FORMER Prime Minister Bruce Golding has slammed the decision of the 15-member Constitutional Review Committee (CRC) to not include provisions for the impeachment of parliamentarians amongst the proposals it has made for the review of the country’s constitution.

The CRC, in Part 6, Section 3 of its report on The Transition to the Republic of Jamaica and Other Matters, recommended “that there should be no inclusion of an impeachment process in the reformed constitution”.

But Golding, who was speaking last Tuesday at The University of the West Indies, Mona’s Faculty of Law public education programme

A Reasoning with Mr Orette Bruce Golding about Reform of the Jamaica Constitution and De-Linking from the British Monarchy, said he viewed the decision to reject calls for impeachment provisions in the constitution “with some dismay”, given that there was agreement between the Government and the Opposition in the past to have them included as part of measures to hold Parliamentarians accountable for their actions in office.

“It was an issue that was heavily canvassed back in 1995,” he said, referring to the committee that was set up in the 1990s to review Jamaica’s Constitution and make recommendations to reform it. Golding was part of that 1995 committee, on the appointment of then Opposition Leader Edward Seaga (now deceased).

“It was part of the Jamaica Labour Party (JLP) manifesto in 2007,” he reminded.

Golding was Opposition leader at the time, won the subsequent election, and served as prime minister from September 2007 to October 2011.

“Indeed, I tabled a Bill in Parliament in 2011 to give effect to impeachment provisions” he went on, indicating his strong support for impeachment provisions for Parliamentarians. He then went on to outline that, “In the JLP manifesto of 2011 it was listed as a work in progress. It was not mentioned in the JLP manifesto of 2016, but in the JLP manifesto of 2020 it is one of several issues on which there would have been ‘widescale consultation’ with the Jamaican people.”

He also reminded the audience that the People’s National Party (PNP) signalled its support for impeachment when Leader of the Opposition Mark Golding tabled The Constitution (Amendment) (Impeachment) Act 2021, in April 2021, to facilitate the impeachment of Members of Parliament for certain offences.

“And, therefore, I am trying to understand: If the JLP was committed to it, and the PNP is committed to it, but in the committee where they both sat they decided that it is not such a good idea, I am wondering whether it is the non-JLP and non-PNP members of the committee who persuaded them that this is not something that ought to be proceeded with. And, I haven’t seen any minority report from the PNP to suggest that, ‘We disagree with this rejection,’ “ he said with some disquiet.

Golding continued: “The reason why I hold to this position quite strongly is that impeachment is not a new idea in our constitution, enuh. We have provisions in the current constitution for the impeachment of judges of the Supreme Court, for the impeachment of the DPP [director of public prosecutions], for impeachment of the auditor general. It requires the establishment of a tribunal which then hears evidence, listens to the arguments, and then makes a recommendation as to whether that person ought to be removed from office.

“And if it is good enough for our judges, and good enough for our auditor general, and good enough for our director of public prosecutions, why is it not good enough for certain other public officials?” he asked rhetorically, to applause from the audience.

But he did not just register his dismay that there were no provisions for the impeachment of Parliamentarians in the proposals for constitution reform. Golding also examined the reasons given for the CRC rejecting the recommendation, and offered his own views.

The CRC reasoned in its report that one of the grounds on which it rejected the idea of impeachment provisions in the constitution is because, “it is dealing with what is essentially a legal matter through a political process, as most impeachable offences are criminal in nature and properly triable in the courts”.

“And you know, I respectfully disagree,” Golding said after reading out the reason ad verbatim.

“The proposals that were put forward in 1995…were never conceived as a substitute for criminal prosecution,” he continued.

Then he admitted, “The joint select committee of 1995 did recommend, did include as a ground for impeachment, corruption or misappropriation of public funds or property — so that would definitely fall within the concern that the new committee has expressed.”

Still, he was not convinced that the concern is enough to reject impeachment provisions, and could have been dealt with.

“Well, you know, if a potential conflict exists between impeachment and criminal proceedings, let’s remove triable offences from the definition of impeachable causes, rather than shredding the idea altogether,” Golding said to sparse applause.

He pointed out that the 1995 recommendation went on to specify “misconduct or malfeasance that renders someone unfit to hold office”, which are not necessarily criminal in nature, and suggested even those provisions could be looked at to make a case for impeachment provisions.

“You can have a public official who misconducts himself or herself in a particular way, but it’s not a crime. But you certainly don’t want that person continuing in public office.”

Those instances of misconduct which may not be criminal in nature that were recommended by the 1995 committee included refusal or persistent neglect in the exercise of the duties or responsibilities of a public office, abuse of statutory powers or authority, deliberately misleading Parliament, or intentionally abusing the privileges of Parliament.

“As I’ve indicated, these are not necessarily offences triable in a court, but the select committee of 1995 considered that they were sufficiently important and impactful to warrant removal from office.”

Turning to the reasoning that impeachment provisions were not included because of the possibility of the impeachment process being easily manipulated for partisan political purposes, which makes it difficult for a person to get an impartial hearing by Members of Parliament divided along partisan lines, the former prime minister said he had “sympathy with that concern”.

But he went on to add, “I have a deep disappointment that the political maturity that I thought was evolving, where partisan political interest in certain situations could be subordinated to the national interest, I am deeply disappointed that that evolution has not materialised. We are as tribalistic as we ever were — it’s only that we no longer trade bullets. We [instead] trade insults. We are averse to finding common ground.”

Yet, he argued that it is possible to insulate the impeachment procedure from partisan politics.

“While it is true that impeachment, in most instances where those provisions exist, is a legislative matter conducted within the legislature, it does not have to be,” he stated.

He explained that the joint select committee of 1995 had recommended a two-stage process for impeachment with, firstly, a recommendation to impeach coming from a Parliamentary committee, and then a referral to an independent tribunal for a hearing to be conducted and for a decision to be made.

Besides that, he said if the concern still persists regarding the danger of partisan politicisation of impeachment proceedings, “let’s just eliminate that stage altogether and let us define the requirements for an impeachment petition to include frivolous and vexatious abuse”.

Also taking on the CRC’s other cited reason for rejecting impeachment provisions wherein it said in cases where impeachable offences are not criminal offences, “the definitions are generally vague, therefore the impeachment process is inconsistent with the principles of natural justice”, Golding said it is a matter that can be settled through negotiation.

“Well, let us fix that. Let us remove the ambiguities without making the provisions inapplicable,” he suggested.

Marlene Malahoo Forte, minister of legal and constitutional affairs and also chairman of the CRC, who was in attendance but who spoke generally to address Golding’s recommendations — including those on impeachment provisions — said “every considered view that is shared on the recommendations, we are listening to it”, suggesting that some of the recommendations could influence the next steps made by the committee.

“There is no monopoly. I think we are all trying to do it well and do it better. It’s not going to be perfect but, be assured, for all of the views that have been expressed, we are paying close attention to it, so that’s not the end of it.”

But speaking directly about the matter of impeachment, she said speaking for herself, she recognises and “share[s] the concern for finding a mechanism that is workable, practical, devoid of the kind of spectacle that we are prone to gravitate towards to hold our officials to account in a meaningful way. So, that door is not closed at all.”

MALAHOO FORTE…that door is not closed at all.