Our founding fathers framed our constitution with meticulous purpose. We were a colony embarking on political independence. We would now be the masters of our own destiny. It would have been difficult to foretell what the future would hold and how we would manage these new powers that were about to be vested in us.

The founding fathers opted for the Westminster parliamentary form of governance rooted in a competitive democracy which had been bequeathed to us by Britain. We had acquired experience with it over the previous two decades. The document that they crafted made no mention of political parties. But they clearly provided for two sides — a Government and an Opposition. How those sides were to be constituted — whether by single political parties or some form of coalition of parties or independents — they left that to the voters to decide.

The fear of absolute power

The founding fathers went further. Concerned as they seemed to have been that absolute power corrupts absolutely, they prescribed the constitutional authority not just of the prime minister, who would be the head of Government, but also for the leader of the Opposition.

The founding fathers weren’t satisfied that that was enough. They were evidently concerned that a Government could overwhelm the Opposition and alter the fundamental structures of the constitution that they had laid out so they instituted guard rails. Important sections of the constitutional arrangement, they insisted, could only be altered if there was agreement between the Government and the Opposition. How could this be ensured?

They structured a bicameral legislature with an elected House and an appointed Senate, but they composed the Senate in such a way that the number of those representing the governing side was less than two-thirds of the full complement. Then they ordained that significant amendment to the constitution would require a two-thirds majority vote in both the House and the Senate, so that no matter how large a majority of seats the governing side controlled — as was the case in the 1944 elections — it would not command a two-thirds majority in the Senate.

The founding fathers still were not satisfied. They felt that some provisions in the constitution were so fundamental to the preservation and good order that agreement between the Government and Opposition to alter them would not be sufficient. Such proposals would have to be approved by the voters themselves, and if disagreement existed between the Government and Opposition, the voters could only approve them by a two-thirds majority.

Talk about belt and braces. These are more like chains and shackles!

Some may be of the view that these provisions are too restrictive, that they prevent the constitution and our governance arrangements from adapting to changing times and new challenges. The founding fathers were not unmindful of this. They simply said that if you want to alter fundamental provisions in the constitution, sit down and discuss it and come to an agreement. And, in relation to some specific provisions, go talk with the voters and get them to agree.

Our constitution

Perhaps for the very reason that these provisions are restrictive, I hold the view that our constitution has served us well, despite whatever shortcomings it may have. Some recent contributions to the constitutional reform debate to which I will return suggest that we should do away with these guard rails.

There have been times in our modern political history, especially in the 1970s, when our constitutional anchor was severely tested. But it held. We faced a conundrum after the 1983 election that the People’s National Party (PNP) boycotted when the Jamaica Labour Party (JLP) ended up with all seats in Parliament. The constitution provides that, where there is no one qualified to be appointed leader of the Opposition, the governor general shall act on the advice of the prime minister in all matters on which he would otherwise have been required to act on the advice of the leader of the Opposition. This included the appointment of the “two-thirds-denying” eight members of the Senate. This now placed the prime minister in a position that the founding fathers could not have envisaged, where he would be obliged to name all 21 members of the Senate. His Government could now proceed to change vast sections of the constitution as it saw fit.

To his everlasting credit, Edward Seaga chose not to do so. Instead, he nominated eight independent senators, led by Dr Lloyd Barnett, to fill the gap left by the absence of PNP-appointed senators. The guard rails that the founding fathers had so deliberately placed in the constitution were preserved.

Choosing the president

Jamaicans for Justice (JFJ) was kind enough to send me a copy of its submission to Parliament on constitutional reform. What jumped out instantly at me was the proposal for how the president of a Jamaican republic should be chosen. Both the Government and Opposition had agreed in 1995 that, in transitioning to a republic, the president would be chosen by a process aimed at achieving consensus. This is important because the governor general, whom the president would replace, is more than a ceremonial figurehead.

Over time, commencing with the appointment of the Electoral Advisory Committee (EAC) in 1979, the governor general has morphed into a quasi-executive position and he has been vested with effective decision-making power in critical areas of governance. These now include the appointment of the Integrity Commission and the Broadcasting Commission. Part of the agreed reform measures is to have these powers entrenched in the constitution.

From as far back as 1995 the Government and Opposition agreed that the president would be nominated by the prime minister after consultation with the leader of the Opposition, but in order to secure consensus the appointment would be subject to a two-thirds majority in both Houses of Parliament. However, they disagreed as to how the vote was to be conducted.

The then PNP Government wanted the vote to be taken in a joint sitting of both Houses. The JLP Opposition insisted that the vote be taken separately in each House, arguing that an overwhelming majority in the Lower House would make the critical 13 to 8 balance in the Senate irrelevant, and would ensure not consensus but that the Government had its way. At that time the PNP had 65 Members of Parliament (MP) and senators to the JLP’s 16. It would have easily surpassed the two-thirds mark with both Houses voting together.

Happily, the PNP has recently indicated its acceptance of separate votes in each House. Sadly, the Constitutional Reform Committee of recent vintage has proposed that, in the event the nomination fails to enjoy a two-thirds (consensus) majority, it would revert to a simple majority. This would, from the very outset, relieve the Government of the burden of striving for consensus since in the end their simple majority would prevail. The less said of that idea, the better.

The argument has been proffered that we could end up in a logjam. If Michael Manley and Edward Seaga in 1979 could set aside their political differences and agree on the establishment of the EAC and how it was to be constituted, this cannot be too much to ask of their successors.

The electoral college

JFJ has rejected the guard rail arrangement. It has proposed instead that the president should be chosen by an electoral college consisting of all elected MPs and parish councillors. In my response to them I cited the implications that they apparently had not contemplated. In 1981 such an electoral college would have consisted of 303 JLP members and 32 PNP members. In 1993 it would have consisted of 220 PNP members and 67 JLP members. One does not have to ponder what result a vote by this electoral college, in either instance, would produce. Even if at any point in time the numbers are not so lopsided, one side or the other is likely to have a decisive majority and the choice of president would almost certainly be strictly along party lines. That is precisely what the joint select committee of 1995 sought to avoid.

Electing senators

More recently, Dr Rosalea Hamilton, a respected thinker, tossed out the constitutional guard rails. The existence of appointed senators, she argues, is undemocratic and proposes that senators should be elected. Let’s do the maths again. It is highly unlikely that the political trend that delivers a majority in the House would be any different from that in the Senate. The last elections, for example, which resulted in a landslide for the JLP in the House, would almost certainly have produced a similar landslide in the Senate. The Government would therefore enjoy a super majority in both chambers and would be in a position to reconstruct the constitution in ways that would make the 1962 constitution unrecognisable. There go the guard rails; the critical shield against absolute power corrupting absolutely.

The constitution does need some fixing and this goes far beyond ridding ourselves of the British monarchy or even the UK Privy Council. Its chains are too tight. For example, we want to entrench provisions relating to the Electoral Commission so that no Government can ever mess with it and return us to the days of manipulated elections. As it now stands, it is based on ordinary legislation which any Government could simply repeal if it chose to do so.

But to entrench it we need to amend section 49 of the constitution and that can only be done by way of a referendum. We need a referendum to amend section 49 to allow matters that require only a two-thirds majority to be capable of being entrenched by a two-thirds majority in each House without having to spend billions of dollars to conduct a referendum. The long-running debate about Privy Council and the Caribbean Court of Justice is proof enough that that is a sufficient guard rail.

I hear some rumbling sounds coming from the graves of Norman Manley, Sir Alexander Bustamante, Sir Donald Sangster, Edward Seaga, David Coore, Robert Lightbourne, Florizel Glasspole, Vernon Arnett, Howard Cooke, Wills Isaacs, Clem Tavares, Neville Ashenheim, Claude Stuart, John Gyles, Rudolph Burke, and Iris King who authored our constitution. They did enough to earn the right to rest in peace.

Bruce Golding served as Jamaica’s eighth prime minister from September 11, 2007 to October 23, 2011.

Bruce Golding