The Government of Jamaica tabled the report of the Constitutional Reform Committee (CRC) and the accompanying Ministry Paper No 1/2024 of the Ministry of Legal and Constitutional Affairs.
I asked myself the question, having read the report, “is this reform or just partisan realpolitik?”. Reform suggests that something noble, radical, visionary, audacious, selfless, game-changing is being pursued. Partisan realpolitik, on the other hand, implies that some self-serving, power-grabbing, short-term advantage-seeking, narrowly tailored objective is afoot.
In stark political terms, the question is, would the governing Jamaica Labour Party (JLP), if it were in opposition, make the proposals it is making (as government) as contained in the report of the CRC? By extension, would the People’s National Party (PNP) oppose the proposals of the CRC if it were in power, and an independent body were making those proposals which in some cases (were those proposals adopted) gives whatever party forms the government such extensive powers?
Absence of philosophical framing
But before I address the recommendations, I wish to highlight a major gap in the report, the absence of a philosophical framing. At Sec 4.3 there are the words “Replacement of monarchy with a republic”. The whole purpose of the exercise appears to be the removal of the Governor General, the King’s representative, to be replaced by a President.
One would expect that, at a minimum, the report would articulate some kind of philosophical description of why a republic and its ontological positioning (the purpose it is expected to serve). This ontological positioning would be the platform of the report. That ontological frame would be rooted in a reflection on who we are and what we are seeking to become.
One would expect that, at a minimum, the report would articulate some kind of philosophical description of why a republic and its ontological positioning (the purpose it is expected to serve). This ontological positioning would be the platform of the report. That ontological frame would be rooted in a reflection on who we are and what we are seeking to become. Both would be informed by the fruits of extensive consultation with the people. But alas, there was not extensive consultation. Whether extensive consultation would lead the authors to undertake a philosophical framing of the report is uncertain.
There are five main areas in which I have issues with the CRC’s recommendations, four of which I will address in this article and the other in a follow-up tied to my last piece on risks to Jamaica’s democracy, published on May 19, 2024 (See article here https://leadershipreimagination.com/uncategorized/clear-and-contemporary-risks-to-jamaicas-democracy-costs-complicity-and-cowardism/). Here are the four areas for today’s piece.
- The selection of the President
The report contemplates (at Sec 4.3.1) that the president would be selected by the Prime Minister after consultation with the Leader of the Opposition but if they cannot arrive at a consensus, each would nominate a proposed candidate and the candidates would be put to a vote, by secret ballot in both houses and selected by “absolute majority” (defined as over 50% of total strength of the house).
In my view this is a real trick. If the governing JLP proceeds with this matter during this parliamentary period, with a super majority in the lower house (78%) and a substantial majority (by statute) in the upper house (13 of 21 – about 62%), a Prime Minister could easily recommend someone he knows would not be acceptable to the Opposition and force the vote and thus gets his way.
This mechanism is wholly ill-advised and should be rejected. My question to Prime Minister Andrew Holness and the JLP is this: If you were in Opposition, would you advance this mechanism for the selection of the President? My question to Opposition Leader Mark Golding is: If you were the Prime Minister, would you object to this proposal?
This mechanism is wholly ill-advised and should be rejected. My question to Prime Minister Andrew Holness and the JLP is this: If you were in Opposition, would you advance this mechanism for the selection of the President? My question to Opposition Leader Mark Golding is: If you were the Prime Minister, would you object to this proposal?
Whatever their respective answers, and regardless of the side on which they are now and may be later, I suggest that this is a bad policy which will only serve to further divide the society at a time when we should be seeking to unite and heal.
- Impeachment
To understand what the CRC says about this question, it must be recalled that in the campaigning for the 2016 elections, then Opposition Leader Holness stated repeatedly and emphatically that he would start the process to enact legislation on impeachment “within the first 100 days”. While this promise now stands as one of the most dramatically broken promises of Mr. Holness, it is what I would describe as the enabling and post-decision defence of the CRC which is stunning.
The CRC, at Sec 6.3.2, gives five reasons it does not recommend impeachment legislation be included in the new constitution. The reasons include the concern that the process can be manipulated for partisan reasons and (using the argument of the Republicans in the impeachment of Donald Trump) any act that would require impeachment would be subject to the criminal law. The CRC also argues that there is no evidence that impeachment has been a successful mechanism for holding public officials accountable. But it is arguable that its existence in those jurisdictions is a deterrent for public misconduct.
But there are several countries such as Brazil, France, India, Ireland, and the Philippines, which have impeachment legislation. In defending the decision not to support the inclusion of impeachment legislation, the CRC, relies on aged information, referencing the history of impeachment from the 14th century in Britain and inaccurately claims that the practice was discontinued “in the 15th century when the American constitution was being framed”.
Not only is it odd and unhelpful for the CRC to go back (not seventy, but) seven hundred years to find justification for its position, but its inaccurate reporting of history raises questions about the credibility of the report. As far as I know, the framing of the American constitution was not written in the 15th century, as the CRC report asserts, but the 18th century, sometime around 1787.
But what is worse, the CRC seems out of touch with the practice of impeachment proceedings around the world. In addition to citing the history of impeachment in the USA, the report cites Costa Rica as being one of two oldest presidential democracies where impeachment legislation exists, and in seeking to discredit the value of impeachment, asserts that no president in Costa Rica has ever been removed by impeachment. This assertion on its face is irrelevant. The non-use of the legislation does not disprove its value.
But as recently as 2015, the 36th president of Brazil, Dilma Rousseff was removed from office via impeachment.
So, what I find is that to justify its decision, (which amounts to not wanting to place Prime Minister Holness in the awkward position of having to come to terms with his broken promise on impeachment), the CRC twists history, going back centuries, and offers rather juvenile arguments for not recommending the inclusion of impeachment.
So, what I find is that to justify its decision, (which amounts to not wanting to place Prime Minister Holness in the awkward position of having to come to terms with his broken promise on impeachment), the CRC twists history, going back centuries, and offers rather juvenile arguments for not recommending the inclusion of impeachment.
With Opposition Leader Mark Golding proposing impeachment legislation in 2021, and before him Prime Minister Bruce Golding in 2007, I earnestly hope that the wisdom which would have informed those initiatives will be revisited. At a minimum, the Prime Minister owes it to the country to place the matter of impeachment in a referendum.
At a minimum, the Prime Minister owes it to the country to place the matter of impeachment in a referendum.
- Fixed election date and extension of the life of parliament
The CRC notes at 6.4.1, that there is value in having a fixed election date, conceding that with the discretion to call a general election being that of the Prime Minister, the “discretion is often exercised to gain political advantage”. But unless you read the report you would not be insane if you doubted what comes next. The report goes on to state, at 6.4.2:
“While recognizing that there are good grounds for the proposal to adopt a fixed election date, the CRC is of the opinion that a precise and inflexible date may be problematic in a small country like Jamaica”.
What!? Problematic how? Recall that this was another of Mr. Holness’s signature “first one hundred days” promises. But it becomes even more astounding.
The CRC recommends at 6.4.2, a fixed duration for the life of the Parliament, which is already the law. It further proposes “…a limited period in which to fix the actual election date” after the expiration of the natural life of parliament. That also is already the law. But it appears to me that the CRC’s recommendation of what is already the law is a clumsy way of introducing 6.5.3 that which states: “The CRC further recommends that this extension should be limited to periods not exceeding six (6) months at a time for a maximum extension of two (2) years”. (emphasis added).
So not only is the CRC seeking to extricate Mr. Holness from another of his promises, but the CRC is seeking to write into the law an additional two years in government for the party in power. In my view this is not only dangerous and downright reckless, but also the path to dictatorship that this Holness administration is taking as I have been warning.
So not only is the CRC seeking to extricate Mr. Holness from another of his promises, but the CRC is seeking to write into the law an additional two years in government for the party in power. In my view this is not only dangerous and downright reckless, but also the path to dictatorship that this Holness administration is taking as I have been warning.
- Composition of the Senate
The final piece of what I call the Holness’s administration’s blueprint for a legislative dictatorship (which consists of all four issues raised in this article) is the composition of the Senate. The senate currently comprises twenty-one members, thirteen appointed on the recommendation of the Prime Minister and eight on the recommendation of the Leader of the Opposition. With 13 of 21 (62%) the Government can pass bills without the Opposition, but in matters requiring a two-thirds majority, at least one Opposition Senator must vote with the government.
Leader of the Opposition Mark Golding, in his contribution to the CRC’s deliberations has proposed a doubling of the membership from twenty-one to forty-two (a proposal I had also made in 2017). Golding’s proposal reads:
Senate of 42: “…The Prime Minister appoints 24, the Leader of the Opposition appoints 15, and the President appoints 3. The President’s 3 appointees should be persons recognized for their independence, good reputation and eminence, and the President should consult with the Prime Minister and the Leader of the Opposition before making the appointments”.
The effect of Golding’s recommendation is that with 57% of the membership, the government would be unimpeded in passing ordinary legislation, but for matters requiring a two-thirds majority (28 votes) the government side would need four non-government votes. If the government were to secure the support of the three independent votes it would need one opposition vote. This in effect retains the status quo but widens the membership of the Senate.
The government’s counter is to increase from 21 to 27, comprised as follows: 15 government, 9 opposition, and 3 independents. What this means is that if government could sway the three independent members on crucial matters requiring two-thirds, then it could bypass the opposition. This is not a good policy for a democracy. And thus, my question is for Prime Minister Holness: would you propose this if you were in Opposition?
Conclusion
I often refer to the philosophical principle of the categorical imperative whenever I invite consideration of weighty matters. The categorical imperative is a reference or parameter for decision making in which the decisionmaker is asked to think of what would happen if the process he or she used to make the decision, or the decision itself becomes a norm. Would the organisation or society be better off or worse off if the process used or the decision made were to be used as a model.
I often refer to the philosophical principle of the categorical imperative whenever I invite consideration of weighty matters. The categorical imperative is a reference or parameter for decision making in which the decisionmaker is asked to think of what would happen if the process he or she used to make the decision, or the decision itself becomes a norm. Would the organisation or society be better off or worse off if the process used or the decision made were to be used as a model.
I invite the CRC to ponder whether its recommendations are in the best interest of Jamaica or designed to serve the agenda of the JLP.
Canute Thompson is Professor of Educational Policy, Planning and Leadership at The University of the West Indies, Mona Campus, a social activist, and author of eight books and eighteen journal articles.
His academic achievements include:
- Two Principal’s Awards in 2023 for research activity generating the most funds, and research activity with the most development impacts, serving as Project Director for a project executed by the Caribbean Centre for Educational Planning.
- A 2022 Bronze place winner in the Independent Publisher Book Awards for his book, Education and Development: Policy Imperatives for Jamaica and the Caribbean.
- A 2021 finalist in The Vice-Chancellor’s Award for Excellence for all-round excellent performance in Outstanding Teaching, Outstanding Research Accomplishments, Outstanding Service to the University Community, Outstanding Public Service.
- A 2021 Principal’s Award for Most Outstanding Researcher.
- Two Principal’s Awards in 2020 for Most Outstanding Researcher and Best Publication for his book, Reimagining Educational Leadership in the Caribbean.
A very balanced, clear ane very eady to comprehend analysis and commentary.