March 23, 2025
Appointment of senators should be revisited
In my recent article on constitutional reform, I pointed to the security mechanism which the framers of our constitution devised to protect it from unilateral alteration. This is in the requirement that any significant change to the constitution requires a two-thirds majority in both Houses of Parliament, the composition of the Senate fixed in such a way that no matter how overwhelming a majority the Government enjoys in the House of Representative, its numbers in the Senate would fall short of a two-thirds majority. It is a critical restraint on the power of the Government and the possibility of its abuse.
But the Government’s numbers in the Senate fall just one short of that two-thirds majority. It is, in my view, too precarious of a buffer on which this important guardrail rests.
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If, as I pointed out, the purpose is to constrain both the Government and the Opposition to arrive at a consensus before major changes can be made to the constitution, it is dangerous to leave that crucial power in the hands of any one of the eight Opposition senators.
The framers must have assumed that in voting on a constitutional amendment, the eight Opposition senators would be of one mind because if one breaks away, there goes the constitutional safeguard. But it can happen. Let’s say an Opposition senator has a falling out with his or her party and decides to be spiteful, assuring the Government that it can count on that crucial vote on a constitutional amendment Bill. That, fortunately, has never occurred but because you have never suffered a break-in is hardly an inducement to sleep with your doors open.
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There was an occasion in 1963 when two Government senators — Sydney Phillips and Henry Tucker, both lawyers — confronted with a Government Bill that they were unwilling to support, abstained and voluntarily tendered their resignations rather than going rogue and voting against the Government. But that principled stance cannot be guaranteed.
The framers of the constitution maintained the pre-independence arrangement whereby its precursor, the Legislative Council, was expected to be a “chamber of review”. This concept was rooted in the self-government arrangement of 1957 when the colonial authorities were not satisfied that the elected representatives would necessarily have the intellectual capacity to properly handle legislation. To ensure that they would not be manipulated but would be free to act independently, the constitution made no provision for their appointment to be revoked on the recommendation of the premier or leader of the Opposition who nominated them. The Senate continues to exist on this basis.
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I feel strongly that the constitution should be amended to provide that the prime minister and the leader of the Opposition can secure the revocation of the appointment of senators whom they had nominated. Some argue that this would render them beholden to the prime minister or the leader of the Opposition. But is this not what the framers intended when they built in the two-thirds safeguard, expecting that Opposition members would act as a group rather than as individuals? It could not have been their intention that this important safeguard rest on the inclination or motive of any one of the eight members.
The existing arrangement puts pressure on the leader of the Opposition, in nominating persons to the Senate, to select not necessarily the best talent but persons who he or she is confident would never bolt and put the security of the constitution at risk.
The recent Constitutional Reform Committee considered the matter but reported that no consensus could be reached, suggesting that contrasting views were put forward. The matter should be revisited. Those, for example, who advocate for provisions under which Members of Parliament can be recalled would have difficulty in justifying why senators should not also be subject to recall. The most compelling reason, however, is that the security of our constitution should not rest on such a vulnerable arrangement.
Bruce Golding served as Jamaica’s eighth prime minister from September 2007 to October 2011.
