Trevor Munroe | Green light or mixed signal on Constitutional Reform road?

On February 23, I sat on a panel dealing with Constitutional Reform, sponsored by the Jamaica Accountability Meter Portal (JAMP). The panel included my friend Jeanette Calder, my colleague NIA Director Danielle Archer, and, very importantly, the Minister of Legal and Constitutional Affairs, Marlene Malahoo Forte. As usual, the moderation by Dionne Jackson-Miller was excellent and, for most of the duration of the panel, I had a positive feeling.

The questions from the studio audience and from the public were extremely encouraging. They wanted to be convinced that public education of the Jamaican people on the subject of constitutional reform would be broad, deep and in a language which the people understand. Questions were asked about the Constitutional Reform Committee: Who would make up this committee? Would it include youth representatives? What’s the difference between a ceremonial and an executive president? Can you convince us that the public’s views will have an impact on the outcome and not just be a face card? Are we going to be retaining the Westminster System? … and many other probing inquiries.

The positive feelings from these questions were reinforced by the signals in the responses coming from Minister Malahoo Forte. In the first place, in the days prior to the constitutional reform panel, the Government had been running television ads promoting public engagement in the constitutional reform process. More importantly, the minister gave the assurance that there would be no attempt in the next two years to accomplish a comprehensive review and overhaul of the existing Constitution. The focus – in this first phase – would be on Jamaica becoming a republic and no longer having the British monarch as our head of state.

As I understood this assurance, any attempt to change the Charter of Fundamental Rights and Freedoms would not take place at the same time as the move to a Jamaican republic. The minister stressed that there was going to be a genuine attempt to ensure full participation by the public and that the communication programme now being developed would involve both media and face-to-face engagements, in a manner that would ensure maximum input from the people. Most importantly, the feedback from the people would be given maximum consideration, including, of course, the views of the Parliamentary Opposition, as well as civil society groups. It felt like the prime minister’s declaration, almost a year ago, that “Jamaica was moving on …” was about to materialise.

ELECTION MANIFESTO PROMISE

Equally, it seemed that one of the promises in the Jamaica Labour Party’s 2020 election manifesto was now beginning to have substance, that is, to “engage in widescale consultations and referendum on constitutional reform … regarding the queen as head of state and electoral reform to include fixed election dates, term limits, and IMPEACHMENT (my emphasis). It was as if, the traffic light had changed from red to amber and to green. The signal seemed to be that the traffic piling up on the road to constitutional reform would finally be able to move forward.

But, towards the end of our panel discussion, a question came from an obviously insightful student from the Norman Manley Law School who was a participant in the studio audience. The question went something like this, “How can you convince us that you are serious, in particular that you have funding for this ambitious constitutional reform programme, when you have just postponed the local government elections, partly on grounds that funding is lacking?” This, in my opinion, was one of the few questions to which the minister’s response was entirely unconvincing, so much so that I had to intervene to say that the explanation given for the fourth postponement of the local government elections was entirely unconvincing and unacceptable.

On reflection, this raised in my own mind – was I seeing green when the traffic light may still be on amber, or even red, despite my positive feelings? Was I being premature? After all, the postponement of this and previous postponements after 2015 were of a different character than similar actions by previous administrations. Why? It was in 2015, on July 29, that the governor general signed an act “to amend the Constitution of Jamaica to make provisions for a democratic system of local government for Jamaica in the Constitution …”.

That act, recommended by the Constitutional Commission of 1991-1994, and discussed extensively subsequently, states significantly that “one of the purposes of local government shall be to encourage and assist the effective participation of local communities in the affairs of local government.” Does this latest postponement fulfil or undermine this constitutional purpose of local government? Does it encourage, or discourage, this constitutional purpose, against the background of steady decline in the percentage of voter turnout at the last four local government elections: 41 per cent in 2003; 38 per cent in 2007; 35 per cent in 2012; 30 per cent in 2016?

NOT CLEAR

Is it not clear that this last postponement disrespects the people and shows scant regard for the declared purpose of enhancing participation as stated in our Constitution? Then I began to reflect, are there not other instances where legislated commitments to strengthen our Constitution have not been fully respected? I speak of the commitments in law to give our parliamentary commissions constitutional protection, secure from being weakened or abolished by parliamentary majority. In November 2022, for example, the office of the political ombudsman appeared to have been put into abeyance – if not abolished. This against the background of the stated intention within the Political Ombudsman (Interim) Act, 2002, namely that this act – and by implication, this office – shall “continue in force until provision is made in the Constitution for the establishment of a Political Ombudsman in terms which preclude the alteration” by simple parliamentary majority.

Why has this act not been placed in the Constitution, despite this provision, and despite the administration of PM Bruce Golding drafting the legislation so to do. This intent is worded in the exact fashion in the Public Defender (Interim) Act, 2000 and the Electoral Commission (Interim) Act, 2006. Similarly, Golding’s administration’s draft, if brought to Parliament, would have given all three commissions constitutional protection. Yet, each remains vulnerable to any government which feels, for whatever reason, that these commissions are a bother and need to be weakened; or, as appears with the office of the political ombudsman, simply abolished.

In the interest of convincing our Norman Manley Law School student and so many others, I am urging the minister and the Government to ensure that there are no further mixed signals. Proceeding on the road ahead requires clear, green traffic signals. One such would be dusting off the Golding amendment and, admittedly 13 years later, moving them for parliamentary adoption. I suggest that this is especially urgent when already 55 per cent of Jamaicans express dissatisfaction with our democracy (LAPOP, 2021), 62 per cent of the electorate did not vote in 2020 – the lowest in 76 years, and somewhere in the region of 33 per cent would support authoritarian rule instead of democratic governance.

- Professor Emeritus Trevor Munroe is principal director, National Integrity Action. Send feedback to info@niajamaica.org or columns@gleanerjm.com.