Gordon Robinson | Hush, it’s a secret!

I know.

This’ll be the last time (for now) I write about Government’s crude attempt to disguise a gluttonous grab for more power as a constitutional reform process. I promise!

It’s just too annoying to watch quietly while we’re taken for fools as regression is presented as “reform”. For seven years Government has seemed determined to undermine the Rule of Law with unconstitutional (my opinion) states of emergency (SOEs) used to combat rising crime rates. After showing some tolerance, Opposition thwarted this bankrupt brainchild by using the constitutional mandate requiring one Opposition Senator’s vote for SOEs to be extended. Like Batman’s nemesis, The Joker, Government cannily circumvented that governance boundary by declaring new SOEs immediately after one expired.

From as far back as September 28, 2018 Sunday Gleaner; Emergency! What Emergency?) I’ve been shouting from rooftops that rising crime rates do not a constitutional “Emergency” make. I followed up on October 12, 2018 ( Unconstitutional! States of Emergency smack of panic, incompetence):

“I still maintain the very first SOE was an admission of failure by the security forces, which failure was only emphasised by its territorial ‘success’ which, apparently contrarily, led to two more SOEs having to be declared. Success? Schmuccess!

I opined then that the purpose of SOEs was to deal with attacks on the State itself, and this extreme remedy was never intended to be misused to address citizen-on-citizen crime.”

I recommend you re-read this seven year old column. Or, instead, you can read the May 16, judgment of the Constitutional Court led by Justice Bertram Morrison and including Justices Andrea Pettigrew-Collins and Simone Wolfe-Reece delivered in Dayton Campbell v Attorney-General. The court agreed that the 2018-2023 SOEs were unconstitutional.

The Court began by confirming that Governor General’s SOE proclamation can only be valid if made on reasonable grounds ( paragraphs 33-36; and 50). No matter what GG thinks, there must be a real emergency.

Then the Court analysed the evidence put forward on Government’s behalf; found it vague and wanting ( paragraphs 40-44); then:

“This Court finds that on analysing the Constitutional provisions, the Governor-General’s Proclamation of a SOPE requires him to be satisfied that a sudden, unexpected action of such a nature and on so extensive a scale as to be likely to endanger the public safety of the community has been taken or is immediately threatened by any person or body of persons.

“The evidence of DCP Blake makes it plain, in our view, that the SOPE are being utilized as a method of policing over an extended, albeit not continuous, period of time.…..

“We are not of the view that the SOPE declared by the Governor-General between the period January 2018 to February 2023 were declared for a purpose specified in section 20 of the Constitution. They are consequently….void.”

Cawn’t sey mi neva dida warn yu!

Government’s strategy to avoid any such future inconvenient scrutiny or fiscal peril (former detainees are likely lining up to claim damages) seems, pending DNA testing, to have been the father of its fake constitutional reform process. Government may have taken a calculated decision to risk legal peril for short-term kicking of crime cans down crime fighting roads. If Government planned to subvert the Constitution to ensure legal danger was temporary, this is how it could be done:

1. Create a Constitutional Reform Committee (CRC) ostensibly to advise on becoming a “Republic”;

2. Politically shackle CRC. Include cabinet minister responsible for constitutional affairs as Chair; several legislators conflicted by being future voters on whatever Bill results; Government’s legal advisor; and persons selected by Government in secret allegedly representing civil society groups unaware of their appointment;

3. Ensure CRC proceeds in phases; the first phase must include what you need to subvert any effective opposition to SOEs;

4. End CRC’s term at the next election before phantom Phase 2 can begin;

5. Force feed CRC with pre-determined plans and a 30 year old draft Bill;

6. Hold CRC meetings in secret; make no effort to educate a population uninformed about Civics; hold some random town halls bossed by the Chair; produce a “report” focused on replacing King/GG with a ceremonial President; hope nobody notices what you’re really up to.

Don’t believe this could happen? Here’s section 17 (Numerologists know this would be a “trap” section) of the proposed Constitution Amendment Bill:

“35.—(1) The Senate shall consist of twenty-seven persons…..

(2) Fifteen Senators shall be appointed by the President, acting in accordance with the advice of [PM]…..

(3) Nine Senators shall be appointed by the President, acting in accordance with the advice of Leader of the Opposition [LOO]…..

(4) Three Senators shall be appointed by the President, in the President’s discretion, from among persons in private sector, civil society, faith-based or community-based organisations, or other sectors of society [including overseas residents’ representatives].”

Sounds nice, don’t it? At last, independent senators will tip the balance towards We the People’s interest, right?

WRONG.

Let’s do the math. 15+3=18=2/3rd of 27!

So how exactly are these “independent” Senators to be appointed? Will these named groups be selectors?

Of. Course. NOT!

They’re to be appointed by “the President in the President’s discretion”. Oopsie. What’s going on? How do we get a President? Is he/she elected?

Of. Course. NOT!!

Eliminating legal gibberish, this is how Government proposes to appoint (not elect) a President:

1. PM makes a nomination to LOO;

2. If LOO agrees Presidential nominee there’s a “confirmation vote” in Parliament. Nobody else needed;

3. If LOO disagrees, PM can re-nominate or nominate someone else or LOO can nominate someone else. No, YOU don’t say anything. Nobody needs your interfering yapping;

4. If they can’t agree PM has the absolute right to nominate a President whose confirmation is BY SECRET BALLOT of a joint House and Senate sitting. President is confirmed by a simple majority. In other words Government’s choice is automatically confirmed.

This is treacherous twaddle masquerading as constitutional reform. It’s bad enough We the People are barred from voting for our own President. In which Universe can the People’s representatives cast a SECRET BALLOT to conduct ANY of the people’s business let alone appointment of Head of State?

Reality is PM effectively appoints President who appoints “independent” Senators. How’d YOU expect these “independent” Senators to vote on government’s Constitutional amendment Bills?

This cunning circumlocution is proof the entire process was bogus. Here’s what CRC’s report actually advised regarding the Senate:

“7.3.1 To maintain the constitutional amendment safeguard, CRC further recommends that the proposed composition (of the Senate) 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 nine of 27 means a 2/3rd majority is available without support from any opposition Senator. This 15+3+9 scam didn’t originate from CRC? So who? Did the Joint Select Committee reviewing the Bill read CRC’s Report?

Last week I again opined Jamaica needs a new governance system. A reader challenged me to “give us an example of a country or countries that use your ideal system and explain how their politics led to greater individual freedom and prosperity.”

Sigh.

Why would this matter? There are several countries with strong constitutional separation of powers and also prospering. So what? Whether or not they do won’t change Jamaica’s reality which is we need change. Canada’s annual GDP growth 2021-2023: 5.3; 3.8; 1.2 per cent, Ireland (2020-2022, 6.62; 15.13; 9.43 per cent), Australia’s annual average 1960-2024 3.36 per cent; and USA’s 2021: 5.8; 2023: 2.54; 2024: 2.8 per cent.

The centrepiece of these countries’ governance is separation of powers not necessarily a carbon copy of USA’s method. My “ideal system” is the one decided by Jamaican citizens after education of and consultation with them. I can tell you what it’s NOT. It’s not Westminster. Here are some facts about comparative Jamaican growth rates:

1966-1972: Growth 6 per cent per annum; 1973-1980: Total decline of 18 per cent; 1980-1988: Growth 0.92 per cent per annum; 1988-1996: Growth 2 per cent per annum; 1997-2024: Average annual GDP growth 0.55 per cent; 2024: GDP contracted 0.8 per cent in the fourth quarter over 2023.

Need I say anything more?

Jamaica can’t continue with the same bad system expecting better outcomes. Albert Einstein called that insanity. So, genuine Constitutional Reform is urgently needed. The “new system” should come from the governed not the governors. I guarantee you THIS current charade isn’t the way. We’re being tricked; hoodwinked; bamboozled. And all PNP can talk about is CCJ?

Give me a flipping break.

Peace and Love.

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