Gordon Robinson | Change is in the air

At 20 Belmont Road and a stone’s throw (well, maybe two throws) away, at 89 Old Hope Road, winds of change are blowing.

JLP’s focus on change was signalled by dissolution of an ill-advised Legal and Constitutional Affairs Ministry thus returning the constitutional reform process to the Justice ministry. There it’ll be administered by two senior lawyers with experience in the practice of law not just a textbook version.

Hopefully this means we return to an understanding that the Constitution is the people’s law. Its purpose is to construct a society that protects them from Government excess. It doesn’t belong to Government. So the previous “reform” process, controlled by Government so Government could force its further concentration of power agenda down our throats, was misconceived. It featured a monumental misunderstanding of who needs and who should drive constitutional reform.

A proper constitutional reform path would be travelled as follows:

1. Appoint a Constitutional Reform Committee (CRC) independent of Parliament;

2. One year island wide public education in principles of Civics; purpose and content of the current Constitution;

3. One year public consultation, including town halls, during which CRC members do more listening less talking;

4. CRC reports in six months;

5. Parliament reviews CRC’s report; takes further submissions from the public; then constructs a new Constitution that comes from the people and reconstructs governance for the people.

This is how to guarantee the required referendum isn’t politicized and doesn’t return an absurd result. The public education element should be community and social media based via group meetings, chats and seminars. This ensures we bring education to the people rather than asking them to come to Government for indoctrination. Community based talks in small groups are far more effective than town halls although these can and should be utilized later in the campaign (Item 3 above). Simultaneously Government should target those more attuned to the digital world.

Education first; consultation next; reform after.

If the need for constitutional reform wasn’t obvious before it’s now embarrassingly apparent after the announcement of Government’s bloated cabinet; excessive number of “junior” ministers; and one “parliamentary secretary”. Perhaps some Government guru can explain the difference between a Parliamentary Secretary and State Minister. The Constitution doesn’t assist.

UK Institute for Government (instituteforgovernment.org.uk) explains:

“Beneath [Ministers] are two ranks of junior ministers: ministers of state and parliamentary secretaries…. While ministers of state are politically senior to parliamentary secretaries, they are constitutionally similar and the responsibilities of both are delegated from the [Minister] .”

Remember UK has no written Constitution so this is all practice and convention. So what the granny gungus natty is the Jamaican Government up to? Jobs for the boys and girls? Titles for Titles’ sake?

According to J.I.S., in addition to 19 ministers (15 from the House), FOURTEEN more (12 from the House) were appointed State Ministers/Parliamentary Secretary. TWENTY-SEVEN of 35 MPs are either cabinet or junior ministers. Six of 13 Senators are also in the Executive.

What the actual fudge?

In 1977, on an appeal challenging the constitutionality of provisions of the infamous Gun Court Act, Privy Council found that “the principle of separation of powers was implicit in the Constitution…” For those of you wondering how Judges steeped in the use of tradition and convention as a constitution managed to IMPLY separation of powers into a written Constitution that expresses nothing of the sort - allow me….

English judicial legend Lord Diplock, after reminding us, at page 3 of his judgment, that post-colonial constitutions were “established either by Act of the Imperial Parliament or by Order in Council made by Her Majesty in right of the Imperial Crown….” wrote at page 4:

“In seeking to apply to the interpretation of the Constitution of Jamaica what has been said in particular cases about other constitutions, care must be taken to distinguish between judicial reasoning which depended on the express words used in the particular constitution under consideration and reasoning which depended on what, though not expressed, is nonetheless a necessary implication from the subject-matter and structure of the constitution and the circumstances in which it had been made.”

Translation: It doesn’t matter what Jamaica’s Constitution says. What matters is what I want it to say. He then made his “Imperial” intent clear:

“Because of this a great deal can be, and in drafting practice often is, left to necessary implication from the adoption in the new constitution of a governmental structure which makes provision for a Legislature, an Executive and Judicature. It is taken for granted that the basic principle of separation of powers will apply to the exercise of their respective functions by these three organs of government (my emphasis). Thus the constitution does not normally contain any express prohibition upon the exercise of legislative powers by the Executive or of judicial powers by either the Executive or the Legislature….. Nevertheless it is well established as a rule of construction applicable to constitutional instruments under which this governmental structure is adopted that the absence of express words to that effect does not prevent the legislative, the executive and the judicial powers of the new state being exercisable exclusively by the Legislature, by the Executive and by the Judicature respectively.”

Taken. For. Granted? Really? Seriously?

In a Constitution that expressly mandates EVERY member of the Executive must come from Parliament? Where Cabinet members change hats and pass laws based on government policy they crafted?

Kiss my red, wrinkled rungus kungus mi nungus!

“Well established….rule of construction”? By whom? Well established rules of construction of written constitutions insist that courts start with the words of the constitution and only go outside those words when there’s ambiguity.

Is THIS the court you really want to allow to continue to rewrite our laws?

Now that the new Executive has totally consumed Parliament’s majority so that only the furniture distinguishes Jamaica House from Gordon House can we finally reject this 50-years-old nonsense from Privy Council that Jamaica’s Constitution mandates Separation of Powers? Time come to write a new Constitution that ACTUALLY separates Government from Legislature and introduces Government accountability tools via real Separation of Powers.

PNP also has fundamental decisions to make. Its failed Rise United experiment has been a proven, unmitigated disaster. In nine years, it has taken PNP from 31 seats in Parliament to 28; from 433,735 island wide votes to 403,191. If PNP is to prevent further erosion, changes must be made. The primary question is change to what? Or whom?

Obviously a change in platform and philosophy is urgently required when, after nine years, PNP’s significant achievement has been to lose senior MPs and Councilors (some of whom switched sides); parliamentary strength; and supporters. It’s an old Jamaican saying that nothing beats a trial but a failure. Rise United’s trial is beaten by its failure. Time come for Rise United leaders to step aside and allow new leadership to refresh PNP’s vision, message and political viability.

PNP is losing because it prefers personal attacks on Andrew Holness to national vision. Despite lack of evidence; absence of official indictment; PNP persists in this myopic political strategy. As a result PNP has a leader who consistently polls behind Andrew Holness in national popularity.

Time come to let go and give somebody else a chance to revive a moribund PNP. If PNP decides to exit the denial stage of grief its new leader must be chosen by acclamation. PNP needs another divisive leadership challenge like it needs relocation to Gaza. The next PNP President must be someone capable of commanding national popularity not just among manufactured intra-party group delegates. Two candidates qualify on national popularity but national leaders also need to be respected for the example they set. One candidate lapped tail and reluctantly boarded the Rise United train despite being disrespected whenever introducing out-of-the-box ideas. The other took a step back; was fired from Shadow Cabinet; left Rise United to its own devices; and embraced a new life beyond the boundaries of partisan politics.

If you wanted to resuscitate a dying PNP, which would you invite to be its political saviour?

Peace and Love

p.s. Condolences to family and friends of journeyman Jockey O’Neil “Iron Man” Mullings. It was a shock that this easy going individual fell victim to violence. His career was characterized by resilience as he recovered from many serious injuries to ride 400+ winners. R.I.P Iron Man.

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