Stephen Vasciannie
NATURALLY, the big prime ministerial race has sparked considerable interest from all angles. One question raised in public - whether a particular candidate is guilty of spousal infidelity - is hugely beyond the edge of the cliff, and need not detain us any further. Other questions, however, bear more careful consideration. Some of these questions are legal in nature, though, of course, in some instances the legal issues are wrapped in political clothing. Against this background, it may be useful to consider some of the constitutional rules that govern the appointment of the Jamaican Prime Minister, and related matters.
The appointment of the Prime Minister is governed mainly by section 70 of the Constitution. Section 70(1) places the matter in the hands of the Governor-General, and stipulates that the Governor-General, "acting in his discretion, shall appoint the member of the House of Representatives who, in his judgment, is best able to command the confidence of a majority of that House".
SUBJECTIVITY
Noticeably, therefore, the Governor-General must identify the individual best able to command the confidence of the House of Representatives. This, of course, is inherently subjective; more than one person may command the confidence of a majority of the House, but whether one individual is 'best able' to do so will not always lend itself to a straightforward answer. Moreover, the matter is expressly left within the 'judgment' of the Governor-General as to who this best-able-commander-of confidence may be. Subjectivity is placed upon subjectivity.
On at least one occasion, 'Mutty' Perkins has suggested that the part of section 70 that places the selection of the Prime Minister in the "judgment" of the Governor-General pertains to Millard Johnson and Johnson's popularity as a black power advocate. I believe that argument is that, with Independence imminent, the authorities wanted to leave some discretionary power with the Governor-General, just in case an individual perceived as a threat to the Jamaican State came to command the majority support of the House.
This, I think, may be incorrect - at least as far as Johnson is concerned. The language concerning the judgment of the Governor-General is not unique to the Jamaican Constitution; nor does it take its origin from the Jamaican Constitution. This form of words is broadly in keeping with the appointment authority held by the Queen as regards British Prime Ministers, and it is useful in the sense that it clearly identifies whose subjective judgment is authoritative. Had the term 'in his judgment' not been included in the Constitution, we would probably now be having interminable arguments about how the Governor-General should go about exercising the discretion to appoint the Prime Minister.
DELEGATES
But where, then, do PNP delegates fit into the picture? As a matter of law, the vote by delegates of the PNP will provide a guide for members of the House of Representatives as to which member of that House should command their confidence. In theory, it is open to the members of the House on the Government side to disregard the vote of the delegates, and to declare that 'so and so' is best able to command their confidence (I am trying to be gender neutral in my analysis). In theory, too, it is conceivable for, say, 10 members of the PNP to join with 26 JLP members to declare the view that Mr. Golding should succeed Mr. Patterson.
But such theoretical postulates bear no relationship to reality. Suppose, for instance, that the PNP members of the House go against the wishes of the delegates, and write to the Governor-General that 'so and so' should be the Prime Minister. Suppose, too, that the Governor-General allows their letter to inform his judgment, and appoints that person to the post of Prime Minister. What would happen? Politically, there would be confusion within the PNP, and each of the members of the House that disregarded the will of the delegates would be vulnerable to all sorts of political challenges.
The 'Breakfast Club' has talked about this possibility, but, no doubt, they do this just for the delectation of theoreticians.
Stephen Vasciannie is a professor at the University
of the West Indies and a consultant in the Attorney-General's chambers.
