Mon | Jan 17, 2022

Editorial | Start early on constitutional reform

Published:Wednesday | December 1, 2021 | 12:07 AM

Barbados’ coup de grâce against its foreign monarch this week may have been the catalyst for Prime Minister Andrew Holness to announce next year’s start date of a comprehensive review of Jamaica’s Constitution. That is a welcome development.

But the prime minister’s bare-bones declaration in his address to his party’s annual conference on Sunday was insufficient. It requires additional and urgent attention, given how long this critical matter has been allowed to drag. In this regard, Mr Holness has two immediate takes to accomplish.

First, having said that the process will begin in 2022, he must clarify when in that year he intends it to begin, which should be no later than in the first quarter, and preferably before the end February. That timeline would allow three months from now for the establishment of a commission and the preliminary start of its work.

Setting this clear, and early-in-the-year, start date is important for two interrelated reasons. A firm commitment to a timeline limits any room for the Government to procrastinate, then begin the process towards the end of the year and declare that it kept its word about the 2022 review.

Second, by their third year in office, administrations usually begin to consider their actions in the context of the coming election cycle. Unless they are immensely popular, they are likely to become risk-averse. Constitutional matters, especially those that require plebiscites, which opposition parties may attempt to spin into referendums on governments, tend to be pushed to the political back burner.

By the end of February, Mr Holness’ Jamaica Labour Party (JLP) will have concluded a year and a half of its current five-year term, which, assuming that constitutional commission begins its work then, may still be early for the commission to agree on some implementable reforms before the administration heads into its twilight zone for risky policy.

Which brings us to Mr Holness’ second task – his need to outline his broad vision for constitutional reform, and to frame the discussion in a manner that segments the effort into doable bits, so as to lessen the likelihood of one large contentious project on whose implementation there is no agreement. In this regard, the prime minister will have to sharpen his thinking and prioritise constitutional/governance reform, thus clarifying what properly belongs to the exercise he plans to launch in 2022.

A REFERENDUM

For instance, Mr Holness’ party and the Opposition are in agreement on Jamaica removing the Queen as its head of state and transforming the island to a republic with, like Barbados, a non-executive president as its symbol of sovereignty. But the monarchy is deeply entrenched in the Constitution. Changing that clause will require Jamaicans sanctioning the move in a referendum.

At the same time, the Opposition supports the eminently sensible idea of ending appeals to the Privy Council in the United Kingdom and making the Caribbean Court of Justice (CCJ), which Jamaica helps to fund, the island’s court of last resort for civil and criminal matters. Doing this doesn’t require a referendum. It can be achieved by amending the Constitution with a vote of two-thirds of the members of either house of Parliament.

Mr Holness, though, is against the CCJ, although we suspect that at this stage his opposition is more residual political muscle memory than deeply held philosophy. The prime minister has in the past said that he intends to put the question of the CCJ, the Queen as head of state, and whether Jamaica should repeal its buggery law (change to which requires merely a simple affirmative vote by Parliament) to “a grand referendum”.

That is a potentially politically fraught idea for any government, which perhaps is why it hasn’t happened in the nearly six years since Mr Holness has been in office.

MESSY AFFAIR

In liberal democracies, constitutional reform can be long, complex, messy affairs. For instance, it took nearly two decades between the launch of a constitutional commission and the installation, in 2011, of the current Charter of Fundamental Rights and Freedoms in Jamaica’s Constitution. Other matters on which there were seeming philosophical consensus stalled because of political considerations. Hence, our suggestion that Mr Holness and the political Opposition define the reform in terms of readily achievable bits and those that will require additional effort.

For instance, given the legislative work that has already been done on the CCJ, Jamaica could amend the Constitution and accede to the court well ahead of the island’s 60th anniversary of independence next August, without Mr Holness paying a political price – if that is what he fears. For it would be under his watch that access to the top tier of the justice system would be more widely open to a broad range of Jamaicans, other than the well-to-do, or persons convicted of murder, who benefit from the pro bono efforts of British lawyers.

Starting now would not allow for the passage of law and the holding of a referendum on the Queen before next August. Nonetheless, that matter, plus repatriation of Jamaica’s Constitution, making it an instrument of the island’s Parliament, rather than an Order in Council – signed, as Dr Lloyd Barnett noted, by a British civil servant who no one in Jamaica knew or had heard about – should be the next, and urgent, order of business. Jamaica’s sense of itself and of its place in the world should drive us to act on these and other matters of constitutional reform.