How Dr Phillips nodded on his journey for clean
Tuesday, September 11, 2018
DEMOCRACY is safe when political opposition is awake. Both national newspapers, on Sunday, August 26, 2018, published a well-written article by Opposition Leader Dr Peter Phillips condemning partisan political bias in the way the Public Service Commission (PSC) functions for governance and calling for change to clean up the system. The Jamaica Observer headlined Dr Phillips's call thus: Fixing governance for a better Jamaica. The Gleaner had it this way, Time for overhaul: boards, chairmen, advisers and more.
Dr Phillips, as a lone voice, pointed out that recent developments in the performance of Jamaica 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. The argument is directed at curing partisan political bias in the management of human resources in the central government, which comprises ministries, departments, and particular agencies that rest within the PSC. This is as a result of the fallout in the Energy Ministry, where the minister was forced out of office. Other organisations are now joining the call for change in governance, providing too little, too late.
I would respectfully submit, corruption from partisan political bias in the management of central government affairs goes further than the functions of the PSC. The disease lies deeper in the constitutional structure in which the Cabinet is allowed to function without effective accountability for its actions.
Dr Phillips proposes two changes to the existing provision for the PSC to ensure an independent body, insulated from partisan political bias, to be responsible for the appointment, promotion, termination and retirement of civil servants, and I add discipline.
First is the prime minister's recommendation for the governor general's actions after consultation with the leader of the Opposition, this should be by agreement between them, not after consultation. Second, the appointment of five years for a member of the commission should be increased to seven years, for the good reasons stated in the article. These proposals may bring an end to partisan political bias in the PSC, closing the gap identified by Dr Phillips in the management of human resources, but they leave untouched the devastating effect that corruption can have on governance elsewhere, due to partisan political bias.
Succeeding administrations have been looking through the wrong end of the telescope to find acts of misbehaviour in governance and to deal with their symptoms the best they can, one by one. In this way, they miss the big picture to discover the root from which the disease spreads in order to deal with the problem in a more comprehensive way. Dr Phillips found that there are major gaps in our governance structure and, after prescribing remedy for the management of human resources, the learned doctor nodded and missed the opportunity to propose action to close the other gaps in governance where corruption exists — forgetting that the outcry against corruption is often what causes governments worldwide to fall and leaders make their exit.
Dr Phillips recognised that his proposals for changes to the PSC will require amendments to the constitutional provisions that are entrenched at section 49. These amendments by the tortuous manner that section 49 demands are piecemeal to deal with problems as they arise, and peripatetic from one part of the constitution to another like a movable contraption. The constitution must be considered as a whole for effective remedy to close gaps in governance where corruption exists.
Allegations of corruption in Jamaica have been around for a long time and, despite imprisonment of three ministers of government for corruption in office, the allegations — real or imagined — are still heard loud and clear. The agencies of government (recently revised) to deal with the corruption, operate mainly post factum to avoid the risk of unnecessary or excessive interference with the free flow of government business.
Clearly, what is need to remove the temptation and reduce the possibility for misbehaviour in governance is the overhaul of the entire structure for governance to create a system that has effective accountability at the centre, where decisions are made for the policy and general direction of the Government. This is what should be considered before making another change to the constitution.
With 14 local governments and six commissions of Parliament, such 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 the persistent poverty of some and the demand for peace and security for all remain largely unsatisfied with corruption named as a main contributing factor — “Things fall apart if the centre cannot hold.”
The question must be asked whether the country is over-governed while leaving a gateway for corruption. Although Jamaica has done extraordinarily well to reach where we are from where we started, there still remains a major challenge to rid the country of the scourge of corruption that retards progress. In going forward, changes to the constitution for better governance must be addressed in a wholesome way and with urgency.
Long ago, in 1977, there was an imaginative and far-reaching decision by the Michael Manley Government for changes to the constitution to permit greater flexibility in the composition of the Cabinet. This was followed by the Edward Seaga Government in 1986 to introduce Cabinet ministers in the Senate, up to four — the maximum number allowed by the constitution for ministers at that time. These changes were passed by a simple majority vote in Parliament when both sides of the political divide recognised shortcomings in the constitution that needed to be addressed. The Opposition leader's proposal in 2018 for changes in the structure for governance creates the opportunity for Dr Phillips to latch onto the earlier decisions for Cabinet ministers in the Senate and increase the number from four to go further and faster on his odyssey for clean governance.
To complete the movement that started 41 years ago for ministers in the Senate, I repeat, with all due modesty, an updated extract of what I wrote in 2014 for changes to the constitution for a wider view of governance to deal with corruption.
Starting with the headline for letter to the editor in The Gleaner, April 2, 2013, 'Don't make MPs ministers', the letter 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 its members are collectively responsible therefore to Parliament [section 69]. This is where decisions are made for distribution of the nation's resources, and this is where the temptation for partisan political bias in the planning and execution of governmental functions will raise its head.
The present practice in which the majority of Cabinet ministers are appointed from the House of Representatives creates a conflict of interests in governance, when, as Minister of Cabinet, he accounts to himself in the chamber of Parliament where he sits as an elected Member to monitor his own conduct. The mingling of executive functions with legislative responsibility is a recipe for mismanagement with a temptation for partisan political bias in the distribution of the nation's resources — the supreme act of corruption in governance.
A corruption of conscience
A Cabinet appointed in that manner will function without accountability to a separate, independent and autonomous body of the people's representatives within the constitution. This will eventually end in what National Hero Norman Manley called a corruption of conscience, in which a sense of right and wrong is compromised.
It was painful to hear about the 'run wid it' ritual by a minister of government, telling party supporters how governmental policy was fashioned to ensure a return to office at an election. This is corruption carried out by partisan political bias — exactly what Dr Phillips seeks to clean up, but in a limited way.
Before undertaking any further altering of the constitution there needs to be a scheme whereby appointments to the Cabinet are made from among persons with the requisite qualification and experience in the area of the particular portfolio responsibility assigned to them without having constituency responsibility. It is critically important that the appointment of ministers should not be from among the elected Members of Parliament that creates problems of mismanagement in governance. In this new approach to governance it is necessary to debunk the notion from the British colonial past in which 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 belittles the authority of the people's representatives in a democracy.
To make better use of the Senate, Cabinet ministers should be appointed to the Senate uninfluenced by returns at the polls for elections to qualify for the appointment. The policies for governance will be crafted by the Cabinet and presented to that chamber for review with the Opposition nominees for screening against partisan political bias, and, thereafter, sent to the House of Representatives for approval without the members there touching or having physical control over the distribution of resources. Parliament is where both the executive and legislative arms of Government function together, but do not mix for accountability by the Cabinet.
Making the change
This new approach to governance will require two small amendments to the constitution that can be done by a simple majority vote in Parliament. One, to delete the provision at section 70(1) for the selection of ministers from among the members of the two houses. Two, to delete the provision at section 69(3) for the limit of four for Cabinet ministers selected from Senate. These changes would free up Parliament, ie the Senate and the House, to perform the role for a check on the Cabinet.
The constitution provides for Estimate of Expenditure of the nation's funds are to be laid before the House by the minister responsible for finance (sections 115 - 118). Section 115 is not entrenched and can be altered by a simple majority vote to allow for the estimates to be laid before the Senate for consideration; whereas, sections 116-118 — that deal with the expenditure of funds — are entrenched in the constitution for this function to remain with the elected House, as it should be, to secure the primacy of the people's representatives to authorise the expenditure of the nation's resources without themselves touching it.
An immediate benefit from the change will be the size of the Cabinet that will be limited to 13 members, the maximum amount the Government can appoint to the Senate plus one — the prime minister — as provided at section 69. A Cabinet of 13 capable ministers with the traditional civil service would go a far way to reduce the number of other public bodies required for administration. Money so saved could be used in other areas of the administration — where it is sorely needed — including to increase the pay for Members of Parliament so as to make their allowance no less than a minister's.
The most important benefit will undoubtedly be the improvement and the strengthening of efficiency in performance by public officials who no longer will be looking over their shoulder to please the MP. Temptation to misbehave from partisan political motives at both levels for the planning and the approval for distribution of funds to run the government would be reduced, and spurious allegations of corruption that require the Government wasting time and resources to pursue the phantom that guides irresponsible opposition would be eliminated.
The proposals are not made to cast aspersion or to belittle the abilities of the elected MPs. Instead, they will turn around the process to allow Members to give their undivided attention to the primary, solemn and supreme obligation to represent the people in a democracy, especially to control executive conduct that advance partisan political considerations in the management of the country's affairs.
Successive governments have always been bothered, and at times frustrated, by allegations of partisan political bias in governance and will lose the confidence of the public when they do not deal with corruption in imaginative ways to dispel the curse.
Frank Phipps, QC, is an attorney-at-law. Send comments to the Observer or firstname.lastname@example.org.