Yearning for government by systems, not by men

People power comes from the people using massive demonstrations in uprisings, or ballots through which the vote to express their democratic rights can be exercised. A state which implodes (the collapse of the Soviet Union in 1991) is very rare.

Jamaica is a democracy in which people power is delegated to the Constitution as the most powerful instrument of the state. Accordingly, Jamaica is a constitutional democracy, of which there are many; in contrast to the United Kingdom which has no constitution and is a parliamentary democracy, of which there are few. In Jamaica, the Constitution, therefore, is the supreme power, as is the Parliament in England.

The Jamaican Constitution has established the state as a monarchy, with the Queen of England as the Queen of Jamaica. In this arrangement, the Queen is not empowered to manage the affairs of the state on her own volition. Those powers are delegated to the government over which the monarch presides as head of state.

The Queen enjoys only symbolic powers to perform functions of the Constitution. However, there is an exception in the Jamaican Constitution (and others) in which the Queen can exercise a royal prerogative to hear the petition of a citizen whose appeal has been rejected by the appeal court of Jamaica. This right of final appeal to the Queen is heard by her Privy Council. This is the hallmark of the ‘Queen’s justice’, and must be taken into account if the Constitution is to be amended to replace the Queen as head of state, to determine if the citizen, in such a case, would be deprived of an element of the system of justice now available to the people of Jamaica.

When the prime minister and ministers of government formally receive their authority to govern, they do so by swearing an oath of office to the governor general of Jamaica, who holds vice-regal powers as proxy for Her Majesty. As I said in my Budget presentation of 2003-2004:

“At present, the oath of office of the prime minister and Cabinet ministers requires them to swear to ‘freely give advice to the governor general ... for the good management of the public affairs of Jamaica.” That is a completely meaningless oath of office. In our system of government, the governor general holds no responsibility for management. To swear to advise the governor general on the “good management of the public affairs of Jamaica” is an anachronism, an obsolete colonial provision from the days when the representative of the Crown held a portfolio of management.

There is a need to replace this relic of obsolescence with an oath of office which will bind every prime minister of Jamaica and Cabinet minister to be accountable for the principles of good governance. So, too, would it bind the leader of the Opposition.

The oath of office for the prime minister and ministers should read:

Failure to do the following would be impeachable offences to be tried before the High Court:

(1) Protect the fundamental rights and freedoms of the people;

(2) Provide for a just administration;

(3) Prudently manage and protect the revenues of the country; or

(4) Provide sound management of the public affairs of Jamaica

Because the matter before the court is based on a constitutional oath, if there is any doubt concerning the offence, the court can be petitioned to interpret the offence and make a declaration.

This would make it possible for prerogative writs to be invoked when necessary:

■ Failure to perform could be subject to a writ of mandamus to compel performance of any duty spelled out in the oath;

■ A writ of prohibition can be taken to prevent an action which is considered to be in violation of any of the principles of the oath; and

■ The court can be approached for hearing a writ of certiorari to quash an act which has been done in violation of any tenet of the oath.

Failure to comply with an order of the court could result in the offence laid before Parliament for impeachment proceedings.

The final step would be to place an offence which is determined by the court to violate the oath of office before Parliament to determine whether the offence should be tried for impeachment by a court of impeachment, however structured.

The fearsome nature of expulsion from office by impeachment would strike terror in the hearts of high officials, elected or non-elected, who:

■ Abuse the rights and freedoms of the citizen;

■ Unjustly practise discrimination and victimisation;

■ Neglect to prudently manage the public revenue;

■ Corruptly siphon public funds to their private use or divest public assets to their own gain:

In outlining the process above to proceed to impeachment, I well recognise that it may be argued by the court, that it could be a breach of the separation of powers on which the Constitution is based if the court gave a judicial interpretation of the action of the legislature. One eminent constitutional authority believes this.

But I have, nonetheless, offered a proposed scheme outlined above to spark discussion since the solution offered by the Constitutional Reform Commission for a select group of legislators to sit in judgement on the offences of their colleagues would be ineffective based on the political culture of Jamaica.

As matters now stand, there has been no workable procedure derived to carry out impeachment, although I put the impeachment process on the constitutional reform agenda as far back as in 1993. If we are to accept this impasse, we will be asking the country to continue its inglorious record of corruption and non-performance.

The Office of the Contractor General (OCG) should be taken as an example. After proposing its establishment in 1979, while I was chairman of the Public Accounts Committee, it was eventually enacted in 1985. Since then, it has never operated with full effectiveness until the present contractor general put a sting in its tail by threatening prosecution of offenders.

But the OCG has no such power of prosecution; it can only recommend, which it has been doing with inadequate success. If it is given the power of prosecution, by whatever means, it would have a very far-reaching effect on curbing corruption and mismanagement. This would be far more so effective than using the criminal justice system or civil service sanctions, which have only succeeded in invoking media rebuke, personal commendation or some political fallout, all with short-term effect.

The same lack of impact on the effectiveness of the post of public defender applies. Here, it is worse, because the public defender is kept under operational constraint because of lack of funds and, further, because of the need to satisfy the attorney general as a precondition. The attorney general is a political officer. This clearly can be a restraint.

If there is a determination to seriously curb inexcusably bad management and wipe out corruption, these defects must be corrected. The result could be sweeping in transforming a corrupt dysfunctional society to one free to supplant the ill-will of injustice with the goodwill of justice, the intolerance of disorder with the conformity of good order, and the disrespect of the nation to the respect for which the people yearn to redefine Jamaica’s future as one of brightness for its children.

There is no better time to start than in the 50th anniversary of Jamaica’s Independence, when we should resolve to ensure that the old ways are left behind in our determination for a better future. We must begin to empower a government of systems, not men.

■ Edward Seaga is a former prime minister. He is now chancellor of the University of Technology and distinguished fellow at the UWI. Email feedback to columns@gleanerjm.com and odf@uwimona.com.