To codify or not to codify? That is the question!

Here, codification would have created Constitutional clarity and precision without losing the scope at which the powers could have been applied. For geographic reasons, codification might even state that in times like these the High Court or a two-majority Parliament, not the Queen, should dismiss the GG who fails such a simple Constitutional obligation.

Clearly, codification does more than signpost the broad options available to the GG to resolve a crisis and ensures executive accountability. Rather, it can cope with “unforseen scenarios” just as efficiently, if not more so, than as unwritten convention.

Political systems like ours have already done what Professor Flint said was “impossible”: they have articulated in a lucid format the powers of the GG. As for Christopher Pearson, he should be reminded that Hercules was able to complete all his labours. Codification is hardly a task of Hercules, especially considering all the labour has already been done for us.

Why should we codify?

Proponents of codifying the GGs powers argue even if the system “ain’t broken” (yet) that doesn’t mean it “can’t be broken”. Some would point to 1975, where several conventions were indeed broken. Convention dictated that the Senate should not block a money bill or the GG should not dismiss a PM who has confidence in the House. As noted above, under the Jamaican Constitution the Whitlam dismissal would have been dealt with the caretaker convention or simply would never have happened.

David Flint also overlooks that with evolution often comes a (near) revolution. Unlimited reserve powers can be abused.

First, William V dismissed the Whig PM of the day because the PM wanted to give power to Parliament rather than him, the King. In 1913 George V wanted extend this power to sack the PM of the day as conservative members of Parliament advised him to do so. There was no crisis. The conservatives wanted to win an election. A dismissal would give them an incredible election advantage. Luckily for that PM, World War I broke out. The dismissal forms were prepared but not signed. In Australia, imagine what would have happened our GG sacked the PM and acted below and not above politics! Codification would have occurred instantly.

Interestingly, the 1977 referendum hinted at codification when it declared that a deceased Senator would be replaced with a person of the same political party as the deceased member. This was a direct response to the 1975 dismissal, where a Senator who had the balance of power was replaced with a person of a different political persuasion.

Even when King Christian X of Denmark, perhaps deservingly, dismissed his entire Cabinet in 1920 because he disagreed with their policy decisions the result was instant codification. The end of the King’s power to dismiss his or her Cabinet. That’s what you get for not being above politics.

Think what you may about codification, codification is an inevitable part of this country’s future if not by our own initiative, retrospectively after another constitutional crisis.

Nevertheless, the purpose of codification is to prevent, rather than await future Constitutional crises and deal with them reasonably and transparently if and when they occur.

Conclusion

The advantages of codification far outweigh the disadvantages (if there are any). Codification would identify the precise, but extremely broad, powers of the GG In fact, codification can be equally, if not more, flexible than unwritten convention while keeping a tab on abuses of executive power, like arbitrary politically motivated dismissals. It would promote the rule of law, not the rule of men. Nevertheless, instead of codifying powers, I advise that, at the very least, we place limits on where and when reserve powers can be applied and for what reasons. After all, if in the unlikely event the GG abuses these reserve powers; that would be a one-way ticket to codification. Why risk it?