Holness did not write the constitution

Lance Neita

Sunday, February 18, 2018

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A constitution is a set of principles, laws, practices, and code of behaviours that govern an organisation and, in this case, a State or national government. It is the common thread that holds a country together and binds its citizens to be guided by standards and rules that establish some amount of control over the direction and progress of the State. We ought to know our constitution.

The Jamaican Constitution is the most fundamental legal document in the country, guaranteeing the freedom, rights and privileges of every Jamaican. We should be grateful to Prime Minister Andrew Holness. His run-in with the judiciary had many of us running to the Internet or to the library to renew our acquaintance with the constitution and to settle the argument on what was constitutionally right or wrong in this contentious chief justice affair.

All of a sudden we are experts on laws and by-laws and the constitution has become a kind of best-seller as everyone is quoting section 1-2-3 and subsection 4-5-6 like it's going out of style. The constitution is now the 'in-thing', and whether we have read it or not we have become judge and jury (“like cunning old Fury”, read Alice in Wonderland).

I confess I fall into the 'have-not-read' group, although I am familiar with sections such as the holding of elections, the structure of Parliament, fundamental human rights, and other areas whenever study of those are made relevant by issues of the day.

So naturally, with all this contretemps going on about the acting appointment, I took time out to read the section on “The Executive”. It wasn't easy for a layman like me. The prime minister's duties and responsibilities are spread all over the pages for the simple reason that he/she has powers and authority over almost everything that moves in the constitution.

Remember, the prime minister appoints the Cabinet — that's the executive branch of government. But the prime minister also pulls the punch in the judiciary as it is he/she who appoints the chief justice and president of the Court of Appeal. And the prime minister controls the legislature by virtue of being head of the majority party in the House of Representatives. And, again, it is the prime minister who appoints 13 senators (the majority in the Senate). That takes care of all three branches of government that represent the hallowed separation of powers.

It doesn't stop here. The prime minister also selects the governor general. Yes, we know it's The Queen who appoints her representative, but she does so on the advice of the prime minister. And following his/her appointment, the governor general acts based on the advice of the 'selector' in almost everything.

I got a bit lost when I went down the pages, for the prime minister's advice to the governor general cropped up in almost every paragraph. For example, if the prime minister wants to remove a judge from the Court of Appeal, the governor general must appoint a tribunal which consists of a chairman and not less than two other members “selected by the governor general on the advice of the prime minister” to enquire into the matter. That, to me, was a revealing example of the far-reaching influence and authority of the prime minister reaching into this branch (the judiciary) of the separation of powers. The 'ninety and seven' better watch themselves.

Finally, I went back to the section where the “the governor general is directed to exercise any function on the recommendation of the prime minister after consultation with the leader of the Opposition”. Here is how it is done: The prime minister shall first of all consult with the leader of the Opposition and thereafter tender his recommendation to the governor general. The governor general must then inform the leader of the Opposition of the recommendation (as if he didn't know it before). If the leader of the Opposition concurs therein, the governor general shall act in accordance with such recommendation.

But, hold the phone. If the leader of the Opposition does not concur with the recommendation the governor general shall so inform the prime minister and refer the recommendation back to him. By this time argument done, because the prime minister is then required to advise the governor general (again) and the governor general shall act in accordance with such advice. So no matter how much concurring or no concurring the poor Opposition leader does, the argument settle from the first go around.

I have always wondered what format the consultation of the prime minister with the Opposition leader takes. Is it a telephone call, a meeting, a hand-delivered note, and does the Opposition leader get any time to object before the prime minister, having carried out his constitutional duty, races off the King's House to make known his want.

With regards to the appointment of the chief justice, it is very clear that the present prime minister acted within his rights under the constitution. The constitution says it: “The chief justice shall be appointed by the governor general by instrument under the broad seal on the recommendation of the prime minister after consultation with the leader of the Opposition.” We have already seen how the consultation bit plays out.

But, to me, it was never a matter of whether he had the right to appoint or not. It was simply how come we, the people, have allowed that right. The constitution gives the prime minister the power and the authority to do certain things as outlined above. I was amazed when I realised just how much power we have invested in that office. The constitution, however, belongs to the people. We have the power, if we so desire, to make changes and limit the powers of our politicians and leaders if we feel inclined so to do.

If not, no amount of bickering, striking, and arguing, will change anything.

In all fairness to Prime Minister Andrew Holness, he did not write the constitution. The present constitution came into effect August 6, 1962. Holness was born 10 years later on July 22, 1972. If he had been around at the time of authorship, he might have been inclined, like his mentor Bruce Golding, to limit the awesome powers we have invested in our leaders.

Just like the phrase sounds, the point of checks and balances was to make sure no one person, no one branch, would be able to control too much power, and it created a separation of powers. We must value, respect, and maintain that separation at all times.

Lance Neita is a public relations consultant and no lawyer. Send comments to the Observer or to

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