Commissioning a conflict

Ken Jones, Contributor

Sunday columnist Robert Buddan has suggested with astonishing audacity that the governor general "has a responsibility, at the very least, to invite the leader of the Opposition in for consultation" to pass judgment on the prime minister's act of announcing a commission of enquiry.

This recommendation contains half-truths fired at half-cock; and the title of the article, "Commissioning the truth" should really be 'Commissioning a conflict' between the Constitution and the Commissions of Enquiry Act.

In support of his contention, Mr Buddan cites that part of the Commissions of Enquiry Act that says: "It shall be lawful for the governor general, whenever he shall deem it advisable, to issue a commission, appointing one or more commissioners, and authorising such commissioners to enquire into the conduct or management of any department of the public service, or of any public or local institution, or the conduct of any public or local officers of this island, or into any matter in which an enquiry would in the opinion of the governor general, be for the public welfare."

On the basis of that section and what he has heard from one of the government's fiercest opponents, he tells us that the GG has "absolute discretion", and that "while the prime minister may request that a commission of enquiry be appointed, the law does not give him the power to name or appoint the commissioners". And he declares that since "Mr. Golding has taken unto himself" power that does not belong to him, "the governor general has a duty to protect the rule of law and the rule of truth" by insisting on consultation between the Government and the Opposition." My! My! Since when has a governor general the power to insist on something not required by the Constitution?

Law and truth

If the rules of law and truth are to be protected in this case, then we must first understand the powers of the governor general as set out in the Constitution at Section 32. It reads: "The governor general shall act in accordance with the advice of the Cabinet or a minister acting under the general authority of the Cabinet, in the exercise of his functions other than (a) any function which is expressed ( in whatever terms) to be exercisable by him, on or in accordance with the recommend-ation or advice of, or which the concurrence of, or after consultation with, any person with authority other than the Cabinet; and (b) any function which is expressed (in whatever terms ) to be exercisable by him in his discretion."

I interpret this to mean that in carrying out his functions, the GG must act in accordance with the advice of the Cabinet in every case, except those where the Constitution specifically allows him to consult with parties other than the Cabinet; or where the Constitution clearly states that he can act in his discretion.

The Act does include the statement: "Each such commission shall specify the subject of enquiry and may in the discretion of the governor general, if there is more than one commissioner, direct which commissioner shall be chairman" However, I do not think that any law, including the Commissions of Enquiry Act, can take precedence over the Constitution. The Act makes it lawful for the GG, if he deems it advisable, to issue a commission of enquiry. However, this can only be after he is requested or advised by the prime minister or Cabinet. It cannot and does not expect him to circumvent the procedures set out in the Constitution.

There are those who argue that the phrase, "whenever he shall deem it advisable" means the same thing as "acting in his own discretion". I do not accept this because the Constitution expressly describes the circumstances in which the governor general can act in his discretion. He can act in his discretion when appointing the prime minister and the leader of the Opposition; and this is only after consultation with the majority in Parliament. He can act in his discretion to remove the leader of the Opposition if circumstances warrant it. In appointing members of the Privy Council he has the final say, but must first consult with the prime minister.

Appointment

Under the Constitution, the GG has to take advice from the government in appointing custodes and all other institutions. He appoints members of the Public Service Commission, Judicial Service Commission and the Police Services Commission, but only after receiving the prime minister's recommendations. Although he may "deem it advisable to issue a commission or appointing one or more commissioners", he should hardly be expected to do so without the advice of the prime minister or Cabinet.

A wise governor general in an independent country with a Constitution such as ours, would not deem it advisable to follow exactly the Commissions of Enquiry Act, which was written 137 years ago, when governors ruled and had absolute authority in the country. Those responsible for updating the Act seemed to have done little else besides replacing the word 'governor' with the words 'governor general'. They ignored the implications of the Independence Constitution, which limits the powers of the Queen's representative. The Act needs to be amended because in its present form, it places upon the GG responsibilities and obligations that he cannot carry out without reference to the Cabinet.

The Commissions of Enquiry Act declares: "The governor general may direct what remuneration - if any, shall be paid to any commissioners acting under this act, and to their secretary, and to any other persons employed in or about any such Commission, and may direct payment of any other expenses attendant upon the carrying out of any such commission, or upon any proceedings for any penalty under this Act. Such sums, so directed to be paid, shall be paid by the accountant general out of the ordinary cash balance in the treasury.

Assuming that the GG should, as Mr. Buddan suggests, use his "absolute discretion" to issue and appoint a commission of enquiry: where would Kings House get the money to finance this multimillion-dollar undertaking? The GG has no budget for such purposes and cannot enforce a demand on the Consolidated Funds. He would have to negotiate with the prime minister and his Cabinet, or find volunteers and free facilities before he could deem it advisable to issue a commission.

The Independence Constitution does not allow the Queen's representative to determine any expenditure of the people's money. It clearly instructs, at Section 117: "No sum shall be paid out of the Consolidated Fund, except upon the authority of a warrant, under the hand of the minister responsible for finance." So, to avoid embarrassment, the GG would have been well advised not to heed the pleas or demands of Mr. Buddan and like-minded people.

Vale Royal Talks

Then there is the question of decisions taken at the so-called Vale Royal meetings. Mr Buddan seems to think that these are part of the official operations of Parliament and that agreements there must be binding on all members of Parliament, now and in the future. I beg to disagree. The laws of this country are made at Gordon House where every MP, the public and the media have opportunity to be present. Our Constitution does not recognise political parties, and I do not see how we can be governed by deals struck behind closed doors by selected representatives of the Jamaica Labour Party (JLP) and the People's National Party.

is quite different from consultation between the PNP and the JLP. When Dr. Peter Phillips raised the question of consultation at Vale Royal he was careful to say that he was not sure and would not swear that the agreement included Commissions of Enquiry or that the discussion was during the present Prime Minister's tenure. Mr. Golding said he did not know anything about such an agreement, yet sundry commentators are repeatedly telling the public that he did so.

Mr Buddan finds Mr. Golding's actions objectionable on the grounds that, "He did so without consulting the leader of the Opposition, as it is good custom to do." One must draw from this that he would have been satisfied had the Opposition been allowed to share in setting up the Commission. Then of course the role of the governor general would never be raised.

Jamaicans are in dire need of unity and understanding. They need to be appropriately motivated and misinformation and divisive utterances cannot help. It is time that taxpayers funding our education system give thought to what is being taught. If certain written opinions are being consciously introduced in lectures at the Department of Government at the University of the West Indies the country may be unwittingly losing its mind.

Ken Jones is a veteran journalist. Feedback may be sent to columns@gleanerjm.com