The government has published its timetable that will guide the constitutional review process which was commenced, not with the appointment of the Minister of Legal and Constitutional Reform, but rather with the publication in 1995 of the report of the Joint Select Committee on Constitutional and Electoral Reform (JSCER). Of course one must acknowledge the fact that the last time that we had any real change to our constitution was the amendment to Chapter III which we all refer to as the Charter of Fundamental Rights and Freedoms and thus the appointment of a Minister responsible for constitutional reform in 2022 is to be commended.
The reform process we are told by the minister will be in three phases: phase 1, which will run for two months (from the 1.3.23), will see Jamaica move from being a constitutional monarchy to being a Republican State. Phase 2 will see amendments made to the Charter of Rights and Phase 3. Here I wish to discuss Phase 1 and whilst I will come back to Phase 2, I say at this stage, that I am deeply suspicious, especially having regard to the past statements of both Co-Chairs of the Constitutional Review Committee, that amendments are being considered to the Charter of Rights because the government has not only had its nose bruised by decisions from the Supreme Court such as Robinson v Attorney General (the National Identification System [NIDS] case) and of course those cases knocking back the government’s use of States of Emergencies as a crime fighting tool. The government in my view is seeking to use the law to solve what is essentially a challenge that has to be and must be resolved in parliament. It is always a dangerous thing to use the law to solve a political problem because the politicians cannot use their collective efforts to fashion a modern solution to our crime problem.
Moving from being a Constitutional Monarchy to a Republic
Jamaica cannot move from being a constitutional monarchy unless it puts the issue to the electorate in a referendum and a majority of those who vote say yes. The report of the 1995 Constitutional Reform Committee had recommended that the Head of State should be a President but as Professor Stephen Vasciannie in his essay “Constitutional Change in Jamaica: The Monarchy, The Final Court and Questions of Abolition”, has reminded us, both political parties in 1995 were at odds on the question of how the President should be selected and the powers of the President. The choice was between having the nominated President voted on by a joint sitting of both Houses of Parliament where a two-thirds majority vote would seal the deal. The Jamaica Labour Party (JLP) expressed a preference for a vote of each House separately. Of course if the latter approach is taken then the opposition will have the chance to block the nominated President, as it has what Professor Vasciannie calls a “blocking third”. Then of course and perhaps of more interest is the power that such a President should have: should he/she be a mere replacement (ceremonial) of the Governor General or alternatively should the President have powers to appoint members of the Cabinet? Though the People’s National Party (PNP) expressed a preference for an Executive as opposed to a Ceremonial type President in 1995, in its 2011 and 2020 manifestos, the party all but abandoned that position.
Therefore both political parties seem to have at least agreed that we should have a ceremonial President. However, now that we are about to embark on a new round of constitutional reform, I am wondering if the people of Jamaica have really been exposed to the features of an Executive Presidency and what it would mean for governance in a system where we all have agreed over the years that the Parliament is anything but a check on the Executive, as members of parliament (MPs) [as Ministers] really disagree with their Prime Minister, to whom they owe their appointment. It is in this context that I am suggesting that the two month period for phase one (1) of the constitutional reform process is not only overly ambitious but insufficient if we are serious about arriving at a decision that has benefited from serious consideration having regard to the limited access to information that members of the public would have had in 1995.
The Guyanese Model
Guyana has been a Republic since 1970, having had its independence since 1966. Today it has an Executive President and it is my strong view that before we just swop the English King for a Jamaican one as Barbados did in 2022, we should give serious consideration to seeing how things work in Guyana. In this regard readers should note that in 1980 Guyana underwent another constitutional reform which has resulted in its President becoming both Head of State and Head of Government. In a nutshell the system has elements of both the Westminster system and the American system, but for the purpose of Jamaica one of the powers granted to the President is that he/she can appoint as a member of cabinet a person who is not an elected member of the National Assembly (Parliament) and that person will sit as a non-voting member of the National Assembly. Quite naturally, the argument goes, such a system opens up service in cabinet to those who are not essentially willing to subject themselves to the dogma of a specific political party. Yes in Jamaica we achieve this via the Prime Minister (PM) being able to appoint someone to the Senate, with the limitation being that the Finance Minister has to be a member of the House of Representatives. However, I think we can all agree that our historical “independent” senators have been less than independent. I am not suggesting a wholescale adoption of the Guyanese model, as under no circumstance would I suggest that our Prime Minister should perform the dual function of head of government and Head of State but what I am suggesting is that it is not correct, as is being done, that we should limit our imagination and the scale of our governance reforms merely because the Minister has set an unrealistic two month period, with no rationale for this randomly selected short time period. If we pursue this unnecessary haste, for which doing it in time for independence celebrations cannot be an excuse, we risk failing to consider the question of how we select the Speaker of the House afresh and by extension the President of the Senate.
The Remit of the Constitutional Reform Committee
Our current Speaker of the House of Representatives, for me is a classic example of why it is rather non-sensical for us to have retained aspects of the system used in the House of Commons in the United Kingdom (UK) whereby the Speaker is selected from amongst the two parties, with the party that has the majority winning out. Of course in the pure Westminster system the Speaker, once appointed is expected to be non-partisan and thus at a parliamentary election, he/she is unopposed and that person is precluded from participating in any party activities. In Jamaica it is tantalisingly next to impossible to get a neutral person, from such a tribal political party process. Our professional politicians just do not possess those attributes and having fooled ourselves that a Speaker will suddenly become independent and impartial in a culture where outcome is linked to Party headquarters (HQ), is fanciful. Therefore, the Constitutional Reform Committee should, when it repeals the Independence Act, Jamaica (Constitution) Order in Council not leave this important business of ensuring that we select the Speaker of the House from outside Parliament. There are capable and non-partisan Jamaicans who can perform this important constitutional role and we should give this serious consideration as it will require not just a mechanism to appoint a Speaker but also an entrenched provision for removing that Speaker. In this regard we do not or should not emulate Trinidad and Tobago’s 1995 experience where the country’s first non-MP Speaker (Ms Occah Seepaul) plunged the country into a constitutional crisis when she refused to resign despite clear evidence (of her having lied to her Bank and in a civil claim) that her position was untenable. She was not a member of parliament and this compounded removal but we can avoid this by ensuring that removing the occupant from this very important constitutional office is not left to the politicians as they only dance to the beat of Party HQ. It should be set out in the constitution in a manner that is not easily tampered with.
Jamaica’s Constitutional Review Committee has been given a task to come up with something to mark the country’s break with its coloniser. It is not thought by most that this will be a radical Committee even if that is what is required. This is the second bite at the cherry as no one was brave enough or sufficiently culturally radical when the country negotiated its independence in London. This time around the Minister responsible has set in motion a high speed train for phase 1, and no time frame for phase 2, but I fear that if we proceed through phase 1 at her desired speed, we are bound to exclude from consideration options available to us. This Committee should not bow to the Minister’s pressure as this is far too important a task to be rushed.
Matondo K. Mukulu is a practising Barrister.