Seaga wrong on senators’ loyalty

In his latest piece (Sunday Gleaner, April 5, 2015), Edward Seaga, former prime minister and leader of the Jamaica Labour Party, claims to see an "utterly dangerous paradox" that is recognised by neither the Constitutional Court nor the Court of Appeal.

They speak of a senator's responsibility, under the Constitution, to follow commitment to the Jamaican people conscientiously. But this individual action, Seaga argues, also destroys the ability of an opposition Senate minority, as a constitutionally empowered bloc, to protect rights and freedoms overall.

For his interpretation of the 1962 Constitution, Mr Seaga, in other statements, has claimed authority as "the last living member" of the group that framed it. He claims that, as a protection against a governing party seeking a two-thirds majority to take away constitutional rights, the framers intended a 'bloc' vote by opposition Senate members, obeying their party's decision, not individual conscience freedom. This responded to the matter, left open by the Constitution, according to Seaga, of HOW consti-tutional rights would be protected.

It may be in recognition of the difficulty of an argument based on an "intention" difficult to prove that Mr Seaga provided last Sunday's more elaborate essay, introducing later attempts to reform the Constitution in the direction of protecting rights and freedoms. He presents his position as precisely addressing the Senate's duty towards these wider rights and freedoms. The courts he reads as protecting the freedom of speech of individual senators. This is "a good", he concedes, but the ability to protect people's rights and freedoms is the "greater good".

This does not, however, accurately depict the position of the courts. The Court of Appeal is concerned not mainly with a senator's freedom of speech, but with "conscientious thought being given to every topic that comes before the Senate". It is concerned with an obligation to the people of Jamaica. "Every member of the Senate takes an oath ... to conscientiously and impartially discharge his or her responsibilities to the people of Jamaica."

responsibility to the people

Further, the court is explicit on what this means: "The responsibilities are 'to the people of Jamaica', not to an individual, not to a club, group or section of Jamaica. In view of that oath, it would be against the spirit of the Constitution if one were to bind one's conscience otherwise."

But clearly, the Opposition is one such group. Indeed, the Opposition party's role is central to Mr Seaga's concern for general rights and freedoms. He expresses fear of the one vote that would give the Government its two-third majority being cast, as he puts it, out of "some unnatural feeling".

The response to that problem, left open in the Constitution but intended by its framers, says Seaga, is for the party group to use its group power, as an opposition, to halt any action by a government to take away rights or freedoms. Hence from this perspective, the need for and value of a bloc vote. Which seems to assume that every majority attempt at constitutional change is a bad thing when it may be the blocking that is bad.

With this position, the court is in clear and categorical disagreement. Its reliance is on "conscientious thought", the conscientious (which means thinking) obligation of the individual senator. It places trust in reasoning ability, in moral suasion, in thinking leaders. Senators cannot be bound by anything else. Mr Seaga's reading of history is overly convenient support for Mr Holness' position and for his advice to Holness to resort to the Privy Council.

The call of partisan power and of a seat in the front pew of the power holders has a way of undermining the judgement of otherwise good people. Jamaica has had too much party power. We need a Senate of women and men carefully chosen for their thoughtful concern for every Jamaican, for their independent non-crowd thinking ability and devotion to our people's welfare.

n Horace Levy is a human-rights campaigner and member of the Peace Management Initiative. Email feedback to columns@gleanerjm.com and halpeace.levy78@gmail.com.