Editorial | Put Senate structure back on agenda

Mark Golding’s outrage that Peter Phillips’ unilateral appointment of eight opposition senators essentially ties the next leader of the People’s National Party (PNP) to Dr Phillips’ vision of how the PNP should be represented in the Upper House is a belated acknowledgement of a constitutional question with which many people have grappled for a long time and opens an opportunity for debate on the matter.

If Mr Golding succeeds to the presidency of the PNP ­– a position for which he has signalled he will throw his hat in the ring – he would be on a major platform from which to elevate the issue as part of a broader discourse on institutional reform. In that case, Jamaica might want to look at what obtains in several of its Caribbean neighbours in terms of structure and membership of the Senate, including the right of the head of state to appoint independents.

Jamaica’s Constitution provides for a 21-member Senate, 13 of whom are appointed on the advice of the prime minister and eight by the leader of the opposition. These appointments, but for voluntary resignations, and a few exceptional circumstances, are for the life of the Parliament, without the right of the nominators to rescind the appointments.

This was a fact to which Prime Minister Andrew Holness – during his time as opposition leader – was rudely awakened when he attempted to use pre-signed resignation letters to rid the Senate of appointees who may not have voted for him during Audley Shaw’s challenge of his leadership of the Jamaica Labour Party (JLP). The courts, in a case brought by one of the dislodged members, Arthur Williams, held Mr Holness’ scheme to be unconstitutional.

The fundamental principles involved in the Williams vs Holness case were in play three years ago when Dr Phillips became the president of the PNP and Mr Golding, then a senator, demurred on whether the senators appointed by Dr Phillips’ predecessor should automatically resign to give the new leader a free hand to shape the party’s representation in the Upper House. There are, of course, some differences between what happened in 2017 and the current circumstances. Dr Phillips, having led his party to a big election defeat earlier this month, is resigning and will be gone before year’s end. Mr Golding, in that circumstance, believes that the Senate choices should have been the collective decision of the PNP’s leadership, rather than a lame-duck leader of the opposition.

The more fundamental issue bared by all of this is that of the conceptual framework of the Senate as is reflected in how members are appointed and how they function. The security tenure of appointees suggests that the Senate was intended to be a reflective and deliberative chamber, removed from the immediacy of the political hurly-burly expected in the House. Indeed, the need for the Government to win over at least one opposition senator to command the two-thirds vote to pass bills – mostly to do with changes to the Constitution – when this super majority is required, underlines the Senate’s role as a check on the House.

In reality, though, the Senate hardly behaves any differently – except for the late 1990s when P.J. Patterson, as a prime minister with a big majority in the House, appointed two independent senators – than the other chamber. Its debates and votes are generally along partisan lines, in keeping with the instructions of the party whip.

This newspaper would not expect a government to cede its Senate majority, hence its assurance of passing regular legislation – which Mr Patterson didn’t do in 1998. That experiment, nonetheless, underlined the value of bringing to legislative discourse voices that were not tethered to the party or to a preconceived outcome of debates.

Significantly, only Jamaica, the first to gain its independence, St Vincent and the Grenadines, and The Bahamas – of the Caribbean Community (CARICOM) states with bicameral legislatures – have senates that are without members who are appointed by the head of state, acting on his own accord and without the advice of the prime minister or the leader of the opposition. Antigua and Barbuda, Barbados, Grenada, St Lucia, and Trinidad and Tobago all have independent senators but in configurations that ensure Senate majorities for the government.

THE BAHAMAS SELECTION PROCESS

The Bahamas, though, has a peculiar arrangement for the selection of three of its 16 senators, of whom nine are named by the prime minister and four by the opposition leader. The other three are appointed by the governor general, acting on the advice of the prime minister “after consultation with the leader of the opposition”, suggesting the need for a political consensus on these appointments. In deciding on these selections, the constitution, however, says that the “purpose of the prime minister shall be to secure that political balance of the Senate reflects that of the House of Assembly at that time”.

In most of the other countries, the head of state is expected to choose independent senators who reflect the interests of important segments of the society, and in some cases, such as in Trinidad and Tobago, are required to consult with interest groups before making appointments. Critically, which would have saved Mr Holness much angst, and perhaps relieved Mr Golding of some of his fears, all states have a right of revocation of Senate appointments – by the political leaders and the head of state.

Both men are well positioned to begin the conversation.