Attorney Frank Phipps points to political reality in ‘Dudus’ case

(Jamaica Observer) Senior attorney-at-law Frank Phipps is arguing for Jamaica’s system of government to change, so that any mistake made by one division of state leadership would not directly affect the flow and function of other arms.

The noted Queen’s Counsel, in addressing reporters and editors at the weekly Observer Monday Exchange, said that Jamaica could pay dearly if it turned out that the attorney general erred in refusing to send the matter of the extradition request for West Kingston businessman Christopher ‘Dudus’ Coke to the local courts for a determination to be made.

Coke is wanted by US authorities to respond to drug trafficking allegations.

Separation of powers, Phipps argued before an attentive jury of editors and reporters at the newspaper’s Beechwood Avenue headquarters, represented the logical way forward.

“If the minister is wrong, politically wrong, in refusing to send the case to the courts, the consequences may very well be that the government could fall,” Phipps said. “That’s a political reality.”

He added: “I am going back to another pet peeve of mine. If the executive, as distinct from the entire government arrangement makes a mistake, a serious mistake, and you had separation of powers, where the legislature would not be affected by the mistake of the executive, that’s a different situation.

“But under our system of governance where the executive and the legislature are so intertwined, that the mistake of the executive can cause the demise of the elected representatives of the people, which is not right. You need a separation of powers wherein if the minister had made a mistake, then the government may fall, but it cannot affect where the people have elected their representatives … it should not,” Phipps said.

Phipps, a former Jamaica Labour Party (JLP) card-carrying member who ran twice, unsuccessfully, on JLP election tickets, said that a referendum, whereby the Jamaican people would vote on the issue, would not be necessary if the right Parliamentary moves were made.

“The present prime minister, when he was somewhere else, had promised that. I know that from in the early 1990s I have been writing in the newspapers that you can achieve a proper separation of powers under the present constitution without the necessity for a referendum,” he said.

“In other words, it can be done by increasing the number of ministers in the Senate and saying that no elected member of parliament should be a minister of government. “The advantage of that is if all the ministers are in the Senate, you can’t have these big Cabinet membership, you can only have 13. You know how much you would save if you had a serious, competent man running a ministry with a proper civil service? A lot of these statutory bodies and quasi-government organisations could be eliminated, with only 13 ministries,” Phipps argued.

“If you were to save all that money you could afford to pay the MP the same salary that you pay the minister, so the MP has nothing to lose financially and his responsibility would be to his people whom he represents,” he said.

“The only thing is that the minister of finance must be in the House to introduce money bills, but then why can’t the prime minister do that? Edward Seaga was minister of finance while he was prime minister,” Phipps said.

Only one political party, the National Democratic Movement (NDM), which was headed by Golding from 1995, when he left the JLP, to 2002 has publicly mooted separation of powers, which resembles the United States presidential and congressional model, as the best way forward, politically.

Even after Golding left the NDM and journeyed back to the JLP, separation of powers was still firmly planted in his back pocket.

Addressing JLP supporters in his first speech after replacing Seaga as JLP leader on February 20, 2005, Golding said that separation of the executive from the legislature could be done in two ways.

One was the separation of power to balance between government and Parliament and leave the determination of the effectiveness of that separation to the people; and the other to reconfigure the existing Westminster model, limiting the power of the executive and entrenching that in the constitution.

“We have to ensure that no minister can be allowed to run with it,” Golding said then in reference to then minister of finance Dr Omar Davies’ confession that he authorised the use of government funds on projects to secure an election victory.

The People’s National Party has not publicly supported separation of powers, although one of its stalwarts, Paul Burke, had called for the measure within his own party in 2005, which would see the office of party president being separate from that of prime minister or opposition leader.

On Monday, Phipps said that the House of Representatives would have a firmer hand in examining what goes on with the executive, if separation of powers was to become a reality.

“Instead of the Senate reviewing the work that’s done by the House (of Representatives), which is wrong, it’s the people’s representative in Parliament who should review the work of the executive as happens in the United States.

“I cannot see why there is no draft amendments to be able to say let us discuss this publicly,” Phipps said.