Guardian of the public trust
Section 48 of the Jamaica Constitution provides that: 'Subject to the provisions of this Constitution, Parliament may make laws for the peace, order and good government of Jamaica ... Parliament may by law determine the privileges, immunities and powers of the two Houses and the members thereof'. That is why the Parliament is known as the Legislature - the law-making body within the machinery of government.
In making laws for the purposes outlined, Parliament assumes a position as guardian of the public trust. This business of the public trust points in several directions, and, so that a check may be placed on how Parliament goes about exercising its law-making powers, the Constitution also provides for a separate arm of Government - the Judiciary - to determine whether such laws are passed in accordance with the provisions of the Constitution itself.
In fulfilling its duties, Parliament seeks to meet its constitutional mandate by means of debates in its two Houses - the Senate and the House of Representatives. These debates constitute the lifeblood of the Parliament; it is through that channel that the best outcomes are achieved in relation to the matters that come before its members for their deliberation and decision. The public trust, therefore, requires that certain rules be established for the conduct of such debates and the atmosphere and spirit that must attend and envelope the deliberations of the Chamber.
Separate and apart from the long-accepted courtesies and acknowledgement of give-and-take in the conventional practice of debating, certain rules in the form of Standing Orders have been adopted in each chamber to guide its proceedings. In addition, these rules are underpinned by the oath of allegiance that is taken by each member and which includes: 'I swear that ... I will conscientiously and impartially discharge my responsibilities to the people of Jamaica'. The Parliamentarian or Legislator thereby swears that he will be guardian of the public trust.
The taking of the oath of allegiance does not, of course, render the member worthy of the public trust; he has to prove himself worthy of that trust, worthy to bear the burden of discharging his responsibilities to the people in a conscientious and impartial manner - it is a work in progress. The member, being such a powerful trustee, is, therefore, legally and morally bound continually to administer the trust solely for the purpose of discharging those responsibilities as are specified in the oath.
Against that background, the conventional wisdom is that the conduct of business and an accommodating approach to the art of debating in the Houses of Parliament during the past two and a half years have been found dangerously wanting. The rules are not called upon, applied or followed. And when they are sought to be invoked, flagrant breaches of practice and natural justice and fairness are immediately apparent, thereby pouring oil upon already troubled waters.
There was always going to be the need for strong leadership in both Houses, in the person of the president of the Senate and the Speaker of the House of Representatives, during the life of the present administration. For, from the earliest days, it was clear that several of the Parliamentarians on the government side in each House did not fully appreciate or even contemplate the awesome nature of the responsibilities that they had been called upon to discharge to the people of Jamaica.
The requirement of a more-than-usual accommodation should very early have been taken on board by the circumstance that there was only a tiny majority in the House of Representatives, with the eligibility of some of its members seriously in question. That state of affairs, by itself, should have assisted in concentrating their minds wondrously that, discharging their responsibilities to the people demanded an appreciation that what was required was a conversing with, rather than a talking to.
That kind of thinking, sadly, did not take root. Instead, a 'bully boy' chorus of some government members, including some ministers, has been allowed to develop in both Houses, largely ignored for far too long by both president and speaker. And, what is more, there are rules in place in the Standing Orders designed precisely to prevent the chambers from coming to be defined by that kind of debilitating interference in the conduct of the people's business.
A friendly basic rule is provided in the Standing Orders of both Houses - 'Rules for Members not Speaking: A Member present in the (Chamber) during a debate shall maintain silence while another Member is speaking, and shall not interrupt, except in accordance with these Standing Orders; and shall otherwise conduct himself in a fit and proper manner'.
Now, this rule, which is meant to set the framework within which all serious debating is to be conducted, was not placed in the Standing Orders to reduce the members who are not on their feet to mummies, or that they are to sit there as immutable as the Sphinx. Lively banter and fitting riposte are surely allowed, required even; what ought not to be countenanced is behaviour and instigation which prevent the member on his feet from being heard by other members in the chamber. That runs directly counter to the conscientious discharge of the sworn responsibilities to the people of Jamaica.
Whatever is being put forward by a member must be taken to be done in the pursuit of fulfilling those responsibilities. If he is not allowed to be listened to, and heard, not only are the constitutional dictates being ignored, but such 'bully boy'' interruptions will almost inevitably lead to harsh and further uncomplimentary words being thrown from both sides of the chamber. What can, and does, make matters much worse is the president or the speaker being selective in what he chooses to 'hear', particularly when the choice that he makes is to hear words coming from the Opposition benches, where the flouting of the Standing Orders does not usually begin.
In the Standing Orders, then, as in common sense, this is the rule of all rules; it provides the foundation on which good order and meaningful parliamentary discourse must stand. With non-observance of that rule, the debate does not truly begin and the discharge of responsibilities to the people is put on hold: the people's trust is betrayed.
Parliament's role as guardian of the public trust is seriously dented when a minister who is piloting a Bill, peremptorily seeks a vote on 'Second Reading of the Bill', that is to say, cutting off full debate on the proposed measure, without addressing pertinent concerns raised by other members, and in particular, Opposition members. When the presiding officer makes no suggestion to the minister concerning the matters raised, he and all other members present in the chamber who vote in favour of the minister's request are in breach of the public trust.
That is precisely what took place in the Senate recently, with Minister Dwight Nelson piloting a Bill which proposed amendments to the Labour Relations and Industrial Disputes Act. During the substantive debate, four Opposition Senators posed several questions which would obviously be of concern to the workers of Jamaica and their employers, but the minister chose to ignore the issues that had been placed on the table. He, the president and the Government members chose to forget the oath they had taken - that they "will discharge (their) responsibilities to the people of Jamaica conscientiously".
Course of action
A course of action that is dangerously inimical to the guardianship of the public trust has been allowed to ripen into a habit, that is, for the government to bring Bills, regulations, and motions to the Parliament, have them tabled, debated and passed on the same day. That is allowed to take place even when the document is sometimes only made available to the Opposition members less than 24 hours before the sitting is scheduled to begin.
That is what took place in the Senate, recently, in relation to the ground-breaking Plea Bargain regulations, the urgency of which has not been demonstrated, since we have not been apprised of any use having been made of those regulations since their rushed passage, and which, according to the government side, could not abide one week's postponement for the Opposition members to be able to contribute meaningfully.
Of course, Parliament's guardianship of the public trust does not contemplate or countenance untruthfulness or misleading statements flowing from the lips of any member in either chamber. If that takes place and it is pointed out to the member, or he otherwise discovers his error, the integrity of the Parliament is best upheld and preserved by the member not remaining silent, or brushing aside such a shocking breach in the management of the responsibilities that are owed to the people.
One thing is sure: a government's use of its superior numbers to ignore and side-step the hallowed conventions, and to breach the letter and spirit of the rules that constitute a signal guide to the conduct of parliamentary business, can only lead to disharmony, partisanship and a lack of tolerance in the approach to law-making and discourse in the Legislature. Would that the new parliamentary year had started on a more propitious and engaging footing! Regardless, the president and the speaker must bestir themselves and fairly apply the rules that are embodied in the Standing Orders.
A.J. Nicholson is Opposition spokesman on justice. Feedback may be sent to columns@ gleanerjm.com.