Lloyd Barnett | Retaining and reforming the Senate

Since the adoption of universal adult suffrage and a representative system of government in 1944, Jamaica has always had two legislative chambers. In 1944, there were established the elected House of Representatives and the nominated Legislative Council. Our Independence Constitution retained the House of Representatives and established the Senate in place of the Legislative Council. The House of Representatives consists of members who are elected by the electorate to represent constituencies. The Senate consists of 21 members, 13 appointed on the advice of the prime minister and eight on the advice of the leader of the Opposition.

The Senate is essentially a reviewing legislative body, as all bills passed by the House of Representatives must be submitted to the Senate for review. If rejected or amended by the Senate, the House of Representatives may either accept the amendment or reaffirm its previous decision, in which case, the decision of the elected house will prevail. However, there is one exception which is of critical importance. It is that the approval of amendments of the entrenched provisions of the Constitution requires a two-thirds majority of the senators, which the majority party cannot achieve without at least one of the opposition senators voting in favour. If the required majority is not obtained in the Senate, then the constitutional changes can only be effected by special majorities of the electorate in a referendum.

IMPORTANT ROLE

In many democratic countries, elected or nominated members of a second chamber are generally regarded as performing an important role of providing the opportunity for that body, as well as the public, to review the legislative measures passed by the first chamber. The Senate may itself put forward proposals or introduce bills. Thus, the Senate is a reviewing House, but is subordinate to the House of Representatives and the popular reference to it, as the Upper House is misguided and based on the irrelevant historic antecedents of the House of Lords in the British system. In Jamaica’s constitutional system, the House of Representatives is the first chamber by virtue of its democratic composition and constitutional authority.

The Constitutional Commission of Jamaica, in its 1993 Report, stated: “The Commission decided in favour of retaining the Senate as a Second Chamber. The Senate had provided the opportunity for reflection on measures passed in the House of Representatives and the interval between the debate in the two Houses has frequently been utilized to mobilise public opinion on the proposed legislation. It also provides a convenient opportunity for persons who are unable or unwilling to take part in electioneering but who can contribute to parliamentary activities to participate by accepting nomination to the Senate.”

A similar position was taken by the Barbados Constitutional Reform Commission, in its 2024 report.

There have been several proposals from time to time concerning the manner in which the composition of the Senate should be determined. Some persons have suggested that there should be a special franchise or different constituencies or that there should be an equal number of males and females or a requirement for a minimum number of the younger generation. However, most of these suggestions are in conflict with the principle of “each person, one vote” or equality of all persons.

MODIFICATIONS

The Barbados Constitutional Reform Commission felt that modifications should be made to the Senate to make it more broadly representative of the people. In particular, the commission recommended that the equal representation of men and women in the Senate be constitutionally enshrined to secure the nation’s commitment to maintaining parity between the sexes, in evidence of the equal worth and value of men and women.

The Jamaica Constitutional Commission of 1993 stated: “The Commission in the majority was of the opinion that the performance of the Senate would be greatly improved by a modification of its composition to include persons who are nominated by the President on the basis of their being independent of the political parties.”

The Constitutional Reform Committee (CRC), in its 2024 report, did not deal with the issue of whether or not the Senate should be retained but proceeded on the assumption that it should be and directed its attention to its composition.

The CRC stated that it had noted that, in the past, there had been many other proposals for altering the composition of the Senate, as well as the manner of appointing its members. The CRC expressed the opinion that there was no need for radical alteration of its composition but agreed that some provisions should be made for the inclusion of persons who are not aligned with the government or opposition parties and who would be able to exercise independent judgement on all issues. On this basis, the CRC recommended that the size of the Senate be increased from its present membership of 21 to 27 appointed by the president, as follows:

i. Fifteen members, on the recommendation of the prime minister;

ii. Nine members, on the recommendation of the leader of the Opposition; and

iii. Three members in the president’s discretion from among outstanding persons in the private sector, civil society, faith-based or community-based organisations or other sectors of society as the President considers necessary.

The CRC emphasised that whatever changes are made in the composition of the Senate, the constitutional amendment safeguard, provided by the need to have at least one Opposition-appointed member vote in favour of the alteration of certain constitutionally entrenched provisions, should be retained.

In the ongoing constitutional reform process, the status of the Senate needs to be given careful consideration in view of its importance in our constitutional system and its potential to contribute to good governance.

Dr Lloyd Barnett is an attorney-at-law and author. Send feedback to columns@gleanerjm.com