Election day watch

All the People’s National Party, PNP insiders with whom I have spoken have said if the PNP is going to the polls this year, it will want to go by the latest, the 15th December, 2015. If that is still the thinking, Sunday the 15th day of November, 2015 is a crucial day for all to look to. These are the reasons I believe this day is so crucial.

Countries are run by laws. Jamaica is no different.

The announcement of election date is left to the prerogative of the Prime Minister. That date of announcement has to be within a constitutional term of five years or within a one year extended period if there is a war or natural disaster. The moment the announcement is made, the provisions under the Representation of the People Act, ROPA, kick in.

This means that a Prime Minister has little or no control after making an Election Day announcement. Prime Ministers usually announce the dates for nomination and election at the time of making the announcement. However the calculation of these dates is fixed by law.

ROPA stipulates that nomination day must be at least 5 clear days after the date of announcement – see section 21(1A) of ROPA.

In computing clear days, the day on which the period begins and the day on which the period ends are not included.  The said statute also says nomination day cannot fall on a Sunday or on a public holiday.

Let us see how this would work by way of an example – if the Prime Minister makes an announcement on Sunday the 15th day of November 2015, nomination day must be at the earliest Saturday, the 21st day of November 2015. This is because the announcement day of Sunday, the 15th day of November, 2015 is not included so one begins counting on Monday, the 16th November, 2015.  Friday the 20th November, 2015 would be five days but remember that the day on which the period ends, is excluded. Therefore we need to find a day after Friday, the 20th November. Saturday is not a statutory exempt day as it is not a Sunday neither is it a public holiday. Therefore nomination day could be on Saturday the 21stNovember, 2015.

However I do not recall Jamaica ever having a nomination day on a Saturday. People generally tune out of hard news and use the time to recuperate after a long week. Since nomination day comes with great fanfare, it may be better suited for the first Monday after the 21st November – Monday, the 23rd November, 2015.

The said statute also provides that nomination day has to be at most 7 days after the date on which the election announcement is published in the gazette. Gazetting is a means of making something become law. This time period after publication in the gazette is important as it prevents a Prime Minister from waiting for an extended period of time after announcement for nomination – it caps the period.

The other crucial time period given in the statute is the period between nomination and Election Day. The law requires that there be no less than 16 and no more than 23 days between nomination and Election Day – see section 21A of ROPA.

Using the example above, if nomination day is 23rd November, 2015 the earliest election day can be held is Wednesday, the 9th December, 2015. The latest election day can be is Wednesday, the 16th December, 2015.

I have been told that the winter tourist season begins on the 15th December. With that consideration in mind, Election Day may be closer to 9th December, 2015.

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A struggling democracy

The democracy struggles if it is not allowed to breathe. It suffocates if the quest for renewal is stunted. Renewal of the democracy occurs when elected and selected representatives understand their roles and act honorably when there are foul ups under their watch.

An example of acting honorably in the democracy of which we are a part is a simple act of resignation. Resignation is important. It is a recognition by the elected individual that he has a duty to the electorate and if things fail under his watch, there is interpreted to be a concomitant failure on the part of the elected official sufficient to necessitate resignation.

Resignation is important as well as it serves as a marker to the next person assuming office that if he cannot reach a particular high water mark then he too must make way for someone who can, someone who must – if there is to be change and betterment for all.

Jamaica appears to struggle with this concept of renewal and accountability. Watching the debate unravel in social media following the non-resignation of Dr. Fenton Ferguson, Minister of Health following the #DeadBabiesScandal has left me concerned again about Jamaica.

Here we have a Minister under whose watch one of the most damning audits on the health care service in Jamaica- is ordered by him and kept from the public by him. The Prime Minister to whom the concept of accountability is alien, foreign, and strange – reassigns Minister Ferguson to another ministry! He remains a member of the cabinet.

Some seemingly young people on social media have asked in the wake of Dr. Ferguson’s reassignment whether people are on a witch hunt!!!! These young people in whose hands the future of the country rests do not appear to grasp one of the cornerstone principles of any democracy – accountability. For them it is a JLP witch hunt and the PNP has fallen victim.

In some ways they perhaps should not be blamed for their politically immature and shallow views. On the other hand the expectation is that having access to social media and watching healthy democracies thrive, renew and refresh themselves, they would understand that even if a Minister does not know of an act, should it mean that he is not individually responsible for any failing as a result.

We should accept it and practice it. Perhaps it can and will take us to a new place in Jamaica’s infantile and struggling political democracy.

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That crucial one vote!

The stakes are high.

The historical significance of Jamaica joining the Caribbean Court of Justice, CCJ, as its final court of appeal cannot be overstated. 180 years of Jamaica taking its cases to the Privy Council in England could stop under the leadership of one political party– a move headed by Jamaica’s present Justice Minister, Mark Golding.

No doubt the People’s National Party administration, PNP, recognizes that this moment will be written in the annals of history with some detail and it wants to be party on which history will write favorably.

There is no great urgency for Jamaica to leave the Privy Council and join the CCJ, as contrary to parliamentary submissions – Jamaicans are not now being denied access to justice because the Privy Council is our final court of appeal.

In fact there are thousands upon thousands of cases waiting to be tried either in Magistrates Courts or the Supreme Court here in Jamaica at the moment. Some of those cases have been delayed for shamefully long and unpardonable years. People’s lives have been stopped waiting for simple matters to be disposed of, let alone appealed! It can be objectively argued that the greatest denial of access to justice for Jamaicans is taking place right here in Jamaica.

The stakes are apparently so high that the administration is seemingly so caught up in the potential historical value of acceding to the CCJ that it has lost sight of what it needs to do in the present to make the vote a reality.

Why do I say this?

For the bills bringing the CCJ into being to be passed, at least one Opposition Senator must feel sufficiently moved by persuasive arguments or by a bite of conscience to vote ‘yea’ with the 13 Government Senators. That Opposition member cannot merely abstain. Abstention in our parliament is a powerful message but in this instance it would not be powerful enough to get the CCJ Bills passed. Nothing short of an outright vote is needed. That means the Government Senators must get at least one Opposition Senator to cooperate with them.

Cooperation should mean that the Government Senators would present highly persuasive arguments so that the choice is so clear that at least one right thinking member of the Opposition could vote ‘yes’. Cooperation would mean allowing the Opposition Senators to make submissions in the CCJ debate, without any angry objection, coming from any member of the government. If there is disagreement with the presentation of any Opposition Senator, cooperation should mean awaiting the rebuttal to delicately point out the difference of views.

But this is not what has happened in the Senate.

What the Government Senators led by Mark Golding and AJ Nicholson have done is to allow the small things to override the large end game. What was so offensive about Opposition Senator Marlene Malahoo Forte’s statement about the process making a “mockery of the constitution” such that Senator Golding requested an immediate withdrawal of her statement?

That statement or that coinage is not Marlene Malahoo-Forte’s. If one reads the Privy Council decision which challenged the manner in which the 3 Bills were brought in 1998, one will see at paragraph 12 where the Privy Council says:

“Adopting the language of Viscount Simonds …Dr Barnett said it would make                           a mockery of the constitution if the safeguards entrenched to ensure the                         integrity of the legal process in Jamaica could be circumvented by creating a                           superior court enjoying no such constitutional protection…” (my emphasis)

That submission was accepted by the Privy Council in that it ruled that Dr. Barnett was right and the procedure the then government used was wrong. At the time Dr. Barnett made that submission to the Privy Council, no one clobbered him about it. The lawyers for the government responded by submitting in reply that he was wrong.

So it should have been in the Senate. Disagree strongly with Senator Malahoo-Forte’s statement if you must but why ask for a withdrawal of her statement?

That moment commenced the spiraling of the Senate out of control. There was the threat of sanction by the Senate President, Floyd Morris, followed by Senator Malahoo-Forte’s refusal to withdraw the statement – then a sanction, then a change of heart about the sanction and then a carrying over of Thursday’s events into Friday 23rd October, 2015.

What we now have is a Senate that has actively participated into bringing itself into disrepute and the stalling of the debate on the CCJ Bills.

More anon

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DNA Evidence Bill and Jamaica

Minister of National Security in Jamaica, Peter Bunting tabled the long awaited DNA Evidence Bill in the Lower House of Parliament in April 2015. The clamours for the DNA Bill had been loud especially since Jamaica’s murder rate has fluctuated at an unhealthy high for at least the last 10 years.

The most recent data out of the police force for 2015 show that there has been an increase in murders of 65 between January to April 2015 and the corresponding period in 2014. In exact numbers, 363 people were killed over the January to April 2014 period. 428 people were killed over the similar period of 2015 – an increase of approximately 18 percent.

– 2014 Jan – April = 363 murders

– 2015 Jan – April = 428 murders

The rate of conviction in Jamaica for almost all crimes, is pitifully low. Additionally, police are often coming up with grand theories about crimes but they very rarely catch the culprits behind the crimes. No one knows if there are serial killers in Jamaica. No one knows if the petty traffic offender is at his core a merciless killer. We just don’t know.

The fear on the part of eyewitnesses to a crime in Jamaica is high. Murderers are known to have made eyewitnesses the target of the most barbaric acts of savagery. The system needs help if it going to rescue itself from savages.

I believe our investigative processes can be assisted by the introduction of and the proper use of DNA.

Perhaps one of the areas in the newly tabled DNA Evidence Bill around which there has been expressions of discontent is the clause which gives the police (detention officer) power to use ‘reasonable force’ to restrain a suspect and obtain a non-intimate DNA sample.

Clause 15(1) of the Bill recites it thus:

15 – (1) In order to take a sample from any person the following shall apply  –

(a) to take a non-intimate sample, informed consent may be given but if informed consent is not given or is subsequently withdrawn, then reasonable force may be used to obtain the non-intimate sample;

I have heard a few members of the defence bar raising concerns that any unauthorized touching of an individual using little or even reasonable force constitutes trespass to the person – itself a criminal act.

The law on battery defines battery as the application of unlawful physical force against the person of the victim. However in this instance where the intended use of reasonable force is lawful – being a provision in a statute, I do not believe the argument of trespass or battery can stand unless it can be demonstrated that the force used was unreasonable.

Under the bill, all suspects in particular offences must give a DNA sample to an appropriate person. This means, it is not for all offences wherein someone is a suspect that the police have legal authority to extract a DNA sample from that individual.

The only persons from whom a DNA sample can lawfully be taken are persons who are ‘suspected persons’ in an offence punishable by a term of imprisonment.

‘Suspected person’ means one of three things. It means:

(a) someone who has been arrested on suspicion of being involved in a relevant offence;

(b) someone who is charged with a relevant offence; or

(c) someone who has been summoned to appear before a court for a relevant offence.


The Bill contemplates and specifies that a DNA sample can only be taken from a suspected person under the following circumstances:

(a) with their consent;

(b) without their consent using reasonable force in the presence of a Justice of the Peace; or

(c) without their consent but with a court order.

It must be noted that this consent contemplated by the bill, must be given in writing and it must be given by an adult.

More anon

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A family affair

Shernet Haughton as Mayor of the Lucea and Councilor for the Green Island Division had at her disposal sums from the Local Government Ministry and the Parochial Revenue Road Programme amounting to $29M for the award of contracts in the Hanover parish council. (These funds covered the period March 2012 and July 2012 to December 2013.)

She, according to the Office of the Contractor General recommended 11 of her family members and affiliates for 22 contracts in Hanover for various works.

Contracts were awarded to her spouse, daughter, son, brother, sister, niece, sister in law, brother in law as well as the contractor who worked on her house. The total sums paid to these family members by the Hanover parish council was a combined total of approximately $3.7M – a total of 12% of the money available to her.

The practice in the parish council has been that the Councilor (in this case the Mayor being the Councilor) recommends the contractor to the Secretary Manager and as a matter of course there is no investigation as to the bona fides of this contractor. So a recommendation is tantamount to an award.

The administrative head of the parish council, the Secretary Manager says she did not know that any of the persons recommended by Shernet Haughton was a family member of Miss Haughton.

Nepotism is defined as the bestowal of official favors on one’s relatives, especially in hiring. Nepotism is the crucible for corruption. It is conduct that is to be frowned upon and should receive the highest public condemnation and disapproval. The shame that is to be poured on someone who engages in nepotism should be greater than that brought by the shame of a criminal sanction.

Nepotism is the friend of conflict of interest. Conflict of interest is proscribed by the Government of Jamaica Handbook of Public Sector Procurement Procedures. That book states that a conflict of interest will arise when the individual has a direct or indirect relationship with a contractor which may affect or might reasonably be deemed by others to affect impartiality on any matters related to his duties.

What Shernet Haughton did in recommending her family and affiliates for 12% of her allotted parish council money was a conflict of interest. She recommended family members and affiliates without declaring to the administrative branch of the parish council that interest.

I am shocked that there appears to be no law in Jamaica – neither statute or common law that can criminalize a conduct that is so offensive to good governance, so offensive to the taste of right thinking people in a developing democracy, so offensive to integrity of public offensive … just so offensive full stop.

You see it is nepotism that gives rise to the thinking that it is who you know that should get the jobs available. It excludes the capable and distant majority in favour of the incapable and close minority.

Where criminal sanction does not exist, the public clamor for decency in public office is to be at its loudest. Miss Haughton might not be prevailed upon to resign her seat but she should be prevailed upon to begin restoring decency and accountability in public office.

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The second coming and gay rights

Approximately 35 independent nations of the Americas are to meet in Panama between April 10 and 11, 2015 for the summit of the Americas – a coming together based on the concepts of democracy and free trade. Cuba will be present for the first time – a history making moment.

America’s 44th President and Leader of the free world, Barack Obama is scheduled to be in Panama for the summit. He makes a three hour or so stop in Jamaica en route to Panama. This is only the second time since independence in 1962 that a sitting President of the United States will visit Jamaica. The late, Ronald Reagan came in 1982 when Edward Seaga was Prime Minister.

Political vulgarity and contempt for the people of Jamaica is on display. Several persons have reportedly seen and photographed road patching exercises taking place at night. Obama’s official caravan cannot fall into a pothole. The citizens must however suffer damage to front end and great inconvenience of road patching by day if money is found to do the work.

No politician resists making a promise that cannot be kept. Leaders especially during the period leading up to an election are wont to spew chocolate promises to a gullible electorate. These promises are often without much thought as to whether the promise makes sense, whether it can be fulfilled and whether there is any intention of fulfilling it.

In the debates leading up to the 2011 general elections, Portia Simpson Miller in her bid to appease the gay community, promised that she would bring the provisions under the Offences Against the Person Act which criminalize sex between consenting adults of the same sex to the parliament for a conscience vote.

Speaking in the debates she said – “our administration believes in protecting the human rights of all Jamaica. No one should be discriminated against because of their sexual orientation. Government should provide the protection and I think we should have a look at buggery law and that Members of Parliament should be given the opportunity to vote with their conscience on consultation with their constituents…”

No timeline was given for this promise to be kept. But the Jamaica Labour Party, JLP, having demonstrated that no government has any inherent right to two terms, they having been booted from office after one term, there was expectation – at least on my part – that action would be taken by Prime Minister Simpson Miller to bring the offensive statute to parliament for a conscience vote – in this term in office.

Note – there was no promise for a change in the law but for the law to be brought to parliament for a discussion and a conscience vote. With one year to go before general elections are constitutionally due, no move has been made to get to the bottom of the buggery matter. There seems to be some acceptance that since gays are not being killed or beaten daily then there should be comfort in leaving the matter where it is at.

The Prime Minister demonstrated her intention not to move on her promise when confronted by gay rights activist in New York.

This was her response to the heckling – “nobody ever hear the government of Jamaica beating up gays – not one. SO, let me tell you something, you want to disturb you can disturb but this woman come here with the blood of Nanny of the Maroon, the spirit of Marcus Mosiah Garvey and this woman is not afraid of no man nowhere everywhere and I will speak the truth everywhere”.

She refused to accept their right to speak and to lobby freely for decriminalization of buggery in Jamaica however offensive their manner by resorting to her old tirade of telling them she is not afraid of any of them – no man, no woman, no where – she is prepared to fight and she is prepared to disregard the right of those who also wish to fight.

I hope for the sake of minorities the world over that the gay rights activists refuse to back down. I hope they picket every and any venue in which the Prime Minister or any other person who has made an unfulfilled promise to the electorate speaks. I hope they are not prepared to resile from their positions especially since the electorate in Jamaica has long lost its fire.

It takes great courage keeping one’s mouth shut especially when the stakes are high.

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Constitution vs skulduggery

Edward Seaga, the sole surviving constitutional crafter  in his usual candor declares that Andrew Holness, Leader of the Opposition should go to the Privy Council for a proper ruling on the undated resignation letters debacle.

He finds backbone for his assertion (which is without much company now) in his view that the framers of the constitution contemplated that the Senate groups would vote en bloc and therefore provide a fetter for government power when necessary. He says further that no independent thought is contemplated by any single senator. All thoughts and votes especially should be in line with the party position – forget freedom of conscience.

Incidentally these arguments are not new. They were put to the Court of Appeal by Mrs. Gibson-Henlin, one of the lawyers for Andrew Holness.  The court summarizes her submissions thus – “Mrs Gibson-Henlin contended that appointments to the senate are based on partisan representation. In this context, it is artificial to speak of the independence of the senate in a vacuum. This was so because a strong cohesive opposition is required in the senate for veto purposes”.

Her submission was not left unanswered. The Honourable Mr. Justice Panton, President of the Court of Appeal answers the submissions in this way – “it may be in the minds of some persons a good political argument but it does not help in determining the validity of the letters in questions”.

The Senate, Justice Panton says “is a very important part of the machinery in this country. The constitution makes it so. Good governance requires mature deliberation on legislative measures. Each senator is expected to give conscientious thought to every topic that comes before the senate for discussion and vote. Every member of the senate takes an oath to be faithful and bear true allegiance to Jamaica, to uphold and defend the constitution and the laws of the Jamaica and to conscientiously and impartially discharge his or her responsibilities to the people of Jamaica”.

The President declares further “the responsibilities are to the people of Jamaica not to an individual not to a club group or section of Jamaica. In view of that oath, it would be against the spirit of the constitution if one were to bind one’s conscience otherwise”.

Whatever the political machinations of legislators happen to be, they have a duty to the people they serve to ensure that they draft statute that when interpreted by the judiciary will have the meaning they intend. Their words must therefore be clear and precise so as to prevent ambiguity or confusion in interpretation. Nothing in any of the sections relevant to this discourse remotely allows for the interpretation Mr. Seaga has placed on the constitution and the role of the senate. As the learned President of the Court of Appeal says “that may be a fancy political argument but nothing more”.

That Mr. Seaga recalls that the intent of the legislators as communicated to the drafters was to have senators vote en bloc is not discernible from the clear wording of the constitution. Additionally I would not now place great reliance on Mr. Seaga’s memory as he has encouraged Mr. Holness to take the matter to the Privy Council when the said constitution provides that in matters of this nature, the decision of the Court of Appeal is final.

I have questioned as well whether if that is the understanding of leaders as to how the senate should operate then why would there be a need for any undated resignation letter? The various leaders could simply strongly impart that message to the people they select for recommendation to the Governor General.

Insecurity of the mind whether brought on by real or imagined or feared events or personalities can cause all kinds of schemes to be created or used. The creation and/or the need for the creation and use of undated letters of resignation by Andrew Holness is/are the product of insecurity of person. They were meant to keep all senators in terror and to make them excessively submissive to their nominator even if made no sense to do so.

These decisions by the constitutional court and the court of appeal should be hailed as a triumph of the constitution over political skulduggery.

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