Peter Espeut | What does ‘representation’ mean?

Eminent counsel the Hon Dr Lloyd Barnett, OJ, in a letter to this newspaper published Wednesday, June 5 has taken issue with my claim that the members of the Constitutional Reform Committee (CRC) are a “bunch of political appointees representing the party in power”.

He, as a member of the CRC, has taken personal offence, but he knows that my comments were not in reference to him. His presence on the CRC is by virtue of his personal expertise as one of Jamaica’s foremost constitutional scholars. The nation should be proud – and grateful – that someone such as he accepted the invitation to join the committee.

He certainly is not representing the government; neither are the three persons nominated by the leader of the Opposition, nor the clergyman latterly nominated by ‘the Church’ to represent them. I should have been more precise in my language, and I sincerely apologise for my broad-brush remark.

The Government press release of April 3, 2023 announcing the naming of the CRC begins:

“The Ministry of Legal and Constitutional Affairs has officially named the high-level Constitutional Reform Committee (CRC), which will provide expert guidance and oversight to Jamaica’s smooth transition from a Constitutional Monarchy to a Republic.

Prime Minster, The Most Honourable Andrew Holness, made the announcement at a press conference today (March 22). He noted that the Committee boasts representation from a diverse cross-section of the society, which includes the Government, Parliamentary Opposition, the Attorney General, constitutional law and governance experts, representatives from academia and civil society, along with a youth advisor.”

I want to focus on that word “representatives”.

ONLY REPRESENT MY CHURCH

I am a Roman Catholic, but I can only represent my church if they nominate me to do so. (eg, I am one of the representatives of the Catholic Church to the Jamaica Council of Churches). I am an environmentalist, but I can only represent that community if they send me to do so.

When Minister Malahoo Forte named her pastor to “represent” the Church on the CRC, the Church quite properly protested, as they had named no one to represent them. As a result, the nominee of the churches – the Chair of the Jamaica Umbrella Group of Churches (JUGC) – was appointed to the CRC to properly represent them. The previous nominee could not represent the Church – only the person who nominated him.

There are several organisations which represent civil society; I am not aware that any of them nominated someone to represent civil society on the CRC. The so-called “representative” of civil society on the CRC can only represent the person who nominated her.

Friend Lloyd knows that when I said that the CRC are a “bunch of political appointees representing the party in power” this is what I am referring to. I had expected him as a constitutional expert to protest the false narrative of “representation” on the CRC. How can we expect a truly representative Jamaican government if the word “representative” is so misused in the CRC itself?

In his letter Dr Barnett was careful to say that “there are several of us who do not represent the party in power but are recognised as members of civil society generally”. “Members” yes! “Representatives” no!

Unapologetically, I have characterised as ginnalship the proposal by the CRC that the president of Jamaica must always be the nominee of the prime minister, even if the Opposition strenuously disagrees. I have stated that this makes the prime minister the equivalent of a monarch. Recently former prime ministers Bruce Golding and P.J. Patterson have also strenuously disagreed with this recommendation of the CRC.

Further, I have characterised as ginnalship the proposal by the CRC (Paragraph 7.1.3) that “the size of the Senate be increased from its present membership of twenty-one (21) to twenty-seven (27) appointed by the President as follows:

i. Fifteen (15) members on the recommendation of the Prime Minister;

ii. Nine (9) members on the recommendation of the Leader of the Opposition; and

iii. Three (3) members in the President’s discretion from among outstanding persons in the private sector, civil society, faith-based or community-based organisations or other sectors of society as the President considers necessary.”

TWO-THIRDS MAJORITY

I have argued that since the president is always the prime minister’s choice (the way our politics works), this means that the ruling party will always have a two-thirds majority in the Senate (do the math), enabling them to amend deeply entrenched clauses if they have a similar majority in the lower house.

Dr Barnett stated that the CRC disagrees with me: “The CRC does not agree with Mr Espeut’s assumption that the senators appointed by the president would be supportive of the prime minister”. But what does he think?

He went on to say that “the CRC recommended that the three independent members appointed by the president would not have a vote on such bills. This is specifically stated in paragraph 7.3.1 of the CRC’s report”.

I am not a constitutional lawyer, but I do not see any such thing in Paragraph 7.3.1 which states in full:

“To maintain the constitutional amendment safeguard, the CRC further recommends that the proposed composition would retain the normal power of the majority party to obtain the passage of measures by a simple or absolute majority as well as the restriction on the passage of entrenched constitutional measures without the support of at least one (1) Opposition Senator.”

But the “proposed composition” (see above) does NOT retain that safeguard. It would if the president appointed at his discretion only TWO “independent” senators, but that is not the recommendation. Ginnalship, perhaps?

There is no mention of the three independent members not having a vote on constitutional matters. Maybe they discussed it, but it is not in the final version.

I hope Dr Barnett does not regret lending his bona fides to the CRC.

The grouse we have with the unrepresentative CRC is that they have submitted their report to Cabinet without genuine public consultation about what went into it. Dr Barnett assures us that there will be adequate public consultation about what the CRC put in it. This is a big let-down. I hope Dr Barnett understands that many have serious problems with the approach taken by the unrepresentative committee of which he is a full member. The flawed process may well discredit the report, and those who signed on to it.

Peter Espeut is a sociologist and development scientist. Send feedback to columns@gleanerjm.com.