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A 30:30 election nightmare? An opportunity for a new type of politics
Published in the Jamaica Gleaner: Sunday | August 12, 2007
Martin Henry, Contributor
"Can you imagine the confusion that would descend on Jamaica on the 28th [of August] if both parties won an equal number of seats?" one of our leading constitutional lawyers, Dr. Lloyd Barnett, has asked. He sees a constitutional nightmare rising out of the darkness of the tie and "we could end up with a tense, fragile country," he warns.
I can't share Dr. Barnett's dark pessimism. And in fact wonder how, as a constitutional lawyer, he could arrive at that position as reported on the front page of this newspaper on Wednesday. I am far more optimistic. I see opportunity. There would, of course, be a great deal of discomfort for the PNP and the JLP, but hardly a constitutional crisis for the Jamaican state and its governance.
Our constitution does not include or recognise political parties. They are of no necessity for the formation of a government and their complete disappearance would be no constitutional dilemma whatsoever. Every member of the House of Representatives is elected independently by eligible electors in a constituency covering a geographical area prescribed by law.
Like-minded candidates may choose to affiliate themselves into parties to pursue a common agenda, and which, if in the majority in the Parliament, can control and exercise state power - the most basic goal of the party. Since 1944, when the first election for internal self-government on Universal Adult Suffrage was held, candidates have chosen to run together in parties, as has happened virtually everywhere that competitive democratic politics is practised in the modern world.
But it was largely 'independents' standing on their own platforms in local competitions who ran for and were elected to the old Assembly and House of Representatives. In the party dispensation, giving up or switching party affiliation, once elected, does nothing whatsoever to affect a person's standing as a Member of Parliament. Political parties, whatever their strengths and contributions, have brought some substantial disadvantages to the democratic process.
The Jamaican constitution plainly states in Chapter VI, 'Executive Powers', Section 70 (1): "Whenever the Governor-General has occasion to appoint a Prime Minister he, acting in his discretion, shall appoint the member of the House of Representatives who, in his judgement, is best able to command the confidence of a majority of the members of that House."
Alternative possibilities
With 30:30, no leader of a political party can expect to be simply shooed in as Prime Minister in the traditional manner, which is not a matter of constitution, but of convention. So possibilities immediately open up for the formation of a new government. And the excitement and opportunities of horse trading in the House can begin.
Readers should note two facts of our very recent political history: 1) Dr. Peter Phillips had the largest block of support among PNP parliamentarians going into the internal party elections for a new president to succeed P.J. Patterson. 2) Dr. Ken Baugh served as Opposition Leader following the resignation of Edward Seaga, Member of Parliament, and as leader of the JLP, and before Bruce Golding the new leader of the JLP was elected in the West Kingston by-election - the safest of seats.
Loseable seat
But suppose it were a loseable seat and Golding had lost? The party leader would be sitting outside the Parliament and could not therefore be Opposition Leader at all. And the same is perfectly possible, for the leader of the majority party not to be elected to Parliament and therefore not to be Prime Minister.
So, on August 28 or some time thereafter, in the event of 30:30, any Member of Parliament can make the trip to King's House, armed with 30 signatures plus his or her own and request of the G-G to appoint him or her as Prime Minister. And the signatories backing the bidder would have to include members of both political parties. The new PM would then proceed to appoint a Cabinet, and 13 senators, in both cases necessarily having to reflect a broader than usual range of political and national interests!
Interestingly, the party leaders may be less able to mobilise majority support than some other members. Remember that Portia Simpson Miller did not have majority support for the PNP presidency among PNP parliamentarians. [Neither did Michael Manley earlier in 1969; Vivian Blake did]. And Bruce Golding, the NDM refugee, has substantial trust and loyalty problems within his own ranks.
These differences within parties are papered over in the interest of keeping or gaining political power both at the personal level and at the party level. But in the impasse of 30:30, those constraints disappear.
With every MP's support crucial for the formation of a meagre majority Government, no one can be dissed, so it would be a low-risk venture for a strong Peter Phillips [PNP] or a strong Audley Shaw [JLP] to make a bid to form a mixed party or no-party Government. Should they fail, the party leaders would need them too much in their own bids to form the Government to sideline them. It would be a marvellous moment for flip-floppers, some of whom have already flipped and flopped and are ready to do so again.
Negotiations
Policy and power negotiations would be the order of the day. And there wouldn't be many days [I would guess no more than three], with cellphones burning and backroom huddles round the clock. Concessions and compromise at individual levels would run things, with the parties prostrate and harmlessly out of the way. The love of personal power, sometimes obsessive, which drives the political animal, would sweep away party loyalty and any 'inability' to negotiate in a comparatively low-risk environment for personal aspirations.
While the post-30:30 horse trading is running hot, the Government of Jamaica is perfectly safe - constitutionally. The old government continues until a new one is appointed. And suppose the Government or parts of it resigns? Section 70 (3) of the Constitution makes clear that, "If occasion arises for making an appointment while Parliament is dissolved, a person who was a member of the House of Representatives immediately before the dissolution of Parliament may be appointed Prime Minister [or] as any other Minister."
Constitutional security
There is even greater constitutional security for the stability and continuation of the Government of Jamaica. A minority of Jamaicans are anxious to remove the British monarch as head of state, but until then, the current Constitution says: "The executive authority of Jamaica is vested in Her Majesty" [Section 68 (1)]. And "The executive authority of Jamaica may be exercised on behalf of Her Majesty by the Governor-General either directly or through officers subordinate to him" [Section 68 (2)].
A meagre majority government, of course, runs the risk of collapse. But so what? A new one is formed, which must, perforce, in a Parliament of 60, involve many of the same players ensuring policy continuity. Italy, for instance, has had literally dozens of governments since World War II with no threat to the stability of the Italian state or apparently any great damage to its prosperity.
The stability and governance of the Jamaican state is constitutionally not consonant with the interests and competition of political parties. Nor do they even reside in the Office of Prime Minister, head of government.
They reside in the Office of Queen/Governor-General, head of state, which has the power to create a government in collaboration with elected members of Parliament.
Civil unrest
Dr. Barnett may have been more concerned about civil unrest on the ground rather than a constitutional dilemma. My reading is that the vast majority of Jamaicans have no interest whatsoever in taking to the streets in any kind of protest or battle over an indecisive election result. Indeed, it is political apathy and disengagement which most characterise the citizens of the country.
Trouble is only likely to emerge in and between party strongholds, which are mainly the urban garrisons. Unless Dr. Barnett is imagining partisanship by the security forces these enclaves of potential unrest can easily be pre-emptively neutralised while a government of broad national consensus is being negotiated by the 60 elected parliamentarians - whose parties would no longer matter - and umpired by the Governor-General. If no one drops their constitutional balls, a 30:30 'crisis' would spell opportunity - opportunity for a new politics and a new Jamaica.
Martin Henry is a communication consultant.
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