Reforming governance

DEMOCRACY IS alive when political Opposition is awake. Both national newspapers, Sunday, August 26, published an article by Opposition Leader, Dr Peter Phillips condemning “partisan political bias” in the operations of the Public Service Commission and called for changes to clean up the system, but Dr Phillips nodded on his journey, leaving the Public Service Commission as cold comfort on the way for clean governance.

The article pointed out that recent developments in the performance of Jamaica’s public sector indicate there are major gaps in our governance structure that have to be addressed if the system is to become less prone to abuse and manipulation. This was from the fallout in the energy ministry where senior officers resigned and the minister was forced from office.

Dr Phillips proposed two changes to the PSC to eliminate partisan political bias (without calling it corruption) in the management of human resources. First, recommendations to the governor general from the prime minister should be by agreement with the leader of the Opposition, not after consultation; second, the tenure of the appointment of members of the commission should be increased from five to seven years.

These proposals deal with the public servants in governance but leave the political heads, the responsible ministers in Cabinet, untouched – where the strongest motive exists to employ partisan political bias in governance. Action to avoid corruption in governance must be undertaken in a comprehensive way with the Constitution considered as a whole.

The opposition leader found major gaps in governance structure and, after prescribing a remedy for one, the learned doctor nodded. He missed seeing the bigger picture with corruption elsewhere and to initiate action there.

The run-with-it practice by a minister of finance was the greatest act of corruption in governance, carried out under Dr Phillips’ nose at the highest point for Cabinet responsibility – undermining the election process islandwide to ensure victory by partisan political bias in the distribution of the nation’s resources – perpetrated without even a squeak from Parliament in protest.

Didn’t Dr Phillips see this rape of democracy when in Cabinet, or were his eyes closed during a slumber, and now open when in Opposition? The Bible speaks about that at Matthew 7.

The agencies of government (recently revised) to deal with the corruption operate mainly post factum to avoid unnecessary or excessive interference with the free flow of government business, when what is needed is an overhaul of the entire structure for governance to prevent the possibility for misconduct in office and to introduce an effective system of accountability for conduct where decisions are made for the management and distribution of the nation’s resources.

TOO MUCH GOVERNMENT

With 14 local governments and six commissions of Parliament as ombudsman, 191 active public bodies, executive agencies and innumerable consultants, all to partake with central government and its 16 ministers and six ministers of state in managing a country of less than three million people, relief from poverty for many and the demand for peace and security for all remain unsatisfied – with corruption as a factor retarding progress. The question must be asked whether the country is overgoverned while leaving a gateway for corruption.

When both political parties recognised shortcomings in the Constitution that needed to be addressed, the Michael Manley Government in 1977 amended the Constitution to permit greater flexibility in the composition of the Cabinet; followed by the Edward Seaga Government in 1986 for Cabinet ministers in the Senate, for the first time, up to four – the maximum allowed by the Constitution at that time.

These changes were made by a simple majority vote in Parliament. Dr Phillips, in 2018, missed the opportunity to go further on his odyssey for clean governance by latching on to those earlier decisions for Cabinet ministers in the Senate.

To complete the movement for change in the composition of the Cabinet, I repeat, with all due modesty, an updated extract of what I wrote in 2014 for changes to the Constitution to deal with corruption. Letter of the Day for Gleaner, April 2, 2013: ‘Don’t make MPs ministers’, ended, “Parliament needs to be empowered as an instrument of checking and balancing the power of the Cabinet.”

The Cabinet is the principal instrument of policy, charged with the general direction and control of the Government, and is collectively responsible therefore to Parliament [Section 69].

The present practice where the majority of Cabinet ministers are appointed from the House of Representatives creates a conflict in responsibility for governance. The Cabinet, where decisions are made for the planning and the distribution of the nation’s resources, accounts to itself in the chamber of Parliament where the majority sit as elected representatives – collectively responsible to themselves for their own conduct. The mingling of executive functions with legislative authority is a manger of confusion and mismanagement where corruption feeds.

Any further altering of the Constitution must be to reduce the opportunities for corruption by a scheme whereby appointments to the Cabinet are made from among persons with the requisite qualification, skill and experience in the area of the particular portfolio responsibility assigned to them, and who are appointed from the Senate and not from the elected House.

This new approach will debunk the notion from the British colonial past where the nominated Senate is the Upper House, imitating the House of Lords in the UK, serving as a review chamber for Parliament. The contrived elitism smudges the appearance and belittles the authority of the people’s representatives in a democracy.

To make better use of the Senate, the policies and plans for governance, crafted by the Cabinet, are presented at that chamber for review with the opposition nominees to screen against corruption. Thereafter, the decisions from the Senate are sent to the House of Representatives for approval or to be sent back with recommendations, without the members of the House having a say in handing out resources.

The distribution of the nation’s resources will be carried out by public officials looking over their shoulder when on a frolic of their own, knowing that they also are watched and no MP can help them – exactly what Dr Phillips wants to stamp out.

This change will require two small amendments to the Constitution that can be made by simple majority vote in Parliament – delete the provision at Section 70(1) for the selection of ministers from among the two Houses and delete the provision at Section 69(3) for the limit of four for Cabinet ministers in Senate.

These changes would free Parliament for a bicameral check on the Cabinet when both arms of Government, the executive and the legislature, function together but do not mix.

Governments everywhere are bothered by allegations of corruption and will lose the confidence of the public when they do not deal with the problem in imaginative ways

Frank Phipps, QC, is an attorney-at-law. Email feedback to columns@gleanerjm.com.