Gordon Robinson | True meaning of separation of powers

So after two decades of prompting from me, a conversation about constitutional reform appears to have started.

As usual in these matters, the conversation is mostly muddled and (surprise, surprise) tribal. Too many contributions have been assiduously academic or acutely legalistic. Many pretend to be “of the people” when, even if historically accurate, their tertiary education makes that currently unlikely. They should try to LISTEN to “the people”. Now THAT’s an art very few are able to master.

A popular argument of some public commentators, despite claiming to be “of the people”, is that ordinary Jamaicans (that’s EVERY Jamaican whether commentators know it or not) don’t understand how a constitution affects their daily lives. This is usually followed by an earnest tutorial on fundamental rights and how a constitution is intended to protect citizens from government excess.

Not. True!

So what is a constitution? If you are constructing a house, you start with building the foundation. The house never spreads beyond its foundation without the building of a new or added foundation. Then you pour cement (if it’s that kind of house) for stability; build walls and roof to protect against some external threats; erect internal partitions to restrict interaction (a.k.a. protecting privacy); and finally, add accessories to enhance aesthetics, utility, and value.

Societies are similarly constructed. A constitution is the foundation of every society. It defines where, how, and why society may be built. Best practice is to build that foundation securely so it’s protected from whimsical change. The alternative is chaos as a weak foundation renders the house precarious and its future unpredictable.

This has been the experience of the unsuitably named “United” Kingdom whose foundation, based on conquest, is unwritten, unsound, and unsafe. In that whimsically constructed house, politicians can pass any law, including legalising slavery of other nations’ citizens; colonisation by force; and imperial violence, making Russia’s insanity in Ukraine look like a tea party.

A written constitution tells the world who your people really are and how they intend to regulate their home and foreign affairs. It’s a Declaration of Self. It’s NOT a Declaration of what our political leaders consider we should be but a declaration by us of who we want to be.

DO WE WANT TO BE A DEMOCRACY?

So the first national and international query Jamaica’s Constitution should answer is: Do we want to be a democracy?

The Oxford English Dictionary defines “democracy” as “a system of government in which the people of a country can vote to elect their representatives” and “government” as “the group of people who are responsible for controlling a country or a state”.

Is Jamaica’s foundation built on an inherent conflict of duty and interest between the “people’s representatives” and the “group” with responsibility “for controlling” the country? Is it prudent for elected representatives to do both? Or should representative and controlling responsibilities be separated, with “control” subject to representative oversight?

The answers to those questions are for we the people to decide in a broad-based consultative process. Despite decades-long undereducation, we must NEVER fall for the false political arrogance that says we the people don’t know what we want. We do! If political leaders LISTEN instead of TALKING to us, they can also know. Then a Foundation written in simple language can be used to construct a society built for the people by the people’s aspirations.

For how many members of Jamaica’s “Government” are we allowed to vote? How many of them are “elected” as our representatives then “selected” as Government? What supervision over their selection to Government or performance of their responsibility of control do we, as voters, or our elected representatives, possess or exercise? How much supervision of or transparency in Government do we really want as Jamaica’s foundation?

The Opposition’s tribal contributions included flying political kites like expansion of the Senate to include “independent” senators and persons appointed from the diaspora (too frequently mispronounced “die-ass-poor-ah” with emphasis on the third syllable by too many media practitioners).

In my opinion, these proposals are mere political puff designed to achieve political advantage by being different, but under close examination, they lack substance or relevance. They are political illusion to trick us into having our “representatives” chosen for us.

Take the ludicrous concept of “Independent Senators”. Far away. Unless lobotomised, NOBODY is “independent”. Independent of WHAT? The fact that the proposal is for these “independents” to be selected by JLP/PNP in concert rubbishes the idea of “independence”.

What we need is a SYSTEM that discourages and punishes corrupt practice by EVERYONE, not one that gives autocrats more scarce benefits and spoils to distribute.

The diaspora argument is so irrational and immaterial to Jamaica’s national needs it borders on fantasy. How do you “represent” the Jamaican people from abroad? Kmt!

Almost every daily tribulation with which an increasingly frustrated society is faced can be traced to government corruption. Jamaican society is currently built on a foundation of autocracy in which all vital personnel and policy decisions are removed from any or any effective supervision by the people’s representatives. This means Jamaica’s foundation is corruption.

That endemic situation can’t be addressed other than by demolishing the current foundation and constructing a new one. THIS is what National Hero Norman Manley called for in 1967. THIS is what “Constitutional Reform” means.

You’ve been told “Constitutional Reform” is airy-fairy, elitist propaganda used to confuse poor people.

Not. True!

This tiresome political rhetoric about “protecting poor people” is nothing more than political exploitation designed to keep “poor people” believing they are dependent on politicians so they’ll allow themselves to be herded to polls twice per decade to ensure that their political leaders are gifted positions of control over the public purse. Then they return to poverty while those who promised them “protection” enrich themselves.

If Jamaica’s foundation was different; if politicians couldn’t hide their dastardly dereliction of duty or decadent disregard and disrespect for your needs; if politicians were subject to real consequences for abuse of power; then “poor people’s” circumstances could improve as governments are forced to remain inside the house the Constitution built and support its residents.

A constitution constructs a foundation of democracy then pours cement and builds external roof/walls of an independent judiciary and free press as added safeguards to ensure governmental misconduct is exposed, discouraged, or punished. Constitutional yard space and fences are additional security forces guarding against external intruders and providing for relaxation and respite.

This is the true meaning of separation of powers. It simply means that each and every part of the house has a separate, equally important purpose that only it can fulfill and that shouldn’t be usurped by others.

The concept of fundamental human rights is the equivalent of the internal partitions of the house that prevent unrestricted movement by residents and try to ensure that privacy is respected. But without the foundation of democracy as ensured by a separation of powers reinforced and enforced by several layers of bricks, mortar, and concrete, a Charter of Fundamental Rights is just a piece of paper that can be “abrogated” or “infringed” by politicians seeking quick fixes to political problems so long as the adverse effects of those fixes don’t affect them or their families.

PROTECTION FROM GOVERNMENT EXCESS

Only in a nation with a foundation built on shifting sand could an attorney general, whose constitutional role is to advise government regarding potential breaches of constitutional rights, say in Parliament (allegedly the people’s representatives’ House) in 2016, that in order to address a high crime rate “fundamental rights and freedoms guaranteed to Jamaicans may have to be abrogated, abridged, or infringed … .” So wasn’t it Government that made that guarantee?

That attorney general relied on the brazenness of criminal activity to opine that “such action may be demonstrably justified in this free and democratic society.”

Not. True!

Maybe the problem is that Jamaican society is neither “free” nor “democratic”, especially if a Constitutional Officer created to advise Government doubles as “Government” MP;and trebles as a representative of the very same people whose rights she proposed to “abrogate, abridge, or infringe”. Representative of the people? Government Adviser? Or Government MP? What type of democracy is this?

The good news is that courts have twice disabused that attorney general of that arbitrary notion.

So a by-product of a properly constituted society is protection from government excess, but it isn’t the builder’s raison d’etre. The USA’s Constitution was written without a Bill of Rights. A constitution’s purpose is to ensure a solid foundation for society so that government excess is difficult to do, is easily exposed, and is costly to the transgressor. Once society’s foundation is government by the people for the people instead of smoke and mirrors rhetoric, Jamaicans will see a true governors/governed partnership striving for equity, enlightenment, and achievement!

Peace and Love!

Gordon Robinson is an attorney-at-law. Email feedback to columns@gleanerjm.com