Ken Jones, Contributor
TWO ARTICLES in last Sunday's Gleaner appear to draw the conclusion that the Jamaican people's right to a by-election for parliamentary representation is entirely in the unpredictable hands of the Prime Minister, whoever he or she might be. The suggestion is that we have no say in this matter or that we have sheepishly surrendered our entitlement to a single individual.
In either case, we are cast in the role of a pitiable people who aggressively demand their rights to dancehall entertainment, but are like underlings when the political freedoms of the country are at stake.
I refuse to accept the notion that in this matter the Prime Minister is a law unto himself, unshackled by legal or moral compulsion and able to do as he pleases with the relatively brief authority entrusted to him. I'd rather take my cue from the Constitution, which says that the Prime Minister is head of the Cabinet, which although being the principal instrument of policy, is answerable to Parliament, meaning the House of Representatives and the Senate.
Under Section 48 (1) of the Constitution Parliament has power to "...make laws for the peace, order and good government of Jamaica." And it is cause for deep concern that in 41 years of Independence our Parliament has been unwilling or unable to make by-elections a timely event in the system of government. Section 65 of the Constitution foolishly gives to the Prime Minister power to set a date of his own choosing for a general election. However, I cannot find the part that is supposed to give him constitutional authority over the filling of vacancies in the House of Representatives.
In fact, Section 45 (2) states: "Whenever the seat of any member of the House of Representatives becomes vacant the vacancy shall be filled by election in the manner provided by or under any law for the time being in force in Jamaica." This is supposed to facilitate the filling of the seat; so if there is any flaw in the law that allows a Prime Minister to frustrate this legitimate right of the people then it should be challenged by the Opposition and by the people of Jamaica.
THE JAMAICAN CONSTITUTION
The Jamaican Constitution provides that Jamaicans shall have a system of government in which the people are represented by parliamentarians on the basis of one elected from each of the constituencies into which the island is divided. Section 66 (2) and Section 67 (1) make this clear. Election to these positions are conducted under the Representation of the People Law which, according to the Constitution, (Section 38 (a); shall "contain provisions designed to ensure that so far as is practicable any person qualified to vote...shall have a reasonable opportunity of so voting."
The whole objective of voting is for the people to decide who will represent them and I contend that any wilful denial or delay of this process must be against the spirit and intent of the Constitution. This present administration is notorious for delaying the holding of by-elections and in so doing has blatantly discriminated against Jamaicans in certain constituencies. This, to me, is in defiance of Section 24 (2) of the Constitution, which states: "...no person shall be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of the functions of any public office or any public authority."
Here, 'discriminatory' is defined as "...affording different treatment to different persons...whereby persons of one such description are...accorded privileges or advantages which are not accorded to persons of another such description..."
In June 1996 the people of South Central St. Catherine were without a voice in Parliament. This lack of constitutional representation was allowed to continue for some 18 months, allegedly at the whim of the Prime Minister. Between 2001 and 2002 the same sort of neglect, benign or otherwise, was meted out to the citizens of North West St. James; and so suffered those persons in North Eastern St. Ann whose suffrage was unreasonably held in suspense.
They suffered discrimination, because for a considerable time they were deliberately denied the Constitutional right to political representation, which is accorded to other Jamaicans living elsewhere in the island. And the perpetrators of this wickedness got away with it because no concerted effort was ever made to correct or punish them. In this matter, as in many others, the Jamaican people have behaved like underlings. It should be written in concrete that a citizen subject to taxation and willing and able to vote, must not be deprived of the right to representation unless there are overwhelming causes, such as civil disturbance, acts of God or attacks by enemies of the state. It cannot be proper for a Prime Minister to have power to interfere with this right, simply because he might find it personally or politically convenient to do so.
LOOPHOLES
It puzzles me how self-respecting citizens can willingly concede to any individual the absolute power to decide if and when a constituency might have the right to representation in Parliament. This is not good governance; and a Prime Minister, if he means the people well, should never look for loopholes that may allow him to take advantage of the people. The present occupant of the Office has on more than one occasion taken an oath to see to "...the good management of the public affairs of Jamaica." And to emphasise this, he has himself amended that pledge to say that he will well and truly serve, not the Queen but the people of Jamaica; and in addition "...will do right to all manner of people after the laws and usages of Jamaica without fear or favour, affection or ill-will. So help me God."
So, with all the Constitutional implications as well as the Prime Minister's sacred oath to uphold the integrity of representative democracy, I do wonder why so many are so pessimistic about the possibility of having a free, fair and timely by-election should the need arise. Perhaps it is because of the stubborn adherence to the old political culture that puts partisan considerations above the interests of the people. For instance, when asked about Bruce Golding's chances of getting in the House via a by-election, Dr. D.K. Duncan remarked: "We have seen in the past where constituencies were left for a long time without representatives in Parliament. I am not sure if the Government would be in much of a hurry to accommodate a Bruce Golding."
Dr. Duncan's correct observation reveals the destructive thinking that pervades our politics. It shows that the uppermost thought is not about the right of the people to decide who should represent them, but about Mr. Golding's future and about the stratagems of a ruling party wishing to prolong its stay as Government.
This same backwardness in the conduct of our public business was openly demonstrated by the Minister of Finance in his now infamous confession of wild and damaging expenditures.
The people of Jamaica, having so often allowed these things to go unchallenged, unpunished and unchanged may well be identified with the Shakespearean observation: The fault is not in our stars, but in ourselves, that we are underlings.
Ken Jones, General Secretary of the Farquharson Institute of Public Affairs, has been a journalist since 1947.
