N.W. Manley's questions

A.J. Nicholson, Gleaner Writer

Norman Washington Manley, a founder of the People's National Party, would have insisted that meaningful public consultation be conducted concerning the proposal of the Government to have a limitation placed on the number of terms that a prime minister may serve. As one of the architects of Jamaica's Independence constitutional arrangements, he would have invited the Government to provide the justification for such a route to be taken.

NW Manley, QC, would also have invited his colleagues at the bar to consider whether the proposal would be in harmony with the conventions of the Westminster model of government that is sought to be practised in our country. And the national hero would have suggested that the public call upon the authorities to spell out for them the benefits and the drawbacks of any such move and how it would contribute to the search for social justice - the ultimate aim of our social contract, as embodied in our Constitution.

One of the cornerstones on which the Westminster system of parliamentary democracy rests, is the proposition that the electorate knows best - the electorate is king. The voting public is in the best position to know who they wish to be their governors, when to change their government and whether to cast or refrain from casting their ballot. At election time, they know beforehand, who the head of government is likely to be, dependent on which political party they eventually allow to win the day.

That has been the experience where the Westminster model of government has been practised over time within the Commonwealth. It has not been recorded as the widespread cause of coups or insurrection, and there is no history or body of evidence of the practice giving rise, by itself, to unstable government. In Jamaica's fledgling democracy, the experience has been no different. It is true that under our 1962 Independence Constitution, our governance road has been at times rocky and seriously challenging. It could hardly be successfully argued, however, that such challenging experiences as we have faced, and continue to face, are to be laid at the doorstep of any lack of limitation on the terms that a head of government - a prime minister - has served.

The arrangements are different in a presidential-type system of government. Because of the enormous powers enjoyed by the head of government, who is also usually the head of state, particular safeguards have been found to be necessary to keep a steady watch on the frailties of mankind, which may include a reluctance to relinquish the reins of power. It is a system that is best practised in the United States of America. There is, however, ample historical evidence from several other countries across the globe of that particular human frailty rearing its head, to the extent of causing severe disruption in the order of governance within the presidential-type system.

Must command confidence

Norman Washington Manley and his colleagues proposed in the Jamaica Constitution, at section 70: "Whenever the governor general has occasion to appoint a prime minister, he, acting in his discretion, shall appoint the member of the House of Representatives who, in his judgment, is best able to command the confidence of a majority of the members of that House". It was accepted that the best way of having a decision made as to who should be the prime minister was to allow the membership from whom the government will be formed to have that right and power.

It is to be noted that no further condition is attached that limits the elected members' choice of prime minister. Such added condition, as is now proposed, to limit the choice to an individual who has not already served two terms, could only be put in place by an amendment to that section. Section 70 is not an entrenched provision and, as such, may be amended by 31 affirmative votes in the House of Representatives and 11 such votes in the Senate. That is to say, by a majority of the membership of each House.

An empty gesture

The challenge to such an amendment is that it would have been developed from a mere proposal put forward by one political party in its election manifesto, without any consultation with the parliamentary Opposition or the public, on a matter relating to a change to our constitutional arrangements. This would also leave the door open for a future government to repeal that provision, if they genuinely believe that an individual who has already served two terms is the best person to be the head of government, should their party prove to be successful in imminent elections. It means that such an amendment concerning the two-term limit for prime ministers would amount to an empty gesture.

To guard against that probability, there would be the need to have the new, amended provision entrenched in the Constitution, a procedure which would require the support of the parliamentary Opposition and the affirmative vote of the people in a referendum. The Opposition and the voting public would, of course, seek to be convinced of the justification of such a move; what is it that is broke and needs fixing, what has taken place in our Independence experience to warrant such a constitutional change.

The voting public would also wish to know what is it that took place during the tenure of the two prime ministers, Michael Manley and PJ Patterson, who served for more that two terms, which could have served as a catalyst for the proposal suggested by the present Government; or whether it is simply one of the pet-toy subjects of the present prime minister, carried over from the presidential-style system of government that formed part of his flirtation with the National Democratic Movement (NDM). What are the gains to be derived? What is the peril that we seek to avert?

The national hero would also certainly expect the Opposition pointedly to enquire of the Government as to what has become of the far-ranging constitutional reform recommendations that had been agreed to, and accepted, by the parliament, some 15 years ago, in 1995. We recall that two Constitutional commissions, under the leadership of the late Justice James Kerr, and Dr Lloyd Barnett, after wide-ranging public consultations, presented their reports to parliament. Their reports were considered by a joint select committee of the two Houses, presided over by then attorney general, David Coore, himself one of the architects of the 1962 Constitution.

The Coore committee recommendations, which were accepted by Parliament, included Jamaica's severing links with the monarchy and having our own indigenous head of State within a ceremonial presidential system such as that which obtains in Trinidad and Tobago; the adoption of a modern Charter of fundamental rights, the consideration of Jamaica's withdrawal from the Judicial Committee of the Privy Council and subscribing to the proposed final court of appeal for the Commonwealth Caribbean. There was also acceptance of proposals relating to the appointment of members to entities such as the Public Service Commission and like bodies, and the inclusion of the Electoral Commission and the office of public defender in our constitutional arrangements.

Significantly, also, the accepted recommendations included proposals and procedures relating to the appointment and impeachment of certain public officials, which formed part of the election manifesto of the present administration. The founding father would be keen to discover why, in Jamaica's present circumstances, the implementation of such proposals should take second or some other place to the urgency of settling term limits for prime ministers, a matter which did not even form part of any of the deliberations of the Kerr, Barnett and Coore committees.

Implementation process

Let us recall that the implementation process of the constitutional reform agenda was stymied by two interconnected circumstances, namely, Bruce Golding's movement from the Jamaica Labour Party to form the NDM, giving the reason that he did not agree with the recommendations of the Coore committee concerning the structure of government, and the stubborn determination of the then Opposition, led by Edward Seaga, to "oppose, oppose, oppose" every initiative of the then administration. Both Seaga, also one of the architects of the 1962 Constitution, and Golding, were members of the Coore committee.

It was the strong advocacy of the Opposition members of that joint select committee that had convinced the government members to agree to the structure of government that was finally recommended. During the lengthy deliberations of the Kerr, Barnett and Coore committees, there was no intimation on Golding's part that his preference was for Jamaica's adoption of a presidential-type system of government. The present administration now seeks to introduce and engraft upon our system a change which forms part of the presidential model, and choosing to turn a blind eye to the long-accepted recommendations for the modernisation of our constitutional arrangements.

It is submitted that NW Manley would have urged us to question both the logic and justice of such a course of action. He would also have encouraged us to keep an open mind, since the government might be able to provide some earth-shaking reason why Jamaica should choose to proceed along such a lonely path.

And the founder would certainly expect the pledge to be made that, as his party marks 72 years as a Jamaican institution, the membership would reassert itself to provide the leadership to ensure the modernisation of our constitutional arrangements before the diamond jubilee comes around in the year 2013.

A.J. Nicholson is opposition spokesman on justice. Feedback may be sent to columns@gleanerjm.com.