Editorial | Bring back independent senators

If Prime Minister Andrew Holness accedes – as he should – to suggestions that he appoint a couple of independent senators, his administration will lose little in its ability to pass legislation. The big gain, if he chooses well, would be to enhance the Senate as a deliberative review chamber and a step towards rebuilding confidence in the institutions of government.

Indeed, as the recent Don Anderson/RJRGLEANER opinion poll showed, 70 per cent of Jamaicans back the idea. That is against the background of other surveys that show that a similar proportion of the adult population believes they live in a highly corrupt country, and nearly half have no confidence in Parliament and politicians.

This newspaper, of course, has long been an advocate of reform of the Senate to allow it the benefit of a wider range of voices, while preserving for political leaders’ control, including a right to recall, of whom they cause to be appointed to the Upper House. That issue was laid bare in the scandal over Mr Holness’ attempted use, when he was in opposition, of pre-signed resignation letters to hold his party’s senators in line.

FUNDAMENTAL FIX

Clearly, the fundamental fix to this matter is an amendment to the Constitution to change the structure of the Senate, including the number and mode of appointment of its members. Indeed, that ought to be part of the constitutional reform agenda, which presumably is being worked on by the Government, albeit too slowly. And it should not be contentious. Two decades ago, a constitutional reform commission that included members of the island’s two big political parties broadly agreed to similar changes.

However, as Douglas Orane (who, coincidentally, is a member of the board of the group of which The Gleaner is a part) reminded last week on the basis of personal experience, Prime Minister Holness need not await the completion of the constitutional reform exercise to act. Of course, as he now knows, having lost the case brought by Arthur Williams and Chris Tufton, Mr Holness cannot arbitrarily eject, or employ artificial contrivances, to remove sitting Jamaica Labour Party (JLP) members of the Senate to make way for ‘independent’, non-party appointees. He might, though, persuade two of them to make way for such appointees.

The situation now is a bit different than in 1997 when P.J. Patterson, the then prime minister, appointed Mr Orane, then the CEO of the GraceKennedy business conglomerate, and academic Trevor Munroe to the Senate. Like Mr Holness’ JLP in 2020, Mr Patterson’s People’s National Party (PNP) had won a big parliamentary majority in a general election. All Senate seats were vacant, and Mr Patterson’s appointment of the independents came at the beginning of the term. There was no need to dislodge anyone.

Mr Patterson’s rationale at the time, Mr Orane recalled in an interview, was to have “the widest possible representation in Parliament”. Unfortunately, he did not maintain the arrangement when his party retained the government in 2002, although with a greatly reduced majority. And nor have we, as yet, pushed forward on any of the outstanding big issues of constitutional reform, except for the 2011 Charter of Fundamental Rights and Freedoms, which, unlike the composition of Parliament, is not a deeply entrenched clause, so it did not require final approval via a referendum.

Nonetheless, the temporary fix of the prime minister appointing senators who are not beholden to his party’s line is possible without posing, as the 1990s experiment showed, any significant challenges for the Government’s legislative agenda. Nor does the risk of senators defying party policy, which Mr Holness tried to forestall with the pre-signed letter, arise.

LEGISLATIVE AGENDA

First, it is the Government that controls the legislative agenda, and therefore the ability to bring bills or other motions to Parliament. Further, in the 21-member Upper House, the prime minister appoints 13 of them. Even if, as Mr Patterson did, give two seats to independents, the Government would still have 11 – and the ability to pass bills that require simple majorities.

Mr Holness’ aim with the pre-signed letters was to prevent even one Opposition senator from siding with the Government to give it the two-thirds majority required in the 21-member Senate to pass legislation that require such a vote. He said it was to prevent the Caribbean Court of Justice being established as Jamaica’s final court. That situation does not, in the normal course of events, arise for the party in government. The legislative calculus is not significantly affected if it gives up the two seats.

Further, a Senate that includes independent members, even if their number does not disrupt the balance of power between the parties, will likely lessen the sharp partisanship of debates, leading to an atmosphere more conducive to compromise and the building of trust.

Moreover, most other English-speaking Caribbean constitutions allow for a greater number of independent senators – usually appointed by the head of state after consultation with civil society and other interest groups – than those appointed by the opposition. Therefore, in situations where special majorities are required to pass legislation, and in which there is no cross-party consensus, it is up to the Government and the Opposition to persuade the independents of the merits of either’s argument.

Consensus, compromise and serious argumentation, as opposed to hard partisanship, come at a premium. That is the essence of democracy.