The essence of the convention practiced by the Officers of the Jamaican Constitution for the appointment of Selected Members of the EAC/ECJ is that Selected Members are jointly agreed on by both the Prime Minister and the Leader of the Opposition and appointed by the Governor General. Selected Members have been members of any political party. Selected members have been chosen by prominent citizens who are widely respected in the Jamaican society. While the EAC/ECJ has been comprised of an equal number of members nominated by the Prime Minister and the Leader of the Opposition, the Chairman of the Electoral Body is always one of the Selected Members. Notionally the Chairman is chosen by the Selected Members but in reality, the Chairman is also agreed on by both the Prime Minister and Leader of the Opposition.
The Governor General not only appoints the Selected Members but also facilitates and mediates the process of agreement between the Prime Minister and Leader of the Opposition. The Governor-General also conducts the discussions with prospective Selected Members who have been agreed by the Prime Minister and Leader of the Opposition.
What makes this agreement a convention is that it cannot be enforced by an appeal to the Constitution of Jamaica. According to the Constitution, the Governor General is obliged to act on the advice of the Prime Minister, even in instances where the Leader of the Opposition is consulted. The Governor-General has no discretion but to act on the advice of the Prime Minister, even if the Prime Minister’s differs from the views expressed by the Leader of the Opposition in consultation.
While the Electoral Commission Interim Act 2006 explicitly states that Selected Members are appointed by the Governor General after the agreement between the Prime Minister and the Leader of the Opposition, the constitutionality of the Act has not been tested. All Prime Ministers have so far acted in a manner in accordance with the Act. However, should there be a Prime Minister who chooses to advise the Governor General otherwise, leading to the Act being challenged in the Constitutional Court, that Prime Minister’s advice is most likely to prevail notwithstanding the Electoral Commission Interim Act, 2006.
Therefore, the point that must not be overlooked is that every appointment of a Selected Member of the Electoral Body, now the Electoral Commission of Jamaica, is a test of this convention. Every time the Prime Minister acts in agreement with the Leader of the Opposition in that appointment the convention continues. However, this convention can never be guaranteed or taken for granted.