.

• Provide for impeachment of all executive officials, including all chairpersons of statutory authorities (who should be confirmed in their posts initially by Parliament)

If, by some miracle, our political parties decide to eschew politics for the benefit of this national need, I expect it to become clear that the current parliamentary structure is nonsensical and anti-democratic. The penny should also drop that the Senate is currently dysfunctional and unrepresentative; the dealings of MPs unregulated and overlapping with parish councillors’; and the incestuous nature of Executive and Legislature detrimental to peace and good government.

IRONIC INJUSTICE

But the problem faced by we the people in reconstructing Jamaican governance for the benefit of all Jamaicans is just too threatening to MPs’ raison d’être, namely to dispense special favours to themselves, friends, families, and cronies. It is so much more within MPs’ comfort zone to be godfathers/godmothers handing out scarce benefits and spoils (including government clean-up contracts) using councillors as shields. Specific constitutional job descriptions would force MPs to do their duty, which is to represent us rather than a political party. Vulnerability to recall by voters would be terrifying while the prospect of impeachment by fellow MPs acutely aware that “same knife stick sheep stick goat” would be a welcome smoke-screen obscuring the fact that MPs have no sincere intention of self-regulation.

If Parliament would pass a recall law, it would finally be carrying out its constitutional duty to make laws for peace, order, and good government. As a bonus, no MP snubbed by majority and minority MPs alike and vilified by the nation could threaten to remain as MP until the next election, whether we like it or not. And no political party could pretend to distance itself from a suspected scoundrel while making party workers available to him as MP.

It is a matter of ironic injustice that the Opposition’s harebrained thrashing about disguised as principled protest has resulted in yet another own goal as the alleged miscreant now sits among them as a member of “the Minority”. Serves them wright!

Peace and love!

- Gordon Robinson is an attorney-at-law. Email feedback to columns@gleanerjm.com