Thoughts on the Issue of Separation of Powers as a contribution to the Constitutional Reform debate in Jamaica

1. The political marketplace in Jamaica is in need of serious and urgent reform.
While there has been a lot of positives since Independence, any objective
assessment of both our speed and quality of development of the political
marketplace would show that we are sorely lacking in some major and
significant areas. It was Chester Bowles who rightly said that Government was
too big and too important to be left to the politicians. While government is of the
people and by the people and while the people elect and entrust officials to
govern on their behalf and serve their best interests, it was never intended that
the people would ever abdicate their right to having their voice heard on
governance. Jamaicans from all walks of life must maintain a close and active
interest in the governance of their country. In the recently published 2010-2011
World Economic Forum assessment Jamaica was ranked at 107 out of 139 for
PPuubblliicc ttrruusstt ooff ppoolliittiicciiaannss;; 116 out of the 139 countries assessed on FFaavvoouurriittiissmm iinn
ddeecciissiioonnss ooff ggoovveerrnnmmeenntt oofffificciiaallss and Jamaica is ranked 136 out of 139 countries
for BBuussiinneessss ccoossttss ooff ccrriimmee aanndd vviioolleennccee.. We are scraping the bottom of the
global barrel and it is patently obvious that the country and society needs a
game changer to break out of our present trajectory.
A pointer to an approach for improvement can be found in our own home-grown
management of the rapid evolutions in the commercial marketplace. An analogy
based on the commercial markets and how private institutions adapted as
markets grew, morphed, and evolved in Jamaica is instructive. Contrast the
period before deregulation and liberalisation versus the post-liberalisation
period. Prior to deregulation/liberalisation significant sectors in the marketspace
were dominated by monopolies and duopolies limiting choice, limiting quality
and not meeting customer requirements. They persisted because of historic
preferential rules and inertia to effect changes. The JLP and PNP are a classic
duopoly; they have grown disconnected with their markets; their wares belong
to another time and generation; they are neither fast nor nimble enough to
respond to the rapid societal, global, economic and political changes taking
place around us; in many ways they are cartel-like in their shared positions to
the exclusion of the consumers in the market. In many ways they are victims of
the historic rules. They, like all social institutions striving for good fit and
relevance in their environment, need constant re-invention in order to survive in
this time. To the extent that they are slow or stagnant, then to that extent the
country and society are also slowed and stagnated as we are tightly bounded
to them under the present rules of the game in the political marketplace. The
strong evidence also is that, because of path dependency, institutions are least
likely to inflict radical reforms on themselves even where changes are obviously
in their best long-term interests, political parties not excepted. The much
vaunted General Motors from the commercial space is a case in point; locked in
their own world unable to adapt quickly to the environmental changes swirling
around them because of historic, internal, institutionalised biases in
organisational and individual behaviours only to be rescued from itself by
others. The political marketplace is not immune from the dynamics buffeting
the other institutions of society locally and around of the globe.
What are the lessons from our commercial past that might help our search for
solutions in the political marketplace? Back in the days, when time moved slowly,
people were less demanding and choices were limited, we had two radio
stations, one television station, one telephone company, one newspaper,
one beer, one university. Choice was restricted and constrained but the society
back then tolerated the status quo as our demands were more or less satisfied
by the prevailing institutions.
As we became more sophisticated and more discerning as a people and
society we became more conscious of qualitative differences in what we
received as products and services and we grew more demanding for quality
products and services. We have also seen that open competition and wider
choices are associated with the delivery of these qualitative improvements.
Open competition invites new entrants with their innovative methods and
approaches. Incumbents step up to the plate or exit the marketspace. The
expansion of the telecoms market is a ready case in point. More choices, more
quality. The rules of the game that effectively confined voters in our political
marketplace to JLP and PNP was for the simpler times of the past but are not
suited for the needs of the vibrant, sophisticated, discerning, Jamaican people
of today.
The political marketplace needs deregulation and liberalisation so as to be
opened up for new ideas, new thinking, new governance approaches,
new leadership and for the true patriotic statesman-politician to get real
opportunities to emerge from among the partisan crowd. It also needs a
mindset that pro-actively seeks to make Jamaica leap-frog into the future by
breaking free of some of the ties that binds us to past failed approaches.
Charles Darwin reminds us that “It’s not the strongest of the species
that survives, nor the most intelligent but the one most responsive
to change”
Some ideas for refreshing the political marketplace and which the people
should be given an opportunity to give their voice to in a referendum before
the 2012 elections;
a. Convert the Office of the GG to an Office of the President (ie an
unelected Head of State) to function in much the same way as present,
except for (1) replacing allegiance to a UK Monarch to an allegiance to
the people of Jamaica and (2) repositioning some key non-partisan state
institutions under the Office of the President.
b. Reform the Electoral Commission to assume wider state governance
roles in order to oversee the reform of the entire political marketplace.
The new commission should constantly monitor the dynamics of societal
requirements and craft effective responses. Its membership should be
expanded to include more civil society representation. It would be an
agency of the President. Another analogy from the commercial space;
one of the successful and effective institutions created during the
commercial liberalisation period was the Fair Trading Commission (FTC)
whose remit was to be an independent arbiter of commercial rules
violations. Business was too important to be left only to
business-persons.
c. make the post of PM be subject to a direct vote by all Jamaicans; with a
DPM as a running mate. PM and DPM to be accorded non-partisan seats
in Parliament, post-election. De-couple the post of PM from any local
constituency
d. make posts of PM, DPM and MP’s be subject to recall by the population
for breaches of office
e. Make executive to be comprised of a Cabinet selected by PM from the
best Jamaican patriots available, qualified, able and willing to do
selfless service on behalf of their people.
f. expand the numbers in the Lower House. Make MP’s be primarily
focused on (1) their constituency representation and (2) law-making in
the legislature. Recent comparative study highlighted the lack of time
spent by the Jamaican legislature on law-making compared to other
jurisdictions and the severe negative effects that had on through-put of
Bills. We need to create the space for more time to be dedicated to this
arena.
g. Expand and empower the Committees of Parliament to strengthen its
various oversight functions and serve as an independent check and
balance on the Executive.
h. reform the present local government structure. MPs are de facto local
representatives; expand and support that role. Give MP’s seats and
voting rights in Parish Councils. Reduce the number of Councillors and
concentrate Councillors representation to the urban heavily populated
parish capitals. Extend Parliament’s out reach to constituents by
building and staffing well-appointed Constituency Offices for each
constituency for citizens to have direct access to MP’s in their locality
to voice local issues.
i. introduce term limits for all public offices as a way of refreshing and
renewing the peoples representation. Evolve a role for the wisdom of the
counsel of elder states men and politicians to be leveraged as trustees
and advisers in the background
j. institute full open disclosure for campaign financing for political parties
k. empower the Integrity Commission of Parliament to vet and approve all
candidates as fit and proper prior to consideration for service.
l. have Parliament institute formal mandatory training programmes for
potential political candidates at the constituency and national level to
cover areas of global economic and global management issues,
The main ideas outlined have been part of our public discourse in Jamaica
since 1995. We have debated and re-debated these ideas extensively over
the years without conclusion; within and without Constitutional Commissions.
There is broad consensus and agreement on a lot of the key points. Events
since 15 years ago have reinforced rather than reduced the urgent imperative
for change and adaptation in the political marketplace. These rule changes
will give the citizens a greater voice in the form of their government, improve
the democracy, broaden choices, strengthen the quality of governance,
strengthen the political parties qualitatively and increase trust in officials
elected to act in the interest of the people and country. Decisive pro-activity is
now needed as opposed to another 15 years delays and stagnation.
Let the stalled constitutional reform debate begin again in earnest.
Silburn Clarke FRICS