Richard Hart and Constitutional Government in Jamaica, 1944-1953 Robert Buddan Abstract Richard Hart was political archivist, labour activist, political reformer, and Marxist. He was also a lawyer, called to the Bar in 1941 but studying law during the heyday of nationalist agitation in Jamaica in the 1930s. His writings cover a number of constitutional developments and laws of Jamaica from the period of slavery up to Jamaica’s independence. The period between 1944 and 1953 was a very important one because it was the first period of experimentation with representative government under universal adult suffrage. Issues of constitutional reform and governance remain important today in the continuing process of legal and democratic decolonization. This paper builds on Hart’s research into constitutional developments in Jamaica and concentrates on the period of Jamaica’s first constitution under representative government. It brings out contradictions in government. But it also highlights the structure and operations of a form of separation of powers of a colonial type, never discussed before. Introduction Richard Hart has made constitutional reform both subject and context for many of his writings on political and labour agitation in Jamaica and the Caribbean. Many studies of constitutional reform concentrate on the politics of negotiation and the terms of a constitutional settlement rather than on the operation of government under these constitutions. This paper builds on Hart’s accounts by going ‘inside’ the working of the system of government in Jamaica that emerged from the Constitution of 1944, the first to grant adult suffrage and a wholly elected House of Representatives. It discusses the contradictions and controversies of what I consider to be a colonial type system of separation of powers. This separation of powers served to preserve the privileged position of the colonial executive but frustrated the power of the elected representatives of the people under the questionable philosophy of tutelary democracy.
Richard Hart studied constitutional politics in post-Emancipation Jamaica in such valuable studies as From Occupation to Independence (1998), Towards Decolonization (1999), and Time for a Change (2004)i. His point was that the politics of constitutional reform involved progress and reversals reflecting the maturing of progressive social forces on the one hand, and reticence and repression by colonial authorities on the other. I argue that from 1944, repression gave way to reticence but this still resulted in dissatisfaction with the form of government that ensued.
In this regard, I will argue that:
A type of colonial separation of powers constitution frustrated government between 1944 and 1953;
Party rivalry in the Jamaica House of Representatives centred on the frustrations of tutelary democracy;
The constitutional formula for governing defeated hopes for comprehensive policies of social and economic development;
The new constitution of 1953 released many of the tensions as the political system emerged towards a parliamentary model.
The constitutions of 1944 and 1853 are particularly important to study. They bore the hope of newly elected representatives of the people and the people themselves to alleviate harsh living conditions at the time. Indeed, the success of modernization and democratic consolidation rested on the success of the governments formed under these constitutions.
Social, economic and political conflicts in the period of the 1930s and 1940s culminated in Jamaica’s first modern constitution in 1944. Hart (1998: 198) identified three cornerstone principles of the constitution proclaimed by Order-in-Council in October of that year - universal adult suffrage, representative government, and semi-responsible government.
The constitution opened a new era in Jamaican politics and government. It inaugurated the first period of party rivalry in the new House of Representatives. It provided a test for the experiment with tutelary democracy. And, it provided a curious constitutional formula for government. These were all consequences of a colonial type of separation of powers.
In this constitution, the House of Representatives was wholly elected, the nominated legislative Council had delaying powers only, and the Executive Council had five nominated Members and five elected ones with the Governor additionally having a casting vote.
It was not satisfying from the start. Norman Manley, leader of the movement for self-government and president of the People’s National Party (PNP) had preferred a constitution of self-government in which the elected representatives had a majority in the executive and the Executive was the principal instrument of policy. (Hart 1999: 41). J.A.G. Smith, influential Jamaican member of the appointed Legislative Council, was comfortable with a lesser position whereby an Executive Committee operated between the Executive Council and the Legislature as a bridging body (Hart 1999:41-42). This would not make the decisions of the Executive Council representative of and responsible to the legislature, only more transparent to it.
Manley’s main criticism was that the Governor need only consult with the Executive Council and could reject the advise of that Council for any number of vague reasons. (Hart, 1999: 244-243). In effect this meant that there were more division of powers than was apparent. Power was divided between Legislature and Executive Council and then between Executive Council and Governor. This was the true meaning of the term, Governor-in-Council. This Executive, and particularly the Governor-in-Council, would be the chief instrument of policy, not the elected majority of the legislature-in-executive as Manley felt had been promised.
This distribution of powers was not equal. It was hierarchical. Power was distributed towards the executive at the ‘top’ and away from the elected House at the ‘bottom’. The House of Representatives was more an Assembly of the elected than a law-making legislature. It could not pass law unless the law was validated, that is, approved by the Governor. It could not initiate money Bills. The Governor retained wide powers to impose policy without the support of the House or to reject policy proposed by the House. He needed only the approval of the Colonial Secretary.
It was a colonial system of distribution of powers. Power was more colonial than democratic. The hierarchy extended all the way to Britain. On matters to do with the police, the civil service and the external affairs and trade, the Governor had to consult with the Secretary of State for the Colonies, which in effect, constituted an expatriate arm of government.
The fundamental problem with this Constitution is that it represented a triad of power. Government was colonial and responsible to the British Monarch. But it was also elected and representative of the people. The Constitution of 1944 was neither one nor the other but sought to be both and was frustratingly unsuccessful. Worse, it stymied development. The elected representatives did not have power in the executive to engage policies that could produce the social transformation so necessary at the time. Jamaica’s experiment with democracy was a test of government’s credibility with the people. Its failure led to a change of constitution in 1953 and a change of government in 1955.
Before the experiment was abandoned in 1953, there were two periods of controversy. Between January 1945 and July 1947, debates in the new House of Representatives centred on the frustrations experienced by the House and the elected Members on the Executive Council with colonial separation of powers. Then from July 1947 to January 1953, debates centred on correcting the deficiencies of the 1944 Constitution. The resulting constitution of 1953 more clearly represented an evolution towards a parliamentary model. It relaxed many of the tensions inherent in the 1944 Constitution. The fact that the Jamaica Labour Party (JLP), the majority party during the period, lost elections in 1955 was testimony to the frustrations of the constitution and the JLP’s own shortsighted refusal to realize the incompatibility between elective democracy and colonial government from the outset.
Throughout this period, the JLP was the majority party in the House of Representatives. By a constitutional paradox, however, its five Members on the Executive Council constituted a governing minority. The party’s leader, Alexander Bustamante, was leader of the majority party in the executive and the legislature. Bustamante displayed a certain ambiguity towards the 1944 constitution. He rejected self-government “now”, but found cause to continuously complain about the lack of real power for the elected members and their consequent inability to do more for the poor.
The PNP was the minority party. Its leader in the House between 1944 and 1949 was Florizel Glasspole. The party’s president, Norman Manley, had failed to win a seat in 1944. However, having done so in 1949 he assumed the role of minority leader until 1955 when the PNP became the majority party. The PNP’s leaders in the House had the advantage on two points of opposition. It attacked both the separation of executive and legislative powers, and the JLP for its failure to effectively pressure government to make the awkward system work for the people who elected it. It reminded the JLP that it had created its own dilemma by rejecting self-government.
One can only speculate whether an Independent, member of the House, Sir Harold Allan, appointed Minister of Finance and General Purposes was the pivot on which the power of the Governor and Bustamante turned since Allan represented both. Probably Bustamante thought this would allow him to have the best of both worlds – fending off the PNP’s demands for self-government, while enjoying power in the executive through Allan. He got the worst of both worlds instead.
Bustamante and the JLP were to learn that power was separate and unequal with a distinct bias towards the Governor’s executive.
Separation of powers is associated with presidential systems. Its core principle is that neither the executive nor the legislature can dissolve the other. Therefore, the two arms of government are elected separately and serve fixed terms set by prescribed election dates. The system also provides for separate bi-cameral chambers, each with voting powers.
This was not the constitutional model developed for Jamaica in 1944. Yet, that model was not a classical parliamentary one either. The term ‘separation of powers’ is not technically accurate but neither is the term ‘parliamentary’. However, for practical reasons a type of separation of powers existed in a constitution that preserved executive colonial supremacy separately from responsibility to the elected legislature.
The Governor and his appointed members dominated the Executive Council numerically and politically. The Executive Council was the principal instrument of policy. Its philosophy was that of tutelary democracy. Elected members would undergo a period in which they gained the experience and competence to make policy in order to take control of executive departments, that is, ministries of government.
Criticisms of this system rested on two grounds. Elected Members of the Executive Council, the PNP argued, should form the majority and have responsibility for policy and administration. Tutelary democracy presumed that elected Members were not fit and proper to undertake these responsibilities. The PNP also rejected this position. In effect, the PNP wanted a parliamentary model.
The colonial model of separation of powers established that:
The Executive Council was formed on a separate basis than was the legislature. The Governor’s men were equal in number to the elected members. But the Governor held the balance with a casting vote, and thus, a voting majority. The Governor’s Executive existed at the pleasure of the Crown. It could not be dissolved by the legislature. It was not subject to a no-confidence parliamentary vote.
The Executive could dissolve the legislature at its own discretion. However, since the Governor and the Nominated members did not belong to the majority party, they were independent of any party considerations for doing so, and did not do so to the advantage of any party in the period covered. The leader of the majority party could not dissolve the House despite his party majority.
The House of Representatives in the Legislature was elected entirely by adult suffrage. It included the elected members of the Executive as well as the representatives of the political parties and independent candidates in the legislature. Five elected Members of the Executive Council served concurrently as members of the majority party in the legislature.
The Executive was required to submit Motions to the Legislature. However, it could vote its own expenditure and revenue and exempt articles or classes of articles from taxation, even without the approval of the Legislature.
Legislative Committees did not have an executive role. Their Members, including the representatives from the Opposition and Independents, were included on the Executive Council to familiarize themselves with departmental matters and to gain the knowledge and experience required when they would eventually take over executive responsibility for these departments.
The elected Members in the Executive were assigned to ministries but only to operate as ‘contacts’ between the Executive and the ministries or departments. They had no responsibility to administer departmental policy. They were not ministers in the current sense, but Ministers-in-Embryo.
The Governor was the chief executive. He was not Head of State. He reported to and received final authority through the Secretary of State for the Colonies. He was an appointed Official. The elected Legislature was the only repository of democratic legitimacy.
The Legislative Council, the other arm of the Legislature, was entirely nominated by the Governor, with powers of delay only.
This model more closely resembled the French model of the Fourth Republic than the US presidential or British parliamentary model. The existence of a chief executive separate from the leader of the legislature approximated the later French system in which a President heads the executive and a Prime Minister is the parliamentary leader. The system is semi-presidential. It can operate like a parliamentary system when the executive and the majority in the legislature are drawn from the same party. It can operate like a presidential system when they are not.
However, in the Jamaican case the differences were obvious. The colonial executive was always dominant and did not depend on the legislature. The leader of the parliamentary majority did not have the powers of a prime minister or even a premier. The guiding principle of the system was not democratic government but paternalistic government based on tutelary democracy. This meant that the Executive represented the best available judgment over government and would tutor the elected members on the best practices of Westminster democracy until they were ready to assume full responsibility.
We are left with the question, how did this system actually work? How did this separation and hierarchy of powers play out in the face of the expectation and indeed, the obligation of the elected representatives of the people to serve those people? The democratic power of the people, exercised through the suffrage, did not move seamlessly upward through the House of Representatives and into the Executive. It was checked and balanced at the level of the Executive and beyond, at the Colonial Office. A major question, relevant to this model, and to all systems of separation of powers is, from whom is power separated? To say it is separated from different branches of government is not good enough. It is important to investigate if it is separated between government and people. This was the case with the constitution of 1944. The first House comprised 23 representatives of the Jamaica Labour Party (JLP), five from the People’s National Party (PNP), and four Independents. Bustamante and four other elected members became members of the Executive Council and Ministers-in-Embryo as follows:
Harold Allan, Ind., Finance and General Purposes.
Frank Pixley, JLP, Social Welfare.
Harold Allan was also named Leader of the House and the Reverend F.G. Veitch, Speaker of the House. Veitch retired in June 1945 and was replaced by Clement Aitcheson (JLP). There were five House Committees.
‘Attack Upon Myself’- Bustamante. The House first met in January 1945 and a curious form of politics between executive and legislature was noticeable within weeks of the new system. Bustamante and his four elected colleagues were concurrently members of the Executive Council and the House of Representatives. They were obligated to take motions proposed by the Governor’s Executive to the House for debate. They found themselves critical of certain motions in the Executive, which as members of that executive they were nonetheless obligated to bring to the House as motions proposed by the collective Executive. Being members of both arms of Government they were compelled to oppose some Executive motions as Members of the House causing them to appear to be attacking themselves as members of the Executive.
By April 1945, the situation had become clear to Bustamante. When he rose to debate a resolution on land settlement proposed in the House, he explained:
Perhaps, Mr. Speaker, I will be making an attack upon myself because I am part of the government today. The government is divided into two sections – one that is elected by the people, and that should be the true government. The other… is selected or nominated by His Excellency, the Governor. I divide the government into two sections because there are two distinct sections.ii Bustamante won the House’s approval when he said that the section elected by the people should be the true government. He did not win the sympathy of the PNP however. The PNP felt he had brought this dilemma on himself by rejecting self-government. Bustamante was a common denominator in two ‘distinct sections’ of one government. In one section he was opposing himself as a member of the other section.
If somehow this was good government, it was not good politics. The two sections of government were not merely institutionally separate. They existed on different principles of legitimacy, one nominated and one elected. The authority of the executive to make policy in opposition to the legislature was therefore questionable.
Bustamante said that the Executive had the power to vote money for whatever it decided was to be priority spending. But the Executive, he charged, preferred law and order policies so that it could spend money on prisons and police stations. It was willing to purchase expensive land for prisons rather than for land settlement. His party desired increased spending for social and economic purposes. But when it asked for this, the Executive - the Governor – often said there was no money.
Bustamante saw the cruel side of this. The government found it cheaper to place persons in prison, he said, than to buy land for them to live on. This was bad policy. If people did not have land by which to make progress in their lives they would resort to means of living for which they are brought to court and put in jail. Their desperate actions were then used to justify decisions to build more courthouses and prisons.
Bustamante could only think of compensating for his powerlessness by playing off one arm of government against the other. He said:
I am sorry to have to attack myself in this way as I am part of the government now, but I make myself stronger in another place than here by attacking myself here.iii He surmised that by using his majority in the House he would strengthen his influence in the Executive. He would play off the stronger power on his side against his weaker one, which lay on the Governor’s side. The fact is that he was not able to do this successfully and this was precisely the point used later against him by the PNP.
Bustamante had the sympathy of all Members of the House who were representing constituencies that badly needed help. The JLP and PNP had campaigned vigorously on agricultural and industrial programmes in the elections of December 1944. Now, the colonial government was more interested in law and order. Powers were not only separate, but were separated by great differences of understanding and strategy.
‘I am in a Humiliating Position’ – Bustamante The division of powers, responsibility, and accountability were so fragmented that House Members had to confront the fact that they were answerable for decisions for which they were not responsible and when information available to them was not verifiable. On one occasion, Bustamante confessed to the humiliation of being in such a position.
He was required to respond to certain questions in the House during parliamentary question time. When a member of his own party asked him to clarify his explanation about why a certain road project had been suspended, Bustamante found himself having to grapple with the unaccountable system of expatriate government. He was frank enough to say:
I am in a humiliating position because in spite of the fact that I was the same person who replied to the question, I never did understand how the Secretary of State for the Colonies could have remained in England and could have known what particular work should be suspended…The Secretary of State scarcely knows the geographical position of Jamaica, much more to know a road. Although I gave the reply, it is very humiliating to stand up now and condemn my own reply.iv Having had to attack himself, he now had to condemn himself. Indeed, it must have been humiliating. Parliamentary questions are best answered when the Member of the Executive has full responsibility for his Department and access to the information that covers the administrative details of projects under the portfolio that he is required to report on. But while Bustamante had the responsibility to answer questions under his assignment, he did not have administrative control and access to the information by which he could sufficiently know about his department’s projects. The answers were simply handed to him on behalf of a colonial secretary who was even more ignorant.
Bustamante confessed that he himself had not been comfortable with the reply even as he gave it. He had nonetheless hoped, by flattery of his executive position, to ‘deceive’ his colleague as he wryly put it. The kind of detailed knowledge required, if parliamentary question time is to be of any real value and for responsible government to be more than a farce, can be garnered from this exchange. In the particular case, Gideon Gallimore (JLP) asked his leader:
Mr. Gallimore: How much money was spent cutting a road from Watt Town to Cascade?
Mr. Bustamante: 864 Pounds.
Mr. Gallimore: How many drivable miles were cut?
Mr. Bustamante: 97 Chains.
Mr. Gallimore: How many miles were left to complete?
Mr. Bustamante: Approximately eight.
Mr. Gallimore: Will the project be completed?
Mr. Bustamante: Inadvisable.v Bustamante had no idea if any of this was true. The answers were provided by colonial officials. He sarcastically wondered how the Secretary of State who resided overseas could then know such things. He mocked the process this way: someone recommended to the Governor that the road be suspended and he passed the recommendation on to the Secretary of State for the Colonies, who in his ignorance agreed.
It was not that the Governor needed or would seek the approval of the Secretary of State for such a minor matter as the completion of a rural road whose construction had, at any rate, been suspended eight years before. What Bustamante was doing was drawing attention to the fragmented and unaccountable formal structure of government, which separated executive and administrative power and responsibility. In such a system, the elected members in the Executive did not have the level of control and information needed to be properly accountable to the House. The real heads of departments were colonial officials who were not members of the House and not directly accountable to it.
Such a system of Government, relying as it did on a distant and ignorant expatriate arm – the Secretary of State for the Colonies – was capable of comic ridicule. It was further exposed when it transpired that a decision had been referred to the Secretary of State although the member of government who acted in the Secretary’s name did not know who the Secretary was. The PNP saw an opportunity to embarrass the government (and constitution) and did not hesitate to do so.
An important matter of selling the Island Telephone Company came up in August 1945. A motion had been submitted to the House assuring that the Governor’s proposal had been sent to the Secretary of State who had made no objection to it. Ivan Lloyd (PNP) had been aware that Colonel Stanley had resigned that position and that no successor had yet been named. He asked, “To which Secretary of State were these particular proposals and the particular documents submitted”? Frank Pixley (JLP) coyly replied, “The Secretary of State for the Colonies”. Lloyd pressed further: “I want to know who he was”. Bustamante confessed, “I don’t know”.vi The leader of the majority party in the executive had no idea who the British authority in whose name he acted was.
No Secretary of State had actually approved the Governor’s motion to sell the telephone company. Forizel Glasspole had complained about the haste in which the decision was being pushed through. Probably the Governor had wanted to take advantage of this particular lapse in expatriate checks and balances. However, this was not a matter as minor as completing a rural road. On this occasion, Bustamante who approved of the sale, chose not to see the irony of the process of government that he was a part of.
‘The Ministers Have Not Yet the Power’ – Allan Colonial separation of powers was made more complicated and unaccountable by the division of responsibilities between Ministers-in-Embryo and Heads of Departments or proto-ministries. This was rationalized by the philosophy of tutelary democracy. The Leader of the House, Harold Allan (Independent), explained the division of powers in the general case of administrative responsibility and the particular case of financial responsibility. Allan was the elected Member of the Executive Council with responsibility for Finance and General Purposes.
Ministers in embryo are not yet in full charge of Departments…It does not appear that the public understands this. We are in charge of policy directed by the Executive Council to Departments and it is for the Ministers to see that that policy is carried out, but the Ministers have not yet the power to deal with administrative details and it is administrative detail that Members of the House want to examine and ask questions on, and no Minister including myself is in a position to give information of administrative details. But we are all hoping for the day to come…when we will be able to say to the House; don’t have a Finance Committee; go right away and deal with the Estimates.vii Allan was speaking in the context of a debate over the procedure for presenting and debating the annual estimates of expenditure. When the Estimates were prepared they were debated in the Financial Committee among Executive Members and Heads of Departments. They were then taken to the House for discussion. The Estimates would have been final by then. Allan suggested that debate in Financial Committee was vigorous. However, House Members wondered if a Select Committee of the House should not debate the Estimates before it came to the House as a final document. Allan could only say that this would be possible when elected Members had full control over government departments.
“We Must be Able to Lay Down Policy More Fully…” Aitcheson On that occasion, Allan admitted to the separation of executive and administrative responsibility and the consequent ignorance of executive government. There was more to the problem than this. The very expatriate character of government meant that apart from a division of power there was a division of culture between those who manned the policy and administrative arms of government.
Clement Aitcheson (JLP), who would soon become the new Speaker of the House, commented on the distribution of responsibilities in two different ways. The familiar complaint was that elected Members did not have enough power over executive matters. Aitcheson spoke of another conflict – that between elected Members in the legislature and executive – and the colonial Heads of Departments. In more current language we recognize this as conflict between politicians and civil servants. This conflict was evident from the time the first elected House assembled in 1945. It was first reported as a conflict over the constitutional powers enjoyed by non-elected officials and denied to elected members. But it was also perceived later to have cultural and racial overtones. With regard to the first, Aitcheson told his colleagues that:
There are Heads of Departments who seem to take very unkindly to the new Constitution. Possibly they worked under the Old Constitution so long that they find it difficult to resile from the power they had in former days. Perhaps they have been unable to appreciate that there is a desire to give us a little more power in handling our own affairs and perhaps they have been accustomed to laying down their policy that they take unkindly to any, what they might choose to call interference…It is necessary if we are going to get the blame or the praise in the next five years, we must get greater control…we must be able to lay down policy more fully and if there are any stumbling blocks in any way those stumbling blocks should be removed. When Ministers are able to take greater controlling activity in the Departments, the Estimates may truly and more fully be representative of the New Constitution.viii Administration was not accountable and financial debate was not representative. This was not strictly a problem of separation of powers. The literature recognizes it as ‘bureaucratic politics’. This occurs when there are rivalries between departments and agencies within the same executive and administration. Rivalries occur over domains of power and personality, ideology, culture and other such differences. In the Jamaican context, the differences between colonial administrators over their accustomed privileges, and the new representational power of Jamaican representatives, generated conflicts in tutelary democracy. Elected members complained about the attitude of colonial bureaucrats. Obviously, the problem would not be the same if Heads of Departments were the elected members themselves having direct control over broad administration.
Aitcheson pointed to the contradiction between representative and responsible government. In the public’s perception, representatives were responsible. However, the constitution did not make them so and colonial bureaucrats did not treat them so. He was wise to the fact that the JLP’s first five years as the majority party would not reflect the case that the party did not enjoy full responsibility. He wanted others to take note of the stumbling block, which was obviously a reference to the Constitution.
The distribution of power was more confusing than was apparent from a cursory reading of the 1944 Constitution. Typical of separation of powers systems is the blame game. Representatives were forced to confront the issue of how they should understand the impotence of government and how they could best exercise the power to represent the people.