Editorial | Reviving constitutional talks
It is late in the day. But the Government’s intention to open a “cross-aisle conversation” with the political opposition aimed at jump-starting the stalled effort to transition Jamaica to a republic is a welcomed development.
The obvious question, though, is why it didn’t happen a long time ago, as this newspaper has suggested. And, importantly, if these talks actually happen, it mustn’t be a pro forma event, or a jockeying for pole position by the main parties ahead of next year’s general election. This should preclude mounting and holding a referendum on whether Jamaica should accede to the Caribbean Court of Justice (CCJ) as its final court at the same time as the general election.
Rather, they should represent a genuine effort at a reset, with a clear appreciation that there can be no real chance of removing the monarchy during the life of the current parliament, which concludes next September.
There has long been consensus between Prime Minister Andrew Holness’ Jamaica Labour Party (JLP) and the opposition People’s National Party (PNP) on the ditching of the British sovereign as Jamaica’s head of state and replacing his local representative, the governor general, with an appointed president with no executive authority.
However, the Opposition, in part for tactical reasons, insists that removing the monarchy should be coupled with Jamaica’s accession to the civil and criminal jurisdictions of the CCJ. The island already participates in the court in its role as arbiter of the treaty upon which the Caribbean Community (CARICOM) rests.
LEFT HIGH AND DRY
The PNP apparently fears that, if it lends support to removing the monarchy without the simultaneous exchange of the UK-based Judicial Committee of the Privy Council (JCPC) for the CCJ, it might be left high and dry on the regional court, to which Prime Minister Holness has not shown favour without articulating clear reasons for his position.
In the past, Mr Holness has said that Jamaica joining the CCJ should be decided by a referendum, which, unlike ditching of the monarchy, is not required by the island’s constitution. In either case, though, two-thirds majority support is needed in houses of Parliament, which, given the configuration of the Senate, means, if members vote along party lines, at least one member of the Opposition would have to break ranks for the bills to pass.
Against this backdrop, it is surprising that, when the Government launched constitutional reform negotiations last year, it limited the discussions to the question of the monarchy and promised the question of the apex court could be addressed during the second phase.
Not unexpectedly, opposition members of the constitutional reform committee declined to sign its report, which reiterated the consensus on the non-executive president and outlined the mechanism by which the candidate(s) would be nominated and ultimately elected by Parliament.
Since the committee’s report in May, the reform process has, at best, been in a state of suspended animation – until this week when Marlene Malahoo Forte, the minister for legal and constitutional affairs, sought to revive the matter in Parliament, suggesting that bills to make Jamaica a republic could be tabled as early as next week.
Since these bills would amend deeply entrenched clauses in the island’s constitution, they would have to lay on the table of the House for three months before they are debated. After the debate, there would be another hiatus of three months before they are voted on. If the bills are passed with the requisite two-thirds majorities, they would then be subject to a referendum.
UNWISE
With general elections constitutionally due by next September, it is unlikely that this entire process, including public education efforts and campaigning for or against the measures, could be concluded before the general, unless they were made part of that event. Which would be unwise if the parties are serious about repatriating the island’s symbols of sovereignty.
In the partisan cut-and-thrust of a general election, and without both sides being in accord on the matter, the possibility of the referendum failing is higher, with little likelihood of being revived in the near term. It may, however, be that the governing party believes that it could gain strategic advantage in a general election by painting the PNP as being in favour of the monarchy and linking its leader, Mark Golding, whose father was English, to that notion.
Hopefully, that is not calculus and there is a good faith plan for the new cross-party dialogue that Ms Malahoo Forte promised.
In that event, Prime Minister Holness should, as Ms Malahoo Forte promised over a year ago, make clear his position on the CCJ, which is probably the world’s best insulted final court, with an enviable reputation for the quality of its jurisprudence.
On the basis of the prime minister’s declaration, both sides should begin talks at the political level aimed at determining their common ground and what either side may be willing to trade. Part of this effort should also be about building trust. Thereafter, these discussions could be elevated to the old Vale Royal-style talks between Prime Minister Holness and Mr Golding.
Indeed, there is a logic for Jamaica moving quickly to the CCJ. Not only is the process for doing so constitutionally uncomplicated, but accession to the CCJ would open the highest tier of justice for vast swathes of Jamaicans who, in concrete terms, have limited access to the JCPC.
Moreover, the Privy Council, as much as the monarchy, is a retrograde symbol of the island’s sovereignty. When a Jamaican files a case with the Privy Council, it is symbolically a prayer to His Majesty for justice, which is dispensed by one of his committees. Notably, it is only in recent months that Britain changed the law giving power to the president of the court to “invite” judges served by the JCPC to sit on cases.