Editorial | That Senate issue again

At one level, the imbroglio in the People’s National Party (PNP) over Norman Horne’s continued membership of the Senate, retarding the new leader’s effort to appoint his own man to the seat, is a failure of due diligence and appropriately calibrated announcements by Mark Golding. The PNP president ought not to have made public pronouncements of his “appointment” of Peter Bunting to the Upper House, or declared a date on which Mr Bunting would take the oath of office, without being certain that Mr Horne had formally resigned, thereby negating his instrument of appointment that was issued by the governor general.

This fiasco, however, again places on the table the question of the structure of the Senate, and the mode by which its members are appointed. It is a matter about which this newspaper has urged serious debate since Prime Minister Andrew Holness’ unconstitutional bid eight years ago, as the Opposition leader, to use pre-signed resignation letters to oust from the chamber Jamaica Labour Party (JLP) members with whom his relationship had soured.

Jamaica’s Senate has 21 members, who are appointed by the governor general – 13 on the advice of the prime minister and the remaining eight on the call of the Opposition leader. These appointments are for the life of the legislature, unless a member resigns or is absent, without permission, from a prescribed number of sittings.

Mr Holness sought to get around this constraint of the term of membership by having JLP senators signing undated letters, which he kept for use at a time of his choosing. When Mr Holness, having defeated a challenge to his leadership, attempted to use some of those letters in 2012, Jamaica’s courts deemed his move unconstitutional and of no effect. The factors that gave rise to Mr Holness’ case and the causes of Mr Golding’s dilemma are different. Nonetheless, they raise the same fundamental issue – the wish of a political leader to have Senate appointees who he is confident are aligned with his politics and his policies.

Mr Golding was elected the PNP’s president last month, following the decision by his predecessor, Peter Phillips, to step down after the party’s heavy defeat in September’s general election. In the near two-month period between the announcement of his planned resignation and the election of a new PNP president, Dr Phillips was leader of the Opposition. He, constitutionally, was required to name Senate appointees. Mr Horne was among Dr Phillips’ selections, a decision that is unlikely to have been made without first consulting the nominee.

Mr Golding, however, was among a faction in the PNP that rallied against what they complained was unilateral appointments by a lame-duck leader, who would saddle his successor with choices that might not have been their own. Prior to the election of the new president, Mr Horne declared that he would not go to the Senate, so as to give the winner of the presidential contest, at least in his case, a free hand to choose whom he pleased. What Mr Horne did not say, or was not made clear until now, is that his official instrument of appointment had been issued and that he had not formally resigned.

LOYAL TO PARTY

Since the Holness affair, this newspaper has been sympathetic to the idea of political leaders having the right not only to nominate senators, but to revoke appointments in the event of irrevocable policy differences between themselves and the appointees. We accept the notion of the Senate being an above-the-fray, deliberative body, providing oversight and restraint to the hurly-burly of the elected House. However, Jamaica’s Senate, as structured, does not often play that role. Senators mostly remain loyal to the party. Their deliberations, and votes, are, but rarely, in advancement of the policies and programmes of the party. That is understandable. It is the basis, usually, on which they accept their appointments.

The chamber, nonetheless, can, and does, benefit from independent discourse and voices, as was obvious from the 1998 experiment when one of Mr Golding’s predecessors, P.J. Patterson, as prime minister, appointed two independent senators. The Government still maintained a majority of ‘loyalists’, allowing it to pass legislation that did not require super-majorities. Even now, given the constitutional configuration of the Senate, the Government is unable to pass bills – which mostly have to do with constitutional amendments – that require a two-thirds majority, unless it entices at least one Opposition member of the Senate to vote with it.

One possible way out of this conundrum, and the dilemma faced by Mr Golding, is for the Constitution to be amended, allowing the prime minister and the leader of the Opposition the power of recall, as is the case in several Caribbean states. At the same time, the head of state, which in Jamaica’s case is the governor general, would be allowed, as also happens in several Caribbean countries, to appoint independent senators, beholden neither to the Government nor the Opposition. They would help bring a greater deliberative atmosphere to the chamber. The apportionment of membership, under this arrangement, would still leave the Government with a majority, allowing it to pass most bills on the strength of its own votes. For legislation that require super-majorities, it would also be a matter of convincing the ‘independents’ of the logic and rightness of its position, even in the face of resistance by the official Opposition.

It is not known if when Mr Golding was a senator and his predecessor became president of the PNP he offered to resign. But having faced the issue upfront, he should perhaps get a debate going.